State v. O'Neill

• Citation: 208 Mont. 386,41 St.Rep. 420,679 P.2d 760
• Decision Date: 24 April 1984
• Docket Number: No. 83-421,83-421
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Appellant, v. Patrick Leo O'NEILL, Defendant and Respondent.

Page 760

679 P.2d 760

208 Mont. 386

STATE of Montana, Plaintiff and Appellant, v. Patrick Leo O'NEILL, Defendant and Respondent.

No. 83-421.

Supreme Court of Montana.

Submitted on Briefs Nov. 23, 1983.

Decided March 15, 1984.

Rehearing Denied April 24, 1984.

Marc F. Racicot, Sp. Deputy County Atty. for Gallatin County, Helena, for plaintiff and appellant.

Moses Law Firm, Michael G. Moses, Billings, Michael Stepanian, San Francisco, Cal., for defendant and respondent.

GULBRANDSON, Justice.

This case comes on appeal from an order of the District Court, Eighteenth Judicial District, Gallatin County, granting defendant's motion to suppress evidence seized pursuant to a search warrant. We reverse the decision of the District Court.

In March of 1982, Federal Bureau of Investigation Special Agent Bernard F. Hubley, assigned to the resident agency in Bozeman, Montana, initiated an investigation regarding the violation of state and federal narcotics laws by defendant O'Neill and his associates. During the course of his investigation Agent Hubley accumulated certain pieces of information which he determined warranted a search of O'Neill's residence. Accordingly, Agent Hubley obtained a search warrant based upon the following information contained in his affidavit of probable cause in support of the search warrant:

Agent Hubley learned that in 1975 O'Neill had pled guilty in California to charges arising from the transportation and possession of 640 pounds of marijuana. On September 28, 1982, Agent Hubley also learned from a Bozeman police detective that in 1977 O'Neill had delivered some laundry to a Bozeman laundromat for cleaning and the laundry contained 347 grams of marijuana. In addition to the information concerning the marijuana, Agent Hubley learned from another Bozeman police officer that on November 19, 1978, the detective had interviewed an informant named R.S. who had stated he had obtained cocaine from O'Neill in November of 1978 and that O'Neill had had a large quantity of cocaine at his residence.

On June 26, 1982, a confidential informant, herein referred to as Informant No. 1, told Agent Hubley that a cocaine party had been held at O'Neill's residence located in Bridger Canyon on the evening of June 25, 1982. Informant No. 1 told Hubley that the cocaine party had been in celebration of O'Neill's selling his restaurant in Bozeman and that Informant No. 1 had personally observed O'Neill distribute cocaine to a number of individuals present at the party. Informant No. 1 also identified a number of individuals present at the party while O'Neill distributed the cocaine. Hubley stated that Informant No. 1 had provided reliable information in the past; specifically, that he had identified a street dealer of cocaine and made purchases under Hubley's direction and supervision on two separate occasions. Hubley also indicated that one of the two cocaine sources had distributed to other individuals in the past. Hubley also indicated that individuals Informant No. 1 identified as associates of O'Neill were, in fact, associating with him.

In May of 1982 a second confidential informant, herein referred to as Informant No. 2, told Hubley that he was personally acquainted with O'Neill and that O'Neill was associating with an individual named "Cody Madden" who was living in a rental house in Big Sky, Montana. Through independent investigation Hubley determined "Cody Madden's" residence and telephone number. Further investigation revealed to Hubley that a number of telephone calls were made from "Cody Madden's" house to a telephone in the name of L.J. Zimmerman located at 15325 Bridger Canyon Road. Informant No. 1 told Hubley that he had personally observed the telephone number in O'Neill's residence and that this was the same number listed under the name of L.J. Zimmerman. Hubley had observed mailboxes near O'Neill's residence bearing addresses in the 15000's.

Through contact with the Baltimore division of the F.B.I., Hubley learned that "Cody Madden" was an alias used by James Patrick Fitzgibbons a fugitive from justice having been indicted by federal authorities on May 26, 1982, for conspiracy to distribute cocaine and distribution of cocaine. A cash bond of $500,000 had been requested for Fitzgibbons. During the six months prior to the date the search warrant was issued, Informant No. 1 and Informant No. 2 identified a photograph of Fitzgibbons as being the individual they knew as "Cody Madden."

