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 FourteenthJudicial 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 CountyAttorney,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 foundRosa Cope guilty of Possession of Dangerous DrugsWith 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 indenying the Copes'motion to suppressbecause the judgewho issued the searchwarrant failed to comply with the "four corners" rule? 2. Did the District Court err indenying the Copes'motion to suppressbased on the alleged overbreadth of the search warrant? Did the DistrictCourt err indenying the Copes'motion to suppressbased 

### on the State's failure to leave the searchwarrant documents with the issuing judge until the search warrant was executed? 3.

4. Did the DistrictCourt err indenying the Copes'motion to suppressbased on the State's alleged failure to serve the search warrant on the Copes at the time of the search? 25. Did the District Court err in finding Richard Cope guilty of felony assault? 6. Did the DistrictCourt err in sentencingRichard Cope,who suffers from physical and mental disabilities, to Montana State Prison? InSeptember 1989, FBIagent Carl Zarndtreceived an anonymous tip about marijuana growing south of Roundup, Montana. Agent Zarndt,whomistakenlybelieved the locationtobe inGoldenValley County, called Golden Valley County Sheriff Fred Cougill. Sheriff Cougill told Zarndt that the locationwas inMusselshell County and later relayed the tip to Musselshell County Sheriff Brian Neidhardt. On September 14, 1989, SheriffNeidhardt 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

3again through binoculars.
were quite close to the residence on the property. SheriffNeidhardt noted that the plants

SheriffNeidhardt and DeputyThomas returned toRoundup 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. SheriffNeidhardt 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 junctionof ShortcutRoad and HarshmanRoad, 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. Thewarrant applicationalso containedthe followingstatement of probable cause: Sheriff Brian Neidhardt and Deputy SheriffRick Seidlitz flew over the Bull Mountains in Musselshell County on September 15, 1989,

### at approximately 12:OO o'clockNoon, 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 4obsenred 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 situationwith 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 Dicksonproperty to execute the searchwarrant. 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 thenapproached thehouse and ordered everyone out. Rosa Cope and Dr. James Cope, Richard's father, came out. Sheriff Neidhardt gave Rosa Cope a copy of the searchwarrant. The officers handcuffed Richard, Rosa, and Dr. Cope and then proceeded to search the property. The search produced a number of weapons,

5somedrug paraphernalia, and approximately 35pounds ofmarijuana. 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 suppressionhearing was held on September 11, 1990, and the motion to suppresswas denied on September 13, 1990. The Copeswere found guilty of PossessionWith Intent

### to Sell after a trial on September 27-28, 1990. Richard Cope was also convictedof FelonyAssault. The 

### court sentencedRosa 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 eightyears suspended on conditions. The court added a consecutive two

-year sentence enhancement to Richard Cope's sentence for his
use of a dangerousweapon in the assault. I Did the District Court err in denying the Copes' motion to suppressbecause the judgewho issued the searchwarrant failed to comply 

### with the Itfour 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

6corners" of the warrant application to find probable cause to search a suspect's property. The Copes claim the probable cause statement in thewarrant applicationwas 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 SheriffNeidhardt had any training
or experience inmarijuana identification. TheCopes concludethat JudgeRodeghierocouldnot findprobable causewithout findingthat his affiant could identifymarijuana on sight and that the warrant applicationwas fatally flawedwithout this information. We disagree. The cases relied 

### onby the Copes involve tipsby informantswhichwere relied upon to establishprobable 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 underthe circumstancesofthiscase an allegation of personal observationby a law enforcement officer was sufficient to establishprobable cause.

7I1 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 DistrictCourt shouldhave suppressed the searchresultsbecause the searchwarrant incorrectlydescribed
a much larger piece of land than the tract on which they lived. Theproperty description shouldhave 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 descriptionwould 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: Thewarrant

### mustdesignatethepremisestobesearchedandcontain

### adescription 

### sospecificandaccurateastoavoidanyunnecessary

### orunauthorizedinvasionof theright

### of privacy. Tothisend

### itshould identifithepropertyin

### suchmanner as to leave to the ofSicer no discretion as 

### to thepremises to be searched.

[Emphasis in original.] (Quoting State ex

### re[.King v. Dist. Court (1924), 70 Mont. 191, 198, 224 P. 862, 865). InBallew, we found that the warrant was overly broad because it directed the authorities to searchtwo cabins located 

### in

a particular area that in fact contained three cabins. Ballew, 516 P.2d at 1162. 8This 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 searchwarrant was not overly broad. 111 Did the District Court err in denying the Copes' motion to suppressbased on the State's failure to leave the searchwarrant 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, sixdays after they executed the searchwarrant. The Copes argue that this delay merits suppression of the search results.

9The 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

(Emphasisadded.) The State notes that the purpose of g 46-5-204, MCA (1989), is to protect "theperson being searched from harmful publicity. 'I Section 46-5-204, MCA Annotations, Commission Comments. The Copes' interest inprotection fromharmful 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 searchwarrant on the grounds that: (1) the issuing police judge lacked the necessary jurisdiction;and (2) the authoritiesdid not leave the application with the issuing judge. Tropf, 530 P.2d at 1160. We held thatpolice 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 10paperwork 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 thewarrant application in the proper place. We decline to do so now. We hold that the DistrictCourt did not err in denying the Copes' motion to suppressbased on Sheriff Neidhardt's failure to leave thewarrant 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 searchwarrant 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.

11Furthermore,the evidence at the suppressionhearing 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 Imight have 

# -- if Igave it to her, I had 

### to put it in her hand, but I showed it to her. I showed her the original, and 

### Ihad a copy there. 

### Q What did you do with the copy? A Iwould have handed a copy to her then. 

### Q Do you recall putting it in her hand? A Iwould have had to. I don't recall exactly, but Iwould 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 obviouslyput 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 "clearlyagainst theweight of the evidence.'I ZnreR.P.S. (1980), 188 Mont. 317, 613 P.2d 999;Statev.Blak?zey (1979), 185Mont. 470, 605 ~.2d 1093;Statev.

### Lenon (1977), 174Mont. 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; Statev.Allies (AlliesZZ) (1980), 190 Mont. 475, 621 P.2d 1080; Stakv.Davison (1980), 188 Mont. 432, 614P.2d 489;Statev.Allies(A1liesZ) (1979), 186Mont. 99,606 P.2d 1043. 

### In one case, we cited both standards. Statev. Grimestead (1979), 183 Mont. 29, 598 P.2d 198. In Wuldertv.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 improperlyrefused 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 suppressionhearingsby theNinth Circuit. See

### US. 

### v.Elliott (9thCir. 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
14Neidhardt 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 seriousbodily harm. He concludes that the District Court erred 

### in finding that he possessed the necessarymental 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 circumstancedescribedby a statutedefining an offense when he is aware of his conduct or that the circumstance exists. 

### A person acts knowinglywith respect to theresult of conduct described by a statute defining an offense when he isawarethat

### itk

### highlyprobablethatsuchresult

### willbecausedby 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 probabilityofitsexktence. Equivalent terms such as "knowingrt

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

### 3

15Thus, 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 foundNeidhardt 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 apresumption of intent to causeapprehensionwhen one person points a firearm at another. We do not believe that the
converse is necessarily true. It is unreasonableto infer that the necessary state of mind did not exist simply because Cope did not succeed in pointing the firearm at his victim. SheriffNeidhardt knocked the pistol out of Cope's hand while it was pointing toward the front of the Jeep. Cope cannot now take advantageof Neidhardt's quick reflexesand argue thathe 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 Is act as threatening and 16actually began tightening the slack inhis 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 criminalbench trials aswhether 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 tobe 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 sufficientevidenceto supportRichard 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

17injuries in amotorcycle 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. Affinned. / / JJU t'ice

18We concur:

19October30, 1991 CERTIFICATEOFSERVICE I hereby certify thatthefollowingorderwas sentby United States mail,prepaid,tothe following named:

JohnL. Pratt Ask&Pratt P.O.Box685 Roundup,MT 59072 Hon. MarcRacicot, AttorneyGeneral MatthewF. HeffronandBarbaraHarris,Assistants Justice Bldg. Helena,MT 59620 VickiKrause Musselshell County Attorney P.O. Box236 Roundup,MT 59072 EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA