No. 12221 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 72 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

LAWRENCE KAZOR NANOFF, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable R. J. Nelson, Judge presiding. 

Counsel of Record: 

For Appellant : 

Berger, Anderson, Sinclair and Murphy, Billings, 

Montana. 

Arnold A. Berger argued, Billings, Montana. 

For Respondent : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana. 

J. C. Weingartner, Deputy Attorney General, argued, 

Helena, Montana. 

J. Fred Bourdeau, County Attorney, Great Falls, Montana. 

Michael T. Greely, Deputy County Attorney, argued, 

Great Falls, Montana. 

Submitted : September 19, 1972 

Decided : NOV - 9 1972 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from the district court of the eighth 

judicial district, county of Cascade, Defendant, Lawrence 

Kazor Nanoff, was convicted of receiving stolen property. 

Approximately one month prior to August 12, 1971, an unidentified informant notified Dectective Jack L. Macek of the 

Great Falls Police Department that defendant was in possession 

of some stolen property, specifically, some guns taken in a 

burglary at Valier, Montana. No action was taken against 

defendant until August 12, 1971. On that date, a Mrs. Edwin 

Olsen called the Great Falls Police Department to report that 

she had been swindled out of $14,000. She gave a description 

of the swindler, which Detective Macek thought resembled that 

of defendant. Based on this description, Detective Macek and 

another officer went to the defendant's residence and asked 

to talk with him, Defendant allowed the police to enter his 

residence and upon entering the police saw in the living room 

four apparently new television sets and some ste~oequipment. 

The police then brought defendant to the police station to 

check out his story as to the reported swindle of Mrs. Olsen. 

Based on the information received from the informant that 

defendant had stolen guns and on the personal observation of 

the television sets and stereo equipment, the police sought a 

search warrant covering defendant's residence. Detective Macek 

testified before the presiding judge that the police department 

had a description of guns taken from the burglary in Valier, 

and also a list of other property taken from around the state, 

which included televisions and stereo equipment. The judge 

issued the warrant for the guns particularly and, if finding 

any of those guns, the police could then take any of the items 

they found which were on their lists. 
Upon arriving at defendant's residence, the police seized 

a quantity of guns and ammunition, plus the tel-evisions and 

stereo equipment. Defendant was charged and convicted of 

receiving stolen property and sentenced to ten years in the 

Montana state prison, with all but five years suspended, 

Defendant enumerates numerous errors on appeal. We will 

discuss the issue of the search warrant---whether there was 

probable cause for its issuance and if it was particular enough 

to meet statutory requirements. A motion to suppress the 

evidence seized was made, a hearing had, and the trial judge 

denied the motion. Here, denial of the motion to suppress is 

the determinative issue, 

Section 95-704, R.C.M. 1947, details when a search warrant 

may be issued and what it must contain: 

I1 Any judge may issue a search warrant upon the 

written application of any person that an offense 

has been committed, made under oath or affirmation 

before him which: 

"(a) States facts sufficient to show probable 

cause for issuance of the warrant, 

"(b) Particularly describes the place or things 

to be searched, and 

"(c) Particularly describes the things to be 

seized. 11 

The statute is clear, it requires that there must be sufficient 

facts to show probable cause to issue the warrant, that the 

warrant be particular as to the place to be searched, and 

particular as to the things to be seized. 

The question here is whether this warrant meets Montana's 

statutory requirements. We first consider Detective Macek's 

deposition given prior to the issuance of the warrant. In 

the deposition, he gave these answers to questions asked by 

the judge : 

"Judge Nelson: Do you have a description of the guns 

taken out of Valier? 

"Officer Macek: Yes we have a description over at the 
station, Judge. 

"Judge Nelson: Do you know what kind of guns you 

would be looking for? 

"Officer Macek: Yes, 

"Judge Nelson: Do you have a list on the stolen 

guns you would be looking for? Do you have a report 

on stolen TV's and stereos? 

"Officer Macek: I would think, Judge, that these 

TV'S came from out of town * * *. 

"Judge Nelson: The guns came from the Valier burglary 

added). 

