                                                      No.     F38-296

                       I N THE SUPREME COURT O F T H E S T A T E O F MONTANA

                                                            1989



S T A T E O F MONTANA,

                 Appellant,

    VS.

K E V I N DEAN WALSTON,

                 Respondent.




A P P E A L FROM:           D i s t r i c t C o u r t of t h e N i n e t e e n t h J u d i c i a l D i s t r i c t ,
                            I n and f o r t h e C o u n t y of L i n c o l n ,
                            T h H o n o r a b l e R o b e r t S. K e l l e r , J u d g e p r e s i d i n g



COITNSEL O F RECORD:

          For A p p e l l a n t :

                            Marc Racicot, Attorney General, Helena, Montana
                            Joe R . R o b e r t s , A s s t . A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
                            Susan L o e h n , C o u n t y A t t o r n e y , L i b b y , M o n t a n a
                            S c o t t B . S p e n c e r , D e p u t y , ~ i b b v ,M o n t a n a

          For R e s p o n d e n t :

                            David W. H a r m a n , L i b b y , M o n t a n a




                                                            S u b m i t t e d on B r i e f s :   Dec.     1 6 , 1989

                                                               Decided:            February 2 3 , 1 9 8 9
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Mr. Justice L .   C. Gulbrandson del-ivered the Opinion of the
Court.

      The State appeals an order by the Nineteenth Judicial
District Court, Lincoln County, suppressing physical evidence
obtained pursuant to a search, under warrant, of the
defendant's home and automobile.    The District Court held
that the affidavit supporting the application for the search
warrant failed to establish probable cause.      We reverse.
      The following issue is raised on appeal:
      1. Did the District Court improperly suppress evidence
obtained under a search warrant:
      a) which was supported by probable cause; and
      b) which was relied upon, in good faith, by law
      enforcement officers?
      On December 11, 1987, Donald Bernall, a detective with
the Lincoln County Sheriff's Office, applied for a search
warrant authorizing the search of defendant's residence at # 6
Taylor Road outside Libby, Montana, and of his 1975 white
Ford Mustang. Bernall applied for this search warrant after
a confidential informant stated he had legally been in
defendant's residence at least twice in the past five months,
and that while there, he had observed marijuana plants
growing within the residence and marijuana in processed form
at various locations throughout the residence. Bernall also
stated, based upon his professional training and experience,
that such a marijuana growing operation is "highly likely to
stay in one location for long periods of time and not be
quickly or often moved." Additionally, the informant stated
he had "recently heard" defendant admit to growing marijuana
within his residence and to selling marijuana within the
Libby city limits.        This confidential informant had
previously provided information to Detective Bernall which
had proven true.
      According to the affidavit, defendant owned only one
operable automobile specifically described as a 1975 white
Ford two-door Mustang, VIN 5R032156098, with a license plate
number 56-30505.   Defendant's residence was also described
with particular detail as a white trailer with aqua-blue
trim, with an "add-on" and a "large quantity of firewood
stacked on the front porch," located in the Rerget traj-Ier
park on Parmenter Hill.
      After considering all these facts set forth h~,7
affidavit, the justice of the peace issued a search warrant
on Decemher 11, 1987. The warrant authorized the search o f
defendant's residence and operable automobile for marijuana,
sale documentation, drug paraphernalia, and any other "fruits
of the crime." Law enforcement officers subsequently stopped
defendant and searched his automobile. The search disclosed
a bag of marijuana in the glove compartment, a pair of
forceps and a marijuana pipe.      A subsequent search of
defendant's residence revealed marijuana plants, various
items used to grow marijuana and another marijuana pipe and
pair of forceps.
      On December 14, 1987, defendant was charged by
complaint with the felony offense of criminal possession of
marijuana with intent to sell (Count I) and the misdemeanor
offenses of criminal possession of dangerous drugs (Count 11)
and criminal possession of drug paraphernalia (Count 111).
An information was filed in District Court on January 4,
1988.
      Defendant pled not guilty during his arraignment on
January 11, 1988.     He subsequently filed a motion, to
suppress all evidence taken from his automobile and residence
pursuant to the search warrant, which he alleged was
unsupported by probable cause. Following a hearing on the
motion on May 24, 1988, the District Court held that the
affidavit offered    in   support of    the   search warrant
application did - contain facts establishing probable cause
                not
for issuance of the warrant. Consequently, the court ordered
all evidence seized from defendant's automobile and residence
suppressed. The State appeals from this order.
      The Fourth Amendment to the United States Constitution
and Article 11, Section 11 of the Montana State Constitution
both protect a person's right to be free from unlawful
searches and seizures by requiring the existence of probable
cause prior to the issuance of a search warrant.          An
impartial magistrate must determine the existence of such
probable cause solely from the evidence in "the four corners
of the search warrant application." State v. O'Neill (19841,
208 Mont. 386, 393, 679 P.2d 760, 763-64.      The evidence
sufficient to    establish probable    cause, however, is
significantly less than that required for a conviction.
Applicants need only illustrate the probability of criminal
activity, not a prima facie showing of criminal activity.
State v. Crain (Mont. 1986), 725 P.2d 209, 210, 43 St.Rep.

      To determine whether a probability of criminal activity
exists meriting a search warrant, a magistrate must employ a
"totality of the circumstances" analysis.      This analys! s
requires an issuing magistrate to:
           [Mlake a practical, common-sense decision
           whether, given all the circumstances set
           forth in the affidavit before him,
           including the "veracity" and "basis of
           knowledge" of persons supplving hearsay
            information, there is a fair probability
            that contraband or evidence of a crime
            will be found in a particular place.
Illinois v. Gates (1983), 462 U.S. 313, 238, 103 S.Ct. 2317,
2332,   76   L.Ed.3d  527,   548.     The   totality-of-the-
circumstances analysis, used to determine the existence of
probable cause, expanded upon the previous "two-pronged"
analysis and effectively broadened the circumstances under
which a search warrant would issue. The "two-pronqed" test
had required an affidavit to reveal: (1) the basis of the
informant's knowledge . e l "the particular means by which
he came by the information given in his report"); and (2)
some of the underlying circumstances indicating either the
veracity of   the affiant's informant or the reliability of the
informant's    report.   Gates, 462 U.S. at 278-29; see also
Spinelli v.   United States (1969), 393 U.S. 410, 89 S.Ct. 584,
21 L.Ed.2d    637; Aguilar v. Texas (1964), 378 I J . S . 108, 84
S.Ct. 1509,   12 L.Ed.2d 723.
      The   facts   in   Gates   would   not   have   satisfied this
"two-pronged" test, as the detective's application for a
search warrant was based upon an anonymous letter accusing
the defendant of selling drugs and detailing an intended
future drug purchase. Gates, 462 U.S. at 225. The anonymous
letter did not disclose how the informant came by the
information, and the anonymity of the letter prevented
detectives from ascertaining the veracity of the informant.
However, the United States Supreme Court held that the
totality of the circumstances alleged in the affidavit, which
included the facts contained in the anonymous letter as well
as the findings of a subsequent investigation verifying many
of the facts stated by the informant, justified the issuing
magistrate's conclusion that a probability of criminal
activity existed.
      The information relayed by the confidential informant
in the present case, unlike that in the Gates case, indicated
the probability of criminal activity and evidence in the
defendant's house and car under both the more stringent
former "two-pronged" analysis as well as the current
totality-of-the-circumstances analysis. The informant stated
that the basis for his knowledge, that marijuana and drug
paraphernalia were present in defendant's house, came from
his own personal observations on at least two different
occasions within the five months prior to his conversation
with Detective Bernall.     The informant also recently had
heard defendant state he was growing marijuana within the
house and that he was selling marijuana within the Libby city
limits. The informant stated that the defendant owned only
one operable automobile, which was described in detail. This
fact could correctly lead the issuing magistrate to conclude
that the marijuana reportedly grown in the house and sold in
Libby would be transported via this car.
      The facts also indicated the veracity of the informant.
Detective Bernall obiectively stated that he personally knew
the informant and that the informant had provided information
in the past which had proved true. We thus hold that the
District Court erred in holding that - facts existed
                                           no
indicating the veracity of the informant and in concluding
that no probable cause existed. We have previously held that
information of a criminal activity known from observation hy
a previously reliable informant, such as we have in the
present case, is sufficient to establish the probability of
criminal   acti~rj
                 ty   without   outside   investigation   and
verification of the reported information. See, e.g., State
v. Hendrickson (1985), 217 Mont. 1, 701 ~ . 2 d
                                              1368.
      We also hold that the related information was not so
stale as to negate the magistrate's determination of probable
cause.   The informant stated that he had "recently" heard
defendant state he was growing marijuana in his house and
selling marijuana in Libby.   The word "recently" connotes a
period of time relatively near the disclosure of information
and a time distinctly different than the observations made on
two other occasions during the prior five months.
      Moreover, this Court has previously noted that a
determination of staleness in any given case depends largely
on the nature of the property and activity in issue. State
v. Pease (Mont. 1986), 724 P.2d 153, 43 St.Rep. 1417. As
stated in Pease:
           The    observation  of   a   half-smoked
           marijuana cigarette in an ashtray at a
           cocktail party may well be stale the day
           after the cleaning lady has been in; the
           observation of the burial of a corpse in
           a cellar may well not be stale three
           decades later. The hare and the tortoise
           do not disappear at the same rate of
           speed.
Pease, 724 P.2d at 160, quoting from Andresen v. State
(Md.App. 1975), 331 A.2d 78, aff'd - - Andresen v.
                                       sub. nom.
Maryland (1976), 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627.
Likewise, if the criminal activity is continuing in nature, a
greater amount of time may elapse between the observation of
the activity and the application for a search warrant without
negating probable cause.    The facts in this case indicate
just such a continuing criminal activity. The confidential
informant had seen marijuana growing in defendant's home on
two separate occasions within the five months prior to the
search warrant application and the defendant had recently
admitted that he was still growing marijuana.        Bernall's
statement that a marijuana growing operation is "highly
likely to stay in one location for long periods of time"
provides a further indication of the continuing nature of the
reported crimes. Given the continuing nature of the criminal
activity in this case, we hold that information of the
"recent" growth and sale of marijuana, together with
information of the same activity twice within the prior five
months, was not too remote in time to indicate the
probability of continuing criminal activity at the time the
magistrate issued the search warrant.
       We admonish law enforcement officers, however, to state
with specificity the time the informant learned such
information to prevent the future suppression of evidence for
lack of probable cause due to staleness.      We do recognize
that on occasion, as in the present case, an officer may
deliberately obscure the specific time to protect the
identity of a confidential informant's identity.
       The totality of the facts presented by Detective
Bernall's affidavit provided a substantial hasis for the
issuing magistrate's determination that prohable cause
existed meriting a search warrant. The District Court thus
erred in suppressing evidence obtained under the search
warrant.    As this Court previously has stated, a reviewing
court may only determine whether the issuing magistrate had a
substantial basis for determining that probable cause
existed, keeping in mind that a magistrate's "determination
of probable cause should be paid great deference by reviewing
courts." O'Neill, 679 P.2d at 765, quoting from Spinelli,
393 1J.S. 410.
         Having found t h a t t h e s e a r c h w a r r a n t was s u p p o r t e d hv
p r o b a b l e c a u s e , we need n o t d i s c u s s t h e a p p l i c a b i l i t y of t h e
good f a i t h e x c e p t i o n t o t h i s c a s e .    The s u p p r e s s i o n o r d e r of
t h e D i s t r i c t Court i s r e v e r s e d .




W e concur:
                         ,T'~




Justices
Mr. Justice William E. Hunt, Sr., dissenting.

     I dissent.     The affidavit in this case lacks the
evidence to support a finding of probable cause to search
either the defendant's car or his residence.
     In order to find probable cause, the facts set out in
the affidavit must be closely related to the time of the
issuance of the warrant. Sgro v. United States (1932), 287
U.S. 206, 210, 53 S.Ct. 138, 140, 77 L . E d . 260, 263.   In
other words, the affidavit must be based on current facts,
those that indicate that a law is being violated at the time
the warrant is issued. State ex rel. Townsend v. Dist. Court
(1974), 168 Mont. 357, 362, 543 P.2d 193, 196.          Facts
alleging criminal activity that occurred five months prior to
the application for a warrant are simply too remote to
justify a a-etermination of probable cause.
     The affidavit in question states that a confidential
informant, while in the defendant's home, observed marijuana
plants and marijuana in processed form "at least two (2)
times in the past five months."        The logical assumption
stemming from this allegation is that at least one of these
observations occurred five months prior to the application,
otherwise there would be no need to use that particular
timeframe. There is no indication when the other observation
took place.   Perhaps it occurred five months prior to the
application, perhaps four and one-half months, perhaps three
weeks. The language of the affidavit serves only to obscure
the applicable time, making it impossible to determine when
the informant actually saw the evidence of criminal activitv,
thereby making it impossible to establish probable cause.
     Apparently, the majority feels that any defects in the
remoteness of the observations are cured by the claim that
the informant "recentlv" heard the defendant state that he
was growing marijuana.    Once again, the terminology merely
serves to conceal the date on which the statement was made.
"Recent" is a relevant term. " [Wlhat is recent to one person
is not recent to another. Whereas the word 'recent' may be
months in some situations, it may he a much shorter period of
time elsewhere."   State v. O'Brien (Ariz.Ct.App. 1974), 528
P.2d 176, 178, review denied, (Ariz. 1975), 537 P.2d 28. All
I can really surmise from the use of the word "recent" is
that the defendant's admission probably did not. take place
more than five months before the warrant issued.
     The majority further attempts to justify probable cause
by relying on the continuing nature of the crime. Indeed, it
is arguable that cultivating marijuana is an endeavor that
often continues for a period of time. However, the nature of
the crime cannot overcome the problems created by the vague
assertions of time contained in this affidavit. All I know
for certain from this affidavit is that an informant sighted
marijuana at the defendant's residence five months prior to
the application for a warrant. Without more concrete proof
that the defendant continued to engage in criminal activity,
I am unwilling to rely on the nature of the crime to cure
this affidavit's deficiencies.
     Furthermore, there is no reference whatsoever to the
date on which the informant heard the defendant state that he
was selling marijuana within the Libby city limits. We have
previously held that an affidavit that omits any reference to
time is void. Townsend, 168 Mont. at 362, 543 P . 2 d at 196.
So too should we refuse to enforce the warrant authorizing
the search of the defendant's car when the only information
linking the car to the transportation of marijuana is an
undated allegation that the defendant admitted he was selling
within the city limits.
     The majority voices concern over the protection of
confidential informants. Protection of informants, however,
should not take precedence over the right of the people to he
free from unreasonable searches and seizures. Other steps,
such as independent investigation on the part of the
authorities, can be taken to protect informants. Independent
investigation also establishes corroborating evid-ence to
bolster a determination of probable cause.
     The majority opinion legitimizes warrants issued on
loose, vague references to time.       The Fourth Amendment
demands a more exacting factual basis than is presented in
the present case.
     I would affirm the suppression order of the District
Court.
                                  /
                              C        Justice




Mr. Justice John C. Sheehy:
     I concur in the foregoing dissent of Mr. Justice Hunt.
