Petition — Thomson v. Onstad

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7 Supreme Court, U.S ~

| FILED |

JUN #4 1978

IN THE

Supreme Court of the United Betis RODAK, JR., CLERK

OcToBEny Pera, 18OU 4

NO.

—oooea

DoucLtas C. THomson

Petitioner.

Vs.

L. JoHN Onstap, SHERIFF.

GALLATIN County, MontTANA: and

RoGerR Crist, WARDEN, MONTANA

STATE PRISON

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

James H. Goetz, Eso.

Goetz & Madden

522 West Main Street

Bozeman, Montana 59715

Attorney for Petitioner

OO a ae

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

— eS Oe a Oe 6 Oe Oe we ee ee oe oe or = ow

DOUGLAS C. THOMSON,

Petitioner,

&. JOHN ONSTAD, Sheriff, Gallatin

County, Montana; and ROGER CRIST,

Warden, Montana State Prison,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

eens Leon

TABLE QF CONTENTS

TABLE OF CITATIONS ...............

PT I oo vecccccNcccceccn,

SI cchiinhw<khodcues évces

QUESTIONS PRESENTED ..,...........

STATUTES INVOLVED ................

PRE wEeGeacsd cin ccccsedesser

REASONS FOR GRANTING THE WRIT ....

A. THE STATE COURT HAS DECIDED

A FEDERAL CONSTITUTIONAL

QUESTION IN A WAY PROBABLY

NOT IN ACCORD WITH APPLI-

CABLE DECISIONS OF THIS

a ee

B. THE NINTH CIRCUIT HAS

APPLIED STONE V, POWELL IN

A MANNER PROBABLY NOT INTEND-

me We Dee GOO ccccccccece

C. WHEN A STATE COURT MAKES A

SERIOUS LEGAL ERROR IN CON-

STRUING THE FEDERAL FOURTH

AMENDMENT, THE DEFENDANT IS

NOT AFFORDED AN OPPORTUNITY

FOR FULL AND FAIR LITIGA-

TION OF HIS FOURTH AMEND-

oe Se’ Ebel db db oGbhme ees

PAGE

mm WN NY

—

CONCLUSION en Te

ee Tee ee eee

CERTIFICATE OF SERVICE ...........

APPENDIX A

i netics ec

TABLE OF CITATIONS

Cases

Aguilar v, Texas, 378 U.S, 108 .,,.

Bivens v. Six Unknown Federal

Narcotics Agents, 403 U.S. 388 ee

Brewer v, Williams, 97 S.ct. 132 ..

Fay v. Noia, 372 U.S. 391 ....... ee

Jarrell v. Stahl, 446 PF. Supp 395

(W.D.N.C.) i ee a *_*eeft ef @ @

Spinelli v. United States, 393

U.S. 410 ewerrerereereeer eeereeeeeeeees

State v. Thomson, 169 Mont. 158;

2d 1070

rs cere er eee eee eeeee *-*

Stone v. Powell, 428 U.S. 465 seers Passim

Tisnado v. United States, 547

We 20 452 (HE CLE.) c cccccccccce

Townsend v. Sain, 372 U.S. 293 aece

United States v. Anderson, 453

P. 20 178 (9th Gir.) ......c.. ‘

Whitely v. Warden, 401 U.S. 108 .,.

Wolff v. Rice, 428 U.S. 465 Beececes

——_——

ii,

TABLE OF CITATIONS

PAGE

Statutes & Constitutional Provisions

1. U. S. Constitution, Fourth

RES bceebececceseece »- Passim

2e 28 U.B.C. 22461-3283 ..ccccccce 4

3, Revised Codes of Montana (1947)

Sec. 54-132 er er eee ew ewewease 4

Revised Codes of Montana (1947)

Sec, 54-133 oer eee eee eer eee ee 4

4. U,. S, Supreme Court Rules,

Rule 19 i ee ee ee oe oe | ll

Miscellaneous

Neuborne, Burt, "The Myth of

Parity”, 90 Harv. L.R. 1105 ... 25

On ee Be

ofa

The petitioner, Douglas C. Thomson,

respectfully prays that a writ of certi-

Orari issue to review the judgment and

decision of the United States Court of

Appeals for the Ninth Circuit entered in

this case on March 24, 1978,

OPINIONS BELOW

The opinion of the United States

Court of Appeals for the Ninth Circuit,

affirming the denial of federal habeas

corpus relief by the United States

District Court for the District of

Montana, is as yet unreported: it is set

forth in the Appendix, infra, at A-l.

The initial opinion of the District

Court of June 30, 1976, which granted

habeas corpus relief, was printed at 417

F. Supp. 747, but was later withdrawn.

It is set forth in the Appendix, at A-2.

The second opinion of the District Court

which withdrew the first Opinion and

denied habeas corpus relief is not report-

ed and is set forth in the Appendix at

A-ll. The opinion of the Montana

Supreme Court, State Vv. Thomson, is

reported at 169 Mont. 158 and 545 P. 2a

1070, and is set forth in the Appendix

at A-13.

JURISDICTION

a ae

The judgment of the Court of Appeals

for the Ninth Circuit was made on March

24, 1978. The jurisdiction of this

Court is invoked under 28 U.S.C, 1254(i).

Because this is a habeas corpus matter,

which is classified as a Civil action,

the time within which a petition for

Writ of Certiorari must be filed is

ninety days, 28 U.S.c. 2101l(c).

QUESTIONS PRESENTED

This Court, in Stone v. Powell, 428

U.S. 465 on July 6, 1976, held generally

that where a state has provided an oppor-

tunity for full and fair litigation of

a Fourth Amendment Claim, a state

prisoner may not be granted federal

habeas corpus relief on the ground that

evidence obtained in an unconstitutional

Search or seizure was introduced at his

trial.

In light of this holding in Stone v.

Powell, the questions presented are:

Whether a Federal Court retains some

= 6 a G0: pe ll al ama

limited discretionary power to grant

habeas corpus relief in cases where the

Fourth Amendment violations are partic-

ularly egregious or whether Stone We.

Powell absolutely precludes the grant of

Federal habeas corpus relief,

II,

Whether Petitioner was denied an

Opportunity for full and fair litigation

of his Fourth Amendment claim because

the State Court, while giving a reason-

ably full procedural Opportunity to pre-

sent the Fourth Amendment Claim, grossly

misconstrued Federal Fourth Amendment

Constitutional Law.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Fourth Amendment to the United

States Constitution is as follows:

The right of the people to be

secure in their persons, houses,

Papers and effects, against un-

reasonable searches and seizures,

shall not be violated, and no

Warrants shall issue, but upon

probable cause, supported by

Oath Or affirmation, and partic-

ularly describing the place to

be searched and the persons or

things to be seized.

Ah he 9 welts. AT A tes

The Montana statutes dealing with

criminal sale of dangerous drugs (54-

132, R.C.M.) and criminal possession of

dangerous drugs (54-133, R,C.M.) are set

forth in the appendix, pp. A-21, A-22,

These statutes are found in the 1975

Cumulative Pocket Supplement to Vol. 3

Part 2, R.C.M., at pp. 499-501,

The basic Federal habeas corpus

Statute, 28 U.S.C. 2241, is set forth

in the appendix at A-24 and is found in

Vol. 28 U.S.C.A. §§2241-2253, at p.23.

STATEMENT OF THE CASE

-_—_—_—— —_—-——

Petitioner, Douglas C, Thomson, was

convicted of possession and Sale of am-

phetamines on February 6, 1975, in viola-

tion of Secs, 54-133 and 54-134, R.C.M.

(1947). His conviction was affirmed by

the Montana Supreme Court on January 20,

1976, 169 Mont. 158: 545 P.24 1070. The

U.S. District Court granted Petitioner a

writ of habeas corpus on June 30, 1976,

417 F.Supp, 747 (Opinion withdrawn), but

reversed itself on the basis of Stone v.

Powell, 428 U.S. 465 (July 6, 1976) on

October 26, 1976. The Ninth Circuit

Court of Appeals affirmed the denial

Po eS

<r s

wBu

of relief on March 24, 1978. [No, 77-

1009),

Informant, Paul Hallett came to

Livingston, Montana, approximately

November 1, 1974 (st. Tr, 49-50), V/

On the evening of November 16, 1974,

Hallett was apprehended and later jailed

for writing bad checks, He had written

about five bad checks in Montana (St,

Tr. 35) and was wanted in Nebraska on

felony fraudulent check charges. (St.

sa. 34, 35).

After being jailed for about One and

One-half hours, Hallett volunteered in-

formation regarding Petitioner, Thomson,

and the purchase of dangerous drugs.

(St. Tr. 35).. Hallett told the police

1/ - The initial criminal trial of Peti-

a tioner was held in Montana District

Court on February 3, 1975. Reference to

the transcript of that trial is herein-

after made as "St, Tr." A hearing was

held in U. S. District Court on Petition-

er's habeas corpus petition on February

10, 1976. Reference to that transcript

is hereinafter made as "Fed. Tr." In

addition to these transcripts a deposi-

tion of the State's major witness, Paul

Hallett, was taken on December 5, 1974,

Reference to that deposition is herein-

after made as "Dep.",

ee ee ae | Lee Se es cS

Cantar? es or Be. Aan te ag scewks «4

ate 000 ee Nether Rar hS eet

PARI, ected.

that he had been to Thomson's house nine

days previously and had purchased 25

amphetamine pills from Thomson for five

dollars, (Dep, 7-9), During this inter-

view, Hallett was promised by the

Prosecutor immunity from Prosecution on

any drug-related charge. (Dep. 41, 42).

On the basis of Hallett’s statement

a police officer made an affidavit for

Search warrant reciting the facts as

related by Hallett. (Copy of affidavit

attached A-25.). The affidavit purport-

ed to be upon the personal knowledge of

the police officer and gave no informa-

tion or reasons upon which a reviewing

magistrate could conclude that Hallett

was a reliable person. Nor did it

mention Hallett's criminal record and

the fact that Hallett was jailed in

Livingston, Montana, on bad check charges.

At approximately 2:00 A.M., November

17, 1974, the Prosecutor, Hallett, and

a police officer, went to the home of

the local district judge, who, after

questioning Hallett and the policeman,

issued a search warrant for Thomson's

house. (St. Tr. 11), A quantity of

oer

of amphetamine (approximately 70 pills)

(R, p. 2] was found in the Thomson

house 2/

LAPS SASSO OSS SSS eeeeeoeeeoeeeeeoeenaacece

2/ - No amphetamine pills were found on

ua the person of Douglas C. Thomson.

(St. Tr. p. 98). The pills were found

between mattresses in the main floor bed-

room. (St. Tr. p. 55). Thomson was in

the basement at the time of his arrest.

(St. Tr. p. 98). Three witnesses,

Douglas C, Thomson, Paulette Thomson,

his wife, and Les Pintar testified that

the amphetamines belonged to Paulette

Thomson, not Douglas C, Thomson. (St.

Tr. pp. 126-129), State offered no evi-

dence to contradict this.

ae ee eee ee

iii hits been a

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Thomson was charged with possession

and sale of amphetamines. The sole evi-

dence presented at the trial regarding

the sale of dangerous drugs was the

testimony of the informant, Hallett ,3/

Petitioner moved to suppress the

amphetamine pills as illegally seized.

The essential basis for Petitioner's

Suppression motion was the obvious un-

reliability of the informant. The record

shows that the informant was a bald liar,

a convicted forger of checks, who some-

times signed checks by the name "Mack

Bolin”, “a fictional killer of Mafia."

(St. Tr. 36), a self-proclaimed seller

3/ - With respect to the sales charge,

* not even the drugs alleged to have

been sold by Petitioner to Paul Hallett

were introduced at the trial. This is

because Hallett claimed he resold the

amphetamines later the same evening

(St. Tr. 39), and they thus were unavail-

able as evidence. There were no witness-

€s supporting the sales charge other than

Paul Hallett. All other witnesses pre-

sent in the Thomson home on the evening

in guestion denied Hallett's allegation

that Thomson sold Hallett amphetamines.

(See testimony of Douglas Thomson, St.

Tr. Pp. 184; Mike Adams, st, Tr. p. 163;

Becky Moore, St. Tr. p. 160: Pavlette

Thomson, St. Tr. p. 133.)

- ae Oe ew ites SP: Mh we tetera tm *

of illicit drugs (St. Tr. 39 ) and a

transient who had been in Livingston,

Montana, fewer than three weeks before

his arrest when he gave information

relating to Petitioner. The Suppression

motion, in part, was based on the federal

Fourth Amendment and Federal Constitu-

tional interpretations. (St, Tr. 3-5,9),

At the suppression hearing the local

District Judge was allowed, over objec-

tion (St. Tr, 9), to testify in an

attempt to buttress the search warrant.

He stated that, at the time of the issu-

ance of the warrant, he had incuired of

the informant the underlying circumstanc-

es of the alleged sale and that he

personally was aware of Petitioner's

reputation as "a suspect" in the drug

scene. (St. Tr. 10-19). The suppression

motion was denied.

Petitioner's motion for senvarate

trials on the sales and possession charges

was denied. Petitioner was convicted by

a jury on both the sale and possession

counts. Petitioner's appeal to the

Montana Supreme Court was based, in part,

On Federal Fourth Amendment issues, The

te ee ee ee eee

-10-

Montana Supreme Court affirmed the con-

viction. Petitioner filed for a writ of

habeas corpus in Federal District Court.

The Federal District Court granted the

writ and ordered Petitioner retried with-

in sixty days or released. However,

six days after this ruling by the

District Court, this Court decided Stone

v. Powell, supra. On reconsideration

the District Court reversed its grant of

relief to Petitioner. The second Dist-

rict Court opinion indicates no change

in the District Court's Opinion on the

merits -- that Petitioner's conviction

was obtained in violation of his Fourth

Amendment rights. The District Court,

however, apparently felt that Stone v.

Powell left it powerless to grant relief

and consequently reversed itself.

On appeal the Ninth Circuit Court of

Appeals affirmed in a one-sentence

opinion, stating: "The judgment of the

District Court is affirmed on the basis

of Stone v. Powell, 428 U.S. 465 (1976) .”

Throughout the legal proceedings

Petitioner has been released on bail,

By stipulation the State of Montana has

-ll-

agreed to the continued release of Peti-

ee ee

tioner pending disposition of the present

matter by the U. S. Supreme Court.

REASONS FOR GRANTING THE WRIT

A. THE STATE COURT HAS DECIDED

A FEDERAL CONSTITUTIONAL

QUESTION IN A WAY PROBABLY

NOT IN ACCORD WITH APPLI-

CABLE DECISIONS OF THIS

COURT.

Rule 19(1) of the rules of this Court

indicates the general character of reasons

which will be considered in connection

with a Petition for Certiorari. Rule 19

(2) indicates one of these considerations

as follows:

"Where a state court has decided

a federal question of substance

not theretofore determined by

this court, or has decided it in

a way probably not in accord with

applicable decisions of this court."

The decision of the Montana Supreme

Court (A-13) which affirmed the convic-

tion of Petitioner held that in reviewing

the sufficiency of an application for a

search warrant, a court may go beyond the

four corners of the application. (A-15,

16), This ruling is squarely contrary to

oi 2.

applicable Federal Constitutional law.

Ironically, the case which most Clearly

sets forth this proposition of Federal

Fourth Amendment law is Stone v. Powell,

Supra. (and its companion case, Wolff

v. Rice (428 U.S. 465):

Petitioner Wolff contends that

police should be permitted to

Supplement the information con-

tained in an affidavit for a

Search warrant at the hearing on

a motion to suppress, a contention

that we have several times reject-

ed. See e.g. Whitely v, Warden,

401 U.S. 560, 565, n. 8 ooes

Aguilar v. Texas, [378 U.S. 108]

at 109 n. 13... and need not

reach again here. (n, 3)

The Ninth Circuit has also Clearly

rejected the contention that Oral testi-

mony can be used to bolster an otherwise

insufficient search warrant affidavit.

This case poses an important

problem in the evaluation of affi-

davits to determine probable

cause for issuance of search

warrants under the Fourth Amend-

ment. We hold that all data

necessary to show probable cause

for the issuance of a search

warrant must be contained with-

in the four corners of a written

affidavit given under oath.

United States v. Anderson, 453

FP. 2d 174° at 175 (1971, Sth Cir.)

- a NA FB eta lp nis ta tetssee ister

}

= [=

Thus, the present petition involves

a clear mistake by the State Court in

interpretation of Federal Constitutional

law. This is what the Federal District

Court ruled in its initial decision prior

to Stone v. Powell. Admittedly a direct

Petition to this Court from the decision

of the State Court would have been a more

Straightforward approach to rectify this

clear error by the State Court. However,

at the time of that decision (Jan. 20,

1976), this Court had not decided Stone

Vv. Powell, and remedy via Federal habeas

corpus appeared to be a more viable

remedy, The present petition is in a

Situation identical to that discussed by

Judge McMillan in Jarrell Vv. Stahl, 446

F. Supp. 395 (W.D.M., 1977):

"There is another circumstance

raising questions of fundamental

fairness which should not be

overlooked, Certiorari to State

courts to review Fourth Amendment

violations is not foreclosed by

Stone v. Powell. However, in

April of I975 when the Supreme

Court of North Carolina refused

certiorari to (defendants), review

of Fourth Amendment claims by

way of habeas corpus petition in

Federal Courts was the accepted

practice.

-~14-

"If they had known that collateral

review on habeas corpus was not

available, it would appear that

they would have sought certio-

rari. 446 F. Supp. 395 at 398.

ones A

Petitioner is in the same position in the

present case.

B. THE NINTH CIRCUIT HAS

APPLIED STONE V. POWFLL IN

A MANNER PROBABLY NOT INTEND-

ED BY THIS COURT.

In the present case the District

Court determined that Petitioner's Fourth

Amendment rights had been violated (A-10),

yet it found itself without the power to

remedy this violation because of Stone

Vv. Powell, supra. It is respectfully

Submitted that the District Court's wood-

en application of Stone v. Powell was

incorrect. Petitioner Submits that, even

after Stone v. Powell a Federal Court

retains limited discretion to exclude

evidence where Fourth Amendment violations

are particularly egregious.

Justice Powell, the author of the

Stone v. Powell opinion, stated the next

term in his concurring opinion in Brewer

: Vv. Williams: |

iets este ictinc: th tele

ites sos tater a

alte

In discussing the exclusionary

rule, the dissenting opinion of

the Chief Justice refers to Stone

v. Powell ..., decided last térn-

In that Case, we held that a

federal court need not apply the

exclusionary rule on habeas

corpus review of a Fourth Amend-

ment claim absent a showing that

the state prisoner was denied an

opportunity for a full and fair

litigation of that claim at trial

and 33 direct review, 97 S.ct.

132 2/ (Emphasis added),

4/ - Justice Powell, in his concurring

in Opinion, specifically reserved

passing judgment on the question of the

impact of Stone on Fifth and Sixth Amend-

ment cases, stating that the matter had

been inadequately briefed and argued. It

is obvious, however, from Chief Justice

Burger's dissent and from the facts of

the case that Brewer cannot be constitu-

tionally distinguished from Stone. The

only possible distinguishing rationale

ventured by Powell is that "many Fifth

and Sixth Amendment claims arise in the

context of challenges to the fairness of

a trial or to the integrity of the fact-

finding process." 45 U.S.L.W. 4295. It

was crystal clear in Brewer, however,

that the evidence resulting from the

unconstitutional action was highly pro-

bative and fully reliable.

Thus, while Justice Powell (who was

the author of the decision in Stone Vv.

Powell) proferred a desire to avoid the

question, the stark fact is that Brewer

has eroded, sub silentio, the Stone ~

decision, 7

The use of the words "need not" by

Justice Powell is important - partic-

ularly since Justice Powell authored the

decision in Stone v. Powell. "Need not"

implies that a Federal Court has discre-

tion. It implies that, when faced with

the question in habeas corpus whether to

exclude evidence illegally seized and

admitted in state Court, the Federal

Court "need not" exclude such evidence

but that it may, if the circumstances

warrant. This interpretation of Justice

Powell would give the Federal Court the

flexibility to judge how egregious the

constitutional violation was in relation

to the cost to society of excluding other-

wise probative evidence, As Justice

Powell stated:

I tend generally to share the

view that the per se application

of an exclusionary rule has little

to commend it except ease of appli-

cation. All too often applying

the rule in this fashion results

in freeing the guilty without any

offsetting exhancement of the

rights of all citizens ... I

therefore have indicated, at least

with respect to Fourth Amendment

violations, that a distinction

should be made between flagrant

violations by the police on the

other. Brown v. Illinois, 422

U.S. 590, 606 (1975) (concurring

opinion).

(fn. 2).

In light of the decision in Brewer

v. Williams, and in light of the language

in Justice Powell's concurrence, it

ot Fe

one hand, and technical trivial,

Or inadvertent violations on the

cannot be concluded that a Federal Judge

is entirely without power to exclude un-

constitutionally seized evidence simply

j because the case involves Fourth Amend-

' ment issues. Rather, as established in

Pay v. Noia, 372 U.S. 391, the Federal

H Court retains the flexibility to fashion

a remedy appropriate to the accomplish-

ment of justice under the circumstances.

"It is of the historical essence of

habeas corpus that it lies to test pro-

ceedings so fundamentally lawless that

imprisonment pursuant to them is not

merely erroneous, but void ..." (At 423).

In Jarrell v. Stahl, 446 F, Supp. 395

(1977) the District Court discussed the

rationale underlying Stone v. Powell as

follows:

In Stone v. Powell, 428 U.S. at

488, 96 S.Ct. at 3049, referring

to a previous decision in Walder

—"—-- w=

{

-18-

v. United States, 347 u.s. 62

--. (1954), the Supreme Court

Said:

"..+. The judgment in Walder re-

vealed most clearly that the

policies behind the exclusiorary

rule are not absolute. Rather,

they must be evaluated in light

of competing policies. In that

case, the public interest in

determination of truth at trial

was deemed to Outweigh the incre-

mental contribution that might

have been made to the protection

of Fourth Amendment values by

application of the rule,” 446

F. Supp. 395 at 397,

The Court then proceeded to distinguish

the circumstances in Stone v. Powell from

the case before it finding that "... the

"proportionality' referred to by the

court in Stone v. Powell is Strikingly

lacking here." 446 F. Supp. 395 at 398.

While the court, finding itself bound by

Stone v. Powell, ruled against Petitioner

there, its ruling must be taken as

critical of Stone v. Powell because it

felt deprived of the power to grant a

remedy proportional to the constitutional

abuse.

It is respectfully submitted that

Stone v. Powell should not be applied so

as to divest a District Court of all

;

cay

discretion in a habeas corpus matter.

Both Chief Justice Burger and Justice

Powell have been critical of mechanical,

inflexible application of the exclusionary

rule. For instance, Chief Justice Burger

said in his dissent in Bivens v. Six

Unknown Federal Narcotics Agents, 403 U.S.

388:

"I submit that society has at

least as much right to expect

rationally graded responses

from judges in Place of the

universal ‘capital punishment '*

we inflict on all evidence when

police error is shown in its

acquisition ... yet for over 55

years .. our legal system has

treated vastly dissimilar cases

as if they were the same." 403

U.S. 388 at 419,

The response of the lower Federal

Courts to Stone v. Powell has not been

been "rationally graded". Rather, they

have virtually universally denied relief,

no matter how slight the crime and no

matter how egregious the Fourth Amendment

violation and no matter how Clear the

mistake in law made by the State court.

Surely this is not the rationally graded

response hoped for.

In another context (the need to

-20-

exhaust state remedies prior to seeking

Federal habeas corpus relief), this Court

has reaffirmed the discretionary nature

of the role of the Federal Court in habeas

corpus proceedings. See Pay v. Noia, 372

U.S. 391:

Although we hold that the juris-

diction of the federal courts on

habeas corpus is not affected by

procedural defaults incurred by

the applicant during the state

court proceedings, we recognize

a limited discretion in the fed-

eral judge to deny relief to an

applicant under certain circum-

stances. Discretion is implicit

in the statutory command that the

judge, after granting the writ

and holding a hearing of approp-

riate scope, “dispose of the

matter as law and justice require,"

28 U.S.C. §2243; and discretion

was the flexible concept emp loyed

by the federal courts in develop-

ing the exhaustion rule. Further-

more, habeas corpus has tradition-

ay been regarded as governed by

uitable princ es, Unit

tates ex rel. Sm Vv. Baldi, 344

U.S. 561, 573, 97 L. Ed. 549, 558,

73 S. Ct. 437 (dissenting opinion).

372 U.S. 391 at 438, (Emphasis

added).

It is respectfully submitted that

this Court should grant certiorari to

review the question whether a Federal

ee ee ee Mee - aes

et tn GN gE A ae

a ae

Court has limited discretion in egregious

cases to grant relief to a petitioner

held in State custody whose Fourth Amend-

ment rights have been violated.

C. WHEN A STATE COURT MAKES A

SERIOUS LEGAL ERROR IN CON-

STRUING THE FEDERAL FOURTH

AMENDMENT, THE DEFENDANT IS

NOT AFFORDED AN OPPORTUNITY

FOR FULL AND PAIR LITIGA-

TION OF HIS FOURTH AMEND-

MENT CLAIM,

Stone v. Powell, supra, provided that

where a state has provided an opportunity

for full and fair litigation of a Fourth

Amendment claim, a state prisoner may

not be granted federal habeas corpus

relief on the ground that evidence obtain-

ed in an unconstitutional search or

seizure was introduced at trial Stone v.

Powell, however, did not "delineate the

perimeters of ‘full and fair litigation’

of a Fourth Amendment claim." Mack v.

Cupp, 564 F, 2d 898 at 900 (9th Cir,

1977). Stone did, however, refer to

Townsend v, Sain, 372 U.S. 293 (1963) which

established a six-part set of criteria

for determining when a federal district

court should hold an evidentiary hearing

in a habeas corpus proceeding. 428 U.S.

* - “a

a ae eee

ee ne ee ot

Sraviwt OF

-22-

at 494, n. 36.

The question presented by the present

Petition is whether a full and fair

opportunity to litigate the Fourth Amend-

ment claim is denied where the state

court makes a clear error in law in its

Fourth Amendment review.

In the present case, the State court

committed clear error when it allowed the

prosecution to buttress the otherwise in-

sufficient affidavit for search warrant

with the oral post hoc testimony of the

issuing magistrate. This is in direct

conflict with rulings of this Court. See

Whitely v. Warden, 401 U.S. 510, 565, n.

8; Aguilar v. Texas, 378 U.S. 108, 109,

n. 1; Stone v, Powell, 428 U.S. 465, n.

3. Moreoever, the informant who provided

the information which served as the basis

for the search warrant was wholly un-

reliable. He was, on the basis of the

record, a chronic liar, a transient, an

admitted felon ~-- having written approx-

imately five fraudulent checks in the

Sseventeen-day period that he was in

Montana (St. tr, 36), a dealer of illicit

drugs (St. tr. 39), and probably was

mentally unstable (St. tr. 36). See

, a ee eee SH RRR Oh ug tiee

a83e

Spinelli v. United States, 393 U.S. 410

(1969); Aguilar v. Texas, supra.

—_—-

Montana's admission in the lower

courts concerning the unreliability of

the informant stands as the clearest evi-

dence of the utter unfairness of Peti-

tioner's conviction. In the lower court

proceedings Montana sought to bolster the

credibility of its transient informant

(Paul Hallett) by arguing that he had

made admissions against penal interest,

Petitioner responded by pointing out that

Hallett had been promised immunity (Dep,

41, 42) and therefore was not making

admission against penal interest. The

State responded that the promise of

immunity was meaniugless because the

only evidence the State had of Hallett's

drug-related offenses was the word of

Hallett (the informant) and that there-

fore there was insufficient basis for

criminal action against Hallett!

(State's Petition for Rehearing in U. S.

District Court R. 26). Yet, the State

proceeded not only to charge Petitioner

on drug sales but also to convict him

solely on the testimony of Paul Hallett!

afta

(See note 8 of the present Petition),

In the face of this egregious con-

viction the Montana Supreme Court did

nothing, except to affirm Petitioner's

conviction through mistaken interpreta-

tion of Federal Fourth Amendment law,

According to the Ninth Circuit such

legal mistake, however, is not cognizable

in the Federal habeas corpus proceedings

since Stone v, Powell. Tisnado v. United

States, 547 F., 2d 452 at 455, u. 2,

(9th Cir. 1977) stated:

"Since, under Stone v. Powell,

the issue of whether the state

court correctly applied the law

of search and seizure is apparent-

ly totally irrelevant as long as

state procedures were ‘fair’ ,.,."

See also Mack v. Cupp, 564 F. 2d 898

(9th Cir. 1977).

This absurd result cannot have been

what this Court contemplated through its

ruling in Stone v. Powell. Rather it

appears that, where a.state court commits

clear legal error in deciding Federal

Fourth Amendment claims, such error can,

if serious enough, amount to a depriva-

tion of a full and fair opportunity to

present Federal Fourth Amendment claims.

= —~ 2. see ee

eae

The present case presents a striking

example of what has been referred to as

"The Myth of Parity.” 3/ The Stone v.

Powell opinion rejected the contention

that federal judges are institutional]

more capable of adjudicating Federal con-

stitutional claims than their state

counterparts, This assumption has been

roundly criticized by Professor Neuborne

who states:

"I suggest that the assumption

of parity is, at best, a danger-

ous myth, fostering forum allo-

cation decisions which channel

constitutional adjudication under

the illusion that state cours will

vindicate federally secured con-

stitutional rights as forcefully

as would the lower federal

courts.” 90 Harv. L.R. 1105.

The present case presents clear evi-

dence which bears out Neuborne's thesis.

The Montana Supreme Court committed obvious

and serious error in applying the Fourth

Amendment to Petitioner's claim. It is

5/ - Neuborne, Burt, "The Myth of Parity",

90 Harv. L. R. 1105, April 1977

~iés

respectfully submitted that the error is

so egregious that Petitioner virtually

has not had a full and fair opportunity

to litigate his Fourth Amendment claim.

