                                          No. 05-202

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2006 MT 211

                                               _______________________________________

STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

LEN RAY ZITO,

              Defendant and Appellant.

                                                ______________________________________

APPEAL FROM:         District Court of the Twenty-First Judicial District,
                     In and for the County of Ravalli, Cause No. DC 03-173
                     The Honorable Jeffrey H. Langton, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Mathew M. Stevenson, Attorney at Law, Missoula, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Jim Wheelis, Assistant Attorney
                     General, Helena, Montana

                     George Corn, County Attorney; William E. Fulbright, Deputy County
                     Attorney, Hamilton, Montana


                                                  ____________________________________

                                                        Submitted on Briefs: December 13, 2005

                                                                  Decided: August 29, 2006
Filed:

                       ______________________________________
                                        Clerk
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


                                            2
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.


                                             3
       (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; 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.

1
 The remainder of the search warrant application was excised by the reviewing District
Court.

                                             4
¶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.


                                             5
¶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.




                                            6
¶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 there and the subsequent tip that there were over thirty

marijuana plants located on Zito’s property.

¶14    The fact that the confidential informant’s tip that he had seen marijuana on Zito’s

property came after the flyover does not negate the corroborative value of this

information.   Information that over thirty marijuana plants were seen drying in the

basement was entirely consistent with the earlier report made before the flyover that the

plants were “budding and ready for harvest.” Further, the fact that information in the

earlier report was not based on personal observation, does not preclude a finding of

reliability through independent corroboration. See State v. Gray, 2001 MT 250, ¶¶ 4, 21,

307 Mont. 124, ¶¶ 4, 21, 38 P.3d 775, ¶¶ 4, 21 (innocent facts were sufficient to

corroborate information from a confidential informant who had not personally observed

any criminal activity).

¶15    Further, Detective Basnaw stated in his affidavit that he knew from training and

experience that the strategic placement of the junk vehicles and tarps was indicative of

secluding an area for illegal activity. A district court may consider the judgment and

experience of a law enforcement officer in its determination of the significance of

innocent facts and their consistency with the reported criminal activity. Gray, ¶ 32


                                               7
(citing Gates, 462 U.S. at 231-232); see also St. Marks, ¶ 36 (“We conclude we should

lend credence to [investigating officer’s] judgment. His experience and training provided

a reasonable basis for his conclusions concerning [defendant’s] behavior.”).

¶16   Another routine piece of information indicating police corroboration is criminal

background checks. Reesman, ¶ 45. Law enforcement investigated and found that Zito

had a prior drug-related criminal conviction. This court has held that one’s criminal

history is “one of the many factors to be considered under the totality of the

circumstances test.” State v. Johnson (1995), 271 Mont. 385, 390, 897 P.2d 1073, 1076-

1077 (quoting State v. Hook (1992), 255 Mont. 2, 6, 839 P.2d 1274, 1277); State v.

Morse, 2006 MT 54, ¶ 18, 331 Mont. 300, ¶ 18, 132 P.3d 528, ¶ 18; State v. Anderson,

1999 MT 60, ¶¶ 12-14, 293 Mont. 490, ¶¶ 12-14, 977 P.2d 983, ¶¶ 12-14; see also Gray,

¶¶ 20-21 (criminal history of accomplice, involving dangerous drugs, supported

corroboration and probable cause).

¶17   Finally, at least one concerned citizen had informed Detective Basnaw that Zito

was growing marijuana, albeit such information was not based on personal observation.

While this tip from a concerned citizen would not be adequate to support probable cause

without further investigation, it still had some probative value in determining probable

cause, under the totality of the circumstances test. St. Marks, ¶ 41; see also State v.

Holstine (1993), 260 Mont. 310, 315, 860 P.2d 110, 113 (“Factors which are of little

probative value alone, however, when taken together under the Gates ‘totality of the

circumstances’ test, provide the basis for a determination of substantial evidence to

conclude probable cause existed to issue the search warrant.”).


