State v. Tropf, 12750

• Decision Date: 23 January 1975
• Docket Number: No. 12750,12750
• Citation: 166 Mont. 79,32 St.rep. 56,530 P.2d 1158
• Parties: The STATE of Montana, Plaintiff and Appellant, v. Duard TROPF, Defendant and Respondent.
• Court: Montana Supreme Court

Page 1158

530 P.2d 1158

166 Mont. 79

The STATE of Montana, Plaintiff and Appellant, v. Duard TROPF, Defendant and Respondent.

No. 12750.

Supreme Court of Montana.

Submitted Sept. 17, 1974.

Decided Jan. 23, 1975.

Robert L. Woodahl, Atty. Gen., Helena, Thomas A. Budewitz, Asst. Atty. Gen., appeared, Helena, J. Fred Bourdeau, County Atty., Great Falls, Norman L. Newhall, III, Deputy County Atty., argued, Great Falls, for plaintiff and appellant.

Ralph T. Randono, argued, Great Falls, for defendant and respondent.

DALY, Justice.

This is an appeal from an order of the district court, Cascade County, suppressing the state's evidence and refusing to allow the state to either amend or dismiss and refile the Information.

On October 5, 1973, a complaint and an affidavit for a search warrant, with duplicate originals, were prepared on standard forms of the county attorney's office. The forms are headed 'IN THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF CASCADE' and contain a signature line at the bottom of each form, under which is the designation 'DISTRICT JUDGE.'

On the day in question there were no district judges present at the courthouse. The complaint and affidavit were submitted to H. William Coder, police judge of the city of Great Falls, who, upon hearing sworn testimony in support of the complaint and affidavit, signed the search warrant in duplicate and certified the duplicate complaint and affidavit.

A search was then made of defendant Duard Tropf's house. In searching the premises police officers discovered numerous plastic bags containing marihuana residue, some marihuana seeds, and drug use paraphernalia. By following a path from the back door of the premises into the back yard, the officers found an old board covering a hole in the ground which contained a duffle bag, which in turn held approximately three pounds of marihuana.

Thereafter a return of the items seized upon execution of the search warrant was made of record before a district judge. At that time, the state maintains, one of the duplicate originals of the search warrant was left with the clerk of the district court. This is disputed and the records before this Court fail to reveal any such filing with the clerk. The other duplicate original of the search warrant and one duplicate original of the complaint and affidavit were retained by a detective of the Great Falls police department. The remaining duplicate original of the complaint and affidavit were not filed with the clerk of the court and are unaccounted for.

The state maintains the duplicate originals of the complaint and affidavit in possession of the Great Falls police detective were subsequently filed with the clerk of the district court. This is disputed by defendant and, again, the records before this Court do not reveal that these documents were filed.

On October 16, 1973, an Information containing two counts was filed in the district court.

'Count I: * * * possession certain dangerous drugs, to-wit: Marihuana in excess of 60 grams, in violation of Section 54-133, R.C.M.1947, as amended'.

Evidence in support of Count I was acquired by a search of defendant's premises conducted pursuant to the search warrant issued by H. William Coder, police Judge of the city of Great Falls.

'Count II: * * * on or about the 5th day of October, A.D. 1973, and before the filing of this Information, the said defendant then and there being, did then and there wilfully, wrongfully, unlawfully and feloniously prepare and process for sale certain dangerous drugs, to wit: Marihuana, in violation of Section 54-132, R.C.M.1947, as amended'. (Emphasis added).

Evidence in support of Count II was acquired (1) by a statement given by defendant's roommate to the county attorney that on October 2, 1973, he observed the defendant sell dangerous drugs to one Ron Paulson at defendant's apartment at 904 6th St. S.W., Great Falls; (2) from the sworn testimony of Ron Paulson given in a proceeding to declare him a juvenile delinquent which testimony confirmed the fact of such sale; and (3) from a thirteen page police department statement given by the same informant.

Defendant was arraigned October 18, 1973, and entered a plea of not guilty. Various motions were interposed by defendant and the matter set for trial on January 28, 1974, by order dated December 21, 1973. On January 8, 1974, defendant under section 95-1803(d), R.C.M.1947, gave notice of his defense of alibi and listed six witnesses.

