NO. 92-481 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-v- ;... - ..;. .., 1 3 1~392 \.. , . * 

ROBERT L. HOLSTINE, 

Defendant and Appellant. 

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: 

Stuart R. Whit 

For Respondent: 

ehair, Bozeman, Montana 

Hon. Joseph P. Mazurek, Attorney General, Helena, 

Montana; A. Michael Salvagni, County Attorney, Marty 

Lambert, Deputy, Bozeman, Montana 

Filed: 

Submitted on Briefs: April 16, 1993 

Decided: September 13. 1993 
Justice Fred J. Weber delivered the Opinion of the Court. 

Robert L. Holstine (defendant) appeals his conviction of 

felony possession of dangerous drugs by the District Court of the 

Eighteenth Judicial District, Gallatin County. We affirm. 

On February 14, 1991, Detective Mark Tymrak of the Bozeman 

City Police Department, was approached by a confidential informant 

who offered to provide information on a marijuana grow operation in 

the Big Sky area near Gallatin Gateway, Montana. The confidential 

informant described in detail the location of the residence just 

north of Big Sky where a man known as "Cutter Bob" lived. The 

confidential informant also gave a physical description of the 

residence, the person involved in the operation and his vehicle, 

and the marijuana grow operation itself. Further, the informant 

provided details of the grow operation, including the approximate 

nl~mber nf plants and info~.ation that thcrs uss at least oiie grow 

light and a fan. 

Detective Tymrak contacted Lieutenant Pronovost of the 

Gallatin County Sheriff's Department and two officers of the 

Gallatin County Drug Task Force, Detectives Lenard and Sanem. 

Detective Tymrak and another detective traveled to Big Sky later 

that afternoon to corroborate the information given by the 

confidential informant. After verifying that the residence and its 

location matched the description given by the confidential 

informant, they met with local deputies assigned to the Big Sky 

area, who helped the detectives determine that "Cutter Bob" was the 
defendant, Robert L, Holstine, and that defendant had been charged 

in 1989 with possession of drug paraphernalia. 

At approximately 11:30 p.m., Detectives Lenard, Sanem and 

Pronovost of the Gallatin County Drug Task Force drove back to the 

Gallatin Gateway area. Detective Lenard parked his car on Highway 

191 in a spot visible from defendant's residence and left the 

emergency lights flashing. Wearing ski clothing and posing as a 

stranded motorist, Detective Lenard approached the residence while 

the other two detectives waited out of sight in another vehicle. 

When defendant answered the door, Lenard told him that his car 

had broken down and asked the defendant if he could use his phone. 

The defendant led Lenard through an entryway and into a bedroom 

area in the main part of the residence, which consisted of a mobile 

home with a full-length addition. Lenard testified that he 

observed shop tools and cut antlers in the entrance area and 

detected the odor of marijuana smoke in the air. He observed no 

marijuana grow operation. Lenard testified that he was in the 

residence for only about forty-five seconds, during which time he 

used the phone and called his office, leaving a message on his 

answering machine. 

Lenard left the residence and walked back to his car. He 

removed his skis from the top of his car and again approached the 

residence. He knocked on the door again, this time asking the 

defendant if he could leave his skis inside the residence. Lenard 

told defendant that he planned to leave his car on the side of the 

highway and feared the skis would be stolen. This time defendant 
did not admit Lenard into his home. Instead, he advised Lenard 

that he would be gone the next day, but that Lenard could leave the 

skis propped against the west side of the residence which was out 

of view from passersby. Lenard thanked the defendant, shook his 

hand and told him his name was Kevin Adams. 

Lenard then walked around to the west side of the residence 

and propped his skis against the residence while he looked for 

additional information. The confidential informant had stated that 

the grow operation was located in the southwest corner. In that 

corner, Lenard observed a window covered with what appeared to be 

wood or insulated material and sealed with duct tape. Lenard 

testified that he could smell growing marijuana plants "really 

strong" in an area near the window as he walked past it. 

