No. 12750 

IN THE 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. Hatf ield, 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 : JR h. B 3 195 
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, IN AND FOR THE COUNTY OF CASCADE1' and contain a signature 

line at the bottom of each form, under which is the designation 

"DISTRICT JUDGE. " 

On the day in question there were no district judges present 

at the courthouse. The complaint and affidavit were 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 search was then made of defendant Duard ~ropf's house. In 

searching the premises police officers discovered numerous plastic 

bags containing marihuana 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 of marihuana. 

Thereafter a return of the items seized upon execution of the 

search warrant was made of record before a district judge. At that 

time, the state maintains, one of the duplicate originals of the 

search warrant was left with the clerk of the district court. This 

is disputed and the records before this Court fail to reveal any 

such filing with the clerk. The other duplicate original of the 

search warrant and one duplicate original of the complaint and 

affidavit were retained by a detective of the Great Falls police 

department. The remaining duplicate original of the complaint and 
affidavit were not filed with the clerk of the court and are unaccounted for. 

The state maintains the duplicate originals of the complaint 

and affidavit in possession of the Great Falls police detective 

were subsequently filed with the clerk of the district court. 

This is disputed by 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 in excess of 60 grams, in violation 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 city of 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 

there wilfully, wrongfully, unlawfully and feloniously 

7- 

, as amended". (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 sell dangerous drugs to 

one Ron Paulson at defendant's apartment at 904 6th St. S.W., 

Great Falls; (2) from the sworn testimony of Ron Paulson given 

in a proceeding to declare 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 

the matter 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 alibi and listed six 

witnesses. 

On January 23, 1974, the state by consolidated motions moved 

for leave to amend Count I1 of the Information to charge: 
"* * * on or about the 2nd day of October, 1973, * * * 

defendant * * * did * * * sell a certain dangerous drug, 

to wit: Hashish, to Ronald Paulson in violation of 54-132, 

R.C.M. 1947 as amended. " 

The state alleged the proposed amendment was only in form and 

not substance and did not 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 dismissal be without 

prejudice to file a new Information. 

All motions 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 fatally defective for these reasons: (1) The 

person signing the warrant was without lawful authority to issue 

a warrant out of the district court of the eight judicial district 

in that he is not a district judge of that court. (2) The affidavit 

and complaint on which the warrant was issued was not retained 

by the judge as is required by section 95-706, R.C.M. 1947. 

The court further stated that the state's motion to amend Count 

11 or in the alternative to dismiss and refile a new Information, 

constituted an amendment as to substance rather than as to form and 

was in violation of section 95-1505, R.C.M. 1947; and, the affidavit 

for leave to file Count 11 did not support the factual allegations 

in Count 11. The court denied the state's motions and dismissed 

Counts I and 11. 

The state argues 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 to issue search warrants. 

Section 95-704, R.C.M. 1947, states: 

1 I Any judge may issue a search warrant * * *. 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 to perform 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 system but is qualified so as not to be taken as 

conferring jurisdiction where none exists merely because other 

statutes use 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, 

82 P.2d 587; City of Billings v. Herold, 130 Mont. 138, 296 P.2d 

263; State ex rel. City of Libby v. Haswell, 147 Mont. 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 1-27-11 of 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 jurisdiction with 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 impris onmen t . 

"(4) Proceedings respecting vagrants, lewd, or 

disorderly persons. Such offenses must be prosecuted 

in the name of the state of Montana. 

I I (5) Possession of beer or liquor by 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 1-27-11 of 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 authority by 

the legislature to issue search warrants, 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 case was 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 search warrant itself or the procedure used in its issuance, execution and return, other than to 

clarify some misconceptions and the weight 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, IN AND FOR THE COUNTY 

I1 OF CASCADE", but asserts There is no requirement under the law, 

however, that the warrant contain any heading specifying the court 

in which application is made." 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, whether with 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 in Meidinger 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 in writing, in the name of the state". This 

would contemplate, as in all other criminal matters and particularly 

in matters that pertain to the authorizing instrument to search 

a person's home, that notice to the person subject to the process 

concerning the origin of the process and to whom he may address 

his grievances in response for an inventory (section 95-712, R.C.M. 

1947) are matters of due process and not technical irregularities. 

Omissions in this regard would be substantive and infringe on the 

rights of the person whose residence is being searched and would 

necessarily be prejudicial error. 

The district court condemned failure to comply with section 

95-706, R.C.M. 1947, which requires: 

"The application on which the warrant is issued shall 

be retained by the judge but need not be filed with 

the clerk of the court nor with the court if there is 

no clerk, until the warrant has been executed or has 

been returned 'not executed "'. 

Again the state relies 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 its brief states: ''It is submitted that his [police] agency 

relationship to the Police Judge is as binding 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 is not valid and will not be pursued in depth 

but in passing we will comment 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 in error. 

Returning to sections 95-717 and 95-703, R.C.M. 1947, involved 

in Meidinger; Section 95-703 heretofore cited in definition of a 

search warrant, also requires that the warrant be "directed to 
a peace officer" and in Meidinger the warrant was addressed to 

11 any peace officer of this state". The facts in Meidinger were 

not similar nor was the defect in the warrant a matter of substance, 

as we find here. The formal defect in that case could in no way 

have infringed on the rights of the defendant and was not prejudicial. 

The Court, in Meidinger, was not moved to alter the strict application of search warrant procedures and stated: 

"While this Court does find that the search warrant was 

defective because it was not directed to a particular 

police officer, we do not approve this type of search 

warrant and recommend that such practices be discontinued. I I 

This was not a license to erode the process but an admonition to 

recognize that the procedures in this area are to be strictly 

applied, very simply because they deal with an exception that 

permits the sovereign to enter upon a constitutionally protected 

area. 

The state's second argument is that it should have been 

allowed to either 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 at any time before the defendanr 

pleads, without leave of court. 

"(b) The court may permit any charge to be amended 

as to form at any time before verdict or finding if no 

additional or different offense is charged and if the 

substantial rights of the defendant are not prejudiced. 

"(c) No charge shall be dismissed because of a 

formal defect which does not tend to prejudice a substantial right of the defendant." (Emphasis added.) 

It is, therefore, left to the discretion of the district judge 

whether or not the information can be amended after pleading. 

State v. Heiser, 146 Mont. 413, 416, 407 P.2d 370. Here, there is 

no showing in this respect that the district court abused its 

discretion. 

This Court stated in Heiser: 
I1 The function of an information is two-fold: (1) 

to give jurisdiction to the court; and (2) to notify 

a defendant of his offense, thereby giving him an 

opportunity to defend. 11 

See also: State v. Straight, 136 Mont. 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 to change 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 to amend the Information. 

The district court was also correct in its ruling that to dismiss 

because of a mistake in the substance of the charge, admittedly 

not in conformity with the affidavit, with leave to refile would 

be tantamount to granting the motion to amend as to a matter of 

substance. 

The order of the district court is affirm 27' 

/ Justice P 

,Chief Justice 

i _' 

................................... Justices. 
Mr. Justice Wesley Castles dissenting: 

I dissent 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.