                                            8
¶18    The facts garnered from the flyover are indicia of human conduct that legitimately

became suspicious to the issuing judicial officer when considered along with the personal

observations of the informant, the drug-related criminal history of the property’s

occupant, the tip from a concerned citizen, and the opinion of a detective with substantial

experience and training in dangerous drug related activities. See Gray, ¶ 21 (innocent

facts that defendant’s home had four new air vents, which based on detective’s

experience were required for a grow operation; his utility records evidenced a surge in

power usage; his alleged accomplice had a criminal history; and his brother, a known

drug user, frequented the residence, were sufficient to corroborate information from a

confidential informant who had not personally observed any criminal activity); St. Marks,

¶¶ 34-37 (“independent corroboration of [defendant’s] motel room number, together with

his method of payment [cash] and the fact that he had a local address, added to [his]

suspicious character . . . when taken as a whole with the . . . three anonymous phone calls

and [alleged partner’s] arrest and possession of . . . cocaine.”); see also Morse, ¶ 17

(innocent fact of possessing an empty digital scale box, considered in the context of the

search warrant, sufficiently corroborated information from anonymous informants that

defendant was selling drugs); State v. Palmer, 2003 MT 129, ¶¶ 21-23, 316 Mont. 46, ¶¶

21-23, 68 P.3d 809, ¶¶ 21-23 (video surveillance revealed no actual criminal activity, but

when coupled with training and experience of narcotics officer, sufficiently corroborated

incriminating information received from informant); Hauge v. District Court, 2001 MT

255, ¶ 25, 307 Mont. 195, ¶ 25, 36 P.3d 947, ¶ 25 (“Officer . . . sufficiently corroborated

the CI’s information by verifying the identities of the occupants of the trailers and the


                                            9
ownership of the vehicles; . . . by personally observing the mobile homes on three

separate occasions and finding the traffic patterns to be just as the CI described; and by

contacting a neighbor who had previously complained of drug activity and heavy traffic

in the area and confirming that the traffic patterns still continued.”). 2

¶19    Considering the totality of the circumstances, we conclude that the District Court

did not err in denying Zito’s motion to suppress the evidence secured by execution of the

search warrant.

¶20    We next consider Zito’s argument that all statements he made to law enforcement

must be suppressed pursuant to § 46-6-107, MCA, and Miranda v. Arizona (1966), 384

U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, which require that before being questioned, a

person in custody must be advised that his statements may be used against him and that

he has the right to consult with an attorney.

¶21    Zito was not questioned by the first deputy who took him into custody or any other

law enforcement officer when he was first apprehended. Then, moments after Zito had

been taken into physical custody, Detective Basnaw identified himself to Zito and told

him that the sheriff’s office was executing a search warrant for a “marijuana grow


2
 The present case is unlike Griggs, where the “innocent facts” corroborated by law
enforcement were totally unrelated to the suspected criminal activity. In Griggs, the
corroboration of the defendant’s address, the fact that he used to be in the military, he
drove a Ford truck, and that his trailer home had new trim, failed “to supply the
magistrate with any indicia of human conduct even remotely associated with the criminal
activity alleged by the anonymous informant–that [defendant] was cultivating psilocybin
mushrooms in his private residence for the purpose of distribution in some manner.”
Griggs, ¶¶ 7, 51. As discussed above, the corroborated facts relating to Zito were clearly
pertinent to the harvesting of marijuana, and confirmed as such by an experienced
narcotics detective.

                                                10
operation.” Zito responded with the gratuitous statement that he had a “medical grow.”

Detective Basnaw did not question Zito about this statement at that time, but only asked

Zito if he had any weapons on his person. Zito responded that he had a back injury. He

was then escorted to a police vehicle were he was read his Miranda rights and questioned

by Detective Basnaw, who recorded the conversation. Zito contends that because his

statement regarding the medical grow was made while he was in custody and prior to

being Mirandized, the statement could not later be used to elicit further statements, after

he had been given his rights. 3

¶22    The Miranda warnings are not required to be given by law enforcement unless one

is subject to a custodial interrogation. State v. Reavley, 2003 MT 298, ¶ 18, 318 Mont.

150, ¶ 18, 79 P.3d 270, ¶ 18; § 46-6-107, MCA. A custodial interrogation is defined as,


3
  The relevant portion of the taped interview, in which Zito claims Basnaw elicited
further information in violation of Miranda, immediately followed his Miranda warning,
and reads as follows:

       Detective Basnaw: . . . Um, basically y [sic], you’re aware of why we’re
                         here?

       Len Zito:             Yep.

       Detective Basnaw: And we kinda’ talked there.

       Len Zito:             Yeah.

       Detective Basnaw: Uh, when I mentioned it to you you did say that you do
                         have a medical grow uh, for your, yourself and you
                         have some injuries?

       Len Zito:             Yeah.




                                            11
“questioning initiated by law enforcement officers after a person has been taken into

custody or otherwise deprived of his freedom of action in any significant way[.]”

Reavley, ¶ 18 (quoting Miranda, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706).

There is no dispute that Zito was in custody at the time he made the statement to

Detective Basnaw that he had a “medical grow.” However, the record is clear that Zito

was not questioned by any law enforcement officer, or otherwise coerced or induced to

make the statement in question. Since there was no interrogation, the statement does not

fall under the auspices of Miranda. See State v. Thompson (1989), 237 Mont. 384, 387,

773 P.2d 722, 724; State v. DePue (1989), 237 Mont. 428, 430-432, 774 P.2d 386, 388-

389. Because the initial statement was not elicited in violation of Zito’s constitutional

rights, we need not consider the argument that it somehow tainted subsequent statements.

Thus, the District Court did not err in denying Zito’s motion to suppress his statements.

¶23    Affirmed.

                                                 /S/ JOHN WARNER

We Concur:

/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JIM RICE




                                            12
13
Justice James C. Nelson specially concurs.

¶24    I concur in the Court’s opinion, with the following caveats.

¶25    First, the Court correctly articulates our function as a reviewing court: “to ensure

ultimately that the issuing judicial officer had a ‘substantial basis’ to determine probable

cause existed before issuing the search warrant.” ¶ 8; see also Illinois v. Gates (1983),

462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332 (“[T]he duty of a reviewing court is simply

to ensure that the magistrate had a ‘substantial basis for . . . conclud[ing]’ that probable

cause existed.” (ellipsis and second alteration in original)). However, the Court goes on

to state, without qualification, that “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.” ¶ 8 (citing State v. Reesman,

2000 MT 243, ¶ 19, 301 Mont. 408, ¶ 19, 10 P.3d 83, ¶ 19, and Gates, 462 U.S. at 236,

103 S.Ct. at 2331). While I do not dispute this statement as a general standard guiding

our review, it is essential to clarify that such deference is not boundless:

       It is clear, first, that the deference accorded to a magistrate’s finding of
       probable cause does not preclude inquiry into the knowing or reckless
       falsity of the affidavit on which that determination was based. Second, the
       courts must also insist that the magistrate purport to “perform his ‘neutral
       and detached’ function and not serve merely as a rubber stamp for the
       police.” A magistrate failing to “manifest that neutrality and detachment
       demanded of a judicial officer when presented with a warrant application”
       and who acts instead as “an adjunct law enforcement officer” cannot
       provide valid authorization for an otherwise unconstitutional search.

              Third, reviewing courts will not defer to a warrant based on an
       affidavit that does not “provide the magistrate with a substantial basis for
       determining the existence of probable cause.” “Sufficient information must
       be presented to the magistrate to allow that official to determine probable
       cause; his action cannot be a mere ratification of the bare conclusions of


                                              14
      others.” Even if the warrant application was supported by more than a
      “bare bones” affidavit, a reviewing court may properly conclude that,
      notwithstanding the deference that magistrates deserve, the warrant was
      invalid because the magistrate’s probable-cause determination reflected an
      improper analysis of the totality of the circumstances, or because the form
      of the warrant was improper in some respect.

United States v. Leon (1984), 468 U.S. 897, 914-15, 104 S.Ct. 3405, 3416-17 (citations

and footnotes omitted).

¶26   Thus, we must review—and not simply defer to—the judicial officer’s

determination of probable cause.     In the case at hand, we must determine whether

Detective Basnaw provided the Ravalli County Justice Court with sufficient information

to allow the reviewing judicial officer to determine probable cause and whether the

judicial officer’s probable-cause determination reflected a proper analysis of the totality

of the circumstances.

¶27   With these principles in mind, the application for search warrant at issue here is

not a model of clarity.    As demonstrated by the District Court’s distillation of the

numerous statements in Detective Basnaw’s application to a few salient probable cause

facts, the application contains entirely too much irrelevant “filler,” not to mention the

copious conclusory, speculative, and unsupported assertions.

¶28   Nevertheless, the application involves a much closer call than did the search

warrant application that this Court recently approved in State v. Barnaby, 2006 MT 203,

333 Mont. 220, ____ P.3d ____, see Barnaby, ¶¶ 72-191 (Nelson, J., dissenting); and at

least here—unlike in Barnaby—there was a reasonable attempt to apply the framework

set forth in Reesman. Viewing Detective Basnaw’s application under the totality-of-the-



                                            15
circumstances approach, I agree with the Court that the District Court properly

interpreted and applied the law in concluding that the reviewing judicial officer had a

substantial basis for determining that probable cause existed. See Reesman, ¶ 18 (“[T]he

standard of review of a district court’s denial of a motion to suppress is whether the

court’s interpretation and application of the law is correct.” (citing State v. Hubbel

(1997), 286 Mont. 200, 207, 951 P.2d 971, 975)). Accordingly, the District Court did not

err in denying Zito’s motion to suppress.

¶29    That said, Zito’s having “a prior drug-related criminal conviction” five years

earlier 1 is, in my view, of negligible value in assessing probable cause to issue a warrant

to search his property. See State v. Tackitt, 2003 MT 81, ¶ 41, 315 Mont. 59, ¶ 41, 67

P.3d 295, ¶ 41. I therefore do not agree with the Court’s reliance on this information in

¶ 16. I also do not agree with the Court’s suggestion in ¶ 11 that an applicant’s bare

assertion that he “kn[ows] from experience that [an] informant would recognize

marijuana” (by sight? by smell?) is a sufficient basis on which to credit that informant’s

identification of something observed or smelled as marijuana.            Some background

information substantiating the applicant’s knowledge of the informant’s ability should be

included. As it turns out, Detective Basnaw did include such background information,

which the Court oddly has omitted from its Opinion: “CI . . . admits to having used

marijuana in the past.”



       1
         Detective Basnaw discloses in the application, dated October 22, 2003, that “Zito’s
criminal history shows that he was arrested in September of 1997 and eventually convicted for
criminal possession of dangerous drug paraphernalia.”


                                             16
¶30    Lastly, for the reasons set forth at length in my dissent in Barnaby, see Barnaby,

¶¶ 72-191 (Nelson, J., dissenting), I cannot join any part of today’s Opinion that relies on

that case. I am satisfied that the Reesman standards—or whatever is left of them—were

met here. For this reason only, and with the foregoing caveats, I concur.



                                                                /S/ JAMES C. NELSON




Chief Justice Gray, specially concurring.


¶31    I join in the substance of Justice Nelson’s special concurrence insofar as it relates

solely to this case. I do not join in his references to Barnaby or his views on that case.




                                                         /S/ KARLA M. GRAY




                                             17
