NO. 93-189

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

STATE OF MONTANA,

Plaintiff and Appellant

-vVINCENT M. EALUZA,

Defendant and Respondent.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

A Michael Salvagni, Gallatin County Attorney, Marty

Lambert, Chief Deputy County Attorney, Bozeman,

Montana

For Respondent:

Larry Jent, Williams, Jent & Dockins, Bozeman,

Montana; Herman A. Watson, III, Bozeman, Montana

Filed:

Submitted on Briefs: November 23, 1993

Decided: December 14, 1993

Clerk
Justice James C. Nelson delivered the Opinion of the Court.

The State of Montana (State) appeals an order of the

Eighteenth Judicial District Court, Gallatin County, suppressing

evidence obtained pursuant to a search warrant. We affirm.

The issue on appeal is as follows: Did the District Court err

in suppressing the evidence at issue based upon its finding that no

probable cause existed for the issuance of a search warrant?

Based on various information, the Gallatin County Sheriff's

Office (Sheriff's Office) applied for a search warrant of two

residences leased by the defendant, Vincent Kaluza (Kaluza). The

search warrant was issued by the Justice of the Peace and then

executed by the Sheriff's Office. Thereafter, Kaluza was charged

with criminal possession of marijuana with intent to sell, a

felony. Kaluza filed a motion to suppress, alleging the

application for a search warrant lacked probable cause. The

District Court found that the application for the search warrant

lacked probable cause as to the 1208 West Alderson residence

(Alderson residence) and ordered that evidence suppressed; however,

the District Court refused to suppress the evidence seized at the

300 North Western Drive residence (Western residence). From the

order suppressing the evidence, the State appeals. We note that

Kaluza cannot appeal the District Court's refusal to suppress the

evidence seized at the Western residence at this juncture of his

case. For that reason, we specifically decline to rule and take no

position on whether probable cause existed to issue the search

warrant for that residence, in order to preserve this issue for

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Kaluza on appeal, if he chooses to appeal.

We will not overturn a district court*s findings of fact

regarding suppression hearing evidence unless those findings are

clearly erroneous. State v. Bowers (1992), 254 Mont. 1, 7, 833

P.2d 1106, 1110; State v. Cope (1991), 250 Mont. 387, 396, 819 P.2d

1280, 1286. Upon reviewing the record in this case, we are unable

to say the District Court's findings of fact regarding the Alderson

residence are clearly erroneous.

The majority of the information contained in the application

for a search warrant was directed to the alleged activities at the

Western residence. Information pertaining to the Alderson

residence contained in the application is as follows:

1. An alleged drug dealer, Kaluza, resided at the

Alderson residence.

2. Kaluza's vehicles were parked at the Alderson

residence.

3 . A citizen informant living near the Alderson

residence informed a detective that he was

%uspiciouss about the person living at the

Alderson residence because he acomes and goes

at all times and does not appear to have a

job" and because he "received packages from

UPS."

4. Numerous cars came to the Alderson residence.

5 . A vehicle registered to a suspected drug

dealer was parked at the Alderson residence.

The rest of the application deals with allegations about Kaluza and

specifically his activities at the Western residence. The State

apparently argues that, if there is probable cause to search the

Western residence, probable cause exists to search any other

residence occupied by Kaluza. Clearly, however, there must be

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adequate probable cause for the search of each residence. See, for

example, United States v. Whitney (9th Cir. 1980), 633 F.2d 902,

907. This probable cause must be determined solely from the

information contained within the four corners of the search warrant

application. State v. Rinehart (1993), __ Mont. -, _ P.2d

- I Cause Wo. 93-72, decided December 2, 1993. It does not follow

that, simply from the existence of probable cause to believe a

suspect guilty, there is also probable cause to search his

residence. United States v. Valenzuela (9th Cir. 1979), 596 F.2d

824, 828. Upon reviewing the four corners of the search warrant

application, it is clear that the application does not provide a

substantial basis for concluding that there was a probability that

criminal activity was occurring at the Alderson residence. We hold

that the District Court did not err in determining that the

application for the search warrant did not set forth sufficient

facts to establish probable cause at the Alderson resideqce.

Affirmed and remanded for trial.