No. 85-188 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

STATE OF MONTANA, 

Plaintiff and 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, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Mike Greely, Attorney General, Helena, Montana 

Ronald Smith, County Attorney, Havre, Montana 

For Respondent : 

Charles E. Petaja, Helena, Montana 

Submitted on briefs: Aug. 22, 1-985 

Decided: October 31, 1985 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

On January 14, 1985, defendant Lloyd Wilson filed a 

motion to suppress evidence found during a search of a Havre, 

Montana, motel room in which 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 time in a month to report his 

13 year old daughter missing. On the previous two occasions, 

information relayed to the police by Mr. Tomaskie resulted in 

the locating of his daughter. On this occasion, Tomaskie 

informed the police that his daughter had phoned to say she 

was with a Dana Wilson in a car with "WILSON 2'' license 

plates at a motel and was too intoxicated to come 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, the police went to his 

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 so Wilson answered, opening the door 18 to 

24 inches. Deputy Stolen immediately placed his foot across 

the threshold of the door, preventing it from being closed by 

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 that he 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 in the room 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 

the Tomaskie girl, he would be returning with a warrant. The 

girl, 16 year old Tamie Kiecker, and Wilson then exited the 

room. Wilson closed the motel door behind him and it was not 

reopened until the police obtained a search warrant. 

Tamie Kiecker was taken to the police station by 

Sergeant Harada. Before leaving the scene, however, she told 

the sergeant that there was marijuana in the room and that it 

did not belong to her; and that the Tomaskie girl was not in 

the motel room. 

Wilson was also taken to the police station and 

arrested. Deputy Stolen requested City Judge Ernest Hofmann 

to issue a search warrant for the motel room, and presented 

him with the fol.lowing affidavit: 

1) On 091484, at 2153 Hrs. Alex Tomaskie called in 

and reported [M.T. ] a runaway. she was reported to 

be with a Dana Wilson in a 1975 Chevy Monte Carlo 
Lic/Wilson 2. [M.T.] is 13 years of age. Her dob 

is 092470. 

2) On 081684, Alex Tomaskie called in and reported 

[M.T.] as a runaway. On the same date she was 

located at the Alfred Fredricksons residence at 840 

5th st. N. On 082584, Alex Tornaskie called in and 

reported [M.T.] as a runaway. She was located at 

Rick Clark residence at Shennum Trailer] Court #7. 

In both incidents Alex 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 at a Motel but was too drunk to come home. 

4) While looking for [M.T.] the deputies checked 

the Lloyd Wilson residence and found the car Wilson 

2 not there. The vehicle was located at the Cloud 

9 Motel in Havre. 

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 to her parents that Lloyd Wilson had helped 

her runaway. 

6) Deputy Mygland talked to the desk clerk, Mark 

Roseman. Mark Roseman stated that Lloyd Wilson was 

registered in Room 208 under the assumed name of 

John Anderson. Deputy Mygland asked Mark Roseman 

if he knew Lloyd Wilson, and he stated that he 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 deputies observed a girl believed to 

be under the age of 16. This was determined 

because of her appearance and actions. It appeared 

to look as she was getting dressed. This juvenile 

girl was removed from the room and taken to the 

Havre Police Department. 

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 applicants view. 

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 

did not belong to her. 

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

area as a user of illegal drugs. 

[Typographical errors in original.] 
The City Judge granted the request. The subsequent search 

uncovered marijuana and other drugs, drug paraphernalia and 

$921.00 in cash. 

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 to support the 

issuance of a search warrant; 

4. The application does not adequately establish the 

reliability and credibility of informants who provided 

information regarding the presence of drugs in the mot~l room 

and information regarding defendant's reputation. 

Over the State's objection that defendant failed to show 

substantial evidence that the police had used false and 

misleading information in the affidavit, an evidentiary 

hearing was held on all grounds. At the 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 for himself 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; and 
the affidavit failed to establish probable cause for the 

issuance of a search warrant. 

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 

obtain the search warrant? 

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 State v. Sykes (1983), 663 P.2d 691, 695, 40 St.Rep. 

690, 694, this Court adopted the test set forth by the United 

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 that his rights have been violated." Sykes, 663 P.2d 

at 695, 40 St.Rep. at 694. 

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 discretion by 

the trial judge, this Court will not overturn his decision in 

this matter. Defendant's affidavit alleges, among other 

things, that the real. reason behind the officers' visit to 

his motel room was to gain 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 been 
watching 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 issues two and three, we find it impossible to 

rule on the lower court's decision due to the inadequacies of 

that court's findings. 

The trial judge 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 

the public, even in his own home or office, is not a subject 

of Fourth Amendment protection. " Katz v. United States 

(1967), 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 

582. Unfortunately, the trial judge makes no finding on 

whether or not defendant knowingly exposed his motel room to 

the police officer. The trial judge makes no finding 

regarding whether or not Deputy Stolen intruded beyond any 

invitation defendant might have extended. Further, there are 

no findings regarding whether, if Stolen did intrude beyond 

defendant's invitation, the intrusion had any effect on what 

Stolen was able to observe in the 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 so poor 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 evidentiary hearing, after which the trial judge 

shall make findings of fact and conclusions of law consistent 

with the above, as well as findings regarding whether or not 

probable cause existed in Deputy Stolen's affidavit to 

support issuance of a search warrant. 

Finally, we disapprove of the trial court' s 

participation in the recreation of the scene. There is 

absolut~ly no way to ensure that the trial judge saw exactly 

what Deputy Stolen saw on the night of the arrest and search. 

T7isits to the scene should be designed for the trier of fact 

to view the scene, not for the trier of fact to place 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 

evidentiary hearing. 

Affirmed in part and remanded for a new evidentiary 

hearing. 

We concur: