No. 90-123 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

plaintiff and Respondent, 

-vsJOHN DESKINS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Edward P. McLean, Judge presiding. 

COUNSEL OF RECORD: 

C For Appellant: 

r .' 

CC 

.< 0 Howard Toole, t is sou la, Montana - (-2 

(33 :71,1 

. . For Respondent: -- 

Filed: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

James Yellowtail, Assistant Attorney General, 

Helena, Montana 

Robert Deschamps, 111, County Attorney, Missoula, 

Montana 

submitted on ~riefs: July 13, 1990 

Decided: October 24, 1990 
Justice John Conway Harrison delivered the Opinion of the Court. 

Defendant and appellant, John Deskins, was charged in the 

District Court of the Fourth Judicial District, Missoula County, 

on June 23, 1989, with the offense of criminal possession of 

dangerous drugs with intent to sell. He appeals the denial of his 

motion to suppress the results of a search by Missoula City Police 

pursuant to a May 25, 1989 search warrant issued by District Court 

Judge Jack L. Green. We affirm. 

The only issue before this Court is whether the District Court 

erred in failing to grant the appellant's motion to suppress. 

On May 23, 1989, Missoula City Police Officer Vincent 

Sparacino received a Crimestoppers' report from an anonymous 

caller. The caller stated that he had been taken into the basement 

of a greenhouse located at 600 or 602 South Avenue East in 

Missoula, and had been shown a marijuana growing operation. 

Officer Sparacino arranged to have the caller contact the Narcotics 

Unit the next day. The following day, May 24, 1989, Missoula 

Police Detective Rocky Harris received a Crimestoppers' report 

regarding the same marijuana growing operation. The caller 

identified himself as the same caller who had talked to Officer 

Sparacino the previous day. 

As a result, Detective Harris contacted the county assessor's 

office and verified that the owners of the property on South Avenue 

East were John and Nancy Deskins. He also contacted the 

treasurer's office to confirm the issuance of the resident licence 

to Nancy Deskins for the operation of a day care facility on the 
property and to check names of the registered owners of the 

vehicles parked on the property. The vehicles on the property were 

registered to Mr. and Mrs. Deskins. When Detective Harris checked 

with the Montana Power Company to substantiate the registered names 

for the utility service to the two addresses, the registration 

revealed the name of John Deskins. 

Based upon the knowledge that marijuana cultivation operations 

often consume a significant amount of electricity, Detective Harris 

obtained an investigative subpoena to gain access to the records 

of the electrical consumption at the Deskins' property. These 

records for the residential portion of the Deskins' property (600 

South Avenue East) showed the power consumption for the residential 

half of the duplex as follows: 

Interval Kilowatt Hours Consumed 

378 KWH 

81 KWH 

298 KWH 

148 KWH 

390 KWH 

494 KWH 

421 KWH 

525 KWH 

167 KWH 

371 KWH 

1567 KWH 

Electrical consumption records for the other portion of the 

property, the day care at 602 South Avenue East, revealed the 

following: 

Interval Kilowatt Hours Consumed 

931 KWH 

176 KWH 

645 KWH 

300 KWH 
787 KWH 

1364 KWH 

1442 KWH 

1035 KWH 

276 KWH 

612 KWH 

901 KWH 

Detective Harris, who has had extensive training in narcotics 

investigations and knowledge pertaining to electrical power 

consumption for average household usage and for a typical marijuana 

cultivation operation, testified that from his training and 

experience the Deskinst electrical consumption records reflected 

a cyclical use of power that was not explained seasonally. 

Detective Harris concluded that the Deskins' electrical consumption 

records were consistent with the Crimestoppers caller's observation 

of the marijuana cultivation operation, and as a result he prepared 

an application for a search warrant of the property. 

On May 25, 1989, pursuant to a search warrant issued by 

District Court Judge Jack L. Green, members of the Missoula Police 

Department conducted a search of the duplex located at 600 and 602 

South Avenue East owned by the appellant and his wife. The search 

revealed a large quantity of marijuana, 250 marijuana plants, and 

equipment used in the cultivation of marijuana, namely sodium grow 

lamps, fans, and scales. 

