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                                                       Nos. 97-325 & 97-433


                             IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             1998 MT 287


                                                     STATE OF MONTANA,

                                                     Plaintiff and Respondent,

                                                                    v.

                                                        JOHN KUNEFF and

                                                  ERNEST VAN GAWRYLUK,

                                                    Defendants and Appellants.




                           APPEAL FROM: District Court of the Thirteenth Judicial District,

                                             In and for the County of Yellowstone,

                                  The Honorable Robert W. Holmstrom, Judge presiding.



                                                    COUNSEL OF RECORD:


                                                           For Appellants:

                               William F. Hooks, Chad Wright, Appellate Defender Office,

                                                          Helena, Montana


                                                           For Respondent:


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                                           Hon. Joseph P. Mazurek, Attorney General;

                                 Pamela P. Collins, Ass't Attorney General, Helena Montana

                              Dennis Paxinos, Yellowstone County Attorney; Melanie Logan,

                                           Deputy County Attorney, Billings, Montana



                                              Submitted on Briefs: August 13, 1998

                                                    Decided: November 24, 1998

                                                                   Filed:

                                     __________________________________________

                                                                   Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶1. Defendants John Kuneff (Kuneff) and Ernest Van Gawryluk (Van Gawryluk)
appeal from the decision of the Thirteenth Judicial District, Yellowstone County,
denying their motion to suppress.

¶2. We affirm.

¶3. In determining whether the District Court erred, we consider the following issues:

¶4. 1. The standard of review for a search warrant based in part on illegally obtained
evidence.

¶5. 2. Whether, in the absence of the illegally obtained evidence, there was sufficient
probable cause to support the issuance of the search warrant.

                                                       Standard of Review

¶6. The standard of review of a district court's denial of a motion to suppress is
whether the court's findings of fact are clearly erroneous and whether those findings

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were correctly applied as a matter of law. State v. Siegal (1997), 281 Mont. 250, 257,
934 P.2d 176,180; State v. Williams (1995), 273 Mont. 459, 462, 904 P.2d 1019, 1021
(citing State v. Flack (1993), 260 Mont. 181, 188, 860 P.2d 89, 94).

                                          Factual and Procedural Background

¶7. On September 23, 1996 Billings police officers Anderson and Iffland went to the
trailer home of defendants Kuneff and Van Gawryluk. The officers had an
anonymous tip that marijuana was being grown in the defendants' home. Van
Gawryluk allowed them to enter the trailer after they introduced themselves as
police officers. However, Van Gawryluk denied them permission to search the
trailer. The officers asked Van Gawryluk if the volume of the stereo that was playing
could be lowered, and Van Gawryluk agreed. As Officer Anderson (Anderson)
turned down the stereo, he noticed a pipe that he recognized as a marijuana pipe.
The officers then handcuffed Van Gawryluk and Kuneff and took them into custody.
In response to the officers' questions, Van Gawryluk and Kuneff indicated that
another person was present in the trailer. Anderson then found a third person,
Darvin Hall, in the front bedroom of the trailer and handcuffed him. Iffland then
went down a hallway to the other bedroom in the trailer and discovered marijuana
plants.

¶8. Billings police officers then applied for a search warrant. A Justice of the Peace
issued the warrant, and police searched defendants' trailer. The police seized
additional evidence of drugs.

¶9. By stipulation of the parties, the District Court consolidated Kuneff and Van
Gawryluk's cases for pretrial motions and trial. A hearing was held on their motion
to suppress. Kuneff and Van Gawryluk moved to suppress all evidence of drugs and
drug paraphernalia, except for the marijuana pipe, which they conceded was in plain
view of the officers. They also moved to suppress Van Gawryluk's subsequent
confession to the police. Kuneff and Van Gawryluk argued that the officers
conducted an illegal warrantless search of the bedroom in the trailer. They argued
that the exclusionary rule barred the admission of the illegally seized evidence at
trial. They further contended that the evidence seized pursuant to the search warrant
should be suppressed because it was tainted as a result of the illegal search.

¶10. The State responded that the warrantless seizure of the marijuana plants


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occurred in the course of a legitimate protective sweep of the trailer.

¶11. The District Court concluded that the warrantless search of the bedroom was
illegal because the police did not have reasonable grounds to believe that the trailer
held additional persons who posed a danger and the State had failed to show that any
other exceptions to the requirement for a search warrant were met. The District
Court granted defendants' motion to suppress the plants that were seized from the
trailer without a warrant.

