                            NO.    94-319
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1995


STATE OF MONTANA,
          Plaintiff and Respondent,
     v.


          Defendant and Appellant.



APPEAL FROM:   District Court of the Fifth Judicial District,
               In and for the County of Beaverhead,
               The Honorable Frank M. Davis, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Douglas J. DiRe, Knight, Dahood, McLean,
               Everett & Dayton, Anaconda, Montana
          For Respondent:
               Hon. Joseph P. Mazurek, Attorney General,
               Barbara C. Harris, Assistant Attorney
               General, Helena, Montana
               Thomas R. Scott, Beaverhead County Attorney,
               Calvin Erb, Deputy County Attorney,
               Dillon, Montana


                              Submitted on Briefs:     April 27, 1995
                                            Decided:   August 1, 1995
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.

        Appellant Harvey D. Lott appeals from his conviction of

possession of dangerous drugs and possession of drug paraphernalia

in the District Court for the Fifth Judicial District, Beaverhead

County.
        We reverse.

        The sole issue on appeal is:

        Did the District Court err when it denied appellant's motion

to suppress evidence?
        In September 1993, the Department of Narcotics Task Force in

Arizona contacted the Beaverhead County Sheriff's Office. It
informed them that a package containing marijuana was recovered in

a random audit by United Parcel Service in Tucson, Arizona, and

that the recovered package was addressed to appellant at his home

address in Dillon, Montana.
        The Beaverhead County Sheriff's Office decided to set up a

"controlled    drop,"   or delivery of the package by an undercover

officer to appellant's home address.      Before the controlled drop,

the Sheriff's Office obtained search warrants for appellant's home

and for his three vehicles.
        Appellant was at work when the package was delivered to his

home.     At appellant's request,   one of his co-workers went to his

home,   picked up the package, and delivered it to him while he was

at work.     Beaverhead County law enforcement officers watched this

scenario unfold.


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         The affidavit in support of the request for leave to file an

information     states:

         That Harvey D. Lott then unwrapped the package and placed
         the contents in his coat and proceeded to leave the area.
         A short time later Harvey D. Lott was stopped by Deputy
         Sheriff   Jay T.   Hansen   and other    law enforcement
         personnel.   In the truck owned and driven by Harvey D.
         Lott, the marijuana was in a coat and placed in between
         the seats of this motor vehicle.

         An affidavit in support of a subsequent application for a

warrant to search appellant's storage shed provides more detail:

          [The co-worker] delivered the package to Harvey D. Lott
         at the State Lands Office in Dillon, Montana, and Harvey
         D. Lott acknowledged receipt of the package.

           Later, on [the same day], Harvey D. Lott was
     observed leaving the State Lands Office with the United
     Parcel Service package in his possession. Harvey D. Lott
     was observed throwing items into or around the dumpster
     in the back of the State Lands Office.     Harvey D. Lott
     entered his vehicle and left the parking area of State
     Lands. Harvey D. Lott left in a 1991 Ford pickup truck,
     license place number 18T-924C.     At that time a stop of
     Harvey D.    Lott's vehicle    was   effectuated by law
     enforcement and Harvey D. Lott was placed under arrest
     for suspicion of possession of dangerous drugs. An
     examination of the dumpster behind the State Lands Office
     revealed that the box in which the marijuana was shipped
     had been discarded in the dumpster. A subsequent search
     of the 1991 Ford pickup truck owned and occupied by
     Harvey D. Lott revealed the marijuana wrapped in a coat
     and placed between the seats in the motor vehicle.

     A search of appellant's home netted a set of grow lights, a

scale,    a sandwich baggie, two additional containers of marijuana,

marijuana seeds, rolling papers, a knife with marijuana or hashish

residue,     a $20 bill rolled to form a straw, and a homemade

marijuana or hashish pipe.      Appellant was charged with two counts

of possession of dangerous drugs with intent to sell, misdemeanor


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possession       of   dangerous    drugs,      and   possession   of   drug
paraphernalia.

         Appellant moved to suppress evidence of the marijuana seized

from his truck, arguing that the State failed to establish probable

cause to search the truck and that the search warrant was,

therefore,     invalid.     The District Court denied the motion ruling

that the search warrant was valid and that the search of the truck

was also justified under the automobile exception to the warrant

requirement.      Pursuant to a plea agreement, appellant pled guilty

to the charges against him.

                                    ISSUE

         Did the District Court err when it denied appellant's motion

to suppress evidence?
         We review a district court's ruling on a motion to suppress to

determine whether there is substantial credible evidence to support

the court's findings of fact and whether the court correctly

applied the findings as a matter of law.             State v. Stubbs (Mont.

1995),     892 P.2d 547, 550, 52 St. Rep. 232, 233.         In addition, we

determine whether the district court's interpretation of the law

was correct.      Stubbs,   892 P.2d at 550.

     A search of a place may be made, and contraband may be seized,
when the search is made either by the authority of a valid warrant

or in accordance with a judicially recognized exception to the

warrant     requirement.    Section 46-5-101, MCA.      The District Court




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denied appellant's motion to suppress the contraband seized from

his truck after concluding that the search warrant was valid.

      A warrant is valid if the application in support thereof:

(1)   states sufficient facts to support probable cause to believe

that an offense has been committed; (2) states sufficient facts to

support probable cause to believe that contraband connected with

the offense may be found;         (3)       describes   with   particularity   the

place to be searched; and (4) describes with particularity what is

to be seized.     Section 46-5-221, MCA.

       In the present case, the affidavit supporting the application
for a    search warrant recites background data regarding what

transpired in Arizona, how the marijuana was being sent to Montana,
and how it would be delivered to appellant's home via a "controlled

drop."   Concerning the truck, the affidavit states:

      That Affiant is further informed and believes that the
      said Harvey D. Lott owns three (3) vehicles that may be
      used in the distribution of a controlled substance. Said
      vehicles are described as a 1962 Ford pickup truck, white
      in color . . a 1980 Yamaha motorcycle, black in color
      . . and a 1991 Ford pickup truck, silver in color.
      Appellant   argues   that    the       affidavit in       support of     the

application for a warrant to search his truck does not state facts
sufficient to justify a conclusion that evidence or contraband

would probably be found in the truck.

      The affidavit in support of the application for a warrant to

search appellant's truck states that the marijuana was being

delivered to appellant's home.      The only discussion of the truck is

the conclusory statement that appellant's three vehicles "may                  be

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used in the distribution of a controlled substance."              No facts are
set forth supporting that particular conclusion.

       "A mere affirmance of belief or suspicion by a police officer,

absent any underlying facts or circumstances, does not establish

probable cause for the issuance of a search warrant."                   State v.

Isom (1982),     196 Mont. 330, 343, 641 P.2d 417, 424.                Here, the

affiant's statement that appellant's vehicles "may be used" to

distribute drugs is unsupported by any underlying facts or

circumstances.       The affidavit did not provide a substantial basis

for concluding that probable cause existed to search the truck.

Consequently, we hold that the search warrant was invalid as to the

truck.

       The District Court concluded further that independent of the

validity of the warrant, the stop and search of appellant's truck

was permissible under the automobile exception to the warrant

requirement.     We disagree.

       Under the automobile exception to the warrant requirement, the

police may search an automobile without a warrant if the search is

supported by probable cause and there is the presence of exigent

circumstances.       State v. McCarthy (1993), 258 Mont. 51, 56-57, 852

P.2d 111,     114.     In   Montana,   exigent   circumstances    include    the

mobility of the vehicle, the possible destruction of the evidence,

the safety of police officers,              emergency    situations,    and the

potential gravity of the crime committed.               McCarthy, 852 P.2d at

114.     The record shows that appellant was observed opening a box,


                                        6
throwing the box into a dumpster, and entering a building with the

contents of the box.        A short time later he left the building,

entered his truck, and drove away.         Appellant was never observed

placing anything in his truck before he drove away. Nothing in the

actions of appellant warranted a search based on probable cause.

Similarly,     there     existed   none   of      the   recognized    exigent

circumstances that would allow a warrantless search of appellant's

vehicle.

     We    hold   that   the   District   Court     erred   when it    denied

appellant's motion to suppress evidence.

     For the reasons set forth above, we reverse.




We concur:



     Chief Justic




             Justices
Chief Justice Turnage, dissenting.



         I respectfully dissent from the conclusion of the majority
that the search of Lott's truck was not justified under the automo-

bile exception to the warrant requirement.

       This Court has held that the automobile exception to the

warrant     requirement   demands   two   things:    (1) the existence of

probable cause to search; and (2) the presence of exigent circum-

stances making it impracticable to obtain a warrant.              State v.

Allen (1992), 256 Mont. 47, 51, 844 P.2d 105, 108.          Probable cause

requires only a probability of criminal activity, not a prima facie

showing.     State v. Dess (1982), 201 Mont. 456, 465, 655 P.2d 149,

154.     In determining whether exigent circumstances are present, all

circumstances are relevant.         As the majority has noted, 'I [plolice

may need to consider not just the mobility of the vehicle, but the

possible destruction of evidence, the safety of police officers,

emergency     situations,    and the possible gravity of         the   crime

committed."      State v. McCarthy (19931, 258 Mont. 51, 57-58, 852

P.Zd 111, 115.

       In this case,      the officers knew that a package containing

fourteen ounces of marijuana had been delivered to Lott's resi-

dence.      When they stopped and searched Lott's truck, they had

important additional information, as well.          They knew that Lott had

asked a co-worker to pick up the package from his residence and

deliver it to him at work at the State Lands office.             They knew

that Lott received the package.            They knew he thereafter went

outside the State Lands office, opened the package and took out the



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cellophane-wrapped   marijuana.        They knew that Lott then got into

his truck and drove away.

     From the above facts,    I conclude that the Beaverhead County

law enforcement officers had probable cause to believe that Lott's

truck contained contraband.       Further,   it would have been easy for

Lott to flee with or dispose of the contraband.          I conclude that

exigent circumstances were present in which there was a real danger

of loss or destruction of evidence.        I would hold that, under these

circumstances,   a warrantless search of Lott's truck was justified,

and that the District Court did not err in denying the motion to

suppress the marijuana seized as a result of that search.




Justice Fred J. Weber joins in the foregoing dissent of Chief

Justice J.A. Turnage.




Justice James C. Nelson joins in the foregoing dissent of Chief

Justice J. A. Turnage.




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