State ex rel. Glantz v. District Court of Thirteenth Judicial Dist. In and For Yellowstone County

• Decision Date: 10 November 1969
• Docket Number: No. 11740,11740
• Citation: 154 Mont. 132,461 P.2d 193
• Parties: The STATE of Montana ex rel. Ralph GLANTZ, Jr., William Germer, Linda Marie Pickett and Jack Young, Relators, v. The DISTRICT COURT OF the THIRTEENTH JUDICIAL DISTRICT of the State of MontanaIN AND FOR the COUNTY OF YELLOWSTONE and the Honorable Charles B. Sande, Presiding Judge.
• Court: Montana Supreme Court

Page 193

461 P.2d 193

154 Mont. 132

The STATE of Montana ex rel. Ralph GLANTZ, Jr., William Germer, Linda Marie Pickett and Jack Young, Relators, v. The DISTRICT COURT OF the THIRTEENTH JUDICIAL DISTRICT of the State of MontanaIN AND FOR the COUNTY OF YELLOWSTONE and the Honorable Charles B Sande, Presiding Judge.

No. 11740.

Supreme Court of Montana.

Submitted Sept. 22, 1969.

Decided Nov. 10, 1969.

Sandall, Moses & Cavan, Charles F. Moses, Billings, argued, for relators.

Robert L. Woodahl, Atty. Gen., Helena, Charles C. Lovell, Special Asst. Atty. Gen., Great Falls, argued, John L. Adams, County Atty., Billings, for respondents.

JAMES T. HARRISON, Chief Justice.

This is an original proceeding seeking an appropriate writ to compel the respondent district court to set aside its orders denying relator's pretrial motions. Four separate criminal proceedings are involved each concerning an information charging criminal possession of dangerous drugs. The district court denied the separate motions of relators to set aside and quash the information, to dismiss the information, to 'quash the arrest', and to take the deposition of a certain police officer. Following ex parte presentation of the application, this Court entered its order to show cause directed to respondent court and upon the return day oral argument was had.

In this cause it appears that on or about July 10, 1969, application for a search warrant was made by Charles Hensley, detective of the Billings police department, reciting as grounds therefor the following:

'That an informant was searched by Detective Hensley of the Billings Police Department; That the automobile of the informant was also searched by Detective Hensley; Subsequent to this search Detective Hensley accompanied the informant in the informant's car to 1145 Custer Ave.; That Detective Hensley left the car of the informant about 50 feet from the above address; That the informant drove into the driveway of the house at the above address, got out of his car and entered the house; That Detective Hensley observed the above take place from his vantage point 50 feet away; That Detective Hensley observed the informant come out of the house with a man named Jack Young; That the two of them were observed entering a garage attached to the house; That the officer believes that a sale of marijuana was made at this time and place. That the party taken into custody was found to be in possession of marijuana. Based on these facts it is believed and reasonably believed that marijuana and other dangerous drugs are on said premises.'

A search warrant was issued by the justice of the peace authorizing the search of '1145 Custer Ave.-split level woodframe house, attached garage and out buildings' and directing seizure from said premises of 'Marijuana and narcotics and other dangerous drugs commonly known as LSD and Mescaline'.

The warrant was executed and all four relators were found on the premises at the time and were arrested. Upon leave granted by the district court, individual informations were filed against each relator. The affidavits of the deputy county attorney in support of the state's motion for leave to file recited that relator Glantz was lessee of the house searched and at the time of his arrest capsules believed to be mescaline were found on his person; that relator Young was living in said house and the search disclosed dangerous drugs in his room; that the relator Germer was living in said house and the search disclosed dangerous drugs in his room; that relator Pickett was found in said residence, was arrested and thereafter searched, a measurable quantity of marijuana was found on her person.

The only facts before this Court are those contained in the application for the search warrant, in the warrant itself, in the allegations set forth in the affidavits mentioned above, and in the information.

