No. 12687 INTHE SUPREME COURT OF 

### THE STATE OF MONTANA 1974

THE STATE OF MONTANA, Plaintiff and Respondent,

-vs

# - JONWILLIAM PASCHKE,Defendant and Appellant.

Appeal from: District Court of the Thirteenth Judicial District, Honorable E. Gardner Brownlee, Judge presiding. Counsel of Record: For Appellant: Sandall, Moses, Cavan and Kampfe, Billings, Montana D. Frank Kampfe argued, A. Clifford Edwards argued,

Billings, Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

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

Helena, Montana Harold F. Hanser, County Attorney, Billings, Montana Doris M. Poppler, Deputy County Attorney, appeared,

Billings, Montana

Submitted: September 13, 1974 Decided :

### OCJ

## 28 1s Filed:

## DCT22

### 1974No. 12688 INTHE SUPRENE COURT OF THE STATE OF MONTANA

THE STATE OF MONTANA, Plaintiff and Respondent,

-vs

# - JOHNARNOLD MASON, Defendant and Appellant.

Appeal from: District Court of the Thirteenth Judicial District, Honorable E. Gardner Brownlee, Judge presiding. Counsel of Record : For Appellant: Sandall, Moses, Cavan and Kampfe, Billings, Montana D. Frank Kampfe argued, and A. Clifford Edwards argued,

Billings, Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

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

Helena, Montana Harold F. Hanser, County Attorney, Billings, Montana Doris M. Poppler, Deputy County Attorney, appeared,

Billings, Montana

Submitted: September 13, 1974 Decided: Filed:Justice Frank I. Haswell delivered the Opinion of the Court. These are combined appeals from the district court of Yellowstone County wherein Jon William Paschke and John Arnold Mason were convicted of criminal possession of dangerous drugs. Pursuant to stipulationof the parties a single hearing
was held before Judge Brownlee topresent allevidence applicable todefendantsf motions to suppress evidence or the ultimate question of guilt or innocence. Defendants appeal, challenging Judge ~rownlee's subsequent dsnial of their motions to suppress. Defendants allege thewarrant under which certain drugs were seized was invalid; therefore that evidence must be suppressed. Both Paschke and Mason claim the issuingmagistrate was not shown sufficientprobable cause for the issuance of thewarrant, They further allege thewarrant does not describe the premises tobe searched with sufficient particularity. Mason also alleged that sincehe was not named in thewarrant, the search of his room 

### wasnot warranted. On February 25, 1973, an application for 

### a searchwarrant was executed by Richard Brennan, a deputy sheriff of Yellowstone County. This application contained the following sworn statement of facts: "~nformationshows that Jon Paschke lives at 1930 Mullowney Lane Billings, Montana which 

### isthe residence of one Sally Johnson. Your affiant has had reports over the past nine months that Jon Paschke and Sally Johnson have been dealing drugs here in Billings and on the high line. Both of these individuals and theresidence at 1930 Mullowney Lane have been under investigation for the past seven months by the citycounty drug squad. Known drug users and dealers have been observed atthe house. An informant who has furnished reliable information inthe past that has led to drug arrests, advisedwithin the last 48 hours that he had been contacted by a known druguser who offered to sellhimdru s that he had obtained from Jon Paschke. This person to18 the informant that Paschke would be bringing more drugs into town (Amphetimines, Mescaline, Psilocybin) and he was toget into town on the evening of February 24, 1973. Paschke drives a 1970 Ford Van 3-27650. This unit was not atthe house on last evening. The Van was observed atthe house (1930 Mullowney Lane) about noon today Feb. 25, 1973. The residence has been checked during the evening and morning. This same information was alsoreceived during the last

### 48 hours from two other sources.ItThe applicationwas filedwith R. J. Williams, a justice of the peace, on the same day. Although Deputy Brennan appeared personally before Judge Williams, he contributed no information toward the determination of probable cause other than that contained inthe quoted statement of facts. A warrant bearing the caption, "THE STATE OF MONTANA, Plaintiff,

# - vs

# - JON PASCHKE and SALLY JOHNSON, ~efendant"
was issued the same day. The premises tobe searched were described as "1930 Mullowney Lane, Billings, Montana. II The warrant was executed shortly after its issuance. When the officers arrived atthe residence they observed defendant Mason with 

### 8 112 grams of hashish inhis possession. Drugs were found atvarious locations throughout the house, including a room shared by Mason and another. Paschke and Mason were among a number of persons arrested on the premises as a result of the search. 

### On appeal appellants first argue that Judge Williams was not presented with sufficientprobable cause to satisfy constitutional and statutoryrequirements for the issuance of a searchwarrant. The record clearly establishes that the only information before Judge Williams was that contained inthe statement of factsheretofore quoted. Our inquiry must therefore be limited to the four corners of that document. Petition of Gray, 155Mont. 510, 473 P.2d 532; Statev. Bentley, 156Mont. 129, 477 P.2d 345. Appellants would exclude from that statement of facts the information contributed by the anonymous "known drug user". Their objection isnot that such information ishearsay, or even that it is double hearsay, but that the trustworthiness of the known druguser and the information he provided have not been adequately established. It 

### isclear that probable cause can be based on the hearsay statements of an anonymous informer. Aguilar v. Texas, 378 U.S.108, 84 S.Ct. 1509, 12L ed 2d 723; Statev. Troglia, 157 Mont. 22, 482 P.2d 143. However, Aguilar requires that underlying circumstanceswhich support either the credibilityof the hearsay source
or the reliability of his information must be provided. In the affidavitunder consideration here, two hearsay
sources are involved-

## -the "informant" and the "known drug user". Since the affidavit identifies the informant as a source of reliable information leading to drug arrestsinthe past, it is apparent that this source satisfies the first of Aguilar's alternativerequirements. Appellants concede asmuch but challenge the "credentials" of the known drug user since there 

### is
no allegation that he had previously proven tobe reliable. The information provided by theknown drug user was that: ) The known drug user had obtained drugs from Jon Paschke; (2) Paschke would be bringing more drugs into town; and, 

### (3) Paschke would arrive on the evening of February 24, 1973. This information was transmitted to the informant by the known drug
user along with the latter's offer to selldrugs. Since the affidavit fails to establish the known drug user's credibilityunder the firstof Aguilar's tests, it must necessarilymeet the second testby demonstrating the reliability of the information, independent of its source. We find 

### itsreliability to be amply supported by the facts found inthe statement of facts: (1) the information was provided during an offer to selldrugs tothe informer; (2) Paschke's van appeared atthe timeit was reported that Paschke would return; 

### (3)Paschke had been reported tobe dealing indrugs in Billings over the past nine months, and (4) the same information was verified by two other sources. The circumstances under which information is supplied can support itsreliability. For example: JusticeWhite's concurring opinion in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 3, 21L ed 2d 637, pointed out that admissions aglnst interest are sufficient to establishprobable cause, even though related through

### a hearsay source. United States v. Harris, 403U.S. 573, 91 S.Ct. 2075, 29 

### L ed 2d 723. In Thompson v. State, 16Md.App. 560, 298 A.2d 458,the court held under circumstances similar to those here that since the sellerhad no cause to mislead his customer, the very circumstances gave reasonable assurances of trustworthiness of the information. 

### On that basis alone the court in Thompscn found that informationgiven by an anonymous seller concerning his sourcewas sufficient to establish probable cause. Here,we have much more. The evidence that the van returned at the time the known drug user said Paschkewould arrive tended to verify that information. Draper v. 

### United States, 358 U.S. 307, 79 S.Ct. 329, 3 

### L ed 2d 327. The receipt of similar information from two other sources also supported the informations' reliability. As the Court said in Jones v. United States, 362 U.S. 257, 271, 

### 80 S. Ct. 725,

### 4L ed 2d 697: 

# "**

# * Corroboration through other sources of information reduced the chances of a reckless or prevaricating tale

# * *

# *." The reports that Paschke had been dealing in drugs in Billings over the past nine months provided further corroboration. We hold that sufficientprobable causewas established for the issuance of the searchwarrant. Thewarrant issued described the premises to be searched
as "1930 Mullowney Lane, Billings,Montana." Appellants urge that this description is insufficient to satisfy the particularity requirement of the FourthAmendment to the constitution of the United States,aswell as the requirements of section 95-704(b), 

### R.C.M. 1947. They argue that a mere street address permits too much discretion in the executing officers as to the area to be searched. In Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 69L ed 757, the Court said: 

# "**

# * It is enough if the description is such that the officer with a searchwarrant can with reasonable effort ascertain and identify the place intended.IIIn Steele the Court didnot limitthe "reasonable effort" toa reading of the face of thewarrant only. Here, the officer making application for the warrant had participated inpast surveillance of the premises tobe searched, and his application spoke only of activities inthe "house". He knew the detached garage was not tobe searched under the initialwarrant-- a knowledge borne out by his subsequent application for a warrant to search that garage. Under such circumstances, when the search actually conducted
was limited to the area forwhich probable cause had been demonstrated, there 

### isno threat to Fourth Amendment values. Statev. Bisaccia, 58 N.J. 586, 279 A.2d 675. Furthermore, it has been held that a street address within a city is sufficiently particular. In Re Hollywood Cabaret, 5 F.2d 651 (2nd Cir. 1925); Owens v. Scafati, 273 F.Supp. 428 (D. Mass., 1967), cert. den. 391U.S. 969, 88 S.Ct. 2043, 20 L ed 2d 883. We findno reason tohold otherwise here. Finally, Mason urges that the search of his room was invalid sinceno probable cause was demonstrated, nor was he even mentioned in the application orwarrant.He suggests Stateex rel. Garris v. Wilson, ,162 Mont. 256-

## -,511 P.2d 15, 30 St.Rep. 605, 

### iscontrolling. In Garris we held ~arris' constitutional right of privacy invalidated the search warrant as tohim. The cases are similar in that appellants inboth were not mentioned inthe warrants or in the applications. However the similaritybetween the cases ends there. Here, unlike Garris, there isno evidence that Mason paid rent for his room, or that he had the use of the
room to the exclusion of allothers. The record clearly shows that he shared the room with another. It further shows the officers had been unable topositively ascertainwhether Mason was living there and whether he occupied a specific room. Undersuch circumstances we must be guided by the considerationswhich prompted the United States Supreme Court to say in United Statesv. Ventresca, 380 U.S. 102,108, 85 S.Ct. 741, 13 L ed 2d 684:

# "*** the FourthAmendment's commands, like all constitutional requirements,are practical and not abstract.

# * * *A grudging or negative attitudeby reviewing courts toward warrants will tend to discouragepolice officers from submitting their evidence to a judicial officer before acting.1I 

### Here, the police had probable cause to believe that drugs
were present in a house they knew to be occupied by Paschke and Johnson. Although they knew that Mason had been an occasional guest, their information stopped short of establishing him as an occupant. Under such circumstances the practicality required by the FourthAmendment has been satisfied. Furthermore,Mason was arrestedwith drugs in his immediate possession. The search ofhis roomproduced more drugs,but he
was 

### tried only on a single count of possession of dangerous drugs. Thus the record demonstrates sufficient evidence to uphold the conviction without considering the drugs seized from his room. The district court's denial of allmotions to suppress is affirmed.



# -------------------------------- Justice



### We Concur:

Chief Justice