### NO. 90-399 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 1991



### STATE OF MONTANA, Plaintiff and Respondent,

-vs

### JAMESA. CROWDER, Defendant and Appellant. 

### APR

## 24

### 1991

CLERKOFSUPREMECOUR"~ STATEOFMONTANA



### APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Ed McLean, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: WilliamDeeMorris, AttorneyatLaw,Helena,Montana For Respondent: Hon.MarcRacicot,AttorneyGeneral,Helena,Montana Deanne 

### L. Sandholm, Assistant Attorney General, Helena, Montana RobertL. 

### Deschamps,111,CountyAttorney, Missoula, Montana Barbara Harris, Deputy County Attorney, Missoula, Montana

Filed: Submitted on Briefs: March 21, 1991 

### ~ecided: April 24, 

### 1991Justice 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 DistrictCourt err in finding that theapplication for the search warrant contained facts sufficient to establish probable cause? 2. Did the DistrictCourt err in refusing to order disclosure of the identities of the police informants? 3. Did the DistrictCourt err in failing to join Counts I and I1 into a single count of possession of the dangerous drug methamphetamine? Summary of Facts Policereceived information from four informantsover aperiod 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 DetectiveLarryJacobs inAugust1988 thatCrowderwas distributing in Missoula County methamphetamine manufactured by Crowder's brother in Idaho. In October 1988 another informant, anonymous,but familiar

### bysight 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 toMissoula County. The third informant stated that,although he did not know the specific location of the lab,he had observed theglassware the Crowdersused,had seenthe finishedproduct,and

was in constant touch with the Crowders. DetectiveJacobs 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. OnAugust 17,1989,thethird informant, whose reliabilitywas 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 twopounds of methamphetamine within the nextweek. 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 itfrom 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 containingmethamphetamine residueand abrasspipe. Inthegarage officers discovered filter papers, one of which contained traces of methamphetamine,a glass tube, and a razorblade. 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 seizeda gas mask,rubbergloves,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 ofmescaline, 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 sixmonths inprison 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 $1,000and 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 Crowderfsdrug involvement. 

### A searchwarrant must state Iffactssufficientto showprobable 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 awarrant, thisCourthasadopted the I1totalityof the

### circumstance^^^ test set forth in Illinoisv. Gates (1983), 462U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. Statev. 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, 80S.Ct. 725, 736,4 L.Ed.2d 697,708). Ascertaining the veracity and bases of informants1knowledge are important aspects of the I1totalityof 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, 462U.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 havebeen more thorough. The location of theCrowder residence and outbuildings as described by informantswas 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 thatthey detected "an odor similar to that of chemicals used in the production ofmethamphetamine1' when they walked within 50yards 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 forhis knowledge surely should not serveas 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 Crowderlsgarage. 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 ofallegedwrongdoing,alongwith a statement that the event was observed firsthand,entitles his tip to greater weight than might otherwise be the case. Gates 462 U.S. at 234, 103 S.Ct. at 2330, 76 L.Ed.2d at 545. The I 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 twopounds ofmeth-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 thewarrant application as stale. ''[A] determination of staleness in any given case depends largely on thenature of theproperty and activity in issue.I1 Statev. 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). Wehold that the circumstances set forth in the warrant application--the tip froma reliableinformant coupled with

an informant's personal observation, and corroboration of the

### location and detection of an odorby the officers--viewed in their totality, formed a substantial basis forthemagistrate toconclude 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 thepolice informantswas necessary tohisdefense 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. TheUnited States or a state or subdivision thereofhas aprivilege torefusetodisclose 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 invokestheprivilege,thecourt shallgive the public entity an opportunity to show facts relevant todetermining whether the informer can, in fact,supply that testimony. Rule 502,M.R.Evid. ThisCourthasadopted thebalancing testexpressed inRoviaro

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 "mustdepend 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 statutethe DistrictCourt need not order disclosure of the identity of an informantwho 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'sidentity. Mere speculationorconjecture about the relevance of the testimony is not adequate. State v. Babella (1989), 237 Mont. 311, 315, 772 P.2d 875, 878. Crowder maintains thatthethird informantliedbecause 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,accordingto testimony offered atthepretrial 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 informanthad seen themarijuana

# . 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 informants1identities. 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'sresidence, wherepolice found a vial containing methamphetamine residueon Crowder'sperson 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 'sametransaction. 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. 11We have not previously addressed the issue of whether possession "on the personvvand Iton the premisesIv constitute separate offenses. Generally, under the Fifth Amendment to the United StatesConstitution,applied to the states in 1969,aperson 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 testtobe applied to determine whether there are two offenses or only one, is whether each provision requiresproof of a fact which the other does not. Blockburser, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309

