                              NO.     89-136

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1990



STATE OF MONTANA,
            Plaintiff and
     -vs-
MARK CHARLES BALDWIN,
            Defendant and




APPEAL FROM:     District Court of the Eleventh Judicial District,
                 In and for the County of Flathead,
                 The Honorable C.B. McNeil, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                James C. Bartlett;         Hash,         OIBrien    &   Bartlett,
                Kalispell, Montana
            For Respondent:
                Hon. Marc Racicot, Attorney General, Helena, Montana
                Elizabeth S. Baker, Asst. Atty. General, Helena
                Ted 0 . Lympus, County Attorney, Kalispell, Montana
                Thomas J. Esch, Deputy, Kalispell


                                    Submitted on Briefs:           Jan. 18, 1990
                                                   ~ e c i d e d : March 2 0 , 1990
Filed:                                         .   I .
Justice Diane G. Barz delivered the Opinion of the Court.


     Mark Baldwin appeals his conviction for criminal possession
of dangerous drugs with intent to sell in the District Court of the
Eleventh Judicial District, Flathead County.      The District Court
sentenced appellant to twenty years in the Montana State Prison,
with five years suspended, imposed a $20,000 fine and designated
appellant a dangerous offender.     We affirm.
     Appellant raises three issues on appeal:
     1.    Can probable cause for issuing a search warrant be based
in part on documents obtainedthrough an investigative subpoena the
application for which contained material false statements?
     2.    Did the District Court erroneously deny appellant's motion
to suppress evidence seized during execution of a search warrant
issued upon inadequate probable cause?
     3.     Did the District Court properly designate appellant a
dangerous offender?
     Sergeant Rick Hawk of the Flathead County Sheriff's Department
applied for an investigative subpoena duces tecum for power and
telephone records for appellant's residence at 420 Sharon Road in
Kalispell.    Included in the application was a tip received by the
Flathead County Sheriff's Department in 1983 regarding appellant's
alleged involvement in cocaine importation.      The tipster stated
appellant would travel to Seattle to pick up a quantity of raw
lumber shipped from Colombia.     This shipment allegedly concealed
cocaine.     Joint observation by the Sheriff's Department and the
Drug Enforcement ~dministrationrevealed that appellant did indeed
travel to Seattle but was unable to collect the delivery described.
Documentation of the shipment showed it contained raw ~olombian
lumber.
     Hawk also made part of his application a statement made by
appellant's ex-wife during a 1984 deposition taken in the course
of their dissolution to the effect that appellant ''is and always
has been a drug dealer."         Additionally, the Flathead County
Attorney   in   February, 1987, reported       an   anonymous tip      that
appellant concealed a hydroponic marijuana cultivation operation
in his garage. After compiling this data, Sgt. Hawk then contacted
a confidential informant whose statements he included in the
application     for   investigative   subpoena.     According    to    this
informant, appellant remodeled his garage so that it appeared to
contain an apartment.        However, a false wall in the building
concealed appellant's marijuana growing operation.              Appellant
reportedly had three associates, one of whom provided the initial
cash investment.      Each of the other two possessed 2,500 marijuana
plants. Appellant reportedly had 2,500 mature plants, located both
in his house and the garage, and 2,500 "starts.11 The informant's
information derived primarily from a source close to appellant
although the informant observed the grow operation in October or
November of 1987.
     Electricity usage records from Pacific Power and Light Company
and telephone records from Northwestern Telephone Company were
obtained   from   the    subpoenas    issued   pursuant   to   the    first
application. The second application for an investigative subpoena
duces tecum contained additional facts.
       Records subpoenaed from Pacific Power and                Light Company
indicated that appellant's residence was not heated by electricity.
In addition, the account for 420% Sharon Road was in the name of
Mike    Barker.      Barker    was   also   listed   as   the    guarantor   on
appellantls account.      On Pacific Power and Light records appellant
listed    his     employment   as    "disabled."     Sgt.   Hawk    drove    by
appellant's residence at 420 Sharon Road and verified that an
addition to the garage located on the property bore the number
420%. Sgt. Hawk set forth further information gleaned from public
records, specifically a Warranty Deed, and thus stated in his
application       that   appellant     paid   $10,000     cash     and   other
consideration for the property at 420 Sharon Road.                  Sgt. Hawk
further stated that appellant, although without visible means of
support, obtained "clear title1'to this property.
       Based upon respondent's second application, the District Court
issued subpoenas to Pacific Power and Light Company for 420% Sharon

Road, Montana Power Company for 420 and 420% Sharon Road, Safeco

Title Company and First Interstate Bank.              In his application for
a warrant to search Mark Baldwin's residence for evidence of
criminal possession of dangerous drugs and paraphernalia, Sgt. Hawk
included information in addition to the above:
            Affiant is an officer with the Flathead County
       Sheriff 's Department and has been so employed for 13
       years.
            That he is currently assigned as Sergeant in charge
       of the Special Investigations Division of the Sheriff's
Department which primarily investigates drug offenses and
has been thus engaged in drug investigations for the past
4 years.

     Affiant has an advanced certificate fromthe Montana
Police officers Standards raining council (POST), and
has approximately four years of investigative experience
in general investigations with the Flathead County
Sheriff's Department prior to his appointment to Special
~nvestigations. Affiant has continued his education by
attending police schools including the United States Drug
Enforcement Agency Advanced Drug ~nvestigationSchool,
The Montana Law Enforcement Academy (MLEA) Drug
Commanders School, and the Harris and Assoc. Drug
Enforcement Seminar. Affiant also maintains membership
in 2 professional organizations which are the
International Narcotic Enforcement Officers ~ssociation,
and the American Canadian Drug Conference. In addition
this affiant has personally investigated in excess of 300
drug cases.
     Further investigation revealed that there is a
natural gas line to the property.          On 9-9-88 an
investigative subpoena was served on Montana Power
Company, records received as a result, indicate that both
the house and shop have natural gas heating and hot
water.
     That records obtained by subpoena from First
Interstate Bank show that Mark purchased the property on
Sharon Rd. from Jerry and Geri Galloway for $35,000.00,
putting $7,750.00 as down payment, leaving a balance of
$27,250.   On 10-1-86 Mark paid the Galloways $10,000
dollars, and started making $350.00 per month payments.
On 3-1-88 Mark paid off the Whitefish credit Union and
assumed the loan at the 1st Interstate Bank.
     That in a Residential Loan Application dated 2-5-
88 and signed by Mark, he listed his employment as
Treasure/Bookkeeper for Kokanee Const. Corp. box 952,
Kalispell, Mt. which he stated is a holding company.
This affiant contacted the Montana Corporations Bureau
who advised that Kokanee Const. was incorporated on 3-
5-80 as a general construction company and was
involuntarily dissolved on 12-15-82.      There were no
annual reports filed. This affiant then checked the
current phone book, both white and yellow pages, and the
Polk's city directory, neither of which had a listing.
This affiant then contacted the Kalispell Chamber of
Commerce which has never heard of Kokanee Const., and the
Montana Assoc. of Contractors which advised that Kokanee
does not have a Contractors License in the state of
Montana.
     That despite evidence as listed above that Mark
~aldwin has no employment it appears that he was able to
raise a substantial sum of money in 17 months to put down
on and make payments on the property he purchased.
     That the average consumption of electricity for all
of pacific Power and Light's residential customers for
1987 was 1000 to 1100 KWH per month.

