State v. Cope
| Citation | 48 St.Rep. 949,819 P.2d 1280,250 Mont. 387 |
| Decision Date | 04 December 1991 |
| Docket Number | No. 91-211,91-211 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Richard COPE and Rosa Dickson, a/k/a Rosa Cope, Defendants and Appellants. |
| Court | United States State Supreme Court of Montana |
John L. Pratt, Ask & Pratt, Roundup, for defendants and appellants.
Marc Racicot, Atty. Gen., Matthew F. Heffron and Barbara C. Harris, Assts., Helena, Vicki Krause, Musselshell County Atty., Roundup, for plaintiff and respondent.
On November 28, 1989, the State filed an Information in the District Court of the Fourteenth Judicial District in Musselshell County charging defendants Richard and Rosa Cope (a/k/a Rosa Dickson) with one count each of Possession of Dangerous Drugs and Possession of Dangerous Drugs With Intent to Sell. The State also charged Richard Cope with Felony Assault. The case was tried by the District Court without a jury on September 27-28, 1990. The court found Rosa Cope guilty of Possession of Dangerous Drugs With Intent to Sell. The court found Richard Cope guilty of both Possession of Dangerous Drugs With Intent to Sell and Felony Assault. The Copes appeal. We affirm.
The issues are:
1. Did the District Court err in denying the Copes' motion to suppress because the judge who issued the search warrant failed to comply with the "four corners" rule?
2. Did the District Court err in denying the Copes' motion to suppress based on the alleged overbreadth of the search warrant?
3. Did the District Court err in denying the Copes' motion to suppress based on the State's failure to leave the search warrant documents with the issuing judge until the search warrant was executed?
4. Did the District Court err in denying the Copes' motion to suppress based on the State's alleged failure to serve the search warrant on the Copes at the time of the search?
5. Did the District Court err in finding Richard Cope guilty of felony assault?
6. Did the District Court err in sentencing Richard Cope, who suffers from physical and mental disabilities, to Montana State Prison?
In September 1989, FBI agent Carl Zarndt received an anonymous tip about marijuana growing south of Roundup, Montana. Agent Zarndt, who mistakenly believed the location to be in Golden Valley County, called Golden Valley County Sheriff Fred Cougill. Sheriff Cougill told Zarndt that the location was in Musselshell County and later relayed the tip to Musselshell County Sheriff Brian Neidhardt. On September 14, 1989, Sheriff Neidhardt called Zarndt to confirm the tip and learned that the marijuana was near Fort Hall.
The next day Sheriff Neidhardt and Deputy Sheriff Rick Seidlitz rented a plane and flew over the Fort Hall area. Sheriff Neidhardt had concentrated on drug enforcement for 15 of his 18 years in law enforcement and had training and experience in aerial surveillance. Based on this training and experience, Sheriff Neidhardt had no doubt that plants he observed during the flight were marijuana plants.
After the flight, Sheriff Neidhardt checked the location he had seen from the air on a county map. He and Deputy Mike Thomas then drove out to the property and observed the marijuana plants again through binoculars. Sheriff Neidhardt noted that the plants were quite close to the residence on the property.
Sheriff Neidhardt and Deputy Thomas returned to Roundup to get a search warrant. The sheriff called the county land classifier for a legal description of the property and learned that it was tract BJ-7 on Section 6, Township 6N, Range 26E. Sheriff Neidhardt then supplied the Musselshell County Attorney's Office with a property description for use in preparing a search warrant application.
The warrant application contained the following property description:
A tannish colored framed dwelling located at 23 Harshman Road, by the junction of Shortcut Road and Harshman Road, more particularly described as BJ West 1/2 of NE, SW, Section 6, Township 6, Range 26, Musselshell County, Montana.
This is not the description Sheriff Neidhardt received from the land classifier. The land classifier's testimony at the suppression hearing established that the discrepancy may have resulted from unfamiliarity with legal property descriptions by either Sheriff Neidhardt or the county attorney's typist.
The warrant application also contained the following statement of probable cause:
Sheriff Brian Neidhardt and Deputy Sheriff Rick Seidlitz flew over the Bull Mountains in Musselshell County on September 15, 1989, at approximately 12:00 o'clock Noon, and observed the residence of Rosa Dickson where what appeared to be marijuana growing on the South side of the residence [sic]. At approximately 1:30 p.m. on this same date, Sheriff Brian Neidhardt drove to Shortcut Road and observed with binoculars, at approximately 200 yards, what appeared to be marijuana plants.
