                                          No. 05-540

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 56


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

DOUGLAS B. DUTTON,

              Defendant and Appellant.


APPEAL FROM:         District Court of the Nineteenth Judicial District,
                     In and For the County of Lincoln, Cause No. DC 04-108
                     Honorable Michael C. Prezeau, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     S. Charles Sprinkle, Sprinkle Law Firm, Libby, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Micheal S. Wellenstein,
                     Assistant Attorney General, Helena, Montana

                     Bernie Cassidy, Lincoln County Attorney; Robert Slomski, Deputy
                     County Attorney, Libby, Montana



                                                  Submitted on Briefs: December 20, 2006

                                                            Decided: February 27, 2007


Filed:

                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1     Douglas Dutton pled guilty in the Nineteenth Judicial District Court, Lincoln County,

to criminal production or manufacture of dangerous drugs, reserving his right to appeal the

District Court’s denial of his motion to suppress evidence. Dutton appeals and we affirm.

¶2     The issue on appeal is whether the application for a search warrant established

probable cause for the Justice Court to issue the search warrant.

                                     BACKGROUND

¶3     On December 1, 2004, Lincoln County Sheriff’s Office detective Shane Hight asked

the Lincoln County Justice Court to issue a warrant to search property owned by Douglas

Dutton. Hight’s application for a search warrant began by outlining his eight years of

experience as a peace officer and over 100 hours of training in the area of dangerous drugs.

The application stated Hight had been specifically assigned to investigate and enforce

Montana’s dangerous drug laws since July of 2004. It then set forth the following facts.

¶4     In March of 2004, Crime Stoppers received an anonymous letter describing a

clandestine drug lab run by Dutton at his home, for which the writer provided the street

address. In July of 2004, Hight and another detective inquired at a local convenience store

where a store clerk told them a man named Doug came in and bought bottles of HEET and

two or three boxes of matches at a time. The clerk gave the detectives a vehicle license

number which they determined was registered to Dutton. On November 20, 2004, a Troy,

Montana, police officer filed a report stating Dutton had purchased--at three different stores

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on the same day--precursors needed to manufacture methamphetamine: two boxes of

pseudoephedrine, hydrogen peroxide, 4 boxes of matches and a bottle of HEET.

¶5    Several days after receiving that report, Hight researched property ownership records

in Lincoln County and obtained the address of real property and a trailer owned by Dutton,

which was the same address contained in the anonymous letter to Crime Stoppers. Two days

later, Hight was contacted by another officer who told him Dutton had purchased two boxes

of matches and a bottle of HEET at an area convenience store. On November 26, 2004,

Hight observed Dutton go into the local IGA store, where he purchased nasal decongestant

and matches. Four days later, another detective collected a receipt from a local hardware

store where Dutton had purchased Red Devil lye, paper towels, and a box of

pseudoephedrine tablets. Finally, Hight stated:

      Through training and experience, your Affiant has reason to believe that
      Dutton is operating a clandestine lab in which he is manufacturing
      methamphetamine. The amount of pseudoephedrine hydrochloride, HEET,
      matches, Lye and other essential items are well beyond the amount consistent
      with normal household consumption.

Hight attached to his application for a search warrant a brochure prepared by the Montana

Department of Justice, which identified matches, engine starter, Red Devil lye, and

pseudoephedrine tablets as substances frequently found at methamphetamine lab sites.

¶6    The Justice Court issued a search warrant for the premises, curtilage, outbuildings and

vehicles at Dutton’s address. Based on items found during the search, the State of Montana

charged Dutton by Information filed in the District Court with criminal production or

manufacture of dangerous drugs, operating an unlawful clandestine laboratory, criminal
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possession of precursors to dangerous drugs, felony and misdemeanor criminal possession of

dangerous drugs, and use or possession of property subject to criminal forfeiture.

¶7     Dutton moved to suppress the evidence seized in the search, arguing that the pre-

November of 2004 events set forth in the warrant application were stale and that the

remainder of the application did not constitute sufficient probable cause to invade his right to

privacy. The District Court rejected Dutton’s staleness argument and ruled that, under the

totality of the circumstances, the Justice Court did not err in concluding the application for a

search warrant established probable cause to believe evidence of a crime would be

discovered at Dutton’s property.

¶8     Dutton and the State entered into an agreement pursuant to which Dutton pled guilty

to the manufacture or production of dangerous drugs and the State agreed to dismiss the

remaining charges against him. The District Court entered judgment, and Dutton appeals.

                                 STANDARD OF REVIEW

¶9     Courts review the issuance of a search warrant to insure that the issuing judicial

officer had a substantial basis to determine that probable cause existed. State v. Barnaby,

2006 MT 203, ¶ 30, 333 Mont. 220, ¶ 30, 142 P.3d 809, ¶ 30 (citation omitted). In other

words, district courts reviewing the issuance of search warrants by justice courts utilize the

same standard as this Court uses in reviewing search warrants issued by district courts.

                                        DISCUSSION

¶10 Did the application for a search warrant establish probable cause for the Justice
Court to issue the search warrant?

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¶11    The Fourth Amendment to the United States Constitution and Article II, Section 11 of

the Montana Constitution allow a judge or magistrate to issue a warrant to search a person or

that person’s home, papers or effects only upon a showing of probable cause. We use the

“totality of the circumstances” test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317

(1983), to determine whether probable cause exists. See Barnaby, ¶ 29. Under that test, the

issuing judicial officer must make a practical, common-sense decision, given all the

circumstances set forth in the affidavit, including the veracity and basis of knowledge of

persons supplying hearsay information, of whether there is a fair probability that contraband

or evidence of a crime will be found in the place described in the affidavit. Barnaby, ¶ 29,

citing Gates, 462 U.S. at 238, 103 S.Ct. at 2332.

¶12    Dutton claims the application for a search warrant in this case was defective in two

respects. He first argues that the information in the Crime Stoppers tip from March of 2004

was stale, advancing State v. Anderson, 1999 MT 60, 293 Mont. 490, 977 P.2d 983.

¶13    In Anderson, our discussion of staleness related to an informant’s tip that the

defendant had been arrested on two prior occasions--five years earlier, and again seven

months earlier--for possession of marijuana with intent to sell.            We concluded the

information about the prior arrests was not stale when considered together with the discovery

of methamphetamine, moments before the search of the defendant’s person, pursuant to a

warrant to search the trailer where the defendant was living. Anderson, ¶ 15. We noted that

a determination of whether information is too stale to be considered in establishing probable

cause depends largely on the nature of the activity at issue. We further noted that, where
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information reveals that the possession and distribution of dangerous drugs by a person is a

protracted and continuing activity, the passage of time between the conduct and the probable

cause determination becomes less significant. Anderson, ¶ 14.

¶14    The staleness discussion in Anderson does not support Dutton’s arguments. Indeed, it

establishes that the issuing Justice Court properly considered the Crime Stopper tip from

March of 2004. Here, the Crime Stopper tip was received nine months before the search

warrant was issued. In addition to that incident, the application for a search warrant also

included information about an incident five months before the warrant was issued and

considerable information that was only days or weeks old at the time of the warrant

application. We conclude the District Court correctly rejected Dutton’s staleness argument.

¶15    Dutton also claims the warrant application is “rife with speculation,” citing State v.

Reesman, 2000 MT 243, 301 Mont. 408, 10 P.3d 83, overruled in part, Barnaby, ¶ 42, for the

principle that a tip from an anonymous source must be independently corroborated through

other sources. Dutton states that “[o]ther than [ ] conclusory allegation[s] based on Hight’s

personal opinion, there is nothing to connect Dutton’s purchases to anything of a criminal

nature whatsoever.” Dutton apparently refers to Hight’s assertion in the search warrant

application that he believed Dutton was purchasing various items as precursors to

manufacture of methamphetamine.

¶16    In Reesman, a search warrant was issued based on information provided by a

confidential informant and corroborated by an anonymous citizen. We ruled that a

confidential informant’s information to law enforcement officers, corroborated only by
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anonymous citizens, did not provide a substantial basis for a conclusion that probable cause

existed to issue a search warrant. Reesman, ¶ 46 (citation omitted).

¶17    Dutton has not referenced anything in Reesman which supports his argument that the

observations and opinions of Hight--an identified, trained law enforcement officer rather than

a confidential informant--were an inadequate basis for issuing the search warrant. Indeed,

independent police corroboration “represents a key element in determining whether probable

cause exists” to issue a search warrant. Barnaby, ¶ 42. Here, the bulk of the information in

the application for a search warrant concerned Hight’s and other law enforcement officers’

observations of and investigations concerning Dutton’s purchases of quantities of precursors

needed to manufacture methamphetamine, escalating to nearly daily observations in the days

just before Hight applied for the search warrant.

¶18    The key question when evaluating probable cause is whether the application as a

whole supports a determination of probable cause. Barnaby, ¶ 39 (citation omitted). In

reviewing the issuance of the search warrant and denying Dutton’s motion to suppress, the

District Court stated that “[w]hen each piece of evidence in this case is viewed in conjunction

with every other piece of evidence, it is disingenuous to describe Dutton’s purchasing

activity as consistent with the ‘average consumer.’” We agree. Viewing the facts presented

in the search warrant application in a practical, common-sense manner, we conclude the

Justice Court had a substantial basis for determining that probable cause existed to search

Dutton’s address. We hold, therefore, that the District Court properly denied Dutton’s

motion to suppress.
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¶19   Affirmed.


                              /S/ KARLA M. GRAY


We concur:

/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ JOHN WARNER




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