                                             No. 13138

           I N THE SUPREME COURT O THE STATE O M N A A
                                  F           F OTN




STATE OF MONTANA on t h e R e l a t i o n of CORAL K. STIEF,

                             Petitioner,
       -vs       -
THE HONORABLE C. B, SANDE, D i s t r i c t Judge o f Department
No, 1 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 of t h e S t a t e
of Montana, i n and f o r t h e County of Yellowstone,

                       Respondent.
............................................................
                                              No. 13139

STATE O M N A A on t h e R e l a t i o n of H R L T, MANKIN,
       F OTN                                 AOD

                                        Petitioner,

           -VS   -
T E HONORABLE C. B, SANDE, D i s t r i c t Judge of Department
 H
No. 1 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 of t h e S t a t e
of Montana, i n and f o r t h e County o f Yellowstone,

                                        Respondent.



O r i g i n i a l Proceeding:

       Counsel o f Record :

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

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

                 For Respondents:

                                Hon. Robert L. Woodahl, Attorney General, Helena,
                                 Montana
                                Thomas A. Budewitz, A s s i s t a n t Attorney General,
                                 argued, Helena, Montana
                                Harold F, Hanser, County Attorney, argued, B i l l i n g s ,
                                 Montana



                                                         Submitted:      ~ e p t e m b e r12, 1975

                                                           Decided:     ~    ~ 5 1973 2
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Filed :
Mr. Chief Justice James T. Harrison delivered the Opinion
of the Court.
          These are original proceedings.   On August 21, 1975,
petitioners separately asked this Court for writs of supervisory
control or other appropriate writs directing the respondent dis-
trict court to grant petitioners' motions to suppress certain
evidence and dismiss the informations against petitioners.     The
causes were consolidated for convenience and counsel for petition-
ers was heard ex parte and thereafter an adversary hearing was
ordered and the same held on September 12, 1975, at which time
counsel for the parties were heard and the matters taken under
advisement.
          Petitioners were charged by informations filed on June
11, 1975, in the respondent court with theft.     The informations
were supported by affidavits of a deputy Yellowstone County
attorney containing facts obtained by that office as a result of
search warrants issued on May 30, June 2, and June 3, 1975, provid-
ing for searches of a residence at No. 3 Vigilante Trail in
Billings and of the bank records of Harold Mankin at First Citizens
Bank in Billings.
          The first search warrant issued on May 30, 1975, arose
from the following fact situation:   A neighbor notified the Yellow-
stone County authorities of a number of guns being taken from the
residence at No. 3 Vigilante Trail and being loaded into a pickup
camper.   The Billings police stopped the pickup one hour later
and discovered 14 guns during a consent search of the pickup.      All
but two of the guns were released to the driver of the pickup after
a check of serial numbers indicated none had been reported stolen.
After a search of a more complete list of stolen guns, the Billings
police determined three of the guns given back to the driver had
been stolen in two separate burglaries.     A Billings police detective
then applied for the first May 30, 1975 warrant to search the
residence at No. 3 Vigilante Trail for other guns and goods
stolen in the two thefts.    While searching the residence pursuant
to the first warrant, goods were observed that had been stolen
in still other burglaries in the Billings area.    These obser-
vations resulted in the applications for the other three warrants.
        The pertinent portions of the first warrant read as follows:
        "THE STATE OF MONTANA TO Judae


        "You are hereby commanded to serve this warrant
        and search the place described above for the
        property specified * * *.
        "Dated this 30th day of May, 1975.
                                    "W. E. Dowlin, Jr.
                                               Judge"
        The search warrant receipt was signed by a member of the
Billings Police Department.    The other three warrants were sim-
ilarly directed to the judge himself who issued the warrant.
       A search warrant is defined in section 95-703, R.C.M.      1947,
as:
        " * * * an order in writing, in the name of the
        state, signed by a judge, particularly describing
        the thing or place to be searched and the in-
        struments, articles or things to be seized,
        directed to a peace officer, commanding him to
        search for personal property and bring it before
        the judge." (Emphasis added)
        The persons who may serve a search warrant are limited
by section 95-707, R.C.M. 1947, as follows:
       "A search warrant may in all cases be served by
       any of the officers mentioned in its direction,
       but by no other person except in aid of the of-
       ficer on his requiring it, he being present and
       acting in its execution."
       All of the search warrants in question here were directed
to the judge signing the warrant.    In Montana is a "judge" con-
sidered a "peace officer"?    The Montana statutes in section 95-
210, R.C.M. 1947, define a "peace officer" as:
         " * * * any person who by virtue of his office
         or public employment is vested by law with a
         duty to maintain public order or to make arrests
         for offenses while acting within the scope of his
         authority."
         A "judge" is separately and distinctly defined in sec-
tion 95-206, R.C.M. 1947, as:
         " * * * a person who is invested by law with the
         power to perform judicial functions and includes
         court, justice of the peace or police magistrate
         when a particular context so requires."
         The judge signing the search warrant is not, and cannot
by definition, be a "peace officer", therefore, the search warrants
in question were defective in not being "directed to a peace offi-
cer" as required by section 95-703.
         Furthermore, the search warrants were not served by the
officer to whom directed as required by section 95-707.     Service
of the warrant by the police officer was therefore defective.
         In 1972, this Court stated in State v. Meidinger, 160 Mont.
310, 319, 502 P.2d 58, that search warrants issued in the future
must comply with the letter and spirit of section 95-703, R.C.M.
1947.   The search warrant in Meidinger was directed to "any police
                                       -
officer of this State" rather than to "a peace officer" (emphasis
added) as required by statute.   This Court did not find that
search warrant fatally defective, but did issue this warning about
the use of similarly defective search warrants in the future at
page 319:
        " * * * While this Court does not find that the
        search warrant was defective because it was not
        directed to a particular police officer, we do
        not approve this type of search warrant and
        recommend that such practice be discontinued."
        (Emphasis added)
After three years, this recommendation has not been heeded.
        The county attorney concedes that the search warrants
were defective in not being "directed to a peace officer", but
maintains the defect is merely technical and not sufficiently
serious to render the search warrant void.      He argues the
drafters of the Montana Code of Criminal Procedure anticipated
occasional technical mistakes in obtaining search warrants when
they stated in section 95-717, R.C.M. 1947:
         "No search and seizure, whether with or without
         warrant, shall be held to be illegal as to a
         defendant if:


          "(b) No right of the defendant has been infringed
          by the search or seizure, or
          "(c) Any irregularities in the proceedings do not
          affect the substantial rights of the accused."
          This Court in State v. Straight, 136 Mont. 255, 264, 347
P.2d 482, stated:
         " * * * It is up to this court to decide whether
         an error affects the substantial rights of the
         defendant * * *."
         This Court has very recently stated in State v. Tropf,
Mont .     ,   530 P.2d 1158, 1162, 32 St.Rep. 56:
         "Section 95-703, R.C.M. 1947, by definition directs
         that a search warrant 'is an order in writing, in
         the name of the state'. This would contemplate, as
         in all other criminal matters and particularly in
         matters that pertain to the authorizing instrument
         to search a person's home, that notice to the person
         subject to the process concerning the origin of the
         process and to whom he may address his grievances in
         response for an inventory (section 95-712, R.C.M.
         1947) are matters of due process and not technical
         irregularities. Omissions in this regard would be
         substantive and infringe on the rights of the person
         whose residence is being searched and would neces-
         sarily be prejudicial error."
This Court went on to say, regarding the recommendation in
Meidinser:
          "This was not a license to erode the process but
          an admonition to recognize that the procedures
          in this area are to be strictly applied, very
          simply because they deal with an exception that
          permits the sovereign to enter upon a constitu-
          tionally protected area."
          We find the search warrants in question to be fatally
defective and void.     The district court is ordered to grant
petitioners' motions to




We concur:
               A
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