     That this affiant contacted Gary Mahugh the Member
Service Advisor for Flathead Electric Cooperative who
stated that the average usage of electricity for family
of four is around 1000 to 1100 KWH per month, but should
drop to 600 to 800 KWH per month if there is no electric
heat or hot water.
     That Mark Baldwin's residential electricity use in
kilo watt hours as determined from PP&L records is as
follows.
AUGUST    1987=1713         FEBRUARY   1988=862
SEPT.     1978=1629         MARCH      1988=1395
OCT .     1987=1640         APRIL      1988=1592
NOV .     1987=1742         MAY        1988=1001
DEC.      1987=1931         JUNE       1988=1373
JAN.      1988=2125         JULY       1988=1510
                            AUG .      1988=1884

The average usage for the above months is 1565 KWH per month.
        The average KWH for the same months listed above for
the    apartment which is attached to the garage was 1157
KWH    per month. The garage also has natural gas heat and
hot    water and had a separate average electricity usage
for    the above months of 1771 KWH per month.
     The information obtained from Montana Power Company
shows that there was gas consumption during the entire
time period listed above, meaning that the gas furnace
and hot water heaters were in a working condition and had
not been replaced by electrical appliances, which might
account for the higher than average electricity
consumption.
     This affiant knows fromtraining and experience that
when growing a large number of plants in an enclosed
space ventilation is required. visual observation and
photographs of the ~aldwinproperty show two of what
appear to be gas appliance vents on the back part of the
shop roof. There is also a revolving louver ventilating
      fan in the same area. There is what appears to be a
      power vent for a fan located on the back wall of the shop
      near the top.
           On 9-20-88 this affiant contacted a neighbor of Mark
      Baldwin's who confirmed that Baldwin is a bachelor, has
      no commercial enterprise operating from his garage, and
      told the neighbor that he is disabled. The neighbor was
      not able to note an obvious disability. The neighbor
      also has not observed any one residing in the apartment
      in the garage.
           The pattern of electrical use and financial
      expenditures without an obvious income is consistent
      with, and fully supports the information from the
      anonymous and confidential informants that Mark Baldwin
      is growing and selling marijuana.
      Upon execution of the search warrant, the Sheriff's Department
seized, among other things, approximately 663 marijuana plants,
equipment for growing marijuana plants and other drug parapher-
nalia.      Appellant was   charged by   information with    criminal
possession of dangerous drugs with intent to sell, in violation of
5 45-9-103(1), MCA.   The District Court denied appellant's motion
to suppress evidence obtained upon execution of the search warrant
based on lack of probable cause.
      Appellant waived his right to a jury trial and agreed to a
bench trial upon stipulated facts.        The District Court found
appellant    guilty   as    charged.     Following   a   pre-sentence
investigation, the District Court sentenced appellant to twenty
years in the Montana State Prison with five years suspended and a
dangerous offender designation, and fined him $20,000.
      Respondent filed two applications for investigative subpoenas
on   consecutive days.      Appellant maintains both     applications
contained stale information and that the second set forth material
false conclusions derived from public records.             Appellant likens
an investigative subpoena to a search warrant in terms of the
foundation required before either properly issues.                       Appellant
endorses a rule excluding from a search warrant                      application
evidence derived from an investigative subpoena issued despite the
absence of a compelling state interest.
       Respondent asserts that the scope of an investigative subpoena
is less intrusive than that of a search warrant, thus limiting the
availability     of   Fourth   Amendment       remedies.    The       respective
statutory provisions authorizing search warrants and investigative
subpoenas bolster this contention.         Law enforcement officials may
use investigative subpoenas to compel the presence of witnesses or
the production of documents.          Clearly this section does not
contemplate the "search of a person, object, or place.               .   .I1   or the
seizure of llinstruments,
                        articles or things.           . ." and   therefore is
not as intrinsically intrusive as a search warrant.                  Section 46-
5-101, MCA.
       Section 46-4-301, MCA, sets forth the criteria for issuance
of    an   investigative subpoena.         A    judge properly        issues an
investigative subpoena I1[w]henever the attorney general or a county
attorney has a duty to investigate alleged unlawful activity.                    .   .I1