Lenard then left with the other two detectives, returned to 

Bozeman and prepared paperwork to procure a search warrant. After 

obtaining the search warrant the next morning, Lenard and Tymrak 

returned to the defendant's residence with the search warrant. As 

a result of the search, the detectives found and seized horn and 

antler pipes found throughout the residence, a "baggyw containing 

marijuana that was found on a table, fourteen marijuana plants, and 

a hospital bill from the bedroom area addressed to Robert L. 

Holstine to show that defendant was living at the address and 

receiving mail there. 

The marijuana plants were dried and then submitted to the 

Montana State Crime Lab, which confirmed that the substance was 

159.5 grams of marijuana. Defendant moved to suppress the evidence 
obtained as a result of an illegal search. After a suppression 

hearing and a bench trial, the District Court denied the motion to 

suppress and found the defendant guilty of possessing more than 60 

grams of marijuana, a felony, under 5 45-9-102, MCA, and not guilty 

of manufacture of drug paraphernalia, a misdemeanor. This appeal 

followed. 

Although the defendant argued extensively that the evidence 

found should have been suppressed because it was obtained by a 

ruse, we decline to address that issue. There was a total absence 

of relevant evidence gained by Detective Lenardts ruse entry into 

defendant's residence. Because the officers did not rely on any 

information gained by the ruse entry to support probable cause to 

obtain the search warrant, there was no evidence which could be 

classed as gained by deceptive entry. The sole issue for our 

review, therefore, is whether there was sufficient probable cause 

for a search warrant to issue. 

This Court has adopted the ittotality of the circumstances" 

test from Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 

76 L.Ed.2d 527, for assessing the issue of probable cause for the 

issuance of a search warrant. See State v. Campbell (1992), 254 

Mont. 425, 427, 838 P.2d 427, 429. Our function is not to review 

de novo the magistrate's determination that probable cause existed 

to issue a search warrant. State v. Baldwin (1990), 242 Mont. 176, 

183, 789 P.2d 1215, 1220. Rather, our duty is to "ensure that the 

magistrate had a 'substantial basis for . . . conclud[ing] that 

probable cause existed." m, 462 U.S. at 238-39, 103 S.Ct. at 
2332, 76 L.Ed.2d at 548. Moreover, as a reviewing court, we 

should attach great deference to the magistrate's determination of 

probable cause. Camwbell, 838 P.2d at 429. 

The information provided to Detective Tymrak by the 

confidential informant was information the informant had received 

by firsthand observation. The informant provided detailed 

information on the defendant's marijuana grow operation. The 

informant explained the location of the residence, the layout of 

the mobile home and its built-on addition and the location within 

the mobile home where the marijuana was growing. The informant 

also told Tymrak that he had observed the marijuana plants growing 

in a room in the southwest corner of the residence. Although the 

informant knew the defendant only as "Cutter Bob," the informant 

gave detailed descriptions of the defendant and the defendant's 

vehicle. Further, the affidavit signed by Detective Lenard stated 

that the confidential informant had provided law enforcement with 

reliable information in the past. In Gates, the United States 

Supreme Court commented on an informant's personal observation, 

stating that "his explicit and detailed description of alleged 

wrongdoing, along with a statement that the event was observed 

firsthand, entitled his tip to greater weight than might otherwise 

be the case." Gates, 462 U.S. at 234, 103 S.Ct. at 2330, 76 

L.Ed.2d at 545. 

Although a reliable confidential informant's information is 

entitled to greater weight under the "totality of the 

circumstances" test than an informant who has not demonstrated 
reliability, such information alone may be insufficient to 

establish probable cause. The "totality of the circumstances" test 

from Gates provides: 

The task of the issuing magistrate is simply to make a 

practical, common-sense decision whether, given all the 

circumstances set forth in the affidavit before him, 

including the 'veracity' and 'basis of knowledgei of 

persons supplying hearsay information, there is a fair 

probability that contraband or evidence of a crime will 

be found in a particular place. 

Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. 

"The totality of the circumstances test is fact specific." 

State v. Valley (1992), 252 Mont. 489, 830 P,2d 1255, 1257 (quoting 

State v. Olson (Minn. 1989), 436 N.W.2d 92). The factors 

supporting probable cause must not be stale and they must indicate 

that the contraband or evidence would presently be at the place 

searched. In Valley, we stated that 'f[c]ommon sense dictates 

further investigation" to verify or corroborate the tips received 

from informants. Valley, 830 P.2d at 1257. 

The detectives here acted upon the information provided by the 

confidential informant the same day they received the tip, driving 

to the Big Sky area to verify that the description of the location 

and physical characteristics of the residence were as described by 

the informant. However, this Court has previously stated that 

facts of a description and location of property, while easily 

confirmable by a driveby, can hardly be regarded as probative of 

the probability of the presence of contraband therein. Valley, 830 
Factors which are of little probative value alone, however, 

when taken together under the Gates "totality of the circumstances" 

test, provide the basis for a determination of substantial evidence 

to conclude probable cause existed to issue the search warrant. 

Carnobell, 838 P.2d at 429. In this case the detectives next 

contacted other law enforcement officers who regularly worked in 

the Big Sky area and determined that "Cutter Bobw was defendant 

Robert L. Holstine. They further determined that Holstine had 

previously been charged with possession of drug paraphernalia. 

Although these were all above-board means of verification, the 

officers did not believe they had obtained sufficient information 

to obtain a search warrant. Lenard then posed as a skier to obtain 

entrance to defendant's residence to use the telephone. This ruse 

entry into the residence provided no information about the 

marijuana grow operation. 

When Lenard walked behind the mobile home for the purpose of 

propping his skis against it, he observed that a window in the 

southwest corner of the residence was covered over and emitting no 

light, although numerous other windows were emitting light. Lenard 

testified that from his experience and training, he knew that it 

was common practice for windows to be covered to conceal the light 

sources for growing marijuana. Also behind the mobile home, Lenard 

smelled a llstrong, pungent odor" that he identified from his 

experience as the odor of growing marijuana. At the time the 

search was conducted, it was discovered that the odor was coming 
from a ceiling vent in the room where the marijuana grow operation 

was located. 

An application for a search warrant must contain a showing of 

facts sufficient to establish that there is probable cause to 

believe that contraband or evidence is to be found at the place to 

he searched at the time the warrant is issued. Valley, 830 P.2d at 

1257. We conclude that the information Lenard obtained by walking 

to the southwest area of the residence, along with the information 

provided by the confidential informant and verified by law 

enforcement, was sufficient to establish probable cause to obtain 

a search warrant in this case. 

Defendant also argues that Detective Lenard's affidavit 

supporting issuance of the search warrant contains incorrect facts 

which, according to this Court's prior decisions, cannot be used to 

establish probable cause. See, e.4., State v. Wilson (1992), 254 

Mont. 317, 837 P.2d 1346; Valley, 830 P.2d 1255; and State v. 

Nanoff (1972), 160 Mont. 344, 502 P.2d 1138. Specifically, 

defendant contends that Lenard could not actually smell any growing 

marijuana plants, that he "just knew they existed," and that he 

fabricated the smell of the plants in order to obtain the search 

warrant. Defendant contends that Lenard changed his story when it 

was later determined that the odor was in fact emitting from a 

ceiling vent, not the sealed-off window. 

Defendant did not make the argument that the application for 

the search warrant contained false information at the time of the 

suppression hearing as required by 3 46-13-302(1), MCA. He raised 
this issue for the first time in a supplemental brief filed on July 

35, 1991, two weeks after the trial and hearing. Defendant's 

primary argument at the concurrent suppression hearing and trial 

was that consent to enter the residence was coerced under the guise 

of deception. Defendant bases his contention that Lenard 

fabricated information to establish probable cause for a warrant on 

Lenard's statements that he could smell the odor of growing 

marijuana outside the residence. 

Defendant places great emphasis on Lenard not knowing that the 

window was sealed off and that the odor actually came from a 

ceiling vent and not from the window. Lenard's affidavit does not 

state that Lenard believed the odor of growing plants was coming 

from the window. He testified that he did not stop to sniff and 

smell--that he walked to the area, propped his skis against the 

residence and then left the premises. Detective Lenard stated in 

his investigative report dated February 15, 1991: 

I walked underneath the window and could detect an odor in 

that area. The odor was very pungent. I recognized the odor 

from past search warrant executions as the odor of growing 

marijuana plants. 

