                                  No. 12295

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

                                        1972



THE STATE O M N A A e x r e l . J O N REED=
           F OTN                                WICKS,

                         Rela t o r ,



THE DISTRICT COURT O THE TENTH JUDICIAL DISTRICT O
                    F                             F
THE STATE O MONTANA, I N AND FOR THE COUNTY O FERGUS,
           F                                 F
AND THE HONORABLE LEROY L. MCKINNON, JUDGE,

                           Respondent.



O r i g i n a l Proceedings.

Counsel of Record:

          For Appellant :

                Robert L. Johnson argued, Lewistown, Montana 59457.
                William E. Berger, Lewistown, Montana 59457.

          For Respondent :

                T. P. Cowan, Deputy County A t t o r n e y , Lewistown, Montana
                William A. Spoja argued, County A t t o r n e y , Lewistown,
                  Montana 59457.
                Robert L. Woodahl, A t t o r n e y General, Helena, Montana 59601.
                J. C. Weingartner, A s s i s t a n t A t t o r n e y General, Helena,
                  Montana 59601.



                                                  Submitted:     June 30, 1972.

                                                    Decided :        -
                                                                J(JL 7 1972
Filed :    JUL 7   - 19E.
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
        Relator Jon Reeder Wicks, defendant in criminal cause
#2800 in the district court of Fergus County, seeks a writ of
supervisory control from this Court suppressing certain evidence
and dismissing the case against him in the district court.
        On February 22, 1972, the deputy county attorney of Fergus
County filed a complaint under oath against Wicks charging him with
the criminal sale of marihuana to one Michael Hunter on or about
October 21, 1971.   The justice of the peace issued a warrant of
arrest for Wicks.   Subsequently on the same day, the Fergus
County sheriff apprehended and arrested Wicks about 6:00 p.m. on
a gravel road about four miles west of Lewistown.   Wicks was driv-
ing his car accompanied by James Langford and Russell Fairbairn.
After arresting Wicks and his two companions, searching their
persons, and placing them in two sheriff's cars, the sheriff search-
ed the front seat area of Wicks car and found a black bag alleged-
ly containing marihuana and hash pipes under the front seat.    The
sheriff took the black bag and its contents into custody, called
a wrecker and towed the Wicks car into Lewistown, and jailed Wicks
and the two occupants of his car.   Subsequently a search warrant
was issued authorizing a search of the car and a residence in
Lewistown.
        Two days later an information was filed directly in the
district court, pursuant to leave of court, charging Wicks with
two felonies:   (1) Having in his possession more than 60 grams of
marihuana on February 22, 1972 (the contents of the black bag),
and (2) selling marihuana to Michael Hunter on October 21, 1971.
Eight days later on March 3, 1972, the county attorney dismissed
the second charge involving the sale of marihuana to Michael Hunter.
        Thereafter Wicks entered a plea of not guilty to the re-
maining charge of possession of marihuana and filed two motions:
(1) For an order suppressing from evidence the marihuana seized
from defendant's car on the basis that it was the product of an
unlawful search and seizure by the sheriff.     (2) For an order
dismissing the charge on the basis that it was filed without
probable cause and was founded on an invalid warrant of arrest
and an unlawful search and seizure.
        An evidentiary hearing was held on these motions and
thereafter both were denied by the district court.    This appli-
cation for review and reversal of these rulings by writ of super-
visory control followed.
           The state contends that the marihuana found under the
front seat of defendant's car was discovered and seized as an
incident to a lawful arrest upon probable cause.    Defendant con-
tends otherwise.
           In our view, the decision in this case turns on whether
Wicks' arrest was lawful or not.    This arrest was the fountain-
head from which everything else flowed, and without which there
is no case against Wicks.
       At the outset, it is clear that the legality of Wicks'
arrest must be measured in terms of an arrest by a peace officer
with a warrant.    The sheriff's testimony indicates he arrested
Wicks on the basis of the warrant, and the sheriff's return on
the arrest warrant indicates the arrest was made pursuant to the
warrant.    The sheriff's testimony that he would have arrested
Wicks anyway without a warrant based on undisclosed information
given to him by unidentified informers whose reliability is
undisclosed, furnishes no basis for validating Wicks' arrest.
           Section 95-603, R.C.M. 1947, provides that a complaint,
as the basis of an arrest warrant, shall be in writing; that
"the court shall examine upon oath the complainant and may also
examine any witnesses"; and, if the contents of the complaint
and the examination of the complainant and other witnesses,
if any, disclose "that there is probable cause to believe that
the person against whom the complaint was made has committed
an offense", an arrest warrant shall be issued.
        Measuring the facts of this case against these statutory
requirements, it is clear that probable cause was not shown for
the issuance of a warrant of arrest for Wicks.    The complaint
of the deputy county attorney, under oath, discloses nothing
more than the bald conclusion that Wicks sold a quantity of
marihuana to Hunter on a certain date some four months previously,
in violation of section 54-132, R.C.M. 1947, of the Dangerous
Drug Act.
        Evidence at the hearing disclosed that neither the corn-
plainant nor the justice of the peace could remember whether the
complainant was examined under oath; the docket in the justice
court does not indicate that the complainant or anyone else was
so examined, it simply shows that the complaint was filed and
the arrest warrant issued.
        Michael Hunter, an undercover narcotics agent to whom the
marihuana was allegedly sold by Wicks on October 21, 1971, which
formed the basis of the complaint on which the arrest warrant
was issued, testified that he "did not purchase drugs from Jon
Wicks directly"; that the source of the drugs he purchased "could
have come from anybody in town"; that he told an attorney in
Bozeman that he "had no drug purchases from Jon Wicks"; and, that
a recital in a statement to Wicks' attorney to the effect that
Hunter had "at no time bought drugs from Jon Wicks" contained no
error whatsoever.   Subsequently this charge on which the arrest
warrant was issued was dismissed in the district court on motion
of the county attorney.    The foregoing evidence destroys any
presumption that might otherwise exist that official duty has
been regularly performed as required by section 93-1301-7(15),
R.C.M. 1947, and Petition of Jones, 143 Mont. 19, 386 P.2d 747.
        The showing of "probable cause" required for issuance
of a warrant of arrest is similar and analogous to the showing
of "probable cause" required for the issuance of a search war-
rant.   Such requirements are set forth in Petition of Gray, 155
Mont. 510, 473 P.2d 532.   As applied to the facts of this case,
such showing must disclose facts which will enable the magis-
trate to make a judicial determination of the existence of
probable cause and undisclosed information possessed by law
enforcement officers is irrelevant.
        In the instant case it appears that complainant was not
examined under oath; that no showing of "probable cause" was
made to the magistrate who issued the arrest warrant; and, that
an absence of ''probable cause" was demonstrated by defendant.
Accordingly, the arrest warrant was invalid and the subsequent
search and seizure unlawful.
        The motion of defendant to suppress the use in evidence
of the black bag allegedly containing marihuana is granted.      The
motion of defendant to dismiss cause #2800 in the district court
of Fergus County is likewise granted.


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                                        Associate Justice
