No. 86-018
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
MATT WILLIAM CRAIN,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Honorable Mike Greely, Attorney General, Helena Montana;
Kathy Seeley, Assistant Attorney General, Helena Montana
For Respondent :
Skedd, Ashely, McCabe, Weingartner and Graveley;
J. Mayo Ashley, Helena, Montana
Submitted: June 12, 1986
Decided: September 9, 1986
Filed: SE? 9 . 1986
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from the conviction on one count of
possession of dangerous drugs with intent to sell, and one
count of possession of dangerous drugs. The case was tried
to a jury in the Thirteenth Judicial District in and for the
County of Yellowstone, Montana. Defendant was sentenced to
twenty years in the State Prison at Deer Lodge on the first
count and five years in the State Prison on the second
count, with the sentences to run concurrently. We affirm.
A search warrant was issued for the purpose of searching
the motel room of defendant, Matt William Crain. During the
search, cocaine, marijuana, drug paraphernalia, cash, and
records were seized. Crain later moved to suppress all the
evidence seized, contending the application failed to set
forth sufficient facts to establish probable cause for
issuance of a search warrant. In essence he argues
application of the "totality of the circumstances" test in
Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76
L.Ed.2d 637, should not be applied to determine probable
cause to issue a search warrant, and in this case neither the
Gates test nor the two-pronged Aguilar-Spinelli test was met.
See Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12
L.Ed.2d 723 and Spinelli v. United States (1969), 393 U.S.
410, 89 S.Ct. 584, 21 L.Ed.2d 637.
We use this opportunity to dispel any doubt Crain may
have as to our position with regard to the use of the Gates
"totality of the circumstances" test in determining
sufficiency of the evidence to issue a search warrant. See
State v. O'Neill (Mont. 1984), 679 P.2d 760, 764, 41 St.Rep.
420, 424; State v. Hendrickson (Mont. 1985), 701 P.2d 1368,
1371, 42 St.Rep. 981, 983; State v. Jensen (Mont. 1985), 704
P.2d 45, 47, 42 St.Rep. 1191, 1194. In Hendrickson, supra,
we said: "[ilt completely replaces the more stringent,
two-pronged Aguilar-Spinelli test."
We find no reason to abandon use of the Gates test for
the more stringent Aguilar-Spinelli test. Probability of
criminal activity, not a prima facie showing of criminal
activity, is all that is necessary for a magistrate to issue
a search warrant. State v. OINeill, supra, 679 P.2d at 764,
41 St.Rep. at 423; State v. Jensen, supra, 704 P.2d at 47, 42
Because evidence sufficient to establish probable cause
for issuance of a search warrant is significantly less than
evidence required to support a conviction, the issuing
magistrate should be free to use his common sense to evaluate
the information in the affidavit in determining whether
probable cause exists to issue a warrant. Aguilar-Spinnelli
forces the magistrates to engage in a "technical dissection
of informant's tips, [causing undue attention to be] focused
on isolated issues that cannot sensibly be divorced from the
other facts presented to the magistrate." Gates, supra, 462
U.S. at 234, 103 S.Ct. at 2330, 76 L.Ed.2d at 545-546. Gates
allows balancing.
The probable cause requirement for the issue 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 person
or things to be seized." Art. 11, Section 11 of the Montana
State Constitution says: It. . . No 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, 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 application. State v.
O'Neill, supra, 679 P.2d at 764, 41 St.Rep. at 423; State v.
Isom (1982), 196 Mont. 330, 342, 641 P.2d 417, 423; Thomson
v. Onstad (1979), 182 Mont. 119, 122, 594 P.2d 1137, 1139.
In the instant case the following facts were considered
by the magistrate. A concerned citizen who wished to remain
anonymous placed a unsolicited telephone call to the
Yellowstone County Sheriff's Department with information
pertaining to the distribution of dangerous drugs within the
county near Billings. Probable cause to issue a search
warrant may be based on the tip of a confidential informant.
State v. Paschke (1974), 165 Mont. 231, 234, 527 P.2d 569,
571. His information was not being provided for revenge or
retaliation, but because he was concerned about distribution
of dangerous drugs. Information which is motivated by good
citizenship is accepted as reliable. State v. Sharp (Mont.
1985), 702 P.2d 959, 962; State v. Kelly (Mont. 1983), 668
P.2d 1032, 1043, 40 St.Rep 1400, 1411. He agreed to meet
with law enforcement officials at his home, so his identity
was known to them.
Investigating officers were able to corroborate much of
his information by verifying the name, address, and vehicle
of the person named as being involved in drug dealing. The
informant also provided essentially correct information as to
future actions of a third party. For example, an unknown
person from Texas was to transport narcotics from Texas to
Billings and make contact with a person in Billings. The
Texas connection would stay in a Billings motel. Although
this information alone might not establish probable cause for
issuance of a warrant, under the totality of the
circumstances test, it does.
Additionally, much of the information in the application
was gathered solely by the investigators. By checking with
motel personnel they were able to determine the person
registered was not the person to whom the car was registered;
he listed the car as an Oldsmobile when it was a Cadillac,
and listed himself as a representative of a fictitious
business firm in Colorado. He refused maid service and made
numerous long distance telephone calls. He made connection
with a person the informant said existed. He never left the
room for any length of time and on at least two occasions
when he did leave the room, his Billings contact stayed in
the room.
While many of the individual details listed in the
application also might be consistent with innocent behavior,
when all of the information contained in the application is
considered in its totality, these details are indicative of
individuals involved in illegal drug transactions. A citizen
informant's tip, meeting with contacts, registration in a
motel under a fictitious name, listing a non-existent
employer and a non-existent vehicle, and failure to leave the
room, indicate there was contraband in the room.
Consequently, these non-criminal acts could well form part of
the basis upon which probable cause is based. Gates, supra,
462 U.S. at 243, n.13, 103 S.Ct. at 2335, n.13, 76 L.Ed.2d at
552, n.13.
There is sufficient information in the application for a
magistrate to determine there was a probability drugs and
drug records would be found in Crain's room. That is all
that need be shown to establish probable cause. State v.
McKenzie (1978), 177 Mont. 280, 581 P.2d 1205. We affirm the
District Court's decision not to exclude the evidence, and
affirm the conviction.
We concur