### No. 85-188 IN 

### THE SUPREME COURT OF THE STATE OF MONTANA 1985

STATE OF MONTANA, Plaintiffand Appellant,

-vsLLOYD WILSON,Defendant and 

### Respondent.

APPEAL FROM: District Court of the Twelfth Judicial District, In and for the County of Hill, The Honorable Chan Ettien, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Mike Greely,Attorney General,Helena,Montana Ronald Smith,CountyAttorney,Havre,Montana

For Respondent: 

### Charles

### E. Petaja,Helena,Montana

Submitted on briefs: Aug. 22, 1-985 Decided: October 31, 

### 1985

ClerkMr. Justice Frank B. Morrison, Jr. delivered the Opinion 

### of theCourt. On January 14, 1985, defendant Lloyd Wilson filed a motion tosuppressevidence found duringa searchof a Havre, Montana, motel room inwhich he was residing. Following an evidentiary hearing, the 

### District Court of the Twelfth Judicial 

### District granted defendant's motion. The State appeals. On September 14, 1984, Alex Tomaskie called the Havre Police Department for the third

### timeina month toreport his 13year old daughtermissing. On theprevious two occasions, information relayed tothepoliceby Mr. Tomaskie resulted in the locating of his daughter. On this occasion, Tomaskie informed the police that hisdaughter had phoned to say she

was with a Dana Wilson in a car with "WILSON 2'' license plates ata motel and was too intoxicated tocome home. Mr. Tomaskie also stated that he could hear a girl giggling in the background during the call. After a previous escapade, Tomaskie's daughter had told her father that Lloyd Wilson provided the alibi by which she was able to run away. However, she was not found with Wilson on either of the previous occasions. Recognizing the license plate number as that of a car belonging to defendant, Lloyd Wilson, thepolice went tohis home. The car was not there. The police then began searching Havre motels for Wilson's car. It was located by Deputy Mygland at the Cloud 9 Motel at approximately 11:30 p.m., September 

### 14, 1984. Mygland asked the desk clerk if Lloyd Wilson was a guest. The clerk responded that yes, Wilson was in room 208, registered under the name of John Anderson.Deputies Stolen, Roe and Mygland approached room 

### 208. Stolen knocked on the door, but did not identify himself. After a minute or soWilson answered, opening the door 18

### to 24 inches. Deputy Stolen immediately placed his foot across thethreshold of thedoor, preventing 

### it from being closedby Wilson should he attempt to do so. Instead, Wilson stood directly in front of the door opening while talking with Stolen. Stolen asked if the Tomaskie girl was in the room. Wilson denied knowing the girl and stated thathe was alone. The only light in the room was that of a burning candle. However through the crack on the hinged side of the door, Deputy Stolen could 

### see movement intheroom which he thought could be a young girl getting dressed. He could also 

### see a pipe lying on a table and 

### smell marijuana and incense burning. Stolen then informed defendant that unless the person in the room came out so that he could 

### see if 

### it was theTomaskie girl, he would be returningwith a warrant. The girl, 16 year old Tamie Kiecker, and Wilson then exited the

room. Wilson closed themotel doorbehind him and 

### it was not reopened untilthepolice obtained a searchwarrant. Tamie Kiecker was taken to the police station by Sergeant Harada. Before leaving the scene, however, she told the sergeant thattherewas marijuana intheroom and that

### it did not belong 

### toher; and that the Tomaskie girl was not in themotel room. Wilson was also taken 

### to the police station and arrested. Deputy Stolen requested CityJudge Ernest Hofmann toissue a search warrant for the

### motel room, and presented him with the fol.lowingaffidavit: 1) On 091484, at2153 

### Hrs. Alex Tomaskie called in and reported [M.T. ] 

### a runaway. shewas reported to be with a Dana Wilson in a 1975 Chevy Monte CarloLic/Wilson 2. [M.T.] 

### is 13years of age. Herdob 

### is 092470. 2) On 081684, Alex Tomaskie called inand reported [M.T.] as a runaway. On the same date she was located attheAlfred Fredricksons residence at840 5th 

### st. N. On 082584, Alex Tornaskie called in and reported [M.T.] as a runaway. She was located at Rick Clark residence atShennum Trailer] Court 

### #7. In both incidentsAlex Tomaskie called in a gave us this information as to where [M.T.] was at. In both incidents 

### it proved 

### to be reliable information. 3) On 091484, Alex Tomaskie called in and advised that [M.T.] called him at 2303 and told him that she was ata Motel butwas too drunk 

### to

### come home. 

### 4) While looking for [M.T.] the deputies checked theLloyd Wilson residence and found thecarWilson 2 not there. The vehicle was located atthe Cloud 9Motel inHavre. 5) On 081684 at 2000 [M.T.] was reported as a runaway by Alex Tomaskie. After she was turned over to her parents on the same date, 2040, she stated toher parents thatLloyd Wilson had helped her runaway. 6) Deputy Mygland talked 

### to the desk clerk, Mark Roseman. Mark Roseman stated thatLloyd Wilson was registered in Room 208 under the assumed name of John Anderson. Deputy Mygland asked Mark Roseman ifhe knew Lloyd Wilson, and he stated thathe has known Lloyd Wilson for

### some time. '7) Deputies went up and knocked on the door to Room 208, after a long pause Lloyd Wilson answered the door. The deputiesobserved a girlbelieved 

### to be under the age of 

### 16. This was determined because of her appearance and actions. Itappeared to look as she was getting dressed. This juvenile girl was removed from the room and taken to the Havre PoliceDepartment. 

### 8) This applicant smelled what he believed 

### to be Marijuana and Insents. [Incense] 9) Applicant saw a candle burning and what he believed 

### to be some type of pipe on the coffee table. Lloyd Wilson made every effort 

### to conceal the table from the applicantsview. 10) The minor removed from the room stated 

### to Deputy Mygland and Sgt. Harada that there was marijuana in the Motel Room. She stated that 

### it didnotbelong toher. 

### 11) Ll-oyd Wilson has the reputation in the Havre area 

### as

### a user of illegal drugs. [Typographical errors inoriginal.]The City Judge granted the request. The subsequent search uncovered marijuana and other drugs, drug paraphernalia and $921.00 incash. Defendant's motion to the District Court requesting supression of that evidence contains numerous allel-~ations, including: 

### 1. The application for a search warrant includes false and misleading information; 2. The facts in the application which allegedly constitute probable cause for issuance of a search warrant



### were obtained by illegal, unwarranted and nonconsensual intrusion; 

### 3. The application lacks probable cause tosupport the issuance of a searchwarrant; 

### 4. The application does not adequately establish the reliability and credibility of informants who provided information regarding thepresence of drugs inthemot~l room and information regarding defendant's reputation. Over the State'sobjection thatdefendant failed 

### to show substantial evidence that the police had used false and misleading information in the affidavit, an evidentiary hearingwas held on allgrounds. Atthe request of the State and without objection from defendant, the trial judge also visited the

### motel room under circumstances allegedly similar to those on the night of the search, stood where Deputy Stolen allegedly stood and saw forhimself what Deputy Stolen allegedly saw from the doorway of the room. Thereafter, an order and memorandum 

### were issued granting defendant's motion to suppress. The trial judge found that the information in the affidavit was misleading; the facts stated in the affidavit

### were obtained from an illegal search; the affidavit failed to establish the credibility of the informants; andthe affidavit failed to establish probable cause for the issuance of a searchwarrant. In 

### its appeal, the State raises the following issues: 

### 1. Did Hill County 

### law enforcement officers approach defendant's room on a pretext and rely on deliberate falsehoods or reckless misrepresentation of the truth to obtainthe searchwarrant? 2. Did Deputy Stolen conduct a warrantless entry into the defendant's 

### motel room by placing his foot on the threshold of that room and, therefore, conduct an unreasonable search and seizure? 3. Did probable cause 

### exist for issuance of the search warrant? In Statev. Sykes (1983), 663 P.2d 691, 695, 40 St.Rep. 690, 694, thisCourt adopted the

### test 

### set forthby theUnited States Supreme Court in Franks v. Delaware (1978), 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667, 682, for challenging the validity of an affidavit on the basis of deliberate falsehood or reckless disregard for the truth. Initially, "defendant must make a substantial preliminary showing thathisrightshave been violated." Sykes, 663 P.2d at695, 40 St.Rep. at694. The trial judge found that defendant'

### s affidavit alleging use by the State of false statements in 

### its application for a search warrant constituted 

### a "substantial preliminary showing." Absent a clear abuse of discretionby thetrialjudge, thisCourtwillnotoverturnhisdecision in this matter. Defendant's affidavit alleges, among other things, that the real. reason behind the officers' visit to his motel room was togain entry into his room in order 

### to search for drugs and that when he confronted Deputy Stolen with such an allegation, Stolen replied "we have beenwatching you." These assertions alone constitute a "substantial preliminary showing" that the State's affidavit

was based on deliberate falsehood or reckless disregard for the truth. Therefore, 

### we hold that the trial judge did not



### err in considering evidence on this issue at the probable

cause hearing. Regarding issuestwo and three, 

### we find 

### it impossible to ruleon the lower court's decision due totheinadequacies of thatcourt's findings. The trialjudge stated "Stolen's action in crossing the threshold and jamming his boot against the door so 

### it could not be closed was a warrantless intrusion for purposes of a search." However, defendant opened the door in response to Stolen's knock. Apparently defendant made no attempt to close the door. Neither, of course, did defendant invite Stolen into his room. "What a person knowingly exposes to thepublic, even 

### inhis own home oroffice, 

### is not a subject of Fourth Amendment protection.

## " Katz v. United States (1967), 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19L.Ed.2d 

### 576, 582. Unfortunately, the trial judge makes no finding on whether or not defendant knowingly exposed hismotel room to the police officer. The trial judge makes no finding regarding whether or not Deputy Stolen intruded beyond any invitationdefendant might have extended. Further, there are

no findings regarding whether, if Stolen did intrude beyond defendant's invitation, the intrusion had any effecton what Stolen was able to observe 

### inthe motel room. In fact, the trial judge made no finding with respect to what exactly Deputy Stolen could observe from the doorway of the motel room, stating instead that "[tlhe lighting was sopoor that

one 

### is led to believe that Deputy Stolen's appraisal contained a good measure of wishful thinking."Therefore, 

### we remand 'chis cause to the District Court for a second evidentiaryhearing, afterwhich thetrial judge shall make findingsof factand conclusions of law consistent with the above, aswell as findings regardingwhether ornot probable cause existed 

### in Deputy Stolen's affidavit to support issuance of 

### a searchwarrant. Finally, 

### we disapprove of the trial court'

### s participation in the recreation of the scene. There 

### is absolut~ly no way toensure that the trialjudge saw exactly what Deputy Stolen saw on thenight of the arrestand search. T7isits tothe scene should be designed for the 

### trier of fact toview the scene, not forthe

### trier of facttoplace himself 

### in the shoes of one of the parties. The trial judge's determination should be based solely on the search warrant application and the evidence presented at the second evidentiaryhearing. Affirmed in part and remanded for a new evidentiary hearing.

Weconcur: