No. 92-096 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsHOWARD THOmS CAMPBELL, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas G. arki in, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

David E. Stenerson, Hamilton, Montana 

For Respondent : 

Hon. Marc ~acicot, Attorney General 

Carol E. schmidt, ~ssistant Attorney General 

Helena, Montana 

Robert L. Deschamps, 111, County Attorney 

Karen Townsend, Deputy County Attorney 

Missoula, Montana 

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; $4 . . Submitted on Briefs: July 23, 1992 

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Justice R. C. McDonough delivered the Opinion of the Court. 

This is an appeal from an order of the Fourth Judicial 

District Court, Missoula County, denying defendant's motion to 

suppress evidence obtained in a search of defendant's home on July 

18, 1991. We affirm. 

The issues before the Court are: 

1. Whether the District Court erred in denying defendant's 

motion to suppress; and 

2. Whether the District Court should have required the State 

to release the identities of the informants. 

The facts supporting the search warrant include: (1) On July 

15, 1991, a reliable informant reported to Detective Fowlkes that 

another person had observed a marijuana growing operation in Howard 

Thomas Campbell (Thomas) and Christina Campbell's bedroom at 2225 

South 7th Street West within the last two weeks. The informant 

also said that Thomas was distributing cocaine in the Missoula 

area. (2) On that same day, Detective Jacobs confirmed that the 

consumers responsible for the power bills at 2225 South 7th Street 

West were Thomas and Christina Campbell. (3) On July 16, 1991, 

Detective Peterson obtained a description of the Campbell 

residence. (4) He also checked Narcotics intelligence files which 

revealed that: (a) On May 8, 1989, Larry Weatherman of the Missoula 

County Sheriff's Office was informed by a confidential informant 

that Thomas was receiving cocaine from a person known in the area 

as a cocaine distributor. (b) Detective Eggett had responded to 
and confirmed a report on July 29, 1989, that Christina Campbell 

had received a gunshot wound. Initially, it was thought to be an 

accident but a reliable informant later stated that the shooting 

was intentional to prevent her from disclosing her husband's drug 

problem. (c) A confidential informant told Detective Jacobs on 

August 16, 1990, that Thomas was distributing cocaine in the 

Missoula area and he could also obtain large quantities of 

marijuana. He also reported that Thomas had two vicious pit-bull 

type dogs. (d) Detectives Lewis and Jacobs responded to a call 

from the landlord on September 10, 1990, to investigate the 

residence at 2345 West Kent, Thomas' former rental house. An 

inspection of the residence uncovered the remains of an abandoned 

marijuana growing operation, including one-eighth ounce of 

marijuana and marijuana stems. The former landlord also reported 

that Thomas had 3 pit-bull dogs and had "beware of dog" signs 

posted on the property. (5) Finally, Detective Peterson obtained 

an investigative subpoena to review the power usage records for 

2225 South 7th West. The analysis revealed that Thomas' power 

usage fell within the normal range from November 1990 through April 

1991 but increased dramatically in May of 1991 even though the 

natural gas consumption had decreased considerably. (The large 

increase actually occurred in June 1991, not May, but this error 

was later corrected.) 

The search warrant application was granted on July 16, 1991 

and the search on July 18 disclosed marijuana, marijuana plants, 

literature on growing marijuana, marijuana paraphernalia and plant 
food. The defendant was charged with criminal possession of 

dangerous drugs and criminal possession of drug paraphernalia. 

Thomas filed a motion to suppress the evidence recovered in 

the search. The search warrant was upheld by the District Court 

and after final judgment this appeal by the defendant followed. 

I 

The core question is the sufficiency of the application for a 

search warrant. "To address the issue of probable cause for 

issuance of a warrant, this Court has adopted 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." State v. Crowder (lggl), 248 

Mont. 169, 173, 810 P.2d 299, 302. !'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 the 'veracity' and 'basis of knowledge' of 

persons supplying hearsay information, there is a fair probability 

that contraband or evidence of a crime will be found in a 

particular place." State v. OINeill (1984), 208 Mont. 386, 394, 

679 P.2d 760, 764. "[Tlhe duty of the reviewing court is to ensure 

the magistrate had a 'substantial basis1 for conclud[ing] that 

probable cause existed." Gates, 462 U.S. at 238-39, 103 S.Ct. at 

2332, 76 L.Ed.2d. at 548. See Crowder, 810 P.2d at 302. '!The 

magistrate's determination of probable cause should be paid great 

deference by reviewing courts.I1 State v. Sundberg (1988), 235 

Mont. 115, 123, 765 P.2d 736, 741. "Our function is not to review 

de novo the magistrate's determination that probable cause existed 
justifying the issuance of a search warrant." State v. Baldwin 

(1990), 242 Mont. 176, 183, 789 P.2d 1215, 1220. 

This case is illustrative of the classic Gates totality of the 

circumstances test. It also meets previous established tests. 

Some of the factors at issue here are of little probative value 

alone but taken together, under the Gates test, there is 

substantial evidence to conclude that probable cause existed to 

issue the search warrant. 

The early "tipst1, provided by the confidential informants, 

claimed that Thomas was involved in obtaining and distributing 

drugs such as cocaine and marijuana. These tips, by themselves, 

are of questionable probative value and would be "stale" without 

more. 

Where the affidavit recites a mere isolated violation it 

would not be unreasonable to imply that probable cause 

dwindles rather quickly with the passage of time. 

However, where the affidavit properly recites facts 

indicating activity of a protracted and continuous 

nature, a course of conduct, the passage of time becomes 

less significant. 

