State v. Zito

• Decision Date: 29 August 2006
• Docket Number: No. 05-202.,05-202.
• Parties: STATE of Montana, Plaintiff and Respondent, v. Len Ray ZITO, Defendant and Appellant.
• Court: Montana Supreme Court

Page 108

143 P.3d 108

2006 MT 211

333 Mont. 312

STATE of Montana, Plaintiff and Respondent, v. Len Ray ZITO, Defendant and Appellant.

No. 05-202.

Supreme Court of Montana.

Submitted on Briefs December 13, 2005.

Decided August 29, 2006.

For Appellant: Mathew M. Stevenson, Missoula, Montana.

For Respondent: Mike McGrath, Attorney General; Jim Wheelis, Assistant Attorney General, Helena, Montana, George Corn, County Attorney; William E. Fulbright, Deputy County Attorney, Hamilton, Montana.

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 Defendant Len Ray Zito appeals the order of the Twenty-First Judicial District Court, Ravalli County, denying his motion to suppress evidence seized under a search warrant, suppress statements made to law enforcement upon his arrest, and dismiss this case. We affirm.

¶ 2 On November 17, 2004, pursuant to a plea agreement, Zito pled guilty to several drug related felonies and a misdemeanor, reserving his right to appeal the denial of his motions to suppress and dismiss.

¶ 3 Zito moved to suppress all evidence obtained by virtue of a search of his property on October 23, 2003, pursuant to a search warrant issued the previous day. He also moved to suppress statements he made to law enforcement at the time of his arrest. The motion was heard, and on April 9, 2004, the District Court entered its findings of fact and conclusions of law and order denying Zito's motions.

¶ 4 Ravalli County Sheriff's Detective Jase Basnaw applied for and was granted a search warrant for Zito's property on October 22, 2003, the same day a confidential informant had reported seeing marijuana plants at Zito's residence. The warrant was issued by the Ravalli County Justice Court. On October 23, 2003, several members of the Ravalli County Sheriff's Office, including Detective Basnaw, and officers from the Montana State Division of Criminal Investigation executed the search warrant. The search resulted in the confiscation of approximately fifty marijuana plants located in an abandoned basement, under a canopy, and in several other places unobservable from the air. The marijuana plants were in the process of being harvested and dried. The search also produced paraphernalia related to the production and use of marijuana, as well as a number of guns. Zito was found hiding in a gully approximately two hours after the search commenced.

¶ 5 Upon consideration of the affidavit in support of the search warrant, the reviewing District Court found the facts supporting the warrant to be as follows:

(1) On September 18, 2003, a concerned citizen informed Detective Basnaw that Mr. Zito was growing marijuana at his place. This tip was not based on personal observation.

(2) On September 29, 2003, CI [Confidential Informant] met with Detective Basnaw and informed him that Mr. Zito currently had a grow operation at his place, under a yellow tarp in front of his residence and in a pump house. CI said that plants were budding and ready for harvest. CI, by virtue of the absence of a sworn statement attesting to CI's veracity, is not deemed a reliable informant. CI's tip was not based on CI's personal observation.

(3) On October 1, 2003, Detective Basnaw flew over the property and took photographs of planter boxes, several pots, and a yellow tarp in front of Mr. Zito's residence. The cultivation indicia were obscured from view on the ground by natural barriers and junk vehicles.

(4) On October 1, 2003, following the flight, Detective Basnaw met with CI and showed CI the photographs. CI confirmed the area in the photos where the marijuana was grown, identified the planter boxes as the site where marijuana was grown during the summer of 2002, gave the reason for the use of the tarp as provided by Mr. Zito's sons, and identified an unfinished, covered basement in the photos as the location for hanging the plants to dry. Except for identifying the planter boxes, CI's information was not based on personal observation.

(5) On October 4, 2003, CI informed Detective Basnaw that CI had been to Mr. Zito's residence, and although CI was not in a position to see the marijuana plants, CI smelled them.

(6) On October 22, 2003, CI informed Detective Basnaw that CI had been to Mr. Zito's residence and had seen approximately 30[,] four to five foot long marijuana plants hanging on the south wall of the unfinished basement.

(7) Mr. Zito has a prior drug-related criminal conviction.

(8) Viewing all these facts through the lens of his significant training and experience, Detective Basnaw concludes that Mr. Zito is growing marijuana.[¹]

¶ 6 We review a district court's denial of a motion to suppress to determine whether the court's findings of fact are clearly erroneous and whether its interpretation and application of the law are correct. State v. Meyer, 2004 MT 272, ¶ 11, 323 Mont. 173, ¶ 11, 99 P.3d 185, ¶ 11; State v. Martinez, 2003 MT 65, ¶ 19, 314 Mont. 434, ¶ 19, 67 P.3d 207, ¶ 19. Zito does not challenge the factual findings relevant to the search warrant, thus we address whether the District Court properly applied the law in concluding that the affidavit in support of the warrant was sufficient to establish probable cause.

¶ 7 We have 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, to evaluate whether probable cause supported the issuance of a warrant. State v. Barnaby, 2006 MT 203, ¶ 29, 333 Mont. 220, ¶ 29, ___ P.3d ___, ¶ 29, 2006 WL 2458810; State v. Reesman, 2000 MT 243, ¶ 24, 301 Mont. 408, ¶ 24, 10 P.3d 83, ¶ 24. Under the totality of the circumstances test, the issuing judicial officer must make a practical, common sense determination, given all the evidence contained in the application for a search warrant, whether a fair probability exists that contraband or evidence of a crime will be found in a particular place. Barnaby, ¶ 29; Reesman, ¶ 24; Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548.

¶ 8 Our function as a reviewing court is to ensure ultimately that the issuing judicial officer had a "substantial basis" to determine probable cause existed before issuing the search warrant. Barnaby, ¶ 30. However, it is critical in our review that a judicial officer's determination that probable cause exists be paid great deference and every reasonable inference possible be drawn to support that determination. Reesman, ¶ 19; Gates, 462 U.S. at 236, 103 S.Ct. at 2331, 76 L.Ed.2d at 547 ("magistrate's determination of probable cause should be paid great deference by reviewing courts.") (internal quotation omitted).

¶ 9 An application for a search warrant must state facts sufficient to show probable cause to issue a warrant. Barnaby, ¶ 30. A determination of probable cause does not require facts sufficient to make a showing of criminal activity; rather, the issuing judicial officer must only determine that there exists a probability of criminal activity. Barnaby, ¶ 30; State v. Rinehart (1993), 262 Mont. 204, 210, 864 P.2d 1219, 1222. Probable cause must be determined solely from the information contained within the search warrant application. Barnaby, ¶ 30; Rinehart, 262 Mont. at 211, 864 P.2d at 1223.

¶ 10 The affidavit in support of the warrant in this case stated the informant had told Detective Basnaw that he had been to Zito's property about eighteen days prior, and he had smelled marijuana plants there. Further, this same informant told Detective Basnaw that he had been on the subject property the same day the affidavit was presented, and had seen over thirty marijuana plants. The informant was not anonymous, and the information he provided was not hearsay. Thus, if the informant could be shown to be reliable, there was probable cause to issue the search warrant. Reesman, ¶ 31.

¶ 11 Detective Basnaw's affidavit in support of the warrant stated that the informant had a documented history with marijuana, and that Detective Basnaw knew from experience that the informant would recognize marijuana. The affidavit also detailed the relevant information provided by the informant as noted above in ¶¶ 5 and 10. However, the affidavit did not expressly state that the informant had provided reliable information in the past, was making a statement against his interest, or was acting as a concerned citizen. See Reesman, ¶¶ 32-35. Where such a statement is lacking, a confidential informant's information regarding criminal activity requires further corroboration in order to supply a judicial officer with a sufficient substantial basis for a probable cause determination. State v. St. Marks, 2002 MT 285, ¶ 25, 312 Mont. 468, ¶ 25, 59 P.3d 1113, ¶ 25.

¶ 12 The corroboration must reveal indicia of human conduct that becomes suspicious when viewed in conjunction with the incriminating information received from the informant. State v. Griggs, 2001 MT 211, ¶ 50, 306 Mont. 366, ¶ 50, 34 P.3d 101, ¶ 50. In order to reveal this indicia of suspicious conduct, officers may investigate and corroborate otherwise innocent and non-criminal activity with further observations and evidence of otherwise innocent and non-criminal activity. Griggs, ¶ 50. Here, the police flew over Zito's property and confirmed the informant's description of the suspect areas, including the yellow tarp and junk cars that obscured areas of the premises where the marijuana was said to be grown. The informant's statements describing planter boxes and pots, and their placement and location, were also confirmed.

¶ 13 The flyover corroborated the reliability of the informant's information in two ways. First, it showed that he knew, in detail, the layout of Zito's property, which confirmed that he had been there as he had told Detective Basnaw. Second, it provided confirmation of information that, although innocent by itself, was consistent with a marijuana grow operation, when considered in conjunction with the prior tip that such activity was taking place...