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:

ClerkJustice 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 defendantIsmotion to suppress evidence obtained ina search of his residence. We reverse. The only issue on appeal 

### is whether the District Court erred in granting defendant's motion to suppress. Thiscase evolved froman anonymous telephonecall receivedby the Ravalli County Sheriff'sDepartment, claiming that Rodney Hook was conducting a marijuana growing operation in a cabin which served as his residence. The callerprovided 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 someof 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. Hookiselectricpowerusage records becausehe knew fromexperience that marijuana growing operations typically consume large amountsof 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 thatMr. Hook's use of electric powerwas 25 times greater than theprevious tenant's electricaluse. 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 twelveprior marijuana growing operations in the application for a search warrant. The search warrant application was granted and on June 11, 1991, Detective Bailey's searchof Mr. Hook's residencerevealedmarijuanaplants,marijuana growing equipment, dried marijuana and drug paraphernalia. Mr.

### Hook admitted the marijuana was his and was subsequently arrested and chargedwith aviolation of 5 45-9-103,MCA and of 5 45-10-103, MCA

# .Mr. 

### Hook filed amotion 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 awarrant, this Court has adopted the 'totality

### of the circumstances1test set forth in Illinoisv. Gates (1983), 462U.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]heduty of the reviewing court 

### is to ensure the magistrate had a 'substantial basisi for 

# . . 

# . conclud[ing] thatprobable cause existed. It Gates, 462U.S. at 238- 39, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. See Crowder, 810 P.2d at 302. ItThemagistrate'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 reviewde novo themagistrate's determination that probablecause existed justifying the issuance of a searchwarrant." State

v. Baldwin (1990), 242 Mont. 176, 183, 789 P.2d 1215, 1220. The factual informationprovided above formed the basis for themagistrate's conclusion that therewasprobable cause to issue the searchwarrant. Probable cause to issue a searchwarrant: [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. [Citationsomitted.] Sundberq, 765 P.2d at 739. We conclude therewas probable cause to issuea search warrant for the Hook residence. The confidential informant provided detailed information about the defendant and themarijuana growing operation. "[Blecause an informant is right about some things,he ismore probably right about other things,.

# .

# . including the claim regarding the 

# . . . illegal activity. 

# . . ." Gates, 462 U.S. at

Thedetective confirmedmuch ofthe informant's informationas 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 factsboth specificallyand generally. "It is enough, for purposes of assessing probable cause, that '[c]orroboration through other sources of information reduced thechance 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 informantwhose 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 aremany legal reasons forhis 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; Statev. Ledbetter

(IdahoApp. 1990), 794 P.2d 278, 281. DetectiveBailey also stated onhis searchwarrant 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 thehandwritten 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 samebasic information is contained in the formsand there is no evidence that the informationwas 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 thepresumption that themagistrate properly issued the searchwarrant. The factorspresent in this case,viewed in their totality,provide a substantial basis for amagistrate to conclude 

### that probable cause to issue a search warrant existed. REVERSED.

Justice /, We concur:

Chief JusticeSeptember 28, 1992 CERTIFICATEOFSERVICE Ihereby certify that the followingorderwas sentbyUnitedStates mail,prepaid,to the following named: GeorgeH. Corn Ravalli County Courthouse CourthouseBox5008 Hamilton,MT 59840 Hon.MarcRacicot, Attorney General CreggW. Coughlin, Assistant Justice Bldg. Helena,MT 59620 MichaelG. Alterowitz Connell,Beers&Alterowitz P.O. Box 7307 Missoula,MT 59807-7307 ED SMITH CLERKOFTHESUPREM:ECOURT STATEOFMONTANA BY:

# \+ii Depu