NO. 92-059 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA, 

plaintiff and Appellantt 

-vsRODNEY WILLIAM HOOK, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Ravalli, 

The Honorable Edward McLean, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Marc Racicot, Attorney General, 

Cregg W. Coughlin, Assistant Attorney General, 

Helena, Montana 

George H. Corn, Ravalli County Attorney, Hamilton, 

Montana 

For Respondent: 

Michael G. Alterowitz; Connell, Beers & Alterowitz, 

Missoula, Montana 

Submitted on Briefs: July 2, 1992 

Filed: 

Clerk 
Justice R. C, McDonough delivered the Opinion of the Court. 

This is an appeal by the State of Montana of an order of the 

Fourth Judicial District Court, Ravalli County, granting the 

defendant Is motion to suppress evidence obtained in a search of his 

residence. We reverse. 

The only issue on appeal is whether the District Court erred 

in granting defendant's motion to suppress. 

This case evolved from an anonymous telephone call received by 

the Ravalli County Sheriff's Department, claiming that Rodney Hook 

was conducting a marijuana growing operation in a cabin which 

served as his residence. The caller provided the general location 

of the cabin, the address and a description of the exterior of the 

cabin, He also described the vehicle Mr. Hook drove. He stated 

that there were three bedrooms upstairs and the marijuana growing 

operation was in the first bedroom on the right on the second 

floor. He further explained that there were approximately forty 

plants ready to harvest which were grown under two 1000 watt grow 

lights. The phone call was terminated before the dispatcher could 

receive any more information. 

The call was reported to the detective who conducted an 

investigation of some of the information. He checked the telephone 

book to confirm Mr. Hook's name and address and then drove out to 

the residence to confirm the caller's description of the house 

exterior. He also sought an investigative subpoena to obtain Mr. 

Hookis electric power usage records because he knew from experience 

that marijuana growing operations typically consume large amounts 
of electric power. Finally, he checked the National Crime 

~nformation Computer system and learned that Mr. Hook had been 

previously charged with possession of a controlled substance. 

When Detective Bailey received the investigative subpoena, it 

revealed that Mr. Hook's use of electric power was 25 times greater 

than the previous tenant's electrical use. Mr. Hook's electricity 

use in the past five months had averaged 2,446 kwh per month 

although the previous tenant averaged 970 kwh per month. Montana 

Power Company employees told the detective that the average 

residential use was 740 kwh per month with an alternate heat 

source. 

Detective Bailey also received a four-day power usage record 

from the power company. On June 6, Mr. Hook called the power 

company to inform it that he was making the cabin his permanent 

residence. As a cabin, a power usage reading was only made once 

every six months as compared to monthly for a residence. He also 

provided the power usage reading for that day. The power company 

went out to the cabin on June 10, 1991 and calculated a four-day 

power usage of 710 kwh. If power usage continued at that rate, the 

monthly total would be approximately 5000 kwh. 

Detective Bailey provided the above information and his 

history of investigating twelve prior marijuana growing operations 

in the application for a search warrant. The search warrant 

application was granted and on June 11, 1991, Detective Bailey's 

search of Mr. Hook's residence revealed marijuana plants, marijuana 

growing equipment, dried marijuana and drug paraphernalia. Mr. 
Hook admitted the marijuana was his and was subsequently arrested 

and charged with a violation of 5 45-9-103, MCA and of 5 45-10-103, 

MCA . 

Mr. Hook filed a motion to suppress evidence recovered in the 

June 11 search and his motion was granted on December 12, 1991. 

This appeal by the State of Montana followed. 

The core issue is the sufficiency of the application of the 

search warrant. "To address the issue of probable cause for 

issuance of a warrant, this Court has adopted the 'totality of the 

circumstances1 test set forth in Illinois v. Gates (1983), 462 U.S. 

213, 103 S.Ct. 2317, 76 L.Ed.2d 527. . . . I' State v. Crowder 

(1991), 248 Mont. 169, 173, 810 P.2d 299, 302. Vhe task of the 

issuing magistrate is simply to make a practical, common-sense 

decision whether, given all the circumstances set forth in the 

affidavit before him, including the 'veracity' and 'basis of 

knowledgef of persons supplying hearsay information, there is a 

fair probability that contraband or evidence of a crime will be 

found in a particular place." State v. OrNeill (1984), 208 Mont. 

386, 394, 679 P. 2d 760, 764. I9[T]he duty of the reviewing court is 

to ensure the magistrate had a 'substantial basisi for . . . conclud[ing] that probable cause existed. It Gates, 462 U. S. at 238- 

39, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. See Crowder, 810 P.2d at 

302. ItThe magistrate's determination of probable cause should be 

paid great deference by reviewing courts.lt State v. Sundberg 

(1988), 235 Mont. 115, 123, 765 P.2d 736, 741. "Our function is 

not to review de novo the magistrate's determination that probable 
cause existed justifying the issuance of a search warrant." State 

v. Baldwin (1990), 242 Mont. 176, 183, 789 P.2d 1215, 1220. 

The factual information provided above formed the basis for 

the magistrate's conclusion that there was probable cause to issue 

the search warrant. Probable cause to issue a search warrant: 

[I]s not a prima facie showing of criminal activity, but 

only its probability. Considerably less evidence is 

required for the issuance of an arrest or search warrant 

than for conviction; and legally unimpeachable findings 

of probable cause can rest upon evidence, for instance 

hearsay, which is not legally admissible at the criminal 

trial itself. [Citations omitted.] 

Sundberq, 765 P.2d at 739. 

We conclude there was probable cause to issue a search warrant 

for the Hook residence. The confidential informant provided 

detailed information about the defendant and the marijuana growing 

operation. "[Blecause an informant is right about some things, he 

is more probably right about other things,. . . including the claim 

regarding the . . . illegal activity. . . ." Gates, 462 U.S. at 

The detective confirmed much ofthe informant's information as 

well as obtaining the power usage bills for the defendant's 

residence and the defendant's arrest record. He stated the basis 

of his expertise in these types of investigations and recited in 

detail the power usage, the times of residence by the defendant, 

previous usage by former occupants, normal residential usage, and 

comparisons as to these facts both specifically and generally. "It 

is enough, for purposes of assessing probable cause, that 

'[c]orroboration through other sources of information reduced the 
chance of a reckless or prevaricating tale,' thus providing 'a 

substantial basis for crediting the hearsay.'" Gates, 462 U.S. at 

244-45, 103 S.Ct. at 2335, 76 L.Ed.2d at 552. "[I]nformation in 

the form of an anonymous tip from an informant whose reliability is 

established by independent corroboration may serve to establish 

probable cause." State v. Deskins (1990), 245 Mont. 158, 162, 799 

P.2d 1070, 1073. 

The defendant states that there are many legal reasons for his 

high power usage but he provides no reasons or rationale for the 

phenomenon. "Although high power consumption alone will not 

establish probable cause for a search, it may be a factor in 

determining whether the affidavit as a whole reaches that level." 

State v. Carter/Grant (Or. App. l99O), 790 P.2d 1152, 1156. See 

also State v. Nuttall (Or. App. 1989), 776 P.2d 26, 29; State v. 

Sterling (Wash. App. 1986), 719 P.2d 1357, 1360; State v. Ledbetter 

(Idaho App. 1990), 794 P.2d 278, 281. 

Detective Bailey also stated on his search warrant application 

that the defendant had a prior arrest record in California for 

possession of a controlled substance. The officer did no further 

investigation of this incident. However, this factor, though not 

probative of commission of a crime, is one of the many factors to 

be considered under the totality of the circumstances test. 

The defendant's argument that the handwritten and typed notes 

of the dispatcher and the search warrant application are not 

exactly the same is without merit. None of the discrepancies are 

significant. The same basic information is contained in the forms 
and there is no evidence that the information was concocted by the 

dispatcher. These types of paperwork "are normally drafted by 

nonlawyers in the midst and haste of a criminal investigation." 

Gates, 462 U.S. at 235, 103 S.Ct. at 2330, 76 L.Ed.2d at 546. 

In conclusion, the defendant has not met his burden of 

overcoming the presumption that the magistrate properly issued the 

search warrant. The factors present in this case, viewed in their 

totality, provide a substantial basis for a magistrate to conclude 

that probable cause to issue a search warrant existed. 

REVERSED. 

Justice /, 

We concur: 

Chief Justice 
September 28, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

George H. Corn 

Ravalli County Courthouse 

Courthouse Box 5008 

Hamilton, MT 59840 

Hon. Marc Racicot, Attorney General 

Cregg W. Coughlin, Assistant 

Justice Bldg. 

Helena, MT 59620 

Michael G. Alterowitz 

Connell, Beers & Alterowitz 

P.O. Box 7307 

Missoula, MT 59807-7307 

ED SMITH 

CLERK OF THE SUPREM:E COURT 

STATE OF MONTANA 

BY: \+ii 

Depu