Two days prior to the search of O'Neill's residence, Informant No. 1 told Hubley that O'Neill and his associates had made comments to Informant No. 1 to the effect that "Cody Madden" was coming to Bozeman. On October 16, 1982, Informant No. 1 told Hubley he had seen "Cody Madden" at O'Neill's residence. Informant No. 1 also stated that he had smelled marijuana at the residence at that time.

Hubley used the foregoing information in his affidavit for probable cause and request on October 16, 1982, for a search warrant for O'Neill's residence.

Hubley was unsuccessful in locating either a federal magistrate or a state district court judge to sign the application for search warrant. On the evening of October 16, 1982, Hubley made contact with Justice of the Peace Norma Schmall who read the application and issued the search warrant. The search warrant stated that there was probable cause to search for Fitzgibbons at O'Neill's residence in addition to "cocaine, marijuana, and ... instruments used in administering the narcotics including, roach clips, papers, cocaine spoons, mirrors ... as well as containers ..."

During the execution of the search warrant, items other than those listed in the warrant were seized, including numerous jars of psilocybin, a cocaine grinder, smoking devices, drug packaging materials, vials, a vial loader with a screen, a hypodermic needle, a scale and drug records.

On December 20, 1982, O'Neill moved to suppress all evidence seized in the October 17, 1982 search of his residence. In making his motion, O'Neill argued that (1) the search warrant was issued without probable cause; (2) there was no authority to issue the search warrant for the purpose of making an arrest; (3) the information in the search warrant was stale; and (4) O'Neill's right to privacy had been violated. In addition, O'Neill argued that the drug records seized should be suppressed because they were not within the scope of the "plain view" doctrine.

A suppression hearing was held on June 9, 1983 and on July 15, 1983 the District Court ordered that all evidence seized in the search of O'Neill's residence be suppressed. The District Court held that the search for marijuana and cocaine was not based upon probable cause. Specifically, the District Court determined the dates on which the search warrant alleged O'Neill possessed and distributed cocaine were not close enough in time to the day on which the search occurred. In addition, the District Court held that Informant No. 1's statement that he smelled marijuana at O'Neill's residence on the same day the search warrant was executed was not enough to establish probable cause. Finally, the District Court ruled that there was probable cause to search for Fitzgibbons but once it had been determined that Fitzgibbons was not on the premises the search should have ended and any evidence seized after that determination was made would be suppressed.

Initially, the State argues that the District Court erred in holding that the search warrant was not based upon probable cause.

The probable cause requirement for the issuance of a search warrant is found in the Fourth Amendment to the United States Constitution: "... no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized," and in Article II, Section 11 of the Montana State Constitution: "... No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing." When a search warrant has been issued, the determination of probable cause must be made solely from the information given to the impartial magistrate and from the four corners of the search warrant application. State v. Isom (1982), 196 Mont. 330, 641 P.2d 417; Thomson v. Onstad (1979), 182 Mont. 119, 594 P.2d 1137. An affidavit supporting a search warrant is to be interpreted by the magistrate and examined by the reviewing court in a common sense, realistic fashion and without a grudging or negative attitude that will tend to discourage police officers from seeking warrants. United States v. Ventresca (1965), 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684. Ventresca also requires reviewing courts to avoid hypertechnical interpretations of warrant applications and, in doubtful or marginal cases, to resolve the issue with the preference for warrants in mind. 380 U.S. at 108, 85 S.Ct. at 745.

The issuing magistrate must only determine that there is a probability, not a prima facie showing of criminal activity. Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142. The application for search warrant in the present case contained information that would have indicated to the magistrate that there was a fair probability that either contraband or Fitzgibbons were in a particular place. The affidavit stated that in 1975 the respondent had allegedly been arrested for possession of 640 pounds of marijuana. In 1977, 347 grams of marijuana had allegedly been found in respondent's laundry. In 1978, an informant had advised law enforcement officials that respondent possessed a large quantity of cocaine and had distributed it to the informant. In January and February of 1982, the respondent had been associating with James Patrick Fitzgibbons who became, in May 1982, a fugitive from justice,...