No. 12504 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

STATE OF MONTANA, on the Relation of 

LUTHER GARRIS , 

Petitioner, 

THE HONORABLE ROBERT 11. WTLSON, District 

Judge of Department No. 3 of the Thirteenth 

Judicial District of the State of Montana, 

in and for the County of Yellowstone, 

Respondent. 

ORIGINAL PROCEEDING : 

Counsel of Record: 

For Petitioner: 

Berger, Anderson, Sinclair and Murphy, Billings, Montana 

Arnold A. Berger argued, Billings, Montana 

For Respondent : 

Hon. Robert L. Woodahl, Attorney General, Helena, Montana 

J. C. Weingartner, Assistant Attorney General, argued, 

Helena, Montana 

Harold F. Hanser, County Attorney, Billings, Montana 

Clifford E. Schleusner, Deputy County Attorney, argued, 

Billings, Montana 

Submitted: May 17, 1973 
Mr. 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 

suppress evidence 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 620 Beverly 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 neighbors by the Billings 

police and they kept the house under surveillance. As a result 

of this observation the police officers sought a search warrant 

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 two weeks. 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 front window of the house at 

620 Beverly Hills Blvd., three people sitting in 

the living room. The defendant, his brother, and 

one unknown male were passing a small brass pipe 

between them and smoking the pipe. 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 is 
typical of smoking hashish or marijuana. On 

October 13, 1972 at 5:30 P.M., your affiant 

observed two males 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 female passed him a plastic bag containing a green substance which 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, two men 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 

20 minutes and left. Your affiant did not observe 

the briefcase when they left." 

This was the only information given to the justice of the peace 

for the issuance of the warrant. 

In conducting the search officers found in the false 

ceiling above Garris' room a plastic bag containing 99 phenobarbital tablets. On the basis of this evidence Garris was 

charged with the criminal possession of dangerous drugs. 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 is whether there was a proper 

showing of probable cause to search Garris' room. 

It must be noted here that none of the persons referred 

to in the application for search warrant was Garris; he was not 

present on the premises at the time and his only connection with 

the proceedings was that he had a room in the house. 

Petitioner asserts the affidavit showing probable cause 

lacks facts that would give rise to probable cause for the search, 

in that there is nothing in the affidavit which would connect 

Garris in any way with the activities mentioned therein. 

In Application of Gray, 155 Mont. 510, 519, 473 P.2d 532 
(1970) this Court stated the rule to be followed as to what 

type of facts must be contained in an affidavit for the issuance of a search warrant: 

" * * * Affidavits relied upon for the issuance 

of search warrants in both federal and state 

prosecutions must contain sufficient facts to 

enable an impartial commissioner or magistrate 

to determine whether probable cause exists under 

the Fourth Amendment. * * *" 

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

v. Troglia, 157 Mont. 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 facts presented to the justice of the peace and 

whether he acted reasonably in the area of his discretion. 

Before a search warrant can be 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 show probable cause 

for issuance of the warrant. * * *I1 (Emphasis 

added. ) 

In this case it is apparent that the warrant wasdefective as 

to Garris because the application contains no facts that would 

indicate Garris had any connection with the offense being 

committed. The application, as set out above, contains no facts 

disclosing that Garris was engaged in any of the activities 

mentioned. There was no probable cause to believe he was committing an offense, hence no probable cause to search his room. See 

St. ex rel. Glantz v. Dist. Court, 154 Mont. 132, 461 P.2d 193. 

To make such a showing places no great burden on law enforcement. 
The United States Court of Appeals stated in Coury v. United 

States, 426 F.2d 1354, 1356 (1970): 

"We reach this decision by - application -- of the 

following standards: only a probability of 

criminal conduct need be shown * * *." (Emphasis added. ) 

Here there is no showing at all of any criminal activity by 

Garris. 

We must hold that the search was unreasonable as required by the United States constitution and the 1889 Montana 

Constitution. The Fourth Amendment to the United States Constitution states: 

"The right of the people to be secure in their 

persons, houses, papers, and effects, against 

unreasonabke searches and seizures, shall not 

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 consitutionally protected right to 

expect to be free from government intrusion into his 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 that were living in 

the house. without some minimal showing of criminal activity 

on those premises on the part of Garris there was no probable cause 

for the issuance of the warrant and the search that was 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 issuance of 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 

. Associate Justice /'