No. 94-068

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

APPEAL FROM: District Court of the Nineteenth Judicial District,

In and for the County of Lincoln,

The Honorable Robert S. Keller, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Amy N. Guth, Public Defender's Office, Libby,

Montana

For Respondent:

Hon. Joseph Mazurek, Attorney General, Barbara

Harris, Assistant Attorney General; Scott B. Spencer

Lincoln County Attorney, Libby, Montana

Filed:

Submitted on Briefs: November 23, 1994

Decided: March 7, 1995
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal from the Nineteenth Judicial District Court,

Lincoln County, from the denial of the defendant's motions to

disclose the identity of a confidential informant and to suppress

the evidence seized pursuant to the search warrant issued on April

12, 1993. We affirm.

The following are issues on appeal:

I. Did the District Court err in denying the defendant's

motion to require disclosure of the identity of the confidential

informant who provided information set forth in the affidavit in

support of the application for a search warrant?

II. Did the District Court err in denying the defendant's

motion to suppress the evidence seized pursuant to the search

warrant in the search of her home?

FACTUAL AND PROCEDURAL BACKGROUND

In his affidavit and application for a warrant to search the

home of Becky L. Sarbaum (Sarbaum) dated April 12, 1993, Lincoln

County Sheriffs Department Detective Klint H. Gassett (Gassett)

stated that the offense of Criminal Possession with Intent to Sell,

a felony, in violation of § 45-g-103, MCA, had been committed. The

affidavit described the Sarbaum residence and the items believed to

be located on the premises, such as growing marijuana plants and

equipment, packaged marijuana and drug paraphernalia. The

affidavit set forth Gassett's experience and knowledge in drug

investigations and marijuana grow operations.

Gassett went on to state that a confidential informant, known

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to be credible and reliable, had provided him with information

about drug activities at the Sarbaum home. Gassett's affidavit

states that the confidential informant was in the Sarbaum home

approximately four times within the three months preceding his

application. During the course of that time, according to the

confidential informant, Sarbaum had grown some marijuana plants to

maturity and started some new plants. The confidential informant

stated that he had seen about 30 plants of varying sizes in the

basement of the home and under the pumphouse on the property during

different visits. The confidential informant provided this

information from his own observations at the Sarbaum residence.

The affidavit also states that Sarbaum's husband, Blaine,

told the confidential informant that he (Mr. Sarbaum) cloned

marijuana; that the plants were grown for profit; that he (Mr.

Sarbaum) planned to enlarge the growing operation; and when the

most recent plants would be ready for harvest. The affidavit noted

that the confidential informant had informed Gassett that the most

recent plants would be ready for harvest around April 12, 1993, the

time of the application for the search warrant.

In further support of his application, Gassett also provided

further information from two detectives who had been at the Sarbaum

home. Detective Bernall, who is familiar with the odor of growing

marijuana, had been at the home on February 28, 1993, on an

unrelated matter and smelled the odor of growing marijuana in the

residence. Officer Sweet had also been to the residence on two

other unrelated matters. On April 10, 1993, Sweet answered a
possible domestic abuse call at the home and even though us.

Sarbaum was no longer in the home, Mr. Sarbaum would not let the

police officer enter the home. In the fall of 1992, Sweet was at

the residence regarding an injury of one of the Sarbaum children

and Sarbaum was more concerned about getting the officer out of the

home than about the injured child.

The Lincoln County Justice of the Peace issued the search

warrant on the same day that the application was made. During the

search, marijuana, marijuana stems and stalks, grow equipment, drug

paraphernalia and weapons were seized. An information was filed on

April 27, 1993, charging Mr. and Mrs. Sarbaum with criminal

possession with intent to sell, in violation of 5 45-g-103, MCA.

(The charges against defendant's husband, Blaine Sarbaum, were

resolved and are not the subject of this opinion).

On May 21, 1993, the defendant filed a motion and supporting

brief for an order requiring disclosure of the identity of the

confidential informant. On September 24, 1993, the defendant filed

a motion and supporting brief to suppress the evidence seized in

the search of her home. On October 4, 1993, the District Court

denied the defendant's motion to disclose the identity of the

confidential informant. On December 6, 1993, the District Court

issued an order granting the defendant's motion for suppression of

the evidence seized in the search, finding the information which

supported the search warrant to be stale.

On December 9, 1993, the State filed a motion to reconsider

the court's order granting the defendant's motion to suppress based

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on our recently issued opinion in State v. Rinehart (1993), 262

Mont. 204, 864 P.2d 1219, decided December 2, 1993. The State

asserted in the motion that the "Rinehart/McAtee case stands for

the proposition that information from an informant of known

reliability is sufficient to establish probable cause." In an

order filed January 6, 1994, the District Court reconsidered its

prior decision and denied the defendant's motion to suppress.

