No. 13000
I N THE SUPREME COURT OF TIIE STATE OF M N A A
OTN
1975
STATE OF MONTANA,
P l a i n t i f f and Respondent,
-vs -
JAMES S. SNIDER,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court o f t h e Tenth J u d i c i a l D i s t r i c t ,
Honorable LeRoy L. McKinnon, Judge p r e s i d i n g .
Counsel of Record:
For Appellant :
Johnson and F o s t e r , Lewistown, Montana
K. Robert F o s t e r a r g u e d , Lewistown, Montana
F o r Respondent:
Hon. Robert L. Woodahl, A t t o r n e y G e n e r a l , Helena,
Montana
Thomas A. Budewitz, A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d ,
Helena, Montana
W i l l i a m A. S p o j a , Jr. County A t t o r n e y , Lewistown, Montana
Theodore P. Cowan, Deputy County A t t o r n e y , a p p e a r e d ,
Lewistown, Montana
F o r Amicus C u r i a e :
Thomas Honzel a r g u e d , Helena, Montana
Submitted: September 22, 1975
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1 2 3 - -
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Filed :
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
Defendant appeals from a judgment convicting him of
illegal possession of dangerous drugs following a trial in the
district court, Fergus County, before the Honorable LeRoy L.
McKinnon, district judge, sitting without a jury.
The material facts are undisputed. Justice of the Peace
Robert C. Brooks of Lewistown Township, Fergus County, Montana,
issued a search warrant on the basis of a sworn application by
Randall Cordle, a Fergus County deputy sheriff. The search war-
rant authorized "any Peace Officer of this State" to search "a
single story, gray, wood frame house, located directly to the
rear of a mobile home located at 6 0 8 2nd Street West, Lewistown,
Fergus County, Montana" for marijuana and other dangerous drugs.
The warrant was executed by Deputy Sheriff Cordle with
the assistance of two deputies and a Lewistown police officer.
As they approached the residence in the late evening of August 4,
1974, defendant James S. Snider came out of the front door clad
only in shorts. He spotted the approaching officers, turned, ran
back into the house and slammed the door. Deputy Sheriff Cordle
ran into the house right behind him and observed Snider "standing
by the sink trying to put down his mouth what appeared to be a
baggie of marijuana." A subsequent search uncovered "other drug
substances found within the residence."
A field test was performed on the substance taken from
Snider and it tested positive for marijuana. Later this substance
was sent to the state criminal investigation laboratory in Missoula
where the chemist's report identified it as marijuana.
Snider was charged with the crime of "FELONY - Illegal
Possession of Dangerous Drugs" by reason of possession of more
than 6 0 grams of marijuana in violation of section 54-133, R.C.M.
1947. He pled "not guilty".
Prior to trial, Snider moved to suppress "any and all
evidence obtained from the Defendant pursuant to the search
warrant * * *." Following a hearing, the district court denied
the motion to suppress.
Defendant filed a written waiver of jury trial. Trial
was held on March 3, 1975 before Judge McKinnon. The baggie of
marijuana and the chemist's report from the state criminal in-
vestigation laboratory were admitted in evidence over defend-
ant's objection. Defendant took the witness stand and on both
direct examination by his own counsel, and cross-examination by
the state, admitted starting to eat "pot" when the officers first
arrived on the premises. Defendant was convicted of felony - illegal
possession of dangerous drugs and granted a two year deferred sen-
tence. Defendant now appeals from the judgment of conviction.
The issues on appeal are: (1) Was denial of defendant's
motion to suppress reversible error? (2) was the admission in
evidence of the marijuana and laboratory report reversible error?
Defendant's principal contention is that the search war-
rant was invalid because it was issued by a justice of the peace
who has no jurisdiction or authority to issue a search warrant
for dangerous drugs. Accordingly, he argues, the entry into the
residence and the seizure of the marijuana under authority of the
search warrant were unlawful and the evidence should have been
suppressed.
Section 95-704, R.C.M. 1947, provides:
"Any judge may issue a search warrant upon the
written application of any person that an offense
has been committed * * *." (Emphasis supplied)
The term "judge" is defined in section 95-206, R.C.M.
"'Judge' means a person who is invested by law
with the power to perform judicial functions and
includes court, justice of the peace or police
magistrate when a particular context so requires."
(Emphasis supplied)
This Court recently held that in the context of issuance
of search warrants, the term "judge" does not require or include
a police magistrate and accordingly he has no authority to issue
a search warrant. State v. Tropf, Mont. , 530 P.2d 1158,
32 St.Rep. 56. But it does not follow that a justice of the
peace stands on the same footing as a police judge when it comes
to issuing search warrants. Unlike a police magistrate, a justice
of the peace is included within the term "any judge" in section
95-704 in the context of issuing search warrants.
Although both police courts and justice of the peace
courts are courts of limited jurisdiction, substantial differences
between the two exist.
Justices of the peace were not subject to disqualification
by affidavit at the time this case arose (Bailey v. State, 163
Mont. 380, 517 P.2d 708), while police judges were expressly sub-
ject to such disqualification (section 11-1713, R.C.M. 1947). The
jurisdiction of the two courts is substantially different. Cf.
sections 11-1602 and 11-1603, R.C.M. 1947 (police courts) and
section 95-302, R.C.M. 1947 (justice courts).
Justice courts are constitutionally created while police
courts are not. Article VII, Section 1, 1972 Montana Constitution
provides :
"The judicial power of the state is vested in
one supreme court, district courts, justice
courts, and such other courts as may be provided
by law. l1
Art. VII, Section 5, 1972 Montana Constitution provides:
" (1) There shall be elected in each county at
least one justice of the peace * * *.
"(2) Justice courts shall have such original juris-
diction as may be provided by law. They shall not
have trial jurisdiction in any criminal case des-
ignated a felony except as examining courts.
"(3) The legislature may provide for additional
justices of the peace in each county."
The legislature has given justice courts the power and
jursidiction to act as examining courts in felony cases. Section
95-302, R.C.M. 1947. Such power and jurisdiction had not been
granted to police courts at the time this case arose. A legis-
lative intent to include the power to issue search warrants
within the grant of jurisdiction to act as examining courts is
apparent from legislative history coupled with Montana's exist-
ing judicial structure.
At various times the legislature has placed restrictions
upon the authority of justices of the peace to issue search
warrants. In 1912, a justice of the peace did not have authority
to issue a search warrant in connection with the alleged violation
of a city ordinance concerning operation of a saloon. State ex
rel. Streit v. Justice Court, 45 Mont. 375, 123 P. 405. In 1968,
a justice of the peace did not have jurisdiction to issue a search
warrant relating to illegal possession of narcotic drugs. For-
mer section 54-112, R.C.M. 1947; State v. Langan, 151 Mont. 558,
445 P.2d 565. In 1969, the legislature passed the present Danger-
ous Drug Act which does not contain any limitation on the issuance
of search warrants to district judges, as formerly required, or
to any particular type of judge. Section 54-138, R.C.M. 1947, now
provides :
"The district court shall have exclusive trial
jurisdiction over all prosecutions c o m m e n c e d
under the Montana Dangerous Drug Act." (Em-
phasis supplied).
The use of the term "trial jurisdiction" constitutes a
legislative acknowledgement that other types of jurisdiction exist
in these cases and are not vested exclusively in the district
courts.
Montana's existing court system as established by the
legislature supports a legislative intent to grant justices of
the peace jurisdiction to issue search warrants. There are 56
counties in the state, with 28 district judges. These district
judges serve judicial districtscomprising from one to seven
counties. They generally reside and spend the major part of
their time in the most populous county within their judicial
district. Because of this court system and its inherent geograph-
ical limitations, many of the outlying counties simply do not
have a district judge available on a moment's notice to issue
search warrants, as frequently required in drug cases. But, as
indicated above, every county has one or more justice of the
peace. Under these known circumstances, the legislature will be
presumed to have intended to grant justices of the peace the right
to issue search warrants in the absence of any express limitation.
Perhaps the clearest indication of how the legislature
itself treated the subject is the 1975 amendment giving police judges
the same jurisdiction and responsibility as justices of the peace
in handling applications for search warrants. Sec. 2, Ch. 165,
A
Laws 1975, codified as section 11-1601(3), R.C.M. 1947.
This construction is further supported by the relatively
common practice of justices of the peace in issuing search warrants.
Where the legislature has had the opportunity to provide other-
wise and has not seen fit to do so, a legislative intent to author-
ize the practice is presumed. State ex rel. Roeder v. State Board
of Equalization, 133 Mont. 393, 324 P.2d 1057.
This construction is consistent with United States con-
stitutional guarantees requiring a "neutral and detached magistrate"
to examine the application for a search warrant and determine
whether reasonable cause exists for its issuance. In the language
of the United States Supreme Court in Johnson v. United States,
333 U.S. 10, 68 S.Ct. 367, 92 L.ed. 436, 440:
"The point of the Fourth Amendment, which often
is not grasped by zealous officers, is not that
it denies law enforcement the support of the
usual inferences which reasonable men draw from
evidence. Its protection consists in requiring
that those inferences be drawn by a neutral and
detached magistrate instead of being judged by
the officer engaged in the often competitive
business of ferreting out crime."
A justice of the peace clearly meets the standard of "a neutral
and detached magistrate."
For the foregoing reasons, we hold that a justice of
the peace has jurisdiction and authority to issue a search
warrant.
Defendant further contends that the search warrant here
is invalid because it is directed to "any Peace Officer of this
State". This issue was not raised in the district court, but is
urged for the first time on appeal from the judgment of convic-
tion. On the merits, we hold that this defect is not fatal under
the circumstances of this case.
We have previously condemned the practice of issuing
search warrants directed to "any peace officer of this state."
State v. Meidinger (1972), 160 Mont. 310, 502 P.2d 58; State v.
Tropf (1975), Mont . , 530 P.2d 1158, 32 St.Rep. 56. We
again disapprove such practice. However, under the facts of this
case it is not a fatal defect rendering the search warrant invalid.
Deputy Sheriff Cordle applied for the warrant and it was executed
by him. Under such circumstances, no prejudice resulted to defend-
ant by failure to direct the search warrant to a particular peace
officer pursuant to section 95-703, R.C.M. 1947.
Defendant next contends that the admission in evidence of
the baggie of marijuana and the laboratory report of the chemist
at the State Criminal Investigation Lab was reversible error.
He contends the baggie of marijuana was not admissible
because the chain of possession and custody was not established.
For this reason, he claims his motion to suppress this evidence
prior to trial, and his objection to its admissibility at the
trial should have been granted.
The chain of possession and custody of the marijuana
was established by the testimony of Deputy Sheriff Cordle. He
testified that the marijuana was taken from defendant's mouth
when he was attempting to swallow it following the officers'
entry on the premises; that he took the marijuana and locked
it in the vault in the sheriff's office; that he packaged it,
marked it, addressed it, and mailed it by registered mail to
the State Criminal Investigation Lab in Missoula; that he re-
ceived it back from the Lab a few days thereafter; and, he ident-
ified the exhibit as the same baggie of marijuana he sent to the
Lab through the markings he placed thereon. This is clearly a
sufficient foundation to establish the chain of possession. It
is completely unnecessary to call each person who handled it as
a witness at the trial. The manijuana was properly admitted.
Defendant further contends that the written report of
the chemist at the State Criminal Investigation Lab was inadmis-
sible in evidence on two grounds: (1) it was written hearsay,
and (2) no foundation was laid qualifying the state chemist for
expert opinion testimony identifying the tested substance as
marijuana.
Defendant is correct in stating that the report was written
hearsay. However, it was admissible as a statutory exception to
the hearsay rule pursuant to the Uniform Official Reports as Evi-
dence Act. Section 93-901-1, et seq., R.C.M. 1947.
Section 93-901-1 of the Act provides:
"Written reports or findings of fact made by
officers of this state, on a matter within the
scope of their duty as defined by statute, shall,
insofar as relevant, be admitted as evidence of
the matters stated therein."
The Division of Criminal Investigation including the State
Criminal Investigation Laboratory was created pursuant to
section 82-414 et seq., R.C.M. 1947. The powers and duties
of agents of the division are defined in pertinent part in
section 82-416:
"(1) Assist city, county, state and federal law
enforcement agencies at their request by provid-
ing expert and immediate aid in investigation and
solution of felonies committed in the state."
Section 82-414 (3) provides:
"Each agent shall be a person qualified by exper-
ience, training and high professional competence
in criminal investigation. Qualifications shall
be equal to those of similarly assigned federal
bureau of investigation personnel."
Pursuant to this authority the office of state chemist
was established to assist local law enforcement officials in
identification of dangerous drugs.
The written report of the state chemist contained the
following written analysis of the substance submitted by the
Fergus County sheriff's office:
"Microscopic examination of the above described
material, Lab #AC-02-081274, showed the presence
of properties which are characteristic of the
marihuana plant. Further analysis of the above
by thin layer chromatography was positive for the
presence of b"tetrahydrocannabino1, the active
controlled substance of marihuana and other canna-
binolic compounds which are found in marihuana."
This report was signed by Donald L. Smith, chemist, Criminal In-
vestigation Lab.
A state Criminal Laboratory report showing a substance
to be marijuana has been held admissible hearsay in a criminal
proceeding. State v. One Certain Conveyance, Etc., (Iowa 1973),
The Montana Act making this report admissible does not
require the presence of the chemist at the trial to verify his
written report nor for cross-examination on the report. Section
93-901-3, R.C.M. 1947. In any event, defendant was free to
subpoena the chemist as a witness if he wished to contest the
report or cross-examine him on his qualifications or expertise.
Additionally, defendant testified on direct examination
that after Deputy Sheriff Cordle entered the room "1 started to
eat this pot." On cross-examination by the deputy county attor-
ney, defendant further testified:
"Q. You claimed that you were eating pie? A.
Pot.
"Q. Pardon? A. Pot.
"Q. Oh, you were eating pot. Excuse me, I
thought you said you were eating pie. A. No.
"Q. You were eating pot? A. Yes, I was.
"Q. The testimony Mr. Cordle gave a few minutes
ago with respect to your putting something in
your mouth, it was pot, is that correct? A. Yeah."
For these reasons, we hold that the marijuana and state
chemist's report were admissible in evidence. Judge McKinnon
was correct in denying defendant's motion to suppress and de-
fendant's objections.
The judgment of the district court is affirmed.
Justice
u----------------
Justices
Mr. Justice Gene B. Daly concurring in part and dissenting
in part:
I concur that a justice of the peace has jurisdiction
and authority to issue a search warrant.
"Section 95-703. Search warrant defined.
A search warrant is an order in writins, in
the name of the state, signed by a judge, par-
ticularly describing the thing or place to be
searched and the instruments, articles or
things to be seized, directed to a peace officer,
commanding him to search for personal property
and bring i t e f o r e the judge." (Emphasis
supplied.)
"Section 95-707. By whom served. A search
warrant may in all cases be served by any of
the officers mentioned in its direction, but
recf
on - requiring it, he beingep
his gr
-
in its execution." (Emphasis supplied.)
The language in these sections is absolutely clear and
unambiguous and needs no interpretation by any court. The language
is mandatory that the warrant be served by the officer or officers
named in its direction "but by no other person".
We were in error in State v. Meidinger, 160 Mont. 310,
502 P.2d 58, in rationalizing that the warrant could be directed
to "any peace officer of this state" and then condemning the prac-
tice with the hope it would be discontinued.
In State v. Tropf, Mont . , 530 P.2d 1158, 1162,
32 St.Rep. 56, the rationalization in Meidinger was cited as an
excuse not to follow the law as it pertains to the issuance of
a search warrant and pass off the omissions as "highly technical"
defects. Again in Tropf, referring to the admonition in Meidinger,
this Court directed:
"This was not a license to erode the process
but an admonition to recognize that the procedures
in this area are to be strictly applied, very
simply because they deal with an exception that
permits the sovereign to enter upon a constitu-
tionally protected area." (Emphasis supplied.)
Now the Court is returning to Meidinger and relegislating
the rationalization of that case which cannot be supported in
law o r i n l o g i c .
Here, t h e argument i n t h e m a j o r i t y o p i n i o n seems t o s a y
it i s n o t a f a t a l d e f e c t r e n d e r i n g t h e s e a r c h w a r r a n t i n v a l i d ,
b e c a u s e t h e " a p p l i c a n t " , a l t h o u g h n o t named, e x e c u t e d t h e w a r r a n t
and no p r e j u d i c e r e s u l t e d .
A l e n g t h y o p i n i o n c o u l d b e w r i t t e n on t h e c o n s t i t u t i o n a l
r e a s o n s f o r t h e s t r i c t a p p l i c a t i o n d i r e c t e d i n T r o p f , however,
the constitutional implications referred t o there w i l l serve t o
support t h e s e remarks. I t makes l i t t l e d i f f e r e n c e w h e t h e r you
d e c l a r e t h e s e a r c h w a r r a n t " i n v a l i d " o r you f o l l o w t h e l a w i n a
l i t e r a l s e n s e and d e c l a r e t h a t u n l e s s t h e o f f i c e r ' s name a p p e a r s
on t h e f a c e h e c a n n o t e x e c u t e t h e w a r r a n t , v a l i d o r n o t ; i . e . ,
t h e o f f i c e r cannot e n t e r t h e protected premises.
P r e j u d i c e h a s n o t h i n g t o do w i t h t h e s t r i c t a p p l i c a t i o n
of t h e s t a t u t e . However, i f a n o f f i c e r g o e s on t h e p r e m i s e s
i l l e g a l l y , it would s e e m t o f o l l o w t h a t t h e e v e n t s t h a t t r a n s p i r e
thereafter are prejudicial.
,k +
The p r o d u c t o f t h e s e a r c h u n d e r t h i s w a r r a n t s h o u l d have
been s u p p r e s s e d .
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