No. 86-018 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsMATT WILLIAM CRAIN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane G. Barz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Honorable Mike Greely, Attorney General, Helena Montana; 

Kathy Seeley, Assistant Attorney General, Helena Montana 

For Respondent : 

Skedd, Ashely, McCabe, Weingartner and Graveley; 

J. Mayo Ashley, Helena, Montana 

Submitted: June 12, 1986 

Decided: September 9, 1986 

Filed: SE? 9 . 1986 
Mr. Justice John Conway 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 case was tried 

to a jury in the Thirteenth Judicial District 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 search warrant was issued for the purpose 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 search warrant, and in this case neither the 

Gates test nor the two-pronged Aguilar-Spinelli test was met. 

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, 42 St.Rep. 981, 983; State v. 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 search warrant. State v. OINeill, supra, 679 P.2d at 764, 

41 St.Rep. at 423; State v. Jensen, supra, 704 P.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 to use his common sense to evaluate 

the information in the affidavit in determining whether 

probable cause exists to issue a warrant. Aguilar-Spinnelli 

forces the magistrates to engage in a "technical dissection 

of informant's tips, [causing undue attention to be] focused 

on isolated issues that cannot sensibly be divorced from the 

other facts presented to the magistrate." Gates, supra, 462 

U.S. at 234, 103 S.Ct. at 2330, 76 L.Ed.2d at 545-546. Gates 

allows balancing. 

The probable cause requirement for the issue of a search 

warrant is found in the Fourth Amendment to the United States 

Constitution: ". . . 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. . . No 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, or without probable cause, supported by oath or 

affirmation reduced to writing." When a search warrant has 

been issued, the determination of probable cause must be made 

solely from the information given 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; State v. 

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 facts were 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 information was not being provided for revenge or 

retaliation, but because he was concerned about distribution 

of dangerous drugs. Information which is motivated 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 corroborate much of 

his information by verifying the name, address, and vehicle 

of the person named as being involved in drug dealing. The 

informant also provided essentially correct information as to 

future actions of a third party. For example, an unknown 

person from Texas was to transport narcotics from Texas to 
Billings and make contact with a person in Billings. The 

Texas connection would stay in a Billings motel. Although 

this information alone might not establish probable cause for 

issuance of a warrant, under the totality of the 

circumstances test, it does. 

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 

registered was not the person to whom the car was 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 consistent with innocent behavior, 

when all of the information contained in the application is 

considered in its totality, these details are indicative of 

individuals involved in illegal drug transactions. A citizen 

informant's tip, meeting with contacts, registration in a 

motel under a fictitious name, listing a non-existent 

employer and a non-existent vehicle, and failure to leave the 

room, indicate there was contraband in the room. 

Consequently, these non-criminal acts could well form part of 

the basis upon which probable cause is based. Gates, supra, 

462 U.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), 177 Mont. 280, 581 P.2d 1205. We affirm the 

District Court's decision not to exclude the evidence, and 

affirm the conviction. 

We concur