No. 12750 INTHE SUPREME COURT OF THE STATE OF MONTANA 1974

THE STATE OF MONTANA, Plaintiff and Appellant,

-vs

# - DUARD TROPF, Defendant and Respondent.

Appeal from: District Court of the Eighth Judicial District, Honorable Paul G. Hatfield, Judge presiding. Counsel of Record: For Appellant: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana Thomas A. Budewitz, Assistant Attorney General,

Appeared, Helena, Montana J. Fred Bourdeau, County Attorney, Great Falls, Montana Norman L. Newhall, I11 Deputy County Attorney, argued,

Great Falls, Montana For Respondent : Ralph T. Randono argued, Great Falls, Montana

Submitted: September 17, 1974 Decided: 

### jAhi23 

### 1975 Filed: 

### JRh.

## B3 195

### Mr. Justice Gene 

### B. Daly delivered the Opinion of the Court.
This is an appeal from an order of the district court, Cascade County, suppressing the state's evidence and refusing to allow the state to either amend or dismiss and refile the Information. On 

### October 

### 5, 1973,a complaint and an affidavit for a search warrant,with duplicate originals,were prepared on standard forms of the county attorney's office. The forms are headed 

### "IN THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, INAND FOR THE COUNTY OF CASCADE1'and contain a signature line at the bottom of each form,underwhich is the designation "DISTRICT JUDGE. " 

### On the day in question therewere no district judges present at the courthouse. The complaint and affidavitwere submitted to H. William Coder,police judge of the city of Great Falls,who, upon hearing sworn testimony in support of the complaint and affidavit, signed the search warrant in duplicate and certified the duplicate complaint and affidavit. A searchwas thenmade of defendant Duard ~ropf's house. In searching the premises police officers discovered numerous plastic bags containingmarihuana residue, some marihuana seeds, and drug

use paraphernalia. By following a path from the back door of the premises into the back yard, the officers found an old board covering

a hole in the ground which contained a duffle bag, which in turn

,

### held approximately three pounds ofmarihuana. Thereafter a return of the items seized upon execution of the searchwarrant was made of record before a district judge. At that time, the state maintains, one of the duplicate originals of the searchwarrant was left with the clerk of the district court. This is disputed and the records before this Court fail to reveal any such filingwith the clerk. The other duplicate original of the searchwarrant and one duplicate original of the complaint and affidavitwere retained by a detective of the Great Falls police department. The remaining duplicate original of the complaint andaffidavitwere not filed

### with the clerk of the court and 

### are unaccounted for. The statemaintains the duplicate originals of the complaint and affidavit in possession of the Great Falls police detective

were subsequently filedwith the clerk of the district court. This 

### isdisputedby defendant and, again, the records before this Court do not reveal that these documents were filed. On October 16, 1973, an Information containing two counts was filed in the district court. "Count I:

# *** possession certain dangerous drugs, to-wit: Marihuana inexcess of 60 grams, inviolation of Section 54-133, R.C.M. 1947, 

### as amended". Evidence in support of Count I was acquired by 

### a search of defendant's premises conducted pursuant to the search warrant issued by H. William Coder, police Judge of the cityof Great Falls. "count 11:

# *

# ** on or about the 5th day of October, A.D. 19/3, and before the filing of this Information, the said defendant then and there being, did then and therewilfully, wrongfully, unlawfully and feloniously

7- 

## , asamended". (Emphasis added). Evidence in support of Count I1 was acquired (1) by a statement given by defendant's roommate to the county attorney that on October 

### 2, 1973, he observed the defendant selldangerous drugs to

one Ron Paulson atdefendant's apartment at904 6th St. S.W., Great Falls; (2) from the sworn testimony of Ron Paulson given ina proceeding todeclare him a juvenile delinquent which testimony confirmed the fact of such sale; and 

### (3) from a thirteen page police department statement given by the same informant. Defendant was arraigned October 18, 1973, and entered a plea of not guilty. Various motions were interposed by defendant and thematter set for trial on January 28, 1974, by order dated December 21, 1973. On January 8, 1974, defendant under section 95-1803(d), R.C.M. 1947, gave notice of his defense of alibiand listed six witnesses. On January 23, 1974, the stateby consolidated motions moved for leave toamend Count I1 of the Information tocharge:

# "**

# * on or about the 2nd day of October, 1973,

# *** defendant

# * ** did

# * ** sella certain dangerous drug, to

### wit: Hashish, toRonald Paulson inviolation of 54-132, R.C.M. 1947 as amended. " The statealleged the proposed amendment was only inform and not substance and didnot charge an additional or different offense and no rights of defendant 

### were prejudiced. In the alternative, it asked dismissal of the Information pursuant to section 95-1706, R.C.M. 1947, on the ground that a mistake was made in charging the proper offense and that the dismissalbe without prejudice tofilea new Information. Allmotions pending before the court were briefed and the court heard oral argument January 24, 1974. The court then suppressed the evidence in support of Count I as illegally seized because the search warrant was fatallydefective for these reasons: (1) The person signing thewarrant was without lawful authority to issue

a warrant out of the district court of the eightjudicial district inthat he 

### isnot a districtjudge of that court. (2) The affidavit and complaint on which the warrant was issued was not retained by thejudge as 

### isrequired by section 95-706, R.C.M. 1947. The court further stated that the state's motion toamend Count 11 or inthe alternative todismiss and refile a new Information, constituted an amendment as to substance rather than 

### as toform and

was inviolation of section 95-1505, R.C.M. 1947; and, the affidavit for leave tofileCount 11 did not support the factual allegations inCount 11. The court denied the state's motions and dismissed Counts I and 11. The stateargues that the term "Judge" as defined in section 95-206, R.C.M. 1947, together with section 95-704, R.C.M. 1947, authorizes a police judge toissue searchwarrants. Section 95-704, R.C.M. 1947, states:

1 IAny judge may issue a searchwarrant

# **

# *. I' Judge is defined in section 95-206, R.C:M., 1947, as: "'Judge' means 

### a person who 

### is invested by law with the power toperform judicial functions and includes court, justice of the peace or police magistrate cular context so requires.

## '' (Emphasis adde

### This is a qualified definition to give judicial stature to our entire court systembut is qualified so as not to be taken as conferring jurisdictionwhere none exists merely because other statutesuse the term "judge". It is well founded in Montana law that the police courts are courts of limited jurisdiction and such courts have only such authority as is expressly conferred upon them. State ex rel. Marquette v. Police Court, 

### 86 Mont. 297, 283 P.430; State ex rel. McIntire 

### v. City Council of the City of Libby, 107 Mont. 216, 82P.2d 587; City of Billings v. Herold, 130Mont. 138, 296 P.2d 263; State ex rel. City of Libby v. Haswell, 147Mont. 492, 414 P.2d 652. The subject matter jurisdiction of the police court of the city of Great Falls is defined by section 11-1602,R.C.M. 1947 and Section 1-27-11of the Municipal Code of the City of Great Falls. Section 11-1602,R.C.M. 1947,provides: "Jurisdiction of police courts. The police court has concurrent jurisdictionwith the justice of the peace of the following public offenses committed within the county: "(1) Theft where the value of the stolen property does not exceed one hundred fifty dollars

($150)- "(2) Assault and battery,not charged to have been committed upon a public officer in the discharge of his official duty, or with intent to kill. "(3) Breaches of the peace, riots,affrays, committing willful injury to property, and all misdemeanors punishable by fine not exceeding five hundred dollars ($500), or by imprisonment not exceeding six 

### (6) months, or by both fine and imprisonment

# . "(4) Proceedings respecting vagrants, lewd, or disorderly persons. Such offenses must be prosecuted in the name of the state of Montana.

II

### (5) Possession of beer or liquorby persons under the age of eighteen (18) years in violation of section 94-35-106.2 [94-5-6101.

tt

### (6) Selling, giving away or disposing of intoxicating liquors to minors in violation of section 94-[3]5-106 [94-5-609 

## I.

II



### The police court shall have no jurisdiction of any civil cause, except as otherwise provided by law.II 

### Section 1-27-11of the Municipal Code of the City of Great Falls, provides:

### "(A) Of all public offenses committed within the City over which police courts are expressly granted the

"(B) Of all proceedings for the violation of any laws or ordinances of the City, both civil and criminal, which must be prosecuted in the name of the City. I1



### (Emphasis added)

# . Since police magistrates have never been given authorityby the legislature to issue searchwarrants, the word "~udge" used in section 95-704,R.C.M. 1947,does not require the inclusion of

a police magistrate as a person authorized to issue search warrants. Therefore, the search warrant issued in the instant casewas void. The district court correctly suppressed the evidence obtained under the authority of that search warrant. We need not proceed further to evaluate

### arguments advanced by the state in regard to the searchwarrant itself or the procedureused in its issuance,execution and return, other than to clarify some misconceptions and theweight to be given State v. Meidinger, 160 Mont. 310, 319, 502 P.2d 58. The state admits the affidavit,complaint and warrant were entitled incorrectly as "IN THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, INAND FOR THE COUNTY

I1 

### OF CASCADE", but asserts There isno requirement under the law, however, that the warrant contain any heading specifying the court inwhich application ismade." The state relies on section 95-717, R.C.M. 1947,which reads in pertinent part:

18



### When search and seizure not illegal. No search and seizure,whetherwith or without warrant, shall be held to be illegal as to a defendant if: 

# "*** "(b) No right of the defendant has been infringed by the search and seizure, or, "(c) 

### Any irregularities in the proceedings do not affect the substantial rights of the accused." The state also relies on Meidinger for support alleging the "highly technical" defect inMeidinger was more serious than that presently before this Court.Section 95-703, R.C.M. 1947, by definition directs that a search warrant 

### "is an order inwriting, in the name of the state". This would contemplate, asin allother criminal matters and particularly inmatters that pertain to the authorizing instrument to search a person's home, that notice tothe person subject tothe process concerning the origin of the process and towhom he may address his grievances inresponse for an inventory (section 95-712, R.C.M. 1947) arematters of due process and not technical irregularities. Omissions inthisregard would be substantive and infringe on the rights of the person whose residence 

### isbeing searched and would necessarily be prejudicial error. The district court condemned failure tocomply with section 95-706, R.C.M. 1947, which requires: "The application on which thewarrant 

### is issued shall be retained by thejudge but need not be filedwith the clerk of the court nor with the court ifthere 

### is no clerk, until thewarrant has been executed or has been returned 'not executed

# "'. Again the staterelies on section 95-717, R.C.M. 1947, and alleges that one of the duplicate originals of the application was retained by a detective of the Great Falls police department and in 

### itsbrief states: ''It 

### is submitted that his [police] agency relationship to the Police Judge is asbinding as that of the Clerk of Court to the District Judge and accordingly, Detective Hall's retention of the Application constitutes defacto retention by the Police Judge of the Application

# ** *." Thus the state contends the requirements of section 95-706,R.C.M. 1947, were substantially complied with. This reasoning isnot valid and willnot be pursued indepth but in passing we willcomment that there can be no agency relationship between the executive and judicial branches of government by virtue of the separation of powers doctrine. The district court

was not inerror. Returning to sections 95-717 and 95-703, R.C.M. 1947, involved inMeidinger; Section 95-703 heretofore cited in definition of a search warrant, alsorequires that the warrant be "directed toa peace officer" and inMeidinger thewarrant 

### was addressed to

11

any peace officer of this state". The facts inMeidinger were not similarnor was the defect inthewarrant a matter of substance,

aswe findhere. The formal defect in that case could inno way have infringed on the rights of the defendant and was not prejudicial. The Court, inMeidinger, was not moved toalter the strict application of searchwarrant procedures and stated: "While thisCourt does find that the searchwarrant 

### was defectivebecause itwas not directed toa particular police officer, we do not approve this type of search warrant and recommend that such practices be discontinued. II This was not 

### a license to erode the process but an admonition to recognize that the procedures in this area are tobe strictly applied, very simplybecause they deal with an exception that permits the sovereign to enterupon a constitutionally protected

area. The state's second argument 

### is that it should have been allowed toeither amend 

### its Count I1 of the Information to conform with the affidavit for filing direct, or in the alternative, the court should have dismissed Count I1 and allowed the state to refile the Information. Section 95-1505, R.C.M. 1947, provides: "Amending the charge. (a) A charge may be amended in matters of substance atany timebefore the defendanr pleads, without leave of court. "(b) The court may permit any charge tobe amended as to form atany time before verdict or finding ifno additional or different offense 

### is charged and if the substantial rights of the defendant arenot prejudiced. "(c) No charge shallbe dismissed because of 

### a formal defectwhich does not tend toprejudice a substantialright of the defendant." (Emphasis added.) It 

### is, therefore, left to the discretion of the districtjudge whether ornot the information can be amended after pleading. Statev. Heiser, 146Mont. 413, 416, 407 P.2d 370. Here, there is

no showing in this respect that the district court abused its discretion. This Court stated inHeiser:I1 The function of an information 

### is two-fold: (1) to givejurisdiction to the court; and (2) tonotify a defendant of his offense, thereby giving him an opportunity todefend. 11 See also: State v. Straight, 

### 136Mont. 255, 263, 

### 347 P.2d 482. Here, defendant after pleading not guilty to the Information, prepared his defense of alibi and furnished the names of the witnesses who would testify as to the veracity of his alibi. To then allow the state tochange the date, t.he elements of the crime, and the drug involved would destroy that defense and would in substance charge a different offense. The district court correctly refused the motion toamend the Information. The district court was alsocorrect in 

### itsruling that to dismiss because of a mistake in the substance of the charge, admittedly not in conformity with the affidavit, with leave torefilewould be tantamount to granting the motion to amend as to 

### a matter of substance. The order of the district court 

### isaffirm 

# 27' 

# /Justice 

# P

,Chief Justice i _'



# ................................... Justices.

### Mr. Justice Wesley Castles dissenting: Idissent as to both the authority of a judge, in this case a police court judge, to issue a search warrant; and, the refusal of the district court to permit amendment or refiling. Suffice it to say that I feel that the majority opinion has interpreted the statutes much too narrowly.