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 Sixth Judicial District, 

Honorable C . B. Sande, Judge presiding. 

Counsel of Record: 

For Appellant: 

Towe, Neely and Ball, Billings, Montana 

Berger, Anderson, Sinclair and 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 

Jack Yardley, County Attorney, appeared, Livingston, 

Montana 

Edward P. McLean, Deputy County Attorney, argued, 

tr&agep, Montana 

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Submitted : September 23, 1974 

Decided : NOV 1 4 7974 

Filed: pm.: ? j 
No. 12793 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

STATE OF MONTANA ex rel. 

STEVEN SCOTT THORSNESS, 

Relator, 

THE DISTRICT COURT OF THE FOURTH 

JUDICIAL DISTRICT OF THE STATE OF 

MONTANA, and the Honorable Jack L. 

Green, as Presiding Jude thereof, 

Respondents. 

Original Proceeding : 

Counsel of Record: 

For Relator: 

Berger, Anderson, Sinclair and Murphy, Billings, Montana 

Arnold A. Berger argued, Billings, Montana 

Robert Campbell, Missoula , Montana 

For Respondents : 

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

Montana 

Thomas A. Budewitz, Assistant Attorney General, argued, 

Helena, Montana 

Jack Yardley appeared, County Attorney, Livingston, 

Montana 

Edward P. McLean, argued, Deputy County Attorney, 

Livingston, Montana 

Submitted : September 23, 1974 

Decided : 

Filed: 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

This opinion combines this Court's decisions in Steven 

S. Thorsness' petition for writ of supervisory control and his 

appeal from the revocation of deferred imposition of sentence. 

Although the petition and the appeal were filed separately, they 

were combined for argument and will be handled together here, 

since they arise from the same or related facts. 

In 1972, Steven S. Thorsness plead guilty to a charge of 

possession of dangerous drugs. Imposition of sentence was deferred 

for two years "under the usual conditions, and in addition, the 

condition that the defendant serve four months in the State Prison 

* * *". Thorsness served that time, was released, and placed on 

probation. The rules governing his probation included the usual 

requirements that he respect and obey the law; secure permission 

before traveling from his assigned district; and, "not buy,sell, 

use, or be in the possession of dangerous drugs". 

On August 1, 1973, Thorsness traveled from Billings, 

Montana, to Missoula, Montana, where he was arrested the next day. 

The ground for the arrest was violation of the travel restrictions 

contained in the probation rules. A short time after the arrest, 

a search warrant was procured and Thorsness' automobile and personal effects were searched. 

Quantities of dangerous drugs were found and Thorsness 

was then charged with possession of those drugs. A motion to 

suppress was filed, heard and denied. Thorsness now petitions 

this Court for a writ of supervisory control, directing the 

district court to suppress the evidence seized under the warrant. 

On December 3, 1973, following petition and hearing, the 

district court of Park County revoked the deferred imposition of 

sentence on the 1972 charge, and sentenced Thorsness to four years 

in the state prison. That judgment and sentence is also appealed 

here. 

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In his petition for writ of supervisory control, Thorsness 

alleged the search which 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 search warrant. 

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, 155 Mont. 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 "source of known reliability" 

told police that Thorsness would be traveling through Missoula 

with cocaine and other drugs in his possession on August 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: 

"Although an affidavit may be based on hearsay 

information and need not reflect the direct 

personal observations of the affiant, Jones v. 

United States, 362 U.S. 257, 4 L ed 2d 697, 80 

S.Ct. 725, 78 ALR2d 233, the magistrate must be 

informed of some of the underlying circumstances 

from which 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, [citing case], 

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 on August 1. The affidavit contains no statement as to how the informant received his information. It cannot be determined if the informant came by his information directly or whether he merely 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: 

" * * * The tip does not contain a sufficient 

statement of the underlying circumstances from 

which the informer concluded that Spinelli was 

running a bookmaking operation. We are not 

told how the FBI's source received his information--it is not alleged that the informant 

personally observed Spinelli at work or that he 

had ever placed a bet with him. Moreover, if 

the informant came by the information indirectly, 

he did not explain why his sources were reliable. 

Cf. Jaben v. United States, 381 U.S. 214 (1965). 

In the absence of a statement detailing the 

manner in which the information was 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 now determine whether 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 discretionary power to defer imposition of sentence. State ex rel. 

Woodbury v. District Court, 159 Mont. 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, we must determine whether the evidence which moved that 

discretion was properly before the court. 

There is no doubt, on the basis of this record, that 

Thorsness' revocation was predicated on his possession of dangerous drugs, not on his violation of travel restrictions. The 

question thus is whether the exclusionary rule mandated by Mapp 
v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L ed 2d 1081, applies to 

hearings on revocations of deferred impositions of sentences. 

Analysis of this question requires that the reason for 

the exclusionary rule be kept in mind. 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: 

" * * * The rule is calculated to prevent, 

not to repair. Its purpose 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 

question must be: Would the exclusion of the illegally seized 

drugs at Thorsness' revocation hearing 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." 

Johnson v. 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 

revocation hearing. 

The U. S. Supreme Court recently in United States v. 

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 all persons. 

As with any remedial device, the application of 

the rule has been restricted to those areas 

where its remedial objectives are thought most 

efficaciously served." 

That Court has recognized a number of areas where the remedy is 

too ineffective to warrant its application. Standing to invoke 
the rule has been limited to cases in which 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's voluntary 

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 States v. 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 inapplicable here. 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 interference with Montana's 

probation process were we to impose this limitation upon it. 

This view has ample support in other jurisdictions. See, 

e.g. United States v. Hill, 447 F.2d 817 (7th Cir. 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. 

Justice 
We concur: 

Chief Justice 

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Justices 

Mr. Justice Wesley Castles did not participate in these hearings,