No. 13802 

IN THE 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, Hill County, granting defendant's motion to suppress 

evidence seized in the search of his home under a search warrant. 

On August 27, 1976, Paula Kirchgasler (informant) went 

to the Havre police department to file a 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 certain Havre residents. This questioning was undertaken by 

Officer Stremcha of the Havre 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. At this time Justice of Peace Stallcop requested 

certain additions be made to the application for the search 

warrant pertaining to the alleged offense. He placed the informant 

and Officer Stremcha under oath and asked them if the statements 

included in the application were true and conducted no further 

examination into the statements allegedly made by the informant and 

made no inquiry as to her identity or the basis for her claim. 

The search warrant was issued and the search was conducted by 

Havre police. Drugs were recovered and defendant was arrested. 

An Information was filed on August 30, 1976, charging defendant with 

criminal possession of dangerous drugs with intent to sell in 

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 issuing justice 

of peace on matters which would relate to her reliability or 

credibility. 

The single issue on appeal is whether the District Court 

properly granted defendant's motion to suppress. 

The instant case involves the two pronged test as set out 

in Aguilar v. Texas, (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L ed 2d 

723 and Spinelli v. United States, (1969), 393 U.S. 410, 89 S.Ct. 

584, 21 L ed 2d 637. In his memorandum to the order suppressing 

the evidence, Judge Thomas held that the application met the 

first test of Aguilar and Spinelli in that 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 in the 

affidavit of Officer Stremcha. The record clearly establishes 

that the only information before the justice of peace was that 

contained in the 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), 155 Mont. 510, 473 P.2d 532; State v. 

Bently, (1970), 156 Mont. 129, 477 P.2d 345. 
It cannot be disputed that hearsay information may be 

considered to establish probable cause. State v. Paulson, (1975), 

167 Mont. 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 the justification for a finding of probable cause and 

the issuance of a search warrant, the two pronged test set out 

in Aguilar must be applied and satisfied: 

"* * * the magistrate must be informed of [first] 

some of the underlying 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' or his information 

'reliable' ." 378 U.S. 114. 

In the instant case the first part of the test is not 

at issue; however, the second part is at issue. The second part 

of the Aguilar-Spinelli test mandates that the existence of 

probable cause be established only through a credible informant 

with reliable information. The magistrate must be informed of 

some underlying circumstances which demonstrate that credibility 

or reliability. The affidavit must set forth the underlying 

circumstances necessary to enable the magistrate independently 

to judge the validity of the informant's conclusion and the 

affiant must support his claim that the informant was credible 

or his information reliable. Aguilar v. Texas, supra; Spinelli 

v. United States, supra; United States v. 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 

supplied by informant. In the instant case affiant states that 

he believes the informant is reliable based on the candor of her 

statements and the detailed knowledge of defendant and defenda nt ' s 
residence, which her statements contained. There were no facts 

stated to show informant was known to the officer, or that the 

officer had had any past or sufficient dealings with informant 

upon which to base a belief that the information was reliable or 

truthful. Nor does this Court have any statement of corroborative 

facts known or discovered. Here, no facts whatever are given, only 

affiant's ultimate conclusions that he beljwes informant was 

reliable. The second part of the Aguila-Spinelli test cannot 

be satisfied with statements which are at best conclusory. State 

ex rel. Townsend v. District Court, (1975), 168 Mont. 357, 361, 

The State attempted to bolster the application for search 

warrant by a personal appearance of the informant before the justice 

of peace. In State v. Thomson, (1976), 169 Mont. 158, 162, 545 

this Court held that oral testimony from an informant 

could be used to test his reliability where the affidavit was otherwise sufficient to establish probable cause. In this case, no 

test for reliability was made. No effort was made by the justice 

of peace to inquire into facts beyond 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 in the application for the search warrant to 

determine whether or not they knew what was in 

the application and that they were willing to 

swear that the statements in the application were 

the truth. 

"Q. In questioning the informant and Mr. Stremcha, 

did you seek any information out side of the face 

of the document to find probable cause? A. No. 

I merely inquired to the matters set forth in the 

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 application nor 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 she had 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 

or believable citizen. In this case, we are dealing with the 

rules pertaining to a mere "informant", not a "citizen-informant" . 

This distinction is clearly set forth by the California court in 

People v. Smith, (1976), 132 Cal.Rptr. 397, 553 P.2d 557, 560: 

"'A "citizen-informant" is a citizen who purports 

to be the victim of or to have been the witness of a 

crime who is motivated by good citizenship and acts 

openly in aid of law enforcement. * * * It is reasonable 

for police officers to act upon 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 criminal conduct. * * * Thus, experienced 

stool pigeons or persons criminally involved or disposed 

are not regarded as "citizen-informants" because they 

are generally motivated by something other than good 

citizenship. * * *' * * * The designation 'citizeninformant' is just as conclusionary as the designation 

'reliable-informant.' In either case the conclusion must 

be supported by facts stated in the affidavit." 553 P.2d 

560. 

See Aguilar 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 Stallcop of this fact. Second, the informant had contact 

with the Havre police department and the county attorney's office 
on more than ten occasions prior to August 27, 1976. Third, 

informant was a convicted felon at the time the application was 

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 

application was therefore insufficient to justify the issuance 

of a search warrant. We agree. 

The judgment of the District Court is affirmed. 

,' Justice 

We Concur: 

Chief Justice 

uJw&d M*U 

Hon. Alf e B. Coate, District 

Judge, skdng with the Court.