IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsWILLIAM LEE SEAMAN , 

Defendant and Appellant. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Mark Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Deirdre Caughlan; Dunlap & Caughlan, Butte, Montana 

For Respondent : 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Kathy Seeley, Asst. Atty. General, Helena 

Robert M. McCarthy, County Attorney; William O'Leary, 

Deputy County Atty., Butte, Montana 

Submitted on Briefs: Feb. 16, 1989 

Decided: March 30, 1989 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

This appeal arises from the conviction for possession of 

dangerous drugs of appellant William Seaman in the Second 

Judicial District, Silver Bow County. We affirm. 

Issues 

(1) Whether the police lacked probable cause to search 

Seaman's residence? 

(2) Whether the search of Seaman's residence was overly 

intrusive? 

(3) Whether police testimony constituted grounds for 

declaring a mistrial? 

(4) Whether the speed with which the jury delivered its 

verdict demonstrates the jury did not follow or read the 

instructions, consider the evidence or follow their charge? 

Facts 

Undersheriff Joe Lee told Detective John Walsh that 

three reliable informants had provided information indicating 

a probability that Seaman was engaged in illegal activity. 

All three informants told Lee that Seaman was selling heroin 

in Butte for $40.00 a "bag". One of the informants gave 

police a list of individuals who had purchased heroin from 

Seaman. Another of the informants provided a description and 

address for Seaman's residence, and stated that Seaman 

currently possessed a quantity of heroin and opium at that 

residence. 

The first informant gave information on Seaman's 

activities on December 29, 1987. The second informant 

revealed information on Seaman on January 7, 1988. The third 
spoke to police on January 21, 1988, concerning the sale of 

heroin by Seaman. 

Lee communicated the information from the informants to 

Detective Walsh. Walsh incorporated this information in his 

Application for Search Warrant to Justice of the Peace M. A. 

Bartholomew on Januarv 21, 1988. The application also 

included sworn statements by Detective Walsh that: the 

informants had provided reliable information to law 

enforcement officials in the past; that the activities 

described were consistent with information possessed by Butte 

officials on the drug trade currently and for the past ten 

years in Butte; and that a check with Mountain Bell Telephone 

Company and Montana Power Company indicated the presence of 

Seaman's wife, Lorraine Seaman, at the residence on 1117 

Maryland Avenue, Butte, Montana. 

On January 21, 1988, Justice of the Peace Bartholomew 

found from the application that probable cause existed for 

issuing a warrant authorizing a search of the residence on 

1117 Maryland Avenue, Butte, Montana. On the same dav 

Detective Walsh and several other officers went to the home 

and executed the warrant. Lorraine Seaman and her seven year 

old son answered to Walsh's knock on the door, and Walsh and 

the other officers entered after informing Mrs. Seaman that 

they possessed authority to search. 

Evidence presented at trial revealed the following: 

Walsh "secured" the area by walking through the house with 

his gun drawn and pointed at an angle toward the floor. He 

first encountered Mrs. Seaman's father, Harry Nvgard, who had 

come to the house that day to perform repairs on the freezer. 

Mr. Nygard and the Seaman youngster were ordered by police to 

sit on a bed located in the house while police continued the 

search. Walsh discovered the defendant in the bathroom after 

hearing the toilet flush. He ordered Seaman out of the 
bathroom and searched the area. In a basket on top of the 

washing machine Walsh found syringes filled with a brownish 

liquid. Walsh also found a small container holding a dark 

tar-like substance in an open towel cabinet in the bathroom. 

Both substances were identified at trial by a state's witness 

as heroin. Walsh also found items suspected to be drug 

paraphernalia. 

Seaman asked Walsh what he was looking for directly 

after or during the time Walsh searched the bathroom. Walsh 

replied, "heroin," and Seaman responded, "you got me." 

During the search Mr. Nyqard collapsed from an apparent 

heart attack. Police officers called for an ambulance and 

attempted to revive Mr. Nygard. Mr. Nygard was taken to the 

hospital and died later that night. 

Seaman contends that under the constitutional 

requirements prohibiting unreasonable searches and seizures, 

and under S 46-5-202 (b) , MCA, requiring facts sufficient to 

demonstrate probable cause prior to issuance of a warrant, 

the District Court erred in denying his suppression motion. 

There are several contentions advanced by Seaman under this 

issue. First, he contends Undersheriff Lee rather than 

Detective Walsh should have sworn to the information in the 

application. See State ex rel. Sanford v. District Court 

(1976), 170 Mont. 196, 551 P.2d 1005. In Sanford this Court 

ordered suppression of evidence generated through a warrant 

issued to "any Peace Officer of this State." 

Seaman also contends that the totality of the 

circumstances fails to support a finding of probable cause. 

Seaman further argues that the lower court should have 

ordered the State to reveal the identities of the informants, 
and that the search was overly intrusive because abusive 

police conduct resulted in the death of Harry Nygard. 

A. The applicability - of Sanford: Seaman contends that 

Sanford mandated exclusion of the evidence from the search. 

The warrant was defective in Sanford because section 95-703 

R.C.M.1947, now 46-5-201, MCA, requires that a search 

warrant be directed to - a peace officer. As explained in 

State v. Snyder (1975) (Daly, J., concurring), 168 Mont. 220, 

231, 541 P.211 1204, 1210, the mandate that the warrant be 

directed to a particular officer accords with the plain 

language of the statute, and with the mandate of another 

statute; section 95-707 R.C.M.1947, now § 46-5-205, MCA, that 

the warrant be served by one of the officers mentioned in its 

direction. In this case, Walsh applied for the warrant, the 

warrant named VJalsh, and Walsh served the warrant. Thus, the 

police in this case followed the statutory procedure, and 

Sanford is inapplicable. 

B. The totality -- of the circumstances: In State v. 

Sundberg (Mont. 1988), 765 P.2d 736, 45 St.Rep. 2235, this 

Court discussed the requirements for finding probable cause 

from an application for a warrant: 

In Jensen, this court decreed that the test for 

determining probable cause for issuance of a search 

warrant is the "totality of the circumstances" test 

set forth in Illinois v. Gates (1983), 462 U.S. 

213, 103 S.Ct. 2317, 76 L.Ed.2d 527. 

Probable cause to justify search warrants is a 

sufficient showing that incriminating items, namely 

items reasonably believed to be connected with 

criminal behavior, are located on the property to 

which entry is sought. It does not require that 

the occupant be guilty of any offense and. need only 

be supported by probable cause to believe that the 
items sought will be found in the place to be 

searched and that these are seizable by being 

adequately connected with criminal behavior. 

[citation omitted] Probable cause, defining the 

point at which the individual's interest in privacy 

must yield to the governmental interest in 

investigating criminal behavior by searching for 

incriminating items, is a practical, nontechnical 

concept of criminal procedure . "Probable 

cause" is not a prima facie showing of criminal 

activity, but only its probability. [citation 

omitted] Considerably less evidence is required 

for the issuance of an arrest or search warrant 

than for conviction; and legally unimpeachable 

findings of probable cause can rest upon evidence, 

for instance hearsay, which is not legally 

admissible at the criminal trial itself. 

Sunberg, 765 P.2d at 738. 

Under the totality of the circumstances test, the 

veracity, reliability, and basis of knowledge of informants 

remains highly relevant to determining probable cause from 

the reports of such informants. Gates, 462 U.S. at 230. 

Seaman contends that the double hearsay nature of the 

information contained in the application, coupled with the 

lack of information on the reliability of the informants, 

demonstrates lack of probable cause under the totality of the 

circumstances test. 

The hearsay nature of the link between information 

provided by Undersheriff Lee to Detective Walsh does not 

invalidate the finding of probable cause in this case: 

Observations of fellow officers of the Government 

engaged in a common investigation are plainly a 

reliable basis for a warrant applied for by one of 

their number. 

lJnited States v. Ventresca (1965), 380 U.S. 102, 111, 85 

S.Ct. 741, 747, 13 L.Ed.2d 684. To enable the magistrate to 
make an independent probable cause determination, and to meet 

the requirement of particularity, it is: 

sufficient if the affidavit recites at the outset, 

or if it is clear from reading the affidavit as a 

whole, that it is based in part upon information 

obtained from other law enforcement officers. 

United States v. Kirk (11th Cir. 1986), 781 F.2d 1498, 1505. 

Walsh swore that the information in the application had been 

provided to "Butte Law Enforcement Agency Detectives". Thus, 

the application demonstrates that Walsh relied on information 

provided by other officers. 

Seaman also objects to the application on the grounds 

that the informants were not shown to be reliable. We hold 

that the application sufficiently shows the informants1 

reliability and basis of knowledge. Walsh swore that the 

informants had provided reliable information in the past. He 

also stated in the application that one of the informants had 

extensive knowledge of the drug trade in Butte. The 

informants described the same criminal conduct on the part of 

Seaman, e.g., selling heroin in "bags" for $40.00 each over a 

period of three weeks prior to issuance of the warrant. The 

list of purchasers from Seaman, and one informant's knowledge 

of Seaman's address, also supported the application. Thus, 

facts in the application demonstrated the informants1 

reliability and basis of knowledge for reporting the 

existence of criminal activity by Seaman. 

C. Identities -- of the Informants: Seaman argues that 

the trial court erred in failing to order the State to 

disclose the identities of the informants. support this 

argument, Seaman cites State v. Chapman (19841, 209 Mont. 57, 

679 P.2d 1210. In Chapman, this Court refused to allow the 

State to claim the privilege of withholding an informant's 
location and identity because the informant played a 

continuous and primary role in the crime, and fundamental 

fairness required disclosure because the informant's 

testimony was relevant to his entrapment defense. Chapman, 

679 P.2d at 1215. Similarly, in State v. Offerdahl (1971), 

156 Mont. 432, 481 P.2d 338, this Court agreed with the trial 

court that the informant must be disclosed because the 

informant's testimony would determine the defendant's guilt 

or innocence. Offerdahl, 481 P.2d at 342. 

Seaman makes a different argument. He contends that 

disclosure of the identities was necessary for determining 

probable cause. The lower court failed to recognize the 

distinction between "citizen informants" and informants who 

themselves are involved in illegal activity, according to 

Seaman. At the suppression hearing Undersheriff Lee 

testified that the informants had previously been involved in 

illegal drug activities. 

Rule 502, M.R.Evid., provides the State a privilege to 

refuse to disclose an informant's identity. The privilege 

provides confidentiality to encourage reports of criminal 

activity. Commission Comments, Rule 502, M.R.Evid. Where 

the defendant claims disclosure is necessary for presenting 

an effective defense, trial courts must engage in the 

balancing test from Roviaro v. United States (1957), 353 U.S. 

53, 77 S.Ct. 623, 1 L.Ed.2d 639. The test provides no fixed 

rule, and in each particular case trial courts must weigh the 

defendant's needs against the public's interest in the flow 

of information from informants. Roviaro, 353 U.S. at 62. 

Trial courts should take into consideration the crime 

charged, the possible defenses, the possible significance of 

the informant's testimony, and other relevant factors in 

balancing the conflicting interests. Commission Comments, 

Rule 502, M.R.Evid. 
We have already held here that the reliability and basis 

of knowledge of the informants was established. within the 

application. If the law required disclosure of identities 

and locations of informants to further test 

the truth of the officer's statement that there is 

an informant or as to what the informant related or 

as the informant's reliability, we can be sure that 

every defendant will demand disclosure. . . . The 

result would be that the State could use th~ 

informant's information onlv as a lead and could 

search only if it could gather adequate evidence of 

probable cause apart from the informant's data. 

Perhaps that approach would sharpen investigatorial 

techniques, but we doubt that there would be enough 

talent and time to cope with crime upon that basis. 

Rather we accept the premise that the informer is a 

vital part of society's defensive arsenal. 

McCray v. Illinois, 386 U.S. 300, 306-07, 87 S.Ct. 1056, 

1060, 18 L.Ed.2d 62, 68 (quoting State v. Burnett (N.J. 

1964), 201 A.2d 39). The Court in McCray also cited Burnett 

for the proposition that it should rest entirely with the 

judge who hears the motion to suppress to decide whether he 

needs such disclosure as to the informant in order to decide 

whether the officer is a believable witness. McCray, 386 

U.S. at 308. This Court adopted the reasoning from McCray 

in State v. Sykes (Mont. 1983), 663 P.2d 691, 40 St.Rep. 690. 

Seaman's only argument goes to discrediting Undersheriff 

Lee's assertion that the informants existed and that they 

provided reliable information. Under these circumstances, we 

hold that the District Court acted within its discretion in 

refusing to order disclosure. 

We also reject Seaman's staleness argument. Information 

provided by the application stated that Seaman's current 

peddling of heroin for $40.00 a "bag" was consistent with 

illegal drug activities in Butte over the past ten years. 

The application sufficiently set forth probable cause without 
the assertion that the current activity resembled familiar 

patterns of the drug trade in Butte. The added information 

only supplemented the reliability of the current report. 

11. 

Seaman argues that the death of Mr. Nygard during the 

search proves the search was overly intrusive. There is very 

little evidence that police misbehavior precipitated Mr. 

Nygard ' s death. Mrs. Seaman testified that she heard a 

struggle in the room where Mr. Nygard was seated prior to his 

collapse. Undersheriff Lee testified he stood in front of 

Mr. Nygard at the time he collapsed. Lee also stated he 

thought Mr. Nygard fainted, and that police immediately 

initiated medical procedures for reviving Mr. Nygard. Thus, 

this claim is unsupported and provides no basis for excluding 

evidence. 

111. 

Seaman contends that the lower court erred in refusing 

to grant his motion for a mistrial. The alleged grounds for 

the motion sprung from the testimony of Detective Walsh on 

finding the syringe containing heroin in a basket in the 

bathroom. Walsh testified as follows: 

Q Did you at any time search the wicker 

basket? 

A The following day, yes I did. 

Q Did you find anything at that time in the 

wicker basket? 

A Again, like I stated, we found the 

svringes. There were two syringes that were full 

of this brown liquid. Again, there was other drug 

paraphernalia there, hut that's what we observed. 
There was also another item of drug evidence, 

tincture of opium. 

MS. CAUGHLAN [defendant ' s counsel I : Your 

honor, we are going to interpose an objection here. 

THE COURT: Sustained. Are you moving to 

strike the answer? 

MS. CAUGHLAN: I move to strike the answer. 

THE COURT: The answer is stricken. I 

instruct the jury to disregard his answer. 

Seaman's counsel in moving for a mistrial contended that the 

mention of opium violated the trial court's order prohibiting 

introduction of other bad acts or crimes, and prejudiced 

Seaman's right to a fair trial. The lower court denied the 

motion holding it was sufficient to sustain the objection, 

strike the testimony from the record, and order the jury to 

disregard the evidence. 

Trial courts properly grant mistrials when, taking all 

circumstances into consideration, there exists a manifest 

necessity to do so. State v. Scheffelman (Mont. 1987), 733 

P.2d 348, 44 St.Rep. 357. This Court's review of a trial 

court's denial of a motion for a mistrial is limited to 

deciding whether the lower court abused its discretion in 

refusing the motion. Scheffelman, 733 P.2d at 350. The 

trial court occupies the best position to gauge the reaction 

of jurors to inadmissible evidence for determining necessity 

to order a mistrial. State v. Smith (Mont. 1986), 715 ~.2d 

1301, 43 St.Rep. 449. Mistrials may be properly granted for 

introduction of inadmissible evidence resulting in harmful 

error likely to affect the justice of the verdict. State v. 

Lave (1977), 174 Mont. 401, 571 P.2d 97. Only where there is 

a reasonable possibility that inadmissible evidence 

contributed to the conviction is there reversible error in 
denying the motion. State v. Brush (Mont. 1987), 741 P.2d 

1333, 44 St.Rep. 1495. Where the party opposing admission of 

evidence objects to offered evidence, and the trial court 

sustains the objection, strikes the evidence from the record, 

and instructs the jury to disregard the evidence, "error 

committed by its introduction is presumed cured." Brush, 741 

The presumption here favors finding no prejudice because 

the lower court admonished the jury to disregard the 

statement after sustaining Seaman's objection to the 

testimony. Moreover, Walsh properly testified that he found 

substances testing out as heroin and drug paraphernalia in 

the basket. Testimony on the presence of tincture of opium 

with these items is not so prejudicial as to warrant a new 

trial. Thus, no error exists under this issue. 

IV. 

Seaman contends that the fact that the jury took so 

little time in reaching a verdict demonstrates they failed to 

consider or read the instructions, consider the evidence, or 

follow their charge. Seaman asserts less than 25 minutes 

elapsed from the time the trial court submitted the case to 

the jury and the time the jury brought in its verdict. No 

authority is provided by Seaman to support reversal for this 

contention. 

Rule 606(b), M.R.Evid., allows inquiry into the validity 

of verdicts. Section 25-11-102, MCA, provides for 

investigation of jury misconduct to reveal grounds for a new 

trial. Seaman has invoked neither the statute nor the rule 

in his claim on the jury's verdict. 

The lower court, in passing sentence on Seaman, stated 

that the evidence for finding the defendant guilty was "way 

beyond a reasonable doubt." In reviewing the record, we 
agree with the lower court. Overwhelming, substantial 

evidence supports the verdict, and there appears no error of 

law in the record. Thus, we reject the argument that the 

jury spent too little time considering the law and facts in 

this case, and we affirm on all issues. 

@G.~SA& Justice 1 

,C 

We Concur: , , 

/'