No. 92-379
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
-v-
CKARLES FRANCIS MOSLEY, 111,
Defendant and Appellant.
APPEAL FROM: District Court Of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Edward P. McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James Park Taylor, Missoula, Montana
For Respondent:
Marc Racicot, Attorney General, Helena, Montana;
Carol E . Schmidt, Assistant Attorney General,
Helena, Montana; Robert L. Deschamps 111, County
Attorney, Missoula, Montana; Karen Townsend, Deputy
County Attorney, Missoula, Montana
Submitted on Briefs: January 21, 1993
Decided: June 10, 1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from the Fourth Judicial District Court,
Missoula County, denying defendant's motion to suppress evidence.
We affirm.
We consider the following issues on appeal:
1. Did the District Court err in denying defendantis motion
to excise certain information from the application for search
warrant?
2. Did the District Court err in determining that the warrant
set forth sufficient facts to establish probable cause?
On June 14, 1991, a confidential informant contacted agent
John Reed (Reed) of the Montana Criminal Investigation Bureau and
stated that Charles F. Mosley I11 (Mosley) may be maintaining a
marijuana grow operation at his residence on Lyon Creek Road near
Missoula. This informant had previously supplied reliable
information.
A week following this contact, Detective Tom Lewis of Missoula
County Sheriff's Department and Agent Mark Brady from Montana
Criminal Investigation Bureau conducted a drive-by of Mosley's
residence which was a metal quonset hut. Two vehicles were located
near the quonset hut; a license search indicated that one belonged
to Charles Mosley and the other to Merita Mosley.
On June 26, 1991, Reed conducted another drive-by and observed
the same two vehicles. Shortly thereafter, on July 2, 1991, Reed
had contact with a citizen informant. The informant stated that
in late fall or early winter of 1990 Mosley had burned an riunknownlf
2
substance on his property; the substance smelled like marijuana.
According to the informant, he knew what marijuana smelled like
from personal experience. The informant also stated that an
unknown male showed up at Mosley's residence daily. If Mosley was
not home when the unknown man arrived, he would wait for Mosley's
arrival.
On July 2, 1991, Detective Lewis searched the narcotics
intelligence files for any former activity by Mosley. The
following information from that file was included in the
application for search warrant:
1. On November 9, 1981, the Missoula City Police
Department received information from a confidential
informant that the Defendant [Mosley] was employed at
Five Valleys Bowling Alley in Missoula and was selling
dangerous drugs to other people at work. This informant
stated that Mosley had gotten most of the barmaids hooked
on cocaine. The transactions were supposed to have
occurred after work in Mosley's van.
2. On November 17, 1982, Mosley was arrested and charged
with felony theft. During the booking process, a hash
pipe and three ziplock baggies were found on Defendant
[Mosley]. Defendant was convicted on February 8, 1983,
for felony theft and possession of dangerous drugs.
3. On March 13, 1984, Detective Phil Williamson of
Missoula County Sheriff's Department was contacted by
another confidential informant who stated Defendant
[Mosley] was selling drugs from his residence. Informant
stated he had observed traffic in and out of Defendant's
residence for some time and the visitor stayed for only
a short period of time. Informant stated Defendant drove
a van and was employed at Westside Lanes. Defendant was
then on probation for possession of dangerous drugs.
Informant stated that he also felt that Defendant was
selling drugs at his place of employment.
4. October 29, 1985, Detective Joe Serve1 of the
Missoula County Sheriff's Office met with one of the
owners of Westside Lanes Bowling Alley. That individual
stated that an employee of the bowling alley had told him
Chuck Mosley was selling drugs while at work.
Also included in the warrant application is a statement
establishing that indoor growth of marijuana plants can be detected
by a search of applicable powers bills. The warrant included a
description of the cyclic pattern and an explanation of why the
wattage showed a pattern--marijuana requires air circulation
heaters for drying the marijuana plants.
The warrant also states that on September 10, 1991, the
original informant called police again with the observation that
the mysterious man on the motorcycle was again at the Mosley
residence. Police went to the Mosley residence and noted the
registration number of the motorcycle. Upon a check of appropriate
records, police determined the cycle was owned by a Thomas
Campbell. A search of police records determined that Campbell had
engaged in previous drug related activities. The narcotics
investigation file also indicated that a search of Campbell's
residence on July 15, 1991 on a different drug related charge,
produced a number of marijuana plants and drug paraphernalia.
The warrant also erroneously reported that Charles Mosley had
reported a trespassing incident in Missoula. This incident in
reality involved Mosley's father who had the same name.
A warrant to search the Mosley residence at Lyon Creek Road
was issued on September 11, 1991 by the Fourth Judicial District
Court. The subsequent search disclosed the following in Mosley's
residence: three paper bags of marijuana, a black garbage bag
containing three-fourths pound of marijuana, a vinyl case with drug
paraphernalia, a counter balance scale, zip-lock baggies (two with
marijuana, and one with marijuana seeds), a baggie of mushrooms,
two books on marijuana cultivation, two long pipes, equipment (a
fan, spray bottles, three grow lights, extension cord with timed
plant light boxes), a Smith and Wesson semi-automatic handgun, and
an Olympic Arms semi-automatic rifle.
On September 25, 1991, Mosley was charged with one count of
criminal possession of dangerous drugs with intent to sell pursuant
to felony statute 5 45-9-103, MCA, and one count of criminal
possession of drug paraphernalia pursuant to misdemeanor statute,
5 45-10-103, MCA. Mosley pled not guilty to both counts, and filed
a motion to suppress the physical evidence as well as a motion to
disclose the identities of certain confidential informants. A
suppression hearing was held December 18, 1991. On December 24,
1991, the District Court issued its opinion and order, denying both
motions.
Mosley subsequently filed a motion for reconsideration of the
court order pursuant to State v. Valley (1992), 830 P.2d 1255, 49
St.Rep. 30. The court did reconsider its earlier order in light of
the Valley reasoning and concluded that the Valley decision did not
dictate a different ruling from the court.
On April 22, 1992, the deputy county attorney for Missoula
County filed an amended information charging Mosley with two counts
of criminal possession of dangerous drugs pursuant to 5 45-9-103,
MCA, and one count of criminal possession of drug paraphernalia
pursuant to § 45-10-103, MCA. On the same day, Mosley reversed his
plea and signed a plea agreement wherein he entered a plea of
guilty to two counts of criminal possession of dangerous drugs and
one count of criminal possession of drug paraphernalia. However,
as part of this agreement, Mosley preserved his right to appeal the
District Court's denial of his pretrial motions, including the
motion to suppress evidence. The State agreed to recommend a
suspended sentence of five years on each felony count of possession
of dangerous drugs and six months on the misdemeanor count of
possession of paraphernalia.
The District Court sentenced Mosley on June 15, 1992, to two
suspended five year terms and one suspended six month term at
Montana State Prison at Deer Lodge. On June 22, 1992, Mosley filed
this appeal.
I
Did the District Court properly deny the motion to excise
certain information from the warrant application?
Mosley argues that the court was required to excise any
information included in the warrant application if the information
is a deliberate falsehood, or was included in reckless disregard
for the truth. Mosley's contention is that authorities
intentionally made false statements or made statements with
reckless disregard for truth when writing the application for a
search warrant. Therefore, Mosley argues that the following facts
should be excised from the application: 1) information from
anonymous informants dated November 9, 1981, May 13, 1984, and
November 29, 1985 (the information is stale and uncorroborated); 2)
the statement that Thomas Campbell had a "long history of drug-
related offenses1'; 3 ) the August 4, 1991 trespassing incident; and
4) the cyclic pattern of his electric bill which was merely a
conclusory statement by the Officer. Mosley also argues that the
application omitted the material fact that a necessary ventilation
system was not observable at Mosleyls residence.
The State argues that before the court is required to excise
material from a warrant, Mosley must make a substantial preliminary
showing that the State acted knowingly or intentionally when making
a false statement or included statements with reckless disregard
for the truth. Mosley has not done this, according to the State
and the information of which he complains is not required to be
excised.
The United States Supreme Court has determined that
truthfulness of factual statements made in an application for a
search warrant can be challenged. Franks v. Delaware (1978), 438
U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667. See also State v. Sykes
(1983), 194 Mont. 1 4 , 663 P.2d 691. We adopt the Franks procedure
for challenging the truthfulness of statements made in an
application for search warrant as hereinafter stated and as also
stated in Sykes. The defendant must first make a substantial
preliminary showing that a false statement was knowingly or
intentionally made, or was made with reckless disregard for the
truth. Franks, 438 U.S. at 155-156. If defendant makes such a
showing, and the misstatement was necessary to a finding of
probable cause, a hearing must be held at defendant's request.
Franks, 438 U.S. at 156. When a hearing is held, the allegation of
perjury or reckless disregard must be proved by defendant by a
preponderance of the evidence. Once proved, the offending
information must be excised from the warrant application. If after
the egregious material is excised, the remaining content is
insufficient to establish probable cause, the search warrant must
be voided and the fruits of the search excluded. Franks, 438 U.S.
at 156.
In order to make a preliminary showing of an intentionally
made falsehood, the defendant must provide more than conclusory
statements. Franks, 438 U.S. at 171. The defendant must make an
offer of proof that contains affidavits, sworn statements or other
reliable witness statements which tend to prove that false
statements in the application were deliberately made. Franks, 438
U.S. at 171. Information contained in a warrant application will
be deemed truthful when the information put forth is believed or
appropriately accepted by affiant. Franks, 438 U.S. at 165.
Mosley first argues that information concerning anonymous tips
dated November 9 , 1981, March 13, 1984 and November 29, 1985,
should have been excised because they are stale or uncorroborated.
Of pivotal concern to Mosley's claim that these earlier incidents
be excised is his total lack of evidence that these incidents were
in fact false or were intentionally included to mislead the court.
A false affidavit statement is one which misleads the magistrate
[or court] into believing the existence of certain facts which
enter a person's thought processes in evaluating probable cause.
State v. Groff (Iowa 1982), 323 N.W. 2d 204. The record contains no
affidavits, reports, or witness statements which prove that the
State intentionally misrepresented these incidents in an attempt to
mislead the court. Therefore, we conclude these incidents need not
be excised.
Mosley also argues that the characterization of Thomas
Campbell's criminal record should have been excised. Lewis stated
in the application that Campbell had a long history of drug-related
offenses in the Missoula area. The State argues that it used the
word "offenses" to mean suspected criminal activity involving
drugs. The court construed the word "offenses" to mean all known
criminal activity as well as convictions.
We have already stated that the word "offense" in an affidavit
in support of a search warrant means a violation of laws of Montana
or its political subdivisions. State v. Kelly (1983), 205 Mont.
417, 430, 668 P.2d 1032, 1040. In an application for search
warrant, the word "offense" is to be construed as a definite, known
violation of the law, not an alleged violation or suspected drug-
related activity. Lewis testified that he meant that Campbell had
a long history of suspicion of drug-related activity. Lewis used
the word "offense1'erroneously.
The important fact is that a current search of Campbellls
residence in July of 1991 turned up drugs and drug related
equipment. The evidence found in that search is concrete and
current and was capable of standing on its own without the
statement of Campbell's past. Once again we conclude that Mosley
did not present evidence to show that Lewis included the
information with an intention to mislead the court. We, therefore,
conclude that there is no basis to strike the reference in the
application concerning Campbell.
Mosley further contends that the trespassing incident which
involved his father and not himself should have been excised from
the application. The State argues that this incident was innocent
error and that Mosley failed to provide evidence that the State
intentionally included this information to mislead the court.
Allegations of negligence or innocent mistake are insufficient to
excise the alleged false information. Franks, 438 U.S. at 171.
The trespassing incident is totally immaterial to the determination
of probable cause for this warrant to issue. Apparently, Mosleyrs
father has the same exact name and it is he who was involved in the
trespass action. Mosley alleges that Lewis used this incident in
an attempt to give the impression that Mosley gave a false address
to police. But Mosley provides no evidence to indicate the truth
of this allegation. We conclude that the use of this incident was
innocent error and was not included intentionally to mislead the
court.
Mosley next argues that the cyclic pattern of electric use
statements made by Lewis must be excised because they are merely
conclusory statements according to State v. Wilson (1992), 837 P.2d
1346, 49 St.Rep. 844. Further, according to Mosley, Lewis did not
give his credentials for making such analyses.
We have stated that:
Sufficient information must be presented to the
magistrate to allow that official to determine probable
10
cause; his action cannot be a mere ratification of the
bare conclusions of others. In order to ensure that such
an abdication of the magistrate's duty does not occur,
courts must continue to conscientiously review the
sufficiency of affidavits on which warrants are issued.
Wilson (1992), 837 P.2d at 1348, 49 St.Rep. at 845.
In Wilson the only information about power usage in the search
warrant application was the conclusory statement that defendant's
power bills reflected a power use "consistent with that of a grow
operation." We stated in Wilson:
No data from the record was included in the application
nor any information concerning the detective's experience
analyzing power usage records.
Wilson, 837 P.2d at 1347, 49 St.Rep. at 845.
In one respect, the situation we have before us is quite
different. Detective Lewis expressly stated the cyclic pattern
reflected by Mosley's electrical use:
The power records reflect that January 1988 the
electrical consumption was 859 kilowatts and in August
1988 the electrical consumption was 1121 kilowatts. In
this comparison the electrical consumption in the warmer
months was higher than in January. In January 1989 the
electrical consumption was 864 kilowatts whereas August
the same year the consumption was 434 kilowatts. The
following year, January 1990, the electrical consumption
was 1,038 kilowatts while the consumption during August
was 928 kilowatts. The current electrical consumption at
the Mosley residence of 2,179 kilowatts is higher than
the electrical consumption in January of the same year.
The electrical consumption at this residence also
indicates a cyclic pattern consistent with that commonly
seen with indoor marijuana grow operations. From July
1990 through May 1991, several such patterns are evident.
The one thing he did not provide is his experience analyzing
power usage records. Although he stated his position of authority
he did not indicate what technical expertise he possessed which
would enable him to interpret the above facts. We conclude that
because Officer Lewis did not include in his application for search
warrant any information concerning his experience analyzing power
usage records he has not met the Wilson test.
However, Mosley has not presented evidence to indicate that
this omission was knowingly or intentionally made. Therefore, we
conclude no reason exists to excise the power usage facts from the
application. However, because a sufficient foundation was not set
forth, we will disregard the information of electrical power
records in our further analysis under Issue 11.
Mosley also argues that Lewis intentionally omitted the fact
that he had not seen a ventilation system at Mosley's residence.
According to Mosley, such an omission is material because marijuana
requires adequate ventilation. The State contends the information
was not a necessity for a warrant to issue. We agree. The
omission that Mosley complains of is immaterial to an issuance of
a warrant given the other information included in the warrant
application.
We finally conclude that Mosley did not prove his allegations
at the suppression hearing by a preponderance of the evidence. His
burden of showing that any false statement was knowingly or
intentionally made, or was made with reckless disregard for the
truth has not been met. Therefore, we hold that the District Court
did not err in denying Mosley's motion to excise certain
information from the warrant application.
I1
Did the District Court err in determining that the application
for warrant set forth sufficient facts to establish probable cause?
The District Court denied Mosleyls motion to suppress all
physical evidence seized at his residence because the application
for search warrant established probable cause. In issuing the
search warrant, the District Court relied on the following
incidents from the application for search warrant:
1. On June 1 4 , 1991, a confidential i n f ormark contacted Agent
Reed and stated that defendant may be maintaining a marijuana grow
operation at his residence.
2. On July 2 , 1991 a concerned citizen noted that Mosley had
burned a substance in an outside barrel which smelled like
marijuana burning.