and   "it appears upon the affidavit             [submitted].    .       .that the
administration of justice requires [the subpoena] to be issued."
       Conversely, a search warrant application
       (a)   states that an offense has been committed;
       (b) states facts sufficient to show probable cause for
       issuance of the warrant;
     (c) particularly describes the place, things, or persons
     to be searched; and
     (d) particularly describes        the things to be seized.
Section 46-5-202 (1), MCA.    The prerequisites for obtaining a search
warrant   are   more     stringent    than   those   for   acquiring    an
investigative subpoena.
     Furthermore,      the   relief   from   improper   issuance   of   an
investigative subpoena is either dismissal of the subpoena or
limitation of its scope. Section 46-4-303, MCA.         Evidence derived
from an improperly issued search warrant may be excluded during the
trial of the criminal defendant.        State v. Rydberg (Mont. 1989),
778 P.2d 902, 46 St.Rep. 1519.

     Underlying both remedies is the balance between protection of
individual privacy rights and the compelling state interest in
investigating and prosecuting unlawful activity.           The District
Court in the instant case had ample evidence from which to conclude
the administration of justice required issuance of the subpoenas.
The second application for subpoena duces tecum contained financial
misinformation.   Specifically, it stated that appellant paid the
sellers of his residence $10,000 in addition to his down payment.
This resulted from Sgt. Hawk's misreading of a warranty deed
executed by sellers in favor of appellant.        The warranty deed set
forth the consideration paid as $10.00 which Sgt. Hawk read as
$10,000. The only significant information derived from the second
group of subpoenas was a record of power utilized in appellant's
building located behind his residence.        The erroneous conclusions
contained within the application regarding appellant's financial
status did not invalidate the remaining information.          We decline
to     extend   the remedy   provided   by   the   exclusionary   rule to
investigative subpoenas.      Appellant's power records were properly
considered in issuing the search warrant.
        Our function is not to review de novo the magistrate's
determination that probable cause existed justifying the issuance
of a search warrant. State v. Sundberg (Mont. 1988) , 765 P.2d 736,
741, 45 St.Rep. 2235, 2240. Rather, we must presume the magistrate
properly issued the search warrant after subjecting the application
to the totality of the circumstances test.         Sundberq, 765 P.2d at
739-41; Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76
L.Ed.2d 527, reh'g. denied 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d
1453 (1983).      "The burden of proving that the search and seizure
were unlawful shall be on the defendant."          Section 46-13-302(4),
MCA.    Appellant in this case failed to meet this burden.
       Appellant's contention of illegality is twofold.            First,
appellant maintains that the materially false conclusions derived
from public records and set forth in the search warrant application
undermine the showing of probable cause.             Secondly, appellant
asserts certain information included in the search warrant was
stale and therefore insufficient to establish probable cause.          We
find probable cause existed excluding the financial data.            Sgt.
Hawk set forth in the application a pattern of criminal behavior
--a frustrated attempt to complete a cocaine transaction, a history
of selling illegal drugs and cultivation of marijuana plants. Sgt.
Hawk's informant stated that appellant grew marijuana in his home
and in his garage. The informant also stated an addition purported
to be a separate apartment was attached to the garage.   Sgt. Hawk
drove by the residence and verified this information noting also
the appliance vents and ventilating fans located on the structure
which were consistent with the ventilation required for an enclosed
growing operation. A neighbor stated that appellant carried on no
commercial enterprise at this location nor did another individual
reside in the apartment.
     Appellant argues that Sgt. Hawk failed to set forth average
electricity consumption by marijuana growers and asserts the
kilowatts used by appellant were less than this average.   We find
this argument less than persuasive. Utility records demonstrated
that three separate locations on appellant's property consumed more
power individually than a family of four.        This information
adequately demonstrated probable cause for a search warrant to
issue under the totality of the circumstances test.
     Appellant finally maintains the District Court erred        in
designating him a dangerous offender pursuant to 5 46-18-404 (1),
MCA, which provides:
     [tlhe sentencing court shall designate an offender a
     nondangerous offender for purposes of eligibility for
     parole under part 2 of chapter 23 if:
     (a) during the 5 years preceding the commission of the
     offense for which the offender is being sentenced, the
     offender was neither convicted of nor incarcerated for
     an offense committed in this state or any other
     jurisdiction for which a sentence to a term of
     imprisonment in excess of 1 year could have been imposed;
     and
    (b) the court has determined, based on any presentence
    report and the evidence presented at the trial and the
    sentencing hearing, that the offender does not represent
    a substantial danger to other persons or society.
    The District Court made the following observations upon
sentencing appellant:
          The record before this Court indicates a long term
     involvement with drugs.
         In the 1984 sworn statement you were described as
    a Defendant and as having been a drug dealer.
         The confidential informants that advised the
    arresting officer, in 1988, stated that you had been
    involved in a -- in growing marijuana in your house and
    shop for a period of three years.
         The exhibits introduced today, a receipt for some
    $2,482.78 worth of hoods, visqueen, halogen lights and
    so forth, is dated September loth, 1986.
         So that indicates to this Court that you have
    clearly been growing marijuana in excess of the three
    years submitted by the confidential informant.
         The large scale and degree of sophistication of
    growing systems indicate to this Court that not only has
    it been in operation for quite some time, but I believe
    it's a reasonable conclusion that you would still be
    growing and selling marijuana and would likely continue
    to do so for some time in the future if it had not been
    for the intervention of the Flathead County Sheriff's
    Office and particularly of Sergeant Hawk.
         This despicable and reprehensible crime represents
    a substantial contribution to a major plague upon
    society, the growing of dangerous drugs for sale.
         The correctional policy of the State of Montana is
    to protect society by preventing crimes from punishment
    and rehabilitation. The extent of your commercial drug
    operation dictates the necessity of long term protection
    of society.
         It's the sentence and judgment of this Court that
    you are sentenced to twenty years in the Montana State
    prison.   The Defendant is to receive credit for time
    served. This will protect society from your poisonous
    propensities for the maximum period allowed by law and
     will shut down your elicit drug farming for as long as
     the legislature permits for your crime.
          In addition there is imposed a fine of $20,000 which
     represents but a fraction of the evil profits that you
     undoubtedly have obtained from your marijuana growing.
          Taking into consideration the Defendant's lack of
     any prior criminal record, his present health, his family
     background, there is hereby suspended five years from the
     sentence leaving fifteen years to serve with the balance
     on formal probation for parole.
         The Montana Code Annotated, Section 46-18-404
    provides that a sentencing Court shall, for parole
    purposes, designate an offender non-dangerous if he has
    no other felony convictions during the preceding five
    years and the Court has determined, based on the
    presentence report and evidence presented at trial and
    the sentencing hearing, that the offender does not
    represent a substantial danger to other persons or
    society.
         This Court holds that the Defendant, Mark Baldwin,
    is not eligible to be designated as a non-dangerous
    offender because his large quantity possession of
    dangerous drugs, marijuana, with intent to sell, does
    represent a substantial danger to prospective large
    numbers of other persons who would use this dangerous
    drug and the Defendant represents a substantial danger
    to society because of his possession with intent to sell
    this drug.


    The District Court adequately set forth factors from which it
could determine appellant constituted a substantial danger to
others.
    Affirmed.
Justice R. C. McDonough dissenting:


      I disagree.   The application for the search warrant fails to
establish probable cause which must be shown before the government
can legally search a citizen's home and personal effects.
      The duty to conduct evaluations of evidence supplied by law
enforcement authorities and to determine whether permission to
search a citizen's home should be given, belongs to the judiciary.
In making this determination the courts examine the "totality of
the   circumstance^'^ surrounding the State's allegations in the
application for the search warrant.    Illinois v. Gates (1983), 462
U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527; State v. Kelly (1983),
205 Mont.   417, 668 P.2d    1032.    The courts should only give
permission to conduct a search when these tlcircumstancesll
                                                         establish
probable cause.
      Probable   cause, which   defines   the   point   at   which   the
individual's interest in privacy must yield to the governmental
interest in investigating criminal behavior, is a practical,
nontechnical concept of criminal procedure.       It is not a prima
facie showing of criminal activity, but rather only requires a
showing of its probability.     State v. Sundberg (Mont. 1988), 765
P.2d 736, 45 St.Rep. 2235.      In order to determine whether there
was probable cause to issue a search warrant, we must look only at
information contained in the four corners of the application.
State v. Jensen (1985), 217 Mont. 272, 704 P.2d 45. An examination
of the application in the present case leads to the conclusion that
sufficient probable cause did not exist.
     An application in the form of an affidavit for a search
warrant, must set forth facts which demonstrate that a law is being
violated at the time the warrant is issued.      State v. Walston
(Mont. 1989), 768 P.2d 1387, 46 St.Rep. 309.   One reason for this
rule is to prevent present or continuing harassment of a suspect
due to past criminal allegations or transgressions.     The police
should not be given blanket authority to search a citizen's home
on the basis of allegations which do not support the conclusion
that criminal activity is presently occurring.   The facts here do
not support such a conclusion and were, therefore, improperly
relied upon.
     The application contains references to numerous instances of
unlawful involvement with drugs by the appellant.     However, the
allegations contained in these references occurred long before the
search warrant was issued.    For example, the application states
that in 1983, the appellant was involved in the importation of
cocaine.   It also contains an allegation made by Baldwin's ex-
wife, during a bitterly contested divorce proceeding in 1984, that
he "is and always has been a drug dealer."
     The search warrant was issued on October 3, 1988. Therefore,
the above two allegations, which were made approximately four years
earlier, do not establish that appellant was involved in any
illegal activity in close proximity to the time of the issuance of
the warrant.   The other alleged instances of criminal activity
occurred months before the search warrant was issued.    According
to the application, the Flathead County Attorney received an
anonymous tip concerning appellant's illegal activities on February
25, 1987. This tip was given almost two years before his house was
searched.       The final observation of appellant's alleged marijuana
operation apparently occurred in October or November of 1987--a
full year before the search occurred.
     This information is not sufficient to establish probable cause
and therefore is not legally sufficient to uphold the search
warrant.        Before a search warrant can be issued, it is incumbent
upon the State to show that the alleged criminal conduct is
occurring at the present time. State v. Walston (Mont. 1989), 768
P.2d 1387,      46    St.Rep. 309.
     A   further shortcoming of the application is its failure to set
forth factors apprising the court of the anonymous informant's
reliability.           According to the application, the investigating
officer relied upon information obtained through a ''confidential
informant   .         The       affidavit does   not,   however,   contain   any
information which would tend to bolster the informant's credibility
or apprise the court of the officer's reasons for believing the
informant was trustworthy. Jones v. United States (1960), 362 U.S.
257, 80 S.Ct. 725,          4   L.Ed.2d 697; State v. Seaman (Mont. 1989), 771
P.2d 950,   46       St.Rep. 512.
     This omission is a major                 flaw to the affidavit.         The
information was obtained by the informant through a                    friend.
Apparently, the informant never personally observed the marijuana
growing operation.              Despite the inherently unreliable nature of
this hearsay, the investigating officer never offered any evidence
establishing the informant's basis of knowledge or reliability.
     In lieu of this information, the officer sought to corroborate
the anonymous tip with independent evidence obtained through the
power company and the appellant's financial records.     During this
investigation, the police officer misread a term in a contract for
deed and as a result of this mistake, wrongfully apprised the court
of the appellant's financial condition.        This mistake, which
significantly exaggerated the amount of money         spent by    the
defendant, requires that all references to his financial dealings
be excised from the affidavit. This information cannot be used to
establish probable cause on the later motion to suppress before the
~istrictCourt.     State v. Nanoff (1972), 160 Mont. 344, 502 P . 2 d
1138; Franks v. Delaware (1978), 438 U.S. 154, 98 S.Ct. 2646, 57
L.Ed.2d 631.
     The investigating officer also subpoenaed the appellant's
utility records.     These records indicated that the appellant
consumed an unusually large amount of electricity.        Because an
indoor marijuana growing operation uses high-powered solar lamps,
the investigating officer reasoned that this high electricity use
was indicative of such illegal activity.       This information was
included within the affidavit to bolster the information supplied
by the anonymous tip. The officer also, through a personal viewing
of the house, observed ventilating fans on the shop.     These fans,
it is argued, further corroborate the belief that the appellant had
a large scale growing operation.
      However, this information alone does not        establish   the
probability of any illegal activity.    The electrical consumption
and the ventilating fans are equally indicative of normal, everyday
activity, such as a home welding operation.   The officer failed to
compare the appellant's electrical consumption with that of the
previous owners and therefore failed to satisfactorily establish
that the power usage was extraordinarily high.   This information
has at best, only minor corroborative effect.
      As a whole, the information contained in the affidavit, after
examining the "totality of the circumstance^,^^ does not establish
probable cause.    The false financial information indicating the
appellant had access to large sums of money was properly excised
from the affidavits.    However, the stale information contained
within the application, which was at least a year old, was
improperly relied upon.       Had this information been properly
excised, the affidavit would not have met the ''totality of the
circumstancesn test. When this information is taken out, the only
facts left which provide any indication of illegal activity, are
that the appellant used a large amount of electricity, that his
garage was equipped with an extensive ventilating system and the
statement of a neighbor that the appellant operated no commercial
enterprise on his property.   This information under a "totality of
the   circumstance^^^ analysis does not meet the standard necessary
to allow the government to search a citizen's home.
      The application for the search warrant is insufficient as a
matter of law, because it relies upon stale information which is
several years old, a mistaken reading of the appellant's financial
records, and unsubstantiated rumors.      This is inherently weak
evidence and it does not meet the necessary threshold of probable
cause.   Therefore, this case should be reversed and remanded with
instructions to suppress the evidence seized pursuant to the issued
search warrant.




     Justices William E. Hunt, Sr., and John C. Sheehy concur in
the foregoing dissent.
                                      f
           IN THE SUPREME C0URT:OF THE STATE OF MONTANA
                           No. 89-136

STATE OF MONTANA,
           Plaintiff and Respondent,
                                         \



    v.
MARK CHARLES BALDWIN
           Defendant and Appellant.


     On March 20, 1990, this Court issued its Opinion in the above
entitled case.   On March 29, 1990, appellant filed a petition for
rehearing and the respondent State has filed its response. After
considering the same, IT IS HEREBY ORDERED that the following
changes be made in our opinion in this matter.
     1.   Delete the following paragraphs on pages 2, 3 and 4:
         Sergeant Rick Hawk of the Flathead County Sheriff s
    Department applied for an investigative subpoena duces
    tecum for power and telephone records for appellaritts
    residence at 420 Sharon Road in Kalispell. Included in
    the application was a tip received by the Flathead County
    Sheriff's Department in 1983 regarding appellant's
    alleged involvement in cocaine importation. The tipster
    stated appellant would travel to Seattle to pick up a
    quantity of raw lumber shipped from Colombia.        This
    shipment allegedly concealed cocaine. Joint observation
    by the Sheriff's Department and the Drug Enforcement
    Administration revealed that appellant did indeed travel
    to Seattle but was unable to collect the delivery
    described. Documentation of the shipment showed it
    contained raw Colombian lumber.
         Hawk also made part of his application a statement
    made by appellant's ex-wife during a 1984 deposition
    taken in the course of their dissolution to the effect
    that appellant     and always has been a drug dealer.n
Additionally, the Flathead County Attorney in February,
1987, reported an anonymous tip that appellant concealed
a hydroponic marijuana cultivation operation in his
garage.   After compiling this data, Sgt. Hawk then
contacted a confidential informant whose statements he
included in the application for investigative subpoena.
According to this informant, appellant remodeled his
garage so that it appeared to contain an apartment.
However, a false wall in the building concealed
appellant's marijuana growing operation.        Appellant
reportedly had three associates, one of whom provided the
initial cash investment. Each of the other two possessed
2,500 marijuana plants. Appellant reportedly had 2,500
mature plants, located both in his house and the garage,
and 2,500 "starts. The informant s information derived
primarily from a source close to appellant although the
informant observed the grow operation in October or
November of 1987.