On January 13, 1994, the defendant entered an Alford plea and

signed a plea bargain agreement, reserving the right to appeal any

pre-trial motions in the matter. Sarbaum's plea of guilty and the

plea bargain agreement were accepted by the Court on January 26,

1994. On that same day, the court dismissed the charge of criminal

possession with intent to sell, and the State filed an amended

information charging defendant with criminal possession of

dangerous drugs. Sarbaum received a two-year deferred sentence and

on January 31, 1994, she appealed the issues of the court's refusal

to require disclosure of the identity of the confidential informant

and its denial of her motion to suppress.

DISCUSSION

I. Did the District Court err in denying the defendant's

motion to require disclosure of the identity of the confidential

informant who provided information set forth in the affidavit in

support of the application for the search warrant?

The government's privilege to refuse to disclose the identity

of a confidential informant is subject to a balancing test

enunciated in Roviaro v. United States (19571, 353 U.S. 53, 77

S.Ct. 623, 1 L.Ed.2d 639. In that case the United States Supreme

Court stated:

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We believe that no fixed rule

disclosure is justifiable.

with respect to

The problem is one that calls

for balancing the public interest in protecting the flow

of information against the individual's right to prepare

his defense. Whether a proper balance renders

nondisclosure erroneous must depend on the particular

circumstances of each case, taking into consideration the

crime charged, the possible defenses, the possible

significance of the informer's testimony, and other

relevant factors.

Roviaro, 353 U.S. at 62. This Court adopted that test in State v.

Crowder (1991), 248 Mont. 169, 176, 810 P.2d 299, 303.

Furthermore, with respect to the necessity of disclosing the

identity of an informant, Rule 502, M.R.Evid., provides:

Identity of informer.

(a) Rule of privilege. The United States or a state or

subdivision thereof has a privilege to refuse to disclose

the identity of a person who has furnished information

relating to or assisting in an investigation of a

possible violation of a law.

(b) Who may claim the privilege. The privilege may be

claimed by an appropriate representative of the public

entity to which the information was furnished.

(c) Exceptions and limitations.

i2i Testimony on relevant issue. If it appears in the

case that an informer may be able to give testimony

relevant to any issue in a criminal case or to a fair

determination of a material issue on the merits in a

civil case to which a public entity is a party, and the

public entity invokes the privilege, the court shall give

the public entity an opportunity to show facts relevant

to determining whether the informer can, in fact, supply

that testimony.

Given the above authority, and based on our review of the

record in the instant case, we conclude that disclosure of the

identity of the confidential informant was properly denied. In

Crowder, we stated that the defendant must show the need for

revealing the informant's identity and that mere speculation or

conjecture that his testimony will be relevant is insufficient to

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require that his identity be revealed. Crowder, 810 P.2d at 304.

In the instant case, the defendant's attorney argued in the

July 27, 1993, hearing, that the confidential informant "may indeed

be an exculpatory witness for [Sarbauml." This is precisely the

sort of mere speculation and conjecture that was discussed in

Crowder and in State v. Babella (1989), 237 Mont. 311, 315, 772

P.2d 875, 878, and which we determined to be an insufficient basis

for requiring disclosure of an informant's identity.

Moreover, the Roviaro balancing test, under these

circumstances, weighs in favor of the nondisclosure of the identity

of the confidential informant. Roviaro, 353 U.S. at 62; Babella,

772 P.2d at 876. The State has a strong interest in protecting the

flow of information regarding the drug trade within Lincoln County.

Roviaro, 353 U.S. at 62; Babella, 772 P.2d at 876. The State has

demonstrated that this flow of information could be impaired

without the probable future services of the confidential informant.

Gassett testified that there was "very much" a risk if the

State disclosed the identity of the informant. Also, in an

affidavit by Gassett before the District Court, he stated that the

confidential informant may be in physical danger if his identity

was disclosed; that disclosure would destroy the government's

ability to use the confidential informant as a future source of

information and that he (Gassett) had reason to believe that the

informant would continue to provide information to the Sheriffs

Department. We conclude that the State, in response to Sarbaum's

request, demonstrated that disclosure of the identity of the

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confidential informant would result in a substantial risk to the

informant and/or his operational effectiveness, which, in turn,

would negatively impact the flow of information about the drug

trade in Lincoln County.

Sarbaum did not demonstrate that her right to prepare a

defense would be impaired by the nondisclosure of the confidential

informant. Roviaro, 353 U.S. at 62; Babella, 772 P.2d at 876. As

stated above, Sarbaum could only speculate that the confidential

informant might provide exculpatory information that would, in some

manner, be relevant to her case. She failed to demonstrate that

the identity of the confidential informant was essential to the

preparation of her defense. Moreover, testimony at a motions

hearing revealed that the defendant and her husband were fairly

certain as to the identity of the confidential informant.

Accordingly, they had only to subpoena the confidential informant

as a witness.

Moreover, she failed to demonstrate under Rule 502,

M.R.Evid., that, as stated above, the confidential informant could

present relevant testimony on a material issue in the case.

This rule [502] allows the government to refuse to

disclose the identity of an informant, subject to certain

exceptions. The exception applicable in this case

provides that if an informant can give testimony relevant

to any issue in a criminal case, and the government

claims the privilege, the trial court must determine if

the defendant's right to prepare his defense will be

impinged by the government's interest in protecting the

flow of information by informants. If the trial court

determines that the defendant's rights will be violated

if the informant is not identified, and the government

refuses to identify the informant, the court must dismiss

the charges against the defendant. Even before this rule

was adopted, Montana followed the same balancing test,

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which was set forth by the United States Supreme Court in

Roviaro v. United States (1959), 353 U.S. 53, 77 S.Ct.

623, 1 L.Ed.2d 639.

State v. Chapman (1984), 209 Mont. 57, 65, 679 P.Zd1210, 1215.

In the instant case, the informant did not testify nor did the

defendant demonstrate that Sarbaum's right to prepare her defense

would be impinged by the government's interest in protecting the

flow of information by the informant. Sarbaum did not show under

the Roviaro balancing test or under Rule 502, M.R.Evid., that the

informant could provide testimony on any relevant issue in the

instant case. Sarbaum provided only speculation and conjecture,

which is insufficient to warrant the disclosure of the identity of

the informant. Crowder, 810 P.2d at 304. The State's interest in

protecting the flow of information by informants does not impinge

upon Sarbaum's right to prepare her defense and accordingly, we

conclude that the District Court correctly determined that the

disclosure of the confidential informant was not mandated.

Sarbaum also argued that she was entitled to disclosure of the

confidential informant because she was "entrapped" by the law

enforcement officers. We conclude, however, that there is no

support in the record for any such claim, and we decline to address

that argument further.

We hold that the District Court did not err in denying the

defendant's motion to disclose the identity of the confidential

informant.

We note that both parties argued the applicability of § 46-15-

324(3), MCA. Section 46-15-324(3), MCA, provides that the

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existence or identity of an informant who will not be called to

testify is not required if disclosure would result in substantial

risk to the informant or his operational effectiveness and the

failure to disclose will not infringe the constitutional rights of

the accused. Although subsection (3) of the statute was in effect

prior to 1991, the Legislature amended § 46-15-324, MCA, by

deleting subsection (3) during the 1991 session. The Legislature

again amended § 46-15-324, MCA, during the 1993 session by

reinserting subsection (3).

In the instant case, the defendant filed her motion to

disclose the identity of the informant in May of 1993. The 1993

amendment to § 46-15-324, MCA, which reinserted subsection (3) into

the statute was not in effect until October of 1993. Therefore, at

the time the defendant filed her motion for disclosure, the 1991

version of the statute was in effect; this version of the statute

does not contain subsection (3) of § 46-15-324, MCA. Both parties

therefore, argue the applicability of a statute which was not in

effect at the time of the defendant's motion. We remind counsel

that it is their obligation to ensure that the statutes they cite

are in effect and are, thus, authority for the legal arguments

being made.

II. Did the District Court err in denying the defendant's

motion to suppress the evidence seized pursuant to the search

warrant in the search of her home?

The defendant also challenges the District Court's denial of

her motion to suppress evidence seized during the execution of the

search'warrant. She contends that much of the information supplied

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to the magistrate by the State was stale; that the State failed to

corroborate the confidential informant's information; and that, as

a result, the affidavit and application for the search warrant

failed to establish probable cause to issue the warrant.

The State counters that the defendant's claim that the

information in the search warrant was stale is not supported by the

facts and case law. The State also argues that the confidential

informant was reliable and credible and that information supplied

by the police officers, in addit.ion tom that supplied by the

confidential informant, demonstrated sufficient probable cause for

a warrant to issue

It is well established that the "totality of the

circumstances" test is used to determine whether probable

cause supports the issuance of a search warrant. We

review the circumstances set forth in the affidavit and

consider whether the issuing magistrate had a substantial

basis for concluding that probable cause existed.

Probable cause is established if there is a fair

probability that incriminating items will be found at the

place described in the search warrant. (Citations

omitted.)

State v. Hulbert (1994), 265 Mont. 317, 321, 877 P.2d 25, 27.

Here, the search warrant described the premises to be searched

in detail. It states that the affiant, Detective Gassett, is

trained and experienced in the detection of illegal drugs and

provides background information to support his statement that he is

knowledgeable about illegal drugs and marijuana grow operations.

