No. 14565 IN

### THE SUPREME COUHT OF

### THE STATE OFMX3TANA 1979

Petitioner,

L. JOHN ONSTAD, Sheriff 

### of GallatinCounty, mntana; and RXER CRIST, Warden, I%x-~tana StatePrison, Respondent.



### ORIGINAL PmaEDING: Counsel of Record: For Petitioner: 

### James H. Goetz argued, Bozm,Bbntana For Respondent: Hon. IaeGreely, Attomey General, 

### Helena, Mntana Allen B. Chronister argued, AssistantAttomey

### General, Bruce E. Becker, CountyAttorney, Livingston, mntana

Filed: Sukmitted: 

### March 20, 1979 Decided: 

## 1979Mr. Justice Gene B. Daly delivered the Opinion of the Court, This 

### is an original proceeding inwhich petitioner, Douglas C. Thomson, seeks a 

### writof habeas corpus. Petitioner was convicted under sections 54-133 and 54-134, R.C.M. 1947, now sections 45-9-102 and 45-9-104 l4CA, for possession and saleof amphetamines, and sentenced to five years inthe stateprison by the DistrictCourt of Park County. This Court affirmed petitioner's conviction, holding that the search of hishome was conducted pursuant to a valid warrant. Statev. Thomson (1976), 169 Mont. 158, 161- 62, 545 P.2d 1070, 1071-72. Petitioner then sought a 

### writof habeas corpus in the Federal District Court forMontana. That Court concluded that thewarrant authorizing the search of Thomson's home

was invalid, granted the

### writof habeas corpus, and ordered

a new state trial. The Statepetitioned for a rehearing, which theFederal Court granted. Within days after the court issued 

### its habeas corpus order, the United States Supreme Court ruled that "a stateprisoner may not be granted federal habeas corpus relief on the ground that evidence obtained inan unconstitutional search and seizure

was introduced athis trial" if the 

### state courts had provided an opportunity for "fulland fair litigation" of the prisoner's Fourth Amendment claim. Stone v. Powell (1976), 428 U.S. 465, 494, 96 S.Ct. 3037, 3052, 49 L.Ed.2d 1067, 1088. On the basis of this decision, theFederal District Court ordered the

### writwithdrawn. Petitioner appealed tothe Ninth Circuit Court of Appeals, which affirmed the Federal ~istrict court's judgment, 573 F.2d 1316, and then sought certiorari review before theUnited States Supreme Court. The Supreme courtdenied the certiorari application on the authority of Stone

v. Powell. U.S. 

## , 99 S.Ct. 117, 58 L.Ed.2d 130. See, 47 U.S.L.W. 3203 (U.S. Oct. 2, 1978) (No. 77-1804). Petitioner now seeks habeas corpus relief in this Court, contending that the search of his home violated the United States and Montana Constitutions. Petitioner brings our attention to the Yontana constitutional requirement that the information relied upon to

### establishprobable cause must be inwriting. Because this 

### is

a matter of major constitutional significance and because 

### we did not consider this contention during the previous appeal,



### we agreed to consider the petition. Upon review 

### we conclude that the search warrant was improperly issued, and that a 

### writof habeas corpus 

### is an appropriate remedy. The facts leading to the search of petitioner's home are that one Paul Hallett, while under arrest on fraudulent check charges, told the Livingston, Montana, police that he had information about drug sales by petitioner. The police summoned the county attorney, who listened toHallett's story, promised him full immunity from prosecution on any drug-related charges, and prepared an affidavitin support of 

### a search warrant application, using Hallett's information. A citypolice officer signed the affidavit. The affidavit stated thatHalletthad entered petitioner's home

one week earlier and obtained a quantity of amphetamines from petitioner. It also stated that Hallett had been informed within the previous 12 hours that there

### were still amphetamines and other dangerous drugs inpetitioner's home. The county attorney took Hallett and two police officersbefore the districtjudge atthejudge's home during the earlymorning hours. The judge placed Hallett and oneof the officers under oath and questioned them concerning their knowledge of the petitioner's drug-related activities. Following this interview, the judge signed the search warrant. The officers searched petitioner's home, where they found approximately 70 pills. Ata pretrial hearing on petitioner's motion to suppress the seized pills, the District Court permitted the judge who had issued the warrant to testify concerning the statements made tohim by Hallett and the police officers. He also testified that he had known from his own experience thatpetitioner had been involved inthe "drug scene." In the previous Thomson opinion, this Court held that the affidavit in support of the searchwarrant application

was based upon hearsay information. 169 Mont. at162, 545 P.2d at 1072. While hearsay evidence may be sufficient to establishprobable cause to support 

### a search warrant, the person making the application must provide the issuing magistrate with additional facts which 

### willpermit the magistrate todetermine whether probable cause exists. First, "themagistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics 

### werewhere he claimed they were." Second, themagistrate must be informed of "some of the underlying circumstances from which the [applicant] concluded that the informant 

# . . . was 'credible' or his information 'reliable.'" Aguilar v. Texas (1964), 378 U.S. 108, 114, 84 

### S.Ct. 1509, 1514, 12L.Ed.2d 723, 729; Spinelli v. United States (1969)

## , 393 U.S. 410, 412-13, 89 S.Ct. 584, 587, 21 L.Ed.2d 637, 641-42; Statev. Robey (1978), Mont

# . , 577 P.2d 1226, 1228, 35 St.Rep. 541, 544-45; Statev. Thorsness (1974), 165Mont. 321, 324, 528 P.2d 692,The affidavitpresented to the magistrate was clearly insufficient because 

### it failed to 

### set forth any circumstances showing thatHallettwas a credible informant or that his information was reliable. Indeed, if the circumstances underlying Hallett's information showed anything, they showed that he could not be trusted--he was a recent arrival inLivingston, was under arrest for fraudulent check charges, and was wanted on similar charges inanother state. Hisinformationwas not reliable--he stated that the last 

### timehe had been inpetitioner's home was a fullweek earlier. Thus, 

### it 

### is doubtful that Hallett's information could have been sufficient toestablishprobable cause for a search of petitioner's home. However, regardless of whatever additional information Hallettprovided to thejudge who issued thewarrant, the failure toput that information inwriting precludes our consideration of whether 

### itmight have cured the insufficient affidavit. This Court has previously construed Article 11, Section 

### 11 of the 1972 Montana Constitution to require that allthe factsrelied upon by the issuing magistrate be included inwriting inthe sworn affidavit. State ex 

### rel. Townsend v. DistrictCourt (1975), 168 Mont. 357, 362-63, 543 P.2d 193, 196. See also, United Statesv. Anderson (9thCir. 1971), 453 F.2d 174, 177 & n. 3; Petition of Gray (1970), 155Mont. 510, 520, 473 P.2d 532, 537. Cf. Stone v. Powell 428 U.S. at473, n. 3, 96 S.Ct. at3042, n. 3, 49 L.Ed.2d at1075, n. 3. The failure to include any additional facts inthe affidavit leaves the searchwarrant insufficient under the Aguilar and Thorsness standards, and the evidence obtained under thatwarrant inadmissible in

### a prosecution againstpetitioner. Mapp 

### v. Ohio (19611, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 

### L.Ed.2d 1081, 1090. Petitioner's application for a writ

### of habeas corpus 

### is granted.

We concur: 

# 9;l~d 

# p+LL4P@ Chief Justice