NO. 94-038

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

STATE OF MONTANA,

Plaintiff and Respondent,

-vsAPPEAL FROM: District Court of the First Judicial District,

In and for the County of Broadwater,

The Honorable Jeffrey Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Steven J. Shapiro, Attorney at Law,

Clancy, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Pamela P. Collins, Assistant Attorney General,

Helena, Montana

John T. Flynn, Broadwater County Attorney,

Townsend, Montana

Filed:

Submitted on Briefs: June 30, 1994

Decided: August 11, 1994
Justice John Conway Harrison delivered the Opinion of the Court.

Justin Robert Wilson (Wilson) appeals from an order of the

First Judicial District Court, Broadwater County, which determined

that the justice of the peace had a substantial basis to conclude

that probable cause existed to issue a search warrant for Wilson's

truck. We reverse.

On the night of April 2, 1993, or early morning of April 3,

1993, the A & W restaurant in Townsend, Montana, was burglarized.

When the Broadwater County sheriff arrived at the scene he

discovered that a safe and microwave oven were missing. Even

though a large window was broken, the sheriff found black marks on

the vinyl floor and concrete around the doorway which suggested

that the safe was wheeled through the doorway. That door was

locked the night before by the manager. The sheriff deduced that

the person who took the safe must have had a key to the door. The

sheriff also noticed tire tracks on the pavement at the A & W.

The manager of the A & W told the sheriff that only four

people had keys to the door of the A & W--one of whom was Wilson,

an employee. She also told the sheriff that Wilson knew the

combination to the safe that was stolen.

Later in the morning of April 3, 1993, a person discovered a

safe in the water near the Indian Creek Campground. The sheriff,

a deputy and the Broadwater County justice of the peace travelled

out to the Indian Creek Campground to investigate. When the three

men arrived at the campground, they noticed tire tracks similar to

2
those found at the A & W and footprints leading to and from the

water. They walked over to the water and found the safe that

belonged to the A & W. The safe door was open and no visible signs

of forcible entry were apparent. The sheriff deduced that a person

who knew the combination must have opened the safe. The sheriff

knew that Wilson was aware of the safe's combination. The sheriff

discussed the safe and the investigation with the justice of the

peace at that time.

On April 4, 1993, while Wilson was working at the A & W, an

undersheriff took pictures of Wilson's truck, the tires, and the

bed. The undersheriff noticed scratch marks on the bed of Wilson's

truck. The undersheriff also noticed a twisted bolt and bracket in

the bed of Wilson's truck. The undersheriff did not know the

significance of the bolt but seized it anyway and showed it to the

A & W's owner the next day. The owner identified the bolt and

bracket as the bolt which secured the safe to the floor of the

A & W.

On April 5, 1993, the sheriff applied to the justice of the

peace for a search warrant to search Wilson's truck. The justice

of the peace granted the search warrant and the sheriff executed

the warrant. The sheriff seized a number of one dollar bills

stashed in the glove compartment, a blue poncho and paint scrapings

from the bed of the truck. Wilson subsequently was arrested.

On October 6, 1993, Wilson filed a motion to suppress the

twisted bolt and bracket claiming the undersheriff illegally seized

the bolt and bracket from his truck. Wilson argued that without

3
the illegally seized twisted bolt and bracket, there was no

probable cause to support the issuance of a search warrant. Wilson

also argued that the evidence was tainted since the justice of the

peace was at the scene when the sheriff recovered the safe and,

specifically, since the sheriff discussed the safe and the

investigation with the justice of the peace at that time.

The District Court granted Wilson's motion to suppress, but

determined that, even without the bolt and bracket, the search

warrant application was sufficient to support the existence of

probable cause. Wilson then changed his plea to guilty under North

Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d

162. Wilson reserved the right to appeal the District Court's

order pertaining to the search warrant and reserved the right to

withdraw his guilty plea. The District Court then sentenced Wilson

to three years on conditions of probation. Wilson appeals and we

restate the issue:

If a justice of the peace travels with a sheriff to recover

evidence of a crime and discusses the evidence and the

investigation with the sheriff, can that justice of the peace

subsequently issue a search warrant in that case?

Ordinarily, we review whether the issuing magistrate had a

substantial basis to conclude that probable cause to issue a search

warrant existed. State v. Sunberg (1988), 235 Mont. 115, 122, 765

P.2d 736, 741. However, when, as here, the issuing magistrate is

actively involved in the police investigation, we review whether

the magistrate correctly issued the search warrant. See State ex

4
rel. Townsend v. Dist. Court, Fourth Judicial Dist. (1975), 168

Mont. 357, 363, 543 P.2d 193, 195.

Montana law requires that "[aIn impartial magistrate must

determine the existence of . . . probable cause solely from the

evidence in 'the four corners of the search warrant application."'

State v. Walston (1989), 236 Mont. 218, 221, 768 P.2d 1387, 1389.

The magistrate must be impartial "to ensure that some neutral and

detached evaluation is interposed between those who investigate

crime and the ordinary citizen." Townsend, 543 P.2d at 195. In

Townsend, we stressed the importance of a neutral and detached

magistrate by quoting the United States Supreme Court:

The point of the Fourth Amendment, which often is not

grasped by zealous officers, is not that it denies law

enforcement the support of the usual inferences which

reasonable men draw from evidence. Its protection

consists in requiring that those inferences be drawn by

a neutral and detached magistrate instead of being judged

by the officer engaged in the often competitive

enterprise of ferreting out crime.

Townsend, 543 P.2d at195; ouotinqJohnson v. United States (1948),

333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440.

Here, once the justice of the peace travelled to the

campground to investigate the missing safe, he became a part of the

investigation and his impartiality ceased. Once he crossed the

line and became a member of the investigatory team, he could not

make a neutral and detached evaluation of the evidence. He could

no longer protect Wilson's right to be free from searches not based

on probable cause. Not only was the justice of the peace's

judgment clouded by personally observing the scene where the safe

was found and the safe itself, but the sheriff also discussed the

5
investigation with the justice of the peace at that time. We hold,

as a matter of law, that once the justice of the peace became an

active participant in the police investigation, he was no longer an

impartial magistrate and, therefore, he could not issue a search

warrant. We also hold that the search warrant was invalid and, as

such, Wilson's truck was illegally searched and the evidence from

that search must be suppressed.

Reversed and remanded.

/

Jpstices

6