The affidavit further stated that the confidential informant was

credible and reliable, had been in the home of the defendant a

number of times, had seen the marijuana grow operation, and had

spoken with the Sarbaums about the marijuana grow operation. The

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confidential informant provided very specific information about the

grow operation. Moreover, as noted in our discussion of issue I,

the affidavit contained information from two other police officers

that supported the likelihood that the Sarbaums were conducting an

illegal activity in their home

We conclude that the information provided by the confidential

informant, whom the applicant, an experienced police officer,

stated was credible and reliable, together with the observations of

the other two officers, under the totality of circumstances,

provided a substantial basis upon which the issuing magistrate

could conclude that there was a fair probability that incriminating

items would be found on the Sarbaums' premises. Hulbert, a77 P.2d

at 30.

Moreover, we also conclude that the defendant's argument that

the information in the application was stale is without merit. As

we observed in State v. Pierre (1984), 208 Mont. 430, 436-37, 678

P.2d 650, 654:

The likelihood that the evidence sought is still in

place is a function not simply of watch and calendar but

of variables that do not punch the clock: the character

of the crime (chance encounter in the night or

regenerating conspiracy?), of the thing to be seized

(perishable and easily transferable or of enduring

utility to its holder?), of the place to be searched

(mere criminal forum of convenience or secure operational

base?), etc. The observation of a half-smoked marijuana

cigarette in an ashtray at a cocktail party may well be

stale the day after the cleaning lady has been in; the

observation of the burial of a corpse in a cellar may

well not be stale three decades later. The hare and the

tortoise do not disappear at the same rate of speed.

Rinehart, 864 P.2d at 1224-25.

The affidavit in the instant case states that the confidential

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informant was in the Sarbaum home about four times in the three

months prior to the application and U [tlhe time between the first

time in the residence and the last time in the residence [was]

approximately two months." The confidential informant stated that

the most recently planted marijuana plants would be ready for

harvest around the time of the application for the search warrant.

The other police officers had been in the home in the fall of 1992,

on February 28, 1993, and on April 10, 1993.

The information provided from these dates is not too remote in

time, and the information is not stale. While some of this

information, considered individually, might be considered stale,

"[wlhen a criminal activity is continuing in nature . . more time

may elapse between the observation of the activity and the

application for the search warrant without negating probable

cause." Rinehart, 864 P.2d at 1225. When the earlier information

is combined with more recent information, the earlier information

carries greater weight in the determination of probable cause.

Rinehart, 864 P.2d at 1225. "Considering the continuous nature of

a marijuana growing operation, the information provided in the

application for the search warrant was not too stale to prohibit a

determination of probable cause under the totality of the

circumstances." Rinehart, 864 P.2d at 1225. We likewise conclude

that, here, the information in the application was not too stale to

support a determination of probable cause. See also; Hulbert, 877

P.2d at 29, (the observation of marijuana plants by a confidential

informant three and one-half weeks before the search warrant was

13
issued was not "stale" information.)

The defendant also questions the reliability of the informant.

This argument, too, is not persuasive. In Rinehart, we reiterated

that a statement in the affidavit by the affiant attesting to an

informant's past reliability is sufficient to establish the

reliability of an informant. Rinehart, 864 P.2d at 1223-24. In

fact, an officer may even rely on information about an informant's

reliability from other police officers. See State v. Seaman

(1989), 236 Mont. 466, 771 P.2d 950. The reliability of the

confidential informant in the instant case was sufficiently

established by Detective Gassett's statements attesting to the

informant's reliability and credibility.

Finally, Sarbaum's argument that the information from the

confidential informant was not sufficiently corroborated is not

well taken. "Corroboration of an informant's information through

other sources is necessary when the information is hearsay or the

informant is anonymous." Rinehart, 864 P.2d at 1224; see also

Crowder, 810 P.2d at 302. In the instant case, the confidential

informant provided information based on his own personal

observations of the grow operation in the Sarbaum home. Statements

of personal observation are not hearsay. Rinehart, 864 P.2d at

1224. In State v. Walston (1989), 236 Mont. 218, 768 P.2d 1387, we

stated that:

. . . information of a criminal activity known from

observation by a previously reliable informant, such as

we have in the present case, is sufficient to establish

the probability of criminal activity without outside

investigation and verification of the reported

information.

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Walston, 768 P.zd at 1390. Here, an informant, determined by an

experienced police officer to be credible and reliable, provided

information based on his personal observations at the Sarbaum

residence. That information was also supported by the observations

from other police officers of conduct consistent with illegal

activity at the Sarbaum residence. As stated above, under the

totality of circumstances, the affidavit and application provided

a substantial basis upon which the issuing magistrate could

conclude that there was a fair probability that incriminating items

would be found on the Sarbaum's premises.

Accordingly, we hold that the District Court

denying the defendant's motion to suppress evidence

search of the Sarbaum residence.

AFFIRMED.

We Concur:

did not err in

obtained in the

/

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