No. 90-503 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

STATE OF MONTANA, 

Plaintiff and Respondent, 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Julie A. Macek, Attorney at Law, 

Great Falls, Montana 

For Respondent: 

Honorable Marc Racicot, Attorney General, 

Elizabeth L. Griffing, Assistant Attorney General, 

Helena, Montana; Patrick L. Paul, Cascade County 

Attorney, Kim Schulke, Deputy Cascade County 

Attorney, Great Falls, Montana 

Filed: 

Submitted on Briefs: May 30, 1991 

Decided: August 20, 1991 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Gerald Hall appeals the judgment of the District Court of the 

Eighth Judicial District for Cascade County, finding the defendant 

guilty of criminal possession of dangerous drugs with intent to 

sell. We affirm the District Court. 

The issues on appeal are: 

1. Whether the defendant's probation officer had reasonable 

cause to conduct a warrantless search of defendant's home. 

2. Whether the defendant's constitutional rights were 

violated by his inability to question a police informant at his 

trial. 

3. Whether there was sufficient evidence to support 

defendant's conviction. 

Gerald Hall was placed on parole on February 20, 1986, 

following convictions of felony theft and criminal mischief. As 

a condition of his parole, Hall agreed to submit to searches by his 

parole officer of his person, automobile, or premises at any time 

with or without a warrant upon reasonable cause. He was also 

prohibited from possessing drugs and agreed to submit to drug 

testing at the request of his parole officer. 

In January 1990, the Great Falls Police Department was advised 

by an informant, William Smith, that drugs could be purchased from 

Wayne Davis. 

On January 9, 1990, Detective Brian Lockerby of the Great 

Falls Police Department purchased one-quarter pound of marijuana 
from Davis and observed Davis obtain the marijuana from Hall's 

residence in Great Falls. The detective was informed that the 

seller, a man named charlie, lived in the house with another man 

named Gerald. 

At a briefing the next day, Lockerby discovered that a parolee 

named Gerald Hall lived at the residence. Lockerby contacted 

Hall's parole officer, Michael Redpath, and informed him of the 

situation. No search was conducted at that time because Lockerby 

wished to conduct further investigation concerning the possible 

sale of explosives and automatic weapons from the residence. A 

second attempt at purchasing drugs was unsuccessful, and a third 

was planned when Lockerby learned that the man identified as 

Charlie was in jail. 

Lockerby informed Redpath that the investigation had ended. 

Redpath decided that a search of Hall's residence was in order. 

On January 23, 1990, Redpath and two detectives from the Great 

Falls Police Department went to the residence, advised Hall that 

they intended to search the house, and read him his rights. The 

officers found drug paraphernalia throughout the house, some of 

which was similar to items commonly used in drug transactions. 

In the closet of Hall's bedroom, the officers found a duffle 

bag containing four I1baggiesfifi of marijuana and various containers 

commonly used to transport and sell marijuana. At the conclusion 

of the search, Hall was shown the duffle bag containing the 

marijuana and he stated to the officers that the bag and the 
marijuana inside were his. Hall later claimed that he made the 

statement to protect his wife from being charged, and that the bag 

and its contents actually belonged to Charlie Devito, his 

incarcerated houseguest. 

Hall was arrested and charged with criminal possession of 

dangerous drugs with intent to sell. He pled not guilty and filed 

a motion to suppress the evidence found and statements made at his 

residence on the grounds that his parole officer lacked reasonable 

grounds to search his home. A hearing was held, and Hall's motion 

was denied. 

A jury trial commenced on June 5, 1990. The jury returned a 

verdict of guilty, and Hall was subsequently sentenced to serve 

ten years, with an additional consecutive five years added because 

of his designation as a persistent felony offender. Hall appeals 

from this judgment . 

Hall maintains that his probation officer, Michael Redpath, 

did not have reasonable cause to conduct a search of his home 

without a warrant and that all evidence obtained should have been 

suppressed. 

In State v. Burke (1988), 235 Mont. 165, 766 P.2d 254, this 

Court, following Griffin v. Wisconsin (1987), 483 U.S. 868, 107 

S.Ct. 3164, 97 L.Ed.2d 709 (1987) set forth the standard for 

probationary searches. In adopting Griffin's reasonable grounds 
standard, which is less stringent than the Fourth Amendment 

probable cause standard, this Court stated: 

~estrictions on a probationer are meant to assure that 

the probation serves as a period of genuine 

rehabilitation and that the community is not harmed by 

the probationer's conditional liberty status. 

In conjunction with the need for supervision, a degree 

of flexibility must also be accorded the probation 

officer. The probation officer acts upon a continued 

experience with the probationer, with knowledge of the 

original offense, and with the probationer's welfare in 

mind. Because of his expertise, we view the probation 

officer in a far superior position to determine the 

degree of supervision necessary in each case. 

s his expertise would be rendered meaningless if a warrant 

requirement were imposed prior to a probationary search. 

The independent magistrate, rather than the probation 

officer, would ultimately make supervisory decisions. 

In addition, the delay associated with obtaining a 

warrant plus the greater evidentiary burden would, we 

believe, substantially inhibit the effectiveness of the 

probation system. 

Burke, 235 Mont. at 169. 

In this case, Hall Is probation officer knew that Hall had tested 

positive for marijuana several times during his probation. In March 

1989, Hall was arrested for violating the terms of his parole when 

his urinalysis detected marijuana use. Rather than revoke Hall's 

probation, an intervention program was instituted. Less than ten 

months later, Hall's probation officer was informed that drug sales 

were being conducted out of Hall's residence. In light of that 

information, we conclude that Hall's probation officer had reasonable 

grounds to conduct a warrantless search of the premises. We conclude 
that the District Court did not abuse its discretion in denying the 

motion to suppress evidence gathered during the search. 

II. 

Hall contends that he was denied the right to confront and cross 

examine ~illiam Smith, the unavailable informant whose statements led 

to the investigation of Wayne Davis, and that any reference during 

trial to out-of-court statements made by Smith violated his right to 

confront witnesses and was prejudicial. 

Smith's statements did not form any basis for Hall's conviction. 

They were merely foundational to explain why Lockerby happened to be 

where he was when he observed the drug transaction at Hall's 

residence. 

Furthermore, the reliability of the informant is not an issue 

in this case. Smith's statements were not the basis for the search 

of Hall's residence. His statements implicated Charles Devito, not 

Hall. Pursuant to the information, Detective Lockerby conducted an 

undercover buy of narcotics. Lockerby personally witnessed the sale 

of drugs from Hall Is residence. It was that observation, and Hall's 

past drug use while on parole, that were the basis for the search of 

Hall's home. Therefore, the veracity of Smith's statements was never 

at issue, and Hall has failed to demonstrate the denial or invasion 

of a substantial right from which the law imputes prejudice. State 

v. Miller (1988), 231 Mont. 497, 507, 757 P.2d 1275, 1281. 

111. 

Hall contends that there was insufficient evidence to find that 

the State had proven the essential elements of the crime charged 
beyond a reasonable doubt. Specifically, Hall maintains that the 

State did not establish his possession of the drugs nor his intent 

to sell drugs. 

Hall maintains that the State failed to prove that he had 

constructive possession of the marijuana. Hall contends that the 

marijuana was found in a duffle bag belonging to Charles Devito, and 

that the State neither proved that Hall maintained dominion and 

control over the drugs nor knew of their existence. 

Section 45-9-103(1), MCA, requires proof that a defendant 

knowingly possessed dangerous drugs with an intent to sell. 

ll~ossessionll is defined as Itthe knowing control of anything for a 

sufficient time to be able to terminate control.11 Section 

45-2-101 (52), MCA. Knowledge, therefore, is an element of 

possession. Although knowledge cannot be inferred from mere 

possession alone, knowledge may be proven by evidence of acts, 

declarations, or conduct of the accused from which an inference may 

be drawn. State v. Krum (1989), 238 Mont. 359, 777 P.2d 889, 891. 

Hall stated after the search of his home that the marijuana in 

the duffle bag was his. The bag was found in Hall Is bedroom closet. 

Where a controlled substance is found in a place subject to the joint 

dominion and control of two persons, possession may be imputed to 

either or both persons. State v. Scheffelman (1987), 225 Mont. 408, 

733 P.2d 348, 352. Given the evidence, the trier of fact made a 

factual determination that Hall maintained constructive possession 

of the marijuana. State v. Smith (1983), 203 Mont. 346, 661 P.2d 
463, 466. We conclude that there is sufficient evidence to support 

the jury's finding of possession. 

Hall contends that there was insufficient evidence to find 

intent to sell. This Court has noted the difficulty of proving 

criminal intent on numerous occasions. Because it is seldom subject 

to direct proof, intent must be inferred from the acts of the accused 

and the facts and circumstances of the offense. State v. Crumley 

(1986), 223 Mont. 224, 725 P.2d 214. In this case, Hall's household 

contained numerous articles commonly used in drug transactions, 

including scales, containers, and other packaging materials. 

Furthermore, the drugs were individually packaged in a manner to 

indicate readiness for piecemeal distribution. The presence of the 

drugs in combination with other items consistent with sales 

activities and inconsistent with personal use may be used to infer 

an intent to sell. State v. Garberding (Mont. 1990), 801 P.2d 583, 

587, 47 St.Rep 2157. We conclude that there was sufficient evidence 

to support the jury's verdict. Hall's conviction and the sentence 

imposed are, therefore, affirmed. 
We concur: