                                            Nos. 01-857 & 01-858

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                  2002 MT 188


STATE OF MONTANA,

                 Plaintiff and Respondent,

         v.

PENNY LYNN GRAMS,

                  Defendant and Appellant.
------------------------------------------------------
STATE OF MONTANA,

                 Plaintiff and Respondent,

         v.

RICKY LEE GRAMS,

                 Defendant and Appellant.


APPEAL FROM:              District Court of the First Judicial District,
                          In and for the County of Lewis and Clark,
                          The Honorable Dorothy McCarter, Judge presiding.

COUNSEL OF RECORD:

                 For Appellants:

                          Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena, Montana 59604

                 For Respondent:

                          Hon. Mike McGrath, Attorney General; Tammy K. Plubell,
                          Assistant Attorney General, Helena, Montana

                          Leo Gallagher, Lewis and Clark County Attorney; Jorge Quintana, Deputy
                          County Attorney, Helena, Montana


                                                   Submitted on Briefs: March 28, 2002
                                                                            Decided: August 29, 2002
Filed:
                          __________________________________________
                                            Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1   Ricky Lee Grams (“Rick”) and Penny Lynn Grams (“Penny”) appeal

an Order on Motion to Suppress from the First Judicial District

Court, Lewis and Clark County.     We affirm.

¶2   The following issue is dispositive of this appeal:

¶3   Did the application for a search warrant provide sufficient

probable cause for its issuance?

                               BACKGROUND

¶4   On March 13, 2001, Helena Police Officer Mark Ekola applied

for a search warrant to search the residence of Rick and Penny

Grams   (collectively,   the   “Grams”).     Approximately   one   month

earlier, authorities arrested fourteen-year-old Z.D. for possession

of marijuana.    Z.D. told Officer Ekola that he had twice purchased

marijuana from R.G., a fellow student at C.R. Anderson Middle

School.    On March 8, 2001, authorities cited twelve-year-old M.J.,

another middle school student, for distributing marijuana on school

grounds.
¶5   Officer Ekola interviewed M.J. in the presence of her mother.

 During the interview, M.J. told Officer Ekola that she also

obtained the marijuana from R.G.       M.J. said that R.G. obtained her

marijuana from her father, Rick.

¶6   During his investigation, Officer Ekola learned that R.G. had

held a slumber party on February 24, 2001, at the Grams’ home.

R.G.’s middle school friends, A.E., B.C., S.P., A.R. and S.R.,

attended the party.    All the girls were between the ages of twelve

and thirteen.




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¶7   S.R. told Officer Ekola that R.G. took them into her father’s

bedroom, where she pointed out a file cabinet.                   R.G. removed a

large freezer bag full of apparent marijuana from the top drawer of

the cabinet.       R.G. told S.R. that her father approved of her

smoking marijuana and did not care if she went into his bedroom to

obtain the marijuana.      The girls attending the party told Officer

Ekola that they smoked marijuana during that evening.               Some of the

youth told Officer Ekola that during the evening, Rick and Penny,

and two unknown males, sat in the living room in front of the girls

and smoked marijuana.
¶8   Based on this information, Officer Ekola obtained a warrant to

search the Grams’ residence for marijuana and drug paraphernalia.

On March 19, 2001, the State of Montana filed a complaint in

justice court charging Rick and Penny with the following offenses:

endangering    the    welfare    of   a   child,    a   misdemeanor;    criminal

possession    of     dangerous   drugs,       a   misdemeanor;    and   criminal

possession of drug paraphernalia, a misdemeanor.             The justice court

conducted a bench trial on June 6, 2001.                At the conclusion of

trial, the State moved to dismiss the charge of endangering the

welfare of a child, which the court granted.              The court found both

Rick and Penny guilty of criminal possession of dangerous drugs and

criminal possession of drug paraphernalia.              On June 19, 2001, the

court imposed sentence.          Rick and Penny then filed a notice of

appeal, and the justice court stayed their sentences pending the

appeal to the District Court.




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¶9      The District Court set a scheduling conference for July 16,

2001.    After the scheduling conference, the court set a jury trial

for October 1, 2001.        On August 30, 2001, Rick and Penny filed a

motion to suppress all the evidence that law enforcement officers

seized from their home.          The Grams argued that probable cause did

not support the search warrant.              After hearing briefs on this

matter, the District Court entered an order denying the Grams’

motion to suppress.        The Grams appeal.

                             STANDARD OF REVIEW
¶10     When reviewing a district court’s denial of a motion to

suppress, we determine whether the court’s interpretation and

application of the law is correct.           See State v. Reesman, 2000 MT

243, ¶ 18, 301 Mont. 408, ¶ 18, 10 P.3d 83, ¶ 18.             In addition, our

function as a reviewing court is ultimately to ensure that the

lower court had a “substantial basis” to determine that probable

cause existed.         See Reesman, ¶ 19.       In our review, we will pay

great deference to a court’s determination that probable cause

existed and draw every reasonable inference possible to support

that determination.        See Reesman, ¶ 19.

                                   DISCUSSION

¶11     Did the application for a search warrant provide sufficient

probable cause for its issuance?

¶12     The District Court held that the application for the search

warrant provided sufficient legitimate information to uphold the

validity    of   the    search    warrant.      The   court   noted   that   the

application contained two hearsay statements.            In particular, M.J.