(emphasisadded). The Blockburqer test is a "test of statutory construction



# . . . to determine whether Congress intended the same conduct tobe punishable under two criminal 

### provision^.^^ Ball v. United States (1985),470U.S. 856, 861, 105 S.Ct. 1668, 1671, 84 L.Ed.2d 740, 746. Since Blockburqer, theUnited States Supreme Court Ifhas recognized thatthe Blockburqer test focuses on theproof necessary toprove 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 canbe convicted of both sexual intercourse without consentand aggravatedkidnapping,Statev. Clawson (1989), 239 Mont. 413,781P. 2d 267;ofbothmisdemeanor assaultand 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. Statev. 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 inpart: 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 whetherone course of conduct can result inmultiple violations of the same statute, rather than whether a single act violates a multiplicity of statutes),cert. denied, 435U.S. 972, 98S.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 notpunish engaging in thebusiness of sellingdangerousdrugs, but penalized any sale: Each of several successive sales constitutes a distinct offense,however closely theymay follow each other. The distinction stated by Mr. Wharton is that "when the impulse is single,but one indictmentlies,nomatter how longtheactionmay continue. Ifsuccessiveimpulses 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

(citationomitted);seealso Bellv. United States (1955),349U.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. Bell 349 U.S. at 81-82, 75 S.Ct. at 622, 99 L.Ed. at 910. See I Statev. Meadors (1978), 177 Mont. 100, 580 P.2d 903 (legislature meant toprovide distinct crimes forpossession of different kinds

### of dangerous drugs). Inthis case, thestatutory language clearlydemonstratesthat 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 ofpossession. 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 (6thCir. 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 constructivepossession means that the drugs are not in actual physical possession but that the person charged with possessionhasdominionand control overthe 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 hispossession of drugs "on thepremisesf1 constituted llconstructive" possession. We note that the jury instructions included definitions of both ltactualll and lfconstructive" possession. In addition, federal courts have upheld separate convictionsbased in part on themanner of possession, constructiveand actual. SeeUnited Statesv. Briscoe (7thCir. 1990), 896 F.2d 1476, cert. denied, -U.S. 

### -, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990);United Statesv. Rich (8th Cir. 1986), 795 F.2d 680. We concludethat the District Court did not err in failing to join the separate counts of possession "on the personI1and possession "on the premises.I1 Affirmed.

We concur:

JusticesJustice ~illiam 

### E. Hunt, Sr., dissenting: 

### I dissent. The majority again appears to abandon "probable cause1'for "remotepossibility. 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 thewarrant 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 descendingon aperson's home, someofwhom stay and turn it upside down for five hours. What facts justify this drastic incursion into the defendant'slife? The four corners of the search warrant contain: two stale informantsftips; one tipster who said he had

seen a lab but offered no detail at all regarding it; one tipster said tobe reliablebut 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 officerswalking 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 thedefendant'sresidencewas locatedwhere the tipsters said it was. So,we base a warrant on no independent corroboration of not necessarily reliable tips,and it justifiesa fivehour search of a person's house. This is notwithin the contemplationof 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 righttoprivacy. Further, therecurrence in thisCourt of tenuous probable cause showingsproves 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. 

### Idissent to the second issue in themajority opinionbecause the warrant makes no showing that the confidential informant is reliable. In the absence of any additional information, the defendant is unable toquestion 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. 18The majority relies on Blockburser to support its conclusion that each of Crowderlstwo 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 thatbecause it characterizes onepossession 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 themajority. But as the majority points out but then fails to follow, "when the defendant possesses 'the same controlled substance in the sameplace at the sametime,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)

# . InUnited States v. Woods, 568 F.2d 509 (6th Cir. 1978), the Sixth CircuitCourt of Appeals stated,regardingheroinpossession: [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 topermit amultiplication 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 (emphasisadded). Woods also explains that the sentencingpotentialities 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 separatepackages of the

same drug were found). Further, the cases the majority cites as upholding "separate convictionsbased on themanner 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 aman'sperson at an airport,and later at hishome. 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 separatelyhas serious implications. Overzealous prosecutorsmay 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. Iwould vacate the sentenceand remand to the District Court.Justice Terry N. Trieweiler dissenting: I concur in the dissent of Justice Hunt.