Sheriff Neidhardt took this warrant application to District Court Judge Roy Rodeghiero, who placed the sheriff under oath and discussed the entire situation with him. Judge Rodeghiero issued a search warrant containing the property description reprinted above and commanding a search of all "vehicles, outbuildings, houses, and surrounding property" at that location. The sheriff did not leave the warrant application with Judge Rodeghiero.
Sheriff Neidhardt and several deputies then returned to the Dickson property to execute the search warrant. As the sheriff and Deputy Seidlitz approached, they heard loud music coming from a Jeep parked near the house. Deputy Seidlitz approached from the passenger side of the Jeep while Sheriff Neidhardt approached from the driver's side. Richard Cope was sitting in the driver's seat with the driver's side door open. When Sheriff Neidhardt identified himself, Cope reached down to his right, picked up a pistol, and began to swing it counterclockwise across his body toward Neidhardt. The sheriff knocked the pistol from Cope's hand while it was still pointing toward the front of the Jeep.
The authorities then approached the house and ordered everyone out. Rosa Cope and Dr. James Cope, Richard's father, came out. Sheriff Neidhardt gave Rosa Cope a copy of the search warrant. The officers handcuffed Richard, Rosa, and Dr. Cope and then proceeded to search the property. The search produced a number of weapons, some drug paraphernalia, and approximately 35 pounds of marijuana. Dr. Cope was neither arrested nor charged.
On August 23, 1990, the Copes moved to suppress the search results. The Copes disqualified Judge Rodeghiero because they wanted to have him testify at their suppression hearing. A suppression hearing was held on September 11, 1990, and the motion to suppress was denied on September 13, 1990.
The Copes were found guilty of Possession With Intent to Sell after a trial on September 27-28, 1990. Richard Cope was also convicted of Felony Assault. The court sentenced Rosa Cope to five years at Montana State Prison with all but 30 days in the county jail suspended on conditions. The court sentenced Richard Cope to ten years for Possession With Intent to Sell, and ten years for Felony Assault, with the sentences to run concurrently, and with eight years suspended on conditions. The court added a consecutive two-year sentence enhancement to Richard Cope's sentence for his use of a dangerous weapon in the assault.
Did the District Court err in denying the Copes' motion to suppress because the judge who issued the search warrant failed to comply with the "four corners" rule?
The Copes cite a long line of Montana cases, including State v. Van Voast (1991), 247 Mont. 194, 805 P.2d 1380, for the proposition that the issuing judge cannot go beyond the "four corners" of the warrant application to find probable cause to search a suspect's property. The Copes claim the probable cause statement in the warrant application was insufficient and that the issuing judge must have gone beyond the application to find probable cause. Specifically, they argue that the warrant application did not allege that Sheriff Neidhardt had any training or experience in marijuana identification. The Copes conclude that Judge Rodeghiero could not find probable cause without finding that his affiant could identify marijuana on sight and that the warrant application was fatally flawed without this information.
We disagree. The cases relied on by the Copes involve tips by informants which were relied upon to establish probable cause. See, e.g., State v. Hendrickson (1985), 217 Mont. 1, 701 P.2d 1368. This case does not require the usual analysis involving informant tips because in this case a law enforcement officer acting in his official capacity personally observed marijuana plants on two separate occasions. The same officer signed the warrant application and swore to its accuracy in front of the issuing judge. Questions of informant reliability and credibility are irrelevant because the county sheriff does not require the same accreditation as an unknown informant. We hold that under the circumstances of this case an allegation of personal observation by a law enforcement officer was sufficient to establish probable cause.
Did the District Court err in denying the Copes' motion to suppress based on the alleged overbreadth of the search warrant?
The Copes argue that the District Court should have suppressed the search results because the search warrant incorrectly described a much larger piece of land than the tract on which they lived. The property description should have read "Tract BJ-7, W 1/2 of NE SW, Section 6." This would have directed the authorities to the west half of the northeast quarter of the southwest quarter-section of Section 6. Instead, the property description read "BJ West 1/2 of NE, SW, Section 6." A literal reading of this erroneous description would have led the authorities to the west half of the northeast quarter-section and all...
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