NO. 91-211 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

STATE OF MONTANA, 

i. 

Plaintiff and Respondent, 

-VSRICHARD COPE and ROSA DICKSON, 

a/k/a ROSA COPE, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Fourteenth Judicial District, 

In and for the County of Musselshell, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John L. Pratt; Ask & Pratt, Roundup, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General; Matthew F. 

Heffron and Barbara C. Harris, Assistants, Helena, 

Montana 

Vicki Krause, Musselshell County Attorney, Roundup, 

Montana 

Filed: 

Submitted on Briefs: September 19, 1991 

Decided: October 30, 1991 

- 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

On November 28, 1989, the State filed an Information in the 

District Court of the Fourteenth Judicial District in Musselshell 

County charging defendants Richard and Rosa Cope (a/k/a Rosa 

Dickson) with one count each of Possession of Dangerous Drugs and 

Possession of Dangerous Drugs With Intent to Sell. The State also 

charged Richard Cope with Felony Assault. The case was tried by 

the District Court without a jury on September 27-28, 1990. The 

court found Rosa Cope guilty of Possession of Dangerous Drugs With 

Intent to Sell. The court found Richard Cope guilty of both 

Possession of Dangerous Drugs With Intent to Sell and Felony 

Assault. The Copes appeal. We affirm. 

The issues are: 

1. Did the District Court err in denying the Copes' motion to 

suppress because the judge who issued the search warrant failed to 

comply with the "four corners" rule? 

2. Did the District Court err in denying the Copes' motion to 

suppress based on the alleged overbreadth of the search warrant? 

Did the District Court err in denying the Copes' motion to 

suppress based on the State's failure to leave the search warrant 

documents with the issuing judge until the search warrant was 

executed? 

3. 

4. Did the District Court err in denying the Copes' motion to 

suppress based on the State's alleged failure to serve the search 

warrant on the Copes at the time of the search? 

2 
5. Did the District Court err in finding Richard Cope guilty 

of felony assault? 

6. Did the District Court err in sentencing Richard Cope, who 

suffers from physical and mental disabilities, to Montana State 

Prison? 

In September 1989, FBI agent Carl Zarndt received an anonymous 

tip about marijuana growing south of Roundup, Montana. Agent 

Zarndt, who mistakenly believed the location to be in Golden Valley 

County, called Golden Valley County Sheriff Fred Cougill. Sheriff 

Cougill told Zarndt that the location was in Musselshell County and 

later relayed the tip to Musselshell County Sheriff Brian 

Neidhardt. On September 14, 1989, Sheriff Neidhardt called Zarndt 

to confirm the tip and learned that the marijuana was near Fort 

Hall. 

The next day Sheriff Neidhardt and Deputy Sheriff Rick 

Seidlitz rented a plane and flew over the Fort Hall area. Sheriff 

Neidhardt had concentrated on drug enforcement for 15 of his 18 

years in law enforcement and had training and experience in aerial 

surveillance. Based on this training and experience, Sheriff 

Neidhardt had no doubt that plants he observed during the flight 

were marijuana plants. 

After the flight, Sheriff Neidhardt checked the location he 

had seen from the air on a county map. He and Deputy Mike Thomas 

then drove out to the property and observed the marijuana plants 

3 
again through binoculars. 

were quite close to the residence on the property. 

Sheriff Neidhardt noted that the plants 

Sheriff Neidhardt and Deputy Thomas returned to Roundup to get 

a search warrant. The sheriff called the county land classifier 

for a legal description of the property and learned that it was 

tract BJ-7 on Section 6, Township 6N, Range 26E. Sheriff Neidhardt 

then supplied the Musselshell County Attorney's Office with a 

property description for use in preparing a search warrant 

application. 

The warrant application contained the following property 

description: 

A tannish colored framed dwelling located at 23 Harshman 

Road, by the junction of Shortcut Road and Harshman Road, 

more particularly described as BJ West 1/2 of NE, SW, 

Section 6, Township 6, Range 26, Musselshell County, 

Montana. 

This is not the description Sheriff Neidhardt received from the 

land classifier. The land classifier's testimony at the 

suppression hearing established that the discrepancy may have 

resulted from unfamiliarity with legal property descriptions by 

either Sheriff Neidhardt or the county attorney's typist. 

The warrant application also contained the following statement 

of probable cause: 

Sheriff Brian Neidhardt and Deputy Sheriff Rick Seidlitz 

flew over the Bull Mountains in Musselshell County on 

September 15, 1989, at approximately 12:OO o'clock Noon, 

and observed the residence of Rosa Dickson where what 

appeared to be marijuana growing on the South side of the 

residence [sic]. At approximately 1:30 p.m. on this same 

date, Sheriff Brian Neidhardt drove to Shortcut Road and 

4 
obsenred with binoculars, at approximately 200 yards, 

what appeared to be marijuana plants. 

Sheriff Neidhardt took this warrant application to District Court 

Judge Roy Rodeghiero, who placed the sheriff under oath and 

discussed the entire situation with him. Judge Rodeghiero issued 

a search warrant containing the property description reprinted 

above and commanding a search of all "vehicles, outbuildings, 

houses, and surrounding property" at that location. The sheriff 

did not leave the warrant application with Judge Rodeghiero. 

Sheriff Neidhardt and several deputies then returned to the 

Dickson property to execute the search warrant. As the sheriff and 

Deputy Seidlitz approached, they heard loud music coming from a 

Jeep parked near the house. Deputy seidlitz approached from the 

passenger side of the Jeep while Sheriff Neidhardt approached from 

the driver's side. Richard Cope was sitting in the driver's seat 

with the driver's side door open. When Sheriff Neidhardt 

identified himself, Cope reached down to his right, picked up a 

pistol, and began to swing it counterclockwise across his body 

toward Neidhardt. The sheriff knocked the pistol from Cope's hand 

while it was still pointing toward the front of the Jeep. 

The authorities then approached the house and ordered everyone 

out. Rosa Cope and Dr. James Cope, Richard's father, came out. 

Sheriff Neidhardt gave Rosa Cope a copy of the search warrant. The 

officers handcuffed Richard, Rosa, and Dr. Cope and then proceeded 

to search the property. The search produced a number of weapons, 

5 
some drug paraphernalia, and approximately 35 pounds of marijuana. 

Dr. Cope was neither arrested nor charged. 

On August 23, 1990, the Copes moved to suppress the search 

results. The Copes disqualified Judge Rodeghiero because they 

wanted to have him testify at their suppression hearing. A 

suppression hearing was held on September 11, 1990, and the motion 

to suppress was denied on September 13, 1990. 

The Copes were found guilty of Possession With Intent to Sell 

after a trial on September 27-28, 1990. Richard Cope was also 

convicted of Felony Assault. The court sentenced Rosa Cope to five 

years at Montana State Prison with all but 30 days in the county 

jail suspended on conditions. The court sentenced Richard Cope to 

ten years for Possession With Intent to Sell, and ten years for 

Felony Assault, with the sentences to run concurrently, and with 

eight years suspended on conditions. The court added a consecutive 

two-year sentence enhancement to Richard Cope's sentence for his 

use of a dangerous weapon in the assault. 

I 

Did the District Court err in denying the Copes' motion to 

suppress because the judge who issued the search warrant failed to 

comply with the It four corners" rule? 

The Copes cite a long line of Montana cases, including Statev. 

P?on Voust (Mont. 1991), 805 P.2d 1380, 48 St.Rep. 160, for the 

proposition that the issuing judge cannot go beyond the "four 

6 
corners" of the warrant application to find probable cause to 

search a suspect's property. The Copes claim the probable cause 

statement in the warrant application was insufficient and that the 

issuing judge must have gone beyond the application to find 

probable cause. Specifically, they argue that the warrant 

application did not allege that Sheriff Neidhardt had any training 

or experience in marijuana identification. The Copes conclude that 

Judge Rodeghiero could not find probable cause without finding that 

his affiant could identify marijuana on sight and that the warrant 

application was fatally flawed without this information. 