¶12. The District Court found, however, that there was sufficient probable cause for
the issuance of the search warrant even without the plants seized in the course of the
illegal search. The District Court concluded that the exclusionary rule did not apply
to the evidence seized with a search warrant.

¶13. Kuneff and Van Gawryluk each pled guilty under the terms of an Alford plea to
Count I, Criminal Production or Manufacture of Dangerous Drugs (Felony); Count
II, Criminal Possession of Dangerous Drugs with Intent to Sell (Felony); and Count
V, Criminal Possession of Drug Paraphernalia (Misdemeanor). Kuneff and Van
Gawryluk reserved their rights to appeal. The District Court sentenced them each to
ten years prison on Count I, suspending the sentences and placing them on
probation. On Count II, the District Court also sentenced them each to ten years
prison, suspending the sentences and placing them on probation, concurrent with
Count I. On Count V, the District Court sentenced Kuneff and Van Gawryluk each
to six months in Yellowstone County's detention facility concurrent with Count I, but
suspended the sentences.

                                                              Discussion

¶14. 1. The standard of review for a search warrant based in part on illegally
obtained information.

¶15. Kuneff and Van Gawryluk argue that the exclusionary rule bars not only the
marijuana seized as a result of the officers' illegal search but also the evidence that
the police seized with a search warrant. They argue that the independent source and
inevitable discovery exceptions to the exclusionary rule do not apply in the present
case. Kuneff and Van Gawryluk assert that there was no basis for issuance of a
search warrant without the discovery of the marijuana plants. They further assert


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that in reviewing whether there was an independent source for the evidence seized
with a search warrant, the standard of review is de novo.

¶16. In reviewing the application for search warrant, the District Court excised the
police officers' discovery of marijuana plants during their warrantless search.
Relying on Segura v. United States and United States v. Wanless, the District Court
concluded that evidence obtained after an illegal search need not be excluded unless
the illegality is the "but for" cause of the discovery of evidence. Segura v. United
States (1984), 468 U.S. 796, 815, 104 S.Ct. 3380, 3391, 82 L.Ed.2d 599, 615
(concluding evidence will not be excluded following illegal search or seizure "unless
the illegality is at least the 'but for' cause of the discovery of the evidence"); United
States v. Wanless (9th Cir. 1989), 882 F.2d 1459, 1465 (holding evidence seized as
direct result of illegal search cannot establish probable cause for later search
warrant). The District Court concluded that there was probable cause for the search
warrant based on the discovery of the marijuana pipe and that the evidence seized
pursuant to the search warrant was free of taint and therefore not barred by the
exclusionary rule.

¶17. In considering the effect of the officers' illegal search on the search warrant, we
follow this Court's decision in State v. Siegal. State v. Siegal (1997), 281 Mont. 250,
934 P.2d 176. In Siegal, police scanned buildings on defendant's property with a
thermal imaging scanner. The police did not have a warrant. The police found that
an unusual amount of heat was discharged from a shed and that the heat discharged
was consistent with the use of grow lamps to cultivate marijuana. A scan of the other
buildings revealed that their heat emissions were normal. Based in part on the results
of the thermal imaging scan, the police obtained a search warrant and searched
defendant's property. The police seized marijuana. The Court in Siegal held that the
thermal imaging scan of defendant's property was a warrantless search that
implicated Montana's constitutional right to privacy under Article II, Section 10. The
Court then "excise[d] the results of the thermal imaging scan from the search
warrant application and review[ed] the remaining information to determine if
sufficient probable cause existed for the issuance of the warrant." Siegal, 281 Mont.
at 279, 934 P.2d at 193. Thus, in determining whether there was probable cause to
support the issuance of the search warrant, we consider the application for search
warrant without the marijuana plants that the officers seized without a warrant.

¶18. In previous decisions, this Court has held that magistrates' determinations of

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probable cause should receive great deference, and that such determinations should
be upheld if there is a substantial basis for them. In State v. Oleson, we held that "the
duty of a reviewing court is simply to ensure that a magistrate had a substantial basis
for concluding that probable cause to issue a warrant existed." State v. Oleson, 1998
MT 130, ¶ 7, 959 P.2d 503, ¶ 7, 55 St.Rep. 517, ¶ 7 (citation omitted). See also Siegal,
281 Mont. at 279, 934 P.2d at 193 (affirming this Court's holding, in State v. Rydberg
(1989), 239 Mont. 70, 73, 778 P.2d 902, 904, that magistrates' determinations of
probable cause should receive great deference).

¶19. As a matter of logic and common sense, a reviewing court cannot defer to a
magistrate's consideration of an application for search warrant that the magistrate
in effect did not review. In the present case, the District Court reviewed an
application for search warrant that differed materially from that which the
magistrate reviewed, because the District Court excised the information regarding
the results of the warrantless search. Under these facts, it would therefore be
inappropriate to deferentially review the magistrate's determination that the
application for search warrant established probable cause. Although we articulated
and applied the "great deference" standard in Siegal in declining to conduct a de
novo review of the search warrant application following excision of the results of the
thermal imaging search, the issue of the standard of review in such excision cases was
not raised and it did not determine our decision in that case. With the benefit of
briefing directed to this particular issue, we now hold that when the issuance of a
search warrant is based in part on illegal information, the reviewing court shall
excise the illegally obtained information from the application for search warrant and
review the remaining information de novo to determine whether probable cause
supported the issuance of a search warrant. To the extent that Siegal and our
previous decisions suggest that great deference be paid to a magistrate's
determination of probable cause even after information has been excised from an
application for search warrant, we overrule the use of that standard of review in
such circumstances.

¶20. 2. Whether there was sufficient probable cause to support the issuance of the
search warrant in the absence of the illegally obtained information.

¶21. An application for a search warrant must state facts sufficient to show probable
cause for the issuance of the warrant. See § 46-5-221, MCA; State v. Rinehart (1993),
262 Mont. 204, 209, 864 P.2d 1219, 1222. Probable cause must be determined

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exclusively from the "four corners" of the search warrant application. Rinehart, 262
Mont. at 211, 864 P.2d at 1223 (citation omitted).

¶22. Probable cause exists when the facts and circumstances presented "would
warrant an honest belief in the mind of a reasonable and prudent man that the
offense has been, or is being, committed and 'that the property sought exists at the
place designated.' " State v. Isom (1982), 196 Mont. 330, 343, 641 P.2d 417, 424
(citation omitted). This Court has adopted the "totality of the circumstances" test set
forth in Illinois v. Gates. See State v. Crowder (1991), 248 Mont. 169, 173, 810 P.2d
299, 302. The Court in Illinois v. Gates held that:

The task of the issuing magistrate is simply to make a practical, common-sense
determination whether, given all the circumstances set forth in the affidavit before him,
including the "veracity" and "basis of knowledge" of persons supplying 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. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548.
Probable cause requires a determination that there is a probability of criminal activity.
Rinehart, 262 Mont. at 210, 864 P.2d at 1222 (citation omitted).

¶23. With the information from the illegal search excised, the search warrant
application presented the following facts in support of a determination of probable
cause:

On September 23th [sic], 1996, Billings Police Officers RICK ANDERSON (Anderson)
and KEVIN IFFLAND (Iffland) received a report from LT. TOM TAGGART
(Taggart) . . . . The report, dated July 11, 1996 indicated that Taggart had spoken to a
source who advised Taggart of a trailer house at the end of Florine Lane, in which the
occupants were keeping several mature marijuana plants in the bedroom closets. The
information indicated the occupants names as being "JOHN KOUNEFF" and an "ERNIE"
with an unknown last name. The information included the fact that the source had
observed the plants on July 1, 1996. The information further indicated that the vehicle that
the occupants used was a newer blue Chevrolet. On July 11, 1996, Taggart, with the
CCSIU, drove by the location and observed a 1994 Chevrolet green pickup, Montana
license, 3T-146F, which is registered to a ERNIE and MARILYN GAWRYLUK. Police
records indicate that ERNIE GAWRYLUK is listed as living at the address of 138 Prickett


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Lane, trailer #8.

On September 23rd, 1996, Anderson and Iffland, using the information on the report, went
to the trailer located at the end of Florine Lane, and having the numbers on the side of the
trailer "132 8," and having a green pickup truck parked in the drive way with the license
plate number, Montana 3T-146F, did go to the front north east door of the residence and
knock on the door. Anderson had activated a tape recording device to record the
conversation and advised the subject at the door that he had received information and a
complaint and would like to talk with him. The occupant, later identified as JOHN
KUNEFF, asked the Officers to come inside. The Officers advised KUNEFF that they had
received information indicating, that marijuana was being grown in the residence and that
they were there to either confirm the information, or show that there was no marijuana
being grown. Due to a loud stereo being played, which was distracting to the conversation,
Anderson asked Kuneff if he could turn down the stereo. The response was that it was
alright to, "turn it down a little." Anderson walked into the living room and went to the
stereo and turned it down. A second subject then came out of an unknown back bedroom
and was identified as ERNEST GAWRYLUK. Anderson then began to speak with
Gawryluk, and in doing so, observed a small marijuana pipe lying on a shelf in the living
room.

Anderson then advised Iffland what he had observed and advised him to place both
subjects under arrest.

We conclude that the marijuana pipe and the tip established probable cause for the
issuance of the search warrant.

¶24. Kuneff and Van Gawryluk argue that the tip was not reliable; that it was not
sufficiently corroborated by the officers. However, Lieutenant Taggart spoke to the
informant and partly corroborated the tip, finding a trailer at the end of Florine
Lane with a parked vehicle registered to Ernie and Marilyn Gawryluk. Police
records revealed that Ernie Gawryluk was listed as a resident at 138 Prickett Lane,
trailer #8. The informant's tip was based on the informant's own observation, thus
strengthening its reliability. See Oleson, ¶ 13. Moreover, information provided to
police that is "motivated by good citizenship" is a reliable basis for determining
probable cause. Oleson, ¶ 14 (citation omitted). We conclude that the tip had
sufficient reliability.



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¶25. Kuneff and Van Gawryluk also argue that the tip was not sufficiently detailed to
establish probable cause. As communicated to Lieutenant Taggart, however, the tip
provided information of a criminal activity that was personally observed by the
informant. Thus, we find no merit in this argument.

¶26. Kuneff and Van Gawryluk further argue that the information in the tip was
stale and that it should not have been relied upon in determining whether there was
probable cause for the issuance of a search warrant. We need not consider this
contention because the defendants did not raise it before the District Court.
Appellants may not change their theories on appeal from those that they presented in
district court. See State v. Woods (1997), 283 Mont. 359, 372, 942 P.2d 88, 96; §§ 46-
20-104(2) and 46-20-701(2), MCA. Without ruling on this issue, however, we would
note that the tip, though based on information nearly three months old, concerned
information of a continuing criminal enterprise: the marijuana plants were
reportedly being grown.

¶27. Finally, Kuneff and Van Gawryluk argue that the results of the executed search
warrant should be suppressed because the marijuana pipe did not establish probable
cause. Defendants have misstated the appropriate inquiry. The test is not to
determine whether each individual fact presented in the application for search
warrant establishes probable cause, but to determine from the totality of the
circumstances whether there is probable cause. Illinois v. Gates (1983), 462 U.S. 213,
238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548. The pipe and the tip together
established probable cause for the issuance of the search warrant.

¶28. Affirmed.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

Justice William E. Hunt, Sr., concurring in part, dissenting in part.
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¶29 I concur with that portion of the majority opinion which sets forth the standard
of review for a search warrant based in part on illegally obtained information. I
dissent from the second part of the majority opinion. I would hold that there was no
probable cause to issue the search warrant.

¶30 First, I disagree with the majority's opinion that the tip had sufficient reliability.
This Court has repeatedly stated that the "veracity, reliability and basis of
knowledge of informants remain highly relevant factors in determining probable
cause. . . ." State v. Siegal (1997), 281 Mont. 250, 281, 934 P.2d 176, 194 (citing State
v. Rinehart (1993), 262 Mont. 204, 210, 864 P.2d 1219, 1222). We have thus upheld
search warrants where the application contained a statement that the informants
were known to law enforcement officers and that the informant had been reliable in
the past. Siegal, 281 Mont. at 281, 934 P.2d at 194; Rinehart, 262 Mont. at 212, 864
P.2d at 1223-24. In contrast, we have held that anonymous Crimestoppers' tips are
not adequate to support probable cause without investigation to verify or
corroborate the information in the tip. Rinehart, 262 Mont. at 211, 864 P.2d at 1223.

¶31 In this case, the tip was an anonymous Crimestoppers' tip. The application for
the search warrant did not contain any statement that the officer knew the informant
or that the informant had provided reliable information in the past. Hence, further
investigation to verify or corroborate the information contained in the tip was
necessary.

¶32 However, it is my opinion that the investigation failed to sufficiently corroborate
the tip. First, neither officer Anderson nor Iffland performed a background check on
the people identified in the tip, and the application did not contain any information
that either defendant had a criminal history. More importantly, some of the
information contained within the tip was inaccurate. The informant stated that the
defendants used a "newer blue Chevrolet." However, during the investigation,
Lieutenant Taggart located a green Chevrolet pickup truck at the trailer. The tip
thus contained incorrect information about the type and color of the vehicle.