After this testimony, a warrant was issued and signed by 

the judge, which in pertinent part, read: 

"PROOF BY COMPLAINT, AFFIDAVIT AND DEPOSITION, having 

been made this date before me by ARTHUR G. MATTEUCCI, 

Deputy County Attorney in and for the County of Cascade, 

State of Montana, that there are located certain guns, 

stolen in a Valier burglary and television sets and 

stereos stolen out ak town located at the residence at 

4024 Ella Avenue, front apartment, Great Falls, Montana. 

See Deposition on file herein for further details. I I 

(Emphasis added) 

At a hearing on suppression of the evidence, Detective 

Macek testified; this time stating that there was no burglary 

in Valier. It is clear from this later testimony that there 

was no list of any guns taken from a burglary in Valier, 

Montana. It may be true that the police had a list of guns 

stolen from small towns outside of Great Falls, but that is 

not what Detective Macek testified to at the time evidence 

was given for the issuance of a warrant. The judge specifically 

asked him if he had such a list, and he said "~es". The judge 

then told him he could have a warrant for those guns, and 

if the guns were found, meaning the guns on the list, then the 

officer could also take the television sets and stereos, We 

do not know, from the record, what particular guns the officer 

had authority to seize. The particular guns were not listed 

on the warrant; the warrant says to check the deposition; the 

deposition says the list is at the police station. Here, the 
particular list of guns was not placed in the warranL, or 

anywhere else. A warrant cannot simply state "certain guns", 

as this warrant did, and meet statutory requirements. It is 

not an unreasonable burden to require that such a list be 

produced and placed in the record. 

It is clear that erroneous information was given to the 

district judge, and that this information provided the evidence 

upon which the warrant was issued. We cannot uphold warrants 

which are not based on probable cause, and probable cause 

cannot be established by the use of incorrect information. 

The only basis for this warrant was upon the pretext of looking 

for stolen guns. It was not issued because the officers saw 

four television sets and the stereo equipment. The district 

judge stated: "You may have a search warrant. Particularly 

for these guns, and if you find the guns or any of them, I 

think you are safe in taking the TV's and stereos so that you 

I1 can check them out. There is no basis for an assertion that 

the television sets and stereo equipment established probable 

cause for issuance of the warrant. 

From all the facts appearing in the record, it is apparant 

the warrant was not based or issued on probable cause, since 

the testimony given to support the warrant was incorrect, 

therefore the items seized under the power of the warrant should 

have been suppressed. 

The state urges State v. Quigg, 155 Mont. 119, 126, 130,131, 

467 P,2d 692, as support for its position that the search 

warrant was drawn with sufficient particularity. A review 

of Quigg should demonstrate the distinction between these cases. 

In wig& a search warrant was approved which allowed the 

p~~lice to seize: 

"Any .22 caliber pistol, a gold wristwatch with 

expansion band or any other property or evidence 

they might discover that may connect to the demise 

of Lee Robhins 9: 9; *If, 
appeal, this Court stated: 

"+; +C a determination of particular description 

necessary to meet statutory and constitutional 

requirements may be made only in view of the facts 

and circumstances of the particular case. JC * -ic 

I1 In the context, and under the facts and circumstances then known to the law enforcement officers, 

the language is not, in our view, language that 

would be considered 'general'. The deceased had 

been robbed before slain, his automobile stolen 

and burglarized. Exactly what was taken and with 

detailed exactness, only the deceased and the 

criminal or criminals involved knew; but, papers, 

money, and a gold watch were shown to be missing. 

Because of the rifled condition of the automobile, 

the possibility of missing drug items was there 

but no particulars of what might be missing were 

known. 11 

In Quigg the particularity of description, under the facts 

and circumstances shown to exist, were satisfied. But applied 

here, erroneous information supplied to the magistrate are 

the facts and circumstances dictating the opposite result. 

Defendant raises other issues on appeal but we find it 

not necessary to discuss them since we have heretofore found 

that the items seized under the warrant should have been 

suppressed at the trial. Defendant was convicted of receiving 

stolen property; to support his conviction it is absolutely 

necessary to place into evidence the items seized under the 

improper search. Without this evidence, it is clear there 

is no case against defendant. 

Therefore, we order the conviction reversed and the 

cause dismissed, 

i Chief ~hstice 

*-------------------------- 

Associate Justices. 

Mr. Justice Gene B. Daly takes no part in this Opinion,