No. 82-178 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

STATE OF MONTANA, 

Flaintiff and Respondent, 

JAMES KELLY, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Joseph B. Gary, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Anderson, Edwards & Molloy; Richard W. Anderson argued 

Billings, Montana 

For Respondent: 

Mike Greely, Attorney General, Helena, Montana 

Sarah Power argued, Asst. Atty. General, Helena 

A. Michael Salvagni, County Attorney, Bozeman, 

Montana: Robert Throssell, Deputy County Atty. 

Filed: 

Submitted: May 26, 

Decided: August 29, 1983 

AUG 2 9 1983 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Defendant appeals from a conviction of criminal 

possession of dangerous drugs with intent to sell, following 

trial without jury in the Eighteenth Judicial District Court, 

Gallatin County. We affirm. 

Defendant raises the following issues: 

1. Were the searches in Hawaii illegal and was evidence 

seized as a result of those searches tainted? 

2. Was the opening of the package by the Bozeman 

police, and their inventory of its contents, an 

unconstitutional search and an invasion of defendant's right 

of privacy? 

3. Did the issuing magistrate in Montana lack 

jurisdiction to issue the first search warrant? 

4. Was the affidavit of probable cause for the first 

search warrant fatally defective: 

a. Did probable cause exist for its issuance? 

b. Did hearsay information supporting its issuance 

render it fatally defective? 

5. Did the "offense" upon which the first affidavit was 

based result from entrapment, rendering the issuance of the 

first search warrant improper? 

On April 2, 1981, a federal agricultural inspector 

(Baba) in Honolulu, conducting warrantless searches of United 

Parcel Service (UPS) packages for plants, pests and diseases 

under the authority of federal law, opened a box containing 

what he suspected might be plants, fruits or similar items. 

His suspicion was based upon the method of packaging, the 

weight and wrapping of, and the addresses on the package. 

The package was addressed to defendant with a return address 

subsequently determined to be fictitious. He observed bricks 

of a pressed substance in plastic bags, one of which he 
opened and smelled an odor unlike marijuana he had smelled 

before. Baba then phoned Honolulu Police Officer Hisatake 

whom he knew from previous work they had done together, and 

who was on airport narcotics duty. Then Baba left the open 

package on the UPS conveyor in care of the UPS manager. 

Approximately half an hour later, Officer Hisatake arrived at 

the UPS depot and without a warrant, field-tested the slabs 

of greenish substance packed beneath a newspaper and some 

paperback books. The slabs were identified as marijuana in 

the form of hashish. Hisatake retained about two pounds of 

the substance for further lab testing. The next day he 

phoned Sgt. Green of the Bozeman Police Department; the 

officers agreed the UPS parcel should be mailed to the 

Bozeman Police by Air Freight. This was done. The box 

arrived in Bozeman April 5th (Sunday). The next day, 

pursuant to telephone instructions from federal drug control 

officials but without a warrant, Sgt. Green opened the box 

and inventoried and tested the contents of the unsealed UPS 

package addressed to defendant. The box contained about nine 

pounds of hashish. Green then rewrapped and resealed the UPS 

box. On April 7, the Bozeman UPS Manager, at Green's 

request, delivered the package to the address on the box, the 

Fox Street residence of defendant. Officers observed the 

delivery, then Sgt. Green returned to a magistrate's office, 

where he signed a previously-prepared affidavit describing 

the delivery, and requested a search warrant for the Fox 

Street house. The search warrant was granted; officers 

returned and searched the house. Defendant, his wife and a 

second man were present, as was a quantity of hashish (valued 

at approximately $275,000) and a variety of paraphernalia -- 

scales, baggies (some filled with hashish) , and the unopened 

UPS box. The officers arrested all three inhabitants. 
Leaving the home under police surveillance, Sgt. Green 

returned to the magistrate with an application for another 

search warrant, based upon the unanticipated evidence 

uncovered during the first search of defendant's home. The 

second search warrant was issued. The evidence was 

photographed, seized and conveyed to the police labs and 

evidence lockers, where it remained until hearing and trial. 

Defendants moved for suppression of all evidence. In 

the course of an extensive suppression hearing, all motions 

were denied. Just before trial, defendant's wife pleaded 

guilty. Apparently the charges against the second man were 

dismissed. Defendant waived his right to a jury trial. The 

suppression hearing transcript was a stipulated part of the 

trial transcript. The parties also stipulated that all 

contraband seized was taken pursuant to the two search 

warrants. The court found defendant guilty of possession of 

dangerous drugs with intent to sell. Defendant appeals, 

alleging that the District Court erred in refusing to 

suppress tainted evidence which was the fruit of several 

improper searches. 

Defendant first argues that the warrantless searches and 

seizure of the UPS box in Hawaii violated the United States 

Constitution and the Plant Pest Acts because Baba searched 

the box without probable cause and Hisatake searched and 

seized the box without a warrant. He maintains that because 

all subsequent discoveries and seizures were tainted by 

illegal procedure in Hawaii and should have been suppressed, 

his conviction must be overturned. We do not agree. 

Let us first consider whether Inspector Baba improperly 

searched the UPS package without a warrant. Baba was acting 

pursuant to the provisions of the Federal Plant Pest Acts, 7 

U.S.C.A. SS147a-167 and the Hawaiian and Territorial 
~uarantine Act, 7 C.F.R. S318. These Acts provide for the 

warrantless inspection of "any persons or means of 

conveyance" moving into the United States, upon probable 

cause to believe they are carrying or are infested with plant 

pests or plant diseases. 

In Camara v. Municipal Court (1967), 387 U.S. 523, 87 

S.Ct. 1727, 18 L.Ed.2d 930, the Supreme Court struck down the 

warrantless administrative search of buildings for housing, 

health and fire code violations, holding that, in most 

situations, administrative searches without warrants are 

improper. But Camara noted that warrantless administrative 

searches could be reasonable under some circumstances. In 

United States v. Schafer (9th Cir. 1972) 461 F.2d 856, the 

Circuit Court of Appeals explained why upholding a 

warrantless inspection under the Plant Pest Acts was not 

inconsistent with Camara. Schafer involved the search by 

airline officials of the handbag of a passenger boarding a 

plane bound from Hawaii to the United States. We find the 

rationale persuasive here. 