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stated that R.G. had told her that she obtains marijuana from her

father and that R.G. told everyone that her father approves of her

smoking marijuana.   The court concluded that the statement by S.R.

that R.G. took her and the other girls to Rick’s bedroom and

removed a large freezer bag of marijuana from the top drawer of his

filing cabinet corroborated M.J.’s statement.         It also concluded

that the statements of R.G.’s friends that they smoked marijuana at

a sleep-over party at the Grams’ residence and that Rick and Penny

smoked marijuana in front of them corroborated          the statements

about Rick approving of R.G. smoking marijuana.
¶13    Rick and Penny disagree with the District Court's conclusion

that there was corroboration of the two hearsay statements.        They

maintain that the application did not show how S.R. could have

personal knowledge that (1) the bedroom was Rick’s, (2) M.J.

removed the alleged freezer bag of marijuana from his filing

cabinet and (3) the bag actually contained marijuana.         The Grams

also    contend   that,   without       independent   law   enforcement

investigation of the hearsay statements, the girls’ statements that

they smoked marijuana all evening did not provide sufficient

corroboration.

¶14    In order for an application for a search warrant to be

sufficient, it must state facts sufficient to show probable cause

for the issuance of the warrant.        See § 46-5-221, MCA; State v.

Kuneff, 1998 MT 287, ¶ 21, 291 Mont. 474, ¶ 21, 970 P.2d 556, ¶ 21.

 When deciding whether probable cause existed for issuance of a

warrant, we follow the “totality of the circumstances” test set



                                    6
forth in Illinois v. Gates (1983), 462 U.S. 213, 103 S. Ct. 2317,

76 L. Ed. 2d 527.        See State v. Crowder (1991), 248 Mont. 169, 173,

810 P.2d 299, 302.        Under this test, to determine whether a court

should issue a search warrant, “the judge evaluates the facts

asserted within the four corners of the application and makes a

practical, common-sense decision as to whether there is a fair

probability that incriminating items will be found in the place to

which entry is sought.”          State v. Worrall, 1999 MT 55, ¶ 28, 293

Mont. 439, ¶ 28, 976 P.2d 968, ¶ 28 (citing State v. Sundberg

(1988), 235 Mont. 115, 119, 765 P.2d 736, 739).
¶15    As   a   reviewing    court,    we    too    must    look    solely     to   the

information given to the impartial magistrate and to the four

corners of the search warrant application.                 See Crowder, 248 Mont.

at 173, 810 P.2d at 302 (citing Sundberg, 235 Mont. at 121, 765

P.2d at 740).          We will not review a search warrant application

sentence by sentence, but, rather, we will examine the entire

affidavit       to   determine   whether     the    issuing       magistrate    had   a

substantial basis to conclude that probable cause existed.                          See

State v. Hulbert (1994), 265 Mont. 317, 323, 877 P.2d 25, 29.

¶16    Not all evidence in the application for the search warrant was

hearsay.         The    application    noted       that    five    girls    told    law

enforcement that they had smoked marijuana at the Grams’ home and

that the Grams smoked marijuana in front of them.                   This case turns

on    whether    this    testimony    provided      the    magistrate      sufficient

probable cause to issue a search warrant.




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¶17   We    set    forth        a    step-by-step           analysis    in    Reesman     for

determining whether an informant’s information is sufficient to

establish probable cause.                  The initial question is whether the

informants were anonymous.                  See Reesman, ¶ 28.              Here, the five

girls, A.E., B.C., S.P., A.R. and S.R., who attended the slumber

party are informants.                None of them are anonymous, as all five

spoke directly with law enforcement officers and the application in

support of the search warrant identifies all five.

¶18   If   the informants are not anonymous, as is the case here, we

then turn to a second threshold question: “is the informant’s

information       based    on       his    or    her    personal    observation      of   the

described criminal activity?                    In other words, is the basis of the

information hearsay?”               Reesman, ¶ 29.          A.E., B.C., S.P., A.R. and

S.R. base their statements on personal observation; they admitted

smoking marijuana at Rick’s house and told law enforcement officers

that Rick and Penny smoked marijuana in front of them.
¶19   Because      the    girls'          statements        were   based     on   first-hand

evidence, the final question is whether the informant is a reliable

source of such information.                 See Reesman, ¶ 31.          A magistrate can

deem an informant reliable if: (1) an officer’s application for a

search     warrant       identifies         an        informant    as   a    “confidential

informant” who has provided reliable and accurate information to

law enforcement officers in the past; (2) the informant makes an

unequivocal admission against interest; or (3) the informant was

motivated    by     good    citizenship               and   demonstrates      a   sufficient

understanding of the circumstances under which the informant came



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to know the information.          See Reesman, ¶ 32-34.        If the informant

is deemed reliable under one of these three scenarios, then the

police    need     not       independently       corroborate   the     informant’s

information.       See Reesman, ¶ 35.            Here, the five girls admitted

smoking       marijuana,     an   illegal       substance.     These   admissions

constituted an unequivocal admission against their interest.

¶20   For these reasons, we conclude that the girls’ admissions that

they smoked marijuana in the Grams’ presence, while the Grams also

smoked marijuana, in the Grams’ home, provided sufficient probable

cause    to    obtain    a   search   warrant.       Because   these   admissions

constituted sufficient probable cause, we need not address the

adequacy of the hearsay statements concerning admissions by M.J.




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¶21   Affirmed.


                                 /S/ JIM REGNIER


We Concur:

/S/   KARLA M. GRAY
/S/   PATRICIA COTTER
/S/   TERRY N. TRIEWEILER
/S/   JIM RICE




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