No. 13802 INTHE SUPREME COURT OF THE STATE OF MONTANA 1978

THE STATE OF MONTANA, Plaintiff and Appellant,
-vsWILLIAM LEISTIKO, Defendant and Respondent.

For Appellant: Hon. Mike Greely, Attorney General, Helena, Montana Allen B. Chronister, Assistant Attorney General,

argued, Helena, Montana Ronald W. Smith, County Attorney, argued, Havre,

Montana For Respondent: Morrison, Ettien and Barron, Havre, Montana Robert Morrison argued, Havre, Montana

Submitted: March 10, 1978 

## - 1978 Decided: ---- Filed: 

### 3 

## '978

### Mr. Justice Gene 

### B. Daly delivered the Opinion of the Court: The State of Montana brings this appeal pursuant to section 95-2403, 

### K.C.M. 1947, from the order of the District Court, 

### HillCounty, granting defendant's motion to suppress evidence seized in the search of hishome under a searchwarrant. On August 

### 27, 1976, Paula Kirchgasler (informant) went to the Havre police department to filea complaint concerning
an assault against her that occurred the previous night. The alleged assailant was a third party, not the present defendant. During the course of questioning concerning the assault the informant revealed information concerning drug use and possession by certainHavre residents. This questioning was undertaken by Officer Stremcha of theHavre police department. As a result of this discussion and the information revealed by the informant,
an application for a search warrant was prepared seeking authorization to search a residence occupied by defendant. Officer Stremcha and the informant went before Justice of Peace Stallcop. Atthis time Justice of Peace Stallcop requested certain additionsbe made tothe application for the search warrant pertaining tothe alleged offense. He placed the informant and Officer Stremcha under oath and asked them if the statements included inthe application were true and conducted no further examination into the statements allegedly made by the informant and made no inquiry as toher identity or the basis for her claim. The searchwarrant was issued and the searchwas conducted by Havre police. Drugs were recovered and defendant was arrested. An Information was filedon August 

### 30, 1976, charging defendant with criminal possession of dangerous drugs with intent to sellin violation of section 54-133.1, R.C.M. 1947.On January 24, 1977, a motion to suppress evidence was filed on behalf of defendant and hearing was held before Hon. B. W. Thomas on February 16, 1977. On April 5, 

### 1977, the court granted the motion to suppress. There was no showing that 

### anv examination was made of the informant before the issuingjustice of peace on matters which would relate toher reliability or credibility. The single issue on appeal 

### iswhether theDistrict Court properly granted defendant's motion to suppress. The instant case involves the two pronged test as setout inAguilar v. Texas, (1964), 378 U.S. 108, 84 S.Ct. 1509, 12

### L ed 2d 723 and Spinelliv. United States, (1969), 393 

### U.S. 410, 89 S.Ct. 584, 21

### L ed 2d 637. Inhismemorandum to the order suppressing the evidence, Judge Thomas held that the applicationmet the firsttest of Aguilar and Spinelli inthat the affidavit contained "some of the underlying circumstances from which the informant concluded that the narcotics were where [slhe claimed they were." However, the affidavit did not meet the second test in that 

### it did not contain sufficient facts from which a judge could "assess the credibility of the informant or the reliability of her information.'' Although the informant appeared personally before Justice of Peace Stallcop, no information was contributed toward the determination of probable cause, other than that contained inthe affidavit of Officer Stremcha. The record clearly establishes that the only information before thejustice of peace was that contained inthe statement of facts given by Officer Stremcha in his affidavit in support of the search warrant. Our inquiry must therefore be limited to the four corners of the affidavit. Petition of Gray, (1970), 155Mont. 510, 473 P.2d 532; Statev. Bently, (1970), 156Mont. 129, 477 P.2d 345.

### It cannot be disputed that hearsay information may be considered toestablishprobable cause. Statev. Paulson, (1975), 167Mont. 310, 538 P.2d 339; Draper v. United States, (1959), 358 U.S. 307, 79 S.Ct. 329, 3 

### L ed 2d 327. But when karsay information forms thejustification for a finding of probable cause and the issuance of a search warrant, the two pronged test setout inAguilar must be applied and satisfied: 

# "*** the magistrate must be informed of [first] some of theunderlying circumstances from which the informant concluded that the narcotics were where he claimed they were, andand]some of the underlying circumstances from/the officer concluded that the informant