In addition to the marijuana plants and equipment, the 

following firearms were also taken pursuant to the May 25, 1989, 

search: a loaded Fox .12 gauge shotgun; an H & K SL .223 rifle with 

a loaded magazine; a Western Field single shot .22; a Ruger Mini 

14 with a loaded magazine; a Wards Western Shotgun, loaded; a Chief 
Special revolver .38 caliber, loaded; and a Game Getter antique 

pistol, loaded. 

On June 23, 1989, the appellant was charged in Missoula County 

District Court with the offense of criminal possession of dangerous 

drugs with intent to sell. On August 23, 1989, the appellant filed 

a motion to suppress the results of the May 25, 1989, search, 

alleging insufficient probable cause forthe issuance of the search 

warrant. 

The suppression hearing was held August 24, 1989. At the 

suppression hearing, Officer Sparacino's record of the 

Crimestoppersl call of May 23, 1989, was admitted into evidence. 

In addition, Detective ~arris testified at the hearing regarding 

the substance of his conversation with the Crimestoppers caller. 

The person called stating he had seen a marijuana growing operation 

in the residence of Morgan Deskins. The person said that there 

were two other individuals living there, the father and the mother, 

John and Nancy Deskins, and that this residence also housed a day 

care. Furthermore, the person was personally shown this operation. 

~etective Harris also testified the caller stated that the 

marijuana was grown in two-and-one-half or three-month cycles and 

that the caller had seen growing marijuana plants in the Deskins1 

residence a month previously. The caller also told Harris that 

"there were fluorescent sodium lamps hanging over the plants.I1 

It should be noted that the search warrant application 

indicated that the electrical consumption records obtained by 

Harris were presented to the reviewing judge in conjunction with 
the actual application. However, at the time of the hearing on the 

motion to suppress, no such records were present with the search 

warrant application in the District Courtls file. While the 

appellant alleges that the reviewing judge had only the llconclusive 

 allegation^^^ of the applicants with respect to the information 

conveyed by the foregoing records, this is contradicted by the fact 

that the application contained a synopsis of the electrical 

records. 

Following the denial of the motion to suppress the evidence 

seized, the appellant entered a plea of guilty to the offense, and 

the matter is now presented to us on the question of the validity 

of the search. 

The appellant in his argument notes that under the provisions 

of 5 46-13-302(4), MCA, the burden of proving the illegality of a 

search and seizure is upon a defendant. State v. Baldwin (Mont. 

1990), 789 P.2d 1215, 1220, 47 St.Rep. 614, 620. In Baldwin, this 

Court held that there is a presumption that a magistrate properly 

issued the search warrant after subjecting the application to the 

totality of the circumstances test set forth in Illinois v. Gates 

(1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. 

We have previously held in State v. District Court of the 

Eighth Judicial District (1978), 176 Mont. 257, 264, 577 P.2d 843, 

859 and State v. Lane (1977), 175 Mont. 225, 236, 573 P.2d 198, 

202, that a judicial decision granting a search warrant is presumed 

correct on appeal. 

In addition, in State v. Hembd (1989), 235 Mont. 361, 767 P.2d 
864, this Court held that It[t]he reviewing court's examination is 

limited to whether the magistrate had a substantial basis for 

concluding probable cause existed.!! Hembd, 235 Mont. at 366, 767 

P.2d at 868. We have noted that the determination of probable 

cause is entitled to "great deferencell from a reviewing court. 

Sundberq, 235 Mont. at 123, 765 P.2d at 741. 

The probable cause requirement sufficiently establishes a 

probability rather than a prima facie case "that incriminating 

items, namely items reasonably believed to be connected with 

criminal behavior, are located on the property to which entry is 

sought." Sundberq, 235 Mont. at 119, 765 P.2d at 739. "That 

probability will be determined using a totality of the 

circumstances analysis, based upon the circumstances set forth in 

the affidavit." Hembd, 235 at 366, 767 P.2d at 867 (citation 

omitted). Following Illinois v. Gates, this Court has held 

that information in the form of an anonymous tip from an informant 

whose reliability is established by independent corroboration may 

serve to establish probable cause. 

We note in passing, however, that the use 

of anonymous tips as an element in obtaining 

a search warrant has been sustained by the 

United States Supreme Court in Illinois v. 

Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 

L.Ed.2d 527, and by the Montana Supreme Court 

in State v. Kelly (1983), 668 P.2d 1032, 40 

St.Rep. 1400, where other corroborating 

evidence is shown. 

