No. 12687 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

JON WILLIAM 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 : DCT 22 1974 
No. 12688 

IN THE SUPRENE COURT OF THE STATE OF MONTANA 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

JOHN ARNOLD 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 stipulation of the parties a single hearing 

was held before Judge Brownlee to present all evidence applicable 

to defendantsf 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 the warrant under which certain drugs were 

seized was invalid; therefore that evidence must be suppressed. 

Both Paschke and Mason claim the issuing magistrate was not shown 

sufficient probable cause for the issuance of the warrant, They 

further allege the warrant does not describe the premises to be 

searched with sufficient particularity. Mason also alleged that 

since he was not named in the warrant, the search of his room 

was not warranted. 

On February 25, 1973, an application for a search warrant was 

executed by Richard Brennan, a deputy sheriff of Yellowstone County. 

This application contained the following sworn statement of facts: 

"~nformation shows that Jon Paschke lives at 1930 

Mullowney Lane Billings, Montana which is the 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 the residence 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 at the house. An informant who has furnished reliable information in the past that has led 

to drug arrests, advised within the last 48 hours that 

he had been contacted by a known drug user who offered 

to sell him dru 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 to get into town on the evening 

of February 24, 1973. Paschke drives a 1970 Ford Van 

3-27650. This unit was not at the house on last evening. 

The Van was observed at the house (1930 Mullowney Lane) 

about noon today Feb. 25, 1973. The residence has been 

checked during the evening and morning. This same information was also received during the last 48 hours from 

two other sources. It 
The application was filed with 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 in the 

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 to be searched were 

described as "1930 Mullowney Lane, Billings, Montana. I I 

The warrant was executed shortly after its issuance. When 

the officers arrived at the residence they observed defendant 

Mason with 8 112 grams of hashish in his possession. Drugs were 

found at various 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 sufficient probable cause to satisfy constitutional and statutory requirements for the issuance of a 

search warrant. The record clearly establishes that the only 

information before Judge Williams was that contained in the 

statement of facts heretofore quoted. Our inquiry must therefore 

be limited to the four corners of that document. Petition of 

Gray, 155 Mont. 510, 473 P.2d 532; State v. Bentley, 156 Mont. 

129, 477 P.2d 345. 

Appellants would exclude from that statement of facts the 

information contributed by the anonymous "known drug user". 

Their objection is not that such information is hearsay, or even 

that it is double hearsay, but that the trustworthiness of the 

known drug user and the information he provided have not been 

adequately established. 

It is clear 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, 12 L ed 2d 723; State v. Troglia, 157 Mont. 22, 

482 P.2d 143. However, Aguilar requires that underlying circumstances which support either the credibility of the hearsay source 

or the reliability of his information must be provided. 

In the affidavit under 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 arrests in the past, it is 

apparent that this source satisfies the first of Aguilar's 

alternative requirements. Appellants concede as much but challenge the "credentials" of the known drug user since there is 

no allegation that he had previously proven to be reliable. 

The information provided by the known 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 sell drugs. 

Since the affidavit fails to establish the known drug user's 

credibility under the first of Aguilar's tests, it must necessarily meet the second test by demonstrating the reliability of the 

information, independent of its source. We find its reliability to 

be amply supported by the facts found in the statement of facts: 

(1) the information was provided during an offer to sell drugs 

to the informer; (2) Paschke's van appeared at the time it was 

reported that Paschke would return; (3) Paschke had been reported 

to be dealing in drugs 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 its reliability. For example: Justice White's concurring 

opinion in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 

3, 21 L ed 2d 637, pointed out that admissions aglnst interest are 

sufficient to establish probable cause, even though related through 
a hearsay source. United States v. Harris, 403 U.S. 573, 91 

S.Ct. 2075, 29 L ed 2d 723. In Thompson v. State, 16 Md.App. 560, 

298 A.2d 458, the court held under circumstances similar to those 

here that since the seller had 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 information given by an anonymous seller 

concerning his source was sufficient to establish probable cause. 

Here, we have much more. The evidence that the van returned 

at the time the known drug user said Paschke would 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, 4 L 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 sufficient probable cause was established for 

the issuance of the search warrant. 

The warrant 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 Fourth Amendment to the constitution of the 

United States, as well 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, 

69 L ed 757, the Court said: 

"* * * It is enough if the description is such that 

the officer with a search warrant can with reasonable 

effort ascertain and identify the place intended. I I 
In Steele the Court did not limit the "reasonable effort" 

to a reading of the face of the warrant only. Here, the officer 

making application for the warrant had participated in past surveillance of the premises to be searched, and his application 

spoke only of activities in the "house". He knew the detached 

garage was not to be searched under the initial warrant-- 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 for which probable cause had been demonstrated, there is no threat to Fourth Amendment values. State v. 

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. 391 U.S. 

969, 88 S.Ct. 2043, 20 L ed 2d 883. We find no reason to hold 

otherwise here. 

Finally, Mason urges that the search of his room was invalid 

since no probable cause was demonstrated, nor was he even mentioned in the application or warrant.He suggests State ex rel. 

Garris v. Wilson, ,162 Mont. 256- -, 511 P.2d 15, 30 St.Rep. 605, 

is controlling. In Garris we held ~arris' constitutional right 

of privacy invalidated the search warrant as to him. The cases 

are similar in that appellants in both were not mentioned in the 

warrants or in the applications. However the similarity between 

the cases ends there. Here, unlike Garris, there is no evidence 

that Mason paid rent for his room, or that he had the use of the 

room to the exclusion of all others. The record clearly shows 

that he shared the room with another. It further shows the officers 

had been unable to positively ascertain whether Mason was living 

there and whether he occupied a specific room. 

Undersuch circumstances we must be guided by the considerations which prompted the United States Supreme Court to say in 

United States v. Ventresca, 380 U.S. 102,108, 85 S.Ct. 741, 13 

L ed 2d 684: 
"* * * the Fourth Amendment's commands, like 

all constitutional requirements, are practical 

and not abstract. * * * A grudging or negative 

attitude by reviewing courts toward warrants 

will tend to discourage police officers from 

submitting their evidence to a judicial officer 

before acting. 1 I 

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 Fourth Amendment has been satisfied. 

Furthermore, Mason was arrested with drugs in his immediate 

possession. The search of his room produced 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 all motions to suppress is 

affirmed. 

-------------------------------- 

Justice 

We Concur: 

Chief Justice