State v. Jensen

• Decision Date: 05 August 1985
• Docket Number: No. 84-538,84-538
• Citation: 704 P.2d 45,217 Mont. 272,42 St.Rep. 1191
• Parties: STATE of Montana, Plaintiff and Appellant, v. Delbert JENSEN, Defendant and Respondent.
• Court: Montana Supreme Court

Page 45

704 P.2d 45

217 Mont. 272

STATE of Montana, Plaintiff and Appellant, v. Delbert JENSEN, Defendant and Respondent.

No. 84-538.

Supreme Court of Montana.

Submitted May 23, 1985.

Decided Aug. 5, 1985.

Mike Greely, Atty. Gen., James Scheier, argued, Asst. Atty. Gen., Helena, Ronald W. Smith, Co. Atty., Edward Corrigan, Deputy Co. Atty., Havre, for plaintiff and appellant.

Law Offices of Frank Altman, Ivan Evilsizer, argued, Havre, for defendant and respondent.

WEBER, Justice.

The State appeals from a pre-trial order suppressing evidence seized in a search of Delbert Jensen's home by law enforcement officers with a search warrant. The District Court determined that the Justice of the Peace issued the warrant without probable cause. We find that the application contained sufficient probable cause to support the issuance of the search warrant. We reverse the order of the District Court.

The issues on appeal are:

1. Was the search warrant based upon probable cause?

2. If not, should the illegally seized evidence be admissible under the "good faith exception" to the exclusionary rule?

On April 24, 1984, Hill County Deputy Sheriff Mark Stolen applied to Justice of the Peace Edward G. Vasecka, Jr., for a search warrant for a trailer at 936 2nd Street North, Havre, Montana. Deputy Stolen's affidavit in support of the application set forth the following:

"On April 17, 1984, Dorothy Cochran, of 2865 7th Street East, Havre, Montana, reported to the Hill County Sheriff's Department the theft of a yellow, McCullough chain saw, a Winchester 30-30 caliber lever action rifle, a Marlin 30-30 caliber lever action rifle, a H & R 10 gauge single shot shotgun and tan canvas bag, and a Marlin .22 caliber rifle.

"On April 18, 1984, an individual volunteered to Ms. Cochran that he had been involved in the theft of her guns and property. He also informed her that some of the items had been pawned, while her guns had been traded for drugs. Subsequently, Ms. Cochran discovered at the R-New Pawn Shop, Havre, Montana, the chain saw she had previously reported stolen as well as other items of personal property.

"On April 20, 1984, Ms. Cochran's informer returned to her one of the rifles he had stolen and exchanged for drugs. He also told her the exchange had taken place at a white trailer, 936 2nd Street North, Havre, Montana. At that location, Ms. Cochran confronted an individual named Ben and was given her stolen 30-30 Winchester rifle. Ms. Cochran's .22 caliber rifle and Merlin [sic] 30-30 caliber rifle have not yet been recovered.

"Ms. Cochran also learned from her informant that her shotgun had been traded for $40.00 worth of Columbian marijuana. Ms. Cochran has also been told by an individual named Sonny, who stays with Virginia Bernardi, that he had traded at the trailer at 936 2nd Street North, Havre, Montana, a 30-30 rifle for $105.00 worth of marijuana.

"On April 10, 1984, Ron Crocker, 926 2nd Street North, Havre, Montana, complained to the Hill County Sheriff's Department that he believed Delbert Jensen, Ben Morris, and Penny Genger, residents of a trailer on 2nd Street North, Havre, Montana, east of his home, were selling drugs. In the last week of March, 1984, Mr. Crocker had witnessed an exchange at that location of money and what he believed to be marijuana. Mr. Crocker also heard, on another occasion, one 13 or 14 year old boy say to another who had gone to Delbert Jensen's trailer, 'did you get the stuff?' Mr. Crocker also complained that a large amount of traffic had been stopping, on a daily basis, at Delbert Jensen's trailer; that a vehicle's motor often would be left running while an occupant went into the trailer for a short time and then left.

"On April 21, 1984, a concerned citizen also complained about heavy traffic on 2nd Street North, Havre, Montana; that her cat had almost been hit by a car driven by an individual described to her by neighborhood kids as a 'dope dealer.'

Neighborhood kids also told her this 'dope dealer' bought his drugs from people on 2nd Street North.

"I, Mark Stolen, have been a law enforcement officer for 12 years. It has been my experience that the events and unusual traffic described by Ron Crocker and 'concerned citizens' are indicative of transactions in dangerous drugs. I have known Ms. Cochran for several years and believe her statements are trustworthy and valuable. It has also been my experience that statements of concerned citizens, personally uninvolved, are reliable and important leads to follow."

Based upon Deputy Stolen's application and supporting affidavit, the Justice of the Peace issued a search warrant for defendant's trailer. No other sworn testimony or evidence was presented to the Justice of the Peace prior to issuance of the warrant.

On April 27, 1984, Hill County Deputy Sheriffs, Havre City Police and officials from the State Department of Fish, Wildlife and Parks searched defendant's residence. They seized more than 60 grams of marijuana, drug paraphernalia, cocaine and a rifle. Defendant Jensen was arrested and charged with theft, criminal sale of dangerous drugs (marijuana), criminal possession of dangerous drugs (marijuana), criminal possession of paraphernalia, and criminal possession of dangerous drugs (cocaine). He pled not guilty to each count.

Defense counsel filed a motion to suppress all of the evidence seized during the search based upon lack of sufficient facts in the application to show probable cause for issuance of the warrant. Following a hearing on the motion and relying solely on the information contained within the four corners of the application, the District Court found a lack of probable cause and granted defendant's motion. The State appeals.

To determine whether there was probable cause to issue the search warrant, we must look only at the information contained in the four corners of the application. State v. Isom (1982), 196 Mont. 330, 641 P.2d 417. The test for determining whether an informant's tip establishes probable cause for issuance of a search warrant is the "totality of the circumstances" test set forth in Illinois v. Gates (1983), 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527:

"[W]e conclude that it is wiser to abandon the 'two-pronged test' established by our decisions in Aguilar and Spinelli. In its place we reaffirm the...