No. 12716 IN

### THE SUPREME COURT OF THE STATE OF MONTANA 1974

THE STATE OF MONTANA, plaintiff and Respondent,

-vs

# - STEVEN THORSNESS, Defendant and Appellant.

Appeal from: District Court of the SixthJudicial District, Honorable C

# .B. Sande, Judge presiding. Counsel of Record: For Appellant: Towe, Neely and Ball, Billings, Montana Berger, Anderson, Sinclairand Murphy, Billings,

Montana Arnold A. Berger argued, Billings, Montana For Respondent

### : Hon. Robert L. Woodahl, Attorney General, Helena,

Montana Thomas A. Budewitz, Assistant Attorney General, argued,

Helena, Montana JackYardley, County Attorney, appeared, Livingston,

Montana Edward P. McLean, Deputy County Attorney, argued,

tr&agep, Montana /TLLfi4hL L

Submitted: September 23, 1974
Decided :

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## 7974 Filed: 

# pm.: ? jNo. 12793 INTHE SUPREME COURT OF THE STATE OF MONTANA 1974

STATE OF MONTANA exrel. STEVEN SCOTT THORSNESS, Relator,

THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, and theHonorable Jack L. Green, asPresiding Jude thereof, Respondents.

OriginalProceeding: Counsel of Record: ForRelator: Berger, Anderson, Sinclairand Murphy, Billings, Montana Arnold A. Berger argued, Billings, Montana Robert Campbell, Missoula

## ,Montana ForRespondents: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana Thomas A. Budewitz, Assistant Attorney General, argued,

Helena, Montana JackYardley appeared, County Attorney, Livingston,

Montana Edward P. McLean, argued, Deputy CountyAttorney,

Livingston, Montana

Submitted: September 23, 1974 Decided: Filed:Mr. JusticeFrank I. Haswell delivered the Opinion of the Court. This opinion combines thisCourt's decisions in Steven S. Thorsness' petition forwritof supervisory control and his appeal from therevocation of deferred imposition of sentence. Although thepetition and the appeal were filed separately, they

were combined for argument and willbe handled together here, since they arisefrom the same or related facts. In 1972, Steven S. Thorsness plead guilty toa charge of possession of dangerous drugs. Imposition of sentence was deferred for two years "under theusual conditions, and inaddition, the condition that the defendant serve four months inthe StatePrison 

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## *". Thorsness served that time, was released, and placed on probation. The rules governing hisprobation included theusual requirements that he respect and obey the law; secure permission before traveling from hisassigned district; and, "not buy,sell, use, orbe inthepossession of dangerous drugs". On August 1, 1973, Thorsness traveled from Billings, Montana, toMissoula, Montana, where he was arrested the next day. The ground for the arrestwasviolation of the travel restrictions contained intheprobation rules. A shorttime after the arrest,

a searchwarrant was procured and Thorsness' automobile and personal effectswere searched. Quantitiesof dangerous drugs were found and Thorsness

was then charged with possession of thosedrugs. A motion to suppresswas filed, heard and denied. Thorsness now petitions thisCourt for a writof supervisory control, directing the districtcourt tosuppress the evidence seized under thewarrant. On December 3, 1973, followingpetition and hearing, the districtcourt of Park County revoked the deferred imposition of sentence on the 1972 charge, and sentenced Thorsness tofour years inthe stateprison. That judgment and sentence isalsoappealed here. -2-In his petition for writ of supervisory control, Thorsness alleged the searchwhich produced the drugs was conducted under

an improper warrant. He contends that insufficient probable

cause was demonstrated to the magistrate to support the issuance of a searchwarrant. Where, as here, there is no evidence of probable cause other than that contained in the affidavit,we are confined to that document alone for a finding of probable cause. Petition of Gray, 155Mont. 510, 473 P.2d 532. In this case the establishment of probable cause sufficient to authorize the issuance of a search warrant, turns on the statement in the affidavit that a "sourceof known reliability" told police that Thorsness would be traveling through Missoula with cocaine and other drugs in his possession onAugust 1, 1973. The quantum of information necessary to permit the use of such hearsay in establishing probable cause was set forth in Aguilar

v. Texas, 378 U.S. 108,

# -d?S.Ct. 1509, 12 L ed 2d 723, 729: "Althoughan affidavitmay be based on hearsay information and need not reflect the direct personal observationsof the affiant, Jonesv. United States, 362 U.S. 257, 4 L ed 2d 697, 80 S.Ct. 725, 78ALR2d 233, the magistrate must be informed of some of the underlying circumstances fromwhich the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant,whose identity need not be disclosed, [citingcase], was 'credible'or his information 'reliable'. 

## * * *" [Emphasis supplied] The affidavit here contains no underlying circumstances upon which the informant based his conclusion that Thorsness would be traveling through Missoula with cocaine or other drugs in his possession onAugust 1. The affidavit contains no statement as to how the informantreceived his information. It cannot be determined if the informant came by his information directly or whether hemerely relied upon rumor or reputation.The deficiency here is similar to that found in Spinelli v. U.S., 393 U.S. 410, 416, 89 S.Ct. 584, 21 L ed 2d 637,where the Court said: 

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## * * * The tip does not contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelliwas running a bookmaking operation. We are not told how the FBI's source received his information--it isnot alleged that the informant personally observed Spinelli atwork or that he had ever placed a bet with him. Moreover, if the informant cameby the information indirectly, he did not explain why his sourceswere reliable. Cf. Jabenv. United States, 381 U.S. 214 (1965). In the absence of a statementdetailing the manner in which the informationwas gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Accordingly, the writ of supervisory control should issue, and the evidence seized should be suppressed in any future prosecution for possession of those drugs. We nowdeterminewhether such evidence was properly considered in revoking the deferred imposition of sentence. Thorsness urges, in substance, that illegally seized evidence cannot be used in any criminal proceeding affecting a man's liberty. Section 95-2206,R.C.M. 1947,grants the court the discretionarypower to defer imposition of sentence. State ex rel. Woodbury v. District Court, 159Mont. 128, 495 P.2d 1119. In the absence of an abuse of discretion, the statute expressly permits revocation of that deferral. Since no abuse of discretion is alleged,wemust determine whether the evidence which moved that discretionwas properly before the court. There is no doubt, on the basis of this record, that Thorsness' revocationwas predicated on his possession of dangerous drugs, not on his violation of travel restrictions. The question thus is whether the exclusionary rulemandated by Mappv. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L ed 2d 1081,applies to hearings on revocations of deferred impositionsof sentences. Analysis of this question requires that the reason for the exclusionary rule be kept inmind. The United States Supreme Court in Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L ed 2d 1669, said: 

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## * * * The rule is calculated to prevent, not to repair. Itspurpose is to deter--to compel respect for the constitutional guaranty in the only effectively available way--by removing the incentive to disregard it." Applied to the particular facts of the instant case, the questionmust be: Would the exclusion of the illegally seized drugs at Thorsness' revocationhearing deter the state from similar illegal seizures in the future? Not at all. The illegality of this seizure was that it was conducted under a defective warrant. The error was not of an'bfficer engaged in the often competitive enterprise of ferreting out crime." Johnsonv. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436, 440. Rather, the fatal error was that of the issuing judicial officer. Since we have already ruled that the evidence is inadmissible in a prosecution for its possession, we find little additional deterrent value in denying its &admissibility in the revocationhearing. The U. S. SupremeCourt recently in United Statesv. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L ed 2d 561, 571, held: "Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally-seized evidence in all proceedings or against allpersons. As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thoughtmost efficaciously served." That Court has recognized a number of areas where the remedy is too ineffective to warrant its application. Standing to invokethe rule has been limited to cases inwhich the government seeks to use the illegally seized evidence against the victim of the unlawful search. Brown 

### v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L ed 2d 208. The rule does not apply to exclude use of such evidence to discredit a defendant'svoluntary testimony. Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503. Illegally seized evidence may also be used in grand jury proceedings. United Statesv. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 

### L ed 2d 561. Since the rule is really a remedy, the universal application of which is not dictated by the court which created it,we find it inapplicablehere. Here, it was the issuing magistrate who erred. There is no evidence that use at the revocation hearings was the intended use at the time of the issuance of the warrant. As we have already ruled, the evidence is not admissible in a prosecution for its possession. There would be only minimal deterrent effect in denying its use at the revocation hearing. There would, however, be a substantial interferencewith Montana's probation process were we to impose this limitation upon it. This view has ample support in other jurisdictions. See, e.g. United Statesv. Hill, 447 F.2d 817 (7thCir. 1971); united States

### v. Allen, 349 F.Supp. 749 (N.D. Calif. 1972); People v. Atencio, (Colo. 1974), 525 P.2d 461; People v. Dowery, 20 Ill.App.3d 738, 312 N.E.2d 682. Accordingly, the revocation of Thorsness'deferred sentence is affirmed; the order of the district court denying the motion to suppress is reversed.

JusticeWe concur:

Chief Justice



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## . , -,LL-&a&,,------------ Justices

Mr. JusticeWesley Castles did not participate inthese hearings,