State ex rel. Townsend v. District Court of Fourth Judicial Dist. In and For Ravalli County

• Decision Date: 01 December 1975
• Docket Number: No. 13154,13154
• Citation: 543 P.2d 193,168 Mont. 357
• Parties: STATE of Montana ex rel. Richard D. TOWNSEND, Relator, v. The DISTRICT COURT OF the FOURTH JUDICIAL DISTRICT of the State of Montana, IN AND FOR the COUNTY OF RAVALLI, and the Honorable Jack L. Green, presiding Judge, Respondents.
• Court: Montana Supreme Court

Page 193

543 P.2d 193

168 Mont. 357

STATE of Montana ex rel. Richard D. TOWNSEND, Relator, v. The DISTRICT COURT OF the FOURTH JUDICIAL DISTRICT of the

State of Montana, IN AND FOR the COUNTY OF

RAVALLI, and the Honorable Jack L.

Green, presiding Judge,

Respondents.

No. 13154.

Supreme Court of Montana.

Submitted Sept. 30, 1975.

Decided Dec. 1, 1975.

Milodragovich, Dale & Dye, Missoula, Michael J. Milodragovich, argued, Missoula, for relator.

Douglas G. Harkin, argued, Hamilton, for respondents.

JOHN C. HARRISON, Justice.

Relator Richard D. Townsend is charged by Information in Ravalli County will the offense of criminal sale of dangerous drugs, a felony under section 54-132, R.C.M.1947. The Information results from the seizure of forty-two marijuana plants and assorted paraphernalia by county deputy sheriffs during a search March 31, 1975, of relator's apparent place of residence. Prior to the search, a supportive warrant was issued by a local magistrate. The validity of that warrant was challenged by a motion to suppress under section 95-1806, R.C.M.1947. Hearing was held on May 23, 1975 in the district court and the motion to suppress was denied. As the denial of this motion is not an appealable order, relator petitions this Court for a writ of supervisory control, suppressing all evidence, written or oral, which was obtained from him in connection with this search.

In determining the facts upon which the magistrate relied to find probable cause for the contested warrant, we consider two sources-1) the application itself, and 2) certain responses to oral inquiry of the officer made at the time of the submission of the application.

Except for the standard descriptions of the items to be seized and the place to be searched, the only factual allegations made in the application were:

'An informant has advised Sheriff's Deputies that he has seen several marijuana plants growing inside the house. A second informant advised Sheriff's Deputies that he saw marijuana plants growing inside the house. The second informant has had personal experience with the identification of growing marijuana.

The quoted paragraph constitutes the only written statement of facts submitted to the magistrate. At the suppression hearing, it was revealed that the magistrate propounded several oral questions to the applying officer before authorizing the warrant. According to the officer's testimony, these questions produced this additional information:

'Q. And apparently if I understand your testimony correctly, those things which you deemed to be important and which should be brought to the Judge's attention were that two informants allegedly saw marihuana in Richard Townsend's house; that one of them allegedly could identify marihuana; that the first had identified a correlation between what he saw and the photograph that you showed him and that both individuals were upstanding citizens; is that correct?

'A. It sounds correct, yes sir.'

It is undisputed that there was no court reporter present during this discussion, no written notes were made or subscribed to by the applicant, and that no other writing was submitted to the magistrate in support of the allegation that probable cause existed.

At the suppression hearing, it was revealed that the first informant had seen the marijuana plants about two months prior to the issuance of the warrant, and the second informant had seen the plants about three weeks prior to the issuance of the warrant. This did not appear on the affidavit, nor was it brought to the attention of the magistrate.

A dispositive ruling in this case can be achieved through the determination of two related issues: 1) Whether the affidavit contained facts sufficient for a magistrate to determine whether probable cause existed, and 2) whether oral statements made to the magistrate at the time of the submission of the application may be used to cure a deficient affidavit.

The requirement that the magistrate decide the existence of probable cause on the basis of facts sufficient to allow an independent determination, is imposed by Montana law to ensure that some neutral and detached evaluation is interposed between those who investigate crime and the ordinary citizen. This principle was discussed in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, 440:

'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.'

It cannot be disputed that hearsay information may be considered to establish probable cause. State v. Paulson, Mont., 538 P.2d 339, 32 St.Rep. 786; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, 739; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. But when hearsay information forms the justification for a finding of probable cause and the issuance of a search warrant, the two-pronged test set out in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, must be applied and satisfied:

'* * * the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, was 'credible' or his information 'reliable."

See also: Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637.

We find the warrant in this case to be fatally deficient in several areas. First, there is no statement explaining some of the underlying circumstances from which the informant concluded that the plants...