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concluding that "bare assertion" of personal observation of marijuana growing in defendant's house failed to sufficiently describe the interior of the house and the location of the marijuana growing operation
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No. 91-588.
Submitted on briefs July 2, 1992.
Decided September 28, 1992.
Appeal from District Court of Lewis and Clark County. First Judicial District. Honorable Jeffrey M. Sherlock, Judge.
For Defendant and Appellant: Michael Donahoe, Donahoe Yeshe, Helena.
For Plaintiff and Respondent: Marc Racicot, Attorney General, Barbara C. Harris, Assistant Attorney General, Mike McGrath, County Attorney, Carolyn Clemens, Deputy County Attorney, Helena.
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 McCormack 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 for the electric power bills for the defendant's residence. The search warrant application stated that the "[p]ower 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 residence revealed marijuana plants, scales, grow lamps, hash pipes, bagged marijuana and money. The defendant was arrested and charged under § 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. O'Neill (1984), 208 Mont. 386, 394, 679 P.2d 760, 764. "[T]he 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 courts." 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. 1992), 830 P.2d 1255, 49 St.Rep. 30, 31. "[T]here was no inclusion of such detail that the information became self-verifying. . . ." Valley, 830 P.2d at 1258, 49 St.Rep. at 32. See also Schaffer, 693 P.2d at 464.
The only information 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 to 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.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY, TRIEWEILER, HUNT and WEBER concur.