No. 14565 

IN THE SUPREME COUHT OF THE STATE OF MX3TANA 

1979 

Petitioner, 

L. JOHN ONSTAD, Sheriff of Gallatin County, 

mntana; and RXER CRIST, Warden, I%x-~tana 

State Prison, 

Respondent. 

ORIGINAL PmaEDING: 

Counsel of Record: 

For Petitioner: 

James H. Goetz argued, Bozm, Bbntana 

For Respondent: 

Hon. Iae Greely, Attomey General, Helena, Mntana 

Allen B. Chronister argued, Assistant Attomey General, 

Bruce E. Becker, County Attorney, Livingston, mntana 

Filed : 

Sukmitted: March 20, 1979 

Decided: 1979 
Mr. Justice Gene B. Daly delivered the Opinion of the Court, 

This is an original proceeding in which petitioner, 

Douglas C. Thomson, seeks a writ of 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 sale of amphetamines, and sentenced to five 

years in the state prison by the District Court of Park 

County. This Court affirmed petitioner's conviction, holding that the search of his home was conducted pursuant to a 

valid warrant. State v. Thomson (1976), 169 Mont. 158, 161- 

62, 545 P.2d 1070, 1071-72. 

Petitioner then sought a writ of habeas corpus in the 

Federal District Court for Montana. That Court concluded 

that the warrant authorizing the search of Thomson's home 

was invalid, granted the writ of habeas corpus, and ordered 

a new state trial. The State petitioned for a rehearing, 

which the Federal Court granted. Within days after the 

court issued its habeas corpus order, the United States 

Supreme Court ruled that "a state prisoner may not be 

granted federal habeas corpus relief on the ground that 

evidence obtained in an unconstitutional search and seizure 

was introduced at his trial" if the state courts had provided an opportunity for "full and 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, the Federal District 

Court ordered the writ withdrawn. 

Petitioner appealed to the Ninth Circuit Court of 

Appeals, which affirmed the Federal ~istrict court's judgment, 573 F.2d 1316, and then sought certiorari review 

before the United States Supreme Court. The Supreme court 
denied 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 establish probable cause must be in writing. 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 

writ of 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 to Hallett's 

story, promised him full immunity from prosecution on any 

drug-related charges, and prepared an affidavit in support 

of a search warrant application, using Hallett's information. A city police officer signed the affidavit. The 

affidavit stated that Hallett had 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 in petitioner's home. 

The county attorney took Hallett and two police officers before the district judge at the judge's home during 

the early morning hours. The judge placed Hallett and one 
of 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. 

At a 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 to him by Hallett and the police officers. 

He also testified that he had known from his own experience 

that petitioner had been involved in the "drug scene." 

In the previous Thomson opinion, this Court held that 

the affidavit in support of the search warrant application 

was based upon hearsay information. 169 Mont. at 162, 545 

P.2d at 1072. While hearsay evidence may be sufficient to 

establish probable cause to support a search warrant, the 

person making the application must provide the issuing 

magistrate with additional facts which will permit the 

magistrate to determine whether probable cause exists. 

First, "the magistrate must be informed of some of the 

underlying circumstances from which the informant concluded 

that the narcotics were where he claimed they were." 

Second, the magistrate 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, 12 L.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; State v. Robey (1978), 

Mont . , 577 P.2d 1226, 1228, 35 St.Rep. 541, 544-45; 

State v. Thorsness (1974), 165 Mont. 321, 324, 528 P.2d 692, 
The affidavit presented to the magistrate was clearly 

insufficient because it failed to set forth any circumstances showing that Hallett was 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 in Livingston, was under arrest for fraudulent check 

charges, and was wanted on similar charges in another state. 

His information was not reliable--he stated that the last 

time he had been in petitioner's home was a full week 

earlier. Thus, it is doubtful that Hallett's information 

could have been sufficient to establish probable cause for a 

search of petitioner's home. 

However, regardless of whatever additional information 

Hallett provided to the judge who issued the warrant, the 

failure to put that information in writing precludes our 

consideration of whether it might have cured the insufficient affidavit. This Court has previously construed 

Article 11, Section 11 of the 1972 Montana Constitution to 

require that all the facts relied upon by the issuing 

magistrate be included in writing in the sworn affidavit. 

State ex rel. Townsend v. District Court (1975), 168 Mont. 

357, 362-63, 543 P.2d 193, 196. See also, United States v. 

Anderson (9th Cir. 1971), 453 F.2d 174, 177 & n. 3; Petition 

of Gray (1970), 155 Mont. 510, 520, 473 P.2d 532, 537. Cf. 

Stone v. Powell 428 U.S. at 473, n. 3, 96 S.Ct. at 3042, n. 

3, 49 L.Ed.2d at 1075, n. 3. 

The failure to include any additional facts in the 

affidavit leaves the search warrant insufficient under the 

Aguilar and Thorsness standards, and the evidence obtained 

under that warrant inadmissible in a prosecution against 
petitioner. 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