No. 86-92
INTHE SUPREME COURT OF THE STATE OF MONTANA
1987

STATE OF MONTANA,
Plaintiff and Respondent,-VSBAILEY PETERSON, . 

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Defendant and Appellant.

APPEAL FROM: TheDistrictCourtof the NinthJudicial District, Inand forthe Countyof Glacier, TheHonorableR.D. McPhillips, Judge presiding.
COUNSEL OF RECORD:
ForAppellant:
CharlesM. Joslyn, Choteau, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana Joe R. Roberts, Asst. Atty. General, Helena James C. Nelson, CountyAttorney, CutBank, Montana

Filed: Submittedon Briefs: Feb. 19, 1987
Decided: July 28, 1987

ClerkMr. Justice JohnConwayHarrison delivered.the Opinion of the Court.

This is an appeal from a jury conviction entered in the District Court of the Ninth Judicial District, in and for Glacier County. Defendant was tried and convicted of narcotics-related offenses and now appeals. We reverse and remand for new trial. Although defendant raises five issues for our review, because of ourholding it isnecessary to address only three: (I) Did the District Court err when it denied defendant's motion to suppress? (2) Did the District Court err when it admitted evidence of telephone calls allegedly occurring between defendant and his drug supplier? (3) Did the District Court err when it denied defendant's jury instruction of a lesser included offense? On April 6, 1985, the police department in Cut Bank, Montana, received an anonymous tip fromCrimestoppers that a large shipment of "pot"was due to arrive in Cut Bank later that day via the bus. The parcel was said to be arriving from Texas and was to be picked up by any of three men, one ofwhomwas said tobe thedefendant. The information from the tip was given to Officer Richard Wevley of the Cut Bank Police Department. Officer Wevley went to the bus depot where he learned that the bus
was scheduled to arrive in one hour. He also learned that the defendant had phoned the bus depot the previous day to
see ifapackage had arrived forhim. Officer Wevley then met with the county attorney to prepare an application for a search warrant to seize and search the parcel that was the subject of the anonymous tip from Crimestoppers. Officer Wevley appeared before Justiceof the Peace William L. Burns and signed the application for searchwarrant under oath. Justice of thePeace Burns issued

a search warrant directing Officer Wevley to serve the warrant. Officer Wevley returned to the bus depot as the defendantwas signinga receipt fora parcel. Defendant took possession of the parcel and placed it in his truck parked outside the depot. At that point, Wevley approached the defendant and served the search warrant. Wevley and the defendant returned to the depot where Wevley opened the parcel and found a twenty-five pound, nine ounce bundle of marijuana. Wevley placed defendant under arrest and transportedhim tothepolice station. Atthe stationWevley read defendant hisMiranda rights and the asked him if he wished to make a statement. Defendant declined, stating that he could get shot in the back for making a statement. He did mention, however, that he had recently picked up anotherpackage similar tothe one inquestion. Defendant was charged with two felonies, possession of dangerous drugs and possession of dangerous drugs with intent to sell. He plead not guilty and stood trial inJuly 1985. He was convicted on each count and now appeals.

Issue 1 Did the District Court err when it denied defendant's motion tosuppress? Defendant first challenges the validity of the search warrant pursuant towhich OfficerWevley seized and searched the parcel of marijuana. Defendant filed a pretrialmotion to suppress the seized marijuana on the grounds that the warrant was constitutionally defective. The District Court denied this motion. On appeal, defendant contends theDistrict Court erred in denying his motion to suppress for two reasons--first, the warrant was unsupported by probable
cause, and second, it failed to describe specifically what

was to be seized. Section 46-5-201,MCA,defines a searchwarrant: A "search warrant" is an order: inwriting; (2) in the name of the state; (3) signedby a judge; (4) particularly describing the thing, place, or person to be searched and the instruments, articles, or things to be seized; (5) directed to a peace officer commanding him to search for personal property and bring it before the judge.
We have reviewed the application for the search warrant and hold that it established probable cause for issuing the warrant. The warrant in this case does not describe with particularity the article to be seized. The warrant authorizes the seizure of a package or parcel and the "contraband above described," but there is not an "above described" large shipment of dangerous drugs or "pot" described in the warrant as mentioned in the application. Standing alone, the warrant would be invalid for its failure to describe with particularity the contraband to be seized. If thewarrant had been directed to an officer other than the officerwho had made and signed the application, it would be invalid. However, in this case,Officer Wevley not only signed the application,which adequately described the contraband as apackage containing "pot," but he was also thesame officerwho served thewarrant and seized the package of pot mentioned in the application. When the application for the search warrant and the search warrant are read together and when, as in this case, the application is signedby the officernamed in the warrant
as the officer directed to make service of the warrant and who did personally make such service, the documents in combination satisfy the requirement of particularly describing the thing tobe seized. Officer Wevley did not go forth on a fishing trip with the searchwarrant. He identified theparticular thing tobe searched for inhis applicationas apackage ofpot. He used the warrant to search for that particular thing,and that is what he seized. The District Court did not err in denying defendant'smotion to suppress the evidence seized.

Issue 2 Did the District Court err when it admitted evidence of telephone calls allegedly occurring between defendant and his drug supplier? The District Court admitted evidence of telephone calls from various phone numbers in Montana to Texas. The phone numbers in Montana were of defendant's mother, defendant's brother, a business and a ranch. The State asserted that defendant made the calls. The Sta.tealso presented evidence ofphone calls fromTexas toMontana. No evidence was presented to link defendant to any of the phone calls. The State contends an inference is proper that defendant had knowledge of the drug shipment as evidencedby thephone calls. Rule 402, M.R.Evid., states all relevant evidence is admissible. Rule 401,M.R.Evid., defines relevant evidence:Relevant evidence means evidence having any tendency tomake the existence ofany fact that is of consequence to the determinationof the action more probable or less probable than itwould be without the evidence


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# .. In State v. Smith (Mont. 1983), 661 P.2d 463, 465, 40 St.Rep. 494, 496, we held that knowledge may be proven by "direct evidence or by evidence of acts, declarations, or conduct of the accused from which a jury may infer knowledge." Because we are reversing this case on other grounds,we need not reach this issue. However, we will note that a proper foundation must be developed before introduction of the telephone calls canbe allowed.

Issue 3 Did the District Court err when it denied defendant's jury instructionof a lesser included offense? Defendantwas charged with the offenses ofpossession of dangerous drugs (Count 11) in violation of S 45-9-102,MCA, and possession of dangerous drugswith intent to sell (Count I) in violation of $ 45-9-103,MCA. Both Count I and Count I1werebased on the same possessionof contraband. The jury found defendant guilty onboth counts, and the court sentenceddefendant onboth counts. The State may charge defendant with more than one offense when the same transaction may establish the commission of more than one offense, § 46-11-502, MCA. However, a defendant may not be convicted of one offense if that offense is included in another. Section 46-11-502(1), MCA

# .Section 46-11-501(2)(a)

### ,MCA,provides:An offense is an "included offense" when it isestablishedby proof of the same or less than all the facts required to establish the commission of the offense charged.
The offense of criminal possession of dangerous drugs with intent to sell, S; 45-9-103, MCA, requires that each relevant element of criminal possession of dangerous drugs, § 45-9-102, MCA, be proven along with the additional element of "intent to sell." We hold that $ 45-9-102, MCA, is an included offense of § 45-9-103, MCA. Defendant's proposed instructionnumber 5 was refusedby theDistrictCourt. Itprovided: If you are not satisfied beyond a reasonable doubt that the Defendant is guilty of the offense charged, he may, however, be found guilty of any lesser offense, the commission of which is necessarily included in the offense charged, ifthe evidence is sufficientto establish his guilt of such lesser offense beyond a reasonable doubt.
The offense of Possession with Intent to Sell, Count I1 with which the Defendant is charged, necessarily includes the lesseroffense of Possessionof Dangerous Drugs, Count I.
You may find the Defendant guilty of either the offense stated in Count I or in Count 11, but not in both, or not guiltyof eitheroffense.
If the evidence is such, the District Court isrequired togive an instruction on the lesser included offense. State

v. Young (Mont. 1983), 669 P.2d 239, 242, 40 St.ReP. 14741 1478; State v. Gopher (Mont. 1981), 633 P.2d 1195, 1197, 38 St.Rep. 1521, 1524. "[Defendant] may only be convicted of the greatest included offense about which there is no reasonable doubt." Section 46-16-602, MCA.We hold the District Court committed reversible error when it denied defendant's instruction of a lesser included offense. R-eversedand remanded fornew trial.

We concur: 

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JusticesMr. Justice William E. Hunt, Sr., concurring in part and dissenting inpart.

I concur in part and dissent in part. I concur with the majority's conclusion that this case be remanded on the issue of the lesser included offense. I dissent in part because of the majority's unsupported and unwarranted intrusion into the protections afforded by the Fourth Amendment of the United States Constitution and Article 11, Section 11 of the Constitutionof the State ofMontana. The Fourth Amendment clearly provides that no warrant shall issue without "particularly describing the place to be searched, and the persons or things to be seized.'" Similarly, Article 11, Section 11 of the Montana Constitution requires that: [nlo warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized

# ... Despite these constitutional mandates, the following searchwarrantwas issued: THE STATE OF MONTANA TO RICHARD WEVLEY, CUTRANK CITY POLICE OFFICER:
A sworn application having been made before me by Richard Wevley, Cut Bank City Police, that he has reason to believe that at Treasure State News on west main street in Cut Rank, Mt. in a package orparcel addressed to any or all of the following, to wit: Baley [sic] Peterson

# ... That I am satisfied that there is probable cause to believe that the property, evidence and contraband above describded [sic] is upon and in the package or parcel at Treasure State News said parcel or package described above.You are hereby commanded to serve this warrant and to search the described Treasure State News and the above described package or parcel for the evidence, contraband and property specified and if the property, evidence and contraband is found,you are to seize it along with any other contraband, property, and evidence of crimes which youmay find

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# .. This warrant fails to describe with particularity the contraband tobe seized. Nevertheless, under today's ruling, the majority allows the State to use in its case-in-chief evidence obtained pursuant to an admittedly defective warrant. Not only does this "exception" to theparticularity requirement lack any constitutionalbasis, it representsbad policy. The majority seems to base its holding on the combination of two factors. The first is the searchwarrant applicationdescribedwith particularity thatwhich was to be seized. And second, the same officer who submitted the search warrant applicationexecuted the search. However appealing the majority's holding appears at first glance, upon review it quickly becomes apparent this holding is based upon something other than the law. The majority relies upon the fact that Officer Wevley's appl-ication for this warrant set forth with particul.arity that for which he sought authority to search. This is true but irrelevant. It is the search warrant itself, not the application, which provides the authority to conduct a search. Nowhere has it been argued that there exists any indication that the application was to be incorporated into the warrant. Without a valid authorization within the four
corners of the searchwarrant, the officerwho conducted this searchwaswithout constitutionalauthority to do so.Yet the majority remarkably combines these two documents to satisfy the requirementofparticularity. There is simply neither any factual nor legal basis for this conclusion. Before today, I thought itwell established that the requirement of particularity was an express constitutional command, not a mere technicality. Lo-Ji Sales, Inc. v. New York (1979), 442U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920; Stanford v. Texas (1965), 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431. For an excellent discussion of this entire issue, see 468 U.S. 928, 104 S.Ct. 3430, 87 L.Ed.2d 702 (Mr. Justice Brennan dissenting to United States

v. Leon (1984),468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 andMassachusettsv. Sheppard (1984),468U.S. 981, 104 S.Ct. 3424, 82L.Ed.2d 737. Themajority furtherbases its holding on the fact that the same officer both applied for the warrant and executed the search. Again, this circumstance should have no bearing

on the legal issues at hand. Our state and federal constitutions require that before a search warrant may be executed, an officer must obtain prior judicial authority from a neutral and detached magistrate. It is this requirementofprior judicialauthoritywhich was designed to protect our individual constitutional liberties by defining precisely the conditions under which governmental agents could search private property. To insure continued protection of our individual rights,we must recognize this;
we cannot rely upon the self-restaint of any governmental agency. For the sake of simple expediency, the majority has sacrificed basic constitutional protections to the lure of convicting criminals. With scant discussion and absolutely
no authority,themajority has created a remarkable exception to the Fourth Amendment to the United States Constitutionand to Article 11, Section 11 of the Montana Cohstitution. The majority ignores the fundamenta.1 constitutional importance ofwhat is at stake here.