Preview:

No.

90-128

IN THE SUPREME COURT OF THE STATE OF MONTANA
1990

STATE OF MONTANA, Plaintiff and Respondent,

DALE GARBERDING, Defendant and Appellant.
CLERK OF SUPREklE CQUAI: STATE QF lLlQNTAMA

APPEAL FROM:

District Court of the Twentieth Judicial District, In and for the County of Sanders, The Honorable C. B. McNeil, Judge presiding.

COUNSEL OF RECORD: For Appellant: Neil M. Leitch, Missoula, Montana Allen M. Ressler; Browne & Ressler; Washington For Respondent: Hon. Marc Racicot, Attorney General; Jennifer Anders, Asst. Atty. General; Helena, Montana Robert Slomski; Sanders County Attorney; Thompson Falls, Montana Submitted on Briefs: Decided: Filed: September 6, 1990 November 26, 1990 Seattle,

Clerk

Justice Fred J. Weber delivered the Opinion of the Court. After waiving his right to a jury or bench trial, defendant, Dale Garberding (Garberding), submitted his case to the District Court of the Twentieth Judicial District, Sanders County, on the basis of police reports, documents and records on file. He was

convicted of criminal possession of dangerous drugs with intent to sell, a felony, and criminal possession of drug paraphernalia, a misdemeanor. From that conviction, Garberding appeals. We affirm. The issues for our review are: 1. cause?
2.

Whether the search warrant was issued upon probable

Whether Garberding was entitled to an evidentiary hearing

to challenge alleged misstatements or omissions in the search warrant?
3.

Whether the State met intended to sell the

its burden marijuana

of

proving from

that his

Garberding residence?

seized

The application for search warrant provided the following facts: In February 1988, Sheriff Alexander (Alexander) of the

Sanders County Sheriff's Office, received a telephone call at his residence from an anonymous female informant (Caller 1)

.

Caller

1 reported that Garberding was growing marijuana in a room below

his residence in Heron, Montana.

Caller 1 reported that the

growing operation was concealed and could not be seen from outside the residence. The caller also reported that Garberding was Subsequently, Alexander obtained a teletype
2

selling marijuana.

criminal record of ~arberding which showed that he had been convicted of marijuana distribution and was sentenced to three years probation in Seattle, Washington on November 23, 1983. A deputy sheriff, Gene Arnold (Arnold) spoke with Alexander during the investigation and stated that prior to his employment with the Sanders County Sheriff's Office, he had been in

Garberding's residence as an employee of Clark Fork Gas to repair a gas furnace. Arnold stated that while in the residence he

smelled marijuana. On March 13, 1989, over a year after the call of Caller 1, Alexander received a telephone call from a female informant (Caller 2). Caller 2 advised Alexander that her husband had asked her to

contact the sheriff's office to report that Garberding had a marijuana-growing operation in a room beneath his residence in Heron, Montana, and that there were approximately 20 mature marijuana plants and 20 to 40 new starter plants. The next day, the husband (Caller 3) of Caller 2 called the sheriff's office to report that he had been in the Garberding residence in the past two weeks and had personally observed the marijuana grow operation. He informed Alexander that the operation resulted in sales of three to four thousand dollars per week of marijuana. He gave specific directions to the location of the grow operation, stating that it was concealed in a room beneath the house which was accessed by a stairway from the back door. At the

bottom of the stairway there were some shelves with jars on them, and that behind these shelves was a swinging door leading to the

marijuana-growing operation. Caller 3 also reported that there was a dehydrator device upstairs in the residence used to dry the marijuana in preparation for sale. After receiving this information, Alexander applied for a search warrant. After finding that there was probable cause,

Justice of the Peace Beitz issued a search warrant to search Garberding's residence for any or all items listed in the warrant. Alexander executed the search warrant on March 15, 1989. The

search resulted in the recovery of eleven mature marijuana plants between three to four feet in height; twelve smaller plants, many times in excess of sixty grams in weight; three trays containing marijuana leaves; drug paraphernalia; and various devices used to cultivate marijuana. The next day Alexander and other officers at It

the Sheriff's Office cut and weighed one of the mature plants. weighed 262 grams.

Garberding was charged in a four-count information with the crimes of: Count I

-

Criminal Possession of Dangerous Drugs with

Intent to Sell, a felony, 5 45-9-103, MCA; Count I1

-

Criminal

Possession of Dangerous Drugs, a felony, 5 45-9-102, MCA; Count I11

-

Criminal Sale of Dangerous Drugs, a felony, 5 45-9-101, MCA; IV

Count

Download b611173b-a921-4274-bb85-3490b533c8f2.pdf

Montana Law