"In [Camara], the Court concluded that requiring 

building inspectors to obtain search warrants 

imposed no hardship on the conduct of their 

mission. There was 'no compelling urgency to 

inspect at a particular time or on a particular 

day,' [387 U.S. at 539, 87 S.Ct, at 17361 as the 

property to be searched was a building, obviously 

not a thing susceptible to speedy removal. Here, 

however, the time element is a major consideration. 

The objects of the search (quarantined fruits, 

vegetables and plants) can easily be transported 

out of Hawaii to the continental United States by 

departing tourists. The effect of such movement on 

agricultural crops in the mainland states could be 

serious as each of the quarantined items may carry 

some form of plant disease or insect which could 

destroy crops in the other areas. The purpose of 

the quarantine is to avoid these effects by 

preventing the movement of the potentially 

dangerous plant substances. We think a search 

warrant requirement would 'frustrate' the purpose 

of these inspections, because of the time delays 

inherent in the search warrant mechanism. Unless 

all departing passengers could be detained while 

warrants could be obtained, the goods would be 
moved before the warrants could issue. Whereas in 

Camara there was no suggestion that 'fire, health, 

and housing code inspection programs could not 

achieve their goals within the confines of a 

reasonable search warrant requirement.' [387 U.S. 

at 533, 87 S.Ct. at 17331 we are persuaded that 

requiring warrants for agricultural inspections of 

this type would effectively cripple any meaningful 

quarantine." Schafer, 461 F.2d at 858. 

Under the administrative search principles articulated 

in Camara, and the principles in See v. City of Seattle 

(1967), 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943, and the 

numerous progeny of those two landmark cases, a government 

official would be entitled to search a package without a 

warrant where there was a significant public protection 

involved, the intrusion was minimal, the goal was not 

discovery of a crime, and the governmental purpose would be 

otherwise thwarted or rendered impracticable by requiring a 

search warrant. All of these elements are present, making 

Baba's search a reasonable administrative search. 

Defendant argues that regardless of the exigencies of 

the situation, Baba acted without probable cause to believe 

this particular package contained plant pests or diseases. 

The probable cause requirement relative to administrative 

searches is less stringent than that relative to criminal 

investigations and " [i] f a valid public interest justifies 

the intrusion contemplated, then there is probable cause to 

issue a suitably restricted search warrant." Camara, 387 

U.S. at 539, 87 S.Ct. at 1736, 18 L.Ed.2d at 941. See also 

Marshall v. Barlows, Inc. (1978), 436 U.S. 307, 98 S.Ct. 

1816, 56 L.Ed.2d 305. The State argues that If [hlere, where 

the warrant requirement is vitiated by the necessity and 

urgency of immediate inspection, probable cause exists and a 

valid public interest justifies the intrusion." The State 

relies upon another 9th Circuit decision, upholding screening 
of airline passengers for weapons and explosives, which 

recognized that: 

"...[S]earches conducted as part of a general 

regulatory scheme in furtherance of an 

administrative purpose, rather than as part of a 

criminal investigation to secure evidence of 

crime, may be permissible under the Fourth 

- or 

vis 

sis 

added) . 

Moreover, although Baba characterized his search as "random" 

at trial, his testimony established that he searched only 

parcels which were unusually heavy and sent by individuals to 

individuals (as opposed to businesses, etc.). In his 

experience, those parcels were more likely to contain plants 

carrying pests or diseases. Thus his search was not a random 

search but was directed at parcels which by their packaging 

were more likely to contain items with disease or insects. 

This, along with the compelling need to find and interrupt 

the shipment of infested parcels, is sufficient to establish 

the probable cause contemplated by the Plant Pest Acts. 

Defendant next argues that, even if Baba's search of the 

UPS box was reasonable, Hisatake's subsequent warrantless 

search and seizure of the box was a violation of Fourth 

Amendment guarantees. Since Baba had already interrupted 

UPS'S delivery of the package, defendant argues that the 

exigencies which justified Baba's warrantless search no 

longer applied, and Hisatake should have obtained a warrant. 

We reject this argument. Baba, not Hisatake, seized the 

UPS package legitimately under the "plain view" rule, which 

permits warrantless seizure of evidence of crime 

inadvertently discovered by police in the course of a valid 

search. Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 

S.Ct. 2022, 29 L.Ed.2d 564. In his exhaustive study of the 
requirements of the Fourth Amendment, Professor Wayne LaFave 

summarizes the Coolidge plain view rule: 

"[Tlhe plain view doctrine discussed in Coolidge is 

intended to provide a basis for making a seizure 

without a warrant. The fact that there is a plain 

view in the Coolidge sense does not mean that there 

has been no search; indeed, the situations 

described by Justice Stewart are in the main search 

situations--search pursuant to a warrant naming 

other objects, search during hot pursuit, search 

incident to arrest, and a search for purposes other 

than finding evidence. Rather, the effort in 

Coolidge is to describe when items so found may be 

seized even though they were not the items which 

were legitimate objectives of that search. The 

Coolidge plurality identifies three requirements: 

(1) there must be a prior valid intrusion; (2) the 

discovery of the seized items must be inadvertent; 

and (3) it must be immediately apparent to the 

police that they have evidence before them." W. 

LaFave, SEARCH AND SEIZURE, §2.2(a) at 241-42 

(1978). 

The Supreme Court's recent decision, Texas v. Brown, No. 

81-419 (U.S. April 19, 1983), reiterates the rule that "if, 

while lawfully engaged in an activity in a particular place, 

police officers perceive a suspicious object, they may seize 

it immediately." Slip opinion at 8. Brown also relaxes rule 

(3) stated above. Where under Coolidge, it must be 

"immediately apparent to the police that they have evidence 

before them," under Brown, probable cause to support a 

warrantless seizure of evidence in plain view is supplied by 

"[a] 'practical, nontechnical' probability that incriminating 

evidence is involved." Slip opinion at 11. 

Baba's conclusion that the contents of the UPS box were 

marijuana was sufficient under Brown to justify seizure. He 

was a plant inspector for the Department of Agriculture. 

Moreover, although Baba was not technically a "police 

officer," he was a government official acting pursuant to 

federal law in seizing unauthorized plant substances 

uncovered by his search. 
We hold that Baba's search was a valid administrative 

search pursuant to standards articulated in Camara and 

Schafer, and his seizure of the UPS box and its contents 

pursuant to federal statutes and the plain view rule 

discussed in Coolidge and Brown, did not violate defendant's 

Fourth Amendment rights. 

In Brown, the Supreme Court also stated: 

" [Wlhen a police officer has observed an object in 

'plain view,' the owner's remaining interests in 

the object are merely those of possession and 

ownership." Slip opinion at 7-8. 

In other words, once Baba had recognized and seized the UPS 

box and its contents, defendant had no further grounds for 

claiming that any reasonable expectation of privacy in them 

was offended by either Hisatake's inspection and testing of 

the box's contents or Sgt. Green's further inspection and 

testing in Bozeman. The Constitution requires that, before 

the initial search and seizure, the "deliberate impartial 

judgment of a judicial officer . . . be interposed between 

the citizen and the police." Katz v. United States (1967), 

389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. It does not 

require that a magistrate's judgment be interposed between 

every transfer of evidence between officers or between law 

enforcement agencies once the evidence has been legitimately 

seized. Such a requirement would be absurd and would imply a 

continued privacy interest in the defendant after valid 

seizure of incriminating evidence. 

In United States v. Andrews (10th Cir. 1980), 618 F.2d 

646, the Circuit Court of Appeals considered whether, after 

a controlled delivery, a federal drug enforcement agent was 

required to secure a search warrant before reopening the 

package containing cocaine at the delivery point. The 

package, bound for Denver, had been opened by a suspecting 
cargo supervisor for Continental Air Cargo Service in Miami 

and field-tested by detectives the supervisor called. The 

detectives removed some of the cocaine, resealed the package 

and sent it to Denver on a Continental flight. In Denver, 

an alerted Drug Enforcement Administration (DEA) official 

took custody of the package and placed it in a Continental 

freight vault overnight. Wearing a freight clerk's uniform, 

he released the package the next morning to the defendant, 

who was arrested by DEA officials. The agent regained 

custody of the package and returned to the DEA office, where 

he opened it and removed the cocaine. The trial court 

granted defendant's motion to suppress. The Circuit Court of 

Appeals reversed, holding that: 

" [TI he police seizure [in Miami] was made 

upon probable cause and under exigent 

circumstances. Thus, the shipment of the 

package to Denver, its delivery over to 

Andrews there, and its subsequent taking 

away from Andrews were . . . actions 

constituting . . . 'official dominion 

continued unbroken because close 

surveillance followed the seized 

contraband, insuring that it remain 

within official possession."' 618 F.2d 

at 654. 

See also United States v. Ford (10th Cir. 1975), 525 F.2d 

1308. In both Ford and Andrews, where the initial seizure 

was legitimate, controlled delivery by private carrier and 

resumption of custody after delivery was held to amount to 

continued "official dominion," so that it was not necessary 

to obtain a search warrant before the container was regained 

and opened by officials after delivery. 

In Andrews and Ford, the initial search was private and, 

under applicable law, did not involve the Fourth Amendment as 

it would have in Montana. In this case, the initial search 

and seizure in Hawaii was valid under Camara and Coolidge and 

did not offend the Fourth Amendment. In all three cases, 
government dominion over evidence was legitimately obtained 

and effectively continued during a controlled delivery, and 

there was no need to procure warrants for each successive 

exercise of custody and inspection of the evidence. Indeed, 

here a search warrant was obtained after delivery; in Ford 

and Andrews, the defendant and contraband were seized without 

warrants, shortly after delivery. 

We hold that, since Baba's administrative search and 

seizure did not violate the Fourth Amendment, no privacy 

interest of defendant was violated by Hisatake's inspection 

in Honolulu or Green's later inspection in Bozeman. Thus, 

the procedures in Hawaii, and the inspection by Green in 

Bozeman, do not require suppression of the evidence obtained 

by the Bozeman searches. 

Our conclusion as to this issue also resolves the second 

issue raised by defendant. Because government dominion over 

the box "continued unbroken" for all reasonable purposes, 

from its valid seizure by Baba in Hawaii to its delivery in 

Bozeman and during that period of dominion, the box could be 

inspected without a warrant. 

Defendant's third issue is that the magistrate who 

issued the first search warrant in Montana lacked 

jurisdiction to do so, because the affidavit established that 

any criminal activity began and ended in Hawaii. 

It is true that a justice court's criminal jurisdiction 

is limited under section 3-10-303, MCA, to crimes committed 

in its county. It is also true that under section 

46-1-201(7), MCA, the offenses stated in the affidavit must 

be violations of the laws of this state or its political 

subdivisions. Obviously, if the only crime alleged had been 

committed in Hawaii, the Montana magistrate would have been 

without jurisdiction to issue a warrant. 
We hold there is no jurisdictional question here. The 

affidavit did not explicitly name the offense, but the facts 

stated clearly indicated that the suspected offense was 

possession of dangerous drugs which is a violation of Montana 

law under Title 45, Chapter 9, MCA. The affidavit stated 

that the suspected offense took place in Bozeman, Gallatin 

County. Thus, it was within the magistrate's jurisdiction. 

Whether the magistrate's decision to issue the warrant was 

correct goes to probable cause, not jurisdiction. 

The fourth issue raised by defendant is whether the 

affidavit supporting the first search warrant was so 

defective that the evidence uncovered and seized pursuant to 

that warrant was inadmissible at trial. 

Defendant argues that the affidavit failed to show that 

an offense had been committed because it did not show that he 

"knowingly" possessed the hashish -- only that he voluntarily 

accepted a UPS package. Section 46-5-202, MCA, requires that 

an affidavit state that an offense has been committed, and 

that it state facts sufficient to show probable cause for 

issuance of the warrant. 

It is well-settled that the evidence sufficient to 

establish probable cause for a warrant is significantly less 

than that required to support a conviction. All that need be 

shown is "a probability of criminal conduct." State v. 

McKenzie (1978), 177 Mont. 280, 290, 581 P.2d 1205, 1211. 

That rigid, technical standards are inappropriate to probable 

cause determinations is also evident from the United States 

Supreme Court's language in the recent case of Illinois v. 

Gates, No. 81-430, slip op. at 19-20 (U.S. June 8, 1983): 

"As early as Locke v. United States, 7 Cranch. 339, 

348 (1813) , chief Justice Marshall observed . . . that " the . term "probable cause, " according to its 

usual acceptation, means less than evidence which 

would justify condemnation-.-.-.. It imports a 
seizure made under circumstances which warrant 

suspicion.' More recently, we said that 'the 

quanta-.-.-.-of proof' appropriate in ordinary 

judicial proceedings are inapplicable to the 

decision to issue a warrant. Brinegar, supra, 338 

U.S., at 173. Finely-tuned standards such as proof 

beyond a reasonable doubt or by a preponderance of 

the evidence, useful in formal trials, have no 

place in the magistrate's decision. While an 

effort to fix some general, numerically precise 

degree of certainty corresponding to 'probable 

cause' may not be helpful, it is clear that 'only 

the probability, -- and not a prima facie showing, of 

criminal activity - is - th% standard of Probable 

cause. ' Spinelli, supra, 393 U. S. , at 419. See 

Model Code of Pre-Arraignment Procedure $210.1(7) 

(Proposed Off. Draft 1972) ; W. LaFave, Search and 

Seizure, S3.2 (3) (1978) ." 

Here, the affidavit established that "hashish, a 

controlled substance," had been discovered in a UPS warehouse 

in Hawaii addressed to defendant in Bozeman, and that, after 

a controlled delivery, he had accepted the parcel from UPS in 

Bozeman. The affidavit established the possession by 

defendant of a controlled substance in Gallatin County. That 

it did not establish "knowing" possession is not fatal to the 

affidavit. It is true that without evidence that defendant 

knowingly possessed the hashish, there was insufficient 

evidence to convict him. State v. Smith (1983) , Mont. 

I P.2d , 40 St. Rep. 494. There was, 

however, sufficient information to provide probable cause. 

That the box contained hashish was indisputably established, 

both in Hawaii and Bozeman. It was addressed to defendant. 

Possession of hashish is illegal in Montana. The box 

containing the hashish had been accepted by a male at the Fox 

Street address and was still inside his Fox Street residence. 

Defendant stresses the behavior of the police in 

"orchestrating" the delivery to him, arguing that he could 

not possibly have known the contents of the UPS box. But if 

government officials had not seized the box and controlled 

the delivery, but had discovered its contents some other way 
and had merely observed the uninterrupted delivery by the 

UPS, defendant's knowledge or lack of knowledge of the 

contents of the box would have been no different. In either 

case, defendant accepted a UPS box with hashish in it. 

Whether or not he was the "unsuspecting recipient" of a 

parcel of hashish addressed to him by persons unknown, as he 

claims, is a question for the fact finder at trial, not to be 

passed upon by the issuing magistrate. 

In this case, of course, the first search warrant 

uncovered far more than enough evidence, apart from the 

contents of the UPS box, to convict defendant of possession 

with intent to sell. Thus, it was unnecessary for the fact 

finder to determine whether or not defendant was aware of the 

UPS box's contents. That is not dispositive here. Clearly, 

if there was probable cause for the first Bozeman search, the 

second (warranted) search and seizure was also legitimate and 

the evidence obtained was properly admitted. 

We hold that the affidavit's failure to expressly name 

the crime alleged and its failure to prove that defendant 

knew the UPS box's contents did not invalidate the search 

warrant. The information included in the affidavit was 

sufficient to be considered a statement that an offense had 

been committed and to provide probable cause for the search 

warrant to issue. 

Defendant argues that the affidavit was fatally 

defective because it did not include the date the offense 

occurred. In State ex rel. Townsend v. District Court 

(1975), 168 Mont. 357, 361-62, 543 P.2d 193, 195-96, we 

stated: " [Aln affidavit which omits a reference to the time 

of the criminal event cannot establish probable cause . . . . 

The time factor is regarded as an important element of 
probable cause in order to prevent the issuance of warrants 

on 'loose, vague, or doubtful bases of fact . . .. 1 I1 

We find no merit in this argument. In Townsend, no 

reference was made to time. Here, the affidavit shows that 

the delivery was at 12:10 P.M., on either April 6 or April 7, 

1981. The package had not been removed from the Fox Street 

house. This small error does not create such a doubtful 

basis of fact as to defeat the affidavit. 

Defendant maintains that it was improper for the State 

to have prepared the affidavit before the UPS delivered the 

box to Kelly. It indicated that the State knew the delivery 

would occur, having prearranged it. Thus the State in effect 

caused the crime to occur. We do not find defendant's 

argument persuasive for two reasons. First, it is more 

pertinent to the issue of entrapment than to defects in the 

affidavit or the warrant. Second, there is nothing 

inherently wrong in drawing up an affidavit in anticipation 

of an expected illegal act. It is a convenient way to obtain 

a search warrant immediately after the offense occurs. Nor 

are we persuaded by defendant's repeated assertions that the 

State caused the possession to happen. The State merely 

controlled the UPS delivery, which would have occurred in any 

event. Such a controlled delivery has been upheld in Andrews 

and - Ford. 

Defendant's final challenge to the sufficiency of the 

affidavit is that it included hearsay and double hearsay 

which formed the basis for a finding of probable cause 

without satisfying the tests articulated in Aguilar v. Texas 

(1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 and 

Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 

21 L.Ed.2d 637, as set forth in Townsend, 168 Mont. 357, 360, 

543 P.2d 193, 195-96: 
"It cannot be disputed that hearsay information may 

be considered to establish probable cause. State 

-- v. Paulson, 167 Mont. 310, 538 P.2d 339, 32 St.Rep. 

786; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 

10 L.Ed.27 7-~ra~er v. United States, 358 

U.S. 307, 79 S.Ct. 329, 3 ~Xd.2d 327. But when 

hearsay information forms the justification for a 

finding of probable cause and the issuance of a 

search warrant, the two-pronged test set out in 

Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 

1514, 12 L.Ed.2d 723, must be applied and 

satisfied: 

"I* * * 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, and some of the underlying 

circumstances from which the officer concluded that 

the informant, whose identity need not be 

disclosed, see Rugendorf v. United States, 376 U.S. 

528, 84 S.Ct. 825, 11 ~.Ed.2d 887, was "credible" 

or his information "reliable." ' 

"See also: Spinelli v. United States, 393 U.S. 

410, 89 S.Ct. 584, 21 LXd.2d 637.- 

See also Thomson v. Onstad (1979), 182 Mont. 119, 594 P.2d 

The State properly notes that while the facts in the 

affidavit pertaining to the Hawaiian portion of events are 

hearsay, the package in question and the drugs at issue were 

seen and dealt with by the affiant himself. The events 

leading up to the delivery of the drugs to the defendant were 

witnessed by the affiant also. The contents of the package, 

the address, and the size and shape of the package have all 

been verified. The hearsay informants' facts have been 

corroborated by the affiant's personal observation. 

Furthermore, the affidavit establishes that neither Hisatake 

nor Baba were ordinary "informants." Both were government 

officials; Hisatake was a DEA officer and Baba was a federal 

plant inspector. Defendant argues that because the three 

officials (Green, Hisatake and Baba) were not closely 

involved in an ongoing criminal investigation, and because 

Baba was not a police officer, their status is relatively 
insignificant. A different view is expressed in W. LaFave, 

SEARCH AND SEIZURE S3.5 (a) (1978) at 619-20: 

" .. . [A] n ' informer, ' in the narrow sense of that 

word, is by no means presumed to be a credible 

person. This means that it is generally necessary, 

as a prerequisite to establishing probable cause on 

the basis of what the informer has told the police, 

to establish that he is reliable (e.g., by showing 

he has proved to be reliable on past occasions) or 

that his information is reliable (e.g., by showing 

that he has made an admission against his penal 

interest in the course of giving the information). 

By contrast, the average citizen who is thrust into 

the position of being a victim of or a witness to 

criminal conduct and who thereafter reports what he 

saw and heard to the police is generally presumed 

to be reliable, and thus no special showing of such 

reliability in the particular case is necessary. 

- As might be expected -- the same may ---- be said of a 

person whois a law enforcement officer. 

"The point was clearly made by the Supreme Court in 

United States v. Ventresca, involving a search made 

pursuant to a search warrant obtained upon the 

affidavit of one Mazaka, an investigator for the 

Alcohol and Tobacco Tax Division of the Internal 

Revenue Service. The affidavit referred to various 

occasions upon which sugar and empty tin cans were 

observed being carried into certain premises, 

filled cans were carried out, the odor of 

fermenting mash was smelled from the sidewalk in 

front of the premises, and the sounds of a motor or 

pump were heard coming from the direction of the 

same premises. These various factual allegations 

were prefaced in the affidavit with a statement 

that they were based upon observations by the 

affiant - and 'upon information received officially 

from other Investigators attached to the Alcohol 

and Tobacco Tax Division assigned to this 

investigation, and reports orally made to me 

describing the results of their observations and 

investigation.' Although a divided Court of 

Appeals ruled this affidavit insufficient, the 

Supreme Court disagreed . . .. 

"Following --- the lead of Ventresca, lower courts have 

consistently -- held that another - law enforcement 

officer - is - a reliable source -- and that consequently 

- no special showing of reliability ----- need be made as a 

part of the probable cause determination." 

(emphasE added) 

Montana has recognized a distinction between a "mere 

informer" and a "citizen-informant," i.e., one who is 

"motivated by good citizenship." The citizen-informant is 

accepted as reliable. State v. Leistiko (1978), 176 Mont. 

434, 578 P.2d 1161. We find no reason to require a showing 
of reliability as to either Hisatake or Baba. Hisatake was 

working for the DEA, although actually a Honolulu police 

officer; while Baba was somewhere between a citizen-informant 

and a police officer and also must reasonably be seen as 

reliable. 

In discussing the hearsay aspect, it is important to 

consider the pertinent part of the application for search 

warrant: 

"COMES NOW RON GREEN, of the Bozeman Police 

Department, and being first duly sworn upon oath, 

deposes and says: 

"1. That your affiant of the Bozeman Police 

Department received a phone call from Harvey 

Hisatake on April 3, 1981. Harvey Hisatake 

identified himself as a drug enforcement agency 

agent stationed in Honolulu, Hawaii; 

"2. That Agent Harvey Hisatake informed your 

affiant that a Federal Agricultural Inspector, 

while routinely checking packages delivered to 

United Parcel Service in Honolulu, Hawaii on April 

2, 1981, examined a 9" x 9" x 13" package addressed 

to James Kelly at an address of 1207 Fox Street, 

Bozeman, Montana and with a return address of 

Rosemary Kelly, 1214 Punahall Street, #210, 

Honolulu, Hawaii. The Inspector examined the 

contents of the package and discovered a green-like 

substance which appeared to be hashish; 

"3. That Agent Hisatake conducted a field test on 

the substance and discovered that it was hashish, a 

controlled substance. As a result, Agent Hisatake 

called your affiant to inform him of his discovery. 

