No. 13050 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

DOUGLAS C. THOMSON, 

Defendant and Appellant. 

Appeal from: District Court of the Sixth Judicial District, 

Honorable Robert H. Wilson, Judge presiding. 

Counsel of Record: 

For Appellant : 

Murphy, Robinson, Heckathorn and Phillips and 

Douglas D. Dasinger, Kalispell, Montana 

Douglas D. Dasinger argued, Kalispell, Montana 

For Respondent : 

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

Montana 

Thomas A. Budewitz , Assistant Attorney General, 

argued, Helena, Montana 

Jack Yardley, County Attorney, argued, Livingston, 

Montana 

David DePuy , Deputy County Attorney, appeared, 

Livingston, Montana 

Submitted: December 8, 1975 

Decided : JAN 2 8 1376 

' ; p2 ",:" .'q-y Filed: . .* 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from a judgment of conviction entered 

on a jury verdict of guilty. Defendant Douglas C. Thomson was 

convicted on two counts, possession and sale of dangerous drugs 

in Park County, the Honorable Robert H. Wilson, presiding. 

Prior to trial, defendant moved to suppress any evidence obtained as a result of a search warrant. The motion, after 

hearing, was denied. The appeal is based on the denial of the 

motion to suppress, and on two jury selection procedural matters. 

One Paul Hallett was a prisoner in the Livingston city 

jail, having been arrested on a fraudulent check charge. On the 

evening of November 16, 1974, Hallett asked to see an officer and 

asked if the officer would like certain information relating to 

drug sales by defendant. Hallett was later interviewed by the 

county attorney. 

On the basis of the information received the county 

attorney prepared an application for a search warrant. In the 

early morning hours of November 17, 1974, the application was 

presented to District Judge Jack D. Shanstrorn in his home. Two 

police officers, the county attorney, and Hallett met with Judge 

Shanstrom. After examining the application, Judge Shanstrom 

placed Officer Warren and the informant Hallett under oath and 

examined each of them for about twenty minutes. The examination 

included discussions of Hallett ' s information about defendant and 

was 

one Adams, wholthen under a deferred imposition of sentence from 

Billings for drugs. The Judge was familiar with both defendant 

and Adams and examined the informer Hallett extensively in detail 

on his knowledge of both subjects, the drugs, and the location 

of the drugs. Based on the application and on his independent 

examination of the informant Hallett as to both his own involvement 

and his knowledge, Judge Shanstrom issued the search warrant. 
Prior to trial at a hearing on the motion to suppress 

Judge Robert H. Wilson presided, Judge Shanstrom testified and 

was cross-examined. Judge Wilson denied the motion to suppress. 

Judge Wilson tried the case with a jury. 

~efendant's basic issue on appeal is whether the search 

warrant was issued on probable cause. 

Defendant approaches his argument--that there was not 

probable cause shown--in a sort of two pronged manner. First, 

he suggests that because Judge Shanstrom questioned the informant 

about features within the ~udge's own knowledge, such as Adam's 

prior conviction and defendant's reputation, that he was not a 

"detached magistrate". We need not dwell long on this. It is 

clear from Judge Shanstrom's testimony that he was examining the 

informant to determine the reliability of his information. The 

informant was, in a sense, an itinerant unknown who was being 

held in jail on another charge, but he was a named person. 

Judge Shanstrom was the neutral member of the judicial 

branch of government whose duty it is to determine whether there 

was probable cause for the issuance of a search warrant. The 

probable cause for the issuance of a warrant was stated in the 

application but the source of that information was a named informant whose reliability had not been previously tested. Judge 

Shanstrom' s examination of that informant on information known to the 

Judge made a reasonably reliable test of that information necessary to support reliability and thus probable cause. Defendant 

cites United States v. United States District Court, 407 U.S. 

297, 92 S.Ct. 2125, 32 T, ed 2d 752, and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L ed 2d 564, for the proposition that a "neutral and detached" magistrate is required. 

Neither case is appli-cable here. Both cases involved attorneys 

general, one without judicial approval; the other the attorney 

general acting as a justice of peace issuing his own search warrant, 

in effect. 
The second prong of the defendant's attack is that the 

informant's reliability was not established because he was unknown as to reliability. That is why Judge Shanstrom examined the 

informant--an independent means of establishing reliability. 

Rut, defendant argues that the application must in and of itself 

establish both (a) the reliability of the informant and (b) the 

underlying circumstance giving rise to the probable cause. 

In State ex rel. Glantz, 154 Mont. 132, 137, 461 P.2d 

193, this Court said: 

11;1; J, - ik whenever an informer's statements are 

relied upon as probable cause, there must be a 

demonstration of the reliability or credibility 

of the informer. I I 

See: State v. Paschke, 165 Mont. 231, 527 P.2d 569, 31 St.Rep. 

847; State v. Thorsness, 165 Mont. 321, 528 P.2d 692, 31 St.Rep. 

Ordinarily, the reliability of the informer has been 

shown by the informer's reputation as an upstanding citizen or 

by past performance; and in either event these facts can be stated 

in the application. But here, as previously set out, these facts 

did not exist so the issuing magistrate tested that reliability 

in a manner, under oath, designed to independently satisfy the 

magistrate of the accuracy of the information. We hold this to 

satisfy the showing of probable cause necessary for the issuance 

of the warrant. 

On oral argument, counsel cited State ex rel. Townsend 

v. District Court, I4on t . -- 9 P. 2d , 32 St.Rep. --- 

1163, for the proposition that the affidavit for search warrant 

cannot be supplemented by oral statements to the magistrate. That 

is correct and here we point out that the affidavit was wholly 

sufficient to establish probable cause, but being based on hearsay 

from an informant, the reliability of that informant may be checked 

by the maglstrate. It is no doubt desirable to have a written record of that examination, but the exigencies of the nighttime situa- 
tion did not permit such. The Judge testified and was subject 

to cross-examination. His only concern was as to the reliability 

of the hearsay, and he so testified. Thus, here oral testimony 

is not supplementing probable cause---it is merely providing a 

direct test of reliability by a conscientious magistrate. The 

cases on unnamed informants are not in point. 

The two procedural matters in jury selection complained 

of arose in this manner: 

Prior to the exercise of peremptory challenges, outside 

the presence of the jury, counsel for defendant challenged for 

cause the seating of a prospective juror, J. E. Gaab, on the 

grounds that he was an employee of the State Fish and Game Department and had been in law enforcement work. The challenge was 

denied. Mr. Gaab did not sit as a trial juror, but defendant 

claims error because he was obligated to use a peremptory challenge. 

In defendant's brief on appeal it is stated that "Prospective juror, J. E. Gaab, admittedly was a law enforcement officer". 

In point of fact juror Gaab was an officer of the Montana Fish and 

Game department. 

Section 95-1909 (d) (I), R.C.M. 1947, states that "Each 

party may challenge jurors for cause, and each challenge must 

be tried by the court". Subsection (2) lists those reasons for 

which a challenge for cause may be taken. That subsection also 

provides that a challenge for cause may be taken "for any other 

reason which the court determines". Of the reasons listed in 

section 95-1909 only the final one would provide a reason for 

challenging a law enforcement officer for cause. Section 95- 

1909 (d) (2) (x) states : 

"For the existence of a state of mind on the 

part of the juror in reference to the case, or 

to either of the parties, which will prevent him 

from acting with entire impartiality and without 

prejudice to the substantial rights of either 

party. It 
That section does not specifically exclude law enforcement officers from serving as jurors in a criminal case. Not 

being specifically provided for, law enforcement officers must 

stand on an equal footing with any other citizen as a prospective 

juror. Since defendant does not allege the existence of any 

particular state of mind which would place him within the strictures 

of subsection (x), other than the fact tha.t he is a fish and game 

officer, no basis exists for his disqualification for cause. 

The bare fact that he is connected with law enforcement does not, 

without more, necessitate a finding that he would not be an impartial juror. 

In State v. Allison, 122 Mont. 120, 129, 131, 199 P, 2d 

279, the Court stated: 

"It is a difficult matter at best to ascertain the 

real state of mind of a prospective juror with 

respect to detecting the existence of bias or prejudice against one accused of crime. For that reason 

this court has said (State v. Russell, 73 Mont. 240, 249, 

235 Pac. 712, 715) that the determination of the 

qualification of a juror to serve in a case before the 

1 court must be left largely to the sound discretion 

1 of the trial court. Again in State v. Huffman 89 

Mont. 194, 296 Pac. 789, 790, this court said: * * 

the trial court is the judge of the weight to be given 

to the testimony adduced on a voir dire examination. If1 

Assumedly, the district court could have removed juror Gaab for 

cause even without a clear showing of impartiality if the court 

had any doubt as to the juror's state of mind. Such a determination is within the sound judicial discretion of the court. Where 

the court does not exercise its discretion in removing a juror for 

cause when a challenge is made, this Court may reverse a conviction 

only where there is demonstrated a clear abuse of discretion. In 

the instant case no such abuse of discretion can be shown by def endant. 

While a fish and game warden is a law enforcement officer 

in a narrow sense, the authority of those officers is limited in scope 

by Chapter 1, Title 26, Revised Codes of Montana. Section 26-110 (2), 
R.C.M. 1947, substantially states the law enforcement duties 

of wardens: 

"They shall enforce the laws of this state 

and the rules of the commission with reference 

to the protection, preservation, and propagation of-game and fur-bearing animals, fish and game 

birds. 11 

The instant case deals with a violation of the general criminal 

law of the state of Montana, specifically the Montana Dangerous 

Drug Act. Prospective juror Gaab, as a game warden, has no 

connection with offenses committed in violation of the drug laws 

of this Sate. He has no power as a law enforcement officer in 

that respect and he stands as a private citizen. Without a 

showing of impartiality there can be no abuse in discretion by 

the trial court in refusing to allow that juror to be removed 

for cause. 

In State v. Cadotte, 17 Mont. 315, 316 (1895), this Court 

found no error in refusing to remove a juror for cause where the 

juror was a brother-in-law of the county attorney who was prosecuting. There the Court said: 

11 Furthermore, the examination of this juror wpon 

his -- voir dire does not at all tend to show any 

bias, either implied or actual." 

It is clear then that, unless the juror falls within one of the 

categories of section 95-1909, he will not be removed for cause 

without a showing of-Wartiality. In this case there is not 

only no showing of&qartiality, there is not even an allegation 

ofimpartiality. The bare fact of Gaab's position as a game 

warden is not enough to create a doubt as to his impartiality, 

without more. 

The district court record indicates that Gaab was 

removed as a juror through a peremptory challenge by defendant. 

In Allison the Court recognized that even if a doubt did exist 

as to the juror's state of mind, the fact that the defendant later 

removed the juror through the exercise of a peremptory challenge 
precludes the possibility of any prejudice to the defendant. 

In distinguishing State v. Sims, 51 N.M. 467, 188 P.2d 177, 

the Court stated: 

11;'; $. 9c In the case at bar, however, the defendant had 

three peremptory challenges left at the time the 

court overruled the challenge against the witness 

Leemhius and immediately following defendant's 

taking of exception to the court's overruling 

said challenge, the defendant exercised his sixth 

peremptory challenge to remove said juror. In 

the case at bar the court did not, as in the Sims 

case, force the objectionable- juror upon the 

defendant after the latter had exhausted all his 

peremptory challenges, and so far as prejudice 

to the rights of the defendant is concerned, 

Leemhius did not sit on the jury which tried the 

defendant. The fact that defendant regarded jurors 

Jensen and Ronnin as undesirable gave him no 

right to have Leemhius excused for bias in order 

that defendant might get rid of one or two other 

jurors, no showing having been made that those 

prospective jurors were not qualified. I I 

Defendant was not entitled to the removal of Gaab as 

a juror for cause, and even if he had been so entitled he was 

in no way harmed in his defense since Gaab did not sit on the 

jury. 

Next and last, defendant claims error in the answers on 

voir dire examination of jurors when juror Richard Cain was 

alleged to have answered in the negative a question as to whether any 

potential juror was a member of a law enforcement agency or connected with a law enforcement agency. Defendant then alleges that 

Mr. Cain was a member of the Police Commission of the city of 

Livingston. These allegations by defendant do not appear in the 

record. They come by way of counsel's affidavit. The state presented a counter-affidavit from juror Cain denying that such 

questions were even asked. Aside from the fact that a police 

commissioner under Montana law, Chapter 18, Title 11, Revised Codes 

of Montana, 1947, is not a law enforcement officer and thus the 

answer would have been technically proper in any event, we do not 

accept affidavits to supplement an appellate record in this manner. 
State ex rel. Woodahl v. District Court, - Mont . -2 

540 P.2d 312, 32 St.Rep. 906. 

Finding no error, the judgment is affirmed. 

We Concur: 1 

L%- Justices.