NO. 93-206
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
Plaintiff & Respondent,
-v-
JULIE NEELY,
Defendant & Appellant.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lawrence A. LaFountain, Havre, Montana
For Respondent:
Hon. Joseph P. Masurek, Attorney General, Carol E.
Schmidt, Assistant, Helena, Montana: David G. Rice,
Hill County Attorney, Havre, Montana
Submitted on Briefs: September 23, 1993
November 2, 1993
Filed:
Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from a judgment of the Twelfth Judicial
District Court, Hill County, convicting appellant of misdemeanor
possession of marijuana and sentencing her to six months suspended
sentence and fining her $100.
We consider the following issues on appeal:
1. Did the District Court abuse its discretion in denying
Neely's request to suppress evidence obtained at her residence
because the search warrant contained stale information?
2. Did the District Court err in determining that Julie
Neely was guilty of constructive possession of dangerous drugs?
In the spring of 1992, the Tri-Agency Task Force hired Alex
Doney (Doney) as an informant in an attempt to get information
concerning a mobile home at 1431 Sixth Street, Havre, Montana. On
April 21, 1992, Doney went to the residence at which Julie Neely
(Neely) and Rich Berger (Berger) lived in order to purchase
marijuana. A party was in progress and lasted into the morning
hours of April 22, 1992. Both Berger and Neely were at the mobile
home when Doney bought two bags of marijuana from Pete Barrows
(Barrows). Doney testified that he had seen ten to fifteen bags of
marijuana in the house during the party. He bought some and told
those present that he would return the next day for additional
bags.
Doney returned to the residence on the following day to
inquire about purchasing more marijuana. Like the day before,
Doney was wired with an electronic transmitter. Neither Barrows
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nor Berqer had any marijuana at this time. Berger and Neely left
the mobile home to go and find marijuana for Doney. Berqer
returned with two grams and subsequently sold it to Doney for
twenty dollars.
Doney again returned to the trailer on April 23, 1992, to buy
more marijuana. By this time, the police had obtained a search
warrant. Doney started to make another purchase and in so doing
gave the code word for the deputy sheriffs to come in. Someone
present saw the police and yelled ~~co~s,~~ which incited those
present into motion.
The officers searched the mobile home: they found two bags of
marijuana between the mattresses in the bedroom where Berqer and
Needy slept. They also found books regarding marijuana sales. All
persons present were arrested.
On April 24, 1992, Neely was charged in Hill County with
criminal possession of dangerous drugs in violation of 5 45-9-
102(2), MCA. A bench trial was held on August 28, 1992, before a
justice of the peace. Neely was found guilty and fined $115.
Neely appealed to the Twelfth District Court. A suppression
hearing was held and the court denied Neely's motion to suppress
the evidence, ruling that the information in the search warrant was
not stale as Needy claimed.
The court found Neely in constructive possession of marijuana
and therefore, guilty of possession of marijuana in violation of 3
45-g-102(2), MCA. Neely was given a six month suspended sentence
provided she remained law-abiding and a $115 fine. Neely filed an
appeal on March 9, 1993.
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I.
Did the District Court abuse its discretion in denying Neely's
request to suppress evidence obtained at her residence because the
search warrant contained stale information?
Neely argues that although police have ten days time to
execute a search warrant and the warrant in the instant case was
executed in less than 48 hours, the warrant was stale because of
the attendant circumstances. According to Neely, the purpose of
the search warrant was to search for drugs that were at the
residence during the party on April 21, 1992, and the police knew
that the party was over when they finally executed the warrant two
days later. Because the party was over and the drugs were gone,
Neely argues that police needed more probable cause to have a
search warrant issue.
According to the State, the alleged stale information, was not
stale when the warrant was issued. The State argues that the issue
on appeal is not whether the information was stale, but whether the
officers executed the warrant in a timely manner. The State cites
5 46-5-225, MCA, for the proposition that officers have ten days in
which to execute a search warrant. Further, the State argues that
a court must consider the totality of the circumstances when
reviewing the sufficiency of a warrant and should not consider
statements from the application singularly.
The test for determining probable cause for issuance of a
search warrant is the "totality of the circumstancesl' test. State
v. Van Voast (1991), 247 Mont. 194, 805 P.2d 1380. An affidavit
supporting a search warrant is to be interpreted by the magistrate
and examined by the reviewing court in a common-sense, realistic
4
fashion. State v. O'Neill (1984), 208 Mont. 386, 679 P.2d 760.
The issuing magistrate must only determine that there is a
probability, not a prima facie showing of criminal activity.
O'Neill, 208 Mont. at 393, 679 P.2d at 764. Our review of the
sufficiency of the affidavit is not de novo and the magistrate's
determination will be paid great deference. State v. Sundberg
(1988) r 235 Mont. 115, 765 P.2d 736.
We first note that Neely has missed the focal point of whether
the search and seizure were illegal. Section 46-5-225, MCA,
states:
When warrant may be served. The warrant may be served at
any time of the day or night. The warrant must be served
within 10 days from the time of issuance. Any warrant
not served within 10 days is void and must be returned to
the court or the judge issuing the warrant and identified
as "not served."
This statute clearly allows police ten days from the date of
issuance to execute the warrant. Neely argues that when the
warrant was executed two days after its issuance, the party was
over and the drugs were gone. We point out that it was not the
party that was the focal point of the warrant application, it was
the residence at which the party was being held. The residence was
described with particularity as were the events taped by the
informant who made the controlled purchase.
A showing of facts in the application for search warrant
is required to establish there is probable cause to
believe that contraband or evidence is to be found at the
place to be searched at the time the warrant is issued.
State v. Valley (1992), 252 Mont. 489, 492, 830 P.2d 1255, 1257.
With such standards, Neely's contention that the warrant was
not executed until after the party was over and the drugs were gone
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has little persuasive effect. The facts found within the four
corners of the application indicate that a sale of drugs had taken
place on the same day the warrant was requested. This is not stale
information; it could hardly be any closer in time.
We conclude that as long as a warrant is executed within ten
days from its issuance, as set by our legislature in 5 46-5-225,
MCA, the warrant itself is not stale. Because the warrant was
properly issued and contained information which established
probable cause, the court had no obligation to suppress evidence
gained from the search and seizure. The burden of proving the
illegality of the search and seizure fell to Neely. O'Neill, 208
Mont. at 396-97, 679 P.2d at 765. She did not meet that burden.
We hold that the District Court did not abuse its discretion in
denying Neely's request to suppress evidence obtained at her
residence because the search warrant contained stale information.
II.
Did the District Court err in determining that Julie Neely was
guilty of constructive possession of dangerous drugs?
The two bags of marijuana seized during the search of Neely's
home were taken from under the mattress on Neely's bed. She argues
that just because the drugs were found in her home does not mean
that she constructively possessed the contraband. Neely contends
that in order to have constructive possession she had to have
dominion and control over the drugs and she had neither. She
argues that she does not use drugs.
The State argues that a conviction for the offense of criminal
possession of dangerous drugs requires the State to demonstrate a
6
person's (1) knowing (2) control of a (3) dangerous drug for a
sufficient time to be able to terminate control. Further, the
State argues that whether Neely used drugs herself is not at issue
here.
Neely cites State v. Gorder (1991), 248 Mont. 336, 811 P.2d
1291, for the proposition that she cannot be held liable for drug
possession merely because the drugs were found in her bed. Gorder
is not precedent for the fact situation before us. Gorder involved
a travel trailer which had been put into storage and not used for
some time. The trailer had been broken into after which police
found a folded ten-dollar bill with cocaine on it. Gorder was not
'S, ,~
found in constructive possession of the cocaine because there was
no evidence linking him to the drugs.
Unlike Gorder, Neely lived on a day-to-day basis within the
trailer where the drugs were found. Also unlike the facts of
Gorder, police here established that Neely had a connection to the
drugs. She had been present when the drugs were sold, when the
drugs were used, and even when Berger went to find drugs on the
street to sell to Doney.
We have established that possession can be either actual or
constructive.
Constructive possession occurs when the accused maintains
control or a right to control the contraband: possession
may be imputed when the contraband is found in a place
which is immediately and exclusively accessible to the
accused and subject to his dominion and control, or to
the joint dominion and control of the accused and another
person.
State v. Meader (1979), 184 Mont. 32, 43, 601 P.2d 386, 392. We
have clarified this holding in subsequent cases, holding that in
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order to prove constructive possession, the State must prove (1)
knowing (2) control of a (3) dangerous drug for sufficient time to
be able to terminate control. Gorder, 248 Mont. at 338, 811 P.2d
at 1292.
The record before us reveals that the drugs were found in
Neely's bedroom. This room is certainly immediately and
exclusively under the dominion and control of Neely or Neely and
Berger jointly. The record also shows that Neely was present when
drugs were sold and used in her residence. Neely could have
terminated control of the drugs at any time during or after the
party by having them taken off the premises. She did not do so.
Therefore, we conclude that all of the elements necessary for the
court to determine constructive possession have been satisfied.
We hold that the District Court did not err in determining
that Julie Neely was guilty of constructive possession of dangerous
drugs.
Affirmed.
We Concur:
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November 2, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Lawrence A. LaFountain
Attorney at Law
P.O. Box 1532
Havre. MT 59501
Hon. Joseph P. Mazurek, Attorney General
Carol E. Schmidt, Assistant
215 N. Sanders, Justice Bldg.
Helena, MT 59620
David G. Rice
Hill County Attorney
P.O. Box 912
Havre. MT 59501
ED SMITH
CLERK OF THE SUPREME COURT