     Records subpoenaed from pacific Power and ~ i g h t
Company indicated that appellant's residence was not
heated by electricity. In addition, the account for 4204
Sharon Road was in the name of Mike Barker. Barker was
also listed as the guarantor on appellant's account. On
Pacific Power and Light records appellant listed his
employment as "disabled.It Sgt. Hawk drove by appellant s
residence at 420 Sharon Road and verified that an
addition to the garage located on the property bore the
number 420%. Sgt. Hawk set forth further information
gleaned from public records, specifically a Warranty
Deed, and thus stated in his application that appellant
paid $10,000 cash and other consideration for the
property at 420 Sharon Road. Sgt. Hawk further stated
that appellant, although without visible means of
support, obtained "clear titleH to this property.
2.   The deleted paragraphs shall be replaced by the following:
     Deputy Flathead County attorney, Thomas J. Esch,
applied for an investigative subpoena duces tecum for
power and telephone records for appellant's residence at
420 Sharon Road in Kalispell.         Included in the
application was a tip received by the Flathead County
Sheriff's Department in 1983 regarding appellantls
alleged involvement in cocaine importation. The tipster
stated appellant would travel to Seattle to pick up a
quantity of raw lumber shipped from Colombia.       This
shipment allegedly concealed cocaine. Joint observation
by the Sheriff's Department and the Drug Enforcement
Administration revealed that appellant did indeed travel
to Seattle but was unable to collect the delivery
described. Documentation of the shipment showed it
contained raw ~olombianlumber.
     Esch also made part of his application a statement
made by appellant's ex-wife during a 1984 deposition
taken in the course of their dissolution to the effect
that appellant l1is and always has been a drug dealer."
Additionally, the Flathead County Attorney in February,
1987, reported an anonymous tip that appellant concealed
a hydroponic marijuana cultivation operation in his
garage. After compiling the above data, Sgt. Rick Hawk
of the Flathead County Sheriff's Department then
contacted a confidential informant whose statements were
included in the application for investigative subpoena.
According to this informant, appellant remodeled his
garage so that it appeared to contain an apartment.
However, a false wall in the building concealed
appellant's marijuana growing operation.        Appellant
reportedly had three associates, one of whom provided the
initial cash investment. Each of the other two possessed
2,500 marijuana plants. Appellant reportedly had 2,500
mature plants, located both in his house and the garage,
and 2,500 "starts.It The informantIs information derived
primarily from a source close to appellant although the
informant observed the grow operation in October or
November of 1987.


     Records subpoenaed from pacific Power and Light
Company indicated that appellant's residence was not
heated by electricity. In addition, the account for 420%
Sharon Road was in the name of Mike Barker. Barker was
also listed as the guarantor on appellant's account. On
Pacific Power and Light records appellant listed his
employment as "disabled. Sgt. Hawk drove by appellant s
residence at 420 Sharon Road and verified that an
addition to the garage located on the property bore the
number 420i. Esch set forth further information gleaned
from public records, specifically a Warranty Deed, and
thus stated in his application that appellant paid
$10,000 cash and other consideration for the property at
420 Sharon Road. The application further stated that
appellant, although without visible means of support,
obtained "clear title" to this property.
     3.    With the above changes ordered, this Court finds no
sufficient basis for rehearing of this matter.
     4.   Remittitur shall issue forthwith.
     DATED this   _dth day
                   I-        of April, 1990.




                                                 Justices


Justice R. C. MdDonough, Justice John C. Sheehy, and Justice
William E. Hunt, Sr., would grant a rehearing.
