LEE R. KERR

ROSEBUD COUNTY ATTORNEY

Rosebud County Courthouse

P.O. Box 69

Forsyth, MT 59327

ATTORNEY FOR PLAINTIFF

MONTANA SIXTEENTH JUDICIAL DISTRICT COURT, ROSEBUD COUNTY

)

STATE OF MONTANA, ) CAUSE NO. DC 95-51

)

Plaintiff, )

vs )

)

TERRY LOU RICKS, ) STATE’S RESPONSE TO DEFENDANT’S

) MOTION TO SUPPRESS

Defendant. )

The state is somewhat concerned that the court has chosen to render the omnibus guidelines and time settings meaningless by its order dated January 11, 1996. Even though the Court notes that the defendant did not request an extension of time, did not file its motion until 47 days after the date set for filing of his motion, and the Court further assuming that the delay was due to the defense counsel’s own neglect, none the less allows the defendant to proceed with his motion, apparently to avoid an ineffective assistance of counsel claim at a later date. Further, the Court also appears to have prejudged the motion, determining that the evidence should be suppressed, without giving the State an opportunity to respond to the defendant’s claim prior to making that determination, for the Court, in its order of January 11, 1996, stated “Given thecircumstances of this case, including the readily apparent insufficiency of the application of the search warrant”... The State is concerned about a fair consideration on its response to the motion to suppress. In any case, the State responds to the defendant’s motion to suppress as follows:

Argument:

The State would concede and agree that the lead case applicable to the facts of this case is State vs. Rinehart, 864 P.2d 1219 (Mont. 1993), in which the Supreme Court reviews applicable state and federal constitutional law as it applies to this particular area of search, seizure and informants. The State also is attaching hereto State vs. Rinehart for the Court’s review.

The Court should note that in Rinehart there were numerous challenges to the affidavit in which the District Court suppressed its own search warrant upon review. However, this District Court decision was ultimately reversed by the Supreme Court, and the search was found to be valid, overruling or finding harmless all objections raised by defense. The State Supreme Court reiterated the following principles in reviewing search warrants.

That the determination of probable cause to a search does not require facts sufficient to make the prima facie showing of criminal activity; rather, the issuing magistrate must only determine that there is probability of criminal activity.

That the duty of the court reviewing the issuance ofthe search warrant is simply to assure that the magistrate or lower court had a substantial basis for concluding that probable cause to issue a search warrant existed.

That an affidavit supporting a search warrant is to be interpreted by the Judge and examined by the reviewing court in common sense, realistic fashion, and without grudgingly or negative attitude that will tend to discourage police officers from seeking warrants.

That reviewing courts should avoid hyper technical interpretations of search warrant applications, and in doubtful and marginal cases, resolve issue with preference for warrants in mind.

That a magistrate determination that probable cause to search exists should be paid great deference by reviewing courts and every reasonable inference possible should be drawn to support that determination.

That if a magistrate issues a search warrant after subjecting application to “totality of circumstances test,” reviewing court must presume that decision to be correct.

That corroboration of informant’s information through other sources is necessary in application for a search warrant, when information is hearsay or informant is anonymous, Id at Rinehart.

Clearly, this affidavit on its face meets the Illinois v. Gates underlying “totality of the circumstances” test. The state contends that the defense is confusing the standard that isapplied to confidential informants, with those informants that are known. Information from anonymous informants must be corroborated, whereas, information from confidential informants do not have to be corroborated, “The defendants also argue that Deputy Dusterhoff did not conduct sufficient investigation to corroborated the information received from B.W.. Corroboration of an informant’s information through other sources is necessary when the information is hearsay or the informant is anonymous. State vs. Crowder 810 P.2d at 302, State vs. Hook (1992), 255 Mont. 2,5, 839 P.2d 1274, 1276. In the instant case, the informant was not anonymous nor was the information hearsay. Rinehart at 1224.

The four corners of the affidavit indicate, that although the informant was listed as confidential, this was an informant who had considerable and extensive intimate knowledge of the contents of the house in question, criminal activity in the house, and intimate and particularized description of criminal activity and contraband in the house in specific locations. Common sense tells the magistrate that only someone who is either an occupant of the residence or had been in the residence, could have such particularized and individualized knowledge of criminal conduct and criminal contraband inside the house. This is the common sense approach mandated by Rinehart and mandated by the “totality of the circumstances” standard.

Further, the information contained within the four corners of the search warrant comes from more than one source,more than one confidential informant. It indicates that other confidential informants, known informants, not anonymous tips, but actual known informants, had advised law enforcement that the defendants were involved in narcotics, in other words, illegal activities. This is one of the primary tests and indicators for search warrants, are in fact the occupants or location to be searched involved in illegal activity. Narcotics is an illegal activity, and this information also came from other known informants.

The informant providing information on July 23, 1995, had very particularized information. The informant knew the occupants of the residence, knew the specific address of the residence, knew that they were using the particular drug methamphetamine, and knew locations of the drug in the garage. The confidential informant also stated that she had on at least one occasion actually witnessed the transfer of drugs from one of the occupants, Terry Ricks, to another individual at the residence, and that the transfer involved methamphetamine.

The informant also gave highly particularized information that marijuana, pills, and methamphetamine, which are highly particularized, and could only come from someone who had been there and had seen the drugs, by giving a specific and particularized description of specifically where the drugs were located, “Located in the closet that contains a clothes bag that has marijuana, pills, and methamphetamine in the bottom of it”. Further, this known informant gave further particularizedinformation that the bedroom occupied by Terry Ricks and Howard Gribble, “is located a shelf unit on the right side of the closet as you enter it. On the shelf is located marijuana, a bond, razors, straws, and glass”. This again, comes from a known informant who actually saw and observed criminal activity and knew the specific location of criminal contraband and where it could be found in a very specific manner. This a far cry from the information received in anonymous tips received by crime stoppers or other anonymous phone calls, but is highly specific and particularized observations and information as to criminal activity and criminal contraband that could come from only someone who was present with actual knowledge of the criminal activity and the contraband indicated. The informant’s information contained in the search warrant as to first hand observations of criminal activity was based on her own personal observations. An informants personal observation of criminal activity does not constitute hearsay evidence. See Rinehart at 1224 and Sundberg, 765 P.2d at 740.

Thus, this highly particularized warrant with specific information as to direct observations of criminal activity and contraband by a known informant meet the Illinois vs. Gates totality of the circumstances test and as interpreted by Rinehart. Therefore, the Defendant’s motion to suppress should be denied.

Good Faith Exception To Exclusionary Rule:

Alternatively, the present counsel is unable toidentify existing Montana case authority that has addressed the Supreme Court’s good faith exception to the exclusionary rule. It appears to be a matter of first impression in Montana. The over all tone of the decision in Rinehart indicates that the Montana Supreme Court may well recognize this Federal exception to the exclusionary rule. In United States vs. Leon 468 US 897 (1984), the Supreme Court held that evidence need not be suppressed when police obtain the evidence through objective good faith reliance on a facially valid warrant, that is later found to lack probable cause. The Supreme Court concluded that a good faith exception to the exclusionary rule was proper because suppression in this situation would not further the deterrent function of the rule.

If, in this case, the court would find the four corners of the warrant to be lacking, the facts of this case clearly come within the good faith exception to the exclusionary rule. The confidential non-anonymous informant, relied upon in this case, was a child of the two defendants, who provided information to law enforcement based on her own observations and personal knowledge of the contents and activities going on in her own residence. Using that information, law enforcement submitted an application for a warrant in good faith, failing to disclose the identity of the child, in an effort to protect the child from harm, with no reason to question, challenge or otherwise suspect the veracity of the child, or the information provided. As such, law enforcement operated in total good faith, and total goodfaith reliance on the warrant that was issued by Justice Court. See also United States vs. Pofahl, 990 F.2d 1456, (5th Cir.) cert. denied, 114 S.C. 560 (1993), where the good faith exception was applied when officers relied on a warrant in good faith belief of probable cause, and United States v. Williams, 3 F.3d 69, 74 (3d Cir.993), where the court found that it was unnecessary to resolve whether the affidavit established probable cause for a warrant, when the affidavit presented facts tending to show presence of illegal activity in the area to be searched.

Therefore, alternatively, if court finds that the four corners of the warrant is lacking for probable cause, then the good faith exception to the exclusionary rule exception should apply, and the evidence seized thereunder should be held admissible.

Respectfully submitted this day of January, 1996.

LEE R. KERR

ROSEBUD COUNTY ATTORNEY