No. 90-128
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
DALE GARBERDING,
CLERK OF SUPREklE CQUAI:
Defendant and Appellant. STATE QF lLlQNTAMA
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Sanders,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Neil M. Leitch, Missoula, Montana
Allen M. Ressler; Browne & Ressler; Seattle,
Washington
For Respondent:
Hon. Marc Racicot, Attorney General; Jennifer
Anders, Asst. Atty. General; Helena, Montana
Robert Slomski; Sanders County Attorney; Thompson
Falls, Montana
Submitted on Briefs: September 6, 1990
Decided: November 26, 1990
Filed:
Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
After waiving his right to a jury or bench trial, defendant,
Dale Garberding (Garberding), submitted his case to the District
Court of the Twentieth Judicial District, Sanders County, on the
basis of police reports, documents and records on file. He was
convicted of criminal possession of dangerous drugs with intent to
sell, a felony, and criminal possession of drug paraphernalia, a
misdemeanor. From that conviction, Garberding appeals. We affirm.
The issues for our review are:
1. Whether the search warrant was issued upon probable
cause?
2. Whether Garberding was entitled to an evidentiary hearing
to challenge alleged misstatements or omissions in the search
warrant?
3. Whether the State met its burden of proving that
Garberding intended to sell the marijuana seized from his
residence?
The application for search warrant provided the following
facts: In February 1988, Sheriff Alexander (Alexander) of the
Sanders County Sheriff's Office, received a telephone call at his
residence from an anonymous female informant (Caller 1) . Caller
1 reported that Garberding was growing marijuana in a room below
his residence in Heron, Montana. Caller 1 reported that the
growing operation was concealed and could not be seen from outside
the residence. The caller also reported that Garberding was
selling marijuana. Subsequently, Alexander obtained a teletype
2
criminal record of ~arberding which showed that he had been
convicted of marijuana distribution and was sentenced to three
years probation in Seattle, Washington on November 23, 1983.
A deputy sheriff, Gene Arnold (Arnold) spoke with Alexander
during the investigation and stated that prior to his employment
with the Sanders County Sheriff's Office, he had been in
Garberding's residence as an employee of Clark Fork Gas to repair
a gas furnace. Arnold stated that while in the residence he
smelled marijuana.
On March 13, 1989, over a year after the call of Caller 1,
Alexander received a telephone call from a female informant (Caller
2). Caller 2 advised Alexander that her husband had asked her to
contact the sheriff's office to report that Garberding had a
marijuana-growing operation in a room beneath his residence in
Heron, Montana, and that there were approximately 20 mature
marijuana plants and 20 to 40 new starter plants.
The next day, the husband (Caller 3) of Caller 2 called the
sheriff's office to report that he had been in the Garberding
residence in the past two weeks and had personally observed the
marijuana grow operation. He informed Alexander that the operation
resulted in sales of three to four thousand dollars per week of
marijuana. He gave specific directions to the location of the grow
operation, stating that it was concealed in a room beneath the
house which was accessed by a stairway from the back door. At the
bottom of the stairway there were some shelves with jars on them,
and that behind these shelves was a swinging door leading to the
marijuana-growing operation. Caller 3 also reported that there was
a dehydrator device upstairs in the residence used to dry the
marijuana in preparation for sale.
After receiving this information, Alexander applied for a
search warrant. After finding that there was probable cause,
Justice of the Peace Beitz issued a search warrant to search
Garberding's residence for any or all items listed in the warrant.
Alexander executed the search warrant on March 15, 1989. The
search resulted in the recovery of eleven mature marijuana plants
between three to four feet in height; twelve smaller plants, many
times in excess of sixty grams in weight; three trays containing
marijuana leaves; drug paraphernalia; and various devices used to
cultivate marijuana. The next day Alexander and other officers at
the Sheriff's Office cut and weighed one of the mature plants. It
weighed 262 grams.
Garberding was charged in a four-count information with the
crimes of: Count I - Criminal Possession of Dangerous Drugs with
Intent to Sell, a felony, 5 45-9-103, MCA; Count I1 - Criminal
Possession of Dangerous Drugs, a felony, 5 45-9-102, MCA; Count
I11 - Criminal Sale of Dangerous Drugs, a felony, 5 45-9-101, MCA;
Count IV - Criminal Possession of Drug Paraphernalia, a
misdemeanor, § 45-10-103, MCA. The State dismissed Count 111, and
the District Court ruled by stipulation of the parties that Count
I1 was a lesser included offense of the felony charged in Count I.
Garberding moved to suppress all items seized from his
residence on the ground that the search warrant was issued on less
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than probable cause. In the alternative, he moved for an
evidentiary hearing pursuant to Franks v. Delaware (1978), 438 U.S.
154, to establish his claims of omission and misstatements of
material fact contained in the search warrant application. The
District Court denied Garberding's motion to suppress, concluding
that the facts alleged in the affidavit, when considered in their
totality, sufficiently established probable cause for issuance of
the search warrant. In a supplemental order, the District Court
ruled that the search warrant application contained no deliberate
falsehoods or material omissions which would require excising that
information from the application for a determination of probable
cause pursuant to Franks.
Garberding waived his right to a jury or bench trial, and
agreed to submit the case to the court on the basis of police
reports, documents and records on file. He was convicted of
criminal possession of dangerous drugs with intent to sell and
criminal possession of drug paraphernalia. Garberding was
sentenced to.20years with 10 years suspended on the intent to sell
conviction and 6 months in the Sanders County Jail on the
possession of drug paraphernalia conviction. The court also
designated Garberding a dangerous offender for purposes of parole
eligibility. From these convictions, Garberding appeals.
I
Whether the search warrant was issued upon probable cause?
Garberding maintains that the magistrate must determine the
existence of probable cause solely from the evidence "in the four
corners of the search warrant application". He contends that the
only facts on the application for a search warrant were (1) that
he had a 1983 conviction relating to marijuana; (2) a deputy
sheriff had smelled marijuana at Garberding s residence; and (3)
undisclosed, unverified and anonymous informants stated he had a
grow operation in his home. He urges that these facts failed to
establish the probability of criminal activity. He argues that
where no information of an informant's veracity or reliability is
provided, and the remaining facts in totality do not otherwise
provide a basis to conclude probable cause exists, the warrant
fails.
The State maintains that the probable cause requirement need
not equate with a prima facie showing of criminal activity, but
rather the warrant application need only contain facts sufficient
to indicate a probability that incriminating items, namely items
reasonably believed to be connected with criminal activity, are
located on the property to which entry is sought. The State urges
that the test is not whether any individual fact, standing alone,
is sufficient to justify issuance of a warrant, but rather that the
facts presented in the search warrant application, when considered
as a whole, must meet the totality of the circumstances test. The
State relies on United States v. Harris (1971), 403 U.S. 573, 581,
583, for the proposition that prior criminal activity of a similar
nature, even if unverified, enhances an informant's tip that a
person is presently engaged in criminal conduct. Thus, the State
argues that under the totality of the circumstances test, Justice
of the Peace Beitz was entitled to consider the information
presented in the search warrant application as a whole, including
past offenses, when assessing probable cause.
In United States v. Harris, the United States Supreme Court
stated:
Corroboration through other sources of information
reduced the chances of a reckless or prevaricating tale;
that petitioner was a known user of narcotics made the
charge against him much less subject to scepticism than
would be such a charge against one without such a
history. . . . Trials are necessarily surrounded with
evidentiary rules developed to safeguard men from dubious
and unjust convictions. But before the trial we deal
only with probabilities that are not technical; they are
the factual and practical considerations of everyday life
on which reasonable and prudent men, not legal
technicians, act.
We cannot conclude that a policeman's knowledge of
a suspectts reputation--something that policemen
frequently know and a factor that impressed such a "legal
technicianw as Mr. Justice Frankfurter--is not a
ttpracticalconsideration of everyday life1'upon which an
officer (or a magistrate) may properly rely in assessing
the reliability of an informant's tip.
United States v. Harris, 403 U.S. at 581-583. The Supreme Court
also makes it clear that the tlissue warrant proceedings is not
in
guilt beyond a reasonable doubt but probable cause for believing
the occurrence of a crime and the secreting of evidence in specific
The degree of consistent detail provided by the three
informants not only added to the totality of the circumstances to
establish probable cause, but also substantiated their reliability.
Here, the application showed that Garberding had a previous
conviction of marijuana distribution and that there was a fair
probability he was still so engaged. We hold that the search
warrant was issued upon probable cause.
Whether Garberding was entitled to an evidentiary hearing to
challenge alleged misstatements or omissions in the search warrant?
