No. 86-018 IN THE SUPREME COURT OF THE STATEOF MONTANA 1986

STATE OF MONTANA, Plaintiffand Respondent,
-vsMATT WILLIAM CRAIN, Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth JudicialDistrict, In and for the County ofYellowstone, The Honorable Diane G. Barz,Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: Honorable Mike Greely,Attorney General, HelenaMontana; Kathy Seeley,Assistant Attorney General, HelenaMontana
For Respondent: Skedd,Ashely,McCabe,Weingartner and Graveley; J. Mayo Ashley, Helena,Montana

Submitted: June 12, 1986 Decided: September 9,1986

Filed: 

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### 1986Mr. Justice JohnConway Harrison delivered the Opinion of the Court. This is an appeal from the conviction on one count of possession of dangerous drugs with intent to sell, and one count of possession of dangerous drugs. The casewas tried to a jury in the Thirteenth JudicialDistrict in and for the County of Yellowstone, Montana. Defendant was sentenced to twenty years in the State Prison at Deer Lodge on the first count and five years in the State Prison on the second count,with the sentences to run concurrently. We affirm. A searchwarrantwas issued for thepurpose of searching the motel room of defendant, Matt William Crain. During the search, cocaine, marijuana, drug paraphernalia, cash, and records were seized. Crain later moved to suppress all the evidence seized, contending the application failed to set forth sufficient facts to establish probable cause for issuance of a search warrant. In essence he argues application of the "totality of the circumstances" test in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 637, should not be applied to determine probable
cause to issue a searchwarrant,and in this caseneither the Gates test nor the two-prongedAguilar-Spinellitestwasmet. See 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. We use this opportunity to dispel any doubt Crain may have as to our position with regard to the use of the Gates "totality of the circumstances" test in determining sufficiency of the evidence to issue a search warrant. See State v. O'Neill (Mont. 1984), 679 P.2d 760, 764, 41 St.Rep. 420, 424; State 

### v. Hendrickson (Mont. 1985), 701 P.2d 1368,1371,42St.Rep. 981, 983; Statev. Jensen (Mont. 1985), 704 P.2d 45, 47, 42 St.Rep. 1191, 1194. In Hendrickson, supra, we said: "[ilt completely replaces the more stringent, two-pronged Aguilar-Spinelli test." We find no reason to abandon use of the Gates test for the more stringent Aguilar-Spinelli test. Probability of criminal activity, not a prima facie showing of criminal activity, is all that is necessary for a magistrate to issue
a searchwarrant. Statev. OINeill,supra, 679 P.2d at 764, 41 St.Rep. at 423; Statev. Jensen, supra, 704P.2d at 47, 42

Because evidence sufficient to establish probable cause for issuance of a search warrant is significantly less than evidence required to support a conviction, the issuing magistrate should be free touse his common sense to evaluate the information in the affidavit in determining whether probable cause exists to issue awarrant. Aguilar-Spinnelli forces the magistrates to engage in a "technical dissection of informant's tips, [causingundue attention to be] focused
on isolated issues that cannot sensibly be divorced from the other facts presented to themagistrate." Gates, supra, 462 U.S. at 234, 103 S.Ct. at 2330, 76 L.Ed.2d at 545-546. Gates allowsbalancing. Theprobable cause requirement for the issue of a search warrant is found in the Fourth Amendment to the United States Constitution: 

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. . no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched,and person or things to be seized." Art. 11, Section 11 of the Montana State Constitution says: It. 

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# . No warrant to search any place, or seize any person or thing shall issue withoutdescribing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing." When a searchwarrant has been issued,the determinationofprobable causemust be made solely from the informationgiven to the impartial magistrate and from the four corners of the application. State 

### v. O'Neill, supra, 679 P.2d at 764, 41 St.Rep. at 423; Statev. Isom (1982), 196 Mont. 330, 342, 641 P.2d 417, 423; Thomson
v. Onstad (1979), 182 Mont. 119, 122, 594 P.2d 1137, 1139. In the instant case the following factswere considered by the magistrate. 

### A concerned citizen who wished to remain anonymous placed a unsolicited telephone call to the Yellowstone County Sheriff's Department with information pertaining to the distribution of dangerous drugs within the county near Billings. Probable cause to issue a search warrant may be based on the tip of a confidential informant. State v. Paschke (1974), 165 Mont. 231, 234, 527 P.2d 569, 571. His informationwas not being provided for revenge or retaliation,but because he was concerned about distribution of dangerous drugs. Information which ismotivated by good citizenship is accepted as reliable. State

### v. Sharp (Mont. 1985), 702 P.2d 959, 962; State 

### v. Kelly (Mont. 1983), 668 P.2d 1032, 1043, 40 St.Rep 1400, 1411. He agreed to meet with law enforcement officials at his home, so his identity was known to them. Investigating officers were able to corroboratemuch of his informationby verifying the name, address, and vehicle of the person named as being involved in drug dealing. The informant alsoprovided essentially correct information as to future actions of a third party. For example, an unknown person from Texas was to transport narcotics from Texas toBillings and make contact with a person in Billings. The Texas connection would stay in a Billings motel. Although this informationalonemight not establishprobable cause for issuance of a warrant, under the totality of the circumstancestest, itdoes. Additionally,much of the information in the application
was gathered solely by the investigators. By checking with motel personnel they were able to determine the person registeredwasnot theperson towhom the carwas registered; he listed the car as an Oldsmobile when it was a Cadillac, and listed himself as a representative of a fictitious business firm in Colorado. He refused maid service and made
numerous long distance telephone calls. He made connection with a person the informant said existed. He never left the
room for any length of time and on at least two occasions when he did leave the room, his Billings contact stayed in the room. While many of the individual details listed in the application also might be consistentwith innocentbehavior, when all of the information contained in the application is considered in its totality, these details are indicative of individuals involved in illegaldrug transactions. A citizen informant's tip, meeting with contacts, registration in a motel under a fictitious name, listing a non-existent employer and anon-existent vehicle, and failure to leave the room, indicate there was contraband in the room. Consequently, thesenon-criminal acts couldwell form part of the basis upon which probable cause isbased. Gates, supra, 462U.S. at 243,n.13, 103 S.Ct. at 2335,n.13, 76 L.Ed.2d at 552,n.13.There is sufficient information in the application for a magistrate to determine there was a probability drugs and drug records would be found in Crain's room. That is all that need be shown to establish probable cause. State v. McKenzie (1978),177Mont. 280, 581 P.2d 1205. We affirm the District Court's decision not to exclude the evidence, and affirm the conviction.

We concur