                                      No. 12504

        I N T E SUPREME C U T O THE STATE O M N A A
             H           OR    F           F OTN

                                         1973



STATE O MONTANA, on t h e R e l a t i o n of
       F
LUTHER GARRIS ,

                                 Petitioner,



THE HONORABLE ROBERT 11. WTLSON, D i s t r i c t
Judge o f Department No. 3 of t h e T h i r t e e n t h
J u d i c i a l D i s t r i c t o f t h e S t a t e of Montana,
i n and f o r t h e County of Yellowstone,

                                 Respondent.




ORIGINAL PROCEEDING :

Counsel of Record:

     For P e t i t i o n e r :

             Berger, Anderson, S i n c l a i r and Murphy, B i l l i n g s , Montana
             Arnold A. Berger argued, B i l l i n g s , Montana

     For Respondent :

             Hon. Robert L. Woodahl, Attorney General, Helena, Montana
             J. C . Weingartner, A s s i s t a n t Attorney General, argued,
              Helena, Montana
             Harold F. Hanser, County Attorney, B i l l i n g s , Montana
             C l i f f o r d E. Schleusner, Deputy County Attorney, argued,
              B i l l i n g s , Montana



                                                Submitted:        May 17, 1973
Mr. Chief Justice James T. Harrison delivered the Opinion of
the Court .
         Original proceeding.
         Petitioner alleges the respondent district court acted
contrary to the laws of the state of Montana by refusing to
suppress evidence in the form of drugs taken from the petition-
er's room in an alleged, illegal search.
         From the petition it appears that Garris lived in a
house located at 620 Beverly Hills Boulevard in Billings,
Montana, on October 13, 1972.   This house had been rented by
Frank Rodriguez from the owner and Garris paid his share of the
rent to Rodriguez.   At the time of the incident in question
Rodriguez, Garris and at least one other individual lived in the
house.
         Complaints were received from neighbors by the Billings
police and they kept the house under surveillance.   As a result
of this observation the police officers sought a search warrant
of the residence rented by Rodriguez and in the application for
such warrant the defendant referred to therein is Frank Rodriguez,
and it stated:
         "Your affiant has had the above described residence
         staked out for the past two weeks. During this
         time, many individuals have been observed enter-
         ing the house, remaining a short time and leaving.
         On October 7, 1972, the brother of the defendant
         was observed carrying a plastic bag into the resi-
         dence. The bag was approx. 20" long by 8" in diameter.
         Prior to entering he looked around and went quickly
         into the house. Your affiant was in a possition (sic)
         where the front of the house could be observed.
         On October 12, 1972 at 5 : 4 5 P.M. your affiant ob-
         served, through the front window of the house at
         620 Beverly Hills Blvd., three people sitting in
         the living room. The defendant, his brother, and
         one unknown male were passing a small brass pipe
         between them and smoking the pipe. The pipe was
         lit nine times during a ten minute period. Based
         on the prior experience of your affiant as a mem-
         ber of the City-County Narcotics Squad, the pipe
         being smoked is the type used for hashish or
         marijuana. The inability to keep the pipe lit is
        typical of smoking hashish or marijuana. On
        October 13, 1972 at 5:30 P.M., your affiant
        observed two males and one female come out of
        the front door of the house and stand at the
        front door. The defendant stood in the doorway
        and the female passed him a plastic bag contain-
        ing a green substance which appeared to your
        affiant to be marijuana. This is the common way
        of packaging marijuana. The four people talked
        for about 1/2 minute. The defendant took the
        plastic bag of what appeared to be marijuana
        back inside the house and the other three people
        walked across the street, got into an automobile
        and drove away. Just prior to the incident
        described, two men pulled up into the driveway in
        a small car. The defendant came to the door of the
        house, the passenger got out and talked with him.
        Then got back into the vehicle and picked up a
        grey brief case and he and the driver went into
        the house. They remained in the house for about
        20 minutes and left. Your affiant did not observe
        the briefcase when they left."
This was the only information given to the justice of the peace
for the issuance of the warrant.
        In conducting the search officers found in the false
ceiling above Garris' room a plastic bag containing 99 pheno-
barbital tablets.   On the basis of this evidence Garris was