Relying on Franks v. Delaware (1978), 438 U.S. 154, Garberding
contends the District Court erred when it denied him an evidentiary
hearing to evaluate probable cause based on facts which were
allegedly omitted from the search warrant application. He maintains
that missing was the critical fact that Sheriff Alexander's failure
to reveal the primary informant's criminal background as a felon
and that the informant received a cash reward from the sheriff for
his information.
The State urges that even if intentionally omitted by
Alexander, the absence of this information does not affect a
probable cause determination because the informant was not presumed
reliable and additional facts about his criminal history would not
have affected his credibility. The State maintains that the
accuracy and detail of the primary informant's tip based on
personal observation established the primary informant's
reliability, whether or not he was involved in drugs himself.
Furthermore, the State points out that Garberding has presented no
facts that show that Alexander intentionally or even recklessly
omitted any facts from the application, which Franks, 438 U.S. at
155, requires before an evidentiary hearing on probable cause is
justified.
The Franks court held:
[Wlhere the defendant makes a substantial preliminary
showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth,
was included by the affiant in the warrant affidavit, and
if the allegedly false statement is necessary to the
finding of probable cause, the Fourth Amendment requires
that a hearing be held at the defendant's request.
Franks, 438 U.S. at 156. Sheriff Alexander's failure to reveal
the primary informant's criminal background as a felon and that
the informant received a cash reward from the Sheriff for his
information does not justify a Franks hearing. The fact that the
primary informant was a convicted felon and was paid for his tip
does not cast doubt on the reliability of his information. In
United States v. Harris, the Supreme Court stated that the fact
that an informant admitted to his own criminal activity and was
paid for his information added credit to his tip. A person of
known criminal activity or a person admitting his own criminal
activity is not likely to place himself in such a dubious position
unless he is telling the truth. Thus, such an omission does not
require a Franks hearing. Garberding's arguments of alleged
omissions and misstatements do not persuade this Court that a
Franks hearing was necessary. The search warrant showed probable
cause for believing the occurrence of a crime and the secreting of
evidence in specific premises. See United States v. Harris (1971),
403 U.S. at 584. We hold that Garberding was not entitled to a
Franks hearing to challenge the search warrant.
Whether the State met its burden of proving that Garberding
intended to sell the marijuana seized from his residence?
Garberding maintains there is no evidence to support a
conviction of possession with intent to sell, 5 45-9-103, MCA. He
maintains that the only factor cited by the court in support of its
conclusion that he intended to sell the marijuana was the court's
characterization of his growing operation as "largev' and
"sophisticated". He urges that the seizure of eleven plants, even
combined with the numerous smaller plants and seeds, does not
constitute a large and sophisticated operation.
The State points out that Garberding authorized the District
Court by a written waiver to enter findings and conclusions based
upon police reports, documents and records. The District Court
concluded that:
5. The Defendant knowingly possessed the marijuana with the
intent to sell it.
6. Defendant's intent can be inferred from the large
quantity of marijuana and the packaging materials,
scales, packaged marijuana, and other paraphernalia, and
the large scale, intentionally concealed, automated and
sophisticated marijuana grow operation.
The State refers to the annotations to 45-9-103, MCA, which state
that "there is a conclusive presumption of no intent to sell where
marijuana is possessed in amounts less than one kilogram." The
State argues the weight of the marijuana alone would have precluded
application of the conclusive presumption in Garberding's favor.
It urges that it is customarily the presence of drugs in
combination with other items consistent with sales activities and
inconsistent with personal use which establish intent to sell.
Here, Garberding had in his possession evidence of intent to sell
including: 23 confiscated plants; three trays of marijuana leaves;
a tray containing marijuana buds being cloned; a box containing
drug paraphernalia; and numerous items used to cultivate marijuana,
including timing and electrical devices, fans, vents, grow lights,
fertilizer, potting soil, a water pump, thermometer, a timer, and
a carbon dioxide canister and hoses; bags of marijuana; a seed
catalog; and two scales used to weigh marijuana.
considering the quantity of the marijuana and other items
confiscated, we conclude that there is substantial evidence showing
an intent to sell. We hold that the State met its burden of
proving that Garberding intended to sell the marijuana seized from
his residence.
Affirmed.
We Concur: A
.
