No

No. 98-644

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 290

297 Mont.60

990 P.2d 180

STATE OF MONTANA,

Plaintiff and Respondent,

v.

DEAN SEADER,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial 

District,

In and for the County of Yellowstone,

The Honorable G. Todd Baugh, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

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Vernon E. Woodward, Lance G. Lundvall, Attorneys at Law,

Billings, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders,

Assistant Attorney General; Helena, Montana

Dennis Paxinos, Yellowstone County Attorney; Shawn Cosgrove,

Deputy Yellowstone County Attorney, Billings, Montana

Submitted on Briefs: August 26, 1999

Decided: November 30, 1999

Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

1. ¶ Dean Seader (Seader) pled guilty to one count of felony theft after the District 

Court for the Thirteenth Judicial District, Yellowstone County, denied Seader's 

motion to suppress evidence of a stolen all-terrain vehicle (ATV) obtained in a 

search of his van. In pleading guilty, Seader reserved the right to appeal the District 

Court's ruling on his motion to suppress. Seader now appeals the denial of his 

motion to suppress. 

2. ¶ We reverse and remand.

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Issues

3. ¶ Assuming, without so holding, that the search warrant for Seader’s van was 

supported by probable cause, the sole issue on appeal is whether the portion of the 

search warrant authorizing the seizure of "anything else of value furnished or 

intended to be furnished in the exchange for the evidence or contraband relating to 

the use, sale or manufacture of dangerous drugs" rendered the search warrant 

overbroad.

Standard of Review

4. ¶ The standard of review of a district court's denial of a motion to suppress is 

whether the court's interpretation and application of the law is correct. State v. 

Hubbel (1997), 286 Mont. 200, 207, 951 P.2d 971, 975 (citation omitted). We 

review a district court’s legal conclusion on whether or not a search warrant is 

overbroad de novo. See, e.g., United States v. Spilotro (9th Cir. 1986), 800 F.2d 959, 

963.

Factual and Procedural Background

5. ¶ On August 23, 1997, a clerk from a motel in Billings, Montana telephoned the 

Billings Police Department to report possible drug-related activity involving a van 

parked in the motel parking lot. The clerk said that two housekeepers had informed 

her that they observed a male removing a panel from behind the van’s front seat and 

taking out some baggies of what the housekeepers suspected might be drugs. The 

housekeepers then reportedly saw the individual placing a suitcase in the 

compartment and reattaching the panel with an electric drill.

6. ¶ Several Billings police officers proceeded to the motel and one of them spoke to 

the clerk. The officers located Seader’s van by its license plate number, but did not 

locate Seader on the motel premises. The officers then called an officer and his K-9 

to the motel to perform a "dog sniff" of Seader’s van. The dog alerted on Seader’s 

van and the officers impounded the vehicle.

7. ¶ Approximately two weeks later, a Billings police officer applied for a warrant to 

search Seader’s van. The search warrant application stated that the police had 

probable cause to believe the offense of Criminal Possession of Dangerous Drugs 

had been committed and that drugs and drug-related evidence would be found in 

Seader’s van. A search warrant was subsequently issued. The warrant in part 

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authorized the seizure of "proceeds of drug sales whether in monies, precious 

metals, property or anything else of value furnished or intended to be furnished in 

the exchange for the evidence or contraband relating to the use, sale or manufacture 

of dangerous drugs." 

8. ¶ Several officers of the Billings Police Department executed the search warrant. 

The search yielded three documents, one baggie with powder residue, four rolls of 

3" x 3" plastic bags, and a nailer. The officers also discovered an ATV covered with 

a tarpaulin. They removed the ATV from Seader’s van to check its Vehicle 

Identification Number (VIN), discovered the ATV had been stolen, and seized it. 

Seader was charged with felony theft by information.

9. ¶ Seader entered a plea of not guilty and moved to suppress the evidence of the 

stolen ATV. The District Court denied Seader’s motion following a hearing. Seader 

then pled guilty to the charge of felony theft pursuant to a plea agreement, reserving 

the right to appeal the denial of his motion to suppress. The District Court accepted 

the plea agreement and imposed a three-year deferred sentence.

Discussion

10. ¶ Did the portion of the search warrant authorizing the seizure of "anything else of 

value furnished or intended to be furnished in the exchange for the evidence or 

contraband relating to the use, sale or manufacture of dangerous drugs" render the 

search warrant overbroad?

11. ¶ The Fourth Amendment to the United States Constitution and Article II, Section 

11 of the Montana Constitution require in part that a search warrant particularly 

describe the items it authorizes to be seized. Additionally, § 46-5-221(4), MCA, 

states in relevant part that "[a] judge shall issue a search warrant to a person upon 

application . . . made under oath or affirmation, that . . . particularly describes who 

or what is to be seized." This requirement of particularity serves to prevent a 

"general, exploratory rummaging in a person’s belongings." Coolidge v. New 

Hampshire (1971), 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564, 583. " 

'As to what is to be taken, nothing is left to the discretion of the officer executing the 

warrant.' " Stanford v. Texas (1965), 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.

Ed.2d 431, 437 (quoting Marron v. United States (1927), 275 U.S. 192, 196, 48 S.

Ct. 74, 76, 72 L.Ed. 231, 237). 

12. ¶ Observers have frequently remarked that the passage from Marron cannot be read 

literally because few warrants would survive such a stringent rule. See, e.g., State v. 

Perrone (Wash. 1992), 834 P.2d 611, 615. See also 2 Wayne R. LaFave, Search and 

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Seizure: A Treatise on the Fourth Amendment, § 4.6(a) (3d ed. 1996). In Perrone, 

the court found that "the warrant must enable the searcher to reasonably ascertain 

and identify the things which are authorized to be searched." 834 P.2d at 615 

(citations omitted). "The common theme of all descriptions of the particularity 

standard is that the warrant must allow the executing officer to distinguish between 

items that may and may not be seized." United States v. Leary (10th Cir. 1988), 846 

F.2d 592, 600 n. 12. 

13. ¶ The specificity required of a search warrant may vary depending on the 

circumstances of the case and the type of items involved. Generic categories or 

general descriptions of items are not necessarily invalid if a more precise description 

of the items to be seized is not possible. See United States v. Spilotro (9th Cir. 

1986), 800 F.2d 959, 963 (citations omitted); Perrone, 834 P.2d at 616 (citations 

omitted). 

14. ¶ In the present case, the District Court found that the search warrant for Seader’s 

van was not overbroad. The court found that describing this search warrant as 

overbroad would be "elevating form over substance" and hypertechnical. We 

disagree. The warrant gave the officers unbridled discretion to engage in precisely 

what the particularity requirement seeks to prevent--a general, exploratory 

rummaging in Seader’s belongings. Everything was left to the officers’ discretion. 

The following colloquy transpired at the hearing on Seader’s motion to suppress 

between Seader’s counsel and one of the officers who executed the warrant:

Q. Can you conceive of anything which would not be covered by that? 

A. You mean "anything of value?" 

Q. Yeah. Can you conceive of anything which wouldn’t be covered by that 

 language? 

A. Not really, no.

This warrant gave the executing officers no guidance in distinguishing between items that 

could and could not be seized, as amply illustrated by their seizure of an ATV under a 

search warrant setting forth probable cause for the offense of criminal possession of 

dangerous drugs. 

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¶15 While a general description of items subject to seizure may be valid under some 

circumstances, the State’s position that the nature of this case prohibited a more specific 

description of items subject to seizure is untenable. The objectionable language in this 

warrant authorizing the seizure of "anything else of value . . ." is not a generic category or 

general description, but a catchall phrase that encompasses everything conceivable. The 

State argues that the nature of the offense involves the exchange of money or other items 

of value and that it would be impossible for law enforcement officers to know the precise 

identity of such items. We note however that Seader was not suspected of committing the 

offense of criminal distribution of drugs or criminal possession with intent to distribute 

nor did the search warrant application contain any information that Seader was a suspected 

drug dealer. We do not accept the State’s proposition that probable cause for the offense of 

possession of drugs justifies a search for "anything of value furnished or intended to be 

furnished in the exchange for the evidence of contraband relating to the use, sale or 

manufacture of dangerous drugs." We refuse to compromise Fourth Amendment rights 

and those guaranteed by Article II, Section 11 of the Montana Constitution for the sake of 

efficient law enforcement in drug investigations. 

¶16 We conclude that the search warrant for Seader’s van was not sufficiently particular 

with respect to the items subject to seizure to meet the requirement of particularity under 

the United States and the Montana Constitutions. The phrase "anything else of value" 

rendered the warrant facially overbroad and all evidence seized pursuant to it was 

inadmissible and should have been suppressed. 

¶17 Seader further argues that the seizure of the ATV was not authorized under the plain 

view exception to the warrant requirement. We do not reach this issue because the State 

does not rely on the plain view doctrine and, in fact, agrees with Seader that it is not 

applicable to these facts.

¶18 We reverse and remand for proceedings consistent with this opinion.

/S/ W. WILLIAM LEAPHART

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We concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER 

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