State v. Cain (1986), 220 Mont. 509, 515, 717 P.2d 15, 19. 

In the present case, the search warrant application recites 

the informant's statement that he had been in the appellant's 
basement one month previously at the invitation of the appellant's 

son and personally observed growing marijuana plants. Personal 

observation of criminal activity by an informant whose reliability 

can be established provides probable cause. State v. Walston 

(1989), 236 Mont. 218, 222-23, 768 P.2d 1387, 1390. 

We find that, clearly, there was a substantial basis for the 

District Court's conclusion that probable cause was I1readily 

ascertainable." 

The appellant attempts to undermine the showing of probable 

cause by citing a number of so-called inconsistencies in the 

evidence. First, the appellant alleges that the State has a burden 

to inform the reviewing magistrate of any criminal history on the 

part of the suspect when applying for a search warrant, and because 

he had no criminal history, the State fell short of its burden when 

applying for the search warrant. However, appellant cites no 

authority for the proposition. 

Secondly, appellant cites an alleged inconsistency in the 

informant's tip. The search warrant application stated the 

informant had been on the Deskins' property thirty days before he 

contacted the law enforcement authorities. The testimony of 

Officer Sparacino indicated the informant had been on the premises 

''a couple of days earlier." The appellant now points to this 

discrepancy as error. The State explains the inconsistency as 

merely a lack of recollection. Because Officer Sparacino did not, 

at the time of the informant's call, document the date and time 

when the informant claimed to have been on the Deskins1 property, 
Officer Sparacino had no record of that date to refer to when 

testifying three months later. We find this alleged inconsistency 

without merit. 

We find, after carefully considering the case authority in 

this matter, that the arguments of the appellant are without merit 

and the judgment of the District Court is affirmed. 

Justices 
Justice R. C. McDonough respectfully dissents. 

The search of the Deskinst home does not comply with the 

policies which are articulated in the Fourth Amendment to the 

United States Constitution and the right to be free from 

unreasonable searches (Article 11, Section ll), and the right of 

privacy (Article 11, Section 10) embodied in the Constitution of 

the State of Montana. For this reason, I would reverse. 

The policies embodied in the above Amendment and articles 

grew directly out of events which immediately preceded the 

revolutionary struggle with England. Due to their experience with 

unrestrained search and seizure by means of automatic issuance of 

writs of assistance, the colonists viewed the prohibition of 

unreasonable searches and seizures of utmost importance. As a 

result, after the signing of the Declaration of Independence, at 

least eight states included such prohibitions in their 

constitutions. Perry and Cooper Sources of Our Liberties (1959). 

Eventually the federal government followed this lead through its 

enactment and the states' ratification of the Bill of Rights. 

These freedoms should not be lost by the exigencies of our 

times. The right to be free from unreasonable search and seizure 

is of paramount importance to a free society. Following his return 

from the Nuremberg trials Justice Jackson observed: 

[Fourth Amendment rights] are not mere second class 

rights but belong in the catalog of indispensable 

freedoms. Among deprivations of rights, none is so 

effective in cowing a population, crushing the spirit of 

the individual and putting terror in every heart. 

Uncontrolled search and seizure is one of the first and 
most effective weapons in the arsenal of every arbitrary 

government . . . 

See Almeida-Sanchez v. United States (1973), 413 U.S. 266, 37 

L.Ed.2d 596, 93 S.Ct. 2535 citing Brinegar v. United States (1948), 

338 U.S. 160, 180, 93 L.Ed. 1879, 1893, 69 S.Ct. 1302, 1313 

(Jackson dissenting) . 

Consistent with these sentiments, the framers of our State 

Constitution have prohibited state officials from conducting 

unreasonable searches and seizures of property. This prohibition 

is contained in Article 11, Section 11 of the Montana Constitution. 

It states: 

The people shall be secure in their persons, papers, 

homes and effects from unreasonable searches and 

seizures. No warrant to search any place, or seize any 

person or thing shall issue without describing the place 

to be searched or the person or thing to be seized or 

without probable cause, supported by oath or affirmation 

reduced to writing. 

As this article indicates, government officials must apply to 

the courts for permission to search a person's property. Before 

this permission can be granted, the judiciary must determine 

whether there is probable cause to believe that evidence of illegal 

activity will be found in the place to be searched. Courts have 

spent a great deal of time attempting to formulate a test which can 

be utilized in probable cause determinations. The United States 

Supreme Court, in Illinois v. Gates (1983), 462 U.S. 213, 76 

L.Ed.2d 527, 103 S.Ct. 2317, has adopted a totality-of-thecircumstances test. 

According to this test, a reviewing magistrate need only make 

a common sense decision whether, given all the circumstances set 
forth in the affidavit, there is a fair probability that evidence 

of a crime will be found in a particular place. Therefore, if from 

a review of the totality of the circumstances it reasonably appears 

that criminal evidence is present at the locale to be searched, a 

search warrant could legally be issued. Gates, 462 U.S. at 238. 

~ollowing the Gates decision, this Court followed federal lead and 

adopted the same totality of the circumstances approach. State v. 

Kelly (1983), 205 Mont. 417, 668 P.2d 1032. 

Many commentators, fellow judges and legal scholars have 

expressed strong disagreement with the principles set forth in 

Gates. Justice Byron White for example, while concurring in the 

outcome of the Gates case, disagreed with the majority's decision 

to adopt the totality of the circumstances test. He expressed 

concern that utilization of the totality of the circumstances test 

would result in "an evisceration of the probable cause standard." 

Gates, 462 U.S. at 272 (White concurring). 

The case now before us proves Justice White to be correct. 

Gates is a step backward in the development of any set of coherent 

rules to deal with information supplied by an informant. As stated 

in Gates, "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 

'veracity1 and 'basis of knowledge1 of persons supplying hearsay 

information, there is a fair probability that contraband or 

evidence of a crime will be found in a particular place.I1 Gates, 

462 U.S. at 238. 
* 

The Gates decision, however, fails to adequately define or 

limit the term "practical, common-sense decision.I1 Utilization of 

this broad standard has rendered probable cause determinations 

involving hearsay information, essentially subjective. Through 

their use of this 9gcommon-sensen approach, the courts have turned 

probable cause determinations into an art form which is not based 

on any reason or rule of law. For this same reason appellate 

review of search warrant decisions is difficult, because there are 

no real standards of review, except the appellate judge's view of 

"practical common sense. Due to the use of such a subjective 

test, inconsistencies between magistrates and reviewing trial 

courts are sure to arise and the application of common law will be 

thwarted. 

Previous to the Gates decision, the courts used the two-prong 

Aguilar-Spinelli test when making probable cause determinations. 

See Aguilar v. Texas (1964) 12 L.Ed.2d 723, 378 U.S. 108, 12 

L.Ed.2d 723, 84 S.Ct. 1509; Spinelli v. United States (1969), 393 

U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584. As the previous paragraphs 

indicate, probable cause is an innocuous concept which involves 

legal intricacies as well as everyday common sense. In recognition 

of this concept, the courts have sought to develop a set of 

coherent rules governing a magistratels consideration of warrant 

applications and the showings that are necessary to support a 

finding of probable cause. Gates, 462 U.S. at 275 (Brennan 

dissenting). In my view this goal is well served by renewed 

adherance to the two-pronged Aguilar-Spinelli test. 
This test requires the police, when relying upon hearsay 

information provided by an informant, to establish two elements 

before obtaining a search warrant. First, the police must 

establish some basis to reasonably believe crime evidence will be 

found at the locale to be searched. Second, the police must 

provide facts which establish either the veracity of their 

informant or alternatively the reliability of the informant's 

report. Asuilar, 378 U.S. at 114, S~inelli, 393 U.S. at 413. Each 

element must be established; they are independent and separate 

requirements. If one is not established, probable cause would not 

exist on the basis of information received from an informant. Very 

strong evidence relative to one test does not overcome the 

deficiencies involved in the other test. 

It is important to realize, however, that the two prongs of 

~guilar-Spinelli need only be met when the police are relying upon 

evidence obtained through an informant. Therefore, when they rely 

upon facts which are directly discovered through investigation, the 

police need not present further information which establishes 

credibility or veracity. In these situations, the police need only 

establish the first prong of Aguilar-Spinelli which requires that 

they present facts which support the reasonable conclusion that 

incriminating evidence will be found in the place to be searched. 

Holley, The Decline of the Right to Privacy and Security; Gates and 

the States - The First Three Years (1988) 21 Creighton L.Rev. 823. 

When the police rely upon hearsay information however, they 

must also satisfy the second prong of Aguilar-Spinelli. This 
requirement is necessitated by the recognition that hearsay 

information obtained from an informant is often times 

untrustworthy. See State v. Gommenginger (1990), 47 St.Rep. 681, 

790 P.2d 455 citing Fletcher v. United States (D.C. Cir. 1946), 

158 F.2d 321. In order to ensure that search warrants are not 

obtained through reliance upon false information or unfounded 

rumors, the Aguilar-Spinelli rule requires the police to establish 

the credibility of their informant or the veracity of his 

information. ~pinelli, 393 U.S. at 416. 

This requirement serves a second purpose when applied to 

anonymous tips. By definition nothing is known about an anonymous 

informant's identity, honesty or reliability. The courts should 

not, therefore, blindly accept conclusory allegations from such 

sources or attach any presumption to their information. Gates, 462 

U.S. at 284 (Brennan dissenting). Such allegations, submitted by 

police officers, who are considered presumptively reliable, cannot 

form the basis for probable cause. Therefore, the courts should 

not accept the same type of conclusion from anonymous informants 

when nothing is known concerning their reliability. 

The first prong of the test, can often be satisfied if the 

informant's tip contains sufficient detail describing the accused's 

criminal activity. Such detail might assure the magistrate 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." Spinelli, 393 U.S. at 416. See 

also Draper v. United States (1959), 358 U.S. 307, 31 L.Ed.2d 327, 
79 S.Ct. 329. Of course, this portion of the test can also be 

satisfied through a clear explanation of how the informant came 

across his knowledge concerning the alleged criminal behavior. 

Stanley v. State (Md. 1974), 313 A.2d 847, 861. 

The second prong of the Aguilar-Spinelli rule can be satisfied 

through statements by an officer informing the magistrate of the 

informant's reliability. Often this is accomplished by showing 

that the information obtained from the informant was against his 

penal interests or that the informant has been proven reliable in 

the past. LaFaue, Search and Seizure (1978) Volume 1 § 3.3 (c) . 

The second prong can also be met by establishing the veracity of 

the informant's allegations. This can be accomplished through 

corroboration of details of the tip by further investigation. See 

Gates, 462 U.S. at 283 (Brennan dissenting). Such corroboration 

can help establish the reliability of the source. If law 

enforcement can establish that an informant is right about some 

things, it is generally safe to conclude that "he is right about 

other facts, usually critical, unverified facts." See Spinelli, 

393 U.S. at 427 (White concurring). 

Through application of this test to the case now before us, 

it is apparent that sufficient probable cause does not exist and 

the search of the Deskins' home was unreasonable. The 

investigating officer in this case had three basic facts which were 

incorporated in his affidavit for a search warrant. According to 

the majority opinion, the officer received an anonymous tip from 

an informant who stated he had seen a marijuana growing operation 
. s 

in the basement of a house located at 600 or 602 South Avenue East. 

The informant further stated that the house was owned by John and 

Nancy Deskins. The police officer verified the fact that the house 

was owned by the Deskins. The officer also, through a review of 

electrical records, concluded that the Deskins were engaged in a 

marijuana growing operation. This conclusion was based upon the 

fact that the Deskins' use of electricity fluctuated. 

To begin the analysis we must address the first prong of the 

test, which requires an inquiry into the facts and circumstances 

that combine to form a basis for the anonymous informant's belief 

that the Deskins' basement contained a marijuana growing operation. 

In making this inquiry, we must restrict our analysis to the four 

corners of the search warrant. State v. Hembd (1989), 235 Mont. 

361, 767 P.2d 864. 

According to the search warrant affidavit, the anonymous 

tipster told officials of the Missoula police department that he 

personally viewed a marijuana growing operation in the Deskins' 

home. According to the tip, the operation was located in the 

basement which was equipped with florescent lights. The plants 

were grown on a two and one-half month cycle. 

The first prong of the Aguilar-Spinelli test can be satisfied 

by a statement from the informant that he personally observed the 

criminal activity. See S~inelli, 393 U.S. at 416. Such personal 

observation occurred in this case and therefore the first prong of 

the test is satisfied. 

The information contained in the affidavit fails to meet the 
requirements of the second prong, however. This portion of the 

test requires that the police show either that the informant is 

credible or that his information is reliable. This case involves 

an anonymous tip. Therefore, the police obviously cannot establish 

the informant's credibility. Instead they must establish the 

veracity of his information. 

The Missoula police officers sought to accomplish this task 

by verifying that the Deskins lived where the informant said they 

did and by obtaining electrical records. The fact that the Deskins 

lived at 600 South Avenue East is an innocent fact. It does 

nothing to establish any allegation regarding illegal activity. 

Moreover, the electrical records in and of themselves do not 

establish the probability that the Deskins illegally grew 

marijuana . 

Supported by further evidence, electric records are invaluable 

in detecting illegal activity. However, by themselves they do not 

provide adequate information to establish probable cause. See e.s. 

State v. Huft (Wash. 1986), 720 P.2d 838, State v. Mason (Idaho 

1986), 728 P.2d 1325. This fact is especially evident in the case 

now before us. The informant told Missoula police officers that 

the Deskins had been growing marijuana for five years. Despite 

this allegation the police officers only included power records for 

the period between September of 1988 until May of 1989 in their 

application for a warrant. During this nine month period, records 

indicate that in the residential portion of their home, the 

Deskins' power usage approximated 378 KWH during the months of late 
September through late November of 1988. Their usage rose to 538 

KWH during the time period between November 22 through December 21, 

1988. During the months of late December through late March, the 

power records reveal that the Deskins' usage ranged from a low of 

421 KWH, to a high of 525 KWH. This use rose dramatically between 

April 20, 1989 and May 22, 1989, to a rate of 1567 KWH. 

Examination of records from the day care portion of the 

Deskins' property revealed similar information. During the fall 

months, the Deskins utilized an average of 876 KWH of electricity 

per month. This power usage increased steadily throughout the 

winter months to a high of 1442 KWH during January and February of 

1989. During the spring months, the electricity records reveal 

that the power usage once again approximated 900 KWH, which was 

close to that recorded during September and October of the previous 

year. 

With the possible exception of the high rate recorded in 

April and May of 1989 for the residential portion of the property, 

these records are not indicative of any illegal activity. On the 

contrary, the records indicate a normal utilization of electrical 

power. For both the home and the day care center, the power usage 

increased throughout the fall and winter months and then began to 

decline during the spring. 

The Missoula police stated in their affidavit that the high 

rate recorded in April and May indicated the beginning of a 

marijuana growth cycle. However, this high rate was recorded over 

only one month. According to the informant, the Deskins had grown 
marijuana for five years. This one month period does not establish 

any pattern which may have been revealed through a review of power 

records gathered from a longer period of time. Furthermore, it is 

highly doubtful that increased use of electricity during one month 

can form the basis to verify an anonymous tip such as received 

here. 

The affidavit for the search warrant failed to establish 

probable cause, as determined under the Aguilar-Spinelli test, 

because the police did not sufficiently verify the information 

obtained through the anonymous tip. Moreover, the results of this 

case illustrate the problems inherent in the totality of the 

circumstances test. Armed with only an anonymous tip and a high 

rate of electricity recorded over only a one month period, the 

police obtained a warrant and searched a citizen's home. The 

authors of our state constitution sought to prevent such 

occurrences through inclusions in our state constitution granting 

Montana citizens a right to privacy and a right to be free from 

unreasonable searches and seizures. 

Although we are constrained by the minimal protections 

afforded by the federal constitution, we may construe the rights 

enumerated in our state constitution as affording additional 

liberties to thosegranted by the United States Supreme Court. The 

State of Alaska rejected completely the totality of the 

circumstances test on the basis that its constitutional provisions 

granting a right against unreasonable searches and seizures and a 

right to privacy, mandated stronger protection. State v. Jones 
(Alaska 1985), 706 P.2d 317. The detailed reasoning set forth by 

the Alaska Supreme Court is compelling. I believe it should be 

adopted by this Court, given the fact that the Montana Constitution 

contains provisions similar to those of the Alaska Constitution. 

The judgment should be vacated and the results of the search 

suppressed. 

Justices William E. Hunt, Sr. and John C. Sheehy concur in the 

foregoing dissent. /1 

Justices '