CONCLUSION

The Petition for Writ of Certiorari

should be granted.

Respectfully submitted this 19th

day of June, 1978,

GOETZ & MADDEN

CERTIFICATE OF SERVICE

I, James H. Goetz, the attorney for

the Petitioner herein, and a member of

the Bar of the U. S. Supreme Court, hereby

certify that, on the 19th day of June,

1978, I served copies of the foregoing

Petition for Writ of Certiorari on the

opposing parties, as follows:

Mr. Jack Yardley

Park County Attorney

322 West Callender St.

Livingston, Mt. 59047

=a27q

Mr. Allan Chronister

Office of Attorney General

State Capitol

Helena, Montana 59601

by mailing a copy thereof prepaid.

APPENDIX

Order of Court of Appeals,

Winth Ciroult ceccceseeeegeeeesee Avil

Opinion and Order of Judge

Battin, dated June 30,

1976 ee A-2

Order of Judge Battin, dated.

October 26, 1976 ..necceeceecees A-ll

Opinion of the Montana Supreme

Court, dated January 20,

1976 eaeegereergaeaearcooeeseaeeres? A-13

Sec, 54-132, R.C.M. escesccccccece AmZl

Sec. 34133; RCM. cosevceccccece A-22

2B U.S.C. 2241 wccccecccecccscescccse An’

Application for Search Warrant ... A-25

A-1l

UNITED STATES CQURT OF APPEALS

FOR THE NINTH CIRCUIT

DOUGLAS C. THOMSON

Plaintiff-Appellant,

Vv. No. 77-1009

L. JOHN ONSTAD and ROGER

CRIST, ORDER

Defendants-Appellees.

Appeal from the United States District

Court for the District of Montana

Before: BROWNING and WALLACE, Circuit

Judges, and RENFREW*, District

Judge

The judgment of the district court

is affirmed on the basis of Stone v.

——— -_—

Powell, 428 U.S. 465 (1976).

a aes eee

*Honorable Charles B. Renfrew, United

States District Judge, Northern District

of California, sitting by designation

So eras IY

i Nal eee oe ‘

A-2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BUTTE DIVISION

DOUGLAS C, THOMSON, )

Petitioner,

-vs- ) CV-76-14-BU

)

L., JOHN ONSTAD,

Sheriff of Gallatin

County, Montana; ana} OPINION AND ORDER

ROGER CRIST, Warden ,)

Montana State )

Prison,

)

Respondents, )

)

Petitioner, who was arrested during

a search in which a quantity of drugs

was siezed, was convicted of possession

and sale of dangerous drugs, A pre-

trial motion to suppress the seized

evidence was denied, He appealed to the

Montana Supreme Court, which affirmed

his conviction, Petitioner has exhaust-

ed his state remedies as required by 28

U.S.C, § 2254,

FACTS,

Paul Hallett came to Livingston,

Montana, on approximately November l,

1974, On the evening of November 16,

Tt —

A-3

Hallett was picked up by members of the

Livingston City Police Department be-

cause of Suspected felony fraudulent

check charges pending in Nebraska.

Hallett had also written about five

fraudulent checks in Livingston.

About one and one-half hours after

being incarcerated, Hallett informed the

police that he had information regarding

Thomson and dangerous drugs. Following

discussions with the officers and the

County Attorney, Hallett was promised

immunity from prosecution on any drug-

related charge.

Subsequently, Officer Mike Warren

submitted an affidavit! for application

of a search warrant, which was issued by

Judge Shanstrom, Amphetamines, recovered

in the search of the Thomson house, and

Hallett'’s testimony resulted in Thomson's

conviction.

1. Footnote from Opinion omitted. Foot-

note set forth in the affidavit in

the Opinion, The affidavit is set

forth separately in this Appendix at

A-25,

ee ON

A-4

During the hearing on the suppression

motion, Judge Shanstrom, who was allowed

to testify, stated that he had inquired

) of Hallett concerning the underlying

circumstances of the alleged sale and

that he was personally aware of Thomson's

reputation as a suspect in drug activity,

, DISCUSSION,

The affidavit in support of the search

warrant was insufficient and the attempt

by the State to buttress the insufficient

affidavit by offering testimony at the

suppression hearing does not salvage the

proceeding,

An affidavit must set forth the

underlying circumstances necessary to

enable the magistrate independently to

: judge the validity of the informant’s

conclusion and the affiant must support

his claim that the informant was credible

or his information reliable, Aguilar Vv.

. o.oo

‘

Texas, 378 U,S. 108 (1964); Spinelli v.

United States, 393 U.S, 410 (1969); see

United States v. Goldstein, F.2d

, No, 75-2207 (9th Cir,, March 25,

1976).

The affidavit of Officer Warren, who

temas

“ a

A-5

was neither present nor nearby qn November

8, 1974, when Hallett allegedly entered

the Thomson residence and purchased

amphetamines, was based on information

supplied by Hallett. But, there are no

statements in the affidavit setting forth

the underlying circumstances and support-

ing the credibility or reliability of

Hallett. Such statements are important,

Since Hallett had only been in the

Livingston area for approximately seven-

teen days, had passed fraudulent checks

both in Livingston and in Nebraska, and

had not been used previously by the

police as an informer. The officers had

no long-term background knowledge of

Hallett. Although the Judge and the

police had suspected the petitioner of

drug activities, there was little inde-

pendent investigation of this particular

charge and no attempt on the officer's

part to corroborate Hallett's information,

Furthermore, Hallett's statement was not

given against penal interest, since the

County Attorney had promised him immun-

ity on the night on which the warrant was

issued,

A-6

This situation was squarely discuss-

ed by Justice White in his concurring

opinion in Spinelli, supra, at page 423:

a a ee

But if the officer simply avers,

without more, that there is

gambling paraphernalia on certain

premises, the warrant should not

issue, even though the belief of

the officer ts an honest one, as

evidenced by his oath, and even

though the magistrate knows him

to be an experienced, intelligent

officer who has been reliable in

the past. This much was settled

in Nathanson v. United States, 290

u.S. 4.0 (1933), where the Court

held insufficient an officer's

affidavit swearing he had cause

to believe that there was illegal

liquor on the premises for whic :

the warrant was sought. The un-

supported assertion or belief of

the officer does not satisfy the

requirement of probable cause.

Jones v. United States, 362 U.S.

257, 269 (1960); Grau v. United

States, 287 U.S. 124 (1932);

ars v. United States, 273 U.S.

, 29 (1927).

What is missing in Nathanson and

like cases is a statement of the

basis for the affiant's believ-

ing the facts contained in the

affidavit--the good ‘cause‘ which

the officer in Nathanson said he

had. If an officer swears that

there is gambling equipment at a

certain address, the possibilities

A-7

are (1) that he has seen the

eguipment; (2) that he has ob-

served or perceived facts from

which the presence of the equip-

ment may reasonably be inferred;

and (3) that he has obtained the

information from someone else.

If (1) its true, the affidavit is

good. But in (2), the affidavit

is insufficient unless the per-

ceived facts are given, for it

is the magistrate, not the officer,

who is to judge the existence of

probable cause, Aguilar v. Texas,

378 U.S. 108 (1964); Giordenello

v. United States, 357 U.S. 480,

486 (1958); Johnson v. United

States, 333 U.S. 10, 14 (1948).

With respect to (3), where the

officer's information is hearsay,

no warrant should issue absent

good cause for crediting that

hearsay. Because an affidavit

asserting, without more, the

location of gambling equipment

at a particular address does not

claim personal observation of any

of the facts by the officer, and

because of the likelihood that

the information came from an

unidentified third party, affi-

davits of this type are unaccept-

able.

Since such statements were not supplied,

the affidavit proffered by Officer

Warren is wholly insufficient.

The Fourth Amendment requires that

facts establishing probable cause to

= pe & Sa: »: Ae

A-8

issue a search warrant be set forth with-

in the four corners of the supporting

affidavit. Montana has long followed

that rule, Petition of Grey, 155 Mont,

508, 519 (1971). In State ex rel.

——

Townsend v. District Court, 32 St. Rptr.

1163 (Dec. 1, 1975), the Court stated:

Contemporaneous oral declarations

to a magistrate cannot be used

to bolster an insufficient affi-

davit in the attempt to establish

probable cause, unless such dec-

larations are sworn, signed,

reduced to writing, and made a

part of the affidavit.

This rule is also followed by

the Ninth Circuit:

The case poses an important

problem in the evaluation of

affidavits to determine prob-

able cause for issuance of search

warrants under the Fourth Amend-

ment. We hold that all data

necessary to show probable cause

for the issuance of a search

warrant must be contained within

the four corners of the written

affidavit given under oath.

United States v. Anderson, 453

F. 2q 174 (1971).

But, the Montana Supreme Court

deviated from this rule in the present

case, distinguishing Townsend on the

"—- =

se =

de et

SOM OE ing ORF ee ee re aoe

following basis:

On oral argument, counsel cited

State ex rel. Townsend...

for the proposition that the

affidavit for search warrant

cannot be supplemented by oral

statements to the magistrate.

That is correct and here we

point out that the affidavit was

wholly insufficient to establish

probable cause, but being based

on hearsay from an informant,

the reliability of that inform-

ant may be checked by the magis-

trate.

Page 4, State v. Thomson, No.

13050, January 20, 1976.

This Court does not agree with that

position. The affidavit cannot be

supplemented by the oral statements to

the magistrate; the statements must

appear in the affidavit. Furthermore,

Judge Shanstrom's post hoc testimony at

the suppression hearing cannot be used

to buttress or salvage an insufficient

affidavit.

The Court realizes that affidavits

in support of search warrants should not

be read in a hypertechnical way, since

many affidavits are prepared in the haste

of a criminal investigation. United

States v. Ventresca, 380 U.S. 102 (1965).

A-10

But here the exigency of the situation

was largely illusory, From the time

Hallett made his statement to the time

———— See Oe eee

the application for warrant was presented

to the Judge, four hours had elapsed; and

the alleged drug transaction occurred

eight days before Hallett was picked up.

There was no need for immediate search.

As to the voir dire issue, the Court

agrees with the Montana Supreme Court's

— ee eee ee

conclusion.

Therefore, IT IS ORDERED that the

petition for habeas corpus is granted.

IT IS FURTHER ORDERED that the peti-

tioner be given a new trial within sixty

(60) days of this order or the case be

dismissed.

Done and dated this 30th day of June,

1976.

Ne Na EEE LLIB AE ODI OE OE

? "James F. Battin"

United States District Judge

A-11

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BUTTE DIVISION

ty . .

DOUGLAS C. THOMSON,

| Petitioner,

. | L. JOHN ONSTAD, Sheriff

)

; CV-76-14-BU

of Gallatin County,

)

Montana; and ROGER CRIST, ORDER

Warden, Montana State

Prison,

Respondents,

This Court entered an order June 30,

1976, granting Petitioner's request for

habeas corpus and further ordering that

the petitioner either be given a new trial

in the state court or that his case be

dismissed.

: July 12, 1976, the state petitioned

4 the Court for a rehearing and filed a

4 supporting brief. Petitioner resists

j the granting of a rehearing and has filed

: a brief in support of that position.

i July 6, 1976, the United States

Supreme Court announced its decision in

_U.S. , 96 S.Ct.

Stone v. Powell,

— i lt

—_— wv = =

ee eee eee eee OE eee ee ere Te ae Se

PR Pee eee

A-12

3037 (1976). That decision is controll-

ing here. In Stone, the Supreme Court

held that

» « » Where the state has pro-

vided an opportunity for full

and fair litigation of a Fourth

Amendment claim, a state prison-

er may not be granted federal

habeas corpus relief on the

ground that evidence obtained

in an unconstitutional search

or seizure was introduced at

trial." Stone v. Powell, 96

S.Ct. at 3052. a

The petitioner in this case was

afforded a state hearing on the issues

raised here. State v. Thomson,

Mont.. , 545 P.2d 1070 (1976).

The Court having before it the

briefs of the parties and after full

consideration thereof,

IT IS ORDERED that the Opinion and

Order of this Court entered June 30,

1976, be, and hereby is, vacated.

IT IS FURTHER ORDERED that the peti-

tion for habeas corpus is denied.

Done and dated this 26th day of

October, 1976.

‘

"James F, Battin"

United States District Judge

——_s7 -* Ba

_ DOUGLAS C, THOMSON,

A-13

IN THE SUPREME COURT OF

THE STATE OF MONTANA

THE STATE OF MONTANA,

Plaintiff

and Respondent,

vs.

Defendant

and Appellant.

mee eee eee eee ee eee

No. 13050

MR. JUSTICE CASTLES delivered the opinion of the court.

This is an appeal from a judgment of conviction entered on a

jury verdict of guilty. Defendant Douglas C. Thomson was

convicted on two counts, possession and sale of dangerous drugs

in Park County, the Honorable Robert H. Wilson, presiding.

Prior to trial, defendant moved to suppress any evidence

obtained as a result of a search warrant. The motion, after

hearing, was denied. The appeal is based on the denial of the

motion to suppress, and on two jury selection procedural

matters.

One Paul Hallett was a prisoner in the Livingston city jail,

having been arrested on a fraudulent check charge. On the

evening of November 16, 1974, Flallett asked to see an officer

and asked if the officer would like certain information relating

A-14

160 STATE v. THOMSON

169 Mont. | 58.

to drug sales by defendant. Hallett was later interviewed by the

county attorney.

On the basis of the information received the county attorney

prepared an application for a search warrant. In the early

morning hours of November 17, 1974, the application was

presented to District Judge Jack D. Shanstrom in his home. Two

police officers, the county attorney, and Hallett Met with Judge

Shanstrom. After examining the application, Judge Shanstrom

placed Officer Warren and the informant Hallett under oath and

examined each of them for about twenty minutes. The examina-

tion included discussions of Hiallett’s. information about

defendant and one Adams, who was then under a deferred

imposition of sentence from Billings for drugs. The Judge was

familiar with both defendant and Adams and examined the

informer Hallett extensively in detail on his knowledge of both

subjects, the drugs, and the location of the drugs. Based on the

application and on his independent examination of the in-

formant Hallett as to both his own involvement and _ his

knowledge, Judge Shanstrom issued the search warrant.

Prior to trial at a hearing on the motion to suppress judge |

Robert H. Wilson presided. Judge Shanstrorn testified and was

cross-examined. Judge Wilson denied the motion to suppress.

Judge Wilson tried the case with a jury.

Defendant’s basic issue on app’al is whether the search

warrant was fssued on probable cause.

{1] Defendant approaches his argument — that there was not

probable cause shown -- in a sort of two pronged manner. First,

he suggests that because Judge Shanstrom questioned the in-

formant about features within the Judge’s own knowledge, such

as Adam's prior conviction and defendant's reputation, that he

was not a “detached magistrate”. We need not dwell long on

this. It is clear from Judge Shanstrom’s testimony that he was

examining the informant to determine the reliability of his in-

formation. The informant was, in a sense, an itinerant unknown

amare eee ee ED OP ewe

A-15

STATE v. THOMSON 161

169 Mont. 158.

‘who was being held in jail on another charge, but he was a_

named person.

Judge Shanstrom was the neutral member of the judicial

branch of government whose duty it is to determine whether

there was probable cause for the issuance of a search warrant.

The probable cause for the issuance of a warrant was stated in

the application but the source of that information was a named >

informant whose reliability had not been previously tested. Judge

Shanstrom’s examination of that informant on information

known to the Judge made a reasonably reliable test of that

information necessary to support reliability and thus probable -

cause. Defendant cites United States v. United States District

Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752, and |

Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29

L.Ed.2d 564, for the proposition that a “neutral and detached”

magistrate is required. Neither case is applicable here. Both

cases involved attorneys general, one without judicial approval;

the other the attorney general acting as a justice of peace issuing

his own search warrant, in effect.

[3] The second prong of the defendant's attack is that the

— ——<ome- ow

informant’s reliability was not established because he was

unknown as to reliability. That is why Judge Shanstrom

examined the informant — an independent means of establishing

reliability. But, defendant argues that the application must in

and of itself establish both (a) the reliability of the informant

and (b) the underlying circumstance giving rise to the probable

cause.

In State ex rel. Glantz, 154 Mont. 132, 137, 461 P.2d 193,

196, this Court said:

probable cause, there must be a demonstration of the reliability

or credibility of the informer.”

See: State v. Paschke, 165 Mont. 231, 527 P.2d 569; State v.

Thorsness, 165 Mont. 321, 528 P.2d 692.

— oer = cee eee =

- Ordinarily, the reliability of the informer has been shown by

A-16

162 STATE v. THOMSON

182 Mont. 158.

the informer’s reputation as an upstanding citizen or by past

performance; and in either event these facts can be stated in the

application. But here, as previously set out, these facts did not

exist so the issuing magistrate tested that reliability in a manner,

under oath, designed to independently satisfy the magistrate of

the accuracy of the information. We hold this to satisfy the

showing of probable cause necessary for the issuance of the

warrant.

[3] On oral argument, counsel cited State ex rel. Townsend v.

District Court, Mont., 543 P.2d 193, for the proposition that the

affidavit for search warrant cannot be supplemented by oral

statements to the magistrate. That is correct and here we point

out that the affidavit was wholly sufficient to establish probable

cause, but being based on hearsay from an informant, the

reliability of that informant may be checked by the magistrate.

It is no doubt desirable to have a written record of that

examination, but the exigencies of the nighttime situation did not

permit such. The Judge testified and was subject to cross- |

examination. His only concern was as to the reliability of the

hearsay, and heso testified. Thus, here oral testimony is not |

supplementing probable cause — it is merely providing a direct

test of reliability by a conscientious magistrate. The cases on

unnamed informants are not in point.

The two procedural matters in jury selection complained of

arose in this manner:

presence of the jury, counsel for defendant challenged for cause

the seating of a prospective juror, J.E. Gaab, on the grounds that

he was an employee of the State Fish and Game Department and

had been in law enforcement work. The challenge was denied. —

Mr. Gaab did not sit as a trial juror, but defendant claims error

because he was obligated to use a peremptory challenge.

In defendant's brief on appeal it is stated that “Prospective

_ juror, J.E. Gaab, admittedly was a law enforcement officer”. In

A-17

STATE v. THOMSON 163

169 Mont. 158.

point of fact juror Gaab was an officer of the Montana Fish and

Game department.

Section 95-1909(d)(1), R.C.M.1947, states that “Each party

may challenge must be tried by the court”. Subsection (2) lists

those reasons for which a challenge for cause may be taken.

That subsection also provides that a challenge for cause may be

taken “for any other reason which the court determines”. Of

the reasons listed in section 95-1909 only the final one would

provide a reason for challenging a law enforcement officer for

cause. Section 95-1909(d)(2)(x) states:

“For the existence of a state of mind on the part of the juror

in reference to the case, or to either of the parties, which will

prevent him from acting with entire impartiality and without

prejudice to the substantial rights of either party.”

[4-6] That section does not specifically exclude law en-

forcement officers from serving as jurors in a criminal case. Not

being specifically provided for, law enforcement officers must :

stand on an equal footing with any other citizen as a prospective

juror. Since defendant does not allege the existence of any

particular state of mind which would place him within the

strictures of subsection (x), other than the fact that he is a fish

and game officer, no basis exists for his disqualification for

cause. The bare fact that he is connected with law enforcement

does not, without more, necessitate a finding that he would not

be an impartial juror.

In State v. Allison, 122 Mont. 120, 129, 131, 199 P.2d 279,

285, the Court stated:

“It is a difficult matter at best to ascertain the real state of

mind of a prospective juror with respect to detecting the

existence of bias or prejudice against one accused of crime. For

that reason this court has said (State v. Russell, 73 Mont. 240,

249, 235 P. 712, 715) that the determination of the qualification

of a juror to serve in a case before the court ‘must be left largely

to the sound discretion of the trial court.” Again in State v.

Huffman, 89 Mont. 194, 296 P. 789, 790, this court a —>*

——

A-18

164 STATE v. THOMSON

169 Mont. 155.

the trial court is the judge of the weight to be given to the

testimony adduced on a voir dire examination.” "

Assumedly, the district court could have removed juror Gaab

for cause even without a clear showing of impartiality if the

court had any doubt as to the juror’s state of mind. Such a

determination is within the sound judicial discretion of the

court. Where the court does not exercise its discretion in

removing a juror for cause when a challenge is made, this Court

may reverse a Bonviction only where there is demonstrated a

clear abuse of discretion. In the instant case no such abuse of

discretion can be shown by defendant.

While a fish and game warden is a law enforcement officer in

a narrow sense, the authority of those officers is limited in scope

by Chapter 1, Title 26, Revised Codes of Montana. Section 26-

110(2). R.C.M.1947, substantially states the law enforcement

duties of wardens:

“They shall enforce the laws of this state and the rules of the .

commission with reference to the protection, preservation, and

propagation of game and fur-bearing animals, fish and game

birds.”

The instant case deals with a violation of the general criminal

law of the state of Montana, specifically the Montana Dangerous

Drug Act. Prospective juror Gaab, as a game warden, has no

connection with offenses committed in violation of the drug laws

of this state. He has no power as a law enforcement officer in

that respect and he stands as a private citizen. Without a

showing of impartiality there can be no abuse in discretion by 7

the trial court in refusing to allow that juror to be removed for

cause.

{7} In State v. Cadotte, 17 Mont. 315, 316, 42 P. 857, 858

(1895), this Court found no error in refusing to remove a juror |

for cause where the juror was a brother-in-law of the county

attorney who was prosecuting. There the Court said:

“Furthermore, the examination of this juror upon his voir dire

does not at all tend to show any bias, either implied or actual.”

~~! Va OSOne™

A-19

STATE v. THOMSON 16S

169 Mont. 158.

It is clear then that, unless the juror falls within one of the

categories of section 95-1909, he will not be removed for cause

without a showing of partiality. In this case there is not only no

showing of partiality, there is not even an allegation of par-

tiality. The bare fact of Gaab’s position as a game warden is not

enough to create a doubt as to his impartiality, without more.

The district court record indicates that Gaab was removed as a

juror through a peremptory challenge by defendant. In Allison

the Court recognized that even if a doubt did exist as to the

juror’s state of mind, the fact that the defendant later removed the

juror through the exercise of a peremptory challenge precludes

the possibility of any prejudice to the defendant. In

distinguishing State v. Sims, 51 N.M. 467, 188 P.2d 177, the

Court stated:

“* * * In the case at bar, however, the defendant had three |

peremptory challenges left at the time the court overruled the

challenge against the witness Leemhius and immediately

following defendant's taking of exception to the court's overruling

said challenge, the deferdant exercised his sixth peremptory

challenge to remove said juror. In the case at bar the court did

not, as in the Sims case, force the objectionable juror upon the |

defendant after the latter had exhausted all his peremptory

challenges, and so far as prejudice to the rights of the defendant is

concerned, Leemhius did not sit on the jury which tried the

defendant. The fact that defendant regarded jurors Jensen and

Ronnin as undesirable gave him no right to have Leemhius ex-

cused for bias in order that defendant might get rid of one or two

other jurors, no showing having been made that those prospective

jurors were not qualified.”

Defendant was not entitled to the removal of Gaab as a juror

for cause, and even if he had been so entitled he was in no way

harmed in his defense since Gaab did not sit on the jury.

[8] Next and last, defendant claims error in the answers in voir

dire examination of jurors when juror Richard Cain was alleged

to have answered in the negative a question as to whether any

a Re eR ee ae ee ee a eee ee ee ee ee ee ee ee OTN Ce

A-20

166 STATE v. THOMSON

169 Mont. 158.

potential juror was a member of a law enforcement agency or

connected with a law enforcement agency. Defendant then

alleges that Mr. Cain was a member of the Police Commission of

the city of Livingston. These allegations by defendant do not

appear in the record. They come by way of counsel's affidavit.

The state presented a counter-affidavit from juror Cain denying

that such questions were even asked. Aside from the fact that a

police commissioner under Montana law, Chapter 18, Title 1},

Revised Codes of Montana, 1947, is not a law enforcement officer

and thus the answer would have been technically proper in any

event, we do not accept affidavits to supplement an appellate

record in this manner. State ex rel Woodahl v. District Court,

Mont., 540 P.2d 312.

Finding no error, the judgment is affirmed.

MR. CHIEF JUSTICE JAMES T. HARRISON and MR.

JUSTICES JOHN C. HARRISON, HASWELL and DALY concur.

A- 21

The Montana drug sale statute (54-132

R,.C.M,)

54-132. Criminal sale of

dangerous a OF (a) A person

commits the offense of a criminal

sale of dangerous drugs if he

sells, barters, exchanges, gives

away, or offers to sell, barter,

exchange or give away, manufactures,

prepares, cultivates, compounds or

processes any dangerous drug as

defined in this act,

(b) A person convicted of

Criminal sale of dangerous drugs

shall be imprisoned in the state

prison for a term not less than

one (1) year nor more than life.

under their supervision acting

in the course of a professional

practice are exempt from this

section.

| a

A~ 22

The Montana drug possession statute (54-

133 R.C.M,)

54-133. Criminal possession of

dangerous drugs. (a) A person

commits the offense of criminal

possession of dangerous drugs if

he possesses any dangerous drug

as defined in this act.

(b) Any person convicted of a

criminal possession of marihuana

or its derivatives in an amount,

the aggregate weight of which

does not exceed sixty (60) grams

of marihuana, or one (1) gram of

hashish, shall, for the first

offense, be guilty of a mis-

demeanor and is punishable by a

fine not to exceed one thousand

dollars ($1,000) or by imprison-

ment in the county jail not to

exceed one (1) year, or by both

such fine and imprisonment. A

person convicted of a second, or

subsequent, offense under this

Subsection is punishable by a

fine not to exceed one thousand

dollars ($1,000) or by imprison-

ment in the county jail not to

exceed one (1) year or in the

state prison not to exceed three

(3) years or by both such fine and

imprisonment.

criminal possession of dangerous

drugs not otherwise provided for

in subsection (b) shall be

A-23

imprisoned by imprisonment in

the state prison not to exceed

five (5) years,

(d) A person of the age of

twenty-one (21)years or under,

convicted of a first v*olation

under this section shall be pre-

sumed to be entitled to a

deferred imposition of sentence,

Jurisdiction under this section

Shall be exclusively in the

district court.

A-24

The Federal Habeas Corpus Statute (28

U,S,C. 2241)

§ 2241. Power to grant writ ify

(a) Writs of habeas corpus may be granted by the Supreme Court,

any justice thereof, the district courts and any circuit judge within

their respective jurisdictions. The order of a circuit judge shail be

entered in the records of the district court of the district wherein

the restraint complained of is had.

(b) The Supreme Court, any justice thereof, and any circuit judge

may decline to entertain an application for a writ of habeas corpus

and may transfer the application for hcaring and determination to

the district court having jurisdiction to entertain it.

less— :

(1) He is in custody under or by color of the authority of the!

United States or is committed for trial before some court there-

of; or

(2) He is in custody for an act done or omitted in pursuance

of an Act of Congress, or an order, process, judgment or decree

of a court or judge of the United States; or

(3) He is in custody in violation of the Constitution or laws |

or treaties of the United States; or

(4) He, being a citizen of a foreign state and domiciled there-

in is in custody for an act done or omitted under any alleged

right, title, authority, privilege, protection, or exemption claimed

under the commission, order or sanction of any forcign state, or

under color thereof, the validity and effect of which depend upon

the law of nations; or

(5) It is necessary to bring him into court to testify or for

trial.

(d) Where an application for a writ of habeas corpus is made by

| a person in custody under the judgment and sentence of a State court

of a State which contains two or more Federal judicial districts, the |

application may be filed in the district court for the district wherein |

such person is in custody or in the district court for the district |

within which the State court was held which convicted and sentenced

him and each of such district courts shall have concurrent jurisdic- |

tion to entertain the application. The district court for the district |

wherein such an application is filed in the exercise of its discretion |

and in furtherance of justice may transfer the application to the |

other district court for hearing and determination.

June 25, 1948, c. 646, G2 Stat. 964; May 24, 1949, c. 139, § 112, 63 :

Stat. 105; Sept. 19, 1966, Pub.L. 89-590, 80 Stat. 811.

A-25

"On this 17th day of November,

1974, MLKE WARREN has person-

ally appeared before me and

having been sworn, deposes and

Says: That the offense of

Felony, to-wit: POSSESSION OF

DANGEROUS DRUGS has been com-

mitted:

"That he has good reason to be-

lieve and does believe that in

and upon certain premises with-

in the County of Park, State of

Montana, particularly described

as follows: the residence of

DOUGLAS C. THOMSON, at 314 North

Fifth Street, Livingston, Montana,

that here have been and are now

located certain items of Danger-

ous Drugs, the possession of

which constitutes a criminal

offense, said dangerous drugs

being speed, amphetamine, and

hashish, a derivitative of

marihuana.

"That the facts which are the |

grounds of this application and

upon which applicant relies to

establish probable cause for the

issuance of a search warrant are:

That one Paul Hallett, did on or

about the 8th day of November,

1974, enter into the house

located at 314 North Fifth Street,

Livingston, Park County, Montana,

then occupied by Douglas C.

Thomson, and did obtain 25 hits

of speed which was taken from a

larger package and said Paul

Hallett was also offered hashish,

A- 26

all of which dangerous drugs

were taken by said Douglas C.

Thomson, from a kitchen drawer

or were observed in said kitchen

drawer; that said Paul Hallett

has been informed within the last

12 hours that the dangerous drugs

above described are still in the

house located at 314 North Fifth

Street, Livingston, Park County,

Montana,

“THEREFORE, the Applicant requests

that a Search Warrant be issued,

authorizing the search of the

above described premises in the

manner provided by law.

“Mike Warren

Applicant"

“SUBSCRIBED AND SWORN to before

me this 17th day of November,

1974 a

Jack D, Shanstrom

District Judge”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.