We disagree. The cases relied on by the Copes involve tips by 

informants which were relied upon to establish probable cause. See, 

e.g., State v. Heridricksoiz (1985), 217 Mont. 1, 701 P.2d 1368. This case 

does not require the usual analysis involving informant tips 

because in this case a law enforcement officer acting in his 

official capacity personally observed marijuana plants on two 

separate occasions. The same officer signed the warrant 

application and swore to its accuracy in front of the issuing 

judge. Questions of informant reliability and credibility are 

irrelevant because the county sheriff does not require the same 

accreditation as an unknown informant. We hold that under the 

circumstances of this case an allegation of personal observation by a law 

enforcement officer was sufficient to establish probable cause. 

7 
I1 

Did the District Court err in denying the Copes' motion to 

suppress based on the alleged overbreadth of the search warrant? 

The Copes argue that the District Court should have suppressed 

the search results because the search warrant incorrectly described 

a much larger piece of land than the tract on which they lived. 

The property description should have read "Tract &5-7, W+ of NE SW, 

Section 6." This would have directed the authorities to the west 

half of the northeast quarter of the southwest quarter-section of 

Section 6. Instead, the property description read llgJ West + of 

NE, SW, Section 6." A literal reading of this erroneous 

description would have led the authorities to the west half of the 

northeast quarter-section and all of the southeast quarter-section 

of Section 6. The Copes believe this error merits suppression. 

In State v. Ballew (1973), 163 Mont. 257, 261, 516 P.2d 1159, 

1161-62, we said: 

The warrant must designate the premises to be searched and contain a description 

so specific and accurate as to avoid any unnecessary or unauthorized invasion of 

the right of privacy. To this end it should identifi the property in such manner 

as to leave to the ofSicer no discretion as to the premises to be searched. 

[Emphasis in original.] 

(Quoting State ex re[. King v. Dist. Court (1924), 70 Mont. 191, 198, 224 

P. 862, 865). In Ballew, we found that the warrant was overly broad 

because it directed the authorities to search two cabins located in 

a particular area that in fact contained three cabins. Ballew, 516 

P.2d at 1162. 

8 
This case does not present that problem. Here, notwithstanding the erroneous property description as to tract number and 

section location, the warrant directed the authorities to 

"23 Harshman Road, by the junction of Shortcut Road and Harshman 

Road." There was only one tract of land at 23 Harshman Road. The 

authorities had no discretion as to which tract to search, and the 

Copes do not allege that any of the evidence offered against them 

was recovered from beyond the bounds of this tract. Nor do they 

deny living at "23 Harshman Road." We hold that the search warrant 

was not overly broad. 

111 

Did the District Court err in denying the Copes' motion to 

suppress based on the State's failure to leave the search warrant 

documents with the issuing judge until the search warrant was 

executed? 

Section 46-5-204, MCA (1989), provided: 

The application on which the warrant is issued shall be 

retained by the judge but need not be filed with the 

clerk of the court or with the court, if there is no 

clerk, until the warrant has been executed or has been 

returned "not executed. '' 

The authorities did not leave the warrant application with Judge 

Rodeghiero and they did not file it with the clerk of court until 

September 21, six days after they executed the search warrant. The 

Copes argue that this delay merits suppression of the search 

results. 

9 
The State responds that the delay in filing the warrant 

application did not result in substantial prejudice to the Copes. 

Section 46-5-103(3), MCA (1989), provided that I1[n]o search and 

seizure, whether with or without warrant, shall be held to be 

illegal as to a defendant if . . . any irregularities in the 

proceedings do not affect the substantial rights of the accused.t1 

(Emphasis added.) The State notes that the purpose of g 46-5-204, 

MCA (1989), is to protect "the person being searched from harmful 

publicity. 'I Section 46-5-204, MCA Annotations, Commission 

Comments. The Copes' interest in protection from harmful publicity 

was at most merely collateral to the substantial development of 

their defense. We do not believe this oversight by Sheriff 

Neidhardt affected their substantial rights. 

However, the Copes cite State v. Tropf (1975) , 166 Mont. 19, 530 

P.2d 1158, for the proposition that failure to leave the warrant 

application with the issuing judge is llprejudicial error. We 

disagree with their interpretation of our holding in that case. 

The defendant in Tropf challenged the search warrant on the grounds 

that: (1) the issuing police judge lacked the necessary 

jurisdiction; and (2) the authorities did not leave the application 

with the issuing judge. Tropf, 530 P.2d at 1160. 

We held that police judges lacked jurisdiction to issue search 

warrants and that the warrant was therefore void. Tropf, 530 P.2d 

at 1161. At that point all subsequent discussion of the warrant 

10 
paperwork became dicta. We noted perfunctorily and in passing that 

the district court in that case did not err in condemning the 

State's failure to leave the warrant application with the issuing 

judge. We did not consider the impact of the "substantial rights" 

requirement of 5 46-5-103(3), MCA (1989), (then codified as 

5 95-717, RCM (1947)). The words Ifsubstantial1' and 'lprejudicial'r 

do not even appear in our discussion of the issue. 

We have never since relied upon the dicta in Tropf to suppress 

search results because the authorities failed to leave the warrant 

application in the proper place. We decline to do so now. We hold 

that the District Court did not err in denying the Copes' motion to 

suppress based on Sheriff Neidhardt's failure to leave the warrant 

application with Judge Rodeghiero. 

IV 

Did the District Court err in denying the Copes' motion to 

suppress based on the State's alleged failure to serve the search 

warrant on the Copes at the time of the search? 

Section 46-5-206, MCA (1989), required the authorities 

executing a search warrant to exhibit it and leave a duplicate copy 

on the property. The Copes and their father all deny either seeing 

an original warrant or receiving a duplicate copy. They conclude 

that this justifies suppression of the search results. We note 

that they cite no cases so holding. 

11 
Furthermore, the evidence at the suppression hearing supports 

an inference that Sheriff Neidhardt did exhibit the warrant and 

leave an original on the property. Sheriff Neidhardt testified as 

follows: 

Q Where did you put the copy? 

A I don't recall if I -- obviously I might have 

-- if I gave it to her, I had to put it in her 

hand, but I showed it to her. I showed her 

the original, and I had a copy there. 

Q What did you do with the copy? 

A I would have handed a copy to her then. 

Q Do you recall putting it in her hand? 

A I would have had to. I don't recall exactly, 

but I would have had to; because I gave her a 

copy at that time. I know I wouldn't have 

thrown it on the ground, so I obviously put it 

in her hand. 

This testimony is far from unimpeachable, but perfection is 

not required. The Copes bore the burden of proof on this issue. 

Section 46-13-302 (4), MCA (1989). In finding that the Copes did 

not discharge that burden, the District Court said: 

Sheriff Neidhardt testified that he placed a copy of the 

Search Warrant in Rosa Dickson's hand after showing her 

the original. He is well trained and experienced in 

these matters and had or has no reason to lie about it. 

The Defendants' testimony on the point is, however, more 

suspect, whether from the motive of personal interest or 

from the confusion and excitement of the event. The 

Court must resolve contradictory testimony and does so, 

accepting the Sheriff's testimony as true. 

In the past, we have used two different standards of review for 

evidence presented at suppression hearings. 
At first, we expressed the standard as whether the trial 

court's findings were "clearly against the weight of the evidence. 'I 

ZnreR.P.S. (1980), 188 Mont. 317, 613 P.2d 999; Statev.Blak?zey (1979), 

185 Mont. 470, 605 ~.2d 1093; Statev. Lenon (1977), 174 Mont. 264, 570 

P.2d 901: Statev. Smith (1974), 164 Mont. 334, 523 P.2d 1395; Statev. 

Chappel (1967), 149 Mont. 114, 423 P.2d 47; State v. white (1965), 146 

Mont. 226, 405 P.2d 761. 

Our more recent decisions express the standard as whether the 

record contains "substantial credible evidence" to support the 

trial court's findings. Statev. Kim (1989), 239 Mont. 189, 779 P.2d 

512; Statev. Beach (1985), 217 Mont. 132, 705 P.2d 94; Statev. Camitsch 

(1981), 626 P.2d 1250, 38 St.Rep. 563; State v. Allies (AlliesZZ) (1980), 

190 Mont. 475, 621 P.2d 1080; Stakv. Davison (1980), 188 Mont. 432, 

614 P.2d 489; Statev.Allies(A1liesZ) (1979), 186 Mont. 99, 606 P.2d 1043. 

In one case, we cited both standards. State v. Grimestead (1979), 

183 Mont. 29, 598 P.2d 198. 

In Wuldert v. state (Mont. 1991) , P.2d -, 48 St.Rep. 893, we 

considered the appropriate standard of review for judge-made 

findings of fact in civilcases. We cited Rule 52(a), M.R.Civ.P., and 

held that we will not overturn the trial judge's findings of fact 

unless they are "clearly erroneous. It Walden, 48 St. Rep. at 896. 

The issue in Walden was whether the trial court had improperly 
refused a challenge for cause during jury selection. We adopted 

the "clearly erroneousf1 standard of review, even though we noted 

that challenges for cause do not fit squarely within the literal 

parameters of Rule 52(a). Walden, 48 St.Rep. at 896. Our purpose 

in that case was to begin clarifying the standards of review 

applicable to judge-made findings of fact and to settle on one 

expression of the standard that would be applicable to all future 

findings of fact. 

We extend our rationale in Waldeti to the District Court's 

findings of fact regarding the suppression hearing in the instant 

case. We see no reason to maintain a different standard of review 

in criminal cases than we apply to civil cases, as long as we 

continue to require the State to prove each substantive element of 

the criminal offense beyond a reasonable doubt at trial on the 

merits. In fact, the "clearly erroneous" formulation is the one 

applied to suppression hearings by the Ninth Circuit. See US. v. Elliott 

(9th Cir. 1990), 893 F.2d 220. Therefore, from this point forward 

we will not overturn a District Court's findings of fact regarding 

suppression hearing evidence unless those findings are clearly 

erroneous. 

Upon reviewing the evidence presented at the suppression 

hearing in this case, we are unable to say the District Court's 

findings of fact regarding that evidence are clearly erroneous. We 

hold that the District Court did not err in finding that Sheriff 

14 
Neidhardt exhibited the original warrant and left a duplicate copy 

on the Copes' premises. 

V 

Did the District Court err in finding Richard Cope guilty of 

felony assault? 

Section 45-5-202(2)(b), MCA (1989), provided: 

A person commits the offense of felony assault if he 

purposely or knowingly causes . . reasonable 

apprehension of serious bodily injury in another by use 

of a weapon . . . . [Emphasis added.] 

Richard Cope argues that he was trying to surrender his pistol to 

Sheriff Neidhardt and that he did not intend to cause apprehension 

of serious bodily harm. He concludes that the District Court erred 

in finding that he possessed the necessary mental state for felony 

assault. 

Cope has confused the mental states necessary under the 1973 

Criminal Code. Section 45-2-101(33), MCA (1989), provided: 

[A] person acts knowingly with respect to conduct or to 

a circumstance described by a statute defining an offense 

when he is aware of his conduct or that the circumstance 

exists. A person acts knowingly with respect to the result 

of conduct described by a statute defining an offense 

when he is aware that it k highly probable that such result will be caused by 

hk conduct. When knowledge of the existence of a 

particular fact is an element of an offense, such 

knowledge is established if a person is aware of a high 

probability of its exktence. Equivalent terms such as "knowingrt 

or "with knowledge" have the same meaning. [Emphasis 

added. 3 

15 
Thus, it was not necessary for Cope to intend to cause 

apprehension. He committed the offense if he was aware that his 

conduct would probably cause that result. 

