State v. Peterson

No. 86-92

I N THE SUPREME COURT OF THE STATE OF MONTANA

1987

STATE OF MONTANA,

/LL- p.
P l a i n t i f f and R e s p o n d e n t ,
-VS-
.
BAILEY PETERSON,

D e f e n d a n t and A p p e l l a n t .

APPEAL FROM: T h e D i s t r i c t C o u r t of t h e N i n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of G l a c i e r ,
T h e H o n o r a b l e R.D. M c P h i l l i p s , Judge p r e s i d i n g .

COUNSEL OF RECORD:

For Appellant:

C h a r l e s M. Joslyn, C h o t e a u , Montana

For R e s p o n d e n t :

Hon. Mike Greely, Attorney General, Helena, Montana
Joe R. R o b e r t s , A s s t . A t t y . G e n e r a l , H e l e n a
J a m e s C. Nelson, County A t t o r n e y , C u t Bank, Montana

S u b m i t t e d on B r i e f s : Feb. 19, 1987

Decided: July 2 8 , 1 9 8 7

Filed:

Clerk
Mr. Justice John Conway Harrison delivered. the Opinion of the
Court.

This is an appeal from a jury conviction entered in the
District Court of the Ninth Judicial District, in and for
Glacier County. Defendant was tried and convicted of
narcotics-related offenses and now appeals. We reverse and
remand for new trial.
Although defendant raises five issues for our review,
because of our holding it is necessary to address only three:
( I ) Did the District Court err when it denied
defendant's motion to suppress?
(2) Did the District Court err when it admitted
evidence of telephone calls allegedly occurring between
defendant and his drug supplier?
(3) Did the District Court err when it denied
defendant's jury instruction of a lesser included offense?
On April 6, 1985, the police department in Cut Bank,
Montana, received an anonymous tip from Crimestoppers that a
large shipment of "pot" was due to arrive in Cut Bank later
that day via the bus. The parcel was said to be arriving
from Texas and was to be picked up by any of three men, one
of whom was said to be the defendant.
The information from the tip was given to Officer
Richard Wevley of the Cut Bank Police Department. Officer
Wevley went to the bus depot where he learned that the bus
was scheduled to arrive in one hour. He also learned that
the defendant had phoned the bus depot the previous day to
see if a package had arrived for him.
Officer Wevley then met with the county attorney to
prepare an application for a search warrant to seize and
search the parcel that was the subject of the anonymous tip
from Crimestoppers. Officer Wevley appeared before Justice
o f t h e Peace William L . Burns and s i g n e d t h e a p p l i c a t i o n f o r
s e a r c h w a r r a n t under o a t h . J u s t i c e o f t h e Peace Burns i s s u e d
a search warrant directing Officer Wevley to serve the
warrant.
Officer Wevley returned to the bus depot as the
d e f e n d a n t was s i g n i n g a r e c e i p t f o r a p a r c e l . Defendant t o o k
p o s s e s s i o n o f t h e p a r c e l and p l a c e d it i n h i s t r u c k parked
outside the depot. At that point, Wevley approached the
defendant and served the search warrant. Wevley and t h e
defendant returned to the depot where Wevley opened the
p a r c e l and found a t w e n t y - f i v e pound, n i n e ounce b u n d l e of
marijuana. Wevley placed defendant under arrest and
t r a n s p o r t e d him t o t h e p o l i c e s t a t i o n .
A t t h e s t a t i o n Wevley r e a d d e f e n d a n t h i s Miranda r i g h t s
and the asked him if he wished to make a statement.
Defendant declined, s t a t i n g t h a t he c o u l d g e t s h o t i n t h e
back f o r making a s t a t e m e n t . H e d i d mention, however, t h a t
he had r e c e n t l y p i c k e d up a n o t h e r package s i m i l a r t o t h e one
i n question.
Defendant was c h a r g e d w i t h two f e l o n i e s , p o s s e s s i o n o f
d a n g e r o u s d r u g s and p o s s e s s i o n o f dangerous d r u g s w i t h i n t e n t
to sell. H e p l e a d n o t g u i l t y and s t o o d t r i a l i n J u l y 1 9 8 5 .
He was c o n v i c t e d on each c o u n t and now a p p e a l s .

Issue 1
Did t h e D i s t r i c t C o u r t e r r when it d e n i e d d e f e n d a n t ' s
motion t o s u p p r e s s ?
Defendant f i r s t challenges t h e v a l i d i t y of t h e search
w a r r a n t p u r s u a n t t o which O f f i c e r Wevley s e i z e d and s e a r c h e d
t h e p a r c e l o f marijuana. Defendant f i l e d a p r e t r i a l motion
to suppress the seized marijuana on t h e grounds t h a t the
w a r r a n t was c o n s t i t u t i o n a l l y d e f e c t i v e . The D i s t r i c t Court
denied this motion. On appeal, defendant contends the
District Court erred in denying his motion to suppress for
two reasons--first, the warrant was unsupported by probable
cause, and second, it failed to describe specifically what
was to be seized.
Section 46-5-201, MCA, defines a search warrant:
A "search warrant" is an order:
in writing;
(2) in the name of the state;
(3) signed by a judge;
(4) particularly describing the thing,
place, or person to be searched and the
instruments, articles, or things to be
seized;
( 5 ) directed to a peace officer
commanding him to search for personal
property and bring it before the judge.
We have reviewed the application for the search warrant
and hold that it established probable cause for issuing the
warrant.
The warrant in this case does not describe with
particularity the article to be seized. The warrant
authorizes the seizure of a package or parcel and the
"contraband above described," but there is not an "above
described" large shipment of dangerous drugs or "pot"
described in the warrant as mentioned in the application.
Standing alone, the warrant would be invalid for its
failure to describe with particularity the contraband to be
seized. If the warrant had been directed to an officer other
than the officer who had made and signed the application, it
would be invalid. However, in this case, Officer Wevley not
only signed the application, which adequately described the
contraband as a package containing "pot," but he was also the
same officer who served the warrant and seized the package of
pot mentioned in the application.
When the application for the search warrant and the
search warrant are read together and when, as in this case,
the application is signed by the officer named in the warrant
as the officer directed to make service of the warrant and
who did personally make such service, the documents in
combination satisfy the requirement of particularly
describing the thing to be seized.
Officer Wevley did not go forth on a fishing trip with
the search warrant. He identified the particular thing to be
searched for in his application as a package of pot. He used
the warrant to search for that particular thing, and that is
what he seized. The District Court did not err in denying
defendant's motion to suppress the evidence seized.

Issue 2
Did the District Court err when it admitted evidence of
telephone calls allegedly occurring between defendant and his
drug supplier?
The District Court admitted evidence of telephone calls
from various phone numbers in Montana to Texas. The phone
numbers in Montana were of defendant's mother, defendant's
brother, a business and a ranch. The State asserted that
defendant made the calls. The Sta.te also presented evidence
of phone calls from Texas to Montana.
No evidence was presented to link defendant to any of
the phone calls. The State contends an inference is proper
that defendant had knowledge of the drug shipment as
evidenced by the phone calls.
Rule 402, M.R.Evid., states all relevant evidence is
admissible. Rule 401, M.R.Evid., defines relevant evidence:
 Relevant evidence means evidence having
any tendency to make the existence of any
fact that is of consequence to the
determination of the action more probable
or less probable than it would be without
the evidence . ..
In State v. Smith (Mont. 1983), 661 P.2d 463, 465, 40
St.Rep. 494, 496, we held that knowledge may be proven by
"direct evidence or by evidence of acts, declarations, or
conduct of the accused from which a jury may infer
knowledge."
Because we are reversing this case on other grounds, we
need not reach this issue. However, we will note that a
proper foundation must be developed before introduction of
the telephone calls can be allowed.

Issue 3
Did the District Court err when it denied defendant's
jury instruction of a lesser included offense?
Defendant was charged with the offenses of possession of
dangerous drugs (Count 11) in violation of S 45-9-102, MCA,
and possession of dangerous drugs with intent to sell (Count
I) in violation of $ 45-9-103, MCA. Both Count I and Count
I1 were based on the same possession of contraband.
The jury found defendant guilty on both counts, and the
court sentenced defendant on both counts.
The State may charge defendant with more than one
offense when the same transaction may establish the
commission of more than one offense, § 46-11-502, MCA.
However, a defendant may not be convicted of one offense if
that offense is included in another. Section 46-11-502(1),
MCA.
Section 46-11-501 (2)(a), MCA, provides:
 A o f f e n s e i s a n " i n c l u d e d o f f e n s e " when
n
i t i s e s t a b l i s h e d by p r o o f o f t h e same o r
less t h a n a l l t h e f a c t s r e q u i r e d t o
e s t a b l i s h t h e commission o f t h e o f f e n s e
charged.

The o f f e n s e o f criminal possession of dangerous d r u g s
with intent to sell, S; 45-9-103, MCA, requires that each
r e l e v a n t element o f c r i m i n a l p o s s e s s i o n o f dangerous d r u g s ,
§ 45-9-102, MCA, be proven a l o n g w i t h t h e a d d i t i o n a l e l e m e n t
of "intent t o sell." W hold t h a t
e $ 45-9-102, MCA, i s an
included offense of § 45-9-103, MCA.
D e f e n d a n t ' s proposed i n s t r u c t i o n number 5 was r e f u s e d by
t h e D i s t r i c t Court. I t provided:
If you a r e not s a t i s f i e d beyond a
r e a s o n a b l e d o u b t t h a t t h e Defendant i s
g u i l t y o f t h e o f f e n s e c h a r g e d , h e may,
however, b e found g u i l t y o f any l e s s e r
offense, the commission o f which i s
necessarily included in the offense
charged, i f t h e evidence i s s u f f i c i e n t t o
establish his guilt of such lesser
o f f e n s e beyond a r e a s o n a b l e d o u b t .

The o f f e n s e o f P o s s e s s i o n w i t h I n t e n t t o
S e l l , Count I1 w i t h which t h e Defendant
i s charged, necessarily includes the
l e s s e r o f f e n s e o f P o s s e s s i o n o f Dangerous
Drugs, Count I .

You may f i n d t h e Defendant g u i l t y o f
e i t h e r t h e o f f e n s e s t a t e d i n Count I o r
i n Count 11, b u t n o t i n b o t h , o r n o t
g u i l t y of e i t h e r offense.

I f t h e e v i d e n c e i s s u c h , t h e D i s t r i c t Court i s r e q u i r e d
t o g i v e an i n s t r u c t i o n on t h e lesser i n c l u d e d o f f e n s e . State
v . Young (Mont. 1 9 8 3 ) , 669 P.2d 239, 2 4 2 , 4 0 St.ReP. 14741
1478; S t a t e v . Gopher (Mont. 1 9 8 1 ) , 633 P.2d 1195, 1197, 38
St.Rep. 1521, 1524. " [Defendant] may o n l y be c o n v i c t e d o f
the greatest included offense about which there is no
reasonable doubt." S e c t i o n 46-16-602, MCA.
 We hold the District Court committed reversible error
when it denied defendant's instruction of a lesser included
offense.
R-eversed and remanded for new trial.

We concur: A

Justices
Mr. Justice William E. Hunt, Sr., concurring in part and
dissenting in part.

I concur in part and dissent in part. I concur with
the majority's conclusion that this case be remanded on
the issue of the lesser included offense. I dissent in part
because of the majority's unsupported and unwarranted
intrusion into the protections afforded by the Fourth
Amendment of the United States Constitution and Article 11,
Section 11 of the Constitution of the State of Montana.
The Fourth Amendment clearly provides that no warrant
shall issue without "particularly describing the place to be
searched, and the persons or things to be seized.'"
Similarly, Article 11, Section 11 of the Montana
Constitution requires that:
[nlo warrant to search any place, or
seize any person or thing shall issue
without describing the place to be
searched or the person or thing to be
seized ...
Despite these constitutional mandates, the following
search warrant was issued:
THE STATE OF MONTANA TO RICHARD WEVLEY,
CUT RANK CITY POLICE OFFICER:
A sworn application having been made
before me by Richard Wevley, Cut Bank
City Police, that he has reason to
believe that at Treasure State News on
west main street in Cut Rank, Mt. in a
package or parcel addressed to any or all
of the following, to wit: Baley [sic]
Peterson ...
That I am satisfied that there is
probable cause to believe that the
property, evidence and contraband above
describded [sic] is upon and in the
package or parcel at Treasure State News
said parcel or package described above.
 You are hereby commanded to serve this
warrant and to search the described
Treasure State News and the above
described package or parcel for the
evidence, contraband and property
specified and if the property, evidence
and contraband is found, you are to seize
it along with any other contraband,
property, and evidence of crimes which
you may find ...
This warrant fails to describe with particularity the
contraband to be seized. Nevertheless, under today's ruling,
the majority allows the State to use in its case-in-chief
evidence obtained pursuant to an admittedly defective
warrant. Not only does this "exception" to the particularity
requirement lack any constitutional basis, it represents bad
policy.
The majority seems to base its holding on the
combination of two factors. The first is the search warrant
application described with particularity that which was to be
seized. And second, the same officer who submitted the
search warrant application executed the search.
However appealing the majority's holding appears at
first glance, upon review it quickly becomes apparent this
holding is based upon something other than the law. The
majority relies upon the fact that Officer Wevley's
appl-ication for this warrant set forth with particul.arity
that for which he sought authority to search. This is true
but irrelevant. It is the search warrant itself, not the
application, which provides the authority to conduct a
search. Nowhere has it been argued that there exists any
indication that the application was to be incorporated into
the warrant. Without a valid authorization within the four
corners of the search warrant, the officer who conducted this
search was without constitutional authority to do so.
 Yet the majority remarkably combines these two
documents to satisfy the requirement of particularity. There
is simply neither any factual nor legal basis for this
conclusion. Before today, I thought it well established that
the requirement of particularity was an express
constitutional command, not a mere technicality. Lo-Ji
Sales, Inc. v. New York (1979), 442 U.S. 319, 99 S.Ct. 2319,
60 L.Ed.2d 920; Stanford v. Texas (1965), 379 U.S. 476, 85
S.Ct. 506, 13 L.Ed.2d 431. For an excellent discussion of
this entire issue, see 468 U.S. 928, 104 S.Ct. 3430, 8 7
L.Ed.2d 702 (Mr. Justice Brennan dissenting to United States
v. Leon (1984), 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677
and Massachusetts v. Sheppard (1984), 468 U.S. 981, 104 S.Ct.
3424, 82 L.Ed.2d 737.
The majority further bases its holding on the fact that
the same officer both applied for the warrant and executed
the search. Again, this circumstance should have no bearing
on the legal issues at hand. Our state and federal
constitutions require that before a search warrant may be
executed, an officer must obtain prior judicial authority
from a neutral and detached magistrate. It is this
requirement of prior judicial authority which was designed to
protect our individual constitutional liberties by defining
precisely the conditions under which governmental agents
could search private property. To insure continued
protection of our individual rights, we must recognize this;
we cannot rely upon the self-restaint of any governmental
agency.
For the sake of simple expediency, the majority has
sacrificed basic constitutional protections to the lure of
convicting criminals. With scant discussion and absolutely
no authority, the majority has created a remarkable exception
to the Fourth Amendment to the United States Constitution
and to Article 11, Section 11 of the Montana Cohstitution.
The majority ignores the fundamenta.1 constitutional
importance of what is at stake here.