State v. Thomson

• Decision Date: 20 January 1976
• Docket Number: No. 13050,13050
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Douglas C. THOMSON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1070

545 P.2d 1070

169 Mont. 158

The STATE of Montana, Plaintiff and Respondent, v. Douglas C. THOMSON, Defendant and Appellant.

No. 13050.

Supreme Court of Montana.

Submitted Dec. 8, 1975.

Decided Jan. 20, 1976.

Murphy, Robinson, Heckathorn & Philips, Kalispell, Douglas D. Dasinger (argued), Kalispell, for defendant and appellant.

Robert L. Woodahl, Atty. Gen., Helena, Thomas A. Budewitz, Asst. Atty. Gen (argued), Helena, Jack Yardley, County Atty. (argued), Livingston, David DePuy, Deputy County Atty. (appeared), Livingston, for plaintiff and respondent.

CASTLES, Justice.

This is an appeal from a judgment of conviction entered on a jury verdict of guilty. Defendant Douglas C. Thomson was convicted on two counts, possession and sale of dangerous drugs in Park County, the Honorable Robert H. Wilson, presiding.

Prior to trial, defendant moved to suppress any evidence obtained as a result of a search warrant. The motion, after hearing, was denied. The appeal is based on the denial of the motion to suppress, and on two jury selection procedural matters.

One Paul Hallett was a prisoner in the Livingston city jail, having been arrested on a fraudulent check charge. On the evening of November 16, 1974, Hallett asked to see an officer and asked if the officer would like certain information relating to drug sales by defendant. Hallett was later interviewed by the county attorney.

On the basis of the information received the county attorney prepared an application for a search warrant. In the early morning hours of November 17, 1974, the application was presented to District Judge Jack D. Shanstrom in his home. Two polic officers, the county attorney, and Hallett met with Judge Shanstrom. After examining the application, Judge Shanstrom placed Officer Warren and the informant Hallett under oath and examined each of them for about twenty minutes. The examination included discussions of Hallett's information about defendant and one Adams, who was then under a deferred imposition of sentence from Billings for drugs. The Judge was familiar with both defendant and Adams and examined the informer Hallett extensivel in detail on his knowledge of both subjects, the drugs, and the location of the drugs. Based on the application and on his independent examination of the informant Hallett as to both his own involvement and his knowledge, Judge Shanstrom issued the search warrant.

Prior to trial at a hearing on the motion to suppress Judge Robert H. Wilson presided. Judge Shanstrom testified and was corss-examined. Judge Wilson denied the motion to suppress. Judge Wilson tried the case with a jury.

Defendant's basic issue on appeal is whether the search warrant was issued on probable cause.

Defendant approaches his argument-that there was not probable cause shown-in a sort of two pronged manner. First, he suggests that because Judge Shanstrom questioned the informant about features within the Judge's own knowledge, such as Adam's prior conviction and defendant's reputation, that he was not a 'detached magistrate'. We need not dwell long on this. It is clear from Judge Shanstrom's testimony that he was examining the informant to determine the reliability of his information. The informant was, in a sense, an itinerant unknown who was being held in jail on another charge, but he was a named person.

Judge Shanstrom was the neutral member of the judicial branch of government whose duty it is to determine whether there was probable cause for the issuance of a search warrant. The probable cause for the issuance of a warrant was stated in the application but the source of that information was a named informant whose reliability had not been previously tested. Judge Shanstrom's examination of that informant on information known to the Judge made a reasonably reliable test of that information necessary to support reliability and thus probable cause. Defendant cites United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752, and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, for the proposition that a 'neutral and detached' magistrate is required. Neither case is applicable here. Both cases involved attorneys general, one without judicial approval; the other the attorney general acting as a justice of peace issuing his own search warrant, in effect.

The second prong of the defendant's attack is that the informant's reliability was not extablished because he was unknown as to reliability. That is why Judge Shanstrom examined the informant-an independant means of establishing reliability. But, defendant argues that the application must in and of itself establish both (a) the reliability of the informant and (b) the underlying circumstance giving rise to the probable cause.

In State ex rel. Glantz, 154 Mont. 132, 137, 461 P.2d 193, 196, this Court said:

'* * * whenever an informer's statements are relied upon as probable cause, there must be a demonstration of the reliability or credibility of the informer.'

See: State v. Paschke, 165 Mont. 231, 527 P.2d 569; State v. Thorsness, 165 Mont. 321, 528 P.2d 692.

Ordinarily, the reliability of the informer has been shown by the informer's reputation as an upstanding citizen or by past performance; and in either event these facts can be stated in the application. But here, as previously set out, these facts did not exist so the issuing magistrate tested that reliability in a manner, under oath, designed to independently satisfy the magistrate of the accuracy of the information. We hold this to satisfy the showing of probable cause necessary for the issuance of the warrant.

On oral argument, counsel cited State ex rel. Townsend v. District Court, Mont., 543 P.2d 193, for the proposition that the affidavit for search warrant cannot be supplemented by oral statements to the magistrate. That is correct and here we point out that the affidavit was wholly sufficient to establish probable cause, but being based on hearsay from an informant, the reliability of that informant may be checked by the magistrate. It is no doubt desirable to have a written record of that examination, but the exigencies of the nighttime situation did not permit such. The Judge testified and was subject to cross-examination. His only concern was as to the reliability of the hearsay, and he so testified. Thus, here oral testimony is not supplementing probable cause-it is merely providing a direct test of reliability by a conscientious magistrate. The cases on unnamed informants are not in point.

The two procedural matters in jury selection complained of arose in this manner:

Prior to the exercise of peremptory challenges, outside the presence of the jury, counsel for defendant challenged for cause the seating of a prospective juror, J. E. Gaab, on the grounds that he was an employee of the State Fish and Game Department and had been in law enforcement work. The challenge was denied. Mr. Gaab did not sit as a trial juror, but defendant claims error because he was obligated to use a peremptory challenge.

In defendant's brief on appeal it is stated that 'Prospective juror, J. E. Gaab, admittedly was a law enforcement officer'. In point of fact juror Gaab was an officer of the Montana Fish and Game department.

Section 95-1909(d)(1), R.C.M.1947, states that 'Each party may challenge jurors for cause, and each challenge must be tried by the court'. Subsection (2) lists those reasons for which a challenge for cause may be taken. That subsection also provides that a challenge for cause may be taken 'for any other reason which the court determines'. Of the reasons listed in section 95-1909 only the final one would provide a reason for challenging a law enforcement officer for cause. Section 95-1909(d)(2)(x) states:

'For the existence of a state of mind on the part of the juror in reference to the case, or to either of the parties, which will prevent him from acting with entire impartiality and without prejudice to the...