The record contains evidence from which the District Court 

could infer that Cope acted knowingly. He reached down to his 

right, picked up a pistol, and began swinging it toward Sheriff 

Neidhardt. He testified that he held it by only two fingers, but 

Sheriff Neidhardt and Deputy Seidlitz testified that he had his 

right hand around the grip. The District Court found Neidhardt and 

Seidlitz more credible and chose to believe their testimony rather 

than Cope's. 

Cope also argues that any apprehension experienced by Sheriff 

Neidhardt was unreasonable because Cope never pointed the pistol 

directly at the sheriff. Cope cites 5 45-5-201(1)(d), MCA (1989), 

which raises a presumption of intent to cause apprehension when one 

person points a firearm at another. We do not believe that the 

converse is necessarily true. It is unreasonable to infer that the 

necessary state of mind did not exist simply because Cope did not 

succeed in pointing the firearm at his victim. 

Sheriff Neidhardt knocked the pistol out of Cope's hand while 

it was pointing toward the front of the Jeep. Cope cannot now take 

advantage of Neidhardt's quick reflexes and argue that he never had 

a chance to point the gun at his victim. Neidhardt testified that 

he thought Cope would shoot him. Deputy Seidlitz, who was 

"coveringt1 the incident, perceived Cope I s act as threatening and 

16 
actually began tightening the slack in his rifle trigger. Seidlitz 

testified that this was the closest he had come to shooting a 

suspect in his entire law enforcement career. 

In the past, we have expressed the standard of review on 

criminal bench trials as whether there is "substantial evidence to 

support the defendant's guilt beyond a reasonable doubt. Slate v. 

Duncart (1979), 181 Mont. 382, 387, 593 P.2d 1026, 1029-30; Slatev. 

Lolgacre (1975), 168 Mont. 311, 313, 542 P.2d 1221, 1222. For the 

reasons enumerated in Part IV of this opinion, we believe that the 

correct standard of review to be applied to all judge-made findings 

of fact is whether they are "clearly erroneous.' Based on our 

review of the record in this case, we do not believe that the 

District Court's findings that Cope acted knowingly and that 

Sheriff Neidhardt reasonably apprehended serious bodily harm are 

clearly erroneous. Therefore, we hold that the record contains 

sufficient evidence to support Richard Cope's conviction for felony 

assault. 

VI 

Did the District Court err in sentencing Richard Cope, who 

suffers from physical and mental disabilities, to Montana State 

Prison? 

Richard Cope argues that prison is an inappropriate 

environment for him because he suffers from certain physical and 

mental disabilities. Several years ago, Cope suffered severe head 

17 
injuries in a motorcycle accident. He now has an acrylic plate in 

his skull and suffers from an organic personality disorder 

attributable partly to the injury and partly to years of substance 

abuse. He presented medical testimony at his sentencing hearing 

that prison would be dangerous for him because the plate in his 

skull renders him easily susceptible to injury and because his 

personality disorder will make him susceptible to manipulation by 

other inmates. 

We believe this is a question of sentencing equity, rather 

than sentencing legality. We review sentences for legality only. 

Statev. Hurlbert (1988), 232 Mont. 115, 756 P.2d 1110. The standard of 

review on sentence legality is whether the district court abused 

its discretion. Statev. Lloyd (1984), 208 Mont. 195, 199, 676 P.2d 

229, 231. We find no such abuse here, since Cope's sentence is 

well within the statutory limits. Questions of sentencing equity, 

on the other hand, are to be presented to the Sentence Review 

Division. Lloyd, 676 P.2d at 231. If Cope wishes to pursue his 

equity argument, he may do so in the Sentence Review Division. 

Af f inned. 

/ 

/ 

JJU t'ice 

18 
We concur: 

19 
October 30, 1991 

CERTIFICATE OF SERVICE 

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

named: 

John L. Pratt 

Ask & Pratt 

P.O. Box 685 

Roundup, MT 59072 

Hon. Marc Racicot, Attorney General 

Matthew F. Heffron and Barbara Harris, Assistants 

Justice Bldg. 

Helena, MT 59620 

Vicki Krause 

Musselshell County Attorney 

P.O. Box 236 

Roundup, MT 59072 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA