INTHE SUPREME COURTOF THE STATEOF MONTANA

STATE OF MONTANA, Plaintiff and Respondent,-vsWILLIAM LEE SEAMAN

## , Defendant andAppellant.

APPEAL FROM: District Court of the Second JudicialDistrict, In and for the County of Silver Bow, TheHonorable Mark Sullivan, Judgepresiding.
COUNSEL OF RECORD:

ForAppellant: Deirdre Caughlan; Dunlap & Caughlan, Butte,Montana

For Respondent:
Hon. Marc Racicot,Attorney General, Helena,Montana Kathy Seeley,Asst. Atty. General,Helena RobertM. McCarthy, CountyAttorney;William O'Leary, Deputy County Atty., Butte,Montana

Submitted on Briefs: Feb. 16, 1989 Decided: March 30, 1989Mr. 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 tosearch Seaman's residence? (2) Whether the search of Seaman's residencewas 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 thirdspoke 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 PeaceM. 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 informationpossessed by Butte officials on the drug trade currently and for the past ten years inButte; 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 thewarrant. Lorraine Seaman andher seven year old son answered to Walsh's knock on the door, and Walsh and the other officers entered after informing Mrs. Seaman that theypossessed 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 encounteredMrs. Seaman's father, Harry Nvgard,who had

come to thehouse that day toperform 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 thedefendant in thebathroom after hearing the toilet flush. He ordered Seaman out of thebathroom 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 substanceswere identified at trialby 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 thebathroom. Walsh replied, "heroin,"and Seaman responded, "you gotme." During the searchMr. Nyqard collapsed from an apparent heart attack. Police officers called for an ambulance and attempted to reviveMr. 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 suppressionmotion. 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), 170Mont. 196, 551 P.2d 1005. In Sanford this Court ordered suppression of evidence generated through a warrant issued to "anyPeaceOfficer 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 identitiesof the informants,and that the search was overly intrusive because abusive police conductresulted 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 95-707R.C.M.1947, now § 46-5-205, MCA, that thewarrantbe servedby one of the officersmentioned in its direction. In this case,Walsh applied for thewarrant, the warrant namedVJalsh, and Walsh served thewarrant. 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 determiningprobable cause for issuanceof a search warrant is the "totalityof the circumstances" test set forth in Illinois v. Gates (1983), 462 U.S. 213, 103S.Ct. 2317, 76 L.Ed.2d 527.
Probable cause to justify search warrants is a sufficient showingthat 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 occupantbe guilty of any offenseand.need only be supported by probable cause to believe that theitems 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 inprivacy 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 findingsof probable cause can rest upon evidence, for instance hearsay, which is not legally admissible at the criminaltrial itself. Sunberg, 765P.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 ofprobable cause under the totality of the circumstancestest. The hearsay nature of the link between information provided by Undersheriff Lee to Detective Walsh does not invalidate the findingofprobable 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 forby one of theirnumber. lJnited States v. Ventresca (1965), 380 U.S. 102, 111, 85 S.Ct. 741, 747, 13 L.Ed.2d 684. To enable the magistrate tomake an independent probable causedetermination,and tomeet the requirementofparticularity,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 fromother lawenforcement officers. United States v. Kirk (11thCir. 1986), 781 F.2d 1498, 1505. Walsh swore that the information in the application had been provided to "ButteLawEnforcementAgency Detectives". Thus, the application demonstratesthatWalsh relied on information provided by other officers. Seaman also objects to the application on the grounds that the informantswere not shown to be reliable. We hold that the application sufficiently shows the informants1 reliability and basis of knowledge. Walsh swore that the informantshad provided reliable information inthepast. He also stated in the application that one of the informantshad extensive knowledge of the drug trade in Butte. The informantsdescribed the same criminal conducton the part of Seaman,e.g., selling heroin in "bags" for $40.00 each overa 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 existenceof criminalactivityby 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 Statev. Chapman (19841,209Mont. 57, 679 P.2d 1210. In Chapman, this Court refused to allow the State to claim the privilege of withholding an informant'slocation 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, 481P.2d 338,this Court agreedwith the trial court that the informant must be disclosed because the informant's testimony would determine the defendant's guilt

or innocence. Offerdahl, 481P.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 informantshad 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 Roviarov. United States (1957),353U.S. 53, 77 S.Ct. 623, 1L.Ed.2d 639. The test provides no fixed rule,and in eachparticular 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 alreadyheld here that the reliability and basis of knowledge of the informants was established. within the application. If the law required disclosure of identities and locationsof informants to furthertest the truth of the officer's statement that there is an informantor as to what the informant related or as the informant'sreliability,we can be sure that every defendantwill 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 evidenceof probable cause apart from the informant's data. Perhaps that approachwould sharpen investigatorial techniques, but we doubt that therewould be enough talentand time to copewith crime upon that basis. Ratherwe accept thepremise that the informer is a vitalpart of society's defensivearsenal. 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), 201A.2d 39). The Court inMcCray 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 Statev. Sykes (Mont. 1983), 663P.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 toorderdisclosure. 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 withoutthe 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 searchwas overly intrusive. There isvery little evidence that police misbehavior precipitated Mr. Nygard

### 's death. Mrs. Seaman testified that she heard a struggle in the room whereMr. Nygard was seated prior tohis 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 isunsupported and provides no basis for excluding evidence.

111. Seaman contends that the lower court erred in refusing to grant hismotion for amistrial. 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 followingday,yes Idid.
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, therewas 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 objectionhere.

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 instructthe jury todisregard his answer. Seaman's counsel in moving for amistrial contended that the mention of opium violated the trial court'sorder 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 fordetermining 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. Statev. Lave (1977),174Mont. 401, 571 P.2d 97. Onlywhere 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 admissionof 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 committedby its introductionis presumed cured." Brush, 741

Thepresumption here favors findingnoprejudice 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 existsunder this issue.

IV. 

### Seaman contends that the fact that the jury took so little time in reaching averdictdemonstratesthey 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 thevalidity of verdicts. Section 25-11-102, MCA, 

### provides for investigationof jurymisconduct to reveal grounds for a new trial. Seaman has invoked neither the statute nor the rule in his claimon 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, weagree 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: ,, /'