Together with the current tip from a reliable informant, the 

earlier tips have greater force. See State v. Walston (1989), 236 

Mont. 218, 222-23, 768 P.2d 1387, 1390. (Also of note is the fact 

that Detective Fowlkes stated on the warrant that the current 

informant was reliable because he had given reliable information in 

the past.) These tips together support an argument that the 

defendant was involved in on-going criminal activity. See Crowder, 

810 P.2d at 303. 
Other factors add to the weight of the argument that the 

magistrate had probable cause to issue a search warrant. The 

evidence of a marijuana growing operation in Thomasf former 

residence, which was covered with warnings about his dogs, further 

adds to the probability that Thomas was involved in criminal 

activity. The dramatic increase in power consumption in June of 

1991 adds some value to the State's case. Moreover, the shooting 

incident, in conjunction with other facts, increased the 

probability that the defendant was growing marijuana. All the 

facts contained in the search warrant, in their totality, combine 

to provide a substantial basis to conclude that probable cause 

existed to issue a search warrant. 

I1 

Defendant contends that the District Court erred in denying 

his motion to disclose the identity of the informants. He insists 

that the State did not meet its burden of showing the need for 

nondisclosure. The State, however, argues that the District Court 

order was correct because the defendant made only bald assertions 

about the informants and why they were unreliable. Also, the State 

asserts that the defendant did not meet his burden of demonstrating 

that his need to know the identities of the informants outweighed 

the State's privilege of nondisclosure. 

The State has the privilege to refuse to disclose the name of 

an informer in a case under certain circumstances. Rule 502, 

M.R.Evid., and 5 46-15-324(3), MCA. 

Rule 502, M.R.Evid., provides that: 
Rule 502. Identity of informer. 

(a) Rule of privilege. The United States or a state 

or subdivision thereof has a privilege to refuse to 

disclose the identity of a person who has furnished 

information relating to or assisting in an investigation 

of a possible violation of a law. 

(c) Exceptions and limitations 

(1) Voluntary disclosure; informer a witness. No 

privilege exists under this rule if the identity of the 

informer or the informer's interest in the subject matter 

of the informer's communication has been disclosed to 

those who would have cause to resent the communication by 

a holder of the privilege or by the informer's own 

action, or if the informer appears as a witness for the 

public entity. 

Working in conjunction with Rule 502, M.R.Evid., is § 46-15- 

324 (3), MCA (l989), which states: 

(3) Disclosure of the existence of an informant or 

of the identity of an informant who will not be called to 

testify is not required if: 

(a) disclosure would result in substantial risk to 

the informant or to his operational effectiveness; and 

(b) the failure to disclose will not infringe the 

constitutional rights of the accused. 

"The purpose of the privilege is the furtherance and 

protection of the public interest in effective law enforcement. 

The privilege recognizes the obligation of citizens to communicate 

their knowledge of the commission of crimes to law-enforcement 

officials and, by preserving their anonymity, encourages them to 

perform that obligation." Roviaro v. U.S. (1957), 353 U.S. 53, 59, 

In order to claim the privilege, the State must meet a 
balancing test adopted by the Montana Supreme Court from Roviaro. 

State v. Babella (1989), 237 Mont. 311, 772 P.2d 875. This test: 

[Clalls for balancing the public interest in protecting 

the flow of information against the individual's right to 

prepare his defense. Whether a proper balance renders 

nondisclosure erroneous must depend on the particular 

circumstances of each case, taking into consideration the 

crime charged, the possible defenses, the possible 

significance of the informer's testimony, and other 

relevant factors. 

Babella, 772 P.2d at 876. "In this balancing test the burden is on 

the defendant to show the need for disclosure, and this need must 

be one which overrides the government's interest. Mere speculation 

will not suffice." Babella, 772 P.2d at 878 (emphasis added). 

In the instant case, the defendant contends that the chief 

informant made sexual advances toward his wife, Christina which 

were rejected and he has had several altercations with the 

defendant. The defendant claims that he was able to determine the 

identity of this informer after he had entered his pleas. He 

further claims that if he had known the identity of the informant 

earlier, a simple hearing would have established that the 

information that was reported to the authorities was erroneous. He 

also states that another informant had made sexual advances toward 

his daughter, giving that informant a reason for a vendetta against 

the defendant. 

However, the defendant provides no facts to support his 

statement that two of the informants have a reason to falsify 

information about his activities, thereby violating his 

constitutional rights. He makes a bare assertion that these 

informants made sexual advances toward his wife and daughter. No 

8 
affidavits containing factual information about these situations 

were presented by the defense. The defendant must produce 

something more concrete than conclusory statements about 

confidential informants and the information they provide. The 

defendant has introduced no evidence to show that his 

constitutional rights will be violated by the State's failure to 

disclose the identities of the informants nor made any showing that 

he needs the identities of the informants in order to establish an 

adequate defense. In conclusion, the defendant submits no set of 

facts which would tip the balance in his favor under the Roviaro 

test. 

The District Court correctly concluded that the magistrate had 

a substantial basis upon which to issue the search warrant and that 

the identity of the informers should not be disclosed. 

Affirmed . 

We concur: 

Chief Justice . .
September 28, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, preprtid, to the following 

named: 

David E. Stenerson 

Attorney at Law 

P.O. Box 1667 

Hamilton, MT 59840 

Hon. Marc Racicot, Attorney Genera1 

Carol E. Schmidt, Assistant 

Justice Bldg. 

Helena, MT 59620 

Robert Deschamps, 111, County Attorney 

Missoula County Courthouse 

Missoufa, MT 59802 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA