# State v. McKenzie

> Montana Supreme Court · July 7, 1978 · 177 Mont. 280

URL: https://www.frixlaw.com/law-library/cases/9853252

## Case

- **Full name:** The STATE OF MONTANA, Plaintiff and Respondent, v. DUNCAN PEDER McKENZIE, Jr., Defendant and Appellant
- **Court:** Montana Supreme Court
- **Decided:** July 7, 1978
- **Citations:** 177 Mont. 280; 581 P.2d 1205; 581 P.2d 1204
- **Precedential status:** Published
- **Opinion:** Dissent by Shea
- **Judges:** Haswell, Daly, Lessley, Harrison, Shanstrom, Shea
- **Cited by:** 54 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part, on other grounds by State v. Van Kirk, 306 Mont. 215 (2001).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9853252

## Opinion text

MR. JUSTICE SHEA
dissenting:
I am distressed by the majority opinion, for it confirms my worst fears: The majority has effectively ruled that a brutal, heinous murder justified the State of Montana in suspending the operation and application of the Constitutions of the State of Montana and of the United States of America. It has accomplished this result by ignoring the facts and by an application of the law that is a mockery of the very principles we are sworn to uphold.
At both ends of the procedural spectrum, this Court has denied defendant the constitutional protections to which he is entitled. In the first instance, evidence seized pursuant to a search warrant was *334 taken in flagrant disregard of defendant’s constitutional rights, and accordingly, should have been suppressed. In the second instance, the decision upholding the death penalty under Montana’s so-called statutory scheme for imposing the death penalty, is a flagrant misinterpretation of the requirements set forth by the United States Supreme Court. Moreover, it is a flagrant misinterpretation of our own statutes.
The circumstances of this murder whipped the emotions of the citizens of Pondera County to a ferish pitch and caused an outcry throughout this state. It was such that even the trial judge, who did not exactly demonstrate impartiality throughout the trial, moved the trial to Cascade County. I can only conclude that the enormity of the crime has caused this Court as well as the trial court to deny defendant the benefit of the law that supposedly protects all citizens, not solely the “good” citizens. This Court no more granted a fair review to defendant than the citizens of Pondera County could have given him a fair trial. The people of Montana can be well advised there is no law in the State of Montana; that henceforth the Supreme Court shall decide each case on an ad hoc basis.
The majority opinion deceives the reader into thinking the facts set forth in the opinion were substantially the same facts used as a basis to establish probable cause for the initial criminal complaint and arrest warrant and for the issuance of the search warrant. On the issue of probable cause for both the criminal complaint and arrest warrant, and on the general issue of search and seizure, the opinion fails to distinguish between those facts which were developed and used after the issuance of the arrest warrant and search warrant and those which were presented to the magistrate as a basis to establish the probable cause. Obviously, probable cause can be determined only by those facts which are presented to the magistrate.
It is also important to note that defendant has attacked the procedural formalities (having their genesis and foundation in the Montana Constitution and Montana statutes) used for obtaining both the criminal complaint and search warrant. The majority’s *335 response to these issues is almost a stony silence. The issues raised have been sidestepped in a fog of rhetoric.
In fact, the majority sets forth many of the facts in the opinion which were used to obtain a conviction — but does not distinguish them from those facts which were used to establish the original probable cause to sign a complaint and to obtain a search warrant. The result is that the reader is led to believe the facts are almost synonymous. For example, at approximately the middle of the court’s statement of facts, the following statement infers all the facts developed in the opinion prior to this point were used as a basis to establish probable cause for the original arrest warrant and search warrant:
“As a result of the investigation by the sheriff and his deputies, the county attorney, on Tuesday afternoon, January 22, filed a complaint charging defendant with assault before the justice of the peace. The county attorney also obtained a warrant for the arrest of defendant and a search warrant.”
The truth is that only a few of the facts preceding this statement were used as a basis to establish probable cause for the complaint and for the search warrant.
After making this statement the majority continues to foster the wrong impression. The opinion then sets forth facts which came to light after the issuance of the arrest and search warrants. But the majority concludes by saying:
“This, in our opinion, is a sufficient showing of probable cause to issue the warrants.
Unfortunately the reader is left in the dark as to what facts or allegations of facts the majority relied on when making this conclusion.
After reading and rereading the majority’s statement of facts, I cannot discern those facts upon which the majority relied to conclude there was probable cause to (1) allow the signing of the criminal complaint against defendant for misdemeanor assault and consequent issuance of an arrest warrant, and (2) to allow the issuance of a search warrant authorizing the search of defendant’s *336 home and pickup truck for his clothing allegedly worn on January 21, 1974, and Lana Harding’s clothing allegedly worn on January 21, 1974.
Because of this failure to set forth the facts, I am compelled to do so in great detail, because only then can there be a meaningful discussion of the applicable law. A brief analysis of the issues will put the facts in their proper prospective.
The issues raised by the filing of the initial criminal complaint charging defendant with misdemeanor assault and the arrest warrant issued, can be divided into two areas: First, whether under section 95-603, R.C.M.1947, there was probable cause, considering all of the evidence presented to the magistrate, to allow the filing of a criminal complaint against defendant. Second, whether the State complied with statutory formalities relating to the signing of the complaint and presenting the evidence on probable cause.
It is also necessary to distinguish between probable cause to sign a criminal complaint and probable cause to obtain a search warrant. To establish probable cause to obtain a criminal complaint there is a two-pronged test: (1) Is it probable that a crime (here, misdemeanor assault) was committed? (2) Is it probable that the defendant committed the crime? Obviously, the State must meet both tests. Probable cause to believe a crime was committed does not ipso facto establish probable cause that a particular defendant committed the crime.
Even assuming the probable cause tests are met for the filing of a criminal complaint, this still does not establish probable cause to obtain a search warrant. Probable cause to obtain a search warrant has a distinct objective — there must be evidence by which a reasonable man would conclude that probably the items sought are at the place sought to be searched. In the context of this case it was required to show facts leading to a reasonable belief that Lana Harding’s clothes and defendant’s clothes were either in his pickup truck or in his home. Absent evidence to justify such a reasonable belief, the search warrant should not have been issued.
The search and seizure questions can generally be divided into *337 three areas: First, whether there was probable cause for the issuance of the search warrant, considering all the evidence presented to the magistrate, including that included in the form of a written application and that in the form of unrecorded sworn testimony; second, whether the State complied with the constitutional and statutory formalities relating to the application for a search warrant; and third, whether the search warrant was converted by the sheriff into a general search warrant by the manner in which he executed the search warrant and seized what he considered to be evidence not named in the search warrant.
Concerning the first issue, defendant contends even assuming no procedural irregularities and constitutional and statutory defects in applying for the search warrant, there was no probable cause to issue the search warrant.
Concerning the second issue, defendant contends the manner of applying for the search warrant is constitutionally and statutory defective for two reasons:
(a) That is was unconstitutional to allow a search warrant to be issued based in whole or in part on evidence contained in sworn but unrecorded testimony not reduced to writing;
(b) That the written application for the search warrant cannot be upheld because it is not even an affidavit as required by statute; rather, it is an acknowledgement, signed not before the issuing magistrate, but before the county attorney’s secretary.
Concerning the third issue, defendant contends the testimony of the magistrate who issued the search warrant and the testimony of the sheriff who executed the search warrant, together with the sheriff’s return of the search warrant, shows conclusively that the search warrant was either on its face invalid because it was a general search warrant, or that the sheriff converted it into a general search warrant and is therefore constitutionally invalid.
While I will develop the facts in detail, they show that the following allegations were used to establish probable cause (the factual statement is indented only for the purpose of emphasis):
At approximately 8 p.m. on January 21, 1974 defendant *338 knocked on the door of the Pearson residence (approximately one-half mile from the teacherage). He was nervous and excited and appeared out of breath and he told Don Pearson he had been running. He asked Pearson for assistance in starting his truck which was stalled on the road near the teacherage. Defendant also called his wife from the Pearson home and told her he would be home shortly. Pearson left with defendant and got the stalled pickup started by pushing it.
The following morning, January 22, 1974, Lana Harding failed to appear for her teaching duties. Later that morning sheriff’s deputies went to the teacherage where she lived (which was just a short distance from the school). During the course of their investigation they found scuff marks on the floor and two throw rugs were disarray. A pair of woman’s glasses was on the floor. Outside the teacherage they found a woman’s red striped tennis shoe. They also found what appeared to them to be a drag trail from the teacherage to a nearby road. At the end of the drag trail there was a substance on the ground which appeared to be blood. Nearby on the ground was a woman’s wristwatch. Pearson apparently told deputy Hoover that defendant’s truck was parked in the road close to where the suspected blood and watch were found.
Some of this information was imparted to the magistrate by the unrecorded sworn testimony of deputy Hoover. And some of the information was imparted to the magistrate by the signed, unsworn statement of county attorney Nelson which constituted his application for a search warrant.
All additional facts stated in the majority opinion are those that were sworn either developed after the issuance of the arrest and search warrant, or if any were known before this, they were not given to the magistrate as a basis to establish probable cause. In fact, most of the evidence mentioned in the majority opinion was found either on January 23 (the day Lana Harding’s body was found) or on the days following.
It is also significant that the majority failed to distinguish be *339 tween those facts presented to the magistrate in the form of the written application for the search warrant, and those facts disclosed to the magistrate by the oral and unrecorded testimony of sheriff’s deputy Hoover. All we derive from the majority opinion is their conclusion the “combination thereof established probable cause.” (Emphasis added.) It is intellectual dishonesty for the majority not to recognize that the “combination thereof ’ is a radical departure from existing interpretations of constitutional law in this state, the only justification of which is to carve out a one time only exception applying to defendant so that his conviction can be upheld.
With these preliminary matters out of the way, I provide a detailed statement of the facts surrounding the issuing of the criminal complaint and arrest and search warrants. It must be remembered that with the exception of the information contained in the application for search warrant, the factual background was developed by defense counsel by taking the depositions of magistrate Wolfe, deputy sheriff Hoover, and county attorney Nelson. These depositions were taken on March 12, 1974, almost three months after defendant was arrested.
Authorities were alerted after Lana Harding failed to show up for teaching duties on the morning of January 22, 1974. The weather was cold, dry and clear. There was no snow on the ground. The sheriff and deputy Hoover drove to the school and teacherage to investigate. Inside the teacherage there were scuff marks on the floor, two small throw rugs were in disarray, and a pair of woman’s glasses was on the floor. Outside the teacherage they found a woman’s red tennis shoe and there was what appeared to be a drag trail leading ultimately to the road. Near the end of the drag trail, they found a woman’s watch and also a substance on the ground that appeared to be blood.
Hoover also talked to Dan Pearson who had helped defendant start his stalled pickup the evening before. Pearson told Hoover that the defendant had come to his home and asked him if he would help him push his stalled truck which was parked on the road near *340 the teacherage. Defendant appeared to be nervous and excited. Defendant told Pearson that he had been running. Defendant called his wife from Pearson’s home and told her he would be home after he got his truck started. Late in the afternoon deputy sheriff Hoover went to the county attorney’s office to tell him what he had learned.
The county attorney immediately decided to charge defendant with misdemeanor assault. He had his secretary start typing the papers and he called magistrate Wolfe and told him to come down to his office so the county attorney could file a criminal complaint. When the magistrate arrived they talked about things in general. It is not clear but apparently at the same time the county attorney’s secretary, Mrs. Malek, was also typing the arrest warrant, the application for search warrant and the search warrant.
After a short while magistrate Wolfe placed deputy Hoover under oath and Hoover testified to what he had learned earlier that day. By this time all the papers were prepared. He testified about Lana Harding not showing up for teaching duties, about the woman’s glasses on the floor of the teacherage, and the scuff marks on the floor and rugs in disarray. He also testified as to the woman’s watch found in the road not far from the end of the drag trail, and that there also appeared to be blood on the ground, but that they had not determined if it was blood.
He also testified to his conversation with Dan Pearson who told him about his pushing defendant’s truck in the vicinity of the teacherage on the night before. Defendant told Pe.arson he had been running. Pearson told Hoover that defendant was out of breath and appeared nervous and excited. Pearson also told Hoover that defendant called his wife from Pearson’s home and told her he would be home soon — when he got his truck started.
The county attorney testified at the deposition that he had no other knowledge of the facts than what had been provided to him by deputy Hoover. Hoover, Wolfe, and Nelson each testified that Nelson never was sworn. Magistrate Wolfe testified that in determining if there was probable cause he relied exclusively on the *341 testimony of deputy sheriff Hoover and on the written application for search warrant signed by county attorney Nelson. Based on the combination of Hoover’s testimony and the written application signed by county attorney Nelson, magistrate Wolfe thought there was probable cause to allow the signing of a criminal complaint of misdemeanor assault and for the issuance of a search warrant.
So that there can be no misinterpretation of the contents of and the form of the written applications for search warrant, it is set forth verbatim:
“THE UNDERSIGNED BEING FIRST DULY SWORN DEPOSES AND SAYS:
“That Affiant is the Pondera County Attorney, whose office is in Conrad, Montana;
“That he has reason to believe that one LANA HARDING, a school teacher.at Prairie View School, located in Pondera County, Montana, is missing and may have been the victim of foul play;
“That the said LANA HARDING was not present at her school class on the scheduled time on January 22, 1974; that the said LANA HARDING, has a reputation of being a prompt and conscientious teacher, and lived next door to the classroom in the teacherage.
“That investigation by the Pondera County Sheriff’s Office has found evidence of scuffling in the teacherage where said LANA HARDING resided. That a red and white striped tennis shoe was found outside the teacherage with bow tied. That there is evidence of an object being dragged from the teacherage. That a woman’s watch and blood stains were found in the same areas as the pickup truck driven by DUNCAN MCKENZIE, hereinafter referred to as Defendant, was observed on the evening of January 21, 1974, at approximately 8:00 to 8:30 o’clock P.M.
“That the said Defendant appeared highly nervous and excited and out of breath and asked Dan Pearson for assistance to get a *342 1950 black Dodge pickup truck started. That the said defendant resides in the house known as the old Frank Jochem place, located on the Southwest Quarter Northwest Quarter of Section Nine (9), Township Twenty-nine (29) North, Range Two (2) West. That Dan Pearson resides next to the teacherage directly north of the Defendant’s residence.
“That the pickup the Defendant was driving was a 1950 black Dodge pickup, and that upon the said Dan Pearson’s assisting the said Defendant in starting the pickup he observed the pickup stalled within one hundred (100) feet of the teacherage.
“That upon getting the pickup started the Defendant headed in an easterly direction passing the road south which leads to his house described above as the Frank Jochem place.
“WHEREFORE, the said Affiant, hereby prays for the issuance of a Search Warrant for the search of the said Defendant, DUNCAN MCKENZIE, residence located in the Southwest Quarter Northwest Quarter of Section (9), Township Twenty-nine (29) North, Range Two (2) West, and the surrounding building within the curtilage, and for a search of a 1950 black Dodge pickup driven by the Defendant on the night of January 21, 1974. That the object of the search would be to seize the instruments of the assault of the said LANA HARDING, including, but not limited to, the evidence as the whereabouts of the said LANA HARDING, to-wit: a brown long sleeve shirt, jeans and rubber overshoe boots, worn by the Defendant; and black coat, purple sweater, woman’s blouse with flower design, woman’s pink slacks and woman’s red and white striped tennis shoe, and any other contraband articles.
“DATED this 22nd day of January 1974.
“s/David H. Nelson
“David H. Nelson
“Pondera County Attorney
“On this 22nd day of January, 1974, before me the undersigned, *343 a Notary Public for the State of Montana, personally appeared, David H. Nelson, Pondera County Attorney, known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same.
“IN WITNESS WHEREOF, I have hereunto set my hand and affixed by Notarial Seal the day and year first above written.
The above instrument constituted the application for search warrant. At his deposition magistrate Wolfe testified that he relied upon this application plus the oral and unrecorded testimony of deputy Hoover as the sole basis for the issuance of the search warrant. The depositions of deputy Hoover and county attorney Nelson corroborated this testimony.
The magistrate then signed a search warrant which had been prepared by the county attorney’s office, and it is also set forth verbatim:
“IN THE JUSTICE COURT OF THE CONRAD TOWNSHIP OF THE STATE OF MONTANA IN AND FOR THE COUNTY OF PONDERA, BEFORE ROBERT O. WOLFE, Justice of the Peace
“THE STATE OF MONTANA TO WALTER L. HAMMERMEISTER, a Peace Officer of this State, or any other Peace Officer:
“A sworn application having been made before me by David H. Nelson, Pondera County Attorney, that he has reason to believe *344 that on certain premises the County of Pondera, State of Montana, and particularly described as being: The residence of Duncan McKenzie and the surrounding curtilage area known as the old Frank Jochem residence located in the
“Southwest Quarter of Section Nine (9) Township Twenty-nine (29)
North, Range Two (2) West Pondera County, State of Montana
“there are now located certain items of personal property and in a 1950 black Dodge Pickup truck there may be evidence as to the whereabouts of the said LANA HARDING, and other personal property described as, to-wit:
“A brown long sleeve shirt,
“Jeans
“Rubber overshoe boots
“worn by the defendant;
“a black coat
“Purple sweater
“Woman’s blouse with flower design
“Woman’s pink slacks
“Woman’s red and white striped tennis shoe
“and any other contraband articles.
“I am satisfied that there is probable cause to believe that the property described is in or upon the said described real property and 1950 Dodge pickup and further upon the sworn testimony of Deputy Sheriff, Jerry Hoover, taken before this Judge:
“You are hereby commanded to serve this warrant and search the place described above for the property specified, and if the property is found there to seize it, give a receipt for it, prepare a written inventory verified by you of the property seized and bring the property before me, all in the manner required by law.
“DATED this 22nd day of January 1974.
“s/Robert O. Wolfe_
“Justice of the Peace (Judge)”
*345 From the depositions of Wolfe, Hoover and Nelson it is not at all clear as to the sequence of signing the search warrant and the criminal complaint and arrest warrant. In any event, the charge of misdemeanor assault read as follows:
“That one Duncan McKenzie on or about the 21st of January, A.D. 1974 in the County of Pondera, State of Montana, committed the crime of ASSAULT, in the (sic) said DUNCAN McKENZIE then and there being, then and there did willfully, wrongfully and unlawfully committed the crime of ASSAULT, in the (sic) said DUNCAN McKENZIE then and there did, willfully, wrongfully, unlawfully and purposefully and knowingly cause bodily injury to LANA HARDING, contrary to the form, force and effect of the statute in such case made and provided, Section 94-5-201, and against the peace and dignity of the State of Montana.
“Such complaint therefore prays that a warrant may issue for the arrest of the said_and that he may be dealt with according to law.
“s/David H. Nelson_
Subscribed and sworn to before me on this 22nd day of January, A.D. 1947.
“s/Robert O. Wolfe
“Justice of the Peace”
During the taking of depositions magistrate Wolfe, county attorney Nelson and deputy Hoover were asked if magistrate Wolfe had administered an oath to Nelson before Nelson signed the complaint. Each of them testified he had not. However, on a later occasion, some seven months after defendant’s arrest, county attorney Nelson testified that he had asked magistrate Wolfe “if he was under oath”. There is no indication in the record that a reply was ever made to this question. And also seven months later, magistrate Wolfe testified that he could not remember administering the oath to county attorney Nelson but that it is his custom to do so and that he considered Nelson to be under oath. Magistrate Wolfe testified the probable cause used to allow the signing of the criminal misdemeanor assault complaint was the same as that which was used for *346 the isuance of the search warrant — namely, the sworn but unrecorded testimony of deputy sheriff Hoover and the written application for the search warrant signed by the county attorney.
Upon receiving the arrest warrant and search warrant, sheriff Hammermeister drove to defendant’s home, and soon thereafter commenced a general exploratory search.
The deputy waited in the car and two other deputies waited one hundred yards away as the sheriff went to confront defendant. The sheriff talked with defendant and his wife and then told defendant that he wanted to talk to him alone outside.
Outside he advised defendant of his rights and told him he was under arrest for the assault of Lana Harding and that if they found Lana Harding dead it would be homicide. Hoping that Lana Harding was still alive, sheriff Hammermeister encouraged defendant to tell him where she was and suggested that the prosecutor and judge would be more lenient on him if he told him where she was. They then went back into the house.
When defendant’s wife learned of the arrest warrant and search warrant, in the words of sheriff Hammermeister, “she went quite hysterical”. Sheriff Hammermeister immediately called his deputies into the house and the search commenced at approximately 7:30 p.m. and lasted until 11:30 p.m. During this time defendant remained handcuffed, first with his hands behind him, but later the handcuffs were taken off and he was cuffed with his hands in front of him. This was apparently in response to a request by defendant that he wanted to hold his children on his lap. The record does not disclose whether the sheriff allowed the defendant to hold his children.
The search that ensued was not confined to that of looking for the items listed on the search warrant; rather, it was a blanket search. The sheriff seized all property he thought might somehow fit into the case. He noticed what he thought to be blood and hair in the bed of the pickup truck and seized the truck and all its contents. He seized many items of men’s clothes that were not described in the search warrant. He forced defendant to strip and seize all the *347 clothes he was wearing. He cut off a piece of hair from defendant’s head and seized it as evidence. While defendant was stripped naked, the sheriff also “plucked” some pubic hair from defendant’s body. Finally, the sheriff and his deputies headed to town with defendant in custody and the bounty of their search in their possession.
On the following day, January 23, 1974, the sheriff filed with the magistrate a sworn statement listing the items he seized pursuant to the search warrant:
“RETURN AND RECEIPT OF SEARCH WARRANT
“JUSTICE COURT OF ROBERT O. WOLFE
“Judge Issuing
“I, W. L. Hammermeister, Sheriff, by authority of a search warrant directed to W. L. Hammermeister by this court on 22nd day of January 1974, have searched the premises described in the warrant and have seized the following items of personal property as directed by the warrant:
1 pair of red wing boots:
1 pair blue jean type pants taken off person:
1 pair of overshoes:
1 pair of cowboy boots taken off his person:
1 pair white shorts taken off person:
1 pickup and complete contents:
1 pair gloves black and white taken off person:
1 plaid jacket brown and white:
1 white T-shirt taken off person:
1 Air force type jacket taken off person:
1 pair white socks taken off person:
1 pen and jank knife taken off person:
Pubic hairs of suspect: head hairs of suspect.
*348 “This list is full and complete and contains every item siezed by me.
“W. L. Hammermeister, being first duly sworn, deposes and says that he is the person named in the above return and that he has prepared it; that all of the matters stated therein are true; that the list of personal property is true and complete; and that the property has been delivered to the proper judge.
“s/W. L. Hammermeister
“Sworn to and subscribed before me on 1-23-74.
“s/Robert O. Wolfe_
“Judge”
The only items on the return which can at least arguably be considered as being seized pursuant to the search warrant are a pair of blue jeans (taken from defendant’s person) and a pair of boots. All other items seized were not on the search warrant.
After defense counsel was appointed for defendant, they filed extensive supporting briefs in support of their arguments that the evidence should be suppressed because it was illegally seized. They also made a reasonable request.of the district judge that as to each of the contentions he make findings of in his order. Shortly after the hearing on the motion to suppress the following exchange took place:
“THE COURT: You want me to do what?
“DEFENSE COUNSEL: Include in your order a finding upon which you base your order.
“THE COURT: Certainly I will make a finding upon it. Your motion to suppress, I do not believe, was well taken. The evidence seized under an order — the term escapes me for a moment, but they obtained a search warrant. I found that it was validly issued on probable cause.
“DEFENSE COUNSEL: That is what I wanted the Court to make out.
“THE COURT: It is of record, the moment I state it is done but I will make it perfectly clear.”
*349 A short time later the court issued an order covering several defense motions. The entirety of the order based on the motion to suppress is:
“The defendant’s Motion to Suppress Evidence heretofore argued and briefed is hereby DENIED.”
Obviously, defense counsel had no way of determining why the court ruled the way it did, or even if the trial court seriously considered the motion to suppress. I can only conclude that it was not seriously considered.
After the jury returned with its guilty verdict and motions for a new trial had been made and argued, the court again ruled in a summary fashion as to all the grounds raised for a new trial, merely concluding the motion for new trial was denied. Again, defense counsel has no way of understanding the reasoning process of the trial court because of the order entered. The importance of setting out the reasoning processes of the trial court has been thoroughly set forth in Ballantyne v. Anaconda Co., (1978), 175 Mont. 406 , 574 P.2d 582 .1 must confess however that this Court did not do appreciably better in discussing the issues raised by defendant.
Based on what was contained in the application for search warrant and the testimony apparently given by deputy Hoover, was there probable cause to arrest the defendant? The majority’s legal analysis of the issue is faulty. In fact the opinion makes the unsupportable assumption that if there is probable cause to obtain a warrant of arrest the same set of facts also supports probable cause to obtain a search warrant. A first year law student would know that these issues are separate. But the majority wraps them together as one package:
“We disagree with defendant’s contention there was no probable cause for the arrest or search warrant. This Court in State ex rel. Garris v. Wilson, (1973), 162 Mont. 256 , 511 P.2d 15 , considered federal case law and the long standing rule in this jurisdiction on probable cause for arrest and search warrants noting: [My emphasis.]
*350 ‘“We reach this decision by application of the following standards: Only a probability of criminal conduct need be shown. ’
“Far more was shown here. See: State v. Troglia, (1971), 157 Mont. 22 , 482 P.2d 143 ; Spinelli v. United States, (1969), 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 .”
While concluding that far more than a probability of criminal conduct was shown here, the opinion does not say what it was. On this bald statement how can anyone conclude there was probable cause? Where the facts are not set forth no one would accept these conclusions. A probability of criminal conduct is not sufficient. There must also be a probability of defendant’s criminal conduct.
I fail to see any purpose for the Court to cite the Spinelli case by the United States Supreme Court, or the Troglia case, decided by this Court. They have absolutely no application to the facts of this case, although there was a discussion of probable cause to obtain a search warrant, as there almost invariably is in a search and seizure case arising out of the issuance of a search warrant.
Nor does State ex rel. Garris, supra, cited and quoted with approval by the majority, bear on the issues of this case. Indeed, the case supports defendant’s position. In Garris the police obtained a search warrant for a home in which Garris lived. The home was actually rented to someone else and Garris only rented a room. A detailed probable cause affidavit was provided the magistrate showing drug activity going on inside the house but not showing that Garris had anything to do with the activity. The police then searched his room and found drugs. This Court ordered the evidence suppressed, the underlying reason being that Garris was not tied in by the affidavit to any of the criminal activity and therefore the police were not at liberty to search his room pursuant to the search warrant obtained to search the entire house. Moreover, the language quoted by the majority as coming from Garris actually came from a federal case, Coury v. United States, (6th Cir. 19709), 426 F.2d 1354 . The implication is that this Court first used this language rather than adopting it from Coury . In any event, the issue was entirely different in Coury . There, the question *351 was not whether defendant was identified with any criminal activity — there was no question that defendant was involved in the activities. Rather, the issue was whether the activities in the affidavits of the FBI agents to obtain a search warrant constituted probable cause to conclude that the activities were criminal in nature. The FBI agents were investigating bookmaking activities. In concluding that there was “a probability of criminal conduct” the court summarized:
“The commissioner’s finding of probable cause was based on the three affidavits and the statement of Special Agent Thomas. The Thomas statement specifically set forth the underlying circumstances supporting his affidavit. Amont other things, it described his background as investigator of interstate gambling activities and stated that he had personally conducted an investigation of appellant, including surveillance of his home; that he knew appellant to be a bookmaker and a gambler, and knew of his prior conviction for bookmaking activities; also that telephone company records listed calls between appellant and known gamblers in other states. In addition, the Bishop affidavit cited telephone company records showing calls from another well-known gambler to appellant’s home. We agree with the district judge that the constitutional requirements for issuance of the warrants were satisfied.
“We reach this decision by application of the following standards: only a probability of criminal conduct need be shown * * 426 F.2d at 1356 .
It should also be noted that the Thomas affidavit incorporated by reference an attached statement which he had previously written thereby also causing it to become part of a sworn, written statement.
The foregoing is the genesis of the quotation of law misapplied in this case. In the context of this case the majority would have been accurate if they had stated that “only a probability of [the defendant McKenzie’s] criminal conduct need be shown.” But the majority never came to grips with this crucial issue. Common sense would dictate that this would have to be the law. Otherwise, the law of probable cause is meaningless.
*352 Indeed, the requirement of probable cause for an arrest warrant is covered by statute in this state. Section 95-603, R.C.M.1947, provides in relevant part:
“(a) A complaint, as the basis of an arrest warrant, shall be in writing.
“(c) If it appears from the contents of the complaint and the examination of the complainant and other witnesses, if any, that there is probable cause to believe that the person against whom the complaint was made has committed an offense a warrant shall be issued by the court for the arrest of the person complained against. * * *” (Emphasis added.)
The purpose of requiring probable cause either an arrest warrant or search warrant would issue has been declared in Wong Sun v. United States, (1963), 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 :
“* * * [It] serves to insure that the deliberate, impartial judgment of a judicial officer will be interposed between the citizen and the police, to assess the weight and credibility of the information which the complaining officer adduces as probable cause. * * *” 371 U.S. at 481, 482 , 83 S.Ct. at 414 .
Nor should the fundamental requirements of probable cause ever be relaxed, for as stated in Wong Sun.
“* * * The history of the use, and not the infrequent abuse, of the power to arrest cautions that a relaxation of the fundamental requirements of probable cause would ‘leave law-abiding citizens at the mercy of the officers’ whim or caprice.’ Brinegar v. United States, 338 U.S. 160, 176 , 69 S.Ct. 1302 , 93 L.Ed. 1879 .” 371 U.S. at 479 , 83 S.Ct. at 413 .
Several probable cause definitions have been adopted, but most of them essentially require that a reasonable man (a man of ordinary prudence and caution) have evidence before him that a crime has probably been committed and that the defendant probably committed the crime. In Stacey v. Emery, (1878), 97 U.S. 642 , 7 Otto 642 , 24 L.Ed. 1035 , the United States Supreme Court cited with approval several definitions adopted by the various states:
“* * * <A reasonable ground of suspicion supported by circum *353 stances sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of the offense with which he is charged. * * *’
“* * * ‘Such a state of facts would lead a man of ordinary caution to believe, or to entertain an honest and strong suspicion, that the person is guilty.’ * * *”97 U.S. at 645.
And this Court has quoted with approval several definitions of probable cause defined by other states. In State ex rel. Wong You v. District Court, (1938), 106 Mont. 347, 352-53 , 78 P.2d 353 , this Court quoted the following language with approval from State ex rel. Neville v. Mullen, (1922), 63 Mont. 50 , 207 P. 634 , stating:
“* * * ‘The terms “probable cause” are variously defined, but an analysis of the definitions will disclose that the difference, if any, is in the mode of expression, rather than in the substance. “Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of.” * * * “Probable cause [for a criminal prosecution] is, in effect, the concurrence of the belief of guilt with the existence of facts and circumstances reasonably warranting the belief.” * * * “The expression ‘probable cause,' as used in the federal Constitution, referring to the issuance of warrants, means that there is a probability that a crime has been committed by the person named in the warrant." * * *’” (Emphasis added.)
In making a statement of probable cause (whether it be for a criminal complaint and warrant of arrest or for the issuance of a search warrant) it is required that the application provide the underlying evidentiary basis for the issuance of the complaint (and arrest warrant), or search warrant. In State ex rel Samlin v. District Court, (1921), 59 Mont. 600 , 198 P. 362 , a case involving an application for a search warrant, this Court stated:
“* * * A warrant issued upon a conclusion of the applicant, without any facts stated in the application upon which the judicial officer to whom it is addressed may form his own conclusion, is not a showing of ‘probable cause supported by oath or affirmation’ *354 within the meaning of the guaranty. * * *” (Emphasis added.) 59 Mont. at 611 , 198 P. at 365 .
With the exception of the present case this Court has never abandoned this requirement in favor of a looser standard.
The United States Constitution makes no distinction between search warrants and arrest warrants in terms of establishing probable cause. In Ker v. California, (1963), 374 U.S. 23 , 83 S.Ct. 1623 , 10 L.Ed.2d 726 , the United States Supreme Court held that under the Fourth Amendment an arrest is a seizure and therefore must comply with the requirement of probable cause. If we did not require evidentiary facts to be contained in the application for criminal complaints or search warrants, the magistrate would be in no position to make an independent determination of probable cause. It is clear that under the United States Constitution the facts must be stated in detail and with specificity rather than by conclusionary statements. In the present case the testimony of the magistrate at his deposition shows that he did not have the slightest idea of what probable cause is, and in fact, applied the wrong standards:
“Q. Did Mr. Hoover tell you anything or give you any information that led you to believe — other than what you already told us here — that Duncan McKenzie committed the crime of assault upon one Lana Harding. A. No. The testimony that he gave and the facts that he told me about led me to believe that there was—
“Q. A possibility that a crime had been committed? A. A possibility that an assault had been committed. ” (Emphasis added.)
It is true that if the probable cause actually exists, the fact that the judge determines probable cause by using an erroneous standard, will not invalidate the issuance of either a criminal complaint and arrest warrant or search warrant. But here there is clear evidence that the magistrate himself thought that there was only the possibility that an assault had been committed. His discretion was moved by applying the wrong standard. An analysis, of. the facts presented to him shows no more than the possibility that an assault was committed and no more than.the possibility that defendant committed the possible assault.
*355 The constitution of this state contains a specific provision in relation to search and seizure of persons or things. Article II, Section 11, 1972 Montana Constitution provides:
“The people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures. No warrant to-search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing.”
This provision was adopted word for word from the former 1889 constitution. The only difference is that a period was placed after the word “seizures”, and then started again with a new sentence. In Nolan v. Brantly, (1897), 20 Mont. 173, 178 , 50 P. 410 , this Court held this provision to apply to probable cause to obtain a warrant of arrest for a person. Since there is no change in the provisions of the old and new constitutions, I am convinced that in order to obtain a warrant of arrest for a person, there must be “probable cause, supported by oath or affirmation, reduced to writing.” In this case neither requirement was satisfied.
The complaint filed in this case (ostensibly in affidavit form), contains no evidentiary foundation for the charge — only a bald conclusion that defendant committed an assault on Lana Harding on January 21, 1974. The only other written document is the application for search warrant, signed by county attorney Nelson. However, this is not in the form of testimony or sworn statement because it is not in affidavit form. It is merely a statement signed by the county attorney before his own secretary whereby she acknowledged the genuineness of his signature. For this reason this document should not and cannot be considered as a testimonial support for the charges. Nonetheless, even assuming that it could properly be considered as testimony, it did not establish probable cause, either alone or in conjunction with the testimony of deputy Hoover.
The only testimony of the complaint and arrest warrant (also used as support for the search warrant) is the oral unrecorded *356 testimony of deputy Hoover. At his deposition he tried to recall testimony he gave to magistrate Wolfe on January 22, 1974. There is also the deposition testimony of magistrate Wolfe who tried to recall the testimony that deputy Hoover had given three months earlier. The problems of trying to reconstruct testimony on such matters were pointed out by defense counsel where he states: “Unless the facts upon which their [the magistrate’s] discretion is exercised is reduced to writing a reviewing authority would ever be at a loss to determine whether probable cause did in fact exist at the time the warrant was issued. This could destroy the use of the exclusionary rule as directed by the United States Supreme Court in Mapp v. Ohio, (1961), 367 U.S. 643 , 81 S.Ct. 1584 , [1684] 6 L.Ed.2d 1081 ; and Ker v. California, (1963), 37 [374] U.S. 23, 83 S.Ct. 1623 , 10 L.Ed.2d 726 .” That is precisely the problem this Court was faced with, but it chose to bury the problem by an incomprehensible recitation of the facts in relation to the issue of probable cause.
There are other dangers of not reducing the testimony to writing or otherwise recording it (and the dangers apply equally if not more so to the issue of probable cause for a search warrant). Over a period of time, memories get faulty and at best one can reconstruct only a piecemeal version of what testimony was actually given before the magistrate in support of probable cause. Moreover, as the issues became more sharpened and defined, those who gave testimony and heard testimony, in an effort not to free a defendant because the “constable blundered” will seek to dovetail and synchronize their testimony, in the interest of justice of course. There is no way a defendant can fight this kind of institutional conspiracy.
Because of the so-called presumptions of regularity that abound as to official acts, the defendant, if he is to contest the actions of the government, has the unenviable task of deposing those who participated in giving and hearing the testimony in support of probable cause. But suppose the person who gave the testimony swears to one version of what he testified to and the magistrate who heard *357 the testimony swears to another version of the witness’ testimony. Assume that it is a crucial, pivotal issue. Whose word does the reviewing court believe — the person who gave the testimony or the magistrate who heard the testimony? In either event, is it fair to the defendant? The testimony reduced to writing in affidavit form or the testimony recorded on a tape recorder would have eliminated this problem. It is the only proper way to proceed.
While this has always been a problem in this state with regard to probable cause to file a criminal complaint, it was not a problem with regard to an application for a search warrant until the Court’s decision in this case. The law formerly was, and probable will still be (except for its application to the defendant in this case) that the facts constituting probable cause for a search warrant must be contained within the four corners of the affidavit in support of the application for the search warrant. If not, they will not and cannot be considered.
We must look first to who testified before the magistrate in support of the probable cause for the criminal charge and the search warrant. The majority opinion deceptively leaves the impression that the county attorney was sworn and gave testimony (although unrecorded) in support of the probable cause:
“* * * Here, unlike Gray, there was, in effect, sworn testimony by the county attorney and deputy sheriff in addition to the affidavit, and the combination thereof established probable cause. * * *” (Emphasis added.)
But such is not the case at all. At his deposition taken three months after defendant was arrested, the county attorney testified:
“Q. Do you know of any other evidence or information that could have been given or was given of your own knowledge, to the Justice of the Peace other than what is contained in your Affidavit or the testimony of Jerry Hoover? A. I know of none, no. At that time I didn’t know at the—
“Q. You didn’t know what? A. I didn’t know of any other information at the time of the Search Warrant and application for it.
“Q. That isn’t what I asked. I asked do you know whether or not *358 any other evidence was presented to the Justice of the Peace. A. No. None.
“Q. Nothing other thán what is contained in your Affidavit and the testimony given by Jerry Hoover. A. Right.”
The “Affidavit” referred to here, and also referred to by the majority as an “affidavit” (but never discussed or analyzed, even though defendant raised this as an issue) was nothing more than a signature acknoledgement witnessed by the county attorney’s secretary. It was not a sworn document in the form of an affidavit.
The deposition testimony of deputy Hoover and magistrate Wolfe, also confirms the testimony of the county attorney. (It should be noted here also that the references in their testimony to an “Affidavit” is in fact the signature acknowledgement witnessed by the county attorney’s secretary). Deputy Hoover testified as follows:
“Q. But my question initially was whether or not you know of any other information, other than what you told the Justice of the Peace and what was contained in the Affidavit of the County Attorney, that was presented to him? A. No, not that I know of.”
The deposition of magistrate Wolfe confirmed this testimony:
“Q. Based upon the testimony of Mr. Hoover and this Affidavit, you issued a Warrant of Arrest? A. That is correct.
“Q. And you issued a search warrant.? A. That is correct.
“Q. Was there any other testimony or information brought to your attention that was not included in the sworn statement of Mr. Jerry Hoover, the Deputy Sheriff, or in this Affidavit? Was there any other evidence brought to your attention at that time? A. Not as far as I can remember.
Accordingly, the majority opinions is totally in error in concluding that county attorney Nelson gave testimony in addition to what was contained in the “affidavit”. And this is not the only manner in which the opinion is rather slippery with the facts.
We know by the deposition testimony of county attorney Nelson, magistrate Wolfe, and deputy sheriff Hoover, that only Hoover’s *359 testimony and the written application signed by the county attorney was used as a basis for the probable cause statement. However, the majority opinion states:
“* * * County Attorney Nelson testified he had been at the scene with the sheriff and his deputies during the afternoon and just prior to his coming to town to get the warrants issued. At the hearing [it appears the majority is talking about the original so-called hearing where the probable cause statements were given to magistrate Wolfe] he said in response to a question [a question from the magistrate, or a question from the lawyer who was taking his deposition] of what knowledge he had of the facts:
“ ‘A. Well, without looking at the affidavit now — I think the first paragraph or two is my statement as to what I determined, that she was missing and may have been the victim of foul play but of what nature we didn’t know at the particular time, and that she resided at the teacherage.’”
The fact is that the answer was given to a question asked of the county attorney by defense counsel when he was being deposed three months after issuance of the arrest warrant and search warrant. How this can add anything at all to a statement of probable cause for arrest warrants and search warrants is incomprehensible. In fact, the statement itself indicates that all concerned had only determined that Lana Harding was missing (which was not too difficult to determine) and that she “may” have been the victim of “foul play”. That one may have been the victim of foul play does not establish probable cause to arrest a person for misdemeanor assault and to obtain search warrants to search his house and his truck.
And again the majority appears to leave the impression that the Pearsons testified before the magistrate as to defendant having been parked in the road near the teacherage on the evening of January 21, 1974. Mrs. Pearson was not even involved in going with defendant to help get his truck started. Moreover, what Dan Pearson knew of the facts was only repeated to the magistrate through the lips of deputy Hoover.
*360 The majority also states that “it was there that the victim’s watch Was found in a pool of blood by the investigating officers before going to town to get the warrants.” Again, the opinion is misleading. At the time the warrants were obtained the watch had not been identified as belonging to anyone. And neither was the watch found in a pool of blood. At his deposition concerning his previous testimony given to the magistrate, deputy Hoover only testified that a woman’s watch was found on the road and nearby was what appeared to be blood. Magistrate Wolfe testified as to the watch and the blood as follows:
“* * * Hoover then went on to relate that in the roadway there was a ladies watch that was found and it was broken — I’m not sure now whether it was broken or not — but they found a ladies wristwatch there. They also found a pool of liquid substance that looked like it was blood, and at that time they could not verify whether it was blood or if it was human blood or what it was. They had taken samples of this sent it into the office of a pathologist to have examinations run on it.”
I first discuss the written application for search warrant. While the majority did not discuss the factual basis for its conclusion, it is fair to say that they believed the application for search warrant was insufficient in and of itself for either an arrest warrant or search warrant. Otherwise, I presume they would not have made the following statement:
“* * * In addition, the county a'ttorney examined Deputy Hoover before the justice of the peace as to facts he learned during the investigation. Here, unlike Gray, three, was, in effect, sworn testimony by the county attorney and deputy sheriff in addition to the affidavit, and the combination thereof established probable cause. * * *” (Emphasis added.)
An examination of the application certainly supports the conclusion that the application was not sufficient by itself.
The application violates one of the fundamental requirements that conclusions are not sufficient. There must be an evidentiary basis for the conclusion. Here, several conclusions were made with no evidentiary foundation:
*361 “* * * sheriff’s office has found evidence of scuffling in the teacherage;”
“* * * there is evidence of an object being dragged from the teacherage;”
“* * * that * * * blood stains were found;”
“* * * said defendant appeared highly nervous and out of breath * * *.”
There is no way that an impartial magistrate could make an independent conclusion as to the sufficiency of these statements.
In Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 , the United States Supreme Court quoted Giordenello v. United States, (1958), 357 U.S. 480 , 78 S.Ct. 1245 , 2 L.Ed.2d 1503 as setting forth the “guiding principles upon which probable cause is based:
“* * * the inferences from the facts which lead to the complaint ‘[must] be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.’ * * * The purpose of the complaint, then, is to enable the appropriate magistrate * * * to determine whether the ‘probable cause’ required to support a warrant exists. The Commissioner must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complaint’s mere conclusion * * *.” (Emphasis added.)
In the present case the entire application for search warrant contained only “mere conclusions” with no underlying factual basis. And there is yet another glaring defect in the application. That portions of the application placing defendant near the teacherage in his stalled pickup on January 21 is not only based on hearsay, but we cannot conclude Dan Pearson (the informant, so to speak) was personally interviewed by any member of the sheriff’s office. While it is true that hearsay can be relied on to help establish probable cause, there must be a basis in the application itself whereby the magistrate can conclude that the hearsay informant is trustworthy *362 and reliable. If this is not done, then the hearsay evidence cannot be used to establish probable cause. Aguilar v. Texas, supra.
The hearsay problems in this case are much worse than those which existed in Aguilar . There, the applying officer talked directly to the informant, but in his application set forth no basis from which the magistrate could conclude that the informant was trustworthy and reliable. In the present situation there is no basis to conclude who it was that Dan Pearson talked to:
“* * * that a woman’s watch and blood stains were found in the same area as the pickup truck driven by Duncan McKenzie, hereinafter referred to as defendant, was observed on the evening of January 21, 1974, at approximately 8:00 to 8:30 o’clock P.M.
“That the said Defendant appeared highly nervous and out of breath and asked Dan Pearson for assistance to get a 1950 black Dodge pickup truck started. That the said defendant called his wife from Dan Pearson’s home.
“That the pickup the Defendant was driving was a 1950 black Dodge pickup, and that upon said Dan Pearson’s assisting the said Defendant in starting the pickup stalled within one hundred (100) feet of the teacherage.
“That in getting the pickup started the Defendant headed in an easterly direction passing the road south which leads to his house described above as the Frank Jochem place.”
From the above we cannot conclude that Dan Pearson told this to deputy Jerry Hoover or any other member of the sheriff’s office. In fact, it cannot be determined how this information was acquired. The county attorney, who signed the application for search warrant certainly did not talk to Dan Pearson. This, combined with a failure in any way to attribute reliability or trustworthiness to Dan Pearson’s statement (to someone), leaves no doubt that the written application is fatally defective.
Assuming moreover, that the application properly presented evidence of defendant’s presence near the teacherage on January 21, it does not reasonably allow a conclusion that he assaulted Lana Harding or committed any other crime. Obviously, law en *363 forcement officers would have wanted to talk to him to determine if he had any knowledge of her whereabouts. Assuming the inferences in the application that Lana Harding was forcefully abducted from the teacherage, there is no time stated when this was done. Was it before 8:00 or 8:30 p.m. on January 21, or was it after 8:00 or 8:30 p.m. on January 21, but before sunrise the following morning. This we cannot tell from the application. Needless to say, there was no basis to conclude that defendant had caused her disappearance. There was a possibility that he may have had something to do with her disappearance. Therefore, the defendant should have been under suspicion. That he should have been arrested — absolutely not.
There is yet another reason why the application for search warrant should not be considered, either alone, or in conjunction with the oral, unrecorded testimony of deputy Sheriff Hoover, as probable cause for an arrest warrant (or search warrant) — the application is not a sworn document. The jurant to the application reads:
“s/David H. Nelson_
“David H. Nelson
“Pondera County Attorney
“On this 22nd day of January 1974, before me the undersigned, a Notary Public for the State of Montana, personally appeared, David H. Nelson, Pondera County Attorney known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that executed the same.
“IN WITNESS WHEREOF, I have hereunto set my hand and affixed by Notarial Seal the day and year first above written.
*364 It takes no legal giant to conclude that the county attorney did not sign a sworn statement. He merely signed an unsworn statement and his secretary acknowledged that he did sign the statement. An acknowledgement is defined as follows:
“Formal declaration before authorized official, by person who executed instrument, that is is his free act and deed. (Citing authority.) The certificate of the officer on such instrument that it has been so acknowledged. (Citing authority.)”. Black’s Law Dictionary, 4th Edition, p. 39.
On the other hand, an affidavit is defined as:
“As written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having the authority to administer such oath. (Citing authority.) A statement or declaration reduced to writing, and sworn to or affirmed before some officer who has authority to administer an oath or affirmation. (Citing authority).” Black’s Law Dictionary, 4th Edition, p. 39.
The form normally used in this state at the bottom of the document, to constitute an affidavit, is as follows:
It must be remembered that defendant contended that even the complaint was deficient because although in affidavit form, the magistrate never did officially swear county attorney Nelson to *365 swear to the truth before he signed the complaint. Accordingly, the majority opinion leaves the false impression where it stated:
“A summary of the testimony shows Justice of the Peace Wolfe testified [at the hearing on the motion to suppress] he customarily swears all witnesses though he did not recall swearing in the county attorney, he considered him sworn.”
The impression left by the statement is that the county attorney was sworn with relation to three matters: (l)The oral testimony he gave in support of the arrest warrant and search warrant. (We have already seen where deputy Hoover, magistrate Wolfe, and county attorney Nelson himself testified he offered nothing in support of the probable cause statements.) (2)The criminal complaint signed by the county attorney charging defendant with misdemeanor assault. And, (3) the application for search warrant signed by the county attorney, but which was not in affidavit form.
The unequivocal testimony of magistrate Wolfe when he testified he customarily swears in witnesses, was in relation to swearing in witnesses before they would be allowed to sign a criminal complaint. His testimony was:
“When he puts his signature on that I take that he swore to his complaint as being true and correct. The only individual to my recollection that was sworn in orally was Mr. Hoover.” (Emphasis added.)
It is clear therefore, that magistrate Wolfe did not testify that county attorney. Nelson swore to the contents of the application for search warrant. Indeed, the county attorney had already signed this document in front of his secretary.
Section 95-603 does not explicitly require the testimony to be taken by the magistrate, and by implication the testimony could be given in the form of an affidavit before any notary, and then filed with the magistrate as part of or as probable cause to file a criminal complaint. Obviously, it would be preferable to have all sworn statements taken under oath before the magistrate. Nonetheless, there is one rock bottom requirement, and that is that the statement, whereever taken, be in fact a sworn statement. And *366 that is precisely the problem here. While conceivably the county attorney could sign a sworn statement before his secretary (who was a notary), here there was no sworn statement at all. Accordingly, the application for search warrant could not be considered as fulfilling in whole or in part the requirements of probable cause. Its form prevented it from being considered as such.
I next discuss the oral testimony allegedly given by deputy sheriff Hoover to magistrate Wolfe before the issuance of the arrest warrant and search warrant. In doing so I assume for argument purposes, that the application for search warrant signed by county attorney Nelson, was in proper form and therefore could be considered as part of the probable cause application. In this context the question becomes whether the document signed by the county attorney, when considered in conjunction with the unrecorded testimony of deputy sheriff Hoover, constitutes probable cause to obtain an arrest warrant and search warrant.
The oral testimony allegedly given by deputy Hoover to magistrate Wolfe did help to fill in some holes in the signed application for search warrant, but they were inconsequential holes, and under no circumstances was there probable cause to conclude that defendant had assaulted Lana Harding or had committed any other crime upon her. Again, we must start with a reconstruction of this testimony through the depositions of deputy Hoover, magistrate Wolfe and county attorney Nelson, some three months after the arrest.
Essentially, the testimony revolved around those statements that were “mere conclusions” in the county attorney’s application: evidence of scuffling in the teacherage; a woman’s red shoe outside the teacherage; a drag trail outside the teacherage; blood stains and a woman’s watch on the road; defendant going to Dan Pearson’s home out of breath and asking him to push his truck (and calling his wife); defendant’s pickup truck being parked on the road near the teacherage. There was no testimony as to why the objects sought to be seized (Lana Harding’s clothes, and defendant’s clothes) were probably either in his house or in his pickup truck. (I *367 will discuss this topic later, as it directly bears on probable cause to. obtain a search warrant.)
The crucial testimony of Hoover as to what he told magistrate. Wolfe is as follows:
“Q. Give us, as best you can, the substance of your testimony to the Justice of the Peace — your sworn testimony to the Justice of the Peace. A. I explained to him about the sheriff receiving a phone call and about the Sheriff and myself driving out there, and what we had observed inside the teacherage.
“Q. Give us again what you observed. A. Well, I observed the eyeglasses on the floor in the bedroom and the throw rugs pushed up together against each other, and the scuff marks on the floor.
“Q. Where were these throw rugs? A. The exact location of them.
“Q. Yes. What room were they in.? A. They were in the kitchen.
“Q. Go ahead now. A. And about the tennis shoe being outside on the porch and the drag trail, and the blood on the road and the watch. That’s about it.
“Q. Did you relate to the Justice of the Peace any of the story-told you by Mr. Pearson? A. Yes, I did. I believe I did. I really couldn’t say unless I — yes, I did.
“Q. What did you tell the Justice of the Peace as it related to Mr. Pearson’s story to you? A. About Mr. Pearson giving the subject a push in the approximate location of the blood and watch on the road there.
“Q. Anything else? A. And about the subject telling Dan Pearson where he was living, and maybe a description of the vehicle that the subject was driving, and I also believe what the subject looked like.
“Q. How about the fact that Mr. McKenzie used the telephone? Did you tell the Justice of the Peace about that? A. Yes, I did. I told him about the subject using the telephone and also about him being somewhat nervous and stating that he had stated to Dan *368 Pearson that he had ran a long ways, and that he talked very rapidly and seemed awfully nervous.”
The only other testimony relevant here is that the county attorney asked him a question as to whether he had described defendant’s clothing to the magistrate:
“Q. When you made your appearance before Judge Wolfe and were sworn, do you recall whether or not you testified as to the appearance of Duncan McKenzie on Monday evening — the physical appearance as to the clothes he was wearing? A. Yes, I believe that! did.
“Q. What did you get this information from? A. From Dan Pearson.
“Q. Do you recall what articles you described to Judge Wolfe? A. Well, I could—
“Q. I mean without referring to your notes. A. I would have to refer to my notes, Dave, to really make it positive.” )
The county attorney was also deposed, and although he díá not testify at the hearing held to determine the initial probable cause, he did testify as to what he had heard at the hearing:
“Q. You heard both Mr. Hoover and the Justice of the Peace give their depositions here today. A. Yes, I did.
“Q. Is there anything different that you could relate to us that might have been left out or misunderstood or misstated here? A-. I do recall that the Deputy did describe the clothing that Mr. McKenzie was wearing on that night to the Justice of the Peace, although the Justice of the Peace didn’t recall that in his deposition.
“Q. That is the clothing that Mr. McKenzie was wearing on the night of the 21st? A. Yes.
“Q. And this information would have come from— A. Deputy Sheriff Hoover.
“Q. Through Dan Pearson. A. Yes.
“Q. It wasn’t something that the Deputy knew himself? A. No.
“Q. Or that you knew yourself? A. No.”
*369 Magistrate Wolfe testified contrary to both deputy Hoover and county attorney Nelson on the question of a description of defendant’s clothing being given to him through deputy Hoover:
“Q. Now with reference to those items, the brown long sleeve shirt, the jeans, and the rubber overshoe boots, what did Mr. Hoover tell you as to why they wanted these things? What did he tell you that led you to believe that these particular items were related to this case?
“* * *
“Q. What about the shirt and jeans and rubber overshoe boots? A. Well, I don’t know that they mentioned those, to tell you the truth.
“Q. You didn’t inquire of them as to why they wanted them, that you can recall? A. Not that I recall, no.”
The question that naturally arises from this testimony is who is telling the truth and (even if one is not deliberately lying) how do you resolve the factual dispute? Do you believe the deputy sheriff and the county attorney or do you believe the magistrate? Certainly, three months later, when defense counsel was zeroing in on what happened, the deputy sheriff and county attorney suddenly knew they had their interests to protect — that somehow they had to save the arrest warrants and search warrants. The only reason this problem cropped up is because the magistrate allowed the oral nonrecorded testimony — and did not follow the law.
Concerning the “evidence of scuffling” in the teacherage, the magistrate testified that Hoover told him he found scuff marks on the floor, a pair of woman’s glasses on the bedroom floor, and two “drop mats” were “out of place”. He confirmed that Hoover told him a woman’s tennis shoe was found outside the teacherage. He stated that Hoover told him there were drag marks leading from around the corner of the teacherage through an open field, under a fence, then into a barrow pit, and up to the road near where a woman’s watch was found and a substance “that looked like it was blood”.
In response to direct questions as to why he ordered defendant ar *370 rested he replied that it was because his vehicle had been stalled “in the area of where those drag marks came up to the road and where this substance that appeared to be blood was located” and that “all the testimony led to Duncan McKenzie coming to Dan Pearson’s place of residence and requesting help in getting his vehicle started, and that he appeared in Dan Pearson’s residence in a state of excitement”.
Thus we have a situation where the magistrate placed total credence and based his entire decision to issue an arrest warrant (and search warrant) on the hearsay testimony of deputy Hoover as to what Dan Pearson allegedly told deputy Hoover. There is not one hint in the record that either Hoover or Wolfe knew Pearson, or otherwise considered him to be a reliable person. In fact, Wolfe testified that he did not know Pearson. In any event, the ultimate conclusion which magistrate Wolfe reached when he decided to issue the warrants was that “a possibility that an assault had been committed”.
Clearly, under any fair reading of the “facts” presented to the magistrate either in the application for search warrant, or in conjunction with the unrecorded testimony of deputy Hoover, there was no probable cause to issue the arrest warrant (or to issue the search warrant).
I now reach the issue of the search warrant itself. Much of what I have already discussed applied equally to the search warrant situation, and I will make passing reference. However, there are three key issues that bear on search warrants that do not bear on probable cause to issue a warrant of arrest. The first issue concerns the drastic departure by this Court from previous law which required that the grounds for issuance of a search warrant must be contained within the four corners of the sworn application for a search warrant or affidavits in support of the search warrant. That the majority opinion flies in the face of our constitution does not seem to move them at all. The second issue concerns the crucial inquiry or focal point when considering whether or not to issue a search warrant. The majority did not even touch on this issue, although it *371 is of the very essence of the requirement of probable'cause to obtain a search warrant. The third issue concerns the conversion of the search warrant issued in this case into a general exploratory search warrant, limited only by the imagination of those who conducted the search.
To get some idea of the complete change this Court had made in the law of search and seizure in this case, and yet refuses to acknowledge it, it is necessary to put the cases they have cited in their proper context. I again quote the language of the majority opinion:
“* * * Here, there is an affidavit signed by the county attorney and made a part of both warrants. * * '' In addition, the county attorney examined Deputy Hoover before the justice of the peace as to the facts he learned during the investigation. Here, unlike Gray, there was, in effect, sworn testimony by the county attorney and deputy sheriff in addition to the affidavit, and the combination thereof established probable cause.” (Emphasis added.)
There is no question then that this Court held that sworn unrecorded testimony in addition to a signed “affidavit” is sufficient to establish probable cause not only for a warrant of arrest, but also for a search warrant. By so doing, the Court radically changed the law in this state.
The cases cited and misapplied by the majority must be placed in the context of the Montana constitution provisions relating to search and seizures. At the time Petition of Gray, (1970), 155 Mont. 510 , 473 P.2d 532 , was decided, Montana was still operating under its- old 1889 constitution. The search and seizure provision, Article III, Section 7, provided:
“The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures, and no warrant to search any place or seize any person or thing shall issue without first describing the place to be searched, or the person or thing to be seized, nor without probable cause, supported by oath or affirmation, reduced to writing.” (Emphasis added.)
Gray involved an interpretation of this constitutional provision *372 where sworn, recorded testimony was used to buttress an affidavit seeking a search warrant. Gray was arrested in May 1967 on a charge of burglary and two days later a deputy county attorney filed a “Complaint and Affidavit for Search Warrant”. That document included the statement that the deputy county attorney “has actual knowledge and does believe” that certain stolen articles were at defendant’s residence. In addition to this affidavit, a recorded deposition was taken from the deputy county attorney in the presence of the district judge. The judge issued the search warrant.
At the hearing on the motion to suppress the district judge stated he issued the warrants because of the affidavit and deposition and because of other information he had received in chambers from various officers as well as his personal knowledge and information concerning Gray. On appeal this Court held that the search warrant was “illegally issued and void”. This Court looked to the affidavit alone to determine if it contained sufficient facts or circumstances to establish probable cause for issuance of the search warrant. This Court stated:
“Nor can the issuance of the search warrant be upheld on the basis of information not contained in the affidavit, the affidavit itself being required to provide the exclusive support for issuance of the search warrant.
“* * *
“* * * the sufficiency of an affidavit supporting a search warrant must be found within the four corners of the affidavit itself and reference may npt be made to oral conversations that took place before the commissioner * * (Emphasis added.) 155 Mont. 519, 520 , 473 P.2d 532, 537 .
Clearly, under Gray, assuming it still to be the law today, magistrate Wolfe would not have been allowed to consider anything but the application signed by the county attorney, assuming that it in fact was an “affidavit”.
In 1973, the new constitution went into effect in this state, and the language in the constitution did not change one word, although *373 a period was placed at the end of “seizures”. Article II, Section 11, of the new constitution provides:
“The people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures. No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing.” (Emphasis added.)
Since the constitutional provision did not change, it is only reasonable to assume that Gray continued to be the law. And that is precisely what this Court held in State ex re. Townsend v. District Court, (1975), 168 Mont. 357 , 543 P.2d 193 . There, the application (affidavit) for search warrant included a statement that an informant had advised the authorities that marijuana plants were growing in Townsend’s residence and that a second informant had substantiated the information. There were no other written facts submitted to the magistrate. However, the magistrate orally examined the applicants for the search warrant (just as magistrate Wolfe examined deputy Hoover). And just as this case, the content of the oral examination was uncertain because it was not reported or transcribed in any fashion. In a special proceeding before this Court, Townsend contended that the affidavit was insufficient on the basis of Article II, Section 11, 1972 Montana Constitution, and on the basis of State v. Gray, supra. The State contended that sworn testimony to the magistrate at the time of the application for the search warrant could supplement an otherwise deficient affidavit. This Court, in an unanimous opinion, decided the issue as follows:
“We now consider whether a deficient affidavit may be cured by responses to oral inquiry from a magistrate made at the time the application is submitted. Relevant to this line of inquiry is Article II, Section 11, 1972 Montana Constitution which provides in pertinent part:
“‘* * * No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the *374 person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing.’
“Consistent with the requirement of a writing are the supporting statutory provisions, section 95-703, R.C.M.1947, defining the term ‘search warrant’ and section 95-704, R.C.M.1947, listing the grounds upon which a search warrant may issue.
“Here, it is respondents’ contention that the officer’s sworn testimony to the magistrate at the time of the application for the warrant may be used to supplement an application deficient on its face. We find this conclusion to be unsupported by Montana law. This question was considered in Petition of Gray, 155 Mont. 510, 519, 520 , 473 P.2d 532, 537 . There this Court ruled that the issuance of a search warrant cannot be upheld on the basis of information not contained in the affidavit, the affidavit itself providing the ‘exclusive support' for such issuance. In doing so, Montana joined those states adhering to the so-called ‘four corners’ rule, set out in Gray:
* * the sufficiency of the affidavit supporting a search warrant must be found within the four corners of the affidavit itself and references may not be made to oral conversations * * *. We see no reason to reach a contrary result in the instant case particularly, where as here, the conversations were unsworn, unwritten, and unsigned.’
“Contemporaneous oral declarations to a magistrate cannot be used to bolster an insufficient affidavit in the attempt to establish probable cause, unless such declarations are sworn, signed, reduced to writing, and made a part of the affidavit.” (Emphasis added.) Townsend, 1968 Mont. 362 , 543 P.2d 193 , 196.
Undoubtedly, this Court in Townsend affirmed the holding in Gray. There is no question that it was compelled to do so in light of our constitutional and statutory provisions. Indeed, as recently as 1976, in State v. Thompson, (1976), 169 Mont. 158 , 545 P.2d 1070 , this Court affirmed the requirements of Gray and Townsend, although the case turned on a different ground. In Thompson the county attorney prepared an application for a search warrant to *375 search Thompson’s residence as a result of information received from an informant. Two police officers, the informant, and the county attorney went to the judge’s home to procure the search warrant. The judge considered the application, examined one officer and the informant under oath, and issued the warrant. This Court upheld the search warrant but only because the sworn, written application for the search warrant signed by the county attorney was held by itself to be “wholly sufficient to establish probable cause”. In so holding, this Court again approved its prior ruling in Townsend that “the affidavits for search warrant cannot be supplemented by oral statements to the magistrate” to establish probable cause.
Gray, Townsend and Thompson leave no doubt that probable cause for the issuance of the search warrant must be contained within the four corners of sworn, written documents presented to the magistrate to establish probable cause. The majority here used two pages apparently trying to distinguish Gray and Townsend— but in doing so failed to recognize the pivotal point of its decision: The Court allowed the application signed by county attorney Nelson (the so-called affidavit) to be supplemented by the sworn nonrecorded testimony of deputy Hoover (and the nonexisting testimony of the county attorney) to establish probable cause. That is precisely what Gray and Townsend, both adhering to the four corners doctrine, prohibited.
In addition to the Court’s failure to recognize the obvious, there are several factual errors contained in its apparent attempt to distinguish Gray and Townsend.
As to Townsend, the majority stated: “In Townsend nothing was reduced to writing. Here, there is an affidavit signed by the county attorney and made a part of both warrants. * * *” (Emphasis added.) This is patently false. The clear impression in Townsend is that there was an affidavit in writing, submitted to the magistrate but by itself it did not establish probable cause, and therefore the oral evidence taken by the magistrate could not be allowed to supplement the insufficient affidavit. The Court held that the combina *376 tion thereof could not establish probable cause. Assuming moreover, that there was no writing in Townsend, it does not detract from the Court’s holding therein that any application for a search warrant must be in writing and sworn to, and that the probable cause must be contained within the four corners of the writing itself.
As to Gray, the majority stated:
“In addition [apparently in addition to the so-called affidavit] the county attorney examined Deputy Hoover before the justice of the peace as to facts he learned during the investigation. Here, unlike Gray, there was, in effect, sworn testimony by the county attorney and deputy sheriff in addition to the affidavit, and the combination thereof established probable cause. * * *” (Emphasis added.)
What nonsense. In Gray, in addition to an actual affidavit filed by the deputy county attorney, the deputy county attorney gave recorded, sworn testimony before the district judge as part of the probable cause application. This Court expressly held that the four corners doctrine prohibited any consideration of the recorded sworn testimony of the deputy county attorney.
There is yet another factor here, since the majority relies so heavily on the county attorney’s “affidavit”. It would seem that in such event, if this Court is going to allow a combination of oral nonrecorded testimony in addition to an “affidavit” to establish probable cause to obtain a search warrant, that in such event, the “affidavit” should in fact be an “affidavit”. Here, the proof is unequivocal that the county attorney simply appeared before his own secretary and acknowledged to her that he signed the document involved. (See statement of facts, supra.)
In addition to the foregoing, in their attempt to muddy the waters as to the application of Gray, and Townsend to the facts of this case, the majority has made several other factual errors. I have, however, sufficiently discussed them elsewhere.
Gray, Townsend and Thompson leave no doubt that defendant’s motion to suppress should have been granted. This Court neither *377 had the courage to apply these cases to the benefit of the defendant, nor, on the other hand, to expressly overrule them. Of course, by keeping the door open under the guise of distinguishing Gray and Townsend, this Court has served notice on potential defendants that if they are charged with a less gruesome crime they may get the benefit of these cases. By failing to either honestly apply these cases to the benefit of defendant or by failing to overrule these cases this Court has perpetrated a cruel hoax on the defendant.
The dishonesty of the majority opinion is manifest by its failure to cover two factors which are absolutely indispensable to finding probable cause to issue a search warrant —namely, that the items sought are in fact seizable by virtue of being connected with some criminal activity, and that the items can be found at the place to be searched. Here the object of the search (at least ostensibly) was to find defendant’s clothing and Lana Harding’s clothing. There is not one reference in the opinion that clothing was the object of the search. Moreover, there is not one reference in the opinion as to what evidence was used to determine that the clothing was probably in the defendant’s home or in his pickup truck. The reason is obvious — to discuss these crucial factors would be to admit that there was no probable cause.
The application for search warrant confines the object of the search to that of looking for clothing. However, the application does not state one fact that would lead one to conclude that the clothing sought was either in defendant’s home or in his pickup truck. (Neither did the oral testimony of deputy Hoover cover this point.) The application for search warrant specifically stated in the prayer:
“* * * That the object of the search would be to seize the instruments of the assault of the said LANA HARDING, including, but not limited to, the evidence of the whereabouts of the said LANA HARDING, to-wit: a brown long sleeve shirt, jeans and rubber overshoe boots, worn by the Defendant; and black coat, purple sweater, woman’s blouse with flower design, woman’s pink slacks and woman’s red and white striped tennis shoe, and any other contraband articles.”
*378 And the search warrant specifically set out the clothing which was the object of the search and as to that the magistrate found:
“I am satisfied that there is probable cause to believe that the property described is in or upon the said described real property and 1950 black Dodge pickup and further upon the sworn testimony of Deputy Sheriff, Jerry Hoover, taken before this judge;”
The record is not only deficient, it is devoid of any evidence from which the magistrate could conclude that the clothing was either in the house or the pickup truck.
Given the total lack of candor in dealing with the facts it is not surprising then that the majority has overlooked the fundamental distinction between probable cause to obtain an arrest warrant and probable cause to issue a search warrant. To justify an arrest warrant the evidence presented to the magistrate must relate to the guilt of the person to be arrested. On the other hand, to justify a search warrant, the evidence presented to the magistrate must relate to the items sought and the location of the items sought. The Fourth Amendment to the United States Constitution and Article II, Section 11 of the 1972 Montana Constitution both provide that no warrant shall issue unless there is “probable cause”.
The issue of probable cause for a search warrant then becomes— probable cause as to what? Does it mean that because there is probable cause to arrest a person for a crime that there is ipso facto probable cause to search his home and other belongings? Does it mean that if a person has already been arrested on probable cause that his arrest ipso facto converts into a right to search his home or other belongings? Surely, this cannot be so. Probable cause in the context of a search warrant means that there is sufficient reason to search a particular place for particular items. The evidentiary foundation must be directed toward that end. If not satisfied, there is no basis to issue a search warrant. It is that simple.
The distinctions between probable cause to issue an arrest warrant and probable cause to issue a search warrant, have been discussed as follows:
“Basic to search warrant protections is the requirement of prob *379 able cause. Its function is to guarantee a substantial probability that the invasions involved in the search will be justified by discovery of offending items. Two conclusions necessary to the issuance of the warrant must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched. By comparison, the right of arrest arises only when a crime is committed or attempted in the presence of an arresting officer or when the officer has ‘reasonable grounds to believe’ — sometimes stated ‘probable cause to believe’ — that a felony has been committed by the person to be arrested. Although it would appear that the conclusions which justify either arrest or the issuance of a search warrant must be supported by evidence of the same degree of probity, it is clear that the conclusions themselves are not identical.
“In the case of arrest, the conclusion concerns the guilt of the arrestee, whereas in the case of search warrants, the conclusions go to the connection of the items sought with crime and to their present location.” Comment, 28 U.Chi.L.Rev. 664, 687 (1961). (Emphasis added.)
The following comment in the- same article, was made concerning probable cause to search incident to arrest. However, it applies equally as well to search warrants in relation to the probability that the items sought are at the place to be searched:
“What remains to be supported by probable cause in the case of search incident to arrest is the conclusion that the fruits or instrumentalities sought will be found in the place of arrest. Here, it must be admitted that however reliable may be the inferences from the commission of a crime to the conclusion that certain types of fruits or instrumentalities were involved, the inference from the latter proposition to the conclusion that those items will be found at the place of arrest is far from compelling. Indeed, the probability that fruits or instrumentalities will be found at the place of arrest is only slightly greater than the probability that those items will be found any place over which the arrestee has control.” Comment, U.Chi.L.Rev. 664, 688.
*380 In this case no evidence was present as to the probability of the clothing being at the home or in the pickup truck. Moreover, logically speaking, it would be highly improbable that her clothing would be there. The probability would be that a defendant would have destroyed them or disposed of them in a place least likely to implicate the defendant.
In a case involving search incident to arrest, but which reasoning applies equally to that of obtaining a search warrant, the court in United States v. Antonelli Fireworks Co. (1943), D.C., 53 F.Supp. 870 , held that “the right to search and the validity of the seizure are not dependent on the right to arrest but on the reasonable cause the arresting officer has to believe that the articles subject to seizure are concealed at the place of arrest.” And so is the validity of a search warrant judged by the evidence of probable cause stated to the magistrate that the objects sought are at the place to be searched.
The test for probable cause to obtain a search warrant was stated in People v. Wilson (1967), 256 Cal.App.2d 411 , 64 Cal.Rptr. 172 , cert. den. 391 U.S. 903 , 88 S.Ct. 1653 , 20 L.Ed.2d 418 :
“* * * whether or not the magistrate could form a reasonable belief that the articles sought were present at the place to be searched,”
Moreover, there are evidentiary limitations on the extent to which hearsay evidence can be used to satisfy this requirement. In Grimm v. State (1969), 6 Md.App. 321 , 251 A.2d 230 , cert. den. 397 U.S. 1001 , 90 S.Ct. 1150 , 25 L.Ed.2d 412 , the court held that where the affidavit was based on hearsay, it must set out some of the underlying circumstances by which the affiant (and ultimately the magistrate) could reasonably conclude that the hearsay information was reliable and that the items sought were at the place to be searched. In the present case, there was absolutely no evidence provided to show that the clothing was either in defendant’s home or in his pickup truck. Moreover, the clothing descriptions provided the magistrate are based entirely on uncorroborated hearsay.
One cannot tell from a reading of the application where the *381 county attorney obtained the clothing descriptions. Indeed, the body of the application does not mention either Lana Harding’s clothing or defendant’s clothing. Only in the prayer seeking to move the court’s discretion is any mention made of either the defendant’s or Lana Harding’s clothing. For some strange reason the clothing is designated as an “instrument of the assault”. The clear implication from reading the application ás a whole is that a member of the sheriff’s office provided the clothing description to the county attorney. But one cannot tell where the sheriff’s office obtained the information.
The unrecorded testimony of deputy Hoover (as later developed through his deposition) is that he obtained defendant’s clothing description from Dan Pearson. But not one mention is made as to Dan Pearson’s reliability as a source of information. Moreover, the testimony of magistrate Wolfe is that he did not recall Hoover giving him a description of the clothing worn by the defendant.
Although it appears from the deposition of magistrate Wolfe that deputy Hoover provided him with a description of the clothing worn by Lana Harding, there is not one mention of the person or persons from whom deputy Hoover obtained' this information, nor of the reliability of this information. There can be no question that the clothing descriptions provided the magistrate were based on uncorroborated hearsay.
The basic interest protected by the Fourth Amendment is the “right to privacy”. Only “probable cause” (in addition to the formalities compelled by the constitutions or statutes) can make a search “reasonable” and thereby justify governmental intrusion into this right. Montana has similar guarantees in Article II, Section 11 of its 1972 constitution. In addition, a separate “right of privacy” is recognized by Article II, Section 10, which provides:
“The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”
In this case we cannot separate the search of defendant’s home from the search of the home that also belonged to his wife and chil *382 dren. They too have the “right of privacy”. (As the sheriff testified when he commenced the search —defendant’s wife “went quite hysterical”.) Clearly, the right of privacy provision of Montana’s Constitution is an additional reason why, before a search warrant is obtained, the State must, at a minimum be required to show that there are seizable items (items relating to criminal conduct) at the place to be searched. Absent this showing, the State has failed to show a “compelling state interest”.
The Fourth Amendment to the United States Constitution and Article II, Section 11, of the 1972 Montana Constitution recognize two distinct rights. The first right is that of an individual to be free from “unreasonable” seizures (arrests) of his person. The second right is that of an individual to be free from “unreasonable” searches and seizures at his home, or of his belongings in some other place. Assuming probable cause to arrest in this case, defendant’s right to be free (a type of privacy) would be forfeited (at least temporarily). But his second right to be free from unreasonable searches and seizures would not be forfeited automatically by virtue of his forfeiture of his first right. Under the facts of this case the defendant’s right to privacy remained intact until the State showed probable cause to a magistrate of why the defendant has forfeited this right. Until such time no search warrant could legally issue for his home or his pickup truck. The only way that the right to invade defendant’s privacy could be shown was by making a sufficient showing that there were seizable items at the place to be searched. In the case of the home particularly, it is not just the defendant’s right of privacy that deserves protection — it is the right of privacy of his family. This right cannot be guaranteed unless these minimum requirements of probable cause are observed — inviolate.
Defendant next attacks the nature and extent of the search conducted by the sheriff and his deputies. Once armed with the search warrant (ostensibly authorizing the sheriff to search defendant’s home and truck for defendant’s clothes and Lana Harding’s clothes) the sheriff and his deputies drove to defendant’s home and commenced a dragnet type operation which, under any circum *383 stances, must be classified as a general exploratory search. I have already stated the general nature of this search and will not repeat the facts except to emphasize that this included impounding defendant’s truck and all its contents, the seizure of the clothing defendant was actually wearing at the time, the seizure of a lock of defendant’s head hair, and just for good measure the sheriff himself “plucked” pubic hairs from defendant. When one conducts a search so general in scope, the evidence cannot be neatly tucked away into categories, where some of it is admissible, and some of it is not. The evidence should have been suppressed.
In Marron v. United States (1927), 275 U.S. 192 , 48 S.Ct. 74 , 72 L.Ed. 231 , the United States Supreme Court outlawed general exploratory searches:
“The requirement that warrants shall particularly describe the things to be seized makes general search warrants under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant. * * *” (Emphasis added.) 275 U.S. 196 , 48 S.Ct. 76 .
The court has made certain exceptions to seizing items not specifically listed on the search warrant — but none that would apply here. The case of Warden v. Hayden (1967), 387 U.S. 294 , 87 S.Ct. 1642 , 18 L.Ed.2d 782 , did make the situation a little confusing. Prior to Warden v. Hayden, it had already been held that contraband, or the “fruits” or “instrumentalities” of a crime could be seized, either while searching pursuant to a lawful arrest, and presumably to searching pursuant to a search warrant. Warden v. Hayden took another step and held that “mere evidence” could also be seized under the same circumstances. The only requirement apparently is that there be probable cause to believe that the “mere evidence” has some connection to criminal behavior.
However, the United States Supreme Court has not done away with the prohibition against general exploratory searches. In Stanley v. Georgia (1969), 394 U.S. 557 , 89 S.Ct. 1243 , 22 L.Ed.2d 542 , the court relied on Marron, supra, as prohibiting general ex *384 ploratory searches. In Stanley the court also quoted from United States v. Rabinowitz (1950), 339 U.S. 56 , 70 S.Ct. 430 , 94 L.Ed. 653 , for the principle that “exploratory searches * * * cannot be undertaken by officers, with or without a warrant.” The court concluded in Stanley that the record “presents a bald violation of that constitutional rule”. As bald as Stanley , was, I cannot conceive of a balder situation than exists in this case. The facts speak for themselves.
There are moreover, compelling reasons to maintain this rule against general exploratory searches if the Fourth Amendment (and similar state constitutional provisions, Article II, Section 11, 1972 Montana Constitution) are to have any meaning. Those reasons were set forth in People v. Baker (1968), 23 N.Y.2d 307 , 296 N.Y.S.2d 745 , 244 N.E.2d 232 , where the court specifically relied on Marrón to hold that a search was too broad. In Baker a detective in the process of serving and executing a search warrant for a knife, came upon and seized a sweater which was similar to the description given by the victim as worn by the attacker. The court held that the seizure of the sweater was not authorized and suppressed the evidence. In relying on Marron, and distinguishing Warden v. Hayden, supra, the court stated:
“There can be no question that, had the officer returned, he could have obtained a warrant to seize the sweater, since, combined with the information [the victim] had given him, his personal observations, while lawfully in the apartment, would have authorized the issuance of a warrant for the seizure of the sweater. * * *
“The People argue that the Supreme Court’s overruling of the ‘mere evidence’ rule supports the seizure of the jacket here. This is' not so. If anything, it reinforces the strength and need for the Marrón holding.
“Hayden did not involve a search warrant, and at no point was Marron discussed by the court. Moreover, Marron was cited with approval in Berger v. New York, 388 U.S. 41 , 87 S.Ct. 1873 , 18 L.Ed.2d 1040 , decided after Hayden * * *. Also in Hayden the court’s- opinion makes it quite clear that there the basis of its con *385 elusion was that, since the exigencies of the situation justified the police in entering the house without a warrant in search of a suspected armed felon and, as probable cause existed, there was no reason to distinguish between an intrusion to secure mere evidence as distinguished from fruits, instrumentalities, or contraband, which was clearly authorized. * * *
“Here, however, the authorization for the intrusion was very narrow and circumspect — for a weapon used during the commission of a crime — and there were no exigent circumstances requiring an immediate response. To permit the seizure of unauthorized items in the course of a lawful search would eliminate the constitutional requirement of ‘particularity’ and would open the door for general searches abhorred since colonial days and banned by both the Federal and State Constitutions. The right to search for and seize one item does not permit the inference that there is probable cause for other items. More importantly, now that seizure of ‘mere evidence’ is authorized, courts will have to be more diligent in assuring that the search warrant does not degenerate into a subterfuge for general exploratory searches for evidence, thereby destroying the people’s security in their persons, houses, papers, and effects, guaranteed by the Fourth Amendment.” (Emphasis added.)
How true that is when applied to the present case. Even assuming probable cause to search for the clothing of defendant and Lana Harding, the police were authorized only to seize that clothing. But more than this, the nature of the search conducted in this case proves with certainty that the sheriff was conducting a general dragnet operation. If the United States and Montana Constitutions do not prohibit this kind of activity, they prohibit no activity at all.
The testimony of magistrate Wolfe and sheriff Hammermeister is revealing as to the scope of authority they believe was conferred by the issuance of the search warrant. Magistrate Wolfe was examined at his deposition as to the authority he conferred on the sheriff and he testified: “I just authorized the search of one [the pickup truck]. I don’t believe I authorized the seizure of one.” And neither did he authorize (nor could he) the seizure of almost all the items listed on *386 the sheriff’s return as having been seized pursuant to the search warrant. In response to this line of inquiry, the magistrate testified: “No; I just authorized what was listed on that Search Warrant.”
In addition to the particular clothing to be seized, the application asked for and the search warrant contained a phrase: “and any other contraband”. This was seized upon both by the magistrate and by the sheriff as authority to conduct a general, exploratory search. Magistrate Wolfe testified:
“Q. What does ‘any other contraband articles’ mean? What did it mean to you when you signed this? A. I surmised it would be any items that—
“Q. That the Sheriff wanted to take? A. That the Sheriff felt was pertinent to his investigation and also pertinent to this specific search.
“Q. Are you telling me that based upon the Warrant you were giving him permission to take anything he wanted to take that he thought might be related to this case? A. That is correct.”
It is clear that magistrate Wolfe thought he had authority to and thought he did authorize a general exploratory search by virtue of the phrase “any other contraband”.
The testimony of sheriff Hammermeister at his deposition is equally disheartening. While being examined concerning the seizure of boots, the following exchange took place:
“Q. The Search Warrant included those boots? A. It didn’t specify them but I felt it was included.
“Q. What gave you reason to feel it included the boots? A. Can I read the Search Warrant?
“Q. Yes. (Handing Search Warrant to deponent.) A. (Deponent examining same.) Well, I felt it would fit in here. For one thing it was a search for evidence and it specifically named some items and then said, ‘and any other contraband articles.’
“Q. You felt these boots were contraband articles? A. Well, I’m not certain what contraband means, but I felt it was evidence.”
Thereafter, sheriff Hammermeister was examined on the list of *387 items which he had seized which were not listed on the search warrant. The sum total of his answers to all these can be fairly stated by his answer to one of the questions: “Well, again, I thought it was evidence or whatever contraband means.”
The search warrant with the magic phrase “and any other contraband” was, according to sheriff Hammermeister, all the authority he needed to conduct his dragnet operation. His attitude is illustrated by his testimony, at the conclusion of going through the list of items on the return to the search warrant:
“Q. This statement on the Search Warrant, ‘and any other contraband articles’ you felt would give you the authority to seize any and all property you might find and wished to take? A. I’m not sure what contraband means, but in my mind—
“Q. I’m not asking you to define it. I am asking you this: When you executed the Search Warrant was it in your mind that this'gave you the authority to seize any property you wanted to take? A. Well, the wording says ‘and any other contraband’ and I figured that covered what we took in the way of evidence and items that we took.
“Q. Anything that you wanted to take? A. Well, if it was relevant to the case.
“Q. But deemed in your own mind as to whether or not it was relevant? A. Yes.
“Q. If you thought that the kitchen stove was relevant you would have taken that? A. Yes, if I felt that the stove was — well, if I felt that I could justify the kitchen stove as relevant to the case, yes.
“Q. You felt that this would have given you authority to take that, or the radio or TV? A. If it fell into either evidence or contraband.
“Q. But as you saw it? A. Yes.”
If the United States Constitution and the Montana Constitution do not condemn what took place in this case, then we might just as well do away with our Bill of Rights —for they are worth no more than the paper on which they are written.
*388 The entire record of this arrest and search and seizure in this case is replete with errors of constitutional dimension. Most of them were caused by an abundance of ignorance — ignorance of the basic requirements of the United States Constitution, the Montana Constitution, statutes of this state, and case law of this state. However, the District Court should not have ratified this ignorance, and it is unconscionable that we should have done so. By so doing we have allowed the defendant’s rights to disappear into the fog of ignorance. But just as important, assuming that the constitutional, statutory and case law requirements as to procedure were met in this case, the glaring misstatements of fact in the majority opinion have obliterated any requirement of probable cause to obtain a warrant of arrest or a search warrant. All that is needed is a determination made after a conviction that a gruesome crime has been committed. Henceforth, the nature of the crime will be the governing standard of this Court as to whether a defendant will be given the protection of his basic constitutional rights.
The grave injustice committed against the defendant by failing to suppress the illegally seized evidence is compounded ten fold by the majority’s decision upholding the constitutionality of Montana’s death penalty scheme. In fact, the entire statutory scheme relating to the death penalty revolves around five words — “unless there are mitigating circumstances.” I cannot conceive that those magic five words are adequate to constitutionally impose the death penalty upon defendant. If these so-called mitigating circumstances are to have any meaning, they must also be accompanied by mandatory sentencing procedures designed to elicit the mitigating circumstances, and mandatory appellate review procedures designed to fairly review the entire process. In this respect Montana’s statutes then in effect cannot possibly pass constitutional muster.
After Furman v. Georgia, (1972), 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 , the Montana legislature responded by enacting two death penalty statutes which allowed the death penalty to be inflicted in certain cases “unless there are mitigating circumstances”. Section 94-5-105, R.C.M.1947, provided the death penal *389 ty for certain classes of deliberate homicide and section 94-5-304, R.C.M.1947, provided the death penalty for a certain class of aggravated kidnapping. The legislature did not enact any statutes providing for mandatory hearings on the question of aggravation and mitigation. Nor did it enact any statutes providing for mandatory appellate review of a sentence of death. What the majority has done is hold that Montana’s general criminal procedure statutes, enacted in 1967, are sufficient to provide the protections demanded by the cases of Gregg v. Georgia, (1976), 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 ; Proffitt v. Florida, (1976), 428 U.S. 242 , 96 S.Ct. 2960 , 49 L.Ed.2d 913 ; and furek v. Texas, (1976), 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 . A reading of these cases and the statutory provisions approved therein, convinces me beyond any doubt that Montana’s general criminal procedure statutes are devoid of any redeeming value to save them from constitutional attack.
The majority recognizes the demands of Gregg, supra, by quoting what it considers to be its essential directive:
“Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” 428 U.S. 189 , 96 S.Ct. 2932 .
The majority recognizes that Montana’s statutes are not mandatory death penalties, and thus do not lose their validity because of the United States Supreme Court decisions in Coker v. Georgia, (1977), 433 U.S. 584 , 97 S.Ct. 2861 , 53 L.Ed.2d 982 , and Harry Roberts v. Louisiana, (1977), 431 U.S. 633 , 97 S.Ct. 1993 , 52 L.Ed.2d 637 . The next step the majority takes is to cite Harry Roberts as holding that for a capital punishment statute to be substantively valid, there must be a procedure allowing for a consideration of mitigating circumstances. What the majority has ignored, however, is that Gregg, Proffitt and Jurek demand that there be a mandatory sentencing hearing allowing for a consideration of mitigating circumstances, and that there be mandatory and ex *390 pedited appellate review of all death sentences. When measured by these standards, Montana’s statutes fail miserably.
The failure of the majority is that they do not analyze the true demands of Gregg, Jurek and Proffitt . The majority analyzes the requirements as follows:
“First, there must be at least one statutory aggravating circumstance before a death sentence may be considered. Second, the defense must be afforded the opportunity to bring before the sentencing body at a separate sentencing hearing any mitigating circumstances relating to the individual defendant. Third, there must be available prompt judicial review of the sentencing decision by a court of statewide jurisdiction, providing a means to promote the evenhand, rational and consistent imposition of death sentences under the law.”
I do not disagree with these general conclusions as to the demands of Gregg, Proffitt and Jurek. However, I disagree totally with the majority in their conclusion that the Montana statutory scheme then in effect provided these procedural and substantive protections. The majority sums up the salient features of the Montana statutory scheme by stating:
“Although Montana’s statutory scheme is unlike those approved by the United States Supreme Court in Gregg, Proffitt, and furek, we see no substantive failure of Montana’s statutory scheme to comply with constitutional standards. * * * Our system is neither wholly mandatory nor wholly discretionary. There are precise statutory requirements for finding aggravating and mitigating circumstances, and a procedure for flushing out the facts with respect to such circumstances. There is appellate review at two levels, insuring that the sentence is both legal and proportional to the nature and class of crime. In short, we believe that the Montana statutory scheme is existence at the time of the crimes herein, affords defendant the procedural safeguards necessary to protect his substantive rights to be sentenced without arbitrariness or caprice.
“Therefore, we hold the death penalty statutes in question in this case are constitutional under the United States constitutional re *391 quirements. They are constitutional on their face and as applied to this defendant.” (Emphasis added.)
The only accurate statement is that which I have emphasized.
The conclusions the majority reaches can have come about for only two reasons: First, the majority failed to read the statutes that were involved in Gregg, Proffitt and Jurek. Second, the majority failed to read the Montana statutes which it upholds as being constitutional. One need only notice the conspicuous absence of analysis of the Georgia, Florida and Texas statutes and the same failure to cite and quote from Montana’s statutes which are upheld. Without this analysis the reader is in no position to compare the statutes and draw his conclusions as to the merits of the majority’s conclusions.
The first requirement is that there be at least one statutory aggravating circumstance. On its face, Montana’s statutes meet this requirement. The homicide statute sets out six aggravating circumstances, any one of which is sufficient for the court to impose the death sentence. (Section 94-5-104(1)(a) through (f).j. The aggravating circumstance, namely that the victim be dead as a result of the kidnapping. (Section 95-5-304.) However, the statutes are silent as to whether it is the jury or the judge who must make the determination of whether the aggravating circumstance exists. This uncertainty is illustrated by what happened in this case.
The homocide statute is silent as to whether the judge or the jury makes the finding of aggravating circumstance. The statutory aggravating circumstance of “committed by means of torture” was applied in this case. At the sentencing hearing, the district judge made that finding,.and then sentenced defendant to death for aggravated homicide. But just the opposite procedure was used the in the aggravated kidnapping conviction. The statute provided:
“A court shall impose the sentence of death following conviction of aggravated kidnapping if it finds that the victim is dead as the result of the criminal conduct * * (Emphasis added.) Section 94-5-304, R.C.M.1947.
This section states it is the judge, as opposed to the jury, who is to *392 make the finding “that the victim is dead as a result of the criminal conduct.” However, in this case, the court, in addition to the general verdict, submitted a special interrogatory to the jury. The jury found the victim was dead as a result of the criminal conduct. In imposing the death penalty, the court simply relied on and adopted the jury’s finding. I do not believe this procedure is contemplated by the statute.
Moreover, the procedure adopted by the District Court in submitting a special interrogatory to the jury is of doubtful validity in the state and should not be encouraged. In criminal cases general verdicts only should be given to the jury and they should not be cluttered by special interrogatories. Section 95-1909(h), R.C.M.1947, provides that in criminal cases a verdict must be a general verdict. To adopt the practice of submitting special interrogatories to the jury as side issues can only erode the policy of this statute requiring general verdicts in criminal cases.
The second requirement of Gregg, Proffitt and furek, as recognized by the majority is that the defendant must have an opportunity after conviction at a separate hearing, to present evidence of mitigating circumstances. The majority satisfies this requirement by combining the “unless there are mitigating circumstances” language in the homicide and kidnapping statutes, with the criminal procedure statutes relating to p

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9853252. Public record. Not legal advice.