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                                                               No. 99-403

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                            2000 MT 107N



                                                     STATE OF MONTANA,

                                                     Plaintiff and Respondent,

                                                                      v.

                                                           JOEY R. DEEG,

                                                     Defendant and Appellant.



                         APPEAL FROM: District Court of the Thirteenth Judicial District,

                                                In and for the County of Carbon,

                                         Honorable G. Todd Baugh, Judge Presiding

                                                    COUNSEL OF RECORD:

                                                             For Appellant:

                                  Karl Knuchel, Attorney at Law, Livingston, Montana

                                                            For Respondent:

                         Honorable Joseph P. Mazurek, Attorney General; C. Mark Fowler,

                                       Assistant Attorney General, Helena, Montana

                                 A. W. Kendall, County Attorney, Red Lodge, Montana


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                                              Submitted on Briefs: March 16, 2000

                                                       Decided: April 27, 2000

                                                                    Filed:

                                    __________________________________________

                                                                    Clerk



Chief Justice J. A. Turnage delivered the Opinion of the Court.

1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent. It shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 This is an appeal from the partial denial by the District Court of the Thirteenth Judicial
District, Carbon County, of Joey R. Deeg's motion to suppress evidence. The court refused
to suppress observations and videotape of Deeg's starving and injured mare and colt taken
from a knoll overlooking his grassless pasture. After the court ruled on his motion, Deeg
pled guilty to thirty-five misdemeanor cruelty to animals charges, reserving the right to
appeal the ruling on his motion to suppress. We affirm.

¶3 The dispositive issues are whether sufficient lawfully gathered evidence supported the
probable cause finding for the search warrant and whether the warrant was specific
enough.

¶4 In State v. Bullock (1995), 272 Mont. 361, 901 P.2d 61, we expanded the zone of
privacy previously recognized in Montana, concluding that a person may have an
expectation of privacy in an area of land beyond the curtilage immediately surrounding his
or her home. When that expectation is evidenced by fencing, "no trespassing" signs, or
some other means indicating unmistakably that entry is not permitted, entry by law
enforcement officers requires permission or a warrant. Bullock, 272 Mont. at 384, 901

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P.2d at 75-76. We recognized, however, that the warrant requirement does not apply to
observations of private land from public property. Bullock, 272 Mont. at 384, 901 P.2d at
76.

¶5 Deeg points out that in this case, the affidavit in support of the application for a search
warrant did not recite that the officer was on public ground when he made his
observations. Deeg asserts that it is impossible to tell from the affidavit what evidence was
obtained on or off his property. However, he has identified nothing in Bullock or any other
authority which imposes a requirement that an affidavit in support of an application for a
search warrant must state that observations upon which the affidavit is based were made
from public land.

¶6 The District Court found clear and convincing evidence that the deputies "were not on
defendant's property when they were on the knoll, hillock, or vantage point west of
defendant's boundary. . . . Accordingly, the evidence gathered from there is admissible."
Deeg disagrees, asserting that under Bullock, the District Court should have suppressed all
of the offered evidence against him because "[t]he testimony at the hearing was clear that
the Officers were on Deeg's property when they made their videotape and initial
observations."

¶7 Deeg relies heavily on evidence of the number of fences between the deputies and the
mare and colt when the deputies made their initial observations. He asserts that if, as the
officers testified, there was only one fence between them and the pasture in which they
observed the mare and colt, then they must have been on his land.

¶8 Contrary to Deeg's assertion, though, the testimony at the hearing was anything but
clear that the officers were on his property when they made their initial videotape and
observations from the knoll. One of the deputies testified that only after Deeg arrived at
his pasture and yelled at them to "come down here" did they pass through a gate in a fence
with "no trespassing" signs. The other deputy testified that they did not cross Deeg land on
their way to the knoll from which he first videotaped the Deeg Ranch, and that he knew
this because he was familiar with the area, having worked there before. He marked on a
topographical map the place from which they had observed the horses, and that map was
entered as an exhibit. After listening to the two officers' testimony, a federal Bureau of
Land Management (BLM) agent familiar with the area testified that it was his opinion that
the deputies were on BLM land when they were on the knoll. Even Deeg's expert land
surveyor witness acknowledged that Deeg's pasture could be observed from the knoll on


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BLM land.

¶9 Because we hold that sufficient evidence supports the finding that the knoll from which
the mare and colt were first observed was not on Deeg's property, we need not consider
the alternative argument that Deeg consented to the search by inviting the deputies onto
his property. For the same reason, we need not consider the alternative arguments that
there is a good faith exception to the search and seizure rule against trespass to obtain
evidence and that the deputies believed in good faith that they were not on Deeg's
property.

¶10 We next consider whether, after the District Court suppressed evidence gathered while
the officers were on Deeg's property, the affidavit in support of the application for a search
warrant contained sufficient information to provide probable cause to issue a warrant. The
officers' testimony at the District Court hearing supports a conclusion that the reference in
the affidavit to "approximately 100 head of horses, several of which appeared to be
starving" relates to observations made on Deeg's property and must therefore be excised.
The appropriate standard of review of a probable cause determination after information
has been excised from the supporting affidavit was clarified in State v. Kuneff, 1998 MT
287, ¶ 19, 291 Mont. 474, ¶ 19, 970 P.2d 556, ¶ 19: the reviewing court must conduct a de
novo review of the remaining information in the affidavit, to determine whether probable
cause supported the issuance of a search warrant.

¶11 The affidavit states that the deputies had been told about, and had then observed for
themselves, a mare and a new foal in severe distress at Deeg's place. The affiant deputy
stated his belief that both horses would likely die as a result of maltreatment. The affidavit
says that both deputies had for many years raised and cared for horses and that based on
that experience it was the affiant's opinion that Deeg had without justification severely
mistreated his horses by failing to provide them with proper food or appropriate medical
care. We conclude that the above information provided the justice of the peace with
probable cause to issue a search warrant.

¶12 Deeg also argues that the warrant issued by the Carbon County Justice Court to search
his property is over broad in that it fails to particularly describe who or what is to be
seized, as required under § 46-5-221(4), MCA. In making this argument, he does not refer
specifically to any particular language in the warrant.

¶13 The affidavit for a search warrant included a legal description of the real property


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occupied by Deeg, and described the property "referred to, sought to be seized, and or
photographed" as "consist[ing] of several horses which appear to be dead or near death
from maltreatment." The search warrant itself gave a legal description of Deeg's real
property, "including all out buildings and corrals on the property," and stated that the
application was to search for "certain items of personal property which are evidence of the
crime of: Cruelty to Animals, a misdemeanor, in violation of § 45-8-211, Mont. Code
Ann." The warrant then authorized a search for "any property which is evidence in the
crimes described above."

¶14 We have refused to consider bald assertions of error in criminal proceedings. State v.
Austad (1982), 197 Mont. 70, 97, 641 P.2d 1373, 1388. Given the lack of specificity of
Deeg's challenge to the search warrant, his failure to identify any language therein which
would authorize wholesale rummaging through his belongings, and the language of the
search warrant itself, we decline to consider this issue further.

¶15 Affirmed.

/S/ J. A. TURNAGE

We concur:

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER




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