STATE v TROPF

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No. 12750 I N T E SUPREME COURT O THE STATE O M N A A H F F OTN 1974 THE STATE O MONTANA, F P l a i n t i f f and A p p e l l a n t , -vs - DUARD TROPF, Defendant and Respondent. Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t , Honorable Paul G. Hatf i e l d , Judge p r e s i d i n g . Counsel of Record: For A p p e l l a n t : Hon. Robert L. Woodahl, A t t o r n e y General, Helena, Montana Thomas A. Budewitz, A s s i s t a n t A t t o r n e y General, Appeared, Helena, Montana J. Fred Bourdeau, County A t t o r n e y , Great F a l l s , Montana Norman L. Newhall, I11 Deputy County A t t o r n e y , argued, Great F a l l s , Montana F o r Respondent : Ralph T. Randono argued, Great F a l l s , Montana Submitted : Decided: Filed : JR h. B 3 195 September 1 7 , 1974 j A h i 2 3 1975 Mr. Justice Gene B. Daly delivered the Opinion of the Court. This is an appeal from an order of the district court, Cascade County, suppressing the state's evidence and refusing to allow the state to either amend or dismiss and refile the Information. On October 5, 1973, a complaint and an affidavit for a search warrant, with duplicate originals, were prepared on standard forms of the county attorney's office. The forms are headed "IN THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF CASCADE1'and contain a signature line at the bottom of each form, under which is the designation "DISTRICT JUDGE. " On the day in question there were no district judges present at the courthouse. The complaint and affidavit were submitted to H. William Coder, police judge of the city of Great Falls, who, upon hearing sworn testimony in support of the complaint and affidavit, signed the search warrant in duplicate and certified the duplicate complaint and affidavit. In A search was then made of defendant Duard ~ropf'shouse. searching the premises police officers discovered numerous plastic bags containing marihuana residue, some marihuana seeds, and drug use paraphernalia. By following a path from the back door of the premises into the back yard, the officers found an old board covering a hole in the ground which contained a duffle bag, which in turn , held approximately three pounds of marihuana. Thereafter a return of the items seized upon execution of the search warrant was made of record before a district judge. At that time, the state maintains, one of the duplicate originals of the search warrant was left with the clerk of the district court. This is disputed and the records before this Court fail to reveal any such filing with the clerk. The other duplicate original of the search warrant and one duplicate original of the complaint and affidavit were retained by a detective of the Great Falls police department. The remaining duplicate original of the complaint and a f f i d a v i t were n o t f i l e d w i t h t h e c l e r k of t h e c o u r t and are unaccounted f o r . The s t a t e maintains t h e d u p l i c a t e o r i g i n a l s of t h e complaint and a f f i d a v i t i n possession of t h e Great F a l l s p o l i c e d e t e c t i v e were subsequently f i l e d w i t h t h e c l e r k of t h e d i s t r i c t c o u r t . T h i s i s d i s p u t e d by defendant and, a g a i n , t h e r e c o r d s b e f o r e t h i s Court do n o t reveal t h a t t h e s e documents were f i l e d . On October 16, 1973, an Information c o n t a i n i n g two c o u n t s was f i l e d i n the d i s t r i c t court. *** possession c e r t a i n dangerous d r u g s , "Count I : t o - w i t : Marihuana i n e x c e s s of 60 grams, i n v i o l a t i o n of S e c t i o n 54-133, R.C.M. 1947, as amended". Evidence i n support of Count I was a c q u i r e d by a s e a r c h of d e f e n d a n t ' s premises conducted pursuant t o t h e s e a r c h warrant i s s u e d by H. William Coder, p o l i c e Judge of t h e c i t y of Great F a l l s . *** "count 11: on o r about t h e 5 t h day of October, A.D. 1 9 / 3 , and b e f o r e t h e f i l i n g of t h i s Information, t h e s a i d defendant then and t h e r e b e i n g , d i d then and t h e r e w i l f u l l y , wrongfully, u n l a w f u l l y and f e l o n i o u s l y , as 7- amended". (Emphasis added). Evidence i n support of Count I1 was a c q u i r e d (1) by a s t a t e m e n t given by d e f e n d a n t ' s roommate t o t h e county a t t o r n e y t h a t on October 2 , 1973, he observed t h e defendant s e l l dangerous drugs t o one Ron Paulson a t d e f e n d a n t ' s apartment a t 904 6 t h S t . S.W., Great F a l l s ; (2) from t h e sworn testimony of Ron Paulson given i n a proceeding t o d e c l a r e him a j u v e n i l e d e l i n q u e n t which t e s t i mony confirmed t h e f a c t of such s a l e ; and ( 3 ) from a t h i r t e e n page p o l i c e department statement given by t h e same informant. Defendant was a r r a i g n e d October 1 8 , 1973, and e n t e r e d a p l e a of n o t g u i l t y . Various motions were i n t e r p o s e d by defendant and t h e m a t t e r s e t f o r t r i a l on January 28, 1974, by o r d e r d a t e d Decemb e r 21, 1973. R.C.M. O January 8 , 1974, defendant under s e c t i o n 95-1803(d), n 1947, gave n o t i c e of h i s defense of a l i b i and l i s t e d s i x witnesses. On January 23, 1974, t h e s t a t e by c o n s o l i d a t e d motions moved f o r l e a v e t o amend Count I1 of t h e Information t o charge: "* * * *** on o r about t h e 2nd day of October, 1973, defendant did s e l l a c e r t a i n dangerous drug, t o w i t : Hashish, t o Ronald Paulson i n v i o l a t i o n of 54-132, R.C.M. 1947 a s amended. " *** *** The s t a t e a l l e g e d t h e proposed amendment was only i n form and n o t substance and d i d n o t charge an a d d i t i o n a l o r d i f f e r e n t o f f e n s e and no r i g h t s of defendant w e r e p r e j u d i c e d . In the alter- n a t i v e , i t asked d i s m i s s a l of t h e Information pursuant t o s e c t i o n 1947, on t h e ground t h a t a mistake was made i n 95-1706, R.C.M. c h a r g i n g t h e proper o f f e n s e and t h a t t h e d i s m i s s a l be w i t h o u t p r e j u d i c e t o f i l e a new Information. A l l motions pending b e f o r e t h e c o u r t were b r i e f e d and t h e c o u r t heard o r a l argument January 24, 1974. The c o u r t then suppressed t h e evidence i n support of Count I a s i l l e g a l l y s e i z e d because t h e s e a r c h w a r r a n t was f a t a l l y d e f e c t i v e f o r t h e s e reasons: (1) The person s i g n i n g t h e w a r r a n t was without l a w f u l a u t h o r i t y t o i s s u e a warrant o u t of t h e d i s t r i c t c o u r t of t h e e i g h t j u d i c i a l d i s t r i c t i n t h a t he i s n o t a d i s t r i c t judge of t h a t c o u r t . (2) The a f f i d a v i t and complaint on which t h e warrant was i s s u e d was n o t r e t a i n e d by t h e judge a s i s r e q u i r e d by s e c t i o n 95-706, R.C.M. 1947. The c o u r t f u r t h e r s t a t e d t h a t t h e s t a t e ' s motion t o amend Count o r i n t h e a l t e r n a t i v e t o d i s m i s s and r e f i l e a new Information, 1 1 c o n s t i t u t e d an amendment a s t o substance r a t h e r than as t o form and was i n v i o l a t i o n o f s e c t i o n 95-1505, R.C.M. 1947; and, t h e a f f i d a v i t 1 f o r l e a v e t o f i l e Count 1 d i d n o t support t h e f a c t u a l a l l e g a t i o n s i n Count 11. The c o u r t denied t h e s t a t e ' s motions and dismissed Counts I and 11. The s t a t e argues t h a t t h e term "Judge" a s d e f i n e d i n s e c t i o n 95-206, R.C.M. 1947, t o g e t h e r w i t h s e c t i o n 95-704, R.C.M. 1947, a u t h o r i z e s a p o l i c e judge t o i s s u e s e a r c h w a r r a n t s . S e c t i o n 95-704, R.C.M. 1I 1947, s t a t e s : Any judge may i s s u e a s e a r c h warrant * * *. Judge i s d e f i n e d i n s e c t i o n 95-206, R.C:M., I' 1947, a s : "'Judge' means a person who i s i n v e s t e d by law w i t h t h e power t o perform j u d i c i a l f u n c t i o n s and i n c l u d e s c o u r t , j u s t i c e of t h e peace o r p o l i c e m a g i s t r a t e c u l a r c o n t e x t s o r e q u i r e s . '' (Emphasis adde This is a qualified definition to give judicial stature to our entire court system but is qualified so as not to be taken as conferring jurisdiction where none exists merely because other statutes use the term "judge". It is well founded in Montana law that the police courts are courts of limited jurisdiction and such courts have only such authority as is expressly conferred upon them. State ex rel. Marquette v. Police Court, 86 Mont. 297, 283 P.430; State ex rel. McIntire v. City Council of the City of Libby, 107 Mont. 216, 82 P.2d 587; City of Billings v. Herold, 130 Mont. 138, 296 P.2d 263; State ex rel. City of Libby v. Haswell, 147 Mont. 492, 414 P.2d 652. The subject matter jurisdiction of the police court of the city of Great Falls is defined by section 11-1602, R.C.M. 1947 and Section 1-27-11 of the Municipal Code of the City of Great Falls. Section 11-1602, R.C.M. 1947, provides: "Jurisdiction of police courts. The police court has concurrent jurisdiction with the justice of the peace of the following public offenses committed within the county: "1 () Theft where the value of the stolen property does not exceed one hundred fifty dollars ($150)"2 () Assault and battery, not charged to have been committed upon a public officer in the discharge of his official duty, or with intent to kill. Breaches of the peace, riots, affrays, "3 () committing willful injury to property, and all misdemeanors punishable by fine not exceeding five hundred dollars ($500), or by imprisonment not exceeding six ( ) months, or by both fine and impri6 sonment . " 4 Proceedings respecting vagrants, lewd, or () disorderly persons. Such offenses must be prosecuted in the name of the state of Montana. II (5) Possession of beer or liquor by persons under the age of eighteen (18) years in violation of section 94-35-106.2 [94-5-6101. tt (6) Selling, giving away or disposing of intoxicating liquors to minors in violation of section I 94- [3]5-106 [94-5-609 . II The police court shall have no jurisdiction of any civil cause, except as otherwise provided by law. II Section 1-27-11 of the Municipal Code Falls, provides: of the City of Great Of all public offenses committed within the City "A () over which police courts are expressly granted the Of all proceedings for the violation of any "(B) laws or ordinances of the City, both civil and criminal, which must be prosecuted in the name of the City. I1 (Emphasis added) . Since police magistrates have never been given authority by the legislature to issue search warrants, the word "~udge"used in section 95-704, R.C.M. 1947, does not require the inclusion of a police magistrate as a person authorized to issue search warrants. Therefore, the search warrant issued in the instant case was void. The district court correctly suppressed the evidence obtained under the authority of that search warrant. We need not proceed further to evaluate arguments advanced by the state in regard to the search warrant itself or the procedure used in its issuance, execution and return, other than to clarify some misconceptions and the weight to be given State v. Meidinger, 160 Mont. 310, 319, 502 P.2d 58. The state admits the affidavit, complaint and warrant were entitled incorrectly as "IN THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF CASCADE", but asserts I1There is no requirement under the law, however, that the warrant contain any heading specifying the court in which application is made." The state relies on section 95-717, R.C.M. 1947, which reads in pertinent part: 18 When search and seizure not illegal. No search and seizure, whether with or without warrant, shall be held to be illegal as to a defendant if: "*** No right of the defendant has been infringed by "b () the search and seizure, or, Any irregularities in the proceedings do not "c () affect the substantial rights of the accused." The state also relies on Meidinger for support alleging the "highly technical" defect in Meidinger was more serious than that presently before this Court. Section 95-703, R.C.M. 1947, by d e f i n i t i o n d i r e c t s t h a t a search warrant "is an o r d e r i n w r i t i n g , i n t h e name of t h e s t a t e " . This would contemplate, a s i n a l l o t h e r c r i m i n a l matters and p a r t i c u l a r l y i n m a t t e r s t h a t p e r t a i n t o t h e a u t h o r i z i n g instrument t o search a person's home, t h a t n o t i c e t o t h e person s u b j e c t t o t h e process concerning t h e o r i g i n of t h e process and t o whom he may address h i s grievances i n response f o r an inventory ( s e c t i o n 95-712, R.C.M. 1947) a r e m a t t e r s of due process and n o t t e c h n i c a l i r r e g u l a r i t i e s . Omissions i n t h i s regard would be s u b s t a n t i v e and i n f r i n g e on t h e r i g h t s of t h e person whose residence i s being searched and would n e c e s s a r i l y be p r e j u d i c i a l e r r o r . The d i s t r i c t c o u r t condemned f a i l u r e t o comply w i t h s e c t i o n 95-706, R.C.M. 1947, which r e q u i r e s : "The a p p l i c a t i o n on which t h e warrant i s issued s h a l l be r e t a i n e d by t h e judge b u t need n o t be f i l e d with t h e c l e r k of t h e c o u r t nor with t h e c o u r t i f t h e r e i s no c l e r k , u n t i l t h e warrant has been executed o r has been returned ' n o t executed "'. Again t h e s t a t e r e l i e s on s e c t i o n 95-717, R.C.M. 1947, and a l l e g e s t h a t one of t h e d u p l i c a t e o r i g i n a l s of the a p p l i c a t i o n was r e t a i n e d by a d e t e c t i v e of t h e Great F a l l s p o l i c e department and i n its brief states: ''It i s submitted t h a t h i s [ p o l i c e ] agency r e l a t i o n s h i p t o t h e P o l i c e Judge i s a s binding a s t h a t of t h e Clerk of Court t o t h e D i s t r i c t Judge and accordingly, Detective H a l l ' s r e t e n t i o n of t h e Application c o n s t i t u t e s d e f a c t o r e t e n t i o n by t h e Police Judge of t h e Application ** *." Thus t h e s t a t e contends t h e requirements of s e c t i o n 95-706,R.C.M. 1947, were s u b s t a n t i a l l y complied with. This reasoning i s n o t v a l i d and w i l l n o t be pursued i n depth b u t i n passing we w i l l comment t h a t t h e r e can be no agency r e l a t i o n ship between t h e executive and j u d i c i a l branches of government by v i r t u e of t h e s e p a r a t i o n of powers d o c t r i n e . The d i s t r i c t c o u r t was n o t i n e r r o r . Returning t o s e c t i o n s 95-717 and 95-703, R.C.M. i n Meidinger; 1947, involved Section 95-703 h e r e t o f o r e c i t e d i n d e f i n i t i o n of a search warrant, a l s o r e q u i r e s t h a t t h e warrant be "directed t o a peace o f f i c e r " and i n Meidinger t h e w a r r a n t w a s addressed t o 11 any peace o f f i c e r of t h i s s t a t e " . The f a c t s i n Meidinger were n o t s i m i l a r n o r was t h e d e f e c t i n t h e w a r r a n t a m a t t e r of substance, a s we f i n d here. The formal d e f e c t i n t h a t c a s e could i n no way have i n f r i n g e d on t h e r i g h t s of t h e defendant and was n o t p r e j u d i c i a l . The Court, i n Meidinger, was n o t moved t o a l t e r t h e s t r i c t a p p l i c a t i o n of s e a r c h warrant procedures and s t a t e d : "While t h i s Court does f i n d t h a t t h e s e a r c h warrant w a s d e f e c t i v e because i t was n o t d i r e c t e d t o a p a r t i c u l a r p o l i c e o f f i c e r , we do n o t approve t h i s type of s e a r c h warrant and recommend t h a t such p r a c t i c e s be d i s c o n t i n u e d . II T h i s was n o t a l i c e n s e t o erode t h e process b u t an admonition t o r e c o g n i z e t h a t t h e procedures i n t h i s a r e a a r e t o be s t r i c t l y a p p l i e d , v e r y simply because they d e a l w i t h a n exception t h a t permits t h e sovereign t o e n t e r upon a c o n s t i t u t i o n a l l y p r o t e c t e d area. The s t a t e ' s second argument i s t h a t i t should have been allowed t o e i t h e r amend i t s Count I1 of t h e Information t o conform w i t h t h e a f f i d a v i t f o r f i l i n g d i r e c t , o r i n t h e a l t e r n a t i v e , t h e c o u r t should have dismissed Count I1 and allowed t h e s t a t e t o r e f i l e t h e Information. S e c t i o n 95-1505, R.C.M. 1947, provides: "Amending t h e charge. ( a ) A charge may b e amended i n m a t t e r s of substance a t any t i m e b e f o r e t h e d e f e n d a n r p l e a d s , without l e a v e of c o u r t . "(b) The c o u r t may permit any charge t o be amended a s t o form a t any time b e f o r e v e r d i c t o r f i n d i n g i f no a d d i t i o n a l o r d i f f e r e n t o f f e n s e i s charged and i f t h e s u b s t a n t i a l r i g h t s of t h e defendant a r e n o t p r e j u d i c e d . o " ( c ) N charge s h a l l be dismissed because of a formal d e f e c t which does n o t tend t o p r e j u d i c e a subs t a n t i a l r i g h t of t h e defendant." (Emphasis added.) I t i s , t h e r e f o r e , l e f t t o t h e d i s c r e t i o n of t h e d i s t r i c t judge whether o r n o t t h e information can be amended a f t e r pleading. S t a t e v. H e i s e r , 146 Mont. 413, 416, 407 P.2d 370. Here, t h e r e i s no showing i n t h i s r e s p e c t t h a t t h e d i s t r i c t c o u r t abused i t s discretion. T h i s Court s t a t e d i n H e i s e r : I1 The function of an information i s two-fold: (1) t o g i v e j u r i s d i c t i o n t o t h e c o u r t ; and (2) t o n o t i f y a defendant of h i s o f f e n s e , thereby giving him an opportunity t o defend. 11 See a l s o : S t a t e v. S t r a i g h t , 136 Mont. 255, 263, 347 P.2d 482. Here, defendant a f t e r pleading n o t g u i l t y t o t h e Information, prepared h i s defense of a l i b i and furnished t h e names of t h e witnesses who would t e s t i f y a s t o t h e v e r a c i t y of h i s a l i b i . To then allow t h e s t a t e t o change t h e d a t e , t.he elements of t h e crime, and t h e drug involved would destroy t h a t defense and would i n substance charge a d i f f e r e n t offense. The d i s t r i c t c o u r t c o r r e c t l y refused t h e motion t o amend t h e Information. The d i s t r i c t c o u r t was a l s o c o r r e c t i n i t s r u l i n g t h a t t o dismiss because of a mistake i n t h e substance of t h e charge, admittedly n o t i n conformity with t h e a f f i d a v i t , with leave t o r e f i l e would be tantamount t o g r a n t i n g t h e motion t o amend a s t o a matter of substance. The order of t h e d i s t r i c t c o u r t i s a f f i r m 2' 7 / ,Chief J u s t i c e i _ ' ................................... Justices. Justice P Mr. Justice Wesley Castles dissenting: I dissent as to both the authority of a judge, in this case a police court judge, to issue a search warrant; and, the refusal of the district court to permit amendment or refiling. Suffice it to say that I feel that the majority opinion has interpreted the statutes much too narrowly.

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