charged with the criminal possession of dangerous drugs.   It
was this evidence that the petitioner sought to have suppressed.
The motion was denied by the respondent district court.
        The issue in this case is whether there was a proper
showing of probable cause to search Garris' room.
        It must be noted here that none of the persons referred
to in the application for search warrant was Garris; he was not
present on the premises at the time and his only connection with
the proceedings was that he had a room in the house.
        Petitioner asserts the affidavit showing probable cause
lacks facts that would give rise to probable cause for the search,
in that there is nothing in the affidavit which would connect
Garris in any way with the activities mentioned therein.
        In Application of Gray, 155 Mont. 510, 519, 473 P.2d 532
(1970) this Court stated the rule to be followed as to what
type of facts must be contained in an affidavit for the issu-
ance of a search warrant:
        " * * * Affidavits relied upon for the issuance
        of search warrants in both federal and state
        prosecutions must contain sufficient facts to
        enable an impartial commissioner or magistrate
        to determine whether probable cause exists under
        the Fourth Amendment. * * * "
The standard of review for this type of case is found in State
v. Troglia, 157 Mont. 22, 26, 482 P.2d 143 (1971):
       " ' * * * that in judging probable cause issuing
       magistrates are not to be confined by niggardly
       limitations or by restrictions on the use of
       common sense * * * and that their determination
       of probable cause should be paid great deference
       by reviewing courts * * *.I"
        The task before this Court is to determine whether there
were sufficient facts presented to the justice of the peace and
whether he acted reasonably in the area of his discretion.
        Before a search warrant can be issued the requirements
of section 95-704, R.C.M. 1947, have to be met.   It reads:
        "Any judge may issue a search warrant upon the
        written application of any person that an offense
        has been committed, made under oath or affirmation
        before him which:
        "(a) States facts sufficient to show probable cause
        for issuance of the warrant. * * * I 1 (Emphasis
        added. )
In this case it is apparent that the warrant wasdefective as
to Garris because the application contains no facts that would
indicate Garris had any connection with the offense being
committed.   The application, as set out above, contains no facts
disclosing that Garris was engaged in any of the activities
mentioned.   There was no probable cause to believe he was commit-
ting an offense, hence no probable cause to search his room.     See
St. ex rel. Glantz v. Dist. Court, 154 Mont. 132, 461 P.2d 193.
To make such a showing places no great burden on law enforcement.
The United States Court of Appeals stated in Coury v. United
States, 426 F.2d 1354, 1356 (1970):
          "We reach this decision by application of the
                                   -  - -
          following standards: only a probability of
          criminal conduct need be shown * * *."  (Em-
          phasis added. )
Here there is no showing at all of any criminal activity by
Garris.
          We must hold that the search was unreasonable as re-
quired by the United States constitution and the 1889 Montana
Constitution.    The Fourth Amendment to the United States Con-
stitution states:
          "The right of the people to be secure in their
          persons, houses, papers, and effects, against
          unreasonabke searches and seizures, shall not
          be violated, and no warrant shall issue but
          upon probable cause, supported by oath or af-
          firmation, and particularly describing the place
          to be searched, and the person or things to be
          seized. "
In this case Garris had a consitutionally protected right to
expect to be free from government intrusion into his room.    While
it is true that Rodriguez rented the house from the landlord,
Garris paid his share of the rent to Rodriguez.   He had the use
of his room to the exclusion of all others that were living in
the house.   without some minimal showing of criminal activity
on those premises on the part of Garris there was no probable cause
for the issuance of the warrant and the search that was conducted
was unreasonable and in violation of petitioner's rights.
          This is a proper case for the use of the writ of super-
visory control. We therefore order the issuance of a writ of
supervisory control directing the respondent district court to
reverse its ruling and suppress the evidence.   It is further
ordered that the information against Garris charging criminal
possession of dangerous drugs be dismissed.
     concur:        /
                     / I/'   c h i e f 7J u s t i c e




    Associate Justice
.
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