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No. 99-334 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2001 MT 250 

STATE OF MONTANA, 

Plaintiff/Respondent,

v.

DUANE DAVID GRAY,

Defendant/Appellant.

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow,

The Honorable James E. Purcell, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Jack H. Morris, Jardine & Morris, Whitehall, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; Pamela P. Collins,

Assistant Attorney General, Helena, Montana

Robert M. McCarthy, Silver Bow County Attorney; Brad Newman,

Deputy County Attorney, Butte, Montana

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Submitted on Briefs: June 21, 2001 

Decided: December 6, 2001 Filed:

__________________________________________

Clerk

Justice Jim Regnier delivered the Opinion of the Court.

¶1 Duane David Gray appeals from an order issued by the Second Judicial District Court, 

Silver Bow County, which denied his motion to suppress evidence seized pursuant to a 

search warrant. We affirm.

¶2 The sole issue raised on appeal is whether the District Court erred in determining there 

was sufficient probable cause to support the issuance of a search warrant.

BACKGROUND

¶3 In November 1997 a confidential informant ("CI") contacted Detective Jerry Stradinger 

of the Butte-Silver Bow Law Enforcement Agency to report a suspected marijuana "grow" 

operation. Stradinger noted that CI had previously provided law enforcement officers with 

reliable information.

¶4 CI told Stradinger that Duane Gray was conducting the alleged operation at 1741 Grand 

Avenue in Butte, Montana. According to CI, her live-in companion, Troy Wallace, built a 

room in the upper portion of the Grand residence to facilitate Gray's grow operation. 

Construction on the grow room had allegedly been completed within the last three months. 

CI indicated that the room was partitioned to accommodate varying stages of marijuana 

plant growth and, to gain access, one must locate a concealed button or latch. CI stated 

that she had no personal knowledge of the operation but learned all of this information 

from Wallace. However, CI did inform Stradinger that she had seen marijuana buds and 

leaves which Gray purportedly produced in his grow operation. Stradinger noted that 

Wallace had a history of drug related offenses.

¶5 Based on CI's allegations, law enforcement officers surveyed the Grand residence's 

exterior. This survey confirmed CI's description of the property. Officers observed what 

they believed to be four new air vents and a new chimney on the roof. Based on their 

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experience, the officers believed these vents were consistent with the ventilation 

requirements of grow operations. Utility and law enforcement records established that 

Gray did in fact reside at the Grand residence. The officers also observed Gray's brother, a 

known drug user, frequent the residence.

¶6 After obtaining an investigative subpoena, the officers examined the Grand residence's 

utility records. A Montana Power Company representative advised the officers of an 

unusual surge in electrical power usage at the property in October 1997. The residence's 

power records indicated a relatively constant power consumption from June 1997 to 

September 1997. However, the power consumption increased by 376 kilowatt hours in 

October 1997. Again, based on their experience, the officers felt this October power 

consumption was consistent with the power demands of a grow operation.

¶7 With this information, on November 19, 1997, Stradinger applied for and obtained a 

search warrant for the Grand residence. A search of the residence revealed 77 marijuana 

plants, marijuana growing equipment, and drug paraphernalia. The search confirmed 

some, but not all, of the information CI disclosed to Stradinger about the residence. Based 

on the search results, Stradinger arrested Gray. Gray was subsequently charged by 

information with one count of criminal production or manufacture of dangerous drugs 

(Count I), one count of criminal possession of drug paraphernalia (Count II), one count of 

use or possession of property subject to criminal forfeiture (Count III), and one count of 

resisting arrest (Count IV).

¶8 On December 17, 1997, Gray appeared with counsel and entered pleas of not guilty to 

each of the four counts. On July 16, 1998, Gray filed a motion to suppress the seized 

evidence on the grounds that the search warrant lacked sufficient probable cause to justify 

the search. After a hearing on August 18, 1998, the District Court denied Gray's motion to 

suppress.

¶9 In March 1999, pursuant to a plea agreement, Gray pled guilty to Counts I and III and 

the State dismissed Counts II and IV of the Information. On April 22, 1999, the District 

Court sentenced Gray to three years in the Montana Department of Corrections (three 

years for each count to run concurrently), fined Gray $1,000 on Count I, and ordered 

Gray's property forfeited to the State of Montana on Count III. The District Court 

suspended the custodial portion of Gray's sentence with conditions and stayed execution of 

the sentence pending Gray's appeal. Gray appeals the District Court's denial of his motion 

to suppress.

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STANDARD OF REVIEW

¶10 In reviewing a district court's denial of a motion to suppress evidence, we determine 

whether the court's findings of fact are clearly erroneous and whether the court's 

interpretation and application of the law is correct. State v. Reesman, 2000 MT 243, ¶ 18, 

301 Mont. 408, ¶ 18, 10 P.3d 83, ¶ 18.

¶11 We must look solely to the information given to the impartial magistrate and to the 

four corners of the search warrant application. State v. Crowder (1991), 248 Mont. 169, 

173, 810 P.2d 299, 302. In so doing, we must refuse to review a search warrant application 

sentence by sentence; rather, we must examine the entire affidavit to determine whether 

the issuing magistrate had a substantial basis to conclude that probable cause existed. State 

v. Hulbert (1994), 265 Mont. 317, 323, 877 P.2d 25, 29.

DISCUSSION

¶12 Did the District Court err in determining there was sufficient probable cause to support 

the issuance of a search warrant?

¶13 An application for a search warrant must state facts sufficient to show probable cause 

for the issuance of the warrant. Reesman, ¶ 24. To address the issue of probable cause for 

issuance of a warrant, this Court follows the "totality of the circumstances" test set forth in 

Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. Reesman, ¶ 24. 

Under this test, to determine whether a search warrant should be issued, the judge 

evaluates the facts asserted within the four corners of the application and makes a 

practical, common-sense decision as to whether there is a fair probability that 

incriminating items will be found in the place to which entry is sought. Reesman, ¶ 24. In 

our review, it is critical that we pay great deference and draw every reasonable inference 

possible to support a magistrate's determination that probable cause exists. Reesman, ¶ 19.

¶14 Gray contends the search warrant application lacked the necessary information to 

ascertain probable cause sufficient to justify a search of Gray's residence. To support this 

proposition, Gray argues the search warrant application contained unreliable hearsay, 

insufficient detail, and unsupported conclusory statements.

¶15 Gray points out that CI obtained all of her information about the operation from 

Wallace. Thus, Gray argues that simply alluding to CI's reliability in the search warrant 

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application was insufficient because CI's reliability provided no insight into the credibility 

and veracity of the hearsay information disclosed by Wallace.

¶16 As mentioned above, the record indicates that CI informed Stradinger that Gray's 

residence had a concealed room in the upper portion of the residence which was 

partitioned to accommodate varying stages of marijuana growth. However, CI had no 

personal knowledge of this concealed room. She acquired this information from her live-in 

companion, Wallace. CI did view marijuana buds and leaves which Gray purportedly 

produced from his Grand residence. Again, Wallace provided the information about the 

marijuana's origin.

¶17 In Reesman, we reiterated that corroboration of an informant's information through 

other sources is necessary when the information is hearsay or the informant is anonymous. 

Reesman, ¶ 28. Clearly, CI was not an anonymous informant. The search warrant 

application states that CI had provided substantiated information in the past which implies 

Stradinger was aware of CI's identity. However, since CI had no personal knowledge of 

Gray's operation, the information CI provided to Stradinger constituted hearsay. 

Therefore, Stradinger was obligated to corroborate CI's information through independent 

investigation. Nevertheless, CI's information may be considered with other factors in 

determining probable cause under the totality of the circumstances test. See State v. 

Rinehart (1993), 262 Mont. 204, 211, 864 P.2d 1219, 1223. We now turn our attention to 

the officers' independent investigation. 

¶18 The search warrant application cites several attempts by law enforcement officers to 

corroborate CI's information. One method of corroboration included verifying the physical 

description of Gray and the Grand residence. In State v. Griggs, 2001 MT 211, ¶ 50, 306 

Mont. 366, ¶ 50, ___ P.3d ___, ¶ 50, we recently held that "adequate law enforcement 

investigation," when required, means that the subsequent corroboration of an informant's 

tip must reveal indicia of human conduct that becomes suspicious when viewed in 

conjunction with the incriminating information received from the informant concerning a 

suspect's particular criminal activity.

¶19 In Griggs, an anonymous caller phoned detectives to inform them of an illegal 

mushroom growing operation conducted in Griggs's home. The anonymous caller claimed 

to have personal knowledge of the operation and provided the detectives with a 

description and address of the property, a physical description of Griggs, a description of 

the vehicle driven by Griggs, and Griggs's history of military service as a "sharpshooter." 

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The detectives confirmed all of this information through records checks and observation of 

the home's exterior. Based on that information, the detectives obtained a search warrant 

and subsequently arrested Griggs for drug related offenses. Griggs filed a motion to 

suppress the evidence and the district court granted his motion. We affirmed the district 

court and articulated the necessity that "innocent" non-criminal activity or evidence 

subjected to further corroboration by officers ripens into suspicious behavior in light of the 

informant's "tip" concerning criminal activity. Griggs, ¶ 44. In Griggs, "none of the 

instances of subsequent police investigation served to supply the magistrate with any 

indicia of human conduct even remotely associated with the criminal activity alleged by 

the anonymous informant." Griggs, ¶ 51.

¶20 Here, verifying the physical description and Gray's occupation of the Grand residence 

provided the same innocuous confirmation as that contemplated in Griggs. While this 

information may be important for investigative identification, it provided no indicia of 

suspicious human conduct to substantiate CI's allegations. Therefore, we must look for 

further police investigation to satisfy the probable cause requirement for the issuance of a 

search warrant.

¶21 Even ignoring the corroborated innocuous information, the search warrant application 

presented sufficient corroboration to support probable cause. The four corners of the 

application presented to the magistrate stated that: (1) Wallace had a criminal history 

involving dangerous drugs; (2) officers observed Gray's brother, a "known drug user," 

frequent the residence; (3) the Grand residence had four new air vents and a new pipe or 

chimney which, based on Stradinger's experience and training, were consistent with the 

ventilation requirements of a grow operation; and (4) the utility records for October 1997 

revealed an unusual surge in electrical power usage as compared to the previous four 

months.

¶22 On appeal, Gray engages in a technical dissection of the search warrant application 

suggesting that this Court make various assumptions about the evidence presented to the 

magistrate. See State v. Oleson, 1998 MT 130, ¶ 12, 289 Mont. 139, ¶ 12, 959 P.2d 503, ¶ 

12. Gray urges us to accept his offer of seemingly innocent explanations for the suspicious 

conduct. See Oleson, ¶ 12. We decline to do so.

¶23 Gray contends that the references to his brother and the air vents in the search warrant 

application indicate no illegal conduct as they are consistent with everyday activity. Gray 

attached an affidavit to his motion to suppress in which the affiant stated the air vents had 

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been installed approximately ten years ago to comply with Uniform Building Code 

specifications. However, after hearing testimony in contemplation of Gray's motion to 

suppress, the District Court found that "a reasonable and prudent investigator could 

assume that the vents were of recent origin." Further, in his reply brief filed on his own 

behalf, Gray asserts that his brother's criminal record reveals mere traffic violations and no 

indication of the "known drug user" status to which Detective Stradinger referred. Both of 

Gray's allegations allude to false information or incorrect inference in the search warrant 

application.

¶24 When a defendant challenges the veracity of information in a search warrant 

application, the defendant must make a substantial preliminary showing that the 

application or affidavit in support of the search warrant included false information. State v. 

Worrall, 1999 MT 55, ¶ 32, 293 Mont. 439, ¶ 32, 976 P.2d 968, ¶ 32. If the defendant 

makes such a showing, then a hearing must be held wherein the defendant must prove, by 

a preponderance of the evidence, that the information is untrue. Worrall, ¶ 32. If proven 

untrue, then the information must be excised from the application and a determination 

must be made whether there is sufficient probable cause without the excised information. 

Worrall, ¶ 32.

¶25 As previously mentioned, Gray did attach an affidavit to his motion to suppress which 

challenged the veracity of Stradinger's observations regarding the air vents. Gray's motion 

makes no mention of his brother's criminal record. In finding that a reasonable and prudent 

investigator could assume that the vents were of recent origin, the District Court impliedly 

found Stradinger's testimony more credible than Gray's affiant. The District Court was in 

the best position to judge the credibility of these witnesses and we will not interfere with 

that determination. See Worrall, ¶ 50. While Gray reiterates the affiant's position on 

appeal, he does not challenge the District Court's finding or ask this Court to excise this 

information from the four corners of the search warrant application. Therefore, the 

magistrate properly considered these factors in evaluating probable cause.

¶26 Next, Gray argues the magistrate should not have considered the utility records in 

issuing a search warrant. Gray insists that the references to his residential power 

consumption in the search warrant application contained insufficient detail as well as 

conclusory statements. To support his insufficient detail argument, Gray cites State v. 

Hook (1992), 255 Mont. 2, 839 P.2d 1274, and State v. Kaluza (1995), 272 Mont. 404, 901 

P.2d 107.

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¶27 In Hook, detectives arrested the defendant following a search of his cabin (pursuant to 

a warrant) which revealed marijuana plants, growing equipment, and drug paraphernalia. 

Hook filed a motion to suppress the evidence, claiming insufficient corroboration of an 

anonymous tip, and the district court granted the motion. As part of the detective's 

independent investigation, he obtained power usage bills for Hook's residence. The 

detective summarized his power usage findings in the search warrant application. In the 

application the detective provided: the basis for his expertise in growing operations 

(twelve prior marijuana grow investigations), detailed information about Hook's power 

usage for the previous five months, Hook's times of residence, previous power usage by 

former occupants, normal residential usage, and comparisons as to these facts both 

specifically and generally. Based on that and other law enforcement corroboration, we 

reversed the district court. While Hook provides a guidepost for future utility record 

investigations, it does not require a finding of all of the factors mentioned therein to 

establish probable cause for the issuance of a search warrant. 

¶28 In Kaluza, the search warrant application stated the officer had training and experience 

in investigating indoor marijuana grow operations and was aware that marijuana grow 

operations consumed large amounts of electricity. The officer subpoenaed utility records 

and included in the application a Montana Power Company employee's opinion that the 

residence exhibited abnormally high levels of electricity consumption during all seasons, 

particularly since the residence was heated with natural gas. The officer attached a graph 

to the application illustrating the residence's power usage over the previous two years. We 

decided that the Kaluza application contained power usage information decidedly inferior 

to that in Hook both qualitatively and quantitatively. Kaluza, 272 Mont. at 409, 901 P.2d 

at 110. Since the application contained no basis for the officer and employee's conclusory 

statements or detailed comparisons with average and previous resident's power usage, we 

concluded that the search warrant application did not establish probable cause for the 

issuance of a search warrant under the totality of the circumstances test. Kaluza, 272 

Mont. at 409-10, 901 P.2d at 110.

¶29 The search warrant application at bar contained the following information: (1) electric 

power consumption at the Grand residence appeared relatively constant between June and 

September 1997; (2) the residence used considerably more electricity (376 kwh more) in 

October 1997 as compared to the previous four months; (3) a Montana Power Company 

employee advised officers that the "spike" or increased power consumption in October 

1997 was unusual; and (4) that based on the detective's experience, marijuana grow 

operations require increased electrical power usage over and above usual residential power 

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needs. The distinguishing factor in this application is the comparison of the October power 

usage to that of the previous four months. This comparison revealed to Stradinger and the 

Montana Power Company employee an unusual acute phenomenon as opposed to the 

consistently high two-year utility records examined in Kaluza. This information properly 

assisted the magistrate in determining whether the warrant application was supported by 

probable cause.

¶30 Finally, Gray postulates that the search warrant application contained unsubstantiated 

conclusory statements contrary to our holding in State v. Wilson (1992), 254 Mont. 317, 

837 P.2d 1346. In Wilson, we stated that "conclusory statements will not provide 

substantial basis to conclude that probable cause existed to issue a search warrant." 

Wilson, 254 Mont. at 320, 837 P.2d at 1348. Gray argues the statements about the 

residence's power usage, illegal ventilation purpose of the "new" vents and chimney, and 

inference of illegal conduct surrounding Gray's brother's visits to the residence constitute 

unqualified conclusory statements.

¶31 Gray's reliance on Wilson is misplaced. In Wilson, the magistrate issued a search 

warrant for a residence which resulted in the defendant's arrest for cultivating a marijuana 

growing operation. The defendant filed a motion to suppress which the district court 

denied. We reversed, in part, on the grounds that the search warrant contained conclusory 

statements regarding the utility records for the residence. The search warrant simply stated 

that the defendant's power bills reflected a power use "consistent with that of a grow 

operation." The application contained no data from the records or any information 

concerning the detective's experience in analyzing power usage records.

¶32 Here, Stradinger premised both of his ventilation and power usage observations on his 

training and experience. At a minimum, this is distinguishable from the bare assertions 

imparted in Wilson. As the United States Supreme Court pointed out in Gates:

The [probable cause] process does not deal with hard certainties, but with 

probabilities. Long before the law of probabilities was articulated as such, practical 

people formulated certain common-sense conclusions about human behavior; jurors 

as factfinders are permitted to do the same-and so are law enforcement officers. 

Finally, the evidence thus collected must be seen and weighed not in terms of library 

analysis by scholars, but as understood by those versed in the field of law 

enforcement.

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Gates, 462 U.S. at 231-32, 103 S.Ct. at 2328-29, 76 L.Ed.2d at 544. At some point we must lend 

credence to the judgment of law enforcement officers whose training and experience invoke commonsense conclusions about human behavior. So long as officers provide reasonable justifications for their 

conclusions, we will not disturb a finding of probable cause for the issuance of a search warrant.

¶33 In summary, the reliable confidential informant's hearsay information was 

corroborated by independent police investigation. Wallace had a past criminal history 

involving illegal drugs. The officers observed Gray's brother, a known drug user, frequent 

the residence. Investigators represented in the warrant application that new air vents and a 

new pipe or chimney had apparently been installed which were consistent with the 

ventilation requirements of a grow operation. Utility records disclosed a surge or spike in 

electrical use which was consistent with a suspected grow operation. The subsequent 

corroboration revealed "indicia of human conduct that becomes suspicious when viewed 

in conjunction with the incriminating information received from the informant concerning 

a suspect's particular criminal activity." See Griggs, ¶ 50. When evaluating the four 

corners of the search warrant application, in light of the totality of the circumstances test, 

the magistrate and District Court properly concluded that probable cause existed for the 

issuance of a search warrant.

¶34 Affirmed.

/S/ JIM REGNIER

We Concur:

/S/ KARLA M. GRAY

/S/ PATRICIA COTTER

/S/ TERRY N. TRIEWEILER

/S/ W. WILLIAM LEAPHART

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