State v. Baldwin
| Decision Date | 12 April 1990 |
| Docket Number | No. 89-136,89-136 |
| Citation | 47 St.Rep. 614,242 Mont. 176,789 P.2d 1215 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Mark Charles BALDWIN, Defendant and Appellant. |
| Court | Montana Supreme Court |
James C. Bartlett, Hash, O'Brien & Bartlett, Kalispell, for defendant and appellant.
Marc Racicot, Atty. Gen., Elizabeth S. Baker, Asst. Atty. Gen., Helena, Ted O. Lympus, County Atty., Thomas J. Esch, Deputy, Kalispell, for plaintiff and respondent.
Mark Baldwin appeals his conviction for criminal possession of dangerous drugs with intent to sell in the District Court of the Eleventh Judicial District, Flathead County. The District Court sentenced appellant to twenty years in the Montana State Prison, with five years suspended, imposed a $20,000 fine and designated appellant a dangerous offender. We affirm.
Appellant raises three issues on appeal:
1. Can probable cause for issuing a search warrant be based in part on documents obtained through an investigative subpoena the application for which contained material false statements?
2. Did the District Court erroneously deny appellant's motion to suppress evidence seized during execution of a search warrant issued upon inadequate probable cause?
3. Did the District Court properly designate appellant a dangerous offender?
Deputy Flathead County attorney, Thomas J. Esch, applied for an investigative subpoena duces tecum for power and telephone records for appellant's residence at 420 Sharon Road in Kalispell. Included in the application was a tip received by the Flathead County Sheriff's Department in 1983 regarding appellant's alleged involvement in cocaine importation. The tipster stated appellant would travel to Seattle to pick up a quantity of raw lumber shipped from Colombia. This shipment allegedly concealed cocaine. Joint observation by the Sheriff's Department and the Drug Enforcement Administration revealed that appellant did indeed travel to Seattle but was unable to collect the delivery described. Documentation of the shipment showed it contained raw Colombian lumber.
Esch also made part of his application a statement made by appellant's ex-wife during a 1984 deposition taken in the course of their dissolution to the effect that appellant "is and always has been a drug dealer." Additionally, the Flathead County Attorney in February, 1987, reported an anonymous tip that appellant concealed a hydroponic marijuana cultivation operation in his garage. After compiling the above data, Sgt. Rick Hawk of the Flathead County Sheriff's Department then contacted a confidential informant whose statements were included in the application for investigative subpoena. According to this informant, appellant remodeled his garage so that it appeared to contain an apartment. However, a false wall in the building concealed appellant's marijuana growing operation. Appellant reportedly had three associates, one of whom provided the initial cash investment. Each of the other two possessed 2,500 marijuana plants. Appellant reportedly had 2,500 mature plants, located both in his house and the garage, and 2,500 "starts." The informant's information derived primarily from a source close to appellant although the informant observed the grow operation in October or November of 1987.
Electricity usage records from Pacific Power and Light Company and telephone records from Northwestern Telephone Company were obtained from the subpoenas issued pursuant to the first application. The second application for an investigative subpoena duces tecum contained additional facts.
Records subpoenaed from Pacific Power and Light Company indicated that appellant's residence was not heated by electricity. In addition, the account for 420 1/2 Sharon Road was in the name of Mike Barker. Barker was also listed as the guarantor on appellant's account. On Pacific Power and Light records appellant listed his employment as "disabled." Sgt. Hawk drove by appellant's residence at 420 Sharon Road and verified that an addition to the garage located on the property bore the number 420 1/2. Esch set forth further information gleaned from public records, specifically a Warranty Deed, and thus stated in his application that appellant paid $10,000 cash and other consideration for the property at 420 Sharon Road. The application further stated that appellant, although without visible means of support, obtained "clear title" to this property.
Based upon respondent's second application, the District Court issued subpoenas to Pacific Power and Light Company for 420 1/2 Sharon Road, Montana Power Company for 420 and 420 1/2 Sharon Road, Safeco Title Company and First Interstate Bank. In his application for a warrant to search Mark Baldwin's residence for evidence of criminal possession of dangerous drugs and paraphernalia, Sgt. Hawk included information in addition to the above:
Affiant is an officer with the Flathead County Sheriff's Department and has been so employed for 13 years.
That he is currently assigned as Sergeant in charge of the Special Investigations Division of the Sheriff's Department which primarily investigates drug offenses and has been thus engaged in drug investigations for the past 4 years.
Affiant has an advanced certificate from the Montana Police Officers Standards Training Council (POST), and has approximately four years of investigative experience in general investigations with the Flathead County Sheriff's Department prior to his appointment to Special Investigations. Affiant has continued his education by attending police schools including the United States Drug Enforcement Agency Advanced Drug Investigation School, The Montana Law Enforcement Academy (MLEA) Drug Commanders School, and the Harris and Assoc. Drug Enforcement Seminar. Affiant also maintains membership in 2 professional organizations which are the International Narcotic Enforcement Officers Association, and the American Canadian Drug Conference. In addition this affiant has personally investigated in excess of 300 drug cases.
Further investigation revealed that there is a natural gas line to the property. On 9-9-88 an investigative subpoena was served on Montana Power Company, records received as a result, indicate that both the house and shop have natural gas heating and hot water.
That records obtained by subpoena from First Interstate Bank show that Mark purchased the property on Sharon Rd. from Jerry and Geri Galloway for $35,000.00, putting $7,750.00 as down payment, leaving a balance of $27,250. On 10-1-86 Mark paid the Galloways $10,000 dollars, and started making $350.00 per month payments. On 3-1-88 Mark paid off the Whitefish Credit Union and assumed the loan at the 1st Interstate Bank.
That in a Residential Loan Application dated 2-5-88 and signed by Mark, he listed his employment as Treasure/Bookkeeper for Kokanee Const. Corp. box 952, Kalispell, Mt. which he stated is a holding company. This affiant contacted the Montana Corporations Bureau who advised that Kokanee Const. was incorporated on 3-5-80 as a general construction company and was involuntarily dissolved on 12-15-82. There were no annual reports filed. This affiant then checked the current phone book, both white and yellow pages, and the Polk's city directory, neither of which had a listing. This affiant then contacted the Kalispell Chamber of Commerce which has never heard of Kokanee Const., and the Montana Assoc. of Contractors which advised that Kokanee does not have a Contractors License in the state of Montana.
That despite evidence as listed above that Mark Baldwin has no employment it appears that he was able to raise a substantial sum of money in 17 months to put down on and make payments on the property he purchased.
That the average consumption of electricity for all of Pacific Power and Light's residential customers for 1987 was 1000 to 1100 KWH per month.
That this affiant contacted Gary Mahugh the Member Service Advisor for Flathead Electric Cooperative who stated that the average usage of electricity for family of four is around 1000 to 1100 KWH per month, but should drop to 600 to 800 KWH per month if there is no electric heat or hot water.
That Mark Baldwin's residential electricity use in kilo watt hours as determined from PP & L records is as follows.
AUGUST 1987=1713
SEPT. 1987=1629
OCT. 1987=1640
NOV. 1987=1742
DEC. 1987=1931
JAN. 1988=2125
FEBRUARY 1988=862
MARCH 1988=1395
APRIL 1988=1592
MAY 1988=1001
JUNE 1988=1373
JULY 1988=1510
AUG. 1988=1884
The average usage for the above months is 1565 KWH per month.
The average KWH for the same months listed above for the apartment which is attached to the garage was 1157 KWH per month. The garage also has natural gas heat and hot water and had a separate average electricity usage for the above months of 1771 KWH per month.
The information obtained from Montana Power Company shows that there was gas consumption during the entire time period listed above, meaning that the gas furnace and hot water heaters were in a working condition and had not been replaced by electrical appliances, which might account for the higher than average electricity consumption.
This affiant knows from training and experience that when growing a large number of plants in an enclosed space ventilation is required. Visual observation and photographs of the Baldwin property show two of what appear to be gas appliance vents on the back part of the shop roof. There is also a revolving louver ventilating fan in the same area. There is what appears to be a power vent for a fan located on the back wall of the shop near the top.
On 9-20-88 this affiant contacted a neighbor of Mark Baldwin's who confirmed that Baldwin is a bachelor, has no commercial enterprise operating from his garage, and told the neighbor that he is disabled. The...
To continue reading
Request your trial
-
State v. Siegal
...a reviewing court must presume that the magistrate's decision is correct. Rinehart, 864 P.2d at 1223 (citing State v. Baldwin (1990), 242 Mont. 176, 183, 789 P.2d 1215, 1220). "When a magistrate determines that probable cause exists to warrant the issuance of a search warrant, this Court sh......
-
State v. Deskins
...of Sec. 46-13-302(4), MCA, the burden of proving the illegality of a search and seizure is upon a defendant. State v. Baldwin (Mont.1990), 789 P.2d 1215, 1220, 47 St.Rep. 614, 620. In Baldwin, this Court held that there is a presumption that a magistrate properly issued the search warrant a......
-
State v. Oleson
...State v. Johnston (1995), 271 Mont. 385, 388, 897 P.2d 1073, 1075; Rinehart, 262 Mont. at 210, 864 P.2d at 1223; State v. Baldwin (1990), 242 Mont. 176, 183, 789 P.2d 1215, 1220. ¶8 An affidavit supporting a search warrant is to be interpreted by the magistrate and examined by the reviewing......
-
State v. Nelson
...exacting than the "compelling state interest" test demanded by Article II, Section 10's guarantee of privacy. State v. Baldwin (1990), 242 Mont. 176, 182, 789 P.2d 1215, 1220 (the prerequisites for obtaining a search warrant are more stringent than those for acquiring an investigative subpo......