No. 13050 INTHE 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 SixthJudicial 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: 

### JAN28

## 1376
' ;

p2 ",:" .'q-y Filed:


## . .*Mr. JusticeWesley 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 searchwarrant. The motion, after hearing, was denied. The appeal isbased 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 officerwould likecertain information relating to drug salesby defendant. Hallettwas 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 earlymorning hours of November 17, 1974, the applicationwas presented toDistrict 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 OfficerWarren 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 toboth his own involvement and hisknowledge, Judge Shanstrom issued the search warrant.Prior to trialata 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 casewith a jury. ~efendant's basic issue on appeal 

### iswhether the search warrant was issued on probable cause. Defendant approaches his argument--that therewas 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 asAdam'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 todetermine the reliability of his information. The informant was, ina sense, an itinerant unknown who was being held injail on another charge, but he was a named person. Judge Shanstromwas theneutral member of thejudicial branch of government whose duty it 

### isto 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 applicationbut the source of that information was a named informant whose reliabilityhad 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 citesUnited 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 propositionthat a "neutral and detached" magistrate isrequired. Neither case isappli-cablehere. Both cases involved attorneys general, one without judicial approval; the other the attorney general acting asa justice of peace issuing his own search warrant, in effect.The second prong of the defendant's attack is that the informant's reliabilitywas not established because he was unknown as toreliability. That iswhy Judge Shanstrom examined the informant--an independent means of establishingreliability. Rut, defendant argues that the application must in and of itself establishboth (a) the reliability of the informant and (b) the underlying circumstance givingriseto the probable cause. In State ex rel. Glantz, 154Mont. 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. II See: Statev. Paschke, 165 Mont. 231, 527 P.2d 569, 31 St.Rep. 847; Statev. Thorsness, 165 Mont. 321, 528 P.2d 692, 31 St.Rep.

Ordinarily, the reliabilityof 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, aspreviously set out, these facts didnot 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 thewarrant. On oral argument, counsel cited Stateex rel. Townsend



### v. District Court, I4ont

# . -- 9 P.2d 

## , 32 St.Rep. --- 1163, for the proposition that the affidavit for searchwarrant cannot be supplemented by oral statements to the magistrate. That iscorrect and here we point out that the affidavitwas wholly sufficient to establishprobable cause, but being based on hearsay from an informant, the reliability of that informant may be checked by the maglstrate. It isno doubt desirable tohave a written record of that examination, but the exigencies of the nighttime situa-tiondidnot 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 isnot supplementing probable cause---it 

### ismerely providing a direct test of reliabilityby a conscientious magistrate. The

cases on unnamed informants arenot in point. The two procedural matters injury selection complained of arose in this manner: Prior tothe exercise of peremptory challenges, outside the presence of thejury, 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 StateFish and Game Department and had been in law enforcement work. The challengewas denied. Mr. Gaab did not sitas a trialjuror, but defendant claims errorbecause he was obligated touse a peremptory challenge. In defendant's brief on appeal it is stated that "Prospective juror, J. E. Gaab, admittedlywas a law enforcement officer". In point of factjuror 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 challengejurors for cause, and each challenge must be triedby 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 stateof mind on the part of thejuror in reference tothe case, or toeither of the parties, which willprevent him

from actingwith entire impartiality and without prejudice tothe substantial rights of either party.ItThat section does not specifically exclude law enforcement officers from serving asjurors ina criminal case. Not being specificallyprovided for, law enforcement officersmust 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 isa 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 impartialjuror. In Statev. Allison, 122 Mont. 120, 129, 131, 199 P,2d 279, the Court stated: "It isa difficult matter atbest toascertain the real state of mind of 

### a prospectivejuror 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 casebefore the 1 court must be left largely to the sound discretion 1 of the trialcourt. Again in Statev. Huffman 89 Mont. 194, 296 Pac. 789, 790, this court said: 

# ** the trialcourt isthejudge of theweight tobe 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 thejuror's state of mind. Such a determination iswithin the sound judicial discretion of the court. Where the court does not exercise itsdiscretion inremoving a juror for

causewhen a challenge ismade, 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 defendant. While a fishand game warden is a law enforcement officer in a narrow sense, the authority of those officers islimited 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 tothe protection, preservation, and propagation of-gameand fur-bearing animals, fishand game birds. 11 The instant case deals with a violation of the general criminal law of the stateof Montana, specifically theMontana Dangerous Drug Act. Prospectivejuror Gaab, as a game warden, has no connection with offenses committed inviolation of the drug laws of thisSate. He has no power as a law enforcement officer in that respect and he stands asa private citizen. Without 

### a showing of impartiality there can be no abuse indiscretionby the trialcourt inrefusing toallow that juror tobe removed for cause. In Statev. Cadotte, 

### 17Mont. 315, 

### 316 (1895), this Court found no error inrefusing toremove a juror forcause where the juror was a brother-in-law of the county attorneywho was prosecuting. There the Court said:

11

Furthermore, the examination of thisjuror wpon his voir dire does not atalltend to show any 

## -- bias, either implied or actual." It isclear then that, unless thejuror fallswithin one of the categories of section 95-1909, he 

### willnot be removed for cause without a showing of-Wartiality. In this case there isnot only no showing of&qartiality, there isnot even an allegation ofimpartiality. The bare fact of Gaab's position as a game warden isnot enough to create a doubt as tohis 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 thejuror's state of mind, the fact that the defendant later removed thejuror through the exercise of a peremptory challengeprecludes the possibility of any prejudice to the defendant. In distinguishing Statev. Sims, 51N.M. 467, 188 P.2d 177, the Court stated:

11;'; $. 9c In the case atbar, however, the defendant had three peremptory challenges left atthe time the court overruled the challenge against thewitness Leemhius and immediately following defendant's taking of exception to the court's overruling said challenge, the defendant exercised his sixth peremptory challenge toremove saidjuror. In the case atbar the court did not, as in the Sims case, force the objectionable-juror upon the defendant after the latterhad exhausted allhis peremptory challenges, and so far asprejudice to therights of the defendant isconcerned, Leemhius did not 

### sit on thejury which tried the defendant. The fact that defendant regarded jurors Jensen and Ronnin asundesirable gave him no right tohave Leemhius excused forbias in order that defendant might get rid of one or two other jurors, no showing having been made that those prospectivejurors were not qualified.II Defendant was not entitled tothe removal of Gaab as

a juror for cause, and even ifhe had been so entitled he was inno way harmed inhis 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 tohave answered in thenegative a question as towhether any potentialjuror 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 cityof Livingston. These allegations by defendant do not appear in the record. They come by way of counsel's affidavit. The statepresented a counter-affidavit fromjuror 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, isnot a law enforcement officer and thus the

answer would have been technically proper inany event, we do not accept affidavits to supplement an appellaterecord in this manner.State exrel. Woodahl 

### v. District Court, 

### - Mont

# . -2 

### 540 P.2d 312, 

### 32 St.Rep. 

### 906. Finding no error, thejudgment is affirmed.

We Concur: 

## 1 

# L%-

Justices.