No. 86-92 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSBAILEY PETERSON, 

. /LL- p. 

Defendant and Appellant. 

APPEAL FROM: The District Court of the Ninth Judicial District, 

In and for the County of Glacier, 

The Honorable R.D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Charles M. Joslyn, Choteau, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Joe R. Roberts, Asst. Atty. General, Helena 

James C. Nelson, County Attorney, Cut Bank, Montana 

Filed: 

Submitted on Briefs: Feb. 19, 1987 

Decided: July 28, 1987 

Clerk 
Mr. Justice John Conway Harrison 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 our holding it is necessary 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 from Crimestoppers 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 

of whom was said to be the defendant. 

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 if a package had arrived for him. 

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 Justice 
of the Peace William L. Burns and signed the application for 

search warrant under oath. Justice of the Peace Burns issued 

a search warrant directing Officer Wevley to serve the 

warrant. 

Officer Wevley returned to the bus depot as the 

defendant was signing a receipt for a 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 

transported him to the police station. 

At the station Wevley read defendant his Miranda 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 another package similar to the one 

in question. 

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 in July 1985. 

He was convicted on each count and now appeals. 

Issue 1 

Did the District Court err when it denied defendant's 

motion to suppress? 

Defendant first challenges the validity of the search 

warrant pursuant to which Officer Wevley seized and searched 

the parcel of marijuana. Defendant filed a pretrial motion 

to suppress the seized marijuana on the grounds that the 

warrant was constitutionally defective. The District Court 

denied this motion. On appeal, defendant contends the 
District 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 search warrant: 

A "search warrant" is an order: 

in writing; 

(2) in the name of the state; 

(3) signed by 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 the warrant had been directed to an officer other 

than the officer who 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 a package containing "pot," but he was also the 
same officer who served the warrant 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 signed by the officer named 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 to be seized. 

Officer Wevley did not go forth on a fishing trip with 

the search warrant. He identified the particular thing to be 

searched for in his application as a package of pot. 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's motion 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.te also presented evidence 

of phone calls from Texas to Montana. 

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 

evidenced by the phone 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 to make the existence of any 

fact that is of consequence to the 

determination of the action more probable 

or less probable than it would be without 

the evidence . . . 

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 can be allowed. 

Issue 3 

Did the District Court err when it denied defendant's 

jury instruction of a lesser included offense? 

Defendant was charged with the offenses of possession of 

dangerous drugs (Count 11) in violation of S 45-9-102, MCA, 

and possession of dangerous drugs with intent to sell (Count 

I) in violation of $ 45-9-103, MCA. Both Count I and Count 

I1 were based on the same possession of contraband. 

The jury found defendant guilty on both counts, and the 

court sentenced defendant on both 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 is established by 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 instruction number 5 was refused by 

the District Court. It provided: 

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, if the evidence is sufficient to 

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 

lesser offense of Possession of 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 

guilty of either offense. 

If the evidence is such, the District Court is required 

to give 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-eversed and remanded for new trial. 

We concur: A 

Justices 
Mr. Justice William E. Hunt, Sr., concurring in part and 

dissenting in part. 

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 Constitution of the State of Montana. 

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 

search warrant was issued: 

THE STATE OF MONTANA TO RICHARD WEVLEY, 

CUT RANK 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 or parcel 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 

you may find . . . 

This warrant fails to describe with particularity the 

contraband to be 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 the particularity 

requirement lack any constitutional basis, it represents bad 

policy. 

The majority seems to base its holding on the 

combination of two factors. The first is the search warrant 

application described with particularity that which was to be 

seized. And second, the same officer who submitted the 

search warrant application executed 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 search warrant, the officer who conducted this 

search was without constitutional authority to do so. 
Yet the majority remarkably combines these two 

documents to satisfy the requirement of particularity. There 

is simply neither any factual nor legal basis for this 

conclusion. Before today, I thought it well established that 

the requirement of particularity was an express 

constitutional command, not a mere technicality. Lo- Ji 

Sales, Inc. v. New York (1979), 442 U.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 

and Massachusetts v. Sheppard (1984), 468 U.S. 981, 104 S.Ct. 

3424, 82 L.Ed.2d 737. 

The majority further bases 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 

requirement of prior judicial authority which 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, the majority has created a remarkable exception 

to the Fourth Amendment to the United States Constitution 
and to Article 11, Section 11 of the Montana Cohstitution. 

The majority ignores the fundamenta.1 constitutional 

importance of what is at stake here.