The relators have attempted to raise many issues. These issues have been organized for purposes of discussion by this Court as follows: 1. Whether there was probable cause for issuance of the search warrant and, if so, whether the warrant authorized a lawful search of the described premises. 2. Whether there was probable cause for the arrest of each relator upon execution of the warrant. 3. Whether the district judge erred in finding probable cause by granting leave to file the informations. 4. Whether the statute, section 54-133, R.C.M.1947, states a crime and since the informations filed are couched in the language of the statute, whether they are defective.

Turning to issue No 1, relators contend that probable cause did not exist for issuance of the search warrant and consequently the search conducted pursuant thereto was unlawful. Relators rely on Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The United States Supreme Court in Aguilar sets forth the test to be applied by a reviewing court for a determination of probable cause in these words:

'* * * when a search is based upon a magistrate's, rather than a police officer's, determination of probable cause, the reviewing courts will accept evidence of a loss 'judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant,' * * * and will sustain the judicial determination so long as 'there was substantial basis for (the magistrate) to conclude that narcotics were probably present * * *."

The Aguilar case involved a request for a search warrant which stated that the affiant had reasonable information from a credible informer to believe that narcotics were stored on certain premises. The court held this application to be insufficient stating that the magistrate should be provided with the underlying facts and whenever an informer's statements are relied upon as probable cause, there must be a demonstration of the reliability or credibility of the informer.

In Spinelli, supra, the warrant was issued upon a request stating that a reliable informant had told FBI officers that the defendant was conducting illegal gambling activities by running a race book at certain telephone numbers which actually belonged to the defendant. Again the court held that these were conclusions and the officer should set forth facts to the magistrate in order that the latter need not rely on rumor or upon the reputation of some unknown person.

The facts in Aguilar and Spinelli are distinguishable from the present case. Both of those cases involved affidavits based upon hearsay statements rather than personal observation. The court in Aguilar, supra, stated that an affidavit could well be based upon hearsay information and 'need not reflect the direct personal observations of the affiant * * *.'

In the instant case it is the personal observation and the fact the affidavit is based upon direct eyewitness evidence that distinguishes it from Aguilar and Spinelli. For example, the application recites that the affiant searched the informant and his automobile, accompanied the informant in his car to the house in question and left the car 50 feet from the house. The affiant observed that the informant came out of the house accompanied by Jack Young and both entered a garage. When the informant returned and was taken into custody, he was in possession of marijuana. Therefore the affiant stated that he personally believed a sale of marijuana was made on those premises and also had reason to believe more drugs could be found there. In addition, even if this were an informer case with hearsay evidence, a sufficient showing of circumstances was set forth as well as a demonstration of reliability and credibility of the informer, as tested by the personal observation of the affiant.

Relators also argue that the search warrant should have been issued only for a search of the garage. However, the affiant knew only that the drugs came from the premises, since he observed both persons leaving the house and entering the garage attached to the house.

In issue No. 2 the relators argue that probable cause did not exist for their arrest without a warrant. Section 95-608, R.C.M.1947, states:

'A peace officer may arrest a person when: * * * (d) He believes on reasonable grounds, that the person is committing an offense, or that the person has committed an offense and the existing circumstances require his immediate arrest.'

In State v. Armstrong, 149 Mont. 470, 428 P.2d 611 (1967), this Court stated that probable cause exists where the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information are sufficient to warrant a man in the belief that an offense has been or is being committed. (Citing Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, quoting from Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790). It should be noted here that there is a vast distinction in the probable cause for arrest without a warrant and cases involving sufficiency of evidence to convict. Cases cited by relators such as State v. Hood, 89 Mont. 432, 298 P. 354 (1931), and State v. Cooper, 78 Mont. 35, 252 P. 376, both deal with the sufficiency of evidence to convict.

The test then in this instance is whether, as the officers entered the premises under their warrant, they had reasonable grounds to believe that an offense had been or was being committed by each of the relators. There can be no question concerning probable cause as to Jack Young. The officer's affidavit sets forth an eye-witness account of what can be construed as a transfer of drugs from Young to the informer. The affidavit of the deputy county attorney recites that Young was living in the house and the search of the premises made pursuant to the warrant disclosed dangerous drugs in Young's room.

Relator Glantz was the lessee of the premises where the drugs...