In his affidavit in support of the application for a search 

warrant, also dated February 15, 1991, Lenard stated: 

One window located in the southwest corner appeared to be 

covered over. Also a strong, pungent odor was present. From 

experience your affiant identified the odor as growing 

marijuana . 

Lenard testified at trial as follows: 

Q: And did you sense or observe any such information [to 

further substantiate the information given by the confidential 

informant]? 
A: Yes. The information from the confidential informant 

stated that the grow was in the southwest. corner of the 

trailer. As I walked by that area, I observed a window that 

was covered over with what appeared to be wood or insulated 

material. As I walked past the area -- this was in February 

and there was waist-deep snow everywhere around the trailer. 

Everything was real icy and cold. I could detect an odor of 

growing plants, like a greenhouse, same sort of smell. It was 

real strong in one area. The one area was the area where the 

confidential informant said the grow was. 

Q: How long would you say you spent then behind that trailer, 

or in that area there by the trailer where you left your skis? 

A: I kept moving the whole time. I didn't stop and sniff or 

stare around or look around. I walked and put the skis back 

and I walked back through. As I walked past the window the 

first time, I could detect the odor. As I walked back again, 

it was the same area. It wasn't spread out through the whole 

side of the trailer, just the one area that was contained. 

Q: And it was your testimony that you smelled growing 

marijuana plants through the window along the side of the 

trailer? 

A: Yes. 

A: I think they call it construction board. It's a sort of 

insulated board you use for cork board sometimes. It was 

sealed with duct tape. 

Q: Yet you smelled growing marijuana plants through that 

sealed window? 

A: When we did the search warrant, the reason I could smell 

the growing marijuana was that there was a large vent in the 

ceiling of the trailer. Vents are frequently used in grow 

operations to vent the heat so the plants don't overheat. The 

area where I could smell the marijuana was directly beneath 

the vent. 
Q: -- yet outside at night in winter time, through a sealed 

window, your testimony is that you could smell the very same 

plants that you couldn't smell from the inside? 

A: No. I think my testimony was that I could smell the 

marijuana through the vent that was venting the room, not 

through the sealed window. And possibly the reason I could 

not detect the smell of the growing marijuana in the trailer 

was that the vent was venting the smell outside. 

From a careful review of this and other testimony and documents in 

the record, we conclude there is nothing therein to support the 

defendant's claim that Detective Lenard fabricated a story about 

the odor of growing marijuana plants near the southwest corner of 

the defendant's residence in order to get a search warrant. We 

conclude that the District Court did not err in finding that 

"Lenard noted a covered window and detect[ed] the odor of growing 

majijuana [sic] coming from a vent." 

We hold there was a substantial basis for the District Court 

to conclude that probable cause existed for the issuance of the 

warrant to search defendant's residence. 

Affirmed. 

12 
Justice William E. Hunt, Sr., dissenting. 

I dissent. I agree with defendant's argument that the 

evidence should have been suppressed because it was obtained by a 

ruse. As the majority points out, the deputy, by a pretense sf 

needing help, which was given to him by defendant, determined after 

being in the house and outside of the house, that marijuana was 

being grown on the premises. The search warrant was not issued 

until after the deputy and two detectives returned to Bozeman and 

prepared the paperwork to obtain a search warrant. The majority 

skips over the episode and hangs their ruling on the fact that 

there was enough evidence for the warrant anyway. This is a 

tainted search that took advantage of a willingness to help a 

stranded motorist which supplied the information for law 

enforcement officials to obtain a warrant. 

I would grant the motion to suppress the evidence. 
September 13: 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Stuart R. Whitehair 

Attorney at Law 

P.O. Box 6493 

Bozeman. MT 59715 

Hon. Joseph P. Mazurek 

Attorney General 

Justice Bldg. 

Helena. MT 59620 

A. Michael Salvagni, County Attorney 

Marty Lambert, Deputy 

615 S. 15th 

Bozeman, MT 59715 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA