State v. Rydberg

No. 89-193

IN THE SUPREME COURT OF THE STATE OF MONTANA
1989

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
KATHERINE RYDBERG,
Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Rarz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gary E. Wilcox, Billings, Montana
For Respondent:

Hon. Marc Racicot, Attorney General, Helena, Montana
Dorothy McCarter, Asst. Atty. General, Helena
Harold Hanser, County Attorney; Curtis L. Bevolden,
Deputy County Atty., Billings, Montana

Submitted on Briefs: July 13, 1989
Decided: August 31, 1989

Filed:
Justice L. C. Gulbrandson delivered the Opinion of the Court.

Defendant, Katherine Rydberg, appeals from a judgment of
the District Court for the Thirteenth Judicial District,
Yellowstone County, finding her guilty of Criminal Possession
of Dangerous Drugs pursuant to 5 45-9-102, MCA. This
judgment was entered after the District Court denied
Rydberg's motion to suppress evidence seized pursuant to a
search warrant allegedly issued without probable cause. We
affirm.
The only issue presented for our review is whether the
District Court erred in finding that the application for the
search warrant contained facts sufficient to establish
probable cause.
On August 8, 1988, Detective Thayer filed an application
for a search warrant for Rydberg's residence. The grounds
for the application were based in part on a July 6, 1988
phone call from an anonymous informant who reported observing
Rydberg's involvement with the buying and selling of drugs.
The informant also identified two other people, Walter Foster
and Debbie Hicks, who "were involved with drugs" and who also
associated with Rydberg. Specifically, the informant stated
that Foster had sold Rydberg approximately one gram of
cocaine the month before. This information was partially
corroborated by a crimestopper's tip received on March 3,
1988; the tipster reported, as did the primary informant,
that Foster was buying and selling drugs.
On July 25, 1988, the primary informant reported
observing dangerous drugs at the Rydberg residence. The
informant observed Foster at Rydberg's residence on July 28,
1988, and also reported seeing Rydberg at Hicks' residence
"several times." The informant called a third time on August
7, 1988, and reported observing crank, possibly some cocaine,
and other dangerous drugs at the Rydberg residence. These
facts were also noted in the application as grounds for
issuance of the search warrant. The search warrant
application then stated that both Foster and Hicks had been
charged with criminal possession of dangerous drugs, and that
Hicks was subsequently convicted of selling these drugs while
Foster's charge was dismissed.
The subsequent search of Rydberg's residence and purse
produced 5.7 grams of methamphetamines, 1.5 grams of cocaine,
1 gram of marijuana, a razor blade and snort tube, and three
empty bindles. Consequently, the County Attorney for
Yellowstone County charged Rydberg via an Information filed
August 12, 1988, with Criminal Possession of Dangerous Drugs
in violation of g 45-9-102, MCA. Rydberg subsequently filed
a motion to suppress all evidence seized during the August
10, 1988 search. The motion was denied.
After Rydberg waived her right to a jury trial, she was
found guilty on March 7, 1989, before the District Court and
received a three-year deferred imposition of sentence subject
to fulfillment of specified conditions.
Rydberg appeals from this judgment and sentence. She
alleges that the search of her residence and purse was a
violation of her federal and state constitutional rights
because the search warrant application did not contain facts
sufficient to establish probable cause.
The Fourth Amendment to the United States Constitution
and Article 11, Section 11 of the Montana State Constitution
protect against unlawful searches and seizures. These
constitutional provisions require a showing of facts in the
application for a search warrant sufficient to establish
probable cause. State v. O'Neill (19841, 208 Mont. 386, 393,
679 P.2d 760, 763-64. Probable cause for issuance of a
search warrant, however, is "significantly less than that
required for a conviction." State v. Walston (Mont. 1989) ,
768 P.2d 1387, 1389, 46 St.Rep. 309, 311. The application
need only contain facts sufficient to indicate the
probability of criminal activity in light of the "totality of
the circumstances." Illinois v. Gates (1983), 462 U.S. 213,
238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548; State v.
Crain (Mont. 1986), 725 P.2d 209, 210, 43 St.Rep. 1628, 1629.
This "totality of the circumstances" analysis requires an
issuing magistrate to make a practical, commonsense decision
about the probability of criminal activity from:
all the circumstances set forth in the
affidavit before him, including the
"veracity" and "basis of knowledge" of
persons supplying hearsay information
...
Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76
L.Ed.2d at 548.
We hold that the totality of facts set forth in the
search warrant application filed by Detective Thayer were
sufficient to lead the issuing magistrate to conclude that
Rydberg's residence probably contained dangerous drugs. The
basis of the informant's knowledge was stated; the informant
learned of the presence of drugs in Rydberg's residence
through personal observation. The crimestopper's tip, which
provided some corroboration as to the character of Foster and
as reported by the informant, indicates the veracity of the
information provided. The search warrant application stated
that both Foster and Hicks had previously been charged with
drug-related offenses. If a police official provided this
information regarding Foster's and Hicks's prior drug-related
charges, then the veracity of the information is further
supported.
The application regrettably fails to state clearly the
source of this information, however, the application does
identify the informant when reiterating facts that were
reported by the informant. The application states that:
Both of these subjects [Foster and Hicks1
have previously been charged with
criminal possession of dangerous drugs.
Hicks was convicted on the charges of
selling dangerous drugs. Foster's charge
was dismissed.

According - - CI
to the [Confidential
Informant], Foster sold Rydberg some
-

cocaine approx. one gram, a month
ago. .. According - - -
to the CI, that is
working with this department Rydberq has
been seen at ~ e b b i e Hicks - residence
several times, also according - - -
to the CI,
who called in again on 7-25-88 to say
that at the Rydberg residence there was
some drugs again, that was seen by the
CI. .. On August 7, 1988 - - - CI,
the same
called this office asain, with some more
information concerning Rydberg. After
talking - - -
to the CI, I was informed that in
the house was crank and possibly some
cocaine, and other drugs. (Emphasis
added. )
The search warrant application does not identify the
informant as the person providing the information about
Foster's and Hicks's prior drug charges, yet it does refer
specifically to the informant as the source of the other
information provided, indicating that a person other than the
informant provided the facts about Foster's and Hicks's prior
criminal record.
When a magistrate determines that probable cause exists
to warrant the issuance of a search warrant, this Court
should not only give great deference to that decision but we
should also draw every reasonable inference possible to
support the decision. State v. Sunberg (Mont. 19881, 765
P.2d 736, 741, 45 St.Rep. 2235, 2340; State v. Pease ( ~ o n t .
1986), 724 P.2d 153, 159, 43 St.Rep. 1417, 1424. In light of
the facts outlined above, we uphold the ~istrict Court's
denial of Rydberg's motion to suppress evidence seized under
the search warrant and therefore affirm the judgment.
Affirmed.

1

We concur:

w
--

Justices

Justice John C. Sheehy did not participate in this opinion.
Justice R. C. McDonough and Justice William E. Hunt, Sr.,
file the following dissents, each concurring in the other:

Justice R. C. McDonough dissents.
The application for the search warrant of the
defendant's home was not sufficient to establish probable
cause. The pertinent parts of such application are as
follows:

On 7-6-88 this office received an anonymous phone
call from a subject who had some information
concerning a KATHY RYDBERG, who lives at 1 0 0 4
Sunhaven Trailer Court, Laurel, Montana, who has
involvement in dealing, buying and selling of
drugs. The subject who called in since then has
become a confidential informant. The CI stated
that RYBERG [sic] was involved with several people
who are into drugs. Of these people, two names
were brought up. One is a WALTER FOSTER, who lives
at 1 5 1 5 E. Main Street Laurel, Montana. The other
is a DEBBIE HICKS, who lives on 2 2 4 South 32nd
street, Billings, Montana.
Both of these subjects have previously been charged
with criminal possession of dangerous drugs. Hicks
was convicted on the charges of selling dangerous
drugs. Foster's charge was dismissed. According
to the CI, Foster sold Rydberg some cocaine approx;
one gram, a month ago.
Foster also was called in on a crimestoppers tip on
March 3 1 9 8 8 . The informant said that a Walter
Foster who lives at 1 5 1 5 E. Main, in Laurel,
Montana, was dealing and selling drugs. This is a
different informat [sic] entirely. According to
the CI, that is working with this department
Rydberg has been seen at Debbie Hicks residence
several times, also according to the CI, who called
in again on 7 - 2 5 - 8 8 to say that at the Rydberg
residence there was some drugs again, that was seen
by the CI. Also Foster has been at the Rydberg
house recently. Foster was observed at the Rydberg
residence at around 10:OO PM on July 28, 1 9 8 8 .
Foster was driving a cream colored 4 door Ford.
On August 7, 1 9 8 8 the same CI, called this office
again, with some more information, concerning
Rydberg. After talking to the CI, I was informed
 that in the house was crank and possibly some
cocaine, and other drugs.
This information that was received from the CI, is
based upon the CI being in the residence, from time
to time, and seeing the drugs, and the paraphenalia
[sic] .la

It is to be noted from examining the wording of the
application that the only person who for sure connects the
defendant in any way to possible criminal behavior or
incriminating items, is the confidential informant. It is
confusing whether the anonymous informant who called in on
July 6, 1988, is the same or a different confidential
informant who is referred to later.
Therefore, the applicant for the search warrant, a
detective, has as his only connection to the defendant, the
hearsay evidence of the confidential informant. There is
nothing in the affidavit which would inform the magistrate
that such hearsay was reliable or that the officer thought
the informant was credible. The information and statements
given by the informant are vague and not in any way explicit,
and do not lend themselves to be able to be checked as to
their veracity.
We have adopted the totality of the circumstances test
(see State v. Sundberg (Mont. 1988), 765 P.2d 736, 45 St.Rep.
2235) adopted in Illinois v. Gates (1983), 462 U.S. 213, 103
S.Ct. 2317, 76 L.Ed.2d 527, which was discussed therein as
follows:

For all these reasons, we conclude that it is
wiser to abandon the "two-pronged test" established
by our decisions in Aguilar and Spinelli. In its
place we reaffirm the totality-of-the-circumstances
analysis that traditionally has informed
probable-cause determinations. See Jones - United
v.
States, supra; United States v. Ventresca, 380 U.S.
102 (1965); Brinegar v. ~ n i t e aStates, 338 U.S. 160
(1949). The task o f the issuing magistrate is
simply to make a practical, common-sense decision
whether, given all the circumstances set forth in
the affidavit before him, including the "veracity"
 and "basis of knowledge" of persons supplying
hearsay information, there is a fair probability
that contraband or evidence of a crime will be
found in a particular place. And the duty of a
reviewing court is simply to ensure that the
magistrate had a "substantial basis for . . .
conclud[ing]" that probable cause existed. Jones
-
v. United States, 3 6 2 U.S., at 2 7 1 . We are
convinced that this flexible, easily applied
standard will better achieve the accommodation of
public and private interests that the Fourth
Amendment requires than does the approach that has
developed from Aguilar and Spinelli.
Gates, 4 6 2 U.S. at 2 3 8 - 3 9 .
Looking at this application a magistrate would ask
common sense questions which by asking the questions point
out the deficiency of the application:

Can the confidential informant be believed? and
Why isn't he/she more specific about dates, times,
places, itemization, description of the house,
etc., and therefore
Was he/she actually in the house, and
Can his/her information be corroborated?
Without further facts under the circumstances here, there is
no basis to believe that probable cause exists for issuance
of the warrant. I would reverse the District Court and
suppress the evidence. I further concur in the following
dissent of Justice William E. Hunt, Sr.

RP
Justice
Mr. Justice ~illiamE. Hunt, Sr., dissenting:

I dissent. The search warrant application did not
contain sufficient facts to establish probable cause and,
thus, violated the protections guaranteed by the Fourth
Amendment to the united States constitution and Art. 11, Sec.
11 of the Montana Constitution.
The search warrant application was partially based upon
telephone calls from an anonymous informant who reported
observing Rydberg buying and selling drugs. The majority
notes, and correctly so, that when a magistrate examines an
application for a search warrant, he must consider:
. .
. - - circumstances set forth in
all the
the affidavit before him, includinq the
"veracity" and "basis of knowledgew of
persons supplying hearsay information.
[Emphasis added.]
~llinoisv. Gates (1983), 462 U.S. 213, 238, 103 S.Ct. 2317,
2332, 76 L.Ed.2d 527, 548.
The validity of a search warrant based on information
received from an informant will not necessarily be negated as
long as the reliability and credibility (the veracity) and
the basis of the informant's knowledge is established. The
majority makes a feeble attempt to establish the veracity of
the anonymous informant, who communicated by telephone, by
stating that because a crimestopper's tip corroborated the
informant's report, the "veracity of the information
provided" was indicated. It is not the veracity of the
"information" which is at issue when dealing with informants,
but the veracity of the informant himself. In this case, the
veracity of the informant is impossible to establish because
the informant remains anonymous. Because the informant
remains anonymous, his veracity cannot be established,
therefore, his statements may not be introduced as a basis
for issuing the search warrant. Without the informant's
statements, the search warrant fails for lack of probable
cause.
The majority states that the "application need only
contain facts sufficient to indicate the probability of
criminal activity in light of the totality of the circum-
stances." Aside from information received from the infor-
mant's anonymous telephone calls, the only other fact
considered when issuing the warrant was a crimestopper's tip.
The veracity of the crimestopper's tipster, as with the
anonymous informant, has not been established. For all we
know, it could have been the same person.
Moreover, the majority admits that the "application
regrettably fails to state clearly the source of this
information." Regrettable indeed! What is even more
regrettable is the kind of precedent established by this
case. Even in the most lenient of circumstances, the infor-
mation relied upon would not establish probable cause and is,
therefore, unconstitutional.
I would reverse the District Court.
I also concur in the dissent o Mr. Justice McDonough.
f