No. 12295 INTHE SUPREME COURT OF THE STATE OF MONTANA 1972

THE STATE OF MONTANA ex rel. JONREED= WICKS, Relator,

THE DISTRICT COURT OF THE TENTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, INAND FOR THE COUNTY OF FERGUS, AND THE HONORABLE LEROY L. MCKINNON, JUDGE, Respondent.

Original Proceedings. Counsel of Record: For Appellant: Robert L. Johnson argued, Lewistown, Montana 59457. William E. Berger, Lewistown, Montana 59457. For Respondent: T. P. Cowan, Deputy CountyAttorney, Lewistown, Montana WilliamA. Spoja argued, County Attorney, Lewistown, Montana 59457. Robert L. Woodahl, Attorney General, Helena, Montana 59601. J. C. Weingartner, AssistantAttorney General, Helena, Montana 59601.

Submitted: June 30, 1972. Decided:

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# -19E.Mr. Justice Frank I. Haswell delivered the Opinion of the Court. Relator Jon Reeder Wicks, defendant in criminal cause #2800 in the district court of Fergus County, seeks a writ of supervisory control from this Court suppressing certain evidence and dismissing the case againsthim in the district court. On February 22, 1972, the deputy county attorney of Fergus County filed a complaintunder oath against Wicks charging him with the criminal sale of marihuana to oneMichael Hunter on or about October 21, 1971. The justice of the peace issued a warrant of arrest forWicks. Subsequently on the same day, the Fergus County sheriff apprehended and arrested Wicks about 6:00 p.m. on

a gravel road about fourmiles west of Lewistown. Wicks was driving his car accompanied by JamesLangford and Russell Fairbairn. After arrestingWicks and his two companions, searching their persons, and placing them in two sheriff's cars,the sheriff searched the front seat area of Wicks car and found a black bag allegedly containing marihuana and hash pipes under the front seat. The sheriff took the black bag and its contents into custody,called

a wrecker and towed the Wicks car into Lewistown, and jailed Wicks and the two occupants of his car. Subsequently a search warrant

was issued authorizing a search of the car and a residence in Lewistown. Two days later an informationwas filed directly in the district court,pursuant to leave of court, charging Wicks with two felonies: (1)Having in his possession more than 60 grams of marihuana on February 22, 1972 (thecontents of the black bag), and (2) selling marihuana to Michael Hunter on October 21, 1971. Eight days later on March 3, 1972, the county attorney dismissed the second charge involving the sale of marihuana to Michael Hunter. ThereafterWicks entered a plea of not guilty to the remaining charge of possession ofmarihuana and filed two motions:(1) For an order suppressing from evidence the marihuana seized from defendant's car on the basis that itwas the product of an unlawful search and seizureby the sheriff. (2) For an order dismissing the charge on the basis that itwas filed without probable cause and was founded on an invalid warrant of arrest and an unlawful search and seizure. An evidentiaryhearing was held on these motions and thereafter both were denied by the district court. This application for review and reversal of these rulingsby writ of supervisory control followed. The state contends that the marihuana found under the front seat of defendant's car was discovered and seized as an incident to a lawful arrest upon probable cause. Defendant contends otherwise. In our view, the decision in this case turns on whether Wicks' arrest was lawful or not. This arrestwas the fountainhead from which everything else flowed,and without which there is no case against Wicks. At the outset, it is clear that the legality of Wicks' arrestmust be measured in terms of an arrest by a peace officer with awarrant. The sheriff's testimony indicates he arrested Wicks on the basis of the warrant, and the sheriff's return on the arrestwarrant indicates the arrest was made pursuant to the warrant. The sheriff's testimony that he would have arrested Wicks anyway without awarrant based on undisclosed information given to him by unidentified informers whose reliability is undisclosed, furnishes no basis for validating Wicks' arrest. Section 95-603,R.C.M. 1947,provides that a complaint, as the basis of an arrest warrant, shallbe in writing; that "the court shall examine upon oath the complainant and may alsoexamine any witnesses"; and, if the contents of the complaint and the examination of the complainant and other witnesses, if any,disclose "that there isprobable cause to believe that the person against whom the complaintwas made has committed

an offense",an arrest warrant shall be issued. Measuring the facts of this case against these statutory requirements, it is clear that probable causewas not shown for the issuance of awarrant of arrest for Wicks. The complaint of the deputy county attorney,under oath,discloses nothing more than the bald conclusion that Wicks sold a quantity of marihuana to Hunter on a certain date some four months previously, in violation of section 54-132,R.C.M. 1947,of the Dangerous Drug Act. Evidence at the hearing disclosed that neither the cornplainant nor the justice of the peace could remember whether the complainant was examined under oath; the docket in the justice court does not indicate that the complainant or anyone else was so examined, it simply shows that the complaintwas filed and the arrestwarrant issued. Michael Hunter, an undercover narcotics agent to whom the marihuana was allegedly sold by Wicks on October 21, 1971,which formed the basis of the complaint onwhich the arrest warrant was issued,testified that he "didnot purchase drugs from Jon Wicks directly";that the source of the drugs he purchased "could have come from anybody in town";that he told an attorney in Bozeman that he "had no drug purchases from JonWicks"; and, that

a recital in a statement to Wicks' attorney to the effect that Hunter had "atno time bought drugs from Jon Wicks" contained no

error whatsoever. Subsequently this charge onwhich the arrest warrantwas issued was dismissed in the district court onmotionof the county attorney. The foregoing evidence destroys any presumption that might otherwise exist that official duty has been regularlyperformed as required by section 93-1301-7(15), R.C.M. 1947,and Petition of Jones, 143 Mont. 19, 386 P.2d 747. The showing of "probablecause" required for issuance of a warrant of arrest is similar and analogous to the showing of "probable cause" required for the issuanceof a searchwarrant. Such requirements are set forth in Petition of Gray, 155 Mont. 510, 473 P.2d 532. As applied to the facts of this case, such showingmust disclose facts which will enable themagistrate to make a judicial determination of the existence of probable cause and undisclosed informationpossessed by law enforcement officers is irrelevant. In the instant case it appears that complainantwas not examined under oath; that no showing of "probable cause"was made to the magistrate who issued the arrestwarrant; and, that an absence of ''probable cause" was demonstrated by defendant. Accordingly, the arrest warrantwas invalid and the subsequent search and seizureunlawful. Themotion of defendant to suppress the use in evidence of the black bag allegedly containing marihuana is granted. The motion of defendant to dismiss cause #2800 in the district court of Fergus County is likewise granted. 

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Associate Justice