NO. 91-588 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsRUSSELL ALLEN WILSON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Jeffrey M. Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael Donahoe, Donahoe & Yeshe, Helena, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Barbara C. 

Harris, Assistant Attorney General, Helena, Montana 

Mike McGrath, County Attorney, Carolyn Clemens, 

Deputy County Attorney, Helena, Montana 

Submitted on Briefs: July 2, 1992 

Decided: September 28, 1992 

C' ,-ni, f".' '-.~.';1;.. ., , ,- 4. . ~:!P1L COURT Uf '." .-: -. .I..~NTAIVA 

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

This is an appeal from an order of the First Judicial District 

Court, Lewis and Clark County, denying the defendant's motion to 

suppress evidence obtained during a search of his home. We 

reverse. 

The sole issue is whether the District Court erred in denying 

defendant's motion to suppress. 

The facts which supported the search warrant application 

follow. Detective McComack received an anonymous Crimestoppers 

call alleging that the defendant was conducting a marijuana growing 

operation. The caller provided the defendant's name, address, 

place of employment, the color and make of his vehicle and a 

description of the exterior of his house. He stated that the 

defendant had automatic weapons in the residence and that there was 

considerable traffic to and from the house daily. Finally he 

contended that he had personally observed the marijuana growing 

operation within the last few days and had seen bags of marijuana 

in the house. He provided no further information about the 

marijuana growing operation. 

As a result of this information the detective assigned, 

obtained an investigative subpoena forthe electric power bills for 

the defendant's residence. The search warrant application stated 

that the "[plower bills for the residence reflect power usage 

consistent with that of a grow operation." Nothing more was stated 

relative to the power bills. 

The search warrant application was granted and a search of the 

2 
residence revealed marijuana plants, scales, grow lamps, hash 

pipes, bagged marijuana and money. The defendant was arrested and 

charged under 5 45-9-103, MCA. 

The defendant filed a motion to suppress evidence obtained in 

the search and the motion was denied on June 25, 1991. After final 

judgment this appeal followed. 

The core question is whether the application for a search 

warrant was sufficient to issue a search warrant. "To address the 

issue of probable cause for issuance of a warrant, this Court has 

adopted the 'totality of the circumstances' test set forth in 

Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 

527. . . ." State v. Crowder (1991), 248 Mont. 169, 173, 810 P.2d 

299, 302. "The 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 knowledge' 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. 

OINeill (l984), 208 Mont. 386, 394, 679 P.2d 760, 764. "[Tlhe duty 

of the reviewing court is to ensure the magistrate had a 

'substantial basis' for . . . conclud[ing] that probable cause 

existed." Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332, 76 L.Ed.2d 

at 548. See also Crowder, 810 P.2d at 302. "The magistrate's 

determination of probable cause should be paid great deference by 

reviewing ~ourts.~' 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. 

Defendant argues that the caller provided little detail which 

would establish his credibility and affirm his personal knowledge 

of the marijuana growing operation. He also contends that the 

detective did not indicate his experience in drug investigations, 

particularly in analyzing power consumption records. 

The Crimestoppers caller did say he had personally observed 

the marijuana growing and bags of marijuana around the defendant ' s 

house. However, he did not describe the interior of the house, the 

location of the marijuana growing operation nor did he describe the 

marijuana growing operation itself. He gave no further basis for 

his knowledge other than his bare assertion that he had personally 

seen the operation. See State v. Schaffer (Idaho App. 1984), 693 

P.2d 458, 464. See also State v. Valley (Mont. l992), 830 P.2d 

1255, 49 St.Rep. 30, 31. "[Tlhere was no inclusion of such detail 

that the infonation became self-verifying. . . . Ir Valley, 830 

P.2d at 1258, 49 St.Rep. at 32. See also Schaffer, 693 P.2d at 

464. 

The only infonation about power usage in the search warrant 

application was the conclusory statement that defendant's power 

bills reflected a power use "consistent with that of a grow 

operation." No data from the records was included in the 

application nor any information concerning the detective's 

experience analyzing power usage records. 
Sufficient information must be presented to the 

magistrate to allow that official to determine probable 

cause; his action cannot be a mere ratification of the 

bare conclusions of others. In order to ensure that such 

an abdication of the magistrate's duty does not occur, 

courts must continue ta conscientiously review the 

sufficiency of affidavits on which warrants are issued. 

Gates, 462 U.S. at 239. 

In the present case, the application for the search warrant 

contained conclusory statements with respect to the informant's 

personal knowledge and the analysis of the power usage records. 

Detail was not provided to support the conclusions drawn within the 

application. Conclusory statements will not provide substantial 

basis to conclude that probable cause existed to issue a search 

warrant. The motion to suppress should have been granted. 

REVERSED. 

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: 

Michael Donahoe, Esq. 

Donahoe & Yeshe 

P.O. Box 413 

Helena, MT 59624 

Hon. Marc Racicot, Attorney General 

Barbara Harris, Assistant 

Justice Bldg. 

Helena, MT 59620 

Mike McGrath, County Attorney 

Carolyn Clemens, Deputy 

L & C County Courthouse 

Helena, MT 59601 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATF OF MONTANA