Then, Agent Hisatake resealed the package, 

rewrapped it, addressed it to your affiant and 

placed in on airplane for air express delivery to 

Bozeman, Gallatin County, Montana; 

"5. That your affiant opened the package on April 

6, 1981. He discovered five plastic packets of a 

pressed green substance. Your affiant conducted a 

field test and determined that the substance was 

hashish, a controlled substance; 

"6. That your affiant also examined the package 

and observed that it was addressed to James Kelly, 

1207 Fox Street, Bozeman, Montana . . .." 

The defendant argues that the double hearsay problem 

arises from Hisatake informing Sgt. Green that a Federal 
Agricultural Inspector (unnamed) examined the package 

addressed to the defendant "while routinely checking packages 

delivered to United Parcel Service in Honolulu." While that 

is hearsay, and can be classed as double hearsay, the test to 

be applied is whether or not the information is reliable or 

credible. In assessing the reliability of informer Hisatake 

in particular, it is important to keep in mind that Sgt. 

Green had confirmed his reliability by his personal 

examination of the package, including its address, size, 

shape and contents. Considering all of such information 

together, we conclude that a sufficient showing has been made 

of reliability as to Hisatake and the Federal Agricultural 

Inspector Baba. The other prong of the Aguilar-Spinelli test 

requires that there be a showing of the underlying 

circumstances from which the informant concluded that the 

narcotics were where he claimed they were. That has been 

adequately established by the affidavit which shows that Sgt. 

Green opened the package, observed the address and tested the 

contents, determining the same to be hashish. This is a 

clear confirmation of the informants' conclusion that the 

narcotics were in the package, where they were claimed to be. 

We therefore conclude that the two-pronged test of 

Aguilar-Spinelli has been met and that the hearsay 

information contained in the application of Sgt. Green was 

sufficient to form a justification for a finding of probable 

cause and issuance of the search warrant. 

While we have concluded that the Aguilar-Spinelli test 

has been met, we refer again to Illinois v. Gates, which is a 

case decided so recently that the parties had no time to 

address it in briefs or oral argument. This United States 

Supreme Court decision abandons the two-pronged test 

established by Aguilar-Spinelli. The Court takes a great 
step away from the "labyrinthine body of judicial refinement" 

built over the "prongs" and "spurs" of the Aguilar-Spinelli 

tests. Slip opinion at 25. 

Illinois v. Gates, the United States Supreme Court 

overturned a suppression order where evidence of marijuana 

and weapons possession had been obtained pursuant to a 

warrant, as the result of an anonymous tip, partially 

verified as to "innocent details" by a police officer. There 

was no identification of the informant, and no indication of 

how the informant obtained his or her knowledge. Excerpts 

from the opinion, explaining the Court's rationale, follow: 

"We agree with the Illinois Supreme Court that an 

informant's 'veracity,' 'reliability' and 'basis of 

knowledge' are all highly relevant in determining 

the value of his report. We do not agree, however, 

that these elements should be understood as 

entirely separate and independent requirements to 

be rigidly exacted in every case, which the opinion 

of the Supreme Court of Illinois would imply. 

Rather, as detailed below, they should be 

understood simply as closely intertwined issues 

that may usefully illuminate the commonsense, 

practical question whether there is 'probable 

cause' to believe that contraband or evidence is 

located in a particular place. 

"This totality of the circumstances approach is far 

more consistent with our prior treatment of 

probable cause than is any rigid demand that 

specific 'tests' be satisfied by every informant's 

tip. Perhaps the central teaching of our decisions 

bearing on the probable cause standard is that it 

is a 'practical, nontechnical conception.' 

Brinegar v. United States, 338 U.S. 160, 176 

(1949) . 'In dealing with probable cause,-.-.-.-as 

the very name implies, we deal with probabilities. 

These are not technical; they are the factual and 

practical considerations of everyday life on which 

reasonable and prudent men, not legal technicians, 

act.' " Slip opinion at 15-16. 

The Court concluded: 

"[Ilt is wiser - to abandon the 'two-pronged test' 

established our decisions in Aguilar and 

Spinelli. -- In its Face we reaffircthe totalitY.of 

the circumstances analysis that traditionally has 

informed probable cause determinations . . . . The 

task of the issuing magistrate is simply to make a 

practical, commonsense decision whether, given all 

the circumstances set forth in the affidavit before 

him, including the 'veracity' and 'basis of 
knowledge' of persons supplying hearsay 

information, there is a fair probability that 

contraband or evidence of a crime will be found in 

a particular place. And the duty of a reviewing 

court is simply to ensure that the magistrate had a 

'substantial basis for . . . conclud[ing] that 

probable cause existed.'" Slip opinion at 23 

(emphasis added). 

Applying the Gates test, we hold that under the totality 

of the circumstances as listed above, the issuing magistrate 

here had a substantial basis for concluding that probable 

cause existed, and therefore conclude, on both the 

Aguilar-Spinelli test and the Gates test, that the affidavit 

is a sufficient basis for the issuance of the warrant. 

Finally, we consider defendant's argument that he was 

"entrapped" by Bozeman police and that, since entrapment was 

evident from the face of the affidavit, the issuing 

magistrate should not have signed the first search warrant. 

Defendant argues that " [hlad it not been for the police 

conspiracy to deliver sealed contraband to its unsuspecting 

recipient, the police would never have been in his house to 

make their 'plain view' observation of other illegal items." 

There are, then, two questions involved: 

a. Whether the magistrate improperly approved the first 

search warrant. 

b. Whether defendant's conviction must be overturned 

because he was entrapped. 

In State v. Kamrud (1980), Mont. , 611 P.2d 

188, 190-91, 37 St.Rep. 933, 936-37, we stated: 

"The entrapment defense is not a constitutional 

one, as the United States Supreme Court recognized 

in United States v. Russell (1973), 411 U.S. 423, 

433, 93 S.Ct. 1637,1643, 36 L.Ed.2d 366, where it 

held that 'the defense is not of a constitutional 

dimension.' Therefore, we must look primarily to 

Montana statutes and case law. 

"The federal cases are nevertheless relevant to the 

extent that they apply the same test used in 

Montana. The Commission Comment to our statute 

defining entrapment, section 45-2-213, MCA, states 
that '[tlhe defense of entrapment generally follows 

the rule stated by the majority in the Sorrells 

case.' (Sorrells v. United States (1932), 287 U.S. 

435, 53 S.Ct. 2107 77 L.Ed. 413, 86 A.L.R. 249.) 

Entrapment is, of course, an affirmative defense, 

and the burden of proving it rests on the 

defendant. LaCario, 518 P.2d 982, 985; State v. 

White (1969), 153 Mont. 193, 456 P.2d 54, 56; 

O'Donnell, 354 P.2d 1105, 1106; Parr, 283 P.2d 

1086, 1089. 

"This Court has held that the defense of entrapment 

mav be established as a matter of law. In State 7 v. 

~rinfell (1977), 172 Mont. 345, 564 P.2d 171, we 

overturned the defendant's conviction of sale of 

dangerous drugs on the grounds that the defense of 

entrapment had been established as a matter of law. 

Montana has recognized the entrapment defense by 

case law, and it is now codified in section 

45-2-213, MCA: 

'Entrapment. A person is not guilty of 

an offense if his conduct is incited or 

induced by a public servant or his agent 

for the purpose of obtaining evidence for 

the prosecution of such person. However, 

this section is inapplicable if a public 

servant or his agent merely affords to 

such person the opportunity or facility 

for committing an offense in furtherance 

of criminal purpose which such person has 

originated.' 

"This Court has held: 

'This statute is consonant with earlier 

decisions of this Court which set forth 

the following elements of entrapment: 

(1) Criminal intent or design originating 

in the mind of the police officer or 

informer; (2 absence of criminal 

intent or design originating in the mind 

of the accused; and (3) luring or 

inducing the accused into committing a 

crime he had no intention of committing. 

State -- ex rel. Hamlin, Jr. v. District 

Court, 163 Mont. 16, 5157.2r74; State 

- v. Karathanos, 158 Mont. 461, 493 P.2d 

326.' State - v. Grenfell, supra, 564 P.2d 

at 173. 

"See also State v. Gallaher (19781, Mont., 

580 P.2d 930, 935735 St.Rep. 848." 

Thus, if the evidence before the magistrate had established 

as a matter of law that the three elements of entrapment were 

indisputably present and therefore under section 45-2-213, 

MCA, the defendant could - not be guilty of the crime of 

possession with intent to sell, the magistrate did err in 

issuing the search warrant, as defendant asserts. That was 

not the case, however. The magistrate knew that defendant 
received and accepted a UPS package of hashish as a result of 

a controlled delivery. There was no evidence before her of 

any absence of criminal intent in the mind of the defendant; 

nor was there any suggestion that defendant had been lured 

into committing a crime he had no intention of committing. 

It is true that given these requirements, it would be a rare 

situation where a magistrate could find entrapment as a 

matter of law at this stage. Certainly here, defendant has 

not met his burden of proving that the warrant was 

erroneously issued on grounds of entrapment. 

Entrapment, if proven, mandates reversal of a 

conviction. It does not mandate the suppression of evidence. 

Here, where the evidence establishing defendant's 

predisposition to commit the crime charged was seized 

pursuant to a valid search warrant, it may be used to prove 

that predisposition. 

The first search warrant was issued upon probable cause. 

The record does not establish entrapment as a matter of law. 

The search uncovered very persuasive evidence that defendant 

was deeply involved in large-scale drug traffic. Because 

seizure of the evidence followed a legitimate search, that 

evidence was admissible at trial to overcome defendant's 

claim that he was entrapped. It was for the fact-finder to 

decide, on the basis of evidence presented at trial, whether 

defendant was not guilty because he was entrapped. In 

Kamrud , Mont. at , 611 P.2d at 191, 37 St.Rep. at 

937, we stated: 

If 'Entrapment occurs only when the criminal intent 

or design originates in the mind of the police 

officer or informer and not with the accused, and 

the accused is lured or induced into committing a 

crime he had no intention of committing. Only when 

the criminal design originates, not with the --- 

accused, ----- but in the mind of government officers - and 

- the accused 5 2 persuasion, deceitful 

representations, - or inducement, lured -- into the 
commission a criminal -- act, can 

-- made out. In short. 

tinction between induc 

a case - of 

tTeras a 

.ng a person 

to do an unlawful act and setting a trap to-catch 

him in the execution of a criminal design of his 

own conception . . . State v. Karathanos (1972), 

158 Mont. 461, 493 P.2d 326: 331 (holding that 

there was no entrapment where the defendant 

approached a police informant in a bar and offered 

to sell her drugs, later completing the 

transaction)." (emphasis added) 

Defendant's "crime" was not his acceptance of the box of 

hashish, as he insists; it merely provided probable cause to 

believe he knowingly possessed dangerous drugs with intent to 

sell. The evidence of defendant's crime of possession with 

intent to sell was properly, and convincingly, admitted at 

trial to defeat his affirmative defense of entrapment and 

prove that he was indeed "caught in the execution of a 

criminal design of his own conception." 

Affirmed. 

We concur: 

Chief Justice 
Justices 

Mr. Justice Daniel J. Shea dissents and will file a 

written dissent later. 

Mr. Justice Frank B. Morrison, Jr., will file a separate 

opinion later. 
Mr. Justice John C. Sheehy, dissenting: 

I dissent. 

The general rule is that a warrantless search, 

administrative or otherwise, is illegal. Camara v. Municipal 

Court (1967), 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930. 

An exception to the general rule was carved in United States 

v. Schafer (9th Cir. 1972), 461 F.2d 856. It is necessary to 

examine the facts of the Schafer case to determine why the 

circuit court made an exception to the general rule. 

Terry Lee Schafer was a departing passenger on an 

airline out of Hawaii. Her handbag was searched when she 

presented herself at the airport for departure. In her 

handbag was found a quantity of LSD pills. The search was 

made by federal authorities pursuant to federal statutes 

which prevent the transportation from Hawaii of certain 

quarantined agricultural substances which might spread 

disease or other injurious effects in the continental United 

States. The Secretary of Agriculture had adopted a 

regulation which expressly provided that "[all1 baggage and 

other personal effects of passengers" were to be searched at 

airports pursuant to the federal law. 7 C.F.R. 

