NO. 94-013

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

STATE OF MONTANA,

Plaintiff and Respondent,

-vsDIANE MARIE FELAND,

Defendant and Appellant.

APPEAL FROM: District Court of the Ninth Judicial District,

In and for the County of Toole,

The Honorable John Warner, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

James A. Johnson; Johnson & Hunt,

Shelby, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Cregg Coughlin, Assistant Attorney General,

Helena, Montana

Merle J. Raph, Toole County Attorney,

Shelby, Montana

Submitted on Briefs: May 19, 1994

Decided: October 13, 1994

Filed:
Justice Karla M. Gray delivered the Opinion of the Court.

Diane Feland was convicted on guilty pleas to two drug-related

charges in the Ninth Judicial District Court, Toole County. She

appeals the District Court's denial of her motion to suppress all

evidence resulting from an allegedly invalid search warrant, urging

that the court erred in concluding that she was not entitled to an

evidentiary hearing regarding the search warrant. We affirm.

In November, 1992, Toole County Deputy Sheriff Glenn Kurkowski

(Kurkowski) met with a confidential informant who told Kurkowski he

had recently visited the home of Diane Feland (Feland). The

informant stated that, while at Feland's home, he was shown a

plastic bag purportedly containing marijuana, a dragon-shaped pipe,

rolling papers, and other items of drug paraphernalia stored in a

lamp stand located in the living room. The informant also

described a marijuana plant growing in the living room and said he

had been told another plant was growing in the first-floor bedroom.

Finally, the informant said that Feland's daughter told him Feland

recently had purchased $300 worth of marijuana.

Based on this information, Kurkowski applied for and received

a search warrant. Containers of marijuana, items of drug

paraphernalia, and a grow light were found during the search of

Feland's home.

Based on the items seized during the search and Feland's

admissions that she had drugs and paraphernalia on the premises and

smoked the marijuana, the Toole County Attorney moved for leave to

file an information. The District Court granted the motion and the

2
County Attorney filed an information charging Feland with felony

possession of dangerous drugs and misdemeanor possession of drug

paraphernalia. Feland pled not guilty to both charges.

Feland then challenged the validity of the search warrant and

moved to suppress all evidence and admissions obtained via that

warrant. She asserted that certain of the informant's statements

contained in Kurkowskits application for the search warrant

(warrant application) were knowingly or intentionally false or made

with reckless disregard for the truth. She argued that if the

false material were excised from the application, insufficient

information remained to establish probable cause for the issuance

of the search warrant. The District Court denied Feland's motion

to suppress without holding an evidentiary hearing.

Feland subsequently entered, and the court accepted, guilty

pleas to the offenses charged. The District Court imposed a twoyear deferred sentence on the felony offense and a six-month

suspended sentence on the misdemeanor offense. The court's

judgment authorizes Feland to appeal the denial of her motion to

suppress pursuant to § 46-12-204(3), MCA. Feland appeals.

In denying Feland's motion, the District Court concluded that

she failed to make a substantial preliminary showing that false

information was contained in the warrant application and, thus,

that she was not entitled to an evidentiary hearing on the veracity

of the statements in the warrant application. Feland contends that

she made the showing necessary to entitle her to an evidentiary

hearing. We review a district court's denial of an evidentiary

3
hearing for a clear abuse of discretion. State v. Wilson (

218 Mont. 359, 363, 708 P.2d 270, 272.

1985),

The Fourth Amendment to the United States Constitution

specifically provides that "no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation . . . . " The

assumption underlying the issuance of a search warrant is that the

factual showing establishing probable cause must be lt'truthful' in

the sense that the information put forth [in the warrant

application] is believed or appropriately accepted by the affiant

as true." Franks v. Delaware (1978), 438 U.S. 154, 165, 98 S.Ct.

2674, 2681, 57 L.Ed.2d 667, 678.

In Franks, the Supreme Court adopted a procedure for

challenging the truthfulness of factual statements contained in an

application for a search warrant. An evidentiary hearing on such

a challenge is not required unless the defendant first makes a

"substantial preliminary showing that a false statement knowingly

and intentionally, or with reckless disregard for the truth, was

included by the affiant.in the warrant [application]," and that the

false statement was necessary to a finding of probable cause.

Franks, 438 U.S. at 155-56.

We adopted the Franks procedure for challenging the validity

of a warrant affidavit in State v. Sykes (1983), 194 Mont. 14, 20,

663 P.2d 691, 695. A substantial preliminary showing of a

deliberate falsehood or reckless disregard for the truth requires

more than a conclusory statement. State v. Mosley (1993), 260

Mont. 109, 116, 860 P.2d 69, 73 (citation omitted). The defendant

4
must make an offer of proof containing "affidavits, sworn

statements or other reliable witness statements which tend to prove

that false statements in the application were deliberately made."

Mosley, 860 P.2d at 73 (citation omitted). We emphasized in

Mosley, as had the Supreme Court in Franks, that "[i]nformation

contained in a warrant application will be deemed truthful when the

information put forth is believed or appropriately accepted @y

affiant." Moslev, 860 P.2d at 73 (citation omitted) (emphasis

added).

Feland challenged the veracity of the informant's statements

set forth by Kurkowski in the warrant application in a brief

submitted to the District Court; no affidavits or sworn statements

were appended. With regard to the informant's statements

describing marijuana and drug paraphernalia stored in a lamp stand,

a marijuana plant growing in the living room, and an alleged

discussion with her daughter about a marijuana purchase, she

asserts that she or a member of her family is prepared to deny the

truth of each of those statements. On that basis, Feland argues

that the brief constitutes a sufficient preliminary showing to

entitle her to an evidentiary hearing under m. We disagree.

Feland's challenge to the informant's statements is similar to

the general challenge presented by the defendant in Svkes. There,

the defendant produced an affidavit by his wife stating that she

was at home and that no stranger or person "likely to have seen the

marijuana" was in the house the day preceding the search. Sykes,

663 P.2d at 692-93. We observed that although the affidavit

5
alleged that no strangers were present, it did not preclude an

acquaintance who saw the marijuana and reported it to the police.

Svkes, 663 P.2d at 695. We concluded that the defendant's

affidavit was insufficient to make a substantial preliminary

showing that the warrant affidavit contained false information.

Svkes, 663 P.2d at 695-96.

Here, Feland's challenge relates to the alleged falsity of the

confidential informant's statements and contains no affidavits,

sworn witness testimony, or other reliable witness testimony. She

relies on unsupported, general denials of the informant's

statements. As in Svkes, we conclude that Feland's challenge does

not constitute the substantial preliminary showing of falsity or

reckless disregard for the truth required to entitle her to an

evidentiary hearing.

More importantly, however, Feland's focus on the alleged

falsity of the informant's statements does not address the primary

factor required for a substantial preliminary showing under Franks

and Moslev, which is that the affiant--deliberately or with

reckless disregard for the truth--included false statements in the

warrant application. Feland did not allege, much less make any

showing in support of such an allegation, that a single one of

Kurkowski's statements was deliberately false or made by him with

reckless disregard for the truth. We hold, therefore, that the

District Court did not abuse its discretion in denying Feland an

evidentiary hearing on the veracity of the information contained in

the warrant application and in denying her motion to suppress.

6
Affirmed.

We concur*

7
Justice Terry N. Trieweiler specially concurring.

I concur with the result of the majority's opinion. However,

I do not agree with all that is said by the majority in that

opinion.

Specifically, for the reasons stated in my dissent to Statev.

I%S@ (1993), 260 Mont. 109, 860 P.2d 69, I would not mechanically

follow the U.S. Supreme Court's decision in Franksv.Delaware (1978),

438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667.

In the determination of what information should be excised

from an application for a search warrant before considering whether

there was probable cause to issue the search warrant, I would

excise all false information. I fail to see why a search is

reasonable when based totally on misrepresentations simply because

the person whose privacy has been invaded cannot prove a dishonest

intent by the person who sought the warrant. As stated by Judge

Frankel in UnitedStatesv. Halsey (S.D.N.Y. 1966), 257 F. Supp. 1002,

1005, affd, Docket No. 31369 (CA2, June 12, 1967) (unreported), and

quoted with approval in Franks:

[W]hen the Fourth Amendment demands a factual showing

sufficient to comprise 'probable cause,' the obvious

assumption is that there will be a truthful showing.

Franks, 438 U.S. at 164-65 (alteration in original). The Court went

on to state that

[t]his does not mean "truthful" in the sense that every

fact recited in the warrant affidavit is necessarily

correct, for probable cause may be founded upon hearsay

and upon information received from informants, as well as

upon information within the affiant's own knowledge that

8
sometimes must be garnered hastily. But surely it is to

be "truthful" in the sense that the information put

forward is believed or appropriately accepted by the

affiant as true.

Frank-s, 438 U.S. at 165.

Based on Montanans' independent state right to be free from

unreasonable searches and seizures provided for in Article II,

Section 11, of the Montana Constitution, I would adopt the

following variation of the rule established in Franks for

challenging the veracity of a sworn statement used by police to

secure a search warrant: When a defendant makes a substantial

preliminary showing that false information was included in the

application or affidavit offered in support of a search warrant, a

hearing must be held at the defendant's request. At that hearing,

the defendant bears the burden of proving by a preponderance of the

evidence that the information offered is untrue. The untruthful

information must be excised from the application, and a

determination must be made whether there is sufficient probable

cause without the excised information. If not, the search warrant

must be voided and the fruits of the search excluded.

I agree with the Franks decision, and with this Court's

decision in Mosley, that to mandate an evidentiary hearing, the

challenger's attack must be based on more than conclusory

statements made by counsel, but instead must take the form of an

affidavit or some other reliable form of proof.

9
I also agree with this Court's conclusion in Statev.Sykes (1983),

194 Mont. 14, 20, 663 P.2d 691, 695, that:

Where the affidavits contain factual inaccuracies that do

not go to the integrity of the affidavit because they are

of only peripheral relevance to the showing of probable

cause, the search warrant remains valid.

I concur with the majority's decision to affirm the District

Court for two reasons. First, defendant's attack on the State's

search warrant in this case was not supported by affidavits or

other reliable information, but merely by counsel's conclusory

statements. Second, even if all the statements and the application

were excised, except the statement that the State's informant had

seen a plastic bag of marijuana being stored in a lamp stand in the

living room, there was still sufficient probable cause to issue the

search warrant. Defendant disputes that the plastic bag of

marijuana'was stored in a lamp stand. She contends it was actually

stored in an end table. However, to the extent that the

distinction between a lamp stand and an end table is a factual

inaccuracy, it did not go to the integrity of the affidavit and was

of peripheral relevance to the showing of probable cause.

Therefore, while I decline to follow lock-step with the U.S.

Supreme Court's erosion of Fourth Amendment rights in Franks, I

concur with the majority's decision to affirm the District Court.

10
October 13, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

James A. Johnson

JOHNSON & HUNT

P.O. Box 731

Shelby, MT 59474

Merle J. Raph

TOOLE COUNTY ATTORNEY

P. 0. Box 730

Shelby, MT 59474

Hon. Joseph P. Mazurek, Attorney General

Cregg W. Coughlin, Assistant

Justice Building

Helena, MT 59620

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA