No. 04-856 IN THE SUPREME COURT OF THE STATE OF MONTANA 2006 MT 54

_______________________________________ STATE OF MONTANA, Plaintiff and Respondent,

v. BRIDGETTE MORSE, Defendant and Appellant.

______________________________________ APPEAL FROM: District Court of the Twelfth Judicial District, In and for the County of Hill, Cause No. DC 2003-125 The Honorable David G. Rice, Judge presiding.

COUNSEL OF RECORD: For Appellant: Daniel A. Boucher, Altman & Boucher, Havre, Montana For Respondent: Hon. Mike McGrath, Attorney General; Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana Cyndee L. Peterson, Hill County Attorney, Havre, Montana

____________________________________ Submitted on Briefs: September 28, 2005 Decided: March 14, 2006 Filed:

______________________________________ Clerk2 Justice John Warner delivered the Opinion of the Court. ¶1 Bridgette Morse (Morse) appeals from an or der of the Twelfth Judicial District Court, Hill County, denying he r motion to suppress evidence gathered from an improper search and seizure. We affirm. ¶2 We address the following issue on appeal: ¶3 Did the District Court err in finding suffici ent probable cause in the application for a search warrant to justify the search of Morse = s apartment? ¶4 On December 22, 2003, so cial worker Sheila D ugdale (Dugdale) of the Department of Public Health and Human Se rvices (DPHHS) conducted a home visit to

Morse = s apartment. Law enforcement officer s Russell Ostwalt (Ostwalt) and Peter Federspiel (Federspiel) accompanied Dugdale at her request. An anonymous call to DPHHS five days before instig ated this home visit. Th e caller had observed over 100 people stop at Morse = s apartment over the previous weekend, and reported that Morse sold drugs in the presence of her juvenile daughter. ¶5 During the fall of 2003, 1 the local Drug Task Force (T ask Force) had also received a call concerning Morse from a known person who wished to rema in anonymous. This caller had witnessed short- term traffic at Morse = s apartment and suspected Morse of selling drugs. In addition, the Task Forc e received information regarding Morse on December 17, 2003, from an anonymous in formant, who had provided reliable information before. According to this in formant, Morse distri buted drugs from her apartment.

1 Although the Task Force recei ved this call on December 13, 2003, the application for a search warrant reported this call as being received during the fall of 2003.3 ¶6 When Dugdale, Ostwalt, and Federspiel arrived at Morse = s apartment, Dugdale knocked on the door us ing a code knock that had been provided by the person who had reported Morse was selling danger ous drugs. A female voice responded to th e knock, but Dugdale could not understand what she said , and knocked again. No one inside the apartment responded to this s econd knock. After several mo re unanswered knocks on the door, Federspiel announced that it was th e police. Morse then opened the door. ¶7 As soon as they entered the apartment, they could detect a strong odor of incense. Morse took Dugdale and Feders piel around the house, and Ostw alt remained in the living room with the other people in th e apartment. In total, four people besides Morse were in the apartment, and all four had prior drug-relate d arrests. Morse also had a prior arrest for possession of drug paraphernalia. When Fede rspiel entered the bedroom, he could smell marijuana. In addition, Fede rspiel observed an empty electric digital scale box on the floor in the living room. According to Mo rse, she had received a Christmas present wrapped in the box. Federspiel asked for pe rmission to search the bedroom, but Morse would not allow such a search without a warrant. Federspiel then cleared the residence and applied for a search warrant. ¶8 In his application for a search warrant, Fe derspiel related the information provided by the two callers to the Task Force and the caller to DPHHS. He also explained the delay in being allowed to en ter the apartment, the odor of incense and marijuana, the empty electric digital scale box, and the prio r criminal involvement with drugs of all persons found in the apartment. The magi strate found probable cause and issued a warrant to search Morse’s apartment.4 ¶9 In executing the warrant, Federspiel searched Morse’s ap artment and found methamphetamine, 125.76 grams of marijuan a, 70 tablets of th e controlled drug alprazolam, a digital scale, and a box of sandwi ch bags. Federspiel then arrested Morse. ¶10 On January 5, 2004, the State charge d Morse with criminal possession of dangerous drugs with intent to distribute, criminal possession of dangerous drugs, possession of property subject to criminal fo rfeiture, endangering the welfare of a child, and criminal possession of drug paraphernalia . Morse moved to su ppress the evidence found pursuant to the search wa rrant, arguing that the search warrant application did not establish probable cause. The District Cour t held a hearing and denied the motion by written order filed on July 12, 2004. ¶11 Morse entered a plea agreemen t with the State filed on July 26, 2004 . She pled guilty to criminal possession of dangerou s drugs and criminal possession of drug paraphernalia. She reserved the ri ght to appeal the District Court = s denial of her motion to suppress. The District Court sentenced Morse on September 9, 2004, and this appeal followed. ¶12 This Court reviews a district court = s denial of a motion to suppress evidence to determine first, whether the district court = s findings of fact are clearly erroneous, and second, whether the district c ourt applied the law correctly. State v. St. Marks , 2002 MT 285, & 11, 312 Mont. 468, & 11, 59 P.3d 1113, & 11. Since the evid ence at issue was gathered pursuant to a sear ch warrant, we review whether the magistrate issuing the search warrant had a substantial basis to determine the existence of probable cause. St. Marks , & 12. In doing so, this Cour t must look solely to the informati on within the four5 corners of the search warrant application. State v. Griggs , 2001 MT 211, & 18, 306 Mont. 366, & 18, 34 P.3d 101, & 18. This review considers the A totality of the circumstances, @ rather than A each individual fact @ in the search warra nt application. State v. Beaupre , 2004 MT 300, & 37, 323 Mont. 413, & 37, 102 P.3d 504, & 37 (quoting
St. Marks , & 22). In undertaking this review, A [t]his Court pays great deference to a magistrate = s determination that probable cause ex ists for the issuan ce of a search warrant and we will draw all reasonable in ferences possible to support the issuing magistrate's determination of probable cause. @ Hauge v. Dist. Ct. , 2001 MT 255, & 21, 307 Mont. 195, & 21, 36 P.3d 947, & 21. ¶13 Morse contends that the two telephone ca lls to the Task Force and the telephone call to DPHHS required furthe r corroboration, and Federspiel = s observations at

Morse = s apartment were insufficien t to corroborate the telephone calls. After noting that Federspiel smelled incense and marijuana, observed the empty electric digital scale box, and identified the four guests as having previously been arrested for unidentified drug offenses, Morse asserts that only the odor of marijuana relates to criminal activity. She then asserts that our previous holding in State v. Olson (1979), 180 Mont. 151, 589 P.2d 663, that a search warrant based solely on an officer = s purported smell of marijuana smoke does not establish probab le cause, controls. Thus, the warrant must be quashed and the evidence gathered must be suppressed. ¶14 The State concedes that the three tele phone calls required further corroboration pursuant to our decision in State v. Reesman , 2000 MT 243, 301 Mont . 408, 10 P.3d 83. Still, the State argues that thes e calls are of value in the pr obable cause determination.6 The State asserts that the criminal backgr ound checks performed by Federspiel on Morse and the other four people in the apartment also constituted informa tion corroborating the telephone calls. Additionally, the State argues that the empty digital scale box and smell of marijuana further corrobo rated the telephone calls. ¶15 As the State concedes that the telephone calls were not sufficient to establish probable cause, we turn to the question of wh ether the search warrant application, considered as a whole, was sufficient to es tablish the required probable cause to support the search warrant. We note that, while the telephone calls require further corroboration, they still have some probative value in determining probable cause. St. Marks , ¶ 41. ¶16 Morse is incorrect that th e only evidence of criminal activity described in the search warrant application was the odor of ma rijuana. Morse seems to argue that, in considering the criminal records of those in her apartment, the fa ilure to identify the specific offenses they had been convicted of prevents their criminal backgrounds from corroborating the telephone calls. However, th is Court has previously explained that A [a]nother routine piece of in formation indicating police co rroboration is criminal background checks. @ Reesman , & 45. ¶17 The empty electric digital scale box, cons idered in the context of the search warrant application, also contributes to a de termination of probable cause. The possible possession of an electric digital scale does not necessarily suggest criminal activity; however, this Court has previously explaine d that information revealing human conduct which is suspicious when view ed in conjunction with incrim inating information received from an informant, corroborat es the information receiv ed from the informant. See Griggs , & 50. In the present case, all three telephone calls suggested that Morse was7 distributing drugs, and an electric digital scal e would certainly be us eful in carrying out such distribution. As such, the presence of the empty electric digital scale box, which suggested that Morse owned a sophisticated scale to weigh drugs, contributed to a determination of probable cause. ¶18 The odor of marijuana also contributes to a determination of probable cause. Morse correctly points out that the odor of marijuana alone does not constitute probable

cause. Olson , 180 Mont. at 155, 589 P.2d at 665. However, the present case involves other facts that support a determination of probable cause, including the three telephone calls, Morse’s criminal history with drugs, the criminal backgrounds of the other four people in the apartment, and the empty electr ic digital scale box. When considering the odor of marijuana along with these other f acts, we conclude that the search warrant application established probab le cause, and the District C ourt did not err in denying

Morse = s motion to suppress. ¶19 Affirmed. /S/ JOHN WARNER

We Concur: /S/ KARLA M. GRAY /S/ PATRICIA COTTER /S/ BRIAN MORRIS /S/ JIM RICE