3. On July 2 , 1991, sheriff's Deputy Tom Lewis searched the
Narcotics Intelligence files which revealed incidents involving
drugs on November 9, 1981, November 17, 1982, March 13, 1984, and
October 29, 1985.
4. On July 25, 1991, Detective Lewis applied for and received
a subpoena for Mosleyl power records. D e t e c t i v e Lewis stated that
s
the records established a cyclic use of electricity consistent with
an inside marijuana grow.
5. Auqust 4, 1991 - trespassing incident in Missoula.
6. September 10, 1991, original informant contacted Reed
about mysterious motorcycle rider. The next day the owner of the
motorcycle was identified as Thomas Campbell who himself has a long
drug history. The court stated that it was taking a common sense
approach required by Crowder, and looking only to the four corners
of the application. The court indicated that taken separately,
each incident alone would not equal probable cause.
Using the practical, common sense approach required under
Gates and Crowder and looking only to the four corners of
the Application this Court concludes, that taking all of
the items together and applying the 'totality of the
circumstances' test, this Court has a 'substantial basis'
to conclude that probable cause existed.
Order and Opinion, December 24, 1991.
This Court's function on appeal from the District Court's
review of a search warrant is not to review de novo the court's
determination that probable cause justified issuance of a search
warrant; rather, the Court must presume the lower court properly
issued a search warrant after subjecting the application to a
"totality of the circumstances" test. State v. Baldwin (1990), 242
Mont. 176, 789 P.2d 1215. The duty of the reviewing court is to
ensure that the magistrate or the lower court had a "substantial
basisu to determine that probable cause existed. State v. Crowder
0(1991), 248 Mont. 169, 810 P.2d 299.
We conclude that the court had a substantial basis to
determine that probable cause existed. In arriving at this
conclusion, as previously stated, we are not considering the
statements relative to the electrical power records. Probable
cause to issue a search warrant may be based on a tip from a
confidential informant. State v. Crain (1986), 223 Mont. 167, 725
P.2d 209. Here, the warrant application contained two calls from
a previously accurate informant and one call from a concerned
citizen. The application also contained information indicating
14
that Mosley had been previously convicted on drug charges and that
a person regularly seen at Mosley's residence had been found to
possess drugs and drug paraphernalia.
In determining probable cause to issue a warrant, it is not
the number of statements, tips or events that is determinative.
State v. Valley (1992), 830 P.2d 1255, 49 St.~ep. 30. It is the
probative force of one, some or all of them. Valley, 830 P.2d at
1256, 49 St.Rep. at 31. Probable cause does not mean that the
State had to provide a prima facie showing of criminal activity on
Mosley's part; the State merely had to show a probability of
criminal activity on Mosley's premises. See State v. Sundberg
(1988), 235 Mont. 115, 765 P.2d 736.
The application provides a substantial basis that such a
probability of criminal activity was occurring on Mosley's
property. We hold that the District Court did not err in
determining that the application for search warrant set forth
sufficient facts to establish probable cause.
Affirmed.
We Concur:
Chief Justice
Justice Terry N. Trieweiler specially concurring in part and
dissenting in part.
I concur with the majority's decision to affirm the District
Court. However, I disagree with its reasons.
Specifically, I would not follow the U.S. Supreme Court's
decision in Franks v. Delaware (l978), 438 U.S. 154, 98 S. Ct. 2674,
57 L. Ed. 2d 667. However, I conclude that after excising the
false or inadequate information from the affidavit in support of
the State's application for a search warrant, there was sufficient
information to establish probable cause for the issuance of a
search warrant pursuant to the totality of the circumstances test
adopted in Statev. Jensen (1985), 217 Mont. 272, 704 P.2d 45.
In Franks, the U.S. Supreme Court decided that under the Fourth
Amendment to the United States Constitution, false information
contained in an affidavit in support of an application for a search
warrant need not be excised unless the defendant could establish
that when the information was included, the affiant knew that it
was untruthful or had a reckless disregard for the truth. The
Montana Constitution provides an independent right to the citizens
of this State to be free from unreasonable searches and seizures.
It also provides that no search warrant shall issue without
probable cause. False information provided in support of a search
warrant does not provide probable cause. What difference does it
make what the applicant's state of mind is when the false
information is submitted? Furthermore, if false information is
provided in support of an application for a search warrant, how
does the person whose privacy has been illegally violated prove the
state of mind of the person who provided the information?
Applying the right found in the Montana Constitution to be
free from unreasonable searches and seizures, I would hold that in
determining whether there was probable cause fox the issuance of a
search warrant, false information included in the search warrant
should be disregarded and onlythe remaining information considered
by a reviewing court.
For these reasons, and based on our prior decisions, I would
excise the following information from the affidavit filed by the
State in support of its application for a search warrant in this
case:
1. The information contained in the files of the Missoula
County Sheriff's Department (with the exception of defendant's
record of convictions) for the reason that the information was
stale and inadmissible pursuant to our decision in State v. vahy
(1992), 252 Mont. 489, 830 P.2d 1255.
2. The information allegingthatdefendanthad contactedthe
sheriff's department about a trespass to his property for the
reason that such information was false.
3. The allegation that Thomas Campbell had a long history of
drug-related offenses because that allegation was false. I would
allow the allegation that illegal drugs were found in Campbell's
residence in 1991.
4. The information about defendant's power usage because
there was no foundation for the conclusion in the affidavit that it
had any significance, and was, therefore, inadmissible pursuant to
our decision in Statev. m k o n (l992), 254 Mont. 317, 837 P.2d 1346.
The majority's adoption of the Frank rule cannot be reconciled
with our previous approach to the use of improper or inadequate
information in an application for a search warrant. In Valley, we
held that a search warrant based on stale information did not
provide probable cause. In Wilson, we held that a search warrant
based on conclusory statements did not establish probable cause.
Yet, in this case the majority is willing to adopt a rule that the
statements which are blatantly false can be used to establish
probable cause unless defendant can prove that the affiant had a
dishonest state of mind when the information was provided to the
magistrate. In Montana, false information has been elevated to a
position of greater value than information which is simply stale or
conclusory.
In spite of these problems with the majority opinion, I
conclude that after excising the objectionable material from the
application for a search warrant, there was sufficient basis to
establish probable cause for the issuance of a search warrant under
our previous decisions. The affidavit in support of the
application established that a reliable informant believed that
defendant may be maintaining a marijuana growing operation in his
home. The informant described the premises where the growing
operation was being conducted, and that description was confirmed
after an investigation by the Missoula County Sheriff's Department.
A separate, citizen informant, whose reliability is presumed by our
previous decisions, informed the law enforcement officers that he
had observed defendant during that same year burning what he
believed to be marijuana plants on his property. The defendant's
file at the sheriff's office showed that in 1982 he was convicted
of possession of illegal drugs. Finally, the citizen informant
identified Campbell as someone who came to defendant's premises
regularly at the same time of day, and Campbell was identified as
someone who had recently been found to possess illegal drugs and
drug-related equipment. I conclude that the cumulative effect of
these facts established probable cause for the issuance of a search
warrant.
For these reasons, I would affirm the judgment of the District
Court.
Justice Karla M. Gray joins in the foregoing concurrence and
dissent.
Justice William E. Hunt, Sr., dissenting.
I dissent and would reverse the conviction of the defendant
because I do not believe either the United States Constitution or
the Constitution of the State of Montana ever contemplated
obtaining a warrant through the use of false information in the
affidavit. I would reverse.
June 10, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
James Park Taylor
Attorney at Law
111 N. Higgins, Ste. 303
Missoula, MT 5980211401
Hon. Joseph P. Mamrek, Attorney General
Carol E. Schmidt, Assistant
Justice Bldg.
Helena, MT 59620
Robert Deschamps, 1 1 County Attorney
1,
Karen Townsend, Deputy
Missoula County Courthouse
Missoula, MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
STATE O F ~ O N T M