NO. 90-399 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJAMES A. CROWDER, 

Defendant and Appellant. 

APR 2 4 1991 

CLERK OF SUPREME COUR"~ 

STATE OF MONTANA 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Ed McLean, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

William Dee Morris, Attorney at Law, Helena, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Deanne L. Sandholm, Assistant Attorney General, 

Helena, Montana 

Robert L. Deschamps, 111, County Attorney, Missoula, 

Montana 

Barbara Harris, Deputy County Attorney, Missoula, 

Montana 

Filed: 

Submitted on Briefs: March 21, 1991 

~ecided: April 24, 1991 
Justice John Conway Harrison delivered the Opinion of the Court. 

A jury sitting in the District Court of the Fourth Judicial 

District, Missoula County, convicted James A. Crowder of three 

counts of felony possession of dangerous drugs, one count of 

misdemeanor possession of a dangerous drug, and one count of 

criminal possession of drug paraphernalia, a misdemeanor. We 

affirm. 

Crowder presents the following issues: 

1. Did the District Court err in finding that the application 

for the search warrant contained facts sufficient to establish 

probable cause? 

2. Did the District Court err in refusing to order disclosure 

of the identities of the police informants? 

3. Did the District Court err in failing to join Counts I and 

I1 into a single count of possession of the dangerous drug 

methamphetamine? 

Summary of Facts 

Police received information from four informants over a period 

of a year alleging that James A. Crowder and his brother were 

manufacturing and selling methamphetamine. Only two of the 

informants were known to be reliable to police. The first 

informant, whose identity was known to the officer, apprised 

Detective Larry Jacobs in August1988 that Crowder was distributing 

in Missoula County methamphetamine manufactured by Crowder's 

brother in Idaho. 

In October 1988 another informant, anonymous, but familiar by 
sight and known to be reliable by other police officers, told 

Detective Rocky Harris much the same information. 

On June 2, 1989, a third informant disclosed to Detective 

Jacobs that the Crowder brothers had moved their methamphetamine 

lab to Missoula County. The third informant stated that, although 

he did not know the specific location of the lab, he had observed 

the glassware the Crowders used, had seen the finished product, and 

was in constant touch with the Crowders. Detective Jacobs knew the 

third informant, but had not previously relied upon him for 

information. 

On August 14, 1989, a fourth informant, known to be reliable 

by Detective Jacobs, revealed that Jim Crowder had a 

methamphetamine lab and chemicals in the garage at his residence 

on Evaro Hill. The informant had seen the finished product, but 

not the lab. The fourth informant was involved in working on 

another case with police. 

On August 17, 1989, the third informant, whose reliability was 

unknown, contacted Detective Jacobs for a second time. The 

informant claimed that he had personally observed Crowder's 

methamphetamine lab and chemicals in Crowder's garage near his 

house. According to the third informant, Crowder was likely to 

produce one to two pounds of methamphetamine within the next week. 

The third informant also believed that Crowder had marijuana 

growing on his property. 

After the tip from the fourth informant, on August 14, 1989, 

Detective Jacobs and Agent Long of the Montana Criminal 

Investigation Bureau drove to Crowder's residence and observed it 
from 8:00 to 11:OO p.m. The officers saw three men working on a 

pickup in the garage. Detective Jacobs and Agent Long, walking 

about 50 yards from the garage, thought that they detected an odor 

similar to that of chemicals used in the methamphetamine 

manufacturing process. 

Based on the above information, a search warrant was issued, 

and eighteen fully-armed state and federal police officers 

approached the residence on August 18, 1989. When it became 

apparent that no danger existed, all of the men left except six 

officers who searched Crowder's residence for five hours. 

Officers searched Crowder's person and found a brown vial 

containing methamphetamine residue and a brass pipe. In the garage 

officers discovered filter papers, one of which contained traces 

of methamphetamine, a glass tube, and a razor blade. In Crowder's 

home, officers seized a peyote plant, a plastic baggie containing 

marijuana, another vial containing methamphetamine residue, 

marijuana on a tray in the kitchen cupboard, and another pipe used 

for smoking drugs. 

One of the officers testified in a pre-trial hearing that 

police also seized a gas mask, rubber gloves, cooking instructions, 

and the recipe for methamphetamine, although these items were not 

introduced as evidence at trial. 

Police did not find the glassware or chemicals used to make 

methamphetamine. 

A jury found Crowder guilty of criminal possession of 

methamphetamine on the defendant's premises, criminal possession 

of methamphetamine on the person, and criminal possession of 
mescaline, all felonies, as well as criminal possession of 

marijuana and criminal possession of drug paraphernalia, both 

& 

misdemeanors. 

Crowder received a five-year prison sentence for each of the 

first two counts, to be served concurrently, a five-year sentence 

for the third count, and six months in prison for each of the last 

two counts. All of the sentences were suspended, except for the 

concurrent five-year sentences for the first two counts. Crowder 

was also fined $1,000 and required to pay court costs. 

I 

Did the District Court err in finding that the application 

for the search warrant contained facts sufficient to establish 

probable cause? 

Crowder claims that the search warrant application was 

insufficient to establish probable cause because the police 

investigation was inadequate to corroborate the information 

provided by informants. Additionally, Crowder asserts that the 

application contained stale tips and was lacking in details about 

Crowderfs drug involvement. 

A search warrant must state Iffacts sufficient to show probable 

cause for issuance of the warrant.I1 Section 46-5-202(1)(b), MCA. 

To determine whether a magistrate had probable cause to issue a 

warrant, the reviewing court must look solely to the information 

given to the impartial magistrate and to the four corners of the 

search warrant application. State v. Sundberg (1988) , 235 Mont. 

115, 121, 765 P.2d 736, 740. 

To address the issue of probable cause for issuance of a 
warrant, this Court has adopted the I1totality of the circumstance^^^ 

test set forth in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 

2317, 76 L.Ed.2d 527. State v. Jensen (1985), 217 Mont. 272, 704 

P.2d 45. The duty of the reviewing court is to ensure that the 

magistrate had a lllsubstantial basis1I1 to conclude that probable 

cause existed. Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332, 76 

L.Ed.2d at 548 (quoting Jones v. United States (1960), 362 U.S. 

257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697, 708). Ascertaining the 

veracity and bases of informants1 knowledge are important aspects 

of the I1totality of the circumstance^^^ test: 

The task of the issuing magistrate is simply to make a 

practical, common-sense decision whether, given all the 

circumstances set forth in the affidavit before him, 

including the llveracityll and "basis of knowledge" of 

persons supplying hearsay information, there is a fair 

probability that contraband or evidence of a crime will 

be found in a particular place. 

Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. The 

United States Supreme Court emphasized the Ifvalue of corroboration 

of details of an informant's tip by independent police work1' 

establishing a substantial basis for crediting the hearsay. 'I1 

Gates, 462 U.S. at 241-42, 103 S.Ct. at 2334, 76 L.Ed.2d at 550 

(quoting Jones, 362 U.S. at 269, 80 S.Ct. at 735, 4 L.Ed.2d at 

Arguably, the investigation by the police department could 

have been more thorough. The location of the Crowder residence and 

outbuildings as described by informants was confirmed. Officers 

observed the Crowder residence for three hours. According to 

testimony, the officers saw three men working in the garage on a 

pickup truck. The other evidence gained by the officers was that 
they detected "an odor similar to that of chemicals used in the 

production of methamphetamine1' when they walked within 50 yards of 

the garage. 

Information in the warrant application about the informants 

and their sources, combined with the officers1 investigation, 

though less complete than would be desirable, is a basis for the 

probability that contraband would be found at the Crowder 

residence. The application stated that the fourth informant 

possessed "proven reliability." The warrant application did not 

report the source of the fourth, reliable, informant's knowledge. 

However, the United States Supreme Court noted in Gates: 

If, for example, a particular informant is known for 

the unusual reliability of his predictions of certain 

types of criminal activities in a locality, his failure, 

in a particular case, to thoroughly set forth the basis 

for his knowledge surely should not serve as an absolute 

bar to a finding of probable cause based on his tip. 

Gates, 462 U.S. at 233, 103 S.Ct. at 2329-30, 76 L.Ed.2d at 545. 

The third informant, although his reliability was not known, 

gave some details and stated that he had personally observed the 

lab and chemicals in Crowderls garage. An informant's personal 

observation of criminal activity is not hearsay information. 

Sundberq, 235 Mont. at 121, 765 P.2d at 740. The Supreme Court 

also commented on an informant's personal observation in Gates: 

Conversely, even if we entertain some doubt as to an 

informant's motives, his explicit and detailed 

description of alleged wrongdoing, along with a statement 

that the event was observed firsthand, entitles his tip 

to greater weight than might otherwise be the case. 

I Gates 462 U.S. at 234, 103 S.Ct. at 2330, 76 L.Ed.2d at 545. The 

warrant application recited the third informant's tip that a 
methamphetamine lab was located in Crowderls garage and his 

description of the location of Crowder's property and garage. In 

addition, the warrant gave the following information: 

The informant also stated that he believes Jim Crowder 

may also be growing marijuana on his property. This 

confidential informant further stated that he believes 

Jim Crowder has enough chemicals at his residence to 

produce approximately two pounds of meth-amphetamine and 

is likely to produce a large amount, possibly 1 or 2 

pounds within the next week. 

We find that sufficient details were provided to be considered 

under Gates. 

Crowder protests the two tips from nearly a year previous to 

the warrant application as stale. ''[A] determination of staleness 

in any given case depends largely on the nature of the property and 

activity in issue.I1 State v. Walston (1989), 236 Mont. 218, 223, 

768 P.2d 1387, 1390. By themselves the August and October 1988 

tips would not have been enough to establish probable cause. 

However, taken together with information gathered from later 

informants, the tips helped to establish a pattern of ongoing 

criminal activity. In addition, according to testimony, the first 

informant, though anonymous, was known by sight to other officers 

who recognized the informant as reliable. 

"A magistrate's 'determination of probable cause should be 

paid great deference by reviewing courts. Gates, 462 U. S. at 

236, 103 S.Ct. at 2331, 76 L.Ed.2d at 547 (quoting Spinelli v. 

United States (1969), 393 U.S. 410, 419, 89 S.Ct. 584, 591, 21 

L.Ed.2d 637, 645). We hold that the circumstances set forth in the 

warrant application--the tip from a reliable informant coupled with 

an informant's personal observation, and corroboration of the 
location and detection of an odor by the officers--viewed in their 

totality, formed a substantial basis for the magistrate to conclude 

that probable cause to find contraband or other evidence of 

wrongdoing on the Crowder premises existed. 

Did the District Court err in refusing to order disclosure of 

the identities of the police informants? 

Crowder alleges that disclosure of the identity of the police 

informants was necessary to his defense because the informants "had 

provided false information to the authorities and examination of 

these informants would show that they were patently unreliable . 

Montana Rules of Evidence provide: 

(a) Rule of privilege. The United States or a state or 

subdivision thereof has a privilege to refuse to disclose 

the identity of a person who has furnished information 

relating to or assisting in an investigation of a 

possible violation of a law. 

(c) Exceptions and limitations. 

(2) ~estimony on relevant issue. If it appears in 

the case that an informer may be able to give testimony 

relevant to any issue in a criminal case or to a fair 

determination of a material issue on the merits in a 

civil case to which a public entity is a party, and the 

public entity invokes the privilege, the court shall give 

the public entity an opportunity to show facts relevant 

to determining whether the informer can, in fact, supply 

that testimony. 

Rule 502, M.R.Evid. 

This Court has adopted the balancing test expressed in Roviaro 

v. United States (1957), 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. 
Disclosure of an informant's identity requires "balancing the 

public interest in protecting the flow of information against the 

individual's right to prepare his defense." Roviaro, 353 U.S. at 

62, 77 S.Ct. at 628-29, 1 L.Ed.2d at 646. Disclosure "must depend 

on the particular circumstances of each case, taking into 

consideration the crime charged, the possible defenses, the 

possible significance of the informer's testimony, and other 

relevant factors. Id. 

By statute the District Court need not order disclosure of the 

identity of an informant who will not be called to testify if (1) 

disclosure would llresult in substantial risk to the informant or 

to his operational effectiveness; and (2) "failure to disclose 

will not infringe the constitutional rights of the accused." 

Section 46-15-324 (3) , MCA. The defendant must show the need for 

revealing the informant's identity. Mere speculation or conjecture 

about the relevance of the testimony is not adequate. State v. 

Babella (1989), 237 Mont. 311, 315, 772 P.2d 875, 878. 

Crowder maintains that the third informant lied because police 

found neither glassware, chemicals, the finished product, nor 

evidence of a marijuana growing operation as described in the 

warrant application. While a methamphetamine lab was not 

discovered, according to testimony offered at the pretrial hearing, 

officers did seize articles consistent with methamphetamine 

production, including gas masks, a coffee filter containing 

methamphetamine, cooking instructions, and the recipe for 

methamphetamine manufacture written on a coffee filter. 

As for the marijuana growing operation, the warrant 
application stated that the informant believed that marijuana was 

being grown on Crowder's property, not that the informant had seen 

the marijuana . 

We note that it was particularly in the public interest not 

to reveal the identity of the fourth informant who was being used 

in another police investigation. Because Crowder failed to 

demonstrate that the information supplied to police was false, we 

affirm the District Court's refusal to order disclosure of the 

informants1 identities. 

I11 

Did the District Court err in failing to join Counts I and I1 

into a single count of possession of the dangerous drug 

methamphetamine? 

Crowder was charged and convicted of one count of criminal 

possession of methamphetamine on his person and one count of 

criminal possession of methamphetamine on his premises. These 

charges arose from the search of Crowder's residence, where police 

found a vial containing methamphetamine residue on Crowder's person 

and discovered another vial containing methamphetamine residue in 

Crowder's bedroom, as well as methamphetamine in a coffee filter 

located in the garage. 

Crowder asserts that I1principles of fundamental fairness 

require that a defendant be charged only once for conduct which 

amounts to the 'same transaction. See 46-11-501(1), MCA. The 

State responds that the test to determine whether the defendant 

has committed two offenses or only one is whether each count 

requires proof of a fact which the other does not. 

11 
We have not previously addressed the issue of whether 

possession "on the personvv and Iton the premisesIv constitute 

separate offenses. Generally, under the Fifth Amendment to the 

United States Constitution, applied to the states in 1969, a person 

cannot be tried more than once for the same conduct. State v. 

Wells (1983), 202 Mont. 337, 658 P.2d 381; Benton v. Maryland 

(1969), 395 U.S. 784, 796, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707, 

The Constitutional prohibition against double jeopardy 

protects a defendant both from multiple punishments imposed at a 

single prosecution for the same offense and from multiple 

prosecutions for offenses arising out of the same transaction. 

State v. Palmer (1983), 207 Mont. 152, 158, 673 P. 2d 1234, 1237. 

In examining questions of double jeopardy, this Court has 

consistently applied the test set forth in Blockburger v. United 

States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. One issue 

in Blockburqer was whether petitioner should have been convicted 

of violations of two statutory provisions arising from a single 

sale of morphine: 

The applicable rule is that where the same act or 

transaction constitutes a violation of two distinct 

statutory ~rovisions, the test to be applied to determine 

whether there are two offenses or only one, is whether 

each provision requires proof of a fact which the other 

does not. 

Blockburser, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309 

(emphasis added). 

The Blockburqer test is a "test of statutory construction 

. . . to determine whether Congress intended the same conduct to 
be punishable under two criminal provision^.^^ Ball v. United 

States (1985), 470 U.S. 856, 861, 105 S.Ct. 1668, 1671, 84 L.Ed.2d 

740, 746. Since Blockburqer, the United States Supreme Court Ifhas 

recognized that the Blockburqer test focuses on the proof necessary 

to prove the statutory elements of each offense, rather than on the 

actual evidence to be presented at trial." Illinois v. Vitale 

(1980), 447 U.S. 410, 416, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228, 

235. 

This Court has employed the Blockburqer test to determine 

whether a defendant can be charged and convicted of violating two 

statutes for the same act or transaction. For example, we have 

ruled that a defendant can be convicted of both sexual intercourse 

without consent and aggravated kidnapping, State v. Clawson (1989), 

239 Mont. 413, 781 P. 2d 267; of both misdemeanor assault and sexual 

assault, State v. Long (1986), 223 Mont. 502, 726 P.2d 1364; but 

cannot be convicted, when the drugs are identical, of both 

possession of dangerous drugs and possession of dangerous drugs 

with intent to sell. State v. Peterson (1987), 227 Mont. 503, 741 

P.2d 392. 

In contrast, Crowder was charged with two violations of the 

same statutory provision, 5 45-9-102, MCA, which provides in part: 

A person commits the offense of criminal possession 

of dangerous drugs if he possesses any dangerous drug, 

as defined in 50-32-101. 

Section 45-9-102(1), MCA. Thus, the question is whether Crowderls 

possession of drugs on his person and possession of drugs on his 

property constituted two separate acts of possession. See United 

States v. Woods (6th Cir. 1978), 568 F.2d 509 (issue is whether 
one course of conduct can result in multiple violations of the same 

statute, rather than whether a single act violates a multiplicity 

of statutes), cert. denied, 435 U.S. 972, 98 S.Ct. 1614, 56 L.Ed.2d 

64 (1978). 

The United States Supreme Court ruled on a similar question 

in considering a second issue in Blockburqer. The petitioner, 

convicted of two additional counts of selling morphine under a 

single provision of the Narcotics Act, contended that because the 

two sales in question were made to the same person within a short 

time, they comprised a single continuing offense. Examining 

legislative intent, the Supreme Court concluded that the statute 

did not punish engaging in the business of selling dangerous drugs, 

but penalized any sale: 

Each of several successive sales constitutes a distinct 

offense, however closely they may follow each other. The 

distinction stated by Mr. Wharton is that "when the 

impulse is single, but one indictment lies, no matter how 

long the action may continue. If successive impulses are 

separately given, even though all unite in swelling a 

common stream of action, separate indictments lie." 

Blockburqer, 284 U.S. at 302, 52 S.Ct. at 181, 76 L.Ed. at 308 

(citation omitted) ; see also Bell v. United States (1955), 349 U.S. 

81, 75 S.Ct. 620, 99 L.Ed. 905; United States v. Universal C.I.T. 

Credit Corporation (1952), 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 

260. To determine the lrallowable unit of prosecutionr1 courts look 

to legislative intent since discretion is with the legislature to 

impose punishments, subject only to constitutional limitations. 

I Bell 349 U.S. at 81-82, 75 S.Ct. at 622, 99 L.Ed. at 910. See 

State v. Meadors (1978), 177 Mont. 100, 580 P.2d 903 (legislature 

meant to provide distinct crimes for possession of different kinds 
of dangerous drugs). 

In this case, the statutory language clearly demonstrates that 

the legislature intended to punish each separate llpossession~v of

dangerous drugs, but we are still left with the question of what 

constitutes a separate llpossession.~~ Generally, when defendant 

possesses "the same controlled substance in the same place at the 

same time, he commit[s] only one act of possession. United States 

v. Johnson (D.C. Cir. 1990), 909 F.2d 1517, 1519; see also United 

States v. Woods (6th Cir. 1978), 568 F.2d 509; united States v. 

Williams (6th Cir. 1973), 480 F.2d 1204. 

According to the legislature, possession is the Ilknowing 

control of anything for a sufficient time to be able to terminate 

control.I1 section 45-2-101(52), MCA. The elements of possession 

are knowledge and control. State v. Krum (1989), 238 Mont. 359, 

777 P.2d 889. In addition, this Court has distinguished between 

"actual" possession and nconstructivell possession: 

Actual possession means that the drugs are in the 

personal custody of the person charged with possession; 

whereas constructive possession means that the drugs are 

not in actual physical possession but that the person 

charged with possession has dominion and control over the 

drugs. 

State v. Van Voast (Mont. 1991), 805 P.2d 1380, 1383, 48 St.Rep. 

160, 161. Crowder's possession of drugs "on the person1' 

constituted flactual" possession, while his possession of drugs "on 

the premisesf1 constituted llconstructive" possession. We note that 

the jury instructions included definitions of both ltactualll and 

lfconstructive" possession. 

In addition, federal courts have upheld separate convictions 
based in part on the manner of possession, constructive and actual. 

See United States v. Briscoe (7th Cir. 1990), 896 F.2d 1476, cert. 

denied, - U.S. -, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990); United 

States v. Rich (8th Cir. 1986), 795 F.2d 680. We conclude that the 

District Court did not err in failing to join the separate counts 

of possession "on the personI1 and possession "on the premises.I1 

Affirmed. 

We concur: 

Justices 
Justice ~illiam E. Hunt, Sr., dissenting: 

I dissent. The majority again appears to abandon "probable 

cause1' for "remote possibility. 

The purpose of the search warrant provision of the Fourth 

Amendment to the United States Constitution is that the long and 

powerful arm of the law may not reach into and disrupt people's 

lives without reason. The four corners of the warrant must contain 

facts sufficient to show that it is more probable than not that 

fruits of a crime will be found. 

Here we have almost 20 fully armed officers of the law 

descending on a person's home, some of whom stay and turn it upside 

down for five hours. What facts justify this drastic incursion 

into the defendant's life? The four corners of the search warrant 

contain: two stale informantsf tips; one tipster who said he had 

seen a lab but offered no detail at all regarding it; one tipster 

said to be reliable but with no basis for the reliability given in 

the application; and f'corroborationfl by the police of these 

outdated or flimsy tips consisting of verifying that the suspect's 

residence was in fact where the tipsters said it was. The 

application also states that two officers walking a distance equal 

to one-half of a football field, "detected an odor similar to that 

of chemicals [which were never found] used in the production of 

methamphetamine. ff 

The chemicals used in the production of methamphetamine are 

common compounds. They are not, like the odor of burning 

17 
marijuana, indicative of criminal activity. Nor is it suspicious 

that the defendant's residence was located where the tipsters said 

it was. So, we base a warrant on no independent corroboration of 

not necessarily reliable tips, and it justifies a five hour search 

of a person's house. This is not within the contemplation of even 

the relaxed Gates standards for probable cause, let alone within 

the parameters of the Fourth Amendment. 

I must continue to dissent to opinions which leave open the 

door to illegal incursion into homes and lives of citizens. If 

anything, Montana's probable cause standard should be higher than 

the federal standard, consistent with our expressed constitutional 

right to privacy. Further, the recurrence in this Court of tenuous 

probable cause showings proves the point that as long as we allow 

questionable warrants to stand, the courts of this state will 

continue to be clogged with appeals from diligent readers of the 

state and federal constitutions. 

I dissent to the second issue in the majority opinion because 

the warrant makes no showing that the confidential informant is 

reliable. In the absence of any additional information, the 

defendant is unable to question the application to determine if the 

informant even exists, let alone is reliable. 

I dissent to the third issue in the majority opinion. The 

majority's unprecedented decision that a suspect may be charged 

with separate felony counts for the same drug found on the person 

and on the premises is alarming. 

18 
The majority relies on Blockburser to support its conclusion 

that each of Crowderls two possession charges necessitated proof 

of a fact that the other did not. Blockburser provides that two 

offenses can derive from the same act if each provision requires 

proof of a fact which the other does not. The majority here 

concludes that because it characterizes one possession as "actual" 

and one as constructive," different proof was required for each, 

and therefore, the Blockburser test applies. 

But the fact is that it is the possession of the particular 

drug, whether actual or constructive, that is the single item to 

be proved. Sale of drugs presents a different situation, as each 

sale is a separate transaction. And separate druss are meant to 

be prosecuted separately, as we stated in State v. Meadors, cited 

by the majority. But as the majority points out but then fails to 

follow, "when the defendant possesses 'the same controlled 

substance in the same place at the same time, he commit[s] only one 

act of possession. 111 Citing United States v. Johnson, 909 F. 2d 

1517, 1519 (D. C. Cir. 1990) (emphasis added) . 

In United States v. Woods, 568 F.2d 509 (6th Cir. 1978), the 

Sixth Circuit Court of Appeals stated, regarding heroin possession: 

[A]s long as the statute does not graduate the gravity 

of the crime of possession of heroin by the quantity 

possessed, we see no indication that Congress intended 

to permit a multiplication of the offenses of possession 

at any siven time by a defendant upon evidence that the 

heroin may merely have been separately packaqed or 

stashed. 
Woods, 568 F.2d at 513 (emphasis added). Woods also explains that 

the sentencing potentialities permit one conviction to accommodate 

an inclusive possession conviction. See also, United States v. 

Williams, 480 F.2d 1204 (6th Cir. 1973), (holding that only one 

offense should have been charged when four separate packages of the 

same drug were found). Further, the cases the majority cites as 

upholding "separate convictions based on the manner of possession, 

actual or constructive^ are not analogous to the facts before us. 

United States v. Briscoe, 896 F. 2d 1476 (7th Cir. 1990), upholds 

three separate charges where drugs were smuggled into the country 

in the body cavities of three different women. United States v. 

Rich, 795 F.2d 680 (8th Cir. 1986), upholds separate charges for 

drugs found on a man's person at an airport, and later at his home. 

Neither presents a case, like Crowderls, of separate charges for 

possession "in the same place at the same time." 

The decision to charge separate possessions of the same drug 

separately has serious implications. Overzealous prosecutors may 

find themselves able to charge a marijuana grower separately for 

each plant, or a methamphetamine manufacturer for each package of 

separately stored contraband. This departure should not be 

condoned by this Court. 

I would vacate the sentence and remand to the District Court. 
Justice Terry N. Trieweiler dissenting: 

I concur in the dissent of Justice Hunt.