No. 12221 INTHE SUPREME COURT OF THE STATE OF MONTANA 19 72

THE STATE OF MONTANA, Plaintiffand 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, Sinclairand 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

## 1972Mr. JusticeWesley Castles delivered the Opinion of the Court.

This isan 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 toAugust 12, 1971, an unidentified informant notified Dectective Jack 

### L. Macek of the Great Falls Police Department that defendant was inpossession of some stolen property, specifically, some guns taken ina burglary atValier, Montana. No actionwas taken against defendant untilAugust 12, 1971. On that date, a Mrs. Edwin Olsen called the Great Falls Police Department toreport 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 talkwith him, Defendant allowed the police toenter his residence and upon entering the police saw in the livingroom four apparentlynew television sets and some ste~oequipment. The police then brought defendant tothe 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 testifiedbefore the presidingjudge that the police department had a description of guns taken from the burglary inValier, and alsoa listof other property taken from around the state, which included televisions and stereo equipment. The judge issued thewarrant for the guns particularly and, if finding any of those guns, thepolice 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-evisionsand stereo equipment. Defendantwas charged and convicted of receiving stolen property and sentenced to ten years in the Montana state prison,with allbut fiveyears suspended, Defendant enumerates numerous errors on appeal. We will discuss the issue of the searchwarrant---whether therewas probable cause for its issuance and if itwas particular enough tomeet statutory requirements. A motion to suppress the evidence seizedwas made, a hearinghad, 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 searchwarrant may be issued and what itmust contain:

I1



### Any judgemay issuea searchwarrant upon the written application of any person that an offense has been committed,made under oath or affirmation before himwhich: "(a) States facts sufficient to showprobable cause for issuance of thewarrant, "(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 showprobable cause to issue thewarrant, that the warrant be particular as to the place to be searched,and particular as to the things to be seized. The questionhere iswhether thiswarrant 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 youhave a description of the guns taken out ofValier? "Officer Macek: Yeswehave a description over at thestation, 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 thejudge, which inpertinent part, read: "PROOF BY COMPLAINT, AFFIDAVIT AND DEPOSITION, having been made this datebefore me by ARTHUR G. MATTEUCCI, Deputy County Attorney inand 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 fileherein for further details.II (Emphasis added) Ata hearing on suppression of the evidence, Detective Macek testified; this time stating that therewas no burglary inValier. It 

### isclear from this later testimony that there

was no list of any guns taken from a burglary inValier, 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 atthe time evidence

was given for the issuance of a warrant. The judge specifically asked him ifhehad such a list, and he said "~es". The judge then toldhim he could have a warrant for those guns, and if the guns werefound, meaning the guns on the list, then the officer could also take the television setsand stereos, We do not know, from the record, what particular guns the officer had authority to seize. The particular guns were not listed

on thewarrant; the warrant says tocheck the deposition; the deposition says the list isat the police station. Here, theparticular listof guns was not placed in the warranL, or anywhere else. A warrant cannot simply state "certain guns",

as this warrant did, and meet statutoryrequirements. It is not an unreasonable burden torequire that such a listbe produced and placed in the record. It 

### is clear that erroneous informationwas given to the districtjudge, and that this information provided the evidence upon which the warrant was issued. We cannot uphold warrants which arenot based on probable cause, and probable cause cannot be established by the use of incorrect information. The only basis for thiswarrant was upon the pretext of looking for stolen guns. It was not issued because the officers saw four television setsand the stereo equipment. The district judge stated: "You may have a search warrant. Particularly for these guns, and ifyou find the guns or any of them, I think you are safe intaking the TV's and stereos so that you

I1 can check them out. There isno basis for an assertion that the television setsand stereoequipment established probable

cause for issuance of the warrant. From allthe facts appearing in the record, it is apparant thewarrant was not based or issued on probable cause, since the testimony given to support thewarrant was incorrect, therefore the items seized under the power of the warrant should have been suppressed. The stateurges Statev. Quigg, 155 Mont. 119, 126, 130,131, 467 P,2d 692, as support for itsposition that the search warrant was drawn with sufficientparticularity. A review of Quigg should demonstrate the distinctionbetween these cases. In wig& a search warrant was approved which allowed the p~~lice to seize: "Any .22caliber pistol, a gold wristwatch with expansion band or any other property or evidence they might discover that may connect tothe demise of Lee Robhins 9: 9; *If,appeal, this Court stated: "+; +C a determination of particular description necessary tomeet statutory and constitutional requirements may be made only inview 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 isnot, 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 tobe 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 Quiggthe 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 todiscuss them sincewe have heretofore found that the items seized under the warrant should have been suppressed atthe trial. Defendant was convicted of receiving stolenproperty; to supporthis conviction it 

### isabsolutely necessary toplace intoevidence the items seized under the improper search. Without this evidence, it isclear there isno 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,