State v. Pierre

No. 83-437
IN THE SUPREME COURT OF THE STATE OF MONTANA

1984

STATE OF MONTANA,
Plaintiff and Respondent,

DAVID L. PIERRE,

Defendant and Appellant*

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Sanders,
The Honorable Jack L. Green, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

J. Howard Toole, Plissoula, Montana

For Respondent:
Bon. Mike Greely, Attorney General, Helena, Montana
Claude Burlingame, County Attorney, Thompson Falls,
Man tana

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Submitted on Briefs: December 15, 1983

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Clerk
Mr. J u s t i c e L.C. Gulbrandson d e l i v e r e d t h e Opinion of the
Court.

The d e f e n d a n t , David L. P i e r r e , a p p e a l s from a n o r d e r
of the District Court, Fourth Judicial District, Sanders

County, denying his motion to suppress evidence seized

pursuant t o a search warrant. W e affirm the conviction.

On January 19, 1983, James Cross, Undersheriff in
Sanders County, e x e c u t e d an A p p l i c a t o n for Search Warrant
s e t t i n g f o r t h t h e following:

B i l l i e Chubb owns a h o u s e and l o t l o c a t e d i n Sanders
County in an isolated area where it is uncommon to see
v e h i c l e s on t h e s i n g l e l a n e r o a d p r o v i d i n g access to the
premisis. Chubb o c c a s i o n a l l y i n s p e c t s t h e p r e m i s i s t o c h e c k
on t h e p e r s o n a l p r o p e r t y l o c a t e d w i t h i n t h e h o u s e . Chubb

r e c a l l s s t o p p i n g a t t h e h o u s e o n o r a b o u t December 1 3 , 1 9 8 2 .
Her n e x t v i s i t t o t h e h o u s e was o n t h e e v e n i n g o f J a n u a r y 8 ,

1983. On t h a t d a t e , Chubb was d r i v i n g a l o n g Highway 28 when

s h e o b s e r v e d a v e h i c l e on t h e s i n g l e l a n e r o a d l e a d i n g t o

her property. Chubb t u r n e d h e r v e h i c l e a r o u n d and r e t u r n e d
t o c o n f r o n t t h e o c c u p a n t s of the vehicle, a pickup truck
w i t h a d r i v e r and p a s s e n g e r . S h e b l o c k e d t h e r o a d and g o t
o u t t o t a l k t o t h e d r i v e r of t h e pickup. Chubb d e s c r i b e d

t h e v e h i c l e a s a b l u e Ford o r C h e v r o l e t p i c k u p , l a t e 1970's
model, with a horizontal white stripe on the s i d e and a
w h i t e c a n o p y on t h e box. She r e c a l l e d t h e l i c e n s e p l a t e had
a p r e f i x of "15T." An e x a m i n a t i o n o f t h e r e c o r d s of the
Lake County Courthouse showed that David Pierre was the
owner o f a 1977 b l u e C h e v r o l e t p i c k u p w i t h a w h i t e s t r i p e
down t h e s i d e b e a r i n g t h e Montana l i c e n s e number "15T-5664."
Because i t was d a r k , Chubb o n l y g o t a d e s c r i p t i o n o f the
d r i v e r and n o t t h e o t h e r o c c u p a n t . She d e s c r i b e d t h e d r i v e r

a s b e i n g a m a l e of N a t i v e American d e s c e n t , a g e f o r t y - f i v e
to fifty-five, dark hair, dark eyes, smooth coinplextion,
c l e a n shaven with a stocky b u i l d .
Sometime l a t e r t h a t n i g h t a n d a f t e r t h e e n c o u n t e r w i t h

t h e p i c k u p and i t s two o c c u p a n t s , Chubb d i s c o v e r e d t h a t h e r
house had been burglarized and numerous articles of

household furniture, appliances and other i tems had been
stolen. Chubb r e p o r t e d t h e b u r g l a r y and t h e f t a l o n g w i t h
h e r e n c o u n t e r w i t h t h e p i c k u p and i t s two o c c u p a n t s to the
Sanders County Sheriff who then proceeded to conduct an

investigation. During t h e i n v e s t i g a t i o n of t h e b u r g l a r y and

theft, a r e c e i p t d a t e d December 12, 1982, from t h e E & B

Farm and Ranch S u p p l y i n A r l e e , M o n t a n a , made o u t t o D a v i d
P i e r r e f o r c h i c k e n f e e d and o t h e r items was f o u n d n e a r t h e
f r o n t e n t r y of t h e Chubb p r e m i s e s . A Sanders County law
enforcement o f f i c i a l traveled t o A r l e e and c o n f i r m e d that

t h e p r o p r i e t o r of E & B Farm and Ranch S u p p l y was a c q u a i n t e d
w i t h David P i e r r e and had s o l d him p r o d u c t s i n t h e p a s t .

Sanders County law enforcement o f f i c i a l s a l s o l e a r n e d
t h a t H a r o l d McClure was a s u s p e c t i n s e v e r a l b u r g l a r i e s i n

t h e p a s t and had a f e l o n y t h e f t c h a r g e p e n d i n g a g a i n s t him
i n M i s s o u l a County. I n a d d i t i o n , a d e p u t y s h e r i f f i n Arlee

had s e e n t h e P i e r r e p i c k u p numerous times and a d v i s e d t h a t
H a r o l d McClure a n d David P i e r r e w e r e f r i e n d s and n e i g h b o r s

and had b e e n s e e n t o g e t h e r i n t h e p i c k u p many t i m e s .
After further investigation, a Lake County deputy
s h e r i f f o b s e r v e d on J a n u a r y 1 8 , 1 9 8 3 , t h a t t h e r e s i d e n c e o f
David P i e r r e l o c a t e d a t A r l e e , Montana, had several tarps

s p r e a d on t h e g r o u n d c o v e r i n g unknown p e r s o n a l p r o p e r t y . He
also reported that a temporary structure had recently been
constructed, covered with opaque plastic material and
apparently used for storage of personal property.
A deputy sheriff in Benewah County, Idaho, advised the
Lake County officers that a pickup matching the description
of David Pierre's had been outside a tavern in Tensed,
Idaho, around the first part of January. This same tavern
was known to James Cross, Undersheriff of Sanders County, as
a place for fencing stolen property.
On January 17, 1983, at the Sanders County Sheriff's
Office, Chubb identified Harold McClure from a photo-lineup
as the driver of the vehicle she observed and talked to on
January 8, 1983. Based on the foregoing information,
Undersheriff James Cross applied for a search warrant to
search the premises of David Pierre and Harold McClure. The
application for search warrant was read and signed by
Missoula County Justice of the Peace William P. Monger
on January 19, 1983, and executed that same day. The search
of Pierre's premises revealed a large numer of items of
personal property taken from the Chubb residence. The
property recovered consisted of approximately three pickup
loads of personal property including weapons, family Bibles,
chairs, a metal trunk and numerous boxes of dishes and other
household items.
Thereafter, Harold McClure and David Pierre were
arrested and charged with burglary and theft. Shortly after
the arrest, Chubb viewed the two suspects in person and
identified Pierre as the driver of the vehicle she observed
and talked to on January 8, 1983. She had previously
identified McClure from a photo-lineup as the driver of the
vehicle.
On March 11, 1983, Pierre made a motion to suppress
all evidence obtained from the search of the McClure and the
Pierre residence. McClure made the same motion on March 14,
1983. In making their motions to suppress, the defendants
asserted that there had been insufficient probable cause to
search the premises of either defendant.
On May 10, 1983, after considering the defendant's
motions on brief, the District Court granted McClure's
motion to suppress because Chubb repudiated her initial
photo-lineup identificaiton of McClure. The District Court
stated that without Chubb's identification the affidavit in
support of the search warrant did not contain sufficient
facts to link McClure with the Chubb burglary. The District
Court denied Pierre's motion to suppress finding that the
search of Pierre's residence was supported by probable
cause. Subsequently, the District Court dismissed charges
against McClure and on June 28, 1983, Pierre was found
guilty of burglary and theft by the court sitting without a
jury. On August 24, 1983, Pierre filed his notice of
appeal.
The sole issue defendant Pierre raises on appeal is
whether the search warrant for Pierre's premises was fatally
defective under the Fourth Amendment because it was issued
and executed without probable cause.
The probable cause requirement for the issuance of a
search warrant is found in the Fourth Amendment to the
United States Constitution: " . . . no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and
 CORRECTION. In preparing this opinion for pub-
Hon. L. C. Gulbrandson lication, we noted in our verification of titles and
Justice, Supreme Court citations the matters listed below. Corrections have
Room 436 Justice Bldg. been made on our copy of the opinion.
215 North Sanders
Helena, Montana 59620

Date:
April 23, 1984
Re:
State v. Pierre, No. 83-437, March 23, 1984

Page 6, line 11 -- Thompson v. Onstad should read Thomson v. Onstad.
Page 8 , line 3 -- 93 L.Ed.2d 1879 should read 93 L.Ed. 1879.
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WEST PUBLISHING COMPANY
Box 3 5 2 6
St. Paul, MN 5 5 1 6 5
the person or things to be seized." And in Article 11,
Section 11 of the Montana State Constitution: ll. . . NO
warrant to search any place, or seize a person or thing
shall issue without describing the place to be searched or
the person or thing to be seized, or without probable cause,
supported by oath or affirmation reduced to writing." When
a search warrant has been issued the determination of
probable cause must be made solely from the information
given to the impartial magistrate and from the four corners
of the search warrant application. State v. Isom (1982),

#
196 Mont. 330, 641 P.2d 417; Thom son v. Onstad (1979), 182
Mont. 119, 594 P.2d 1137.
Recently, the United States Supreme Court set forth
the standard for a magistrate's determination of probable
cause in Illinois v. Gates (1983), U.S. , 103 S.Ct.

". . . we affirm the totality of the
circumstances analysis that has
traditionally informed probable cause
determinations. [Citations omitted.] The
task of 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 the reviewing
court is simply to ensure that the
magistrate had a 'substantial basis for
. . . concluding' that probable cause
existed."
In the instant case, the totality of the circumstances
as expressed in the application for search warrant supported
the decision of the magistrate that there was a fair
probability that evidence of a crime would be found in a
particular place. A summary of the facts contained in the
search warrant indicated appellant's pickup was placed at
the scene of the crime and a feed receipt issued to him was
found at the burglarized premises. Further, tarps covering
unknown items and a recently constructed building with its
contents hidden from view were observed on appellant's
property. While the tarps and building were innocent by
themselves, they were not innocent when coupled with the
presence of appellant's truck and feed receipt at the scene
of the crime. These facts indicated a fair probability that
appellant was involved in criminal activity. To constitute
sufficient probable cause for a search warrant only a
probability of criminal conduct need be shown. State v.
McKenzie (1978), 177 Mont. 280, 581 P.2d 1205; State ex.
rel. Garris v. Wilson (1973), 162 Mont. 256, 511 P.2d 15.
As the court in United States v. Spearman (9th Cir. 1976),
532 F.2d 132 held, searches may be upheld when challenged on
the basis of lack of probable cause where:
"the nexus between the items to be seized
and the place to be searched rested not
on direct observation . . .
but on the
type of crime, the nature of the missing
items, the extent of the suspect's
opportunity for concealment, and normal
inferences as to where a criminal would
be likely to hide stolen property. "
Spearman, supra, 532 F.2d at 133.
In the instant case, the quantity of items taken and
their relative bulk; the need for a truck to carry the items
and the need for additional storage coupled with the facts
contained in the application for search warrant indicate a
fair probability that evidence of a crime was at appellant's
residence. "In dealing with probable cause, as the very
name implies, we deal with probabilities. These are not
technical; they are the factual and practical considerations
of everyday life on which reasonable and prudent men, not
legal technicians, act . ' I Brinegar v. United States (1949),
338 U.S. 160, 1.75, 69 S.Ct. 1302, 93 L.E~.N
1879. In
short, the District Court did not err in holding that the
search warrant was supported by probable cause.
Appellant also argues that the search warrant was
stale when it was issued because thirty-seven days elapsed
between the date on which the offense could have occurred,
December 13, 1982, and the date of he search on January 19,

The issue of staleness cannot be resolved by a
mechanical reference to the number of days between the facts
relied upon in the affidavit and the time the warrant is
issued. Rather, as the court stated in Andresen v. State
(Md.App. 1975), 331 A.2d 78 aff'd sub. nom. Andresen v.
Maryland (1976), 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d

"The likelihood that the evidence sought
is still in place is a function not
simply of watch and calendar but of
variables that do not punch the clock:
the character of the crime (chance
encounter in the night or regenerating
conspiracy?), of the thing to be seized
(perishable and easily transferable or of
enduring utility to its holder?), of the
place to be searched (mere criminal forum
of convenience or secure operational
base?), etc. The observation of a
half-smoked marijuana cigarette in an
ashtray at a cocktail party may well be
stale the day after the cleaning lady has
been in; the observation of the burial of
a corpse in a cellar may well not be
stale three decades later. The hare and
the tortoise do not disappear at the same
rate of speed."
Similarly, in State v. Hett (1982), 31 Wash.App. 849, 644
P.2d 1187, the court said the test for staleness of a search
warrant is common sense and the key to whether the warrant
should issue is whether the property sought is on the
premises to be searched at the time the search warrant is
issued. A highly incriminating or consumable item of
personal property is less likely to remain in one place as
long as an item of property which is not consumable or which
is innocuous in itself or not particularly incriminating.
United States v. Steeves (8th Cir. 1975), 525 F.2d 33, 38;
see also United States v. Rahn (10th Cir. 1975), 511 F.2d
290. In the case at bar, the items removed from the
victim's residence were innocuous household items, a fact
which provided the issuing magistrate a substantial basis
for concluding they would be at appellant's residence at the
time the search warrant was issued. Accordingly, the
District Court correctly held tha.t the search warrant was
not stale when it was issued.
We affirm.

/
Justice

We concur:

d
Mr. Justice Daniel J. Shea concurs but is unavailable for
signature.
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