No. 12504 INTHE SUPREME COURT OF 

### THE STATE OF MONTANA 1973

STATE OF MONTANA, on theRelation of LUTHER GARRIS

## , Petitioner,



### THE HONORABLE ROBERT 11. WTLSON, District Judge of Department No. 3 of the Thirteenth JudicialDistrictof the Stateof Montana, inand forthe County of Yellowstone, Respondent.

ORIGINAL PROCEEDING: Counsel of Record: For Petitioner: Berger, Anderson, Sinclairand Murphy, Billings, Montana Arnold A. Berger argued, Billings, Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena, Montana J. C. Weingartner, AssistantAttorney General, argued,

Helena, Montana Harold F. Hanser, County Attorney, Billings, Montana Clifford E. Schleusner, Deputy County Attorney, argued,

Billings, Montana

Submitted: May 17, 1973Mr. Chief Justice James T. Harrison delivered the Opinion of the Court

# . Original proceeding. Petitioner alleges the respondent district court acted contrary to the laws of the state of Montana by refusing to suppressevidence in the form of drugs taken from the petitioner's room in an alleged,illegal search. From the petition it appears that Garris lived in a house located at 620Beverly Hills Boulevard in Billings, Montana, on October 13, 1972. This house had been rented by Frank Rodriguez from the owner and Garris paid his share of the rent to Rodriguez. At the time of the incident in question Rodriguez,Garris and at least one other individual lived in the house. Complaints were received from neighborsby the Billings police and they kept the house under surveillance. As a result of this observationthe police officers sought a searchwarrant of the residence rented by Rodriguez and in the application for such warrant the defendant referred to therein is Frank Rodriguez, and it stated: "Your affiant has had the above described residence staked out for the past twoweeks. During this time,many individuals have been observed entering the house, remaining a short time and leaving. On October 7, 1972,the brother of the defendant was observed carrying a plastic bag into the residence. The bag was approx. 20" long by 8" in diameter. Prior to entering he looked around and went quickly into the house. Your affiant was in a possition (sic) where the front of the house could be observed. On October 12, 1972 at 5:45 P.M. your affiant observed, through the frontwindow of the house at 620Beverly Hills Blvd., three people sitting in the living room. The defendant,his brother,and one unknownmale were passing a smallbrass pipe between them and smoking thepipe. The pipe was lit nine times during a ten minute period. Based on the prior experience of your affiant as a member of the City-County Narcotics Squad, the pipe being smoked is the type used for hashish or marijuana. The inability to keep the pipe lit istypical of smoking hashish or marijuana. On October 13, 1972 at 5:30 P.M., your affiant observed twomales and one female come out of the front door of the house and stand at the front door. The defendant stood in the doorway and the femalepassed him a plastic bag containing a green substancewhich appeared to your affiant to be marijuana. This is the common way of packaging marijuana. The four people talked for about 1/2 minute. The defendant took the plastic bag of what appeared to be marijuana back inside the house and the other three people walked across the street, got into an automobile and drove away. Just prior to the incident described, twomen pulled up into the driveway in a small car. The defendant came to the door of the house, the passenger got out and talked with him. Then got back into the vehicle and picked up a grey brief case and he and the driver went into the house. They remained in the house for about 20minutes and left. Your affiantdid not observe the briefcase when they left." Thiswas the only information given to the justice of the peace for the issuance of thewarrant. In conducting the search officers found in the false ceiling above Garris' room a plastic bag containing 99phenobarbital tablets. On the basis of this evidence Garris was charged with the criminalpossession of dangerousdrugs. It

was this evidence that the petitioner sought to have suppressed. The motion was denied by the respondent district court. The issue in this case iswhether there was a proper showing of probable cause to search Garris' room. Itmust be noted here that none of the persons referred to in the application for search warrant was Garris; he was not present on thepremises at the time and his only connectionwith the proceedingswas that he had a room in the house. Petitioner asserts the affidavit showingprobable cause lacks facts that would give rise to probable cause for the search, in that there is nothing in the affidavitwhichwould connect Garris in any way with the activities mentioned therein. InApplication of Gray, 155Mont. 510, 519, 473 P.2d 532(1970)this Court stated the rule to be followed as to what type of factsmust be contained in an affidavit for the issuance of a searchwarrant: 

### " 

## * * * Affidavits relied upon for the issuance of search warrants in both federaland state prosecutionsmust contain sufficient facts to enable an impartial commissioner or magistrate to determinewhether probable cause exists under the FourthAmendment. 

## * * *" The standard of review for this type of case is found in State

v. Troglia, 157Mont. 22, 26, 482 P.2d 143 (1971): 

## "'

## * * 

## * that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of common sense

## * * * and that their determination of probable cause should be paid great deference by reviewing courts

## * * *.I" The task before this Court is to determine whether there

were sufficient factspresented to the justice of the peace and whether he acted reasonably in the area of his discretion. Before a searchwarrant canbe issued the requirements of section 95-704,R.C.M. 1947,have to be met. It reads: "Any judge may issue a search warrant upon the written application of any person that an offense has been committed, made under oath or affirmation before him which: "(a) States facts sufficient to showprobable cause for issuance of thewarrant. 

## * * *I1 (Emphasis added.) In this case it is apparent that the warrantwasdefective as to Garris because the application contains no facts thatwould indicate Garris had any connectionwith the offense being committed. The application,as set out above, contains no facts disclosing that Garris was engaged in any of the activities mentioned. Therewas no probable cause to believe he was committing an offense,hence no probable cause to searchhis room. See St. ex rel. Glantz v. Dist. Court, 154Mont. 132, 461P.2d 193. Tomake such a showing places no great burden on law enforcement.TheUnited States Court of Appeals stated in Coury v. United States, 426 F.2d 1354, 1356 (1970): "We reach this decision by applicationof the

- -- following standards: only a probability of criminal conductneed be shown

## * 

## * *." (Emphasis added.) Here there is no showing at all of any criminal activity by Garris. We must hold that the searchwas unreasonable as required by the United States constitution and the 1889 Montana Constitution. The FourthAmendment to the United States Constitution states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonabke searchesand seizures, shallnot be violated, and no warrant shall issue but upon probable cause, supported by oath or affirmation,and particularly describing the place to be searched, and the person or things to be seized.

### " In this case Garris had a consitutionallyprotected right to expect to be free from government intrusion intohis room. While it is true that Rodriguez rented the house from the landlord, Garris paid his share of the rent to Rodriguez. He had the use of his room to the exclusion of all others thatwere living in the house. without someminimal showing of criminal activity on thosepremises on the part of Garris therewas no probable cause for the issuanceof the warrant and the search thatwas conducted

was unreasonable and in violation of petitioner's rights. This is a proper case for the use of the writ of supervisory control. We therefore order the issuanceof a writ of supervisory control directing the respondent district court to reverse its ruling and suppress the evidence. It is further ordered that the information against Garris charging criminal possession of dangerous drugs be dismissed.

# //' chief7 Justice

concur: 

# / 

# I

. AssociateJustice 

## /'