# *** was 'credible' orhis information 'reliable'

# ." 378 U.S. 114. In the instant case the firstpart of the test isnot atissue; however, the second part 

### is atissue. The second part of theAguilar-Spinelli testmandates that the existence of probable causebe established only through a credible informant with reliable information. The magistrate must be informed of
some underlying circumstances which demonstrate that credibility
orreliability. The affidavit must set forth theunderlying circumstances necessary to enable the magistrate independently tojudge the validity of the informant's conclusion and the affiant must support his claim that the informant was credible
orhis information reliable. Aguilar v. Texas, supra; Spinelli


### v. United States, supra; United Statesv. Goldstein, (9th 

### Cir.

The affidavit of Officer Stremcha, who was not present
on August 23, 1976, when the informant allegedly entered defendant's residence and saw the contraband drugs, was based on information suppliedby informant. Inthe instant case affiant states that he believes the informant isreliable based on the candor of her statements and the detailed knowledge of defendant and defendant

## 'sresidence, which her statements contained. There were no facts stated to show informant was known to the officer, or that the officerhad had any past or sufficient dealingswith informant upon which tobase a belief that the information was reliable or truthful. Nor does this Court have any statement of corroborative facts known or discovered. Here, no factswhatever aregiven, only affiant's ultimate conclusions that he beljwes informant was reliable. The second part of theAguila-Spinelli test cannot be satisfied with statements which are atbest conclusory. State
ex rel. Townsend v. District Court, (1975), 168Mont. 357, 

### 361,

The State attempted tobolster the application for search warrant by a personal appearance of the informant before thejustice of peace. In Statev. Thomson, (1976), 169Mont. 158, 162, 545 this Court held that oral testimony from an informant could be used to testhis reliabilitywhere the affidavit was otherwise sufficient to establish probable cause. In this case, no test for reliability was made. No effortwas made by the justice of peace to inquire into factsbeyond the statements appearing in the application. The following testimony during the hearing on the motion to suppress evidence reveals Justice of Peace stallcop's statements: 

### "A. [I]asked them, [Stremcha and informant], questions concerning the statements that were made inthe application for the searchwarrant to determine whether or not they knew what was in the application and that they were willing to swear that the statements inthe application were the truth.
"Q. Inquestioning the informant and 

### Mr. Stremcha, did you seek any informationoutside of the face of the document to find probable cause? 

### A. No. 

### I merely inquired to the matters set forth inthe application.

### "Q. Do you recall any specific questions that you asked her relative to the substance of the application and the facts that were set forth? A. No. 

### I don't recall specific questions.'' Neither the applicationnor the questions asked by Justice of Peace Stallcop satisfy the requirements for establishing justifiable reliance on the statements of informant. No evidence
was offered that in the past shehad given accurate information of criminal activity. No evidence was presented by the police which would indicate that the information supplied was accurate. No attempt was made to establish the informant as an upstanding
orbelievable citizen. In this case, we aredealing with the rules pertaining to a mere "informant", not a "citizen-informant"

# . This distinctionis clearly set forthby the California court in People v. Smith, (1976), 132 Cal.Rptr. 397, 553 P.2d 557, 560: "'A 

### "citizen-informant" is a citizenwho purports tobe thevictim of or tohave been the witness of a crime who ismotivated by good citizenship and acts openly in aid of law enforcement.

# * ** It 

### is reasonable forpolice officers toactupon the reports of such an observer of criminal activity.

# *

# ** A 

### "citizen-informant" 

### is distinguished from a mere informer who gives a tip to law enforcement officers that a person is engaged in the course of criminalconduct. 

# *** Thus, experienced stoolpigeons orpersons criminally involved or disposed arenot regarded as "citizen-informants" because they are generallymotivated by something other than good citizenship. 

# ***'

# *** The designation 'citizeninformant' isjust as conclusionary as the designation 'reliable-informant.' In eithercase the conclusion must be supported by facts stated inthe affidavit." 553 P.2d 560. SeeAguilar v. Texas supra. The record here reveals the informant clearly did not qualify as a 

### "citizen-informant"

# . First,the affiant police officer had had prior contact with informant, but did not advise Justice of Peace Stallcopof this fact. Second, the informant had contact with theHavre police department and the county attorney's officeon more than ten occasions prior toAugust 27, 1976. Third, informant was a convicted felon atthe time the applicationwas made and believed the police were aware of that fact. Fourth, three felony charges had been made against informant prior to August 27, 1976. The record before Justice of Peace Stallcop contained nothing by which he could independently judge the reliability of the information. The District Court held the essential facts
were not present before Justice of Peace Stallcop and the applicationwas therefore insufficient tojustify the issuance of a searchwarrant. We agree. The judgment of the District Court isaffirmed.

,' Justice

We Concur:

Chief Justice


# uJw&d

# M*U Hon. Alf e B. Coate, District Judge, skdngwith the Court.