State v. Crowder
Decision Date | 24 April 1991 |
Docket Number | No. 90-399,90-399 |
Citation | 248 Mont. 169,810 P.2d 299 |
Parties | STATE of Montana, Plaintiff and Respondent, v. James A. CROWDER, Defendant and Appellant. |
Court | Montana Supreme Court |
William Dee Morris, Helena, for defendant and appellant.
Marc Racicot, Atty. Gen., Deanne L. Sandholm, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, County Atty., Barbara Harris, Deputy County Atty., Missoula, for plaintiff and respondent.
A jury sitting in the District Court of the Fourth Judicial District, Missoula County, convicted James A. Crowder of three counts of felony possession of dangerous drugs, one count of misdemeanor possession of a dangerous drug, and one count of criminal possession of drug paraphernalia, a misdemeanor. We affirm.
Crowder presents the following issues:
1. Did the District Court err in finding that the application for the search warrant contained facts sufficient to establish probable cause?
2. Did the District Court err in refusing to order disclosure of the identities of the police informants?
3. Did the District Court err in failing to join Counts I and II into a single count of possession of the dangerous drug methamphetamine?
Police received information from four informants over a period of a year alleging that James A. Crowder and his brother were manufacturing and selling methamphetamine. Only two of the informants were known to be reliable to police. The first informant, whose identity was known to the officer, apprised Detective Larry Jacobs in August 1988 that Crowder was distributing in Missoula County methamphetamine manufactured by Crowder's brother in Idaho.
In October 1988 another informant, anonymous, but familiar by sight and known to be reliable by other police officers, told Detective Rocky Harris much the same information.
On June 2, 1989, a third informant disclosed to Detective Jacobs that the Crowder brothers had moved their methamphetamine lab to Missoula County. The third informant stated that, although he did not know the specific location of the lab, he had observed the glassware the Crowders used, had seen the finished product, and was in constant touch with the Crowders. Detective Jacobs knew the third informant, but had not previously relied upon him for information.
On August 14, 1989, a fourth informant, known to be reliable by Detective Jacobs, revealed that Jim Crowder had a methamphetamine lab and chemicals in the garage at his residence on Evaro Hill. The informant had seen the finished product, but not the lab. The fourth informant was involved in working on another case with police.
On August 17, 1989, the third informant, whose reliability was unknown, contacted Detective Jacobs for a second time. The informant claimed that he had personally observed Crowder's methamphetamine lab and chemicals in Crowder's garage near his house. According to the third informant, Crowder was likely to produce one to two pounds of methamphetamine within the next week. The third informant also believed that Crowder had marijuana growing on his property.
After the tip from the fourth informant, on August 14, 1989, Detective Jacobs and Agent Long of the Montana Criminal Investigation Bureau drove to Crowder's residence and observed it from 8:00 to 11:00 p.m. The officers saw three men working on a pickup in the garage. Detective Jacobs and Agent Long, walking about 50 yards from the garage, thought that they detected an odor similar to that of chemicals used in the methamphetamine manufacturing process.
Based on the above information, a search warrant was issued, and eighteen fully-armed state and federal police officers approached the residence on August 18, 1989. When it became apparent that no danger existed, all of the men left except six officers who searched Crowder's residence for five hours.
Officers searched Crowder's person and found a brown vial containing methamphetamine residue and a brass pipe. In the garage officers discovered filter papers, one of which contained traces of methamphetamine, a glass tube, and a razor blade. In Crowder's home, officers seized a peyote plant, a plastic baggie containing marijuana, another vial containing methamphetamine residue, marijuana on a tray in the kitchen cupboard, and another pipe used for smoking drugs.
One of the officers testified in a pre-trial hearing that police also seized a gas mask, rubber gloves, cooking instructions, and the recipe for methamphetamine, although these items were not introduced as evidence at trial.
Police did not find the glassware or chemicals used to make methamphetamine.
A jury found Crowder guilty of criminal possession of methamphetamine on the defendant's premises, criminal possession of methamphetamine on the person, and criminal possession of mescaline, all felonies, as well as criminal possession of marijuana and criminal possession of drug paraphernalia, both misdemeanors.
Crowder received a five-year prison sentence for each of the first two counts, to be served concurrently, a five-year sentence for the third count, and six months in prison for each of the last two counts. All of the sentences were suspended, except for the concurrent five-year sentences for the first two counts. Crowder was also fined $1,000 and required to pay court costs.
Did the District Court err in finding that the application for the search warrant contained facts sufficient to establish probable cause?
Crowder claims that the search warrant application was insufficient to establish probable cause because the police investigation was inadequate to corroborate the information provided by informants. Additionally, Crowder asserts that the application contained stale tips and was lacking in details about Crowder's drug involvement.
A search warrant must state "facts sufficient to show probable cause for issuance of the warrant." Section 46-5- 202(1)(b), MCA. To determine whether a magistrate had probable cause to issue a warrant, the reviewing court must look solely to the information given to the impartial magistrate and to the four corners of the search warrant application. State v. Sundberg (1988), 235 Mont. 115, 121, 765 P.2d 736, 740.
To address the issue of probable cause for issuance of a warrant, this Court has adopted the "totality of the circumstances" test set forth in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. State v. Jensen (1985), 217 Mont. 272, 704 P.2d 45. The duty of the reviewing court is to ensure that the magistrate had a " 'substantial basis' " to conclude that probable cause existed. Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332, 76 L.Ed.2d at 548 (quoting Jones v. United States (1960), 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697, 708). Ascertaining the veracity and bases of informants' knowledge are important aspects of the "totality of the circumstances" test:
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. The United States Supreme Court emphasized the "value of corroboration of details of an informant's tip by independent police work" establishing a " 'substantial basis for crediting the hearsay.' " Gates, 462 U.S. at 241-42, 103 S.Ct. at 2334, 76 L.Ed.2d at 550 (quoting Jones, 362 U.S. at 269, 80 S.Ct. at 735, 4 L.Ed.2d at 707).
Arguably, the investigation by the police department could have been more thorough. The location of the Crowder residence and outbuildings as described by informants was confirmed. Officers observed the Crowder residence for three hours. According to testimony, the officers saw three men working in the garage on a pickup truck. The other evidence gained by the officers was that they detected "an odor similar to that of chemicals used in the production of methamphetamine" when they walked within 50 yards of the garage.
Information in the warrant application about the informants and their sources, combined with the officers' investigation, though less complete than would be desirable, is a basis for the probability that contraband would be found at the Crowder residence. The application stated that the fourth informant possessed "proven reliability." The warrant application did not report the source of the fourth, reliable, informant's knowledge. However, the United States Supreme Court noted in Gates:
If, for example, a particular informant is known for the unusual reliability of his predictions of certain types of criminal activities in a locality, his failure, in a particular case, to thoroughly set forth the basis for his knowledge surely should not serve as an absolute bar to a finding of probable cause based on his tip.
Gates, 462 U.S. at 233, 103 S.Ct. at 2329-30, 76 L.Ed.2d at 545.
The third informant, although his reliability was not known, gave some details and stated that he had personally observed the lab and chemicals in Crowder's garage. An informant's personal observation of criminal activity is not hearsay information. Sundberg, 235 Mont. at 121, 765 P.2d at 740. The Supreme Court also commented on an informant's personal observation in Gates:
Conversely, even if we entertain some doubt as to an informant's motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case.
Gates, 462 U.S. at 234, 103 S.Ct. at 2330, 76 L.Ed.2d at 545. The warrant application recited the third informant's tip that a methamphetamine lab was located in Crowder's garage and his description of the location of...
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