On January 23, 1974, the state by consolidated motions moved for leave to amend Count II of the Information to charge:

'* * * on or about the 2nd day of October, 1973, * * * defendant * * * did * * * sell a certain dangerous drug, to wit: Hashish, to Ronald Paulson in violation of 54-132, R.C.M. 1947 as amended.'

The state alleged the proposed amendment was only in form and not substance and did not charge an additional or different offense and no rights of defendant were prejudiced. In the alternative, it asked dismissal of the Information pursuant to section 95-1706, R.C.M.1947, on the ground that a mistake was made in charging the proper offense and that the dismissal be without prejudice to file a new Information.

All motions pending before the court were briefed and the court heard oral argument January 24, 1974. The court then suppressed the evidence in support of Count I as illegally seized because the search warrant was fatally defective for these reasons: (1) The person signing the warrant was without lawful authority to issue a warrant out of the district court of the eighth judicial district in that he is not a district judge of that court. (2) The affidavit and complaint on which the warrant was issued was not retained by the judge as is required by section 95-706, R.C.M.1947.

The court further stated that the state's motion to amend Court II or in the alternative to dismiss and refile a new Information, constituted an amendment as to substance rather than as to form and was in violation of section 95-1505, R.C.M.1947; and, the affidavit for leave to file Count II did not support the factual allegations in Count II. The court denied the state's motions and dismissed Counts I and II.

The state argues that the term 'Judge' as defined in section 95-206, R.C.M.1947, together with section 95-704, R.C.M.1947, authorizes a police judge to issue search warrants.

Section 95-704, R.C.M.1947, states:

'Any judge may issue a search warrant * * *.'

Judge is defined in section 95-206, R.C.M.1947, as:

"Judge' means a person who is invested by law with the power to perform judicial functions and includes court, justice of the peace or police magistrate when a particular context so requires.' (Emphasis added).

This is a qualified definition to give judicial stature to our entire court system but is qualified so as not to be taken as conferring jurisdiction where none exists merely because other statutes use the term 'judge'.

It is well founded in Montana law that the police courts are courts of limited jurisdiction and such courts have only such authority as is expressly conferred upon them. State ex rel. Marquette v. Police Court, 86 Mont. 297, 283 P. 430; State ex rel, McIntire v. City Council of the City of Libby, 107 Mont. 216, 82 P.2d 587; City of Billings v. Herold, 130 Mont. 138, 296 P.2d 263; State ex rel, City of Libby v. Haswell, 147 Mont. 492, 414 P.2d 652. The subject matter jurisdiction of the police court of the city of Great Falls is defined by section 11-1602, R.C.M.1947 and Section 1-27-11 of the Municipal Code of the City of Great Falls.

Section 11-1602, R.C.M.1947, provides:

'Jurisdiction of police courts. The police court has concurrent jurisdiction with the justice of the peace of the following public offenses committed within the county:

'(1) Theft where the value of the stolen property does not exceed one hundred fifty dollars ($150).

'(2) Assault and battery, not charged to have been committed upon a public officer in the discharge of his official duty, or with intent to kill.

'(3) Breaches of the peace, riots, affrays, committing willful injury to property, and all misdemeanors punishable by fine not exceeding five hundred dollars ($500), or by imprisonment not exceeding six (6) months, or by both fine and imprisonment.

'(4) Proceedings respecting vagrants, lewd, or disorderly persons. Such offenses must be prosecuted in the name of the state of Montana.

'(6) Possession of beer or liquor by persons under the age of eighteen (18) years in violation of section 94-35-106.2 (94-5-610).

'(6) Selling, giving away or disposing of intoxicating liquor to minors in violation of section 94-(3)5-106 (94-5-609).

'The police court shall have no jurisdiction of any civil cause, except as otherwise provided by law.'

Section 1-27-11 of the Municipal Code of the City of Great Falls, provides:

'(A) Of all public offense committed within the City over which police courts are expressly granted the jurisdiction by state statute, including any future grants of such jurisdiction as may be enacted by the Montana State Legislature, prosecution for which must be done in the name of the State of Montana.

'(B) Of all proceedings for the violation of any laws or ordinances of the City, both civil and criminal, which must be prosecuted in the name of the City.' (Emphasis added).

Since police magistrates have never been given authority by the legislature to issue search warrants, the word 'Judge' used in section 95-704, R.C.M.1947, does not require the inclusion of a police magistrate as a person authorized to issue search warrants. Therefore, the search...