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Justices
Justice William E. Hunt, Sr., dissenting:
I dissent. The application for search warrant in this case
is void of any evidence to support a finding of probable cause to
authorize a search of the defendant's premises.
The Iffourcornersllof the search warrant application consists
of certain facts, the total of which should indicate a probability
that incriminating items are located on the subject's premises.
While it is true that we have abandoned the two-pronged ~suilar-
Spinelli test, I1veracityl1
and "basis of knowledge,ll in favor of the
more subjective I1totality of the circumstance^^^ test, those
~circumstances~~
must at least possess a reasonable degree of
independent integrity in order to contribute to a probable cause
conclusion. The three circumstances test in this search warrant
application--informants, an aged impression, and a prior
conviction--fall pitifully short of that standard.
The majority concluded that the "degree of consistent detail
provided by the three informants," in addition to two other facts,
established probable cause. First of all, the three informants did
not provide consistent detail. One anonymous person, Caller No.1,
called Alexander thirteen months before the arrest and stated that
~arberdingwas growing and selling marijuana. That information was
never checked by Alexander, was certainly not detailed, and was
stale by the time of the present search. Further, the anonymity
of Caller No.1 made it impossible to ascertain the llveracityla
and
"basis of knowledgeIf of that person, which are highly relevant
according to Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct 2317,
12
2328 (1983). All in all, Caller No. 1 fails as a reliable
informant for probable cause purposes.
Caller No. 2 told Alexander that her husband had asked her to
call and report that ~arberdinghad a marijuana growing operation.
Presumably she received the detail contained in her call from her
husband who had asked her to make the call; she therefore fails as
an independent informant substantiating the reliability of the
other two.
Caller No. 3 indeed provided a detailed description of the
premises, but a detailed description standing alone does not
establish probable cause. As the defendant notes:
The notion that great detail implies personal observation
rather than overhearing of barroom gossip, presupposes
an honest informant. If the informant were concocting
a story out whole cloth, he could fabricate in fine
detail as easily as with rough brush strokes. Minute
detail tells us nothing about
Stanley v. State, 313 A.2d 847, 862 (Md. App., 1974).
The foregoing establishes that the District Court had only one
informant on which to rely. The other two facts contained in the
four corners of the search warrant application are vague and remote
at best.
One of those facts is that a deputy sheriff told Alexander
that three or so years ago when he had been an employee of Clark
Fork Gas, he had smelled marijuana at that residence while he was
repairing a gas furnace. Garberding was not even on the premises
at the time, and the deputy said he smelled the marijuana on some
boys there who helped him load up a generator.
The other fact on which the majority relies is that Garberding
had been convicted of marijuana distribution over five years prior
to this arrest. Reliance on that fact not only takes the totality
of the circumstances test to the point of the ridiculous, it comes
dangerously close to suggesting that persons with previous
convictions have fewer Fourth Amendment protections than those
without.
In short, today we hold that an over five-year-old prior
conviction, combined with a three-year-old sensory impression of
the premises, combined with highly questionable informants1 tips,
establish probable cause within the meaning of the Fourth
Amendment. It is difficult to believe that there could be more
far-fetched, remote and questionable facts to support the "totality
of circumstances testt1than those used by this Court in this case.
We also conclude today that 23 plants and various cultivation
materials constitute substantial evidence showing an intent to
sell. The cases cited in the State's brief discuss seizure of
numerous individually packaged bags of drugs, packaged in a ready-
to-sell manner, as evidence of intent to sell. Unlike any cases
cited by the State, a search of Garberdingtsresidence yielded none
of the packaging material found and relied upon in the cited cases.
Although Garberding does not fall within the conclusive presumption
of nno intent to sell where the amount is under one kil~grarn,~~
it
cannot conversely be concluded that there is an intent to sell when
the amount is over one kilogram--absent a finding of other sale
related paraphernalia. The search only revealed items needed to
grow and personally consume the marijuana. The amount confiscated
itself is not indicative of an intent to sell.
Our decision today invades the Fourth Amendment protection
against unreasonable search and seizure to an unconscionable
extent. We have effectively replaced probable cause with possible
cause--the very intrusion that the authors of the Fourth Amendment
intended to prevent. We have further ignored evidentiary precedent
in determining what constitutes possession with intent to sell.
I would reverse the decision of the District Court.
I concur with the above dissent.
JI Justice I/
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