§ 318.13-12 (a) . In Schafer, therefore, the Ninth Circuit 

Court of Appeals was impressed by the fact that there was an 

express provision of federal administration regulation that 

required the search of all baggage or other personal effects 

of all departing passengers. The Secretary's power to make 

such a regulation was founded on 7 U.S.C. § 150 (eel and 162. 

The Ninth Circuit Court of Appeals upheld this warrantless 

search because it applied to all persons, was founded on an 

express regulation, and the exigency of a departing passenger 
made the time necessary to procure a search warrant 

impractical and would render nugatory the desired goal of 

preventing quarantined articles from reaching the continental 

United States. 

Contrast the situation in Schafer with that which 

occurred here. We have a package resting in the United 

Parcel Service receiving room in a town in Hawaii. The agent 

in this case does not search - all packages. The field officer 

is given discretion as to which of the packages he will 

search. In this case he conducted admittedly a "random" 

search. The field official testified that no searches were 

ever conducted on packages received at UPS in the afternoon. 

In fact, he came to the UPS office during the lunch hour, 

when the conveyor belt in the UPS office was stopped, and 

inspected some twelve packages of the unspecified number on 

the belt. He based his inspections solely on the weight of 

the packages, after eliminating any packages going between 

business or mail order addresses. Why he made that 

distinction he did not specify in his testimony. No reason 

was shown in his testimony why he had to seize the package 

here without a search warrant. His inspection of the package 

in question revealed no plants bearing diseases or other 

substances which might injuriously affect crops in the 

continental United States. 

The evidence reveals no exigency existing which would 

prevent him from procuring a search warrant. The same line 

of reasoning applies to officer Hisatake, to whom Baba, the 

federal official, turned over the opened package. Certainly 

no exigency existed as to Hisatake, who should have procured 

a search warrant before seizing the property reported to him 

by Baba. 
What the majority has done in this case is to bootstrap 

the narrow Schafer exception to Camara into a now general 

rule that any intrusion by a federal official or a state 

official into packages in commerce without a warrant is 

permissible, provided that some federal statute allows the 

federal agent a right of inspection. The majority has 

carried Schafer too far. 

The search by Baba was illegal, because no probable 

cause existed for him to suspect that the package in question 

contained quarantined substances; it was illega.1 as to 

Hisatake, because there was no exigency existing which would 

prevent him from procuring a search warrant to seize the 

property discovered by Baba. 

A strong factor on which the Ninth Circuit Court upheld 

the search in Schafer was that the decision to inspect was 

not subject to the discretion of the official in the field, 

relying on Camara, 387 U.S. at 532, 87 S.Ct. at 1733, 18 

L.Ed.2d at 937. 

Since the seizure was illegal in its inception, all 

other evidence uncovered by the prosecution after the illegal 

seizure should have been suppressed by the District Court. 

Then there is the question of entrapment in this case. 

Our statute defining the crime of possession of dangerous 

drugs with intent to sell has an inherent peculiarity. 

Section 45-9-103, MCA. The permissible sentences under the 

crime are heavier than for mere possession of dangerous 

drugs. Section 45-9-102, MCA. The code compiler lists these 

elements as necessary to a conviction for criminal possession 

of dangerous drugs with intent to sell: (1) knowing (2) 

control of a (3) dangerous drug for a sufficient time to be 

able to terminate control, as well as (4) intent to sell the 
drug. Since the package here was seized in the Kelly home 

unopened, in the same condition as delivered, there is no 

evidence in this case upon which Kelly's conviction can he 

founded, since none of the elements of the crime could be 

proved beyond a reasonable doubt. 

It is idle to recite as the majority recites, that it is 

for the fact finder to determine entrapment in this case. 

There were no facts for the fact finder to find. Kelly had 

done nothing but receive from the officers here a package 

they had delivered to him containing drugs. It is on the 

receipt alone that the conviction here is founded. His 

knowing control of a dangerous substance, and his intent to 

sell the same are completely absent from the evidence. 

My conclusion is that the power of federal agricultural 

agents to inspect packages in Hawaii for quarantined plants 

and insects is being used by law enforcement as an instrument 

to get into homes otherwise out of their purview. We have 

developed some strange philosophies about drugs and privacy. 

The law permits a man to watch lewd movies in his home to his 

heart Is content. I find that detestable. The law does not 

permit a man to use drugs in the privacy of his own home. I 

find drug use also detestable, but I am unable to distinguish 

the legal concepts that differentiate the privacy rights of 

the drug user from the lewd-movie watcher. But even where 

the law is being violated, there are privacy rights in a home 

which the courts ought to protect as sacred. The federal 

officer here, Baba, found no violation of the law he was 

empowered to enforce. Hisatake, the Hawaiian Five-0, without 

a warrant, took the package out of the stream of commerce to 

readdress the package. Hisatake reinserted the package into 

commerce in a scheme designed to get the Bozeman officers 
into the Kelly home. Every step of those actions was 

unlawful. I won't condone it. 

The officers in this case testified they had no claim 

that Kelly mailed or had caused to be mailed the package to 

himself. His conviction rests simply on the package 

delivered to him by the officers, addressed to him by them, 

and originally sent into commerce by an unknown and 

unidentified person. Kelly's possession is at most 

constructive only. 

Do you have an enemy you would like to frame? Buy 

yourself an airline ticket to Hawaii and while there round up 

some marijuana, place it in a heavy package addressed to your 

enemy but not otherwise conspicuous and deliver it to UPS, 

but be sure to deliver it in the morning. Chances are it 

will be randomly opened by someone named Baba who in turn 

will turn it over to the authorities to make certain that it 

is delivered to your enemy. Our law enforcement officers 

will see to it that he is tailed, nailed and jailed. His 

mere possession of the package will be enough, with the 

blessing of this Court. 

In speaking of entrapment, I refer only to the drugs 

contained in the package. The other drugs and paraphernalia 

seized in the home may have independently sustained a 

conviction in a proper case, but here they are tainted by the 

illegal entry of the officers into the Kelly home.