NO. 94-038
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Broadwater,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Steven J. Shapiro, Attorney at Law,
Clancy, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Pamela P. Collins, Assistant Attorney General,
Helena, Montana
John T. Flynn, Broadwater County Attorney,
Townsend, Montana
Submitted on Briefs: June 30, 1994
Decided: August 11, 1994
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
Justin Robert Wilson (Wilson) appeals from an order of the
First Judicial District Court, Broadwater County, which determined
that the justice of the peace had a substantial basis to conclude
that probable cause existed to issue a search warrant for Wilson's
truck. We reverse.
On the night of April 2, 1993, or early morning of April 3,
1993, the A & W restaurant in Townsend, Montana, was burglarized.
When the Broadwater County sheriff arrived at the scene he
discovered that a safe and microwave oven were missing. Even
though a large window was broken, the sheriff found black marks on
the vinyl floor and concrete around the doorway which suggested
that the safe was wheeled through the doorway. That door was
locked the night before by the manager. The sheriff deduced that
the person who took the safe must have had a key to the door. The
sheriff also noticed tire tracks on the pavement at the A & W.
The manager of the A & W told the sheriff that only four
people had keys to the door of the A & W--one of whom was Wilson,
an employee. She also told the sheriff that Wilson knew the
combination to the safe that was stolen.
Later in the morning of April 3, 1993, a person discovered a
safe in the water near the Indian Creek Campground. The sheriff,
a deputy and the Broadwater County justice of the peace travelled
out to the Indian Creek Campground to investigate. When the three
men arrived at the campground, they noticed tire tracks similar to
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those found at the A & W and footprints leading to and from the
water. They walked over to the water and found the safe that
belonged to the A & W. The safe door was open and no visible signs
of forcible entry were apparent. The sheriff deduced that a person
who knew the combination must have opened the safe. The sheriff
knew that Wilson was aware of the safe's combination. The sheriff
discussed the safe and the investigation with the justice of the
peace at that time.
On April 4, 1993, while Wilson was working at the A & W, an
undersheriff took pictures of Wilson's truck, the tires, and the
bed. The undersheriff noticed scratch marks on the bed of Wilson's
truck. The undersheriff also noticed a twisted bolt and bracket in
the bed of Wilson's truck. The undersheriff did not know the
significance of the bolt but seized it anyway and showed it to the
A & W's owner the next day. The owner identified the bolt and
bracket as the bolt which secured the safe to the floor of the
A & W.
On April 5, 1993, the sheriff applied to the justice of the
peace for a search warrant to search Wilson's truck. The justice
of the peace granted the search warrant and the sheriff executed
the warrant. The sheriff seized a number of one dollar bills
stashed in the glove compartment, a blue poncho and paint scrapings
from the bed of the truck. Wilson subsequently was arrested.
On October 6, 1993, Wilson filed a motion to suppress the
twisted bolt and bracket claiming the undersheriff illegally seized
the bolt and bracket from his truck. Wilson argued that without
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the illegally seized twisted bolt and bracket, there was no
probable cause to support the issuance of a search warrant. Wilson
also argued that the evidence was tainted since the justice of the
peace was at the scene when the sheriff recovered the safe and,
specifically, since the sheriff discussed the safe and the
investigation with the justice of the peace at that time.
The District Court granted Wilson's motion to suppress, but
determined that, even without the bolt and bracket, the search
warrant application was sufficient to support the existence of
probable cause. Wilson then changed his plea to guilty under North
Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d
162. Wilson reserved the right to appeal the District Court's
order pertaining to the search warrant and reserved the right to
withdraw his guilty plea. The District Court then sentenced Wilson
to three years on conditions of probation. Wilson appeals and we
restate the issue:
If a justice of the peace travels with a sheriff to recover
evidence of a crime and discusses the evidence and the
investigation with the sheriff, can that justice of the peace
subsequently issue a search warrant in that case?
Ordinarily, we review whether the issuing magistrate had a
substantial basis to conclude that probable cause to issue a search
warrant existed. State v. Sunberg (1988), 235 Mont. 115, 122, 765
P.2d 736, 741. However, when, as here, the issuing magistrate is
actively involved in the police investigation, we review whether
the magistrate correctly issued the search warrant. See State ex
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rel. Townsend v. Dist. Court, Fourth Judicial Dist. (1975), 168
Mont. 357, 363, 543 P.2d 193, 195.
Montana law requires that "[aIn impartial magistrate must
determine the existence of . . . probable cause solely from the
evidence in 'the four corners of the search warrant application."'
State v. Walston (1989), 236 Mont. 218, 221, 768 P.2d 1387, 1389.
The magistrate must be impartial "to ensure that some neutral and
detached evaluation is interposed between those who investigate
crime and the ordinary citizen." Townsend, 543 P.2d at 195. In
Townsend, we stressed the importance of a neutral and detached
magistrate by quoting the United States Supreme Court:
The point of the Fourth Amendment, which often is not
grasped by zealous officers, is not that it denies law
enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection
consists in requiring that those inferences be drawn by
a neutral and detached magistrate instead of being judged
by the officer engaged in the often competitive
enterprise of ferreting out crime.
Townsend, 543 P.2d at195; ouotinqJohnson v. United States (1948),
333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440.
Here, once the justice of the peace travelled to the
campground to investigate the missing safe, he became a part of the
investigation and his impartiality ceased. Once he crossed the
line and became a member of the investigatory team, he could not
make a neutral and detached evaluation of the evidence. He could
no longer protect Wilson's right to be free from searches not based
on probable cause. Not only was the justice of the peace's
judgment clouded by personally observing the scene where the safe
was found and the safe itself, but the sheriff also discussed the
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investigation with the justice of the peace at that time. We hold,
as a matter of law, that once the justice of the peace became an
active participant in the police investigation, he was no longer an
impartial magistrate and, therefore, he could not issue a search
warrant. We also hold that the search warrant was invalid and, as
such, Wilson's truck was illegally searched and the evidence from
that search must be suppressed.
Reversed and remanded.
Jpstices
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