¶33 In support of its holding that the tip was sufficiently corroborated, the majority
points in part to the fact that Lieutenant Taggart found a trailer at the end of Florine
Lane with a parked vehicle registered to Ernie and Marilyn Gawryluk. However, in
the past, we have stated that "facts of a description and location of property, while

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easily confirmable by a driveby, can hardly be regarded as probative of the
probability of the presence of contraband therein." Siegal, 281 Mont. at 282, 934
P.2d at 195 (citation omitted). The fact that the officers were able to corroborate
facts regarding location of the trailer and that a vehicle was registered to an "Ernie"
is not probative of the probability of the presence of marijuana plants therein.

¶34 The majority buttresses its opinion by adding that the anonymous
Crimestoppers' tip was reliable because it was based upon the informant's own
observation and that it was "motivated by good citizenship." Again, I disagree with
the majority's opinion. While the majority is accurate in noting that this Court has
stated that a tip's reliability is strengthened if it was based upon the personal
observation of the informant, this is true only in cases where the police officers know
the informant and the informant has provided reliable information in the past. In
Rinehart, the Court stated:

[w]e have previously held that information of a criminal activity known from
observation by a previously reliable informant . . . is sufficient to establish the
probability of criminal activity. . . .

Rinehart, 262 Mont. at 213, 864 P.2d at 1224 (citation omitted). In that case, we held that the
combination of the fact that the informant was proven reliable in the past and that the informant's
information was based on personal observation was sufficient to establish probable cause to issue a search
warrant. Rinehart, 262 Mont. at 213, 864 P.2d at 1224. In this case, while the anonymous Crimestoppers'
tip was allegedly based upon the informant's personal knowledge, we still have no basis for determining
whether or not the informant was reliable.

¶35 The majority is also correct in noting that an informant motivated by good
citizenship is presumed reliable. But as we pointed out in Siegal, before such a
presumption can be made, the Court must determine the circumstances under which
the informant learned the information. In that case we stated:

[A] citizen informant is presumed reliable. However, this is not a per se rule. The
reliability of a citizen informant is generally shown by the very nature of the
circumstances under which the incriminating information became known

Siegal, 281 Mont. at 281, 934 P.2d at 194 (citation omitted). In this case, we know only that the
anonymous informant allegedly observed marijuana plants on July 1,1996. We know virtually nothing else
about the "nature of the circumstances" under which he or she learned of the incriminating information.
Thus, the Court cannot presume the informant to be reliable or to be motivated by good citizenship.


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¶36 The majority cites State v. Oleson, 1998 MT 130, 959 P.2d 503, 55 St.Rep.517, in
support of its opinion that the tip was reliable because it was allegedly based upon
the informant's personal knowledge and was motivated by good citizenship.
However, that case is distinguishable. In Oleson, the law enforcement officer
contacted the informant and established his identification. Oleson, ¶¶ 10, 13.
Moreover, unlike this case, the informant who saw the defendant engage in unlawful
game spotlighting and poaching gave a detailed description explaining what he
observed and the nature of the circumstances under which he learned the
information. Oleson, ¶ 10. Finally, in Oleson, the law enforcement officer
corroborated the informant's information. Oleson, ¶ 14.

¶37 In summary, the application for the search warrant in this case established
neither the anonymous informant's reliability nor the basis of the informant's
knowledge. Moreover, the tip was not sufficiently corroborated. The tip did not
establish probable cause for the issuance of the search warrant.

¶38 I disagree with the majority's conclusion that the tip when considered together
with the pipe established probable cause for the issuance of the warrant. While the
pipe may establish probable cause to arrest the defendants for a misdemeanor
possession of drug paraphernalia, it does not establish probable cause to search the
home for evidence that the defendants engaged in the felony crime of producing or
manufacturing dangerous drugs. Even when considered together with the tip, it is
insufficient to establish probable cause. The pipe neither corroborates nor adds any
other evidence indicating that the defendants actually engaged in a marijuana-
growing operation.

¶39 Because I would reverse on the basis that the tip and the pipe do not establish
probable cause for the issuance of the search warrant, I would not address the
defendants' alternative argument that all the evidence should be suppressed by
virtue of the exclusionary rule.

/S/ WILLIAM E. HUNT, SR.




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