text:
    BRUCE G. KNEELAND, Plaintiff and Appellant, v. LUZENAC AMERICA, INC., Defendant and Respondent.
    No. 97-149.
    Submitted on Briefs March 5, 1998.
    Rehearing Denied July 16, 1998.
    Decided June 2, 1998.
    1998 MT 136.
    55 St.Rep. 541.
    961 P.2d 725.
    289 Mont. 201.

      See C.J.S. Employer-Employee Relationship § 81.
    For Appellant: Michael J. San Souci; Law Office Michael J. San Souci; Bozeman.
    For Respondent: Thomas E. Hattersley, III, and Teri A. Walter; Gough, Shanahan, Johnson & Waterman; Helena.
   JUSTICE REGNIER

delivered the opinion of the Court.

¶1 The plaintiff, Bruce G. Kneeland, brought this action alleging that he was wrongfully discharged by defendant Luzenac America, Inc. Kneeland appeals the decision of the Fifth Judicial District Court, Madison County, granting defendant’s motion for summary judgment on his breach of implied covenant claim. Kneeland also appeals the jury verdict finding that he was not wrongfully discharged by Luzenac. We affirm.

¶2 We restate the issues as follows:

¶3 1. Did the District Court err in granting summary judgment to Luzenac on Kneeland’s claim of post-termination bad faith?

¶4 2. Did the District Court properly instruct the jury?

¶5 3. Was there substantial evidence to support the jury verdict?

¶6 4. Did the District Court err in denying Kneeland’s motions for judgment as a matter of law, and motion for a new trial?

FACTUAL AND PROCEDURAL BACKGROUND

¶7 In 1981, Bruce G. Kneeland was hired by Cyprus Industrial Minerals to work for the company’s Yellowstone Mine Operation. Later, Cyprus was renamed Luzenac America, Inc. Luzenac is a talc company with principal mine facilities in Montana and headquarters in Denver, Colorado. Luzenac’s Montana Mines Division has three mine sites in Montana that operate separately. The largest site is the Yellowstone Mine near Ennis. The company also operates the Beaverhead Mine, a small underground mine in the Ruby Mountains, and the Antler Mine, a surface mine located south of Silver Star.

¶8 In the early 1990s, the talc market was in a downturn. Talc, a commodity, is an industrial mineral. Talc companies face competition from other industrial mineral producers, such as clay and calcium carbonate companies. Also, in recent years, there has been a large influx of talc into the market from cheaper, foreign producers. As a result, the United States talc market accumulated a large supply of inventory.

¶9 Faced with these conditions, Luzenac’s Montana Mines Division reconfigured its workforce in late 1993 and mid-1994 to reduce its personnel by fifty-eight hourly positions. At first, Luzenac offered voluntary retirement and voluntary incentive packages to trim its workforce. However, these incentives did not result in a total reduction of fifty-eight hourly positions. Subsequently, the company reviewed its personnel needs and determined which job positions would be reduced in number and which positions would be eliminated completely or reconfigured.

¶10 The Montana Mines Division had a handbook applicable to all its hourly employees published by Cyprus, prior to the company’s name change in 1992. The handbook was amended from time to time. As of 1994, the handbook contained a policy dealing with downsizing. The handbook specifically outlined a process by which employees may “bid” for open positions, or “bump” into occupied positions in the event of a reduction in force. A bump from an employee would displace another employee currently occupying that position.

¶ 11 The employees of the Montana Mines Division were aware that it was over staffed and required downsizing. The employees approached Mike Toelle, the general manager, with their concerns. To achieve an equitable result acceptable to all personnel, Toelle formed a committee of hourly employees from all three mine sites. The purpose ofthe committee was to develop a consensus onhowthe downsizing should occur and revise the policy on reducing the workforce.

¶12 Under the policy the committee developed, Yellowstone Mine employees, like Kneeland, could bid for any open position available at their mine. These employees could also bump into any position at the Yellowstone Mine or into a designated “entry-level” position at the Beaverhead mine, if they had the necessary qualifications for the position and more seniority than the individual occupying the position.

¶ 13 Job descriptions were posted detailing the open positions available for bid, and the entry level positions vulnerable to bumping. Employees were requested to fill out bid and bump sheets identifying the position they were seeking. The person with the most seniority and necessary qualifications for the position would be chosen. A committee evaluated each application and an applicant was required to gain the consensus of the members of the committee before being selected for a position.

¶14 At first, Kneeland attempted to bid into the positions of plant maintenance and mobile maintenance at the Yellowstone Mine. However, those positions were filled by applicants with more seniority than Kneeland. He then attempted to bump into the position of underground mechanic at the Beaverhead Mine. That position was not vulnerable to bumping and his application was rejected. He also attempted to bump into the position of underground mine support at the Beaverhead Mine, but was unsuccessful because he lacked the published minimum qualifications for that position. Kneeland made no other attempt to bid upon or bump into any other position for which he was eligible. Therefore, after the application process was over, Kneeland was laid off in a reduction in force from Luzenac in mid-1994.

¶15 In July 1994, after the workforce reduction, Luzenac acquired Montana Talc Company, a competitor with a mine site adjacent to the Yellowstone Mine facility. Due to the acquisition, Luzenac hired five individuals whom they had recently terminated. Kneeland was not one of those hired back to work for Luzenac.

¶ 16 On September 27,1994, Kneeland filed a complaint in the Fifth Judicial District Court, Madison County, alleging wrongful discharge and related tort claims, including conspiracy. He also alleged a claim based on “post-termination bad faith,” arising out of Luzenac’s failure to reinstate, recall, or rehire him after acquiring the Montana Talc Company. On November 1,1994, Luzenac filed its answer to the complaint, denying the allegations and setting forth numerous affirmative defenses.

¶17 On December 1,1995, Luzenac filed motions, moving for summary judgment against all of Kneeland’s claims. Kneeland filed a motion to recover sanctions, alleging that Luzenac violated Rule 11 by moving for summary judgment on all claims. A hearing was held and the parties stipulated that the claim based on civil conspiracy should be dismissed.

¶ 18 On February 6,1996, the court granted summary judgment to Luzenac on Kneeland’s claims of intentional infliction of emotional distress and post-termination bad faith. The court denied summary judgment on Kneeland’s wrongful discharge claim, finding that “a factual issue exists as to whether there has been a violation of express provisions of a written personnel policy in reduction of force.” The court also denied Kneeland’s request for the imposition of attorney fees and sanctions against Luzenac.

¶19 On February 13,1996, Kneeland filed a petition for reconsideration of the court’s ruling on summary judgment relating to Kneeland’s claim for post-termination bad faith. In the alternative, Kneeland requested that the court certify the claim as final pursuant to Rule 54(b), M.R.Civ.R, in order for this Court to review the issue. The District Court granted the motion to certify and postponed any further action on the case pending a ruling by this Court.

¶20 Kneeland filed a “notice of certification of proposition of state law” with this Court on February 26,1996. We issued an order on February 29,1996, stating that Kneeland’s request would be handled as an appeal of a judgment pursuant to Rule 54(b), but that we would not rule on the propriety of the Rule 54(b) certification at that time. Luzenac then filed a motion to dismiss the appeal, arguing that the requirements for Rule 54(b) certification had not been met. We agreed, and on March 28,1996, this Court dismissed Kneeland’s appeal pursuant to Rule 54(b).

¶21 A jury trial began on October 15,1996, on Kneeland’s wrongful discharge claim. On October 21,1996, the jury returned a unanimous verdict for Luzenac. Judgment was entered on October 31,1996. On November 1,1996, Kneeland filed a motion for judgment as a matter of law,or alternatively, motion for a new trial. On November 29, 1996, the District Court denied Kneeland’s motion.

¶22 On December 30, 1996, Kneeland filed a notice of appeal. Kneeland now appeals from the order of summary judgment dismissing his claim of post-termination bad faith, the final judgment and jury verdict, and from the order denying his post-trial motion.

ISSUE 1

¶23 Did the District Court err in granting summary judgment to Luzenac on Kneeland’s claim of post-termination bad faith?

¶24 Our standard of review in appeals from summary judgment rulings is de novo. See Motaire v. Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. When we review a district court’s grant of summary judgment, we apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. See Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we set forth our inquiry:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of material fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.

Bruner, 272 Mont. at 264-65, 900 P.2d at 903 (citations omitted).

¶25 Kneeland argues that the District Court erred in granting summary judgment to Luzenac on his claim based on post-termination bad faith. The court had ruled that Kneeland’s claim was precluded by the Montana Wrongful Discharge From Employment Act (WDFEA), § 39-2-913, MCA. Kneeland argues that Luzenac’s failure to rehire him after it had acquired Montana Talc Company constitutes a separate and independent tort of post-termination bad-faith.

¶26 By its own terms, the WDFEA “sets forth certain rights and remedies with respect to wrongful discharge” and “provides the exclusive remedy for a wrongful discharge from employment.” Section 39-2-902, MCA. The Act provides that “no claim for discharge may arise from tort or express or implied contract.” Section 39-2-913, MCA. Furthermore, under the WDFEA, “[t]here is no right under any legal theory to damages for wrongful discharge under this part for pain and suffering, emotional distress, compensatory damages, punitive damages, or any other form of damages, except as provided for in [the Act].” Section 39-2-905(3), MCA.

¶27 In construing § 39-2-913, MCA, we have held that the section bars all claims arising from an asserted wrongful discharge based upon common law tort or implied or express contract. Beasley v. Semitool, Inc. (1993), 258 Mont. 258, 261, 853 P.2d 84, 86. However, not all tort or contract claims are barred by § 39-2-913, MCA, because they arise from employment. Rather, § 39-2-913, MCA, bars only those tort and contract claims which are “for discharge.” Beasley, 258 Mont. at 262, 853 P.2d at 86.

¶28 First, we examine whether Kneeland’s claim of post-termination bad faith constitutes a separate and independent tort unrelated to the alleged wrongful discharge. Kneeland claims that Luzenac is liable for bad faith because it failed to rehire him after it acquired Montana Talc Company and hired five workers. Luzenac counters that it had no duty to rehire Kneeland after he had been permanently terminated in the reduction of force in 1994.

¶29 This Court has held that the breach of a covenant or a contract may result in the tort of bad faith only in exceptional circumstances. To be actionable the plaintiff must establish a special relationship. See Story v. City of Bozeman (1990), 242 Mont. 436, 791 P.2d 767. In this case, Kneeland has not established that a contract existed between him and Luzenac after his termination. Therefore, there is no need to establish whether or not a special relationship existed between Kneeland and Luzenac or if Luzenac acted tortiously in failing to rehire him.

¶30 In fact, once Kneeland was terminated in 1994, Luzenac had no duty to rehire Kneeland at any time in the future. Kneeland understood that once he was terminated, Luzenac had no further obligations to him. Kneeland so testified in his deposition:

Q: All right. Nobody [at Luzenac] promised you, “We’re going to hire you back.”
A: No. As a matter of fact, this wasn’t a layoff. Mr. Pearson stood up in front of the whole room and said this was a termination.
Q: Okay.
A: So that if we do rehire, we have no obligation to rehire anybody. That’s why we are offering this separation package.
Q: And that was clear to you?
A: Yes, at that particular point in time.

¶31 Kneeland was also unable to identify any basis for his claim that Luzenac had a duty to rehire:

Q:... I am asking you if you thought youhad some kind of personnel policy right, some right that is established by an employee guideline or a statement you saw? What do you think established, in your view, this concept that you had a right to be rehired back to the company?
A: I guess I didn’t feel that I had a right to be rehired back. I felt that in good faith they should have hired me back.

¶32 Kneeland admitted that there was no representation or policy by Luzenac that established a duty or obligation for the company to hire him back at any time in the future. He admitted that he understood at the time he was terminated that his separation from Luzenac was permanent. Furthermore, he cannot establish the existence of a contract or special relationship that would support a claim for post-termination bad fath.

¶33 We determine that Kneeland’s tort claim is not actionable under the WDFEA and is also precluded by the Act because he cannot establish a basis for the claim aside from his discharge in 1994. Therefore, we conclude that the District Court was correct in granting summary judgment to Luzenac and denying Kneeland’s claim for post-termination bad faith.

ISSUE 2

¶34 Did the District Court properly instruct the jury?

¶3 5 We have previously stated that the district court has discretion when it decides how to instruct the jury, taking into consideration the parties’ theories, and that we will not overturn the court’s decision absent an abuse of discretion. Cechovic v. Hardin & Associates, Inc. (1995), 273 Mont. 104, 116, 902 P.2d 520, 527. When we examine whether jury instructions were properly given or refused, we consider the instructions in their entirety, as well as in connection with the other instructions given and the evidence at trial. Cechovic, 273 Mont. at 116, 902 P.2d at 527.

¶36 First, Kneeland argues that the District Court erred when it refused Kneeland’s proposed Instruction No. 4. Instruction No. 4, given by the District Court, to which Kneeland objected, read as follows:

A discharge is wrongful if it is done without good cause or if the employer violated the express provisions of its own written personnel policy.
Under Montana law, “discharge” includes any termination of employment, including resignation, elimination of the job, layoff for lack of work, or any other cutback in the number of employees for legitimate business reasons.

¶37 Kneeland’s proposed Instruction No. 4 provided:

“Discharge” includes a constructive discharge as defined in subsection (1) and any other termination of employment, including resignation, elimination of the job, layoff for lack of work, failure to recall or rehire, and any other cutback in the number of employees for a legitimate business reason.

Kneeland requested this instruction based on his contention that Luzenac’s failure to rehire him is actionable under WDFEA.

¶38 Although not entirely clear, it appears that Kneeland attempted to bring his “failure to rehire claim” back within the auspices of the WDFEA during the jury trial. Kneeland’s proposed Instruction No. 4 included the “failure to recall or rehire” language contained in the definition of discharge provided in § 39-2-903(2), MCA. In the pretrial proceedings, however, Kneeland maintained that the defendant’s post-termination conduct was outside the purview of the WDFEA. As stated above, we have concluded that the District Court was correct in dismissing on summary judgment Kneeland’s claim that Luzenac was liable for a separate and independent tort of post-termination bad faith.

¶39 We determine that Kneeland’s claim that Luzenac is liable for wrongful discharge because it failed to rehire or recall him is also without merit. Therefore, we conclude that the District Court properly instructed the jury in the court’s Instruction No. 4. This was not a situation where the “failure to recall or rehire” language should have been included in the definition of “discharge.” Kneeland testified at length that he considered his termination from Luzenac to be permanent. He was not temporarily laid off or in a recall status. See Arnold v. Boise Cascade Corp. (1993), 259 Mont. 259, 856 P.2d 217. Kneeland was permanently separated and received a severance. Thus, we hold that the District Court properly exercised its discretion in giving the court’s Instruction No. 4.

¶40 Next, Kneeland argues that the District Court erred by instructing the jury on the defense of failure to complete an internal appeal procedure. Kneeland claims that the court erred in allowing Luzenac to present as a defense Kneeland’s failure to complete the company’s internal appeal process. Kneeland argues that since Luzenac did not assert his failure to complete the internal grievance process as an affirmative defense in this action, the jury should not have considered it.

¶41 On October 17,1996, the parties discussed the settlement of instructions before the case was turned over to the jury. Instruction No. 8 given by the District Court reads as follows:

If an employer maintains written internal procedures under which the employee may appeal a discharge within the organizational structure of the employer, the employee shall first exhaust those procedures prior to filing a wrongful discharge action. The employee’s failure to initiate or exhaust available internal procedures is a defense to a wrongful discharge claim.

This instruction was based on § 39-2-911(2), MCA, which states that an “employee’s failure to initiate or exhaust available internal procedures is a defense to an action brought under this part.”

¶42 Luzenac counters that Kneeland made no objection when the court and the parties settled the instructions. Moreover, Luzenac argues that this affirmative defense was included within the pretrial order jointly prepared by both parties before the trial.

¶43 This Court has previously held that, generally, a failure to object to a jury instruction at the trial level amounts to a waiver of the right to raise the objection on appeal. State v. Holzapfel (1988), 230 Mont. 105, 113, 748 P.2d 953, 957. The instruction which is given without objection becomes the law of the case. Wisher v. Higgs (1993), 257 Mont. 132, 143, 849 P.2d 152, 158. The transcript shows that both parties and the court thoroughly discussed Luzenac’s proposed jury instruction that became Instruction No. 8. After reviewing the transcript, we note that Kneeland did not object to Instruction No. 8. Thus, because Kneeland did not object, we determine that Instruction No. 8 was properly before the jury. Furthermore, Kneeland was put on notice by Luzenac to this affirmative defense in the pretrial order.

ISSUE 3

¶44 Was there substantial evidence to support the jury verdict?

¶45 In Lee v. Kane (1995), 270 Mont. 505, 893 P.2d 854, this Court discussed our standard ofreview of a jury verdict in a civil case:

Our scope of review of jury verdicts is necessarily very limited. This Court will not reverse a jury verdict which is supported by substantial credible evidence. This Court has defined substantial credible evidence as evidence which a reasonable mind might accept as adequate to support a conclusion. The evidence may be inherently weak and conflicting, yet it may still be considered substantial. It is well established that if the evidence is conflicting, it is within the province of the jury to determine the weight and credibility to be afforded the evidence. Finally, upon reviewing a jury verdict to determine if substantial credible evidence exists to support the verdict, this Court must view the evidence in the light most favorable to the prevailing party.

Kane, 270 Mont. at 510-11, 893 P.2d at 857 (quoting Hansen v. Hansen (1992), 254 Mont. 152, 157, 835 P.2d 748, 750-51).

¶46 Kneeland argues that the jury verdict is not supported by substantial evidence. However, outside of discounting the credibility of the witnesses that testified, his brief contains nothing to support his contention that “the evidence at trial raised the direct and inescapable conclusion that [Luzenac] was guilty of a pattern of selective and disparate treatment of Kneeland over a course of years.”

¶47 As Luzenac points out, it presented testimony regarding the treatment of the mine’s employees during the downsizing. Luzenac offered testimony through Toelle stating the reasons for the mine’s downsizing and how the process was carried out. He testified that all decisions were based on the consensus of a committee comprised of different department heads, managers, and supervisors. Toelle testified that Luzenac tried to avoid as many layoffs as possible by offering early retirement and voluntary resignation packages to any employee who wanted to leave. Toelle also explained that Kneeland was not qualified for the positions he sought or had less seniority than the people ultimately chosen for those positions.

¶48 Furthermore, upon questioning by Luzenac, Kneeland admitted that although he believed that the review committee had an ulterior motive against him, his accusations were not based on any evidence, but were merely speculation. Kneeland also admitted that he tried to bid for or bump into positions which were awarded to employees who had more seniority than he did or who were more qualified than he was, and that he bid for a position that was not available for bidding or bumping.

¶49 As for Kneeland’s claim that he should have been hired for one of the positions that became available after Luzenac acquired Montana Talc Company, he admitted that his termination was permanent and that he had no recall rights. Also, as we have stated above, there is no factual or legal basis to Kneeland’s claim that Luzenac had a duty to rehire him following the reduction of force.

¶50 In denying Kneeland’s motion for judgment as a matter of law or, in the alternative, for a new trial, the District Court stated:

The suggestion that the evidence of wrongful discharge was ‘overwhelming’ is not sustained by the record. The evidence was ‘overwhelming’ sustaining Defendant’s positions, not Plaintiff’s. The unanimous verdict confirms the assessment.

This Court agrees.

¶51 It is within the province of the jury to determine the weight to be given to evidence presented and to judge the credibility of witnesses, and in reviewing the jury’s verdict we must view the evidence in the light most favorable to the prevailing party. See Hogan v. Flathead Health Center, Inc. (1992), 255 Mont. 388, 842 P.2d 335; Silvis Through Silvis v. Hobbs (1992), 251 Mont. 407, 824 P.2d 1013. We conclude that when the evidence in this case is viewed in the light most favorable to Luzenac, the jury’s verdict is supported by substantial credible evidence.

ISSUE 4

¶52 Did the District Court err in denying Kneeland’s motions for judgment as a matter of law, and motion for a new trial?

¶53 The standard of review in appeals from the denial of a motion for judgment as a matter of law, made pursuant to Rule 50(b), M.R.Civ.R, is the same as that formerly used for review of a motion for a directed verdict, and may be granted only where it appears as a matter of law that a party could not prevail upon any view of the evidence including the legitimate inferences to be drawn therefrom. Wilkerson v. School District (1985), 216 Mont. 203, 211, 700 P.2d 617, 622. Motions for judgment as a matter of law are proper only when there is a complete absence of any evidence to warrant submission to a jury. Durden v. Hydro Flame Corp., 1998 MT 47, ¶21, [288 Mont. _], 955 P.2d 160, (citing Jacques v. Montana Nat’l Guard (1982), 199 Mont. 493, 504, 649 P.2d 1319, 1325). Courts must exercise the greatest self-restraint in interfering with the constitutionally mandated processes of jury decision. Unless there is a complete absence of any credible evidence in support of the verdict, a judgment as a matter of law motion is not properly granted. Ryan v. City of Bozeman (1996), 279 Mont. 507, 510, 928 P.2d 228, 230.

¶54 Our review of a district court’s denial of a motion for new trial is whether the court abused its discretion. Hando v. PPG Industries, Inc. (1995), 272 Mont. 146, 149, 900 P.2d 281, 283. Our review of an appeal based upon insufficiency of the evidence to support the jury’s verdict is whether there is substantial evidence in the record to support the verdict. Cartwright v. Equitable Life Assur. Society of U.S. (1996), 276 Mont. 1, 23, 914 P.2d 976, 990.

¶55 On October 17, 1996, at the close of Luzenac’s case in chief, Kneeland made an oral motion for judgment as a matter of law, indicating that the evidence was overwhelming that Kneeland was, in some respects, the most qualified and senior employee and should not have been passed over for jobs at the mine. The court denied the motion.

¶56 On November 1,1996, after the jury returned a unanimous verdict in favor of Luzenac, Kneeland filed a motion for judgment as a matter of law, or alternatively, for a new trial. In his motion, Kneeland argued that the general verdict form was improper, Instruction No. 8 regarding the internal grievance procedure was misleading and prejudicial, and that the evidence was overwhelmingly in his favor.

¶57 In an order filed on November 29, 1996, the court denied Kneeland’s motion. The court stated:

The suggestion that the evidence of wrongful discharge was ‘overwhelming’ is not sustained by the record. The evidence was ‘overwhelming’ sustaining Defendant’s position, not Plaintiff’s. The unanimous verdict confirms the assessment.
The Plaintiff now objects to the general verdict form which according to the record was agreed to by both parties.
In summary, in the Court’s view, Plaintiff’s post trial motions are totally without merit....

¶58 We agree with the assessment of the District Court. As stated above, we have concluded that Instruction No. 8 was proper for the jury to consider in resolving this action. Moreover, Kneeland did not object to the instruction or the general verdict form before it was submitted to the jury. Furthermore, as also stated above, the jury’s verdict is supported by substantial credible evidence. The evidence was not overwhelming for Kneeland’s position, rather the evidence was overwhelming in support of Luzenac’s position.

¶59 In conclusion, we hold that the District Court did not err in denying Kneeland’s oral motion for judgment as a matter of law, nor did the court abuse its discretion in denying Kneeland’s motion for judgment as a matter of law or, alternatively, for new trial.

¶60 Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, TRIEWEILER and LEAPHART concur.

      . While Kneeland, Luzenac, and the District Court refer to Kneeland’s Rule 50, M.R.Civ.P., motion as a motion for judgment notwithstanding the verdict, Rule 50 was amended by order of this Court, effective March 26,1993, to do away with the terms “judgment notwithstanding the verdict” and “directed verdict.” The proper term is “judgment as a matter of law.” Therefore, for purposes of clarity, we will refer to Kneeland’s motion, and all other motions, as “motions for judgment as a matter of law.”


source: Caselaw Access Project

author: JUSTICE LEAPHART

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROY JEAN COUTURE, Defendant and Appellant.
    No. 97-627.
    Submitted on Briefs May 7, 1998.
    Decided June 2, 1998.
    1998 MT 137.
    55 St.Rep. 548.
    959 P.2d 948.
    289 Mont. 215.

      See C.J.S. Criminal Law § 254.
    For Appellant: Rebecca T. DuPuis and C. Edward Hayes, Attorneys at Law, Poison.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General, Helena; Deborah Kim Christopher, Lake County Attorney; Mitchell A. Young, Deputy Lake County Attorney, Poison.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Roy Jean Couture (Couture) appeals from the decision of the Twentieth Judicial District Court, Lake County, denying his motion to dismiss a charge for driving under the influence (DUI), 6th offense, and his motion to preclude use of three prior DUI convictions in sentencing. We affirm.

Factual and Procedural Background

¶2 On December 8,1996, Couture was involved in a minor traffic accident within the exterior boundaries of the Flathead Indian Reservation. Poison City Police Officer Ronald Boyce (Boyce) responded to the scene and determined that Couture was a member of the Confederated Salish and Kootenai Tribes. Boyce observed that Couture appeared to be extremely intoxicated. Couture was unable to show proof of insurance, and Boyce learned that Couture’s driver’s license had been suspended/revoked.

¶3 Boyce called a Tribal officer to the scene to issue citations to Couture for driving with a suspended license and driving without liability insurance. Boyce then arrested Couture for DUI and transported him to the Lake County Sheriff’s Office. Couture refused to take a breath test and passed out several times during DUI processing.

¶4 On December 9, 1996, a complaint was filed in Justice Court charging Couture with DUI. However, on December 12, 1996, the County Attorney was granted leave to file an information in the District Court charging Couture with felony DUI, 6th offense. Couture pled guilty in the Tribal Court to driving with a suspended or revoked license and operating a motor vehicle without valid liability insurance, both misdemeanors. Subsequently, Couture moved the District Court to dismiss the DUI, claiming it violated § 46-11-504, MCA, Montana’s double jeopardy statute. Couture also moved to preclude use of three of his prior DUI convictions in sentencing. The District Court denied the motions. Couture pled guilty to felony DUI, reserving the right to appeal the denial of his motions. Couture presents two issues on appeal:

¶5 1) Did the District Court err in denying Couture’s motion to dismiss the felony DUI charge after he pled guilty to two misdemeanor traffic offenses in the Tribal Court?

¶6 2) Did the District Court err in relying on Couture’s prior DUI convictions in sentencing?

Discussion

I

¶7 1) Did the District Court err in denying Couture’s motion to dismiss the felony DUI charge after he pled guilty to two misdemeanor traffic offenses in the Tribal Court?

¶8 The District Court concluded that Couture’s subsequent prosecution for DUI in district court was not barred by § 46-11-504, MCA, as a matter of law. This Court reviews a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. State v. Gould (1995), 273 Mont. 207, 219, 902 P.2d 532, 540.

¶9 Montana statutory law provides criminal defendants with greater protection against double jeopardy than the traditional double jeopardy “elements” test set forth by the United States Supreme Court in Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. State v. Tadewaldt (1996), 277 Mont. 261, 268, 922 P.2d 463, 467. Section 46-11-504, MCA (1995), provides:

When conduct constitutes an offense within the concurrent jurisdiction of this state and of the United States or another state or of two courts of separate, overlapping, or concurrent jurisdiction in this state, a prosecution in any other jurisdiction is a bar to a subsequent prosecution in this state under the same circumstances barring further prosecution in this state if... the first prosecution resulted in an acquittal or in a conviction and the subsequent prosecution is based on an offense arising out of the same transaction

Thus, double jeopardy under the Montana Code prevents multiple prosecutions for conduct arising out of the same transaction. This Court, in State v. Sword (1987), 229 Mont. 370, 747 P.2d 206, developed a test for determining whether a subsequent prosecution violates double jeopardy pursuant to § 46-11-504, MCA: (1) defendant’s conduct constitutes an offense within the jurisdiction of both courts; (2) the first prosecution results in an acquittal or a conviction; and (3) the subsequent prosecution is based on an offense arising out of the same transaction. We have further explained that because § 46-11-504, MCA, is written in the conjunctive, all three factors must be met before a subsequent prosecution is barred. Tadewaldt, 922 P.2d at 466. The District Court determined that Couture’s offenses of driving with a suspended license, operating a motor vehicle without valid liability insurance, and driving under the influence of alcohol did not “arise out of the same transaction” as contemplated by § 46-11-504, MCA, and thus the subsequent prosecution in District Court for DUI was not barred.

¶10 Couture, however, argues that the facts of this case satisfy the three-factor test. Couture asserts, first, that a felony DUI committed on the reservation is an offense over which both the Tribal Court and District Court have concurrent jurisdiction. Second, Couture states that he was convicted of the misdemeanor offenses in Tribal Court. Finally, Couture maintains that the two misdemeanor traffic offenses and the felony DUI arose out of the same transaction. In support of his argument, Couture contends that driving with a suspended license and without liability insurance are incidental to DUI because, had he not been detained for DUI, the police officer would have had no particularized suspicion on which to base a stop for the misdemeanor offenses.

¶11 We reject Couture’s argument regarding the third factor, i.e., that his offenses arose out of the same transaction. Section 46-1-202(22), MCA, defines “same transaction” as “conduct consisting of a series of acts or omissions that are motivated by... a purpose to accomplish a criminal objective and that are necessary or incidental to the accomplishment of that objective. ...” This Court has interpreted the statutory definition of “same transaction” as it applies to § 46-11-504, MCA. For example, in Tadewaldt, the defendant pled guilty to misdemeanor DUI in municipal court and was subsequently charged with felony possession of drugs in the district court. Despite the fact that Tadewaldt’s offenses resulted from the same arrest, we held that the offenses did not arise out of the same transaction for purposes of double jeopardy. We explained that, because the drugs forming the basis of the criminal possession charge had not been ingested and did not contribute to Tadewaldt’s impairment, the conduct underlying Tadewaldt’s “criminal objective” of DUI was unrelated to his possession of dangerous drugs. More specifically we determined that “Tadewaldt’s conduct in possessing the dangerous drugs was not motivated by a purpose to accomplish the ‘criminal objective’ of DUI, nor was it necessary or incidental to that ‘objective.’ ” Tadewaldt, 922 P.2d at 466. Thus, we held that Tadewaldt’s conduct did not meet the definition of “same transaction” as set forth in § 46-1-202(22), MCA.

¶12 Likewise, Couture pled guilty in Tribal Court to misdemeanor driving without a license and proof of insurance and was subsequently charged with felony DUI in the District Court. This was not a subsequent prosecution arising out of the same transaction for double jeopardy purposes. Couture’s driving without a license and without proof of insurance was unrelated to his criminal objective of DUI — ingesting alcohol and driving a vehicle while under the influence of alcohol. We determine that the District Court correctly interpreted the statutory prohibition against double jeopardy as set forth in § 46-11-504, MCA, by holding that Couture’s offenses did not arise out of the same transaction.

II

¶13 2) Did the District Court err in relying on Couture’s prior DUI convictions in sentencing?

¶14 Couture argues that he was denied his right to an attorney in three former DUI convictions in August 1994, April 1992, and August 1990. Thus, Couture asserts that the District Court erred in considering those DUI convictions during sentencing.

¶15 A rebuttable presumption of regularity attaches to a prior DUI conviction during a collateral attack such as the one presented by Couture. The defendant may overcome this presumption by direct evidence of irregularity. State v. Big Hair, 1998 MT 61, [288 Mont. 135], 955 P.2d 1352, ¶16; State v. Olson (1997), 283 Mont. 27, 32, 938 P.2d 1321, 1324. In this case, Couture presented two affidavits in support of his motion, his own and his wife’s. Both affidavits state that Couture was not advised of his right to counsel in the prior DUI proceedings. Couture alleges that the judge simply marked an “X” in front of the lines on the acknowledgment of rights form which he was expected to sign. Couture and his wife both state that in 1990 and 1992, the court accepted his guilty plea without advising him of his rights. The State concedes that the affidavits constitute direct evidence to rebut the presumption of regularity.

¶ 16 Therefore, the burden shifted to the State to prove by direct evidence that the prior conviction was not obtained in violation of the defendant’s rights. The State submitted the acknowledgment of rights forms from each prior conviction to the District Court. The forms indicate that Couture was advised of his right to counsel and waived that right in each proceeding. The State argues that the District Court was entitled to give more weight to these forms than to the affidavits of Couture and his wife.

¶17 This Court was presented with a similar situation in Olson. In that case, we recognized that, when determining whether the defendant knowingly and voluntarily waived his right to counsel, the district court is required to consider the evidence and weigh it against the defendant’s representations before deciding whether the State has satisfied its burden of proof. Olson, 938 P.2d at 1325. Moreover, we held that the weight of the evidence and the credibility of the witnesses are exclusively within the province of the district court and when the evidence conflicts, the district court is in the best position to make the necessary inferences and determine which evidence is more persuasive. Olson, 938 P.2d at 1325.

¶18 Likewise, in this case, the District Court was presented with Couture’s affidavits on the one hand and with the State’s proof on the other. The District Court was in the best position to weigh that evidence and make a determination as to which should prevail. This Court will not disturb that decision. The District Court did not err in relying on Couture’s prior DUI convictions in sentencing. Affirmed.

JUSTICES NELSON, REGNIER, TRIEWEILER and GRAY concur.


author: JUSTICE REGNIER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MARCUS ANGELINE, Defendant and Appellant.
    No. 97-523.
    Submitted on Briefs May 14, 1998.
    Decided June 9, 1998.
    1998 MT 139.
    55 St.Rep. 556.
    961 P.2d 1251.
    289 Mont. 222.

      See C.J.S. Criminal Law§ 796.

      For Appellant: Carrie Garber, Deputy Public Defender; Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General; Helena; Dennis Paxinos, Yellowstone County Attorney; Shawn Cosgrove, Deputy County Attorney; Billings.
   JUSTICE REGNIER

delivered the opinion of the Court.

¶1 Marcus Angeline appeals from the decision of the Thirteenth Judicial District Court, Yellowstone County, denying his motion to suppress evidence obtained as a result of an investigatory stop of his vehicle. We reverse and remand.

¶2 The sole issue on appeal is whether the District Court erred in denying Angeline’s motion to suppress evidence, in which Angeline argued that Officer Edgell did not have a particularized suspicion to justify an investigatory stop of Angeline’s vehicle.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 OnAugust31,1996, Marcus Angeline was drivinga 1981 Subaru northbound on U.S. Highway 87 outside of Billings, Montana. As he descended a long hill, he passed two vehicles. He completed the pass before the highway began to curve to the west.

¶4 As Angeline was traveling north on Highway 87, Montana Highway Patrol Officer Keith Edgell was heading southbound in the opposite lane toward him. Officer Edgell initiated a traffic stop and informed Angeline that he was stopped for suspicion of violating Montana’s basic rule, § 61-8-303, MCA. The traffic stop resulted in Angeline’s arrest for driving while under the influence of alcohol and two other offenses.

¶5 Later that day, Angeline was charged by complaint with violations of: (1) § 61-8-401, MCA, driving while under the influence of alcohol, a misdemeanor; (2) § 61-5-212, MCA, driving while license suspended or revoked, a misdemeanor; and (3) § 61-6-301, MCA, failure to have liability protection in effect, a misdemeanor. On September 3, 1996, Angeline appeared in Yellowstone County Justice Court and entered pleas of not guilty to all charged offenses. Angeline was found guilty following a bench trial conducted in Justice Court. On March 20, 1997, Angeline appealed the Justice Court decision to the Thirteenth Judicial District Court, Yellowstone County.

¶6 On April 21,1997, prior to trial in the District Court, Angeline filed a motion to suppress any evidence obtained as a result of the investigatory stop on August 31, 1996, on the grounds that Officer Edgell did not have a particularized suspicion to initiate the stop. The State replied with a brief in opposition to Angeline’s motion on May 2, 1997. The District Court held a hearing on the motion on June 24, 1997. On July 9,1997, the District Court filed its findings of fact, conclusions of law, and an order denying Angeline’s motion to suppress.

¶7 On July 22,1997, the parties filed a plea agreement. Angeline entered a plea of guilty pursuant to § 46-12-204(3), MCA, reserving his right to appeal the District Court’s adverse determination of his motion to suppress. The court accepted the State’s sentencing recommendation and sentenced Angeline to concurrent terms of sixty days for driving while under the influence of alcohol, six months for driving with a suspended or revoked license, and ten days for driving without insurance. Under the sentence, all time was suspended except for two days to be served under house arrest. The court stayed imposition of the sentence pending Angeline’s appeal.

¶8 On August 5,1997, the District Court entered its written judgment. Also on that day, Angeline filed his notice of appeal, appealing from the judgment of the District Court.

DISCUSSION

¶9 Did the District Court err in denying Angeline’s motion to suppress evidence, in which Angeline argued that Officer Edgell did not have a particularized suspicion to justify an investigatory stop of Angeline’s vehicle?

¶10 The standard of review for a district court’s denial of a motion to suppress is whether the court’s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Pratt (1997), [286 Mont. 156], 951 P.2d 37 (citing State v. Flack (1993), 260 Mont. 181, 185-88, 860 P.2d 89, 92-94.)

¶11 Angeline argues that the District Court erred by denying his motion to suppress. Angeline contends that the court’s findings and conclusions are clearly erroneous because the prosecution failed to present any evidence at the suppression hearing on June 24,1997, regarding the investigatory stop of Angeline’s vehicle on August 31, 1996. Thus, without testimony from the officer who initiated the traffic stop, Angeline argues the court’s conclusion that a legitimate investigatory stop of Angeline’s vehicle occurred is unsupported by any evidence.

¶ 12 In response, the State argues the arresting officer’s testimony is not necessary to support the court’s finding of a particularized suspicion sufficient to justify the investigatory stop of Angeline’s vehicle. Rather, the State contends that its burden is met by merely presenting objective data supporting an inference of wrongdoing and asserts that evidence may come from any witness, not just the arresting officer. Thus, the State argues the officer’s testimony was not necessary in this case to support the court’s finding that the officer had a particularized suspicion to justify the stop.

¶13 At the beginning of the suppression hearing held on June 24, 1997, the prosecution informed the court that Officer Edgell had not yet arrived. The prosecutor assured the court that he had spoken to Edgell about the hearing and that the officer appeared to be running late. Based on the prosecution’s belief that Edgell would appear, Angeline’s counsel volunteered to proceed first. Defense counsel called Angeline, who testified and was cross-examined about the events leading up to the investigatory stop of his vehicle on August 31,1996. After the defense presented its argument, Edgell still had not appeared. The prosecution called no witnesses to testify and presented no evidence, including the officer’s report, at the hearing.

¶14 Therefore, Angeline’s testimony and a videotape that was made of the stretch of road Angeline was driving on before he was stopped were the only evidence before the District Court. At the hearing, Angeline testified that on the day he was pulled over, conditions were bright and clear. He stated, and the videotape showed, that he was driving on a brand new freshly paved dry road with wide shoulders on both sides. He stated that his car was in proper working condition with new brakes and could not go over eighty-five miles per hour. Before passing, he stated he had a three-mile open view of the road and that there was no oncoming traffic for miles. He fully explained his actions before, during, and after passing both vehicles on Highway 87 before being pulled over by Officer Edgell.

¶ 15 At the end of the hearing, the court made its initial ruling, denying the motion to suppress. The court stated:

The issue is whether there is a particularized suspicion such that the officer could pull you over, and I think under the facts of the case there was. I think 80 to 82, even on good roads, on a secondary road making a pass by a couple of cars before a corner, I will take your word you got in before the corner, is enough for an officer to say “I should pull over this person and talk to him and check out the car,” and I think that he had the right to pull you over under the circumstances and under your testimony. I understand why you think you were driving safe. I don’t think there was any chance of an accident, but I think there was particularized suspicion to at least pull you over and investigate further.

¶16 Angeline objected to this court’s ruling, arguing that because there was no direct testimony from the arresting officer, the State had not met its burden of showing that the officer had a particularized suspicion to make the investigatory stop of Angeline’s vehicle. The court then backpedaled from its initial ruling, stating, “I will take the matter under advisement, and state what I just stated as an inclination rather than a ruling.” The court ordered both parties to submit proposed findings of fact and conclusions of law. Also, the court allowed Angeline to present case law on whether the State has an obligation to present evidence in order to meet its burden.

¶ 17 The District Court adopted the State’s proposed findings of fact and conclusions of law on July 9,1997, denying Angeline’s motion to suppress. We note the following conclusions of law made by the District Court:

13. The critical inquiry is not whether the court believes that a violation of Section 61-8-303, MCA, occurred beyond a reasonable doubt. Rather, the critical inquiry is whether the objective facts as presented by defendant himself give rise to a particularized suspicion that a violation of Section 61-8-303, MCA, occurred. The court believes that driving a sixteen year old vehicle, down a long hill, upon a two-way secondary highway, while passing multiple vehicles at or over 80 MPH, and doing so just before negotiating a corner, are objective facts to support a reasonable belief in an observing law enforcement officer that defendant’s driving was neither careful nor prudent.
14. Regarding question (2), whether the State must come forward at hearing with a witness and provide contrary evidence, Section 46-13-302(2), MCA, is helpful. The operative language is: “If the (defendant’s) motion states facts that, if true, would show that the evidence should be suppressed, the court shall hear the merits ...”. Obviously, based upon the plain language of the statute, if the motion did not state facts that, if true, showed the evidence should be suppressed, the matter would not even be set for hearing. Clearly, because there would not be a hearing, the State would not be required to present witnesses. Because of defendant’s failure to meet the initial burden, the issue would simply not be entertained by the court. In addition, Gopher states the initial inquiry is whether objective data is present upon which an experienced officer can make inferences. The objective data can come from any witness testimony, including the defendant.
15. By analogizing to Section 46-13-302, MCA, and viewing all the evidence presented by defendant at hearing as true, because such facts still do not show that the evidence should be suppressed, the evidence should not be suppressed.
16. Furthermore, through direct and cross-examination of defendant, sufficient facts were introduced into evidence to satisfy the State’s Gopher burdens, First, through the defendant, the State demonstrated the existence of objective facts to give rise to a particularized suspicion of wrongdoing, i.e. violation of the Basic Rule. Secondly, through the testimony of defendant, it was made clear that the officer that stopped him had observed these “objective facts” and specifically informed defendant that he was being stopped due to suspicion of a Basic rule violation. Consequently, defendant’s motion should be denied.

¶18 We disagree with these conclusions of law made by the District Court. First, under § 46-13-302, MCA, if a defendant’s motion to suppress “states facts that, if true would show that the evidence should be suppressed, the court shall hear the merits of the motion.” Thus, the defendant must meet this initial burden in order for a court to hold a hearing and decide the motion on its merits. In his motion to suppress filed on April 21,1997, Angeline met this burden by alleging facts that, if true, might have led to the suppression of the evidence at issue. The facts recited in Angeline’s motion were essentially identical to his testimony at the hearing. Angeline represented in his motion that he was going approximately eighty miles per hour before being pulled over for the traffic stop. By deciding to hold a hearing on Angeline’s motion to suppress, the District Court agreed that Angeline’s motion set forth facts that, if true, would result in the suppression of any evidence obtained as a result of the traffic stop.

¶ 19 In his motion to suppress, Angeline moved the District Court “to suppress any evidence obtained as a result of the traffic stop in this matter on the grounds... that the officer did not have a particularized suspicion to initiate the traffic stop under § 46-5-401, MCA.” In Montana, the requirement of particularized suspicion was adopted in State v. Gopher (1981), 193 Mont. 189, 631 P.2d 293, and is codified at § 46-5-401, MCA, which provides:

Investigative stop. In order to obtain or verify an account of the person’s presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.

¶20 In Gopher, this Court adopted the two-part test enunciated by the United States Supreme Court in United States v. Cortez (1981), 449 U.S. 411, 101 S. Ct. 690, 66 L. Ed. 2d 621, to evaluate whether the police have sufficient cause or a “particularized suspicion” to stop a person. In asserting that a police officer had the particularized suspicion to make an investigatory stop, the State has the burden to show: “(1) objective data from which an experienced officer can make certain inferences; and (2) a resulting suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing or was a witness to criminal activity.” Gopher, 193 Mont. at 194, 631 P.2d at 296.

¶21 Whether a particularized suspicion exists is a question of fact which depends on the totality of circumstances. State v. Reynolds (1995), 272 Mont. 46, 899 P.2d 540. In evaluating the totality of the circumstances, a court should consider the quantity, or content, and quality, or degree of reliability, of the information available to the officer. Alabama v. White (1990), 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 309.

¶22 Therefore, when a defendant has alleged in a motion to suppress that an officer did not have a particularized suspicion to initiate a traffic stop and a district court believes that a hearing should be held on the merits of the motion, the burden shifts to the State. Then, the State must prove that the police officer did have a particularized suspicion to make an investigatory stop, as set forth in the manner proscribed in Gopher and its progeny.

¶23 Although this Court has not specifically stated that the testimony of the arresting officer is required in proving particularized suspicion justifying an investigatory stop, we fail to see how the State can meet its burden of proving its existence without the testimony of the arresting officer. Since Gopher, this Court has had occasion to review the testimony of the arresting officer in order to evaluate whether the State has met its burden of proof regarding the existence of particularized suspicion. See, e.g., State v. Lee (1997), 282 Mont. 391, 938 P.2d 637; Seyferth v. State, Department of Justice, Motor Vehicle Division (1996), 277 Mont. 377, 922 P.2d 494; Reynolds, 272 Mont. at 51, 899 P.2d at 543. It is only from the testimony of the arresting officer that one can learn what objective data was before the officer that led him to make certain inferences, resulting in a “suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing.” Gopher, 193 Mont. at 194, 631 P.2d at 296. Nothing in Gopher or its progeny suggests that a district court should speculate on its own, based on the evidence presented from both parties, as to what an arresting officer may have believed, inferred, or suspected before initiating an investigatory stop. A district court’s role is to consider the totality of the circumstances in order to determine whether the State has met its burden in proving a particularized suspicion.

¶24 In this case, the State presented no evidence about what objective data led Officer Edgell to infer or suspect that Angeline had been engaged in wrongdoing. Without the testimony of Edgell, the parties and the District Court could only speculate as to the objective data the officer observed before stopping Angeline. Without Edgell’s testimony, the court was left to engage in speculation in its findings and conclusions about what inferences Edgell may have made based on what he may have observed before the investigatory stop and the resulting suspicions that he may have had regarding whether Angeline was engaged in criminal activity. Furthermore, there was no evidence presented regarding Officer Edgell’s experience and training that would allow one to evaluate his observations, inferences, and resulting suspicions before initiating the stop of Angeline’s vehicle if he had, in fact, testified.

¶25 After a review of the transcript of the suppression hearing, we conclude that the District Court’s findings of fact and conclusions of law that Edgell had a particularized suspicion for an investigatory stop of Angeline’s vehicle are not supported by any credible evidence. The only evidence presented at hearing was the testimony of Angeline and the videotape of the section of Highway 87 where he made the pass. Angeline’s testimony alone, although perhaps self-serving, does not lead one to conclude that Officer Edgell had a particularized suspicion to initiate a stop of his vehicle.

¶26 Because the evidence presented at the hearing did not support the District Court’s findings of facts and conclusions of law that Officer Edgell had a particularized suspicion that Angeline had committed, was committing, or was about to commit an offense, we therefore hold that the investigatory stop of Angelinas vehicle was not justified. We reverse and remand with instructions to enter an order of dismissal consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON and TRIEWEILER concur.


author: JUSTICE GRAY

text:
    IN THE MATTER OF M.J.W., A Youth in Need of Care.
    No. 97-371.
    Submitted on Briefs December 23, 1997.
    Decided June 9, 1998.
    1998 MT 142.
    55 St.Rep. 563.
    961 P.2d 105.
    289 Mont. 232.

      See C.J.S. Infants § 57.
    For Appellant: Kirk D. Krutilla, Attorney at Law, Superior.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Stephen C. Bullock, Assistant Attorney General, Helena; M. Shaun Donovan, Mineral County Attorney, Superior.
   JUSTICE GRAY

delivered the Opinion of the Court.

¶ 1 In its findings of fact, conclusions of law and order, the Fourth Judicial District Court, Mineral County, terminated the parental rights of Bonnie D. (Bonnie) and Joe W. (Joe) to M.J.W. Joe appeals, contending that certain of the court’s findings of fact are clearly erroneous and that the District Court incorrectly interpreted the law. We affirm.

¶2 The dispositive issue on appeal is whether the District Court erred in terminating Joe’s parental rights.

BACKGROUND

¶3 The Department of Public Health and Human Services (Department), formerly the Department of Family Services, became involved with Bonnie prior to M.J.W.’s birth due to concern about Bonnie’s parenting capabilities. M.J.W. was born on September 9, 1992, and lived with Bonnie for most of the first eighteen months of her life. Throughout that period, Joe saw M.J.W. only intermittently. Although Joe and Bonnie lived together for short periods before and after M. J.W.’s birth, they never married.

¶4 The Department removed M.J.W. from Bonnie’s care on several occasions prior to February 25, 1994. Joe had physical custody of M.J.W. briefly, but she was removed by the Department when Joe went on a rafting trip leaving M.J.W. in the care of a fifteen-year-old babysitter. The Department subsequently returned M.J.W. to Bonnie’s care.

¶5 M.J.W. was placed in foster care again on February 25,1994, at age eighteen months, when Bonnie was jailed as a result of her third conviction for driving under the influence of alcohol and for resisting arrest, driving without a valid driver’s license, and child endangerment. The Department petitioned for temporary investigative authority and protective services for M.J.W. shortly thereafter. The District Court granted the petition and vested specific rights in the Department, including the right to require Joe and Bonnie to attend individual counseling. The court also ordered M.J.W.’s parents to comply with the order or appear on March 16, 1994, to show cause why they had not done so. Neither parent complied with the order or appeared at the show cause hearing. The Department moved for temporary legal custody of M.J.W. for six months and for approval of proposed treatment plans for Bonnie and Joe. The District Court granted that motion on July 27,1995, and ordered the parents to complete the goals listed in their treatment plans.

¶6 The Department moved to terminate the parental rights of both Bonnie and Joe on September 12,1996, alleging alternative statutory grounds. The District Court appointed counsel for both parents and an evidentiary hearing on the motion was held on April 10, 1997. Thereafter, the District Court issued its findings of fact, conclusions of law and order terminating the parental rights of both parents and requiring the Department to establish a plan for permanent placement of M.J.W. Joe appeals.

STANDARD OF REVIEW

¶7 In a termination of parental rights case, we review a district court’s findings of fact to determine whether they are clearly erroneous. Matter of W.Z. (1997), [285 Mont. 16], 946 P.2d 125, 128 (citations omitted). Findings of fact are clearly erroneous “ ‘if they are not supported by substantial evidence, the court misapprehends the effect of the evidence, or this Court’s review of the record convinces it that a mistake has been made.’ ” In re Marriage of Nevin (1997), 284 Mont. 468, 472, 945 P.2d 58, 61 (citation omitted). As a general rule, we review a district court’s conclusions of law to determine if they are correct; however, we review conclusions involving the exercise of discretion, such as a determination that a child has been abused or neglected, under the abuse of discretion standard. Matter of B.C. (1997), 283 Mont. 423, 426, 942 P.2d 106, 108 (citation omitted).

DISCUSSION

¶8 Did the District Court err in terminating Joe’s parental rights?

¶9 A number of statutory bases exist for a court’s termination of parental rights in Montana. In terminating Joe’s parental rights in the present case, the District Court concluded that termination was appropriate under §§ 41-3-609(l)(b), 41-3-609(l)(c), 41-3-609(l)(d), 41-3-410(1), and 41-3-410(2), MCA (1995).

¶10 Joe argues that the District Court erred in terminating his parental rights pursuant to § 41-3-609(l)(c), MCA (1995), because its findings relating to his abuse and neglect of M.J.W. were based on an inadmissible hearsay report and, therefore, the threshold determination for termination under that statute — namely, that M.J.W. was an adjudicated youth in need of care — is lacking. The Department responds that the youth in need of car e designation was made at an earlier stage of the proceedings and, in that regard, directs our attention to the District Court’s conclusion that M.J.W. “was properly designated by prior Order of this Court as a Youth in Need of Care as that term is defined by section 41-3-102(17) M.C.A.” Therefore, according to the Department, the foundational determination was present and the District Court correctly terminated Joe’s parental rights pursuant to § 41-3-609(l)(c), MCA (1995). We disagree.

¶11 A district court may terminate the parent-child legal relationship under § 41-3-609(l)(c), MCA (1995), upon finding that the child has been adjudicated a youth in need of care, the parent has not complied with an appropriate court-approved treatment plan or the treatment plan was unsuccessful, and the conduct or condition of the parent rendering him unfit is unlikely to change within a reasonable time. Thus, the threshold requirement for termination under § 41-3-609(l)(c), MCA (1995), is the youth in need of care adjudication. Absent such an adjudication, parental rights cannot be terminated pursuant to that statute.

¶12 Here, the record does not support the District Court’s conclusion that it previously had designated M.J.W. a youth in need of care. In its order granting the Department’s petition for temporary investigative authority and protective services, the District Court found that “there is probable cause to believe that [M.J.W.] is abused or neglected or in danger of being abused or neglected....” Clearly, a “probable cause” finding does not constitute a finding that M.J.W. was abused or neglected. The District Court also found that M.J.W. was removed from her mother’s home because she was in immediate or apparent danger of harm. This finding arguably is sufficient to meet the definition of child abuse or neglect contained in § 41-3-102(5), MCA (1995). It is not sufficient, however, to constitute an adjudication that M.J.W. was a youth in need of care. That adjudication can be made only after the adjudicatory hearing mandated by § 41-3-404, MCA (1995). No such hearing was held prior to the District Court’s March 9, 1994, order for protective services. Indeed, that order clearly reflects that it was based solely on the Department’s petition and accompanying report.

¶13 The only other substantive District Court order of record prior to the Department’s petition to terminate parental rights was entered on July 27,1995. In that order, the District Court awarded temporary legal custody of M.J.W. to the Department, approved treatment plans for Joe and Bonnie and ordered them to complete the goals in their treatment plans. Nothing in that order addresses abuse or neglect or adjudicates M.J.W. a youth in need of care. Moreover, as was the case with the District Court’s March 9,1994, order, the statutorily required adjudicatory hearing prior to a youth in need of care designation was not held before the July 27,1995, order.

¶ 14 The record before us is devoid of an order adjudicating M.J.W. a youth in need of care. As a result, we hold that the District Court erred in concluding it previously had designated M.J.W. a youth in need of care and in terminating Joe’s parental rights pursuant to § 41-3-609(l)(c), MCA (1995).

¶15 As set forth above, however, the District Court terminated Joe’s parental rights on five different statutory grounds. In this regard, the Department contends that termination was proper under § 41-3-609(l)(b), MCA (1995), which permits a district court to terminate parental rights upon a finding that the parent abandoned the child as defined in § 41-3-102(7)(e), MCA (1995).

¶16 To terminate the parent-child legal relationship, a district court must determine that one of the criteria in § 41-3-609(1), MCA, exists. Matter of D.H. (1994), 264 Mont. 521, 526, 872 P.2d 803, 806. Section 41-3-609(1)(b), MCA (1995), provides that a finding of abandonment, as defined in § 41-3-102(7)(e), MCA (1995), is a criterion for terminating the parent-child legal relationship. Under § 41-3-102(7)(e), MCA (1995), abandonment occurs when the parent or other person responsible for the child’s welfare

abandons the child by leaving the child under circumstances that make reasonable the belief that the parent or other person does not intend to resume care of the child in the future or willfully surrenders physical custody for a period of 6 months and during that period does not manifest to the child and the person having physical custody of the child a firm intention to resume physical custody or to make permanent legal arrangements for the care of the child....

¶17 The District Court addressed abandonment in its Finding of Fact No. 5 and specifically found as follows:

During the approximately eighteen months between the child’s birth and her long term foster care placement, the natural father had intermittent contact with the child and her mother on a basis sufficient to make a general assessment concerning the care being given the child. Since her placement in foster care on February 25, 1994 the child has had minimal contact with [Joe] as specified in Petitioner’s Exhibit 2, as well as further contact neither authorized nor approved by the Department. The father has neglected to take advantage of opportunities to visit his child during the past three years and at present [M.J.W.] identifies him as one of several transient father figures. [Joe’s] failure to parent his daughter for any extended period of time, including his failure to visit her regularly while in foster care, made reasonable the belief by the Department that he does not intend to resume care of the child in the future.

Joe challenges only the first sentence of the finding, contending that it was based solely on the testimony of Nancy Smith, a social worker who did not have personal knowledge of his relationship with M.J.W. prior to February 25, 1994, when M.J.W. was again placed in foster care. Because the findings pertinent to abandonment relate to the three-year period beginning February 25,1994, however, we need not address whether the challenged portion of the finding is clearly erroneous.

¶18 Joe does not challenge the District Court’s specific findings or conclusion relating to abandonment. It is well settled that a district court’s decision is presumed correct. In re Marriage of Clyatt (1994), 267 Mont. 119, 122, 882 P.2d 503, 505 (citation omitted). It is equally well settled that an appellant bears the burden of establishing error by the trial court. See, e.g., Small v. Good (1997), 284 Mont. 159, 163, 943 P.2d 1258, 1260; Rieman v. Anderson (1997), 282 Mont. 139, 147, 935 P.2d 1122, 1127. Joe having failed to challenge the District Court’s abandonment determinations and, as a consequence, necessarily having failed to meet his burden of proving error, we hold that the District Court’s findings of fact regarding abandonment are not clearly erroneous and that the District Court did not abuse its discretion in concluding that Joe abandoned M.J.W.

¶19 Finally, Joe correctly contends that a determination that he abused or neglected M.J.W. is required before the District Court can terminate his parental rights. Section 41-3-602, MCA, states that “[t]he termination of the parent-child legal relationship provided for in this part is to be used in those situations when there is a determination that a child is abused or neglected, as defined in 41-3-102.” See also In re A.E. (1992), 255 Mont. 56, 61-62, 840 P.2d 572, 576. Joe is incorrect in contending, however, that no such abuse or neglect determination was made in this case.

¶20 Section 41-3-102(2), MCA (1995), defines “abused or neglected” as “the state or condition of a child who has suffered child abuse or neglect.” Section 41-3-102(5)(a), MCA (1995), then defines “child abuse or neglect,” in part, as harm to a child’s health or welfare. Finally, “harm to a child’s welfare” is the harm which occurs when one of the statutory circumstances set forth in § 41-3-102(7), MCA (1995), exists. One of those statutory circumstances is abandonment. Section 41-2-102(7)(e), MCA (1995). As discussed above, the District Court found that Joe had abandoned M.J.W. Pursuant to the referenced statutes, therefore, the District Court implicitly made a determination of abuse or neglect.

¶21 We have not previously held that abandonment falls within the definition of “abuse or neglect;” however, we have implicitly recognized that it does. In Matter of D.H., 264 Mont. at 525-26, 872 P.2d at 806, for example, the district court made an abuse and neglect determination based on a finding that the mother had abandoned her children. The mother challenged the abuse and neglect determination and we limited our analysis to whether the district court abused its discretion in determining the mother had abandoned her children. Matter of D.H., 264 Mont. at 525-26, 872 P.2d at 806. After reviewing the record, we concluded that the district court had not abused its discretion in determining that the mother had abandoned her children and that they were abused and neglected. Matter of D.H., 264 Mont. at 527, 872 P.2d at 807. While we did not specifically address the statutory requirement for a determination of abuse or neglect in Matter of D.H., our conclusion implicitly recognized that abandonment was the legal equivalent of abuse or neglect.

¶22 Here, we conclude that the District Court’s determination that Joe abandoned M.J.W. satisfies the § 41-3-602, MCA, requirement of a determination that the child has been abused or neglected as defined in § 41-3-102, MCA. We hold, therefore, that the District Court did not err in terminating Joe’s parental rights pursuant to § 41-3-601(l)(b), MCA (1995).

¶23 Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES LEAPHART, REGNIER and HUNT concur.


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. JONI MARIE PIPKIN, Defendant and Respondent.
    No. 97-581.
    Submitted on Briefs March 26, 1998.
    Decided June 9, 1998.
    1998 MT 143.
    55 St.Rep. 567.
    961 P.2d 733.
    289 Mont. 240.
    See C.J.S. Searches and Seizures § 139.

      For Appellant: Hon. Joseph P. Mazurek, Attorney General; Tammy K. Plubell, Assistant Attorney General; Helena; Bob Slomski, Sanders County Attorney; Thompson Falls.
    For Respondent: John O. Putikka, Attorney at Law; Thompson Falls.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶1 The State of Montana filed an information with the District Court of the Twentieth Judicial District in Sanders County in which it charged the defendant, Joni Marie Pipkin, with manufacture of dangerous drugs in violation of § 45-9-110, MCA; criminal possession of dangerous drugs in violation of § 45-9-102, MCA; criminal possession with intent to sell in violation of § 45-9-103, MCA; use or possession of property subject to criminal forfeiture in violation of § 45-9-206, MCA; and criminal possession of drug paraphernalia in violation of § 45-10-103, MCA. Pipkin moved to suppress all evidence seized pursuant to the State’s search warrant on the ground that the warrant was not directed to a specific peace officer as required by § 46-5-223, MCA, and that it had not been served by a peace officer named in the warrant, as required by § 46-5-226, MCA. That motion was granted and the evidence seized at Pipkin’s residence was suppressed. The State appeals the District Court’s order of suppression pursuant to § 46-20-103(2)(e), MCA. We reverse the District Court’s suppression order.

¶2 The issue on appeal is whether the District Court erred when it concluded that the State violated Pipkin’s substantial rights and, therefore, suppressed all evidence seized pursuant to the State’s search warrant.

FACTUAL BACKGROUND

¶3 On May 20, 1997, Deputy Darrell Chenoweth, of the Sanders County Sheriff’s Department applied for a search warrant from Sanders County Justice of the Peace Bob Beitz. Chenoweth made the application under oath and swore to the accuracy of the information contained in the application. Chenoweth described with particularity the places to be searched and described the items to be seized.

¶4 Judge Beitz issued the search warrant on May 20, 1997, based upon the sworn application of Deputy Chenoweth. The search warrant described with particularity the locations authorized to be searched and the items subject to seizure. Judge Beitz stated in the warrant that he was “satisfied that there is probable cause” to believe that the items indicative of criminal conduct that are described in the search warrant application were located at the property described. The face sheet of the warrant is a printed form which includes the salutation: “The State of Montana to:_.” Deputy Chenoweth’s name was not inserted following the salutary language. For some reason, the space was left blank. The first line of the opening paragraph, however, states: “A sworn application having been made before me by Deputy Darrell Chenoweth ...” After signing the search warrant, Judge Beitz personally delivered it to Chenoweth.

¶5 On the same date, May 20,1997, Chenoweth executed the search warrant by searching the residence and outbuildings owned and occupied by the defendant, Joni Marie Pipkin, and her husband. During that search, Chenoweth, along with other Missoula law enforcement officers, seized marijuana plants, drug paraphernalia, and other items used to grow the plants. After completing the search, Pipkin and her husband were arrested.

¶6 On May 21,1997, Chenoweth personally filed the return of the search warrant with Judge Beitz, and filed a detailed list of all the items seized pursuant to the search warrant. On June 4, 1997, the State filed the information in the District Court which charged Pipkin with the drug-related offenses. Pipkin pled not guilty to all of the charges.

¶7 On August 5,1997, Pipkin filed a motion to suppress all evidence the State seized pursuant to the search warrant. Pipkin claimed the warrant was invalid because it was not directed to a specific peace officer as required by § 46-5-223, MCA, and was not served by the peace officer named in the search warrant as required by § 46-5-226, MCA. Pipkin further argued that any statutory violation concerning the issuance of a search warrant “clearly violates a ‘substantial right’ of Pipkin to be protected by the Fourth Amendment against ‘unreasonable searches and seizures.’ ”

¶8 On October 3,1997, the District Court entered its order which granted Pipkin’s motion to suppress based on its conclusion that the State’s failure to comply with § 46-5-223, MCA, “violates the Defendant’s U.S. and Montana constitutional rights.”

DISCUSSION

¶9 Did the District Court err when it concluded that the State violated Pipkin’s substantial rights and, therefore, suppressed all evidence seized pursuant to the State’s search warrant?

¶10 We have held that a district court’s conclusions of law regarding a motion to suppress are reviewed to determine whether the district court’s interpretation of the law is correct. See State v. Roberts (1997), 284 Mont. 54, 55, 943 P.2d 1249, 1250.

¶ 11 Warrants to search a person’s home are required by the Federal and State Constitutions. The Fourth Amendment of the United States Constitution provides that:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

Article II, Section 11, of the Montana Constitution, similarly 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.

¶ 12 In order to deter law enforcement officials from conducting unconstitutional searches or seizures, the United States Supreme Court established the exclusionary rule in Mapp v. Ohio (1961), 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081. The exclusionary rule functions as a judicially created remedy “designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” United States v. Calandra (1974), 414 U.S. 338, 348, 94 S. Ct. 613, 620, 38 L. Ed. 2d 561, 571. The primary purpose of the exclusionary rule “is to deter future unlawful police conduct” by making evidence which the State obtains through a search and seizure in violation of the Fourth Amendment, inadmissible in criminal proceedings. Calandra, 414 U.S. at 347, 94 S. Ct. at 619, 38 L. Ed. 2d at 571. The result of the exclusionary rule is that, in the absence of one of the recognized exceptions to the warrant requirement, a search made without a warrant is unlawful and any evidence which results from the search should be suppressed.

¶13 We review the validity of a search warrant by employing a common sense and realistic approach. In United States v. Ventresca (1965), 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684, the Supreme Court stated that:

[T]he Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. ... Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

Ventresca, 380 U.S. at 108, 85 S. Ct. at 746, 13 L. Ed. 2d at 689. Our public policy to encourage police officers to obtain warrants, see, e.g., United States v. Chadwick (1977), 433 U.S. 1, 9, 97 S. Ct. 2476, 2482, 53 L. Ed. 2d 538, 547, Terry v. Ohio (1968), 392 U.S. 1, 20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889, 905, United States v. Lefkowitz (1932), 285 U.S. 452, 464, 52 S. Ct. 420, 423, 76 L. Ed. at 877, 882, is reflected in § 46-5-103, MCA, which sets forth:

When search and seizure not illegal. (1) A search and seizure, whether with or without a warrant, may not be held to be illegal if:
(a) the defendant has disclaimed any right to or interest in the place or object searched or the evidence, contraband, or person seized;
(b) a right of the defendant has not been infringed by the search and seizure; or
(c) any irregularity in the proceedings has no effect on the substantial rights of the accused.

(Emphasis added.)

¶14 Pipkin contends that the State violated § 46-5-223, MCA (formerly § 45-5-203, MCA), when it failed to address the warrant to a specific officer. That statute requires that “[a] search warrant must be directed to a specific peace officer commanding the officer to search for and seize the evidence, contraband, or person designated in the warrant.”

¶15 The Commission Comments to the rule identify the purpose of the statute as follows: “The requirement that the officer be named presumes that the officer will have knowledge of the place to be searched and the object to be seized.” Section 46-5-223, MCA, Commission Comments.

¶ 16 In the past, when we have considered whether failure to direct a warrant to a specific peace officer affects the substantial rights of the accused, we have been inconsistent. When this Court was first called upon to decide this issue, we concluded that “[w]e cannot agree with defendant’s contention that error was predicated on this highly technical point of law to the extent that it was so prejudicial as to necessitate retrial.” State v. Meidinger (1972), 160 Mont. 310, 319, 502 P.2d 58, 64. We did note, however, that we disapproved of the State’s practice of addressing search warrants to “any” peace officer. Three years later, we reaffirmed that holding in State v. Snider (1975), 168 Mont. 220, 514 P.2d 1204. Once again we noted that we disapproved of the State directing search warrants to “any” peace officer, but we concluded that based upon the facts of the case, that failure did not render the search warrant fatally defective. Snider, 168 Mont. at 227, 514 P.2d at 1208. We stated that “no prejudice resulted to defendant by failure to direct the search warrant to a particular peace officer.” Snider, 168 Mont. at 227, 514 P.2d at 1208.

¶17 Although we addressed this issue peripherally in State ex rel. Stief v. Sande (1975), 168 Mont. 87, 90, 540 P.2d 968, 970, and State v. Tropf (1975), 166 Mont. 79, 87, 530 P.2d 1158, 1162, where we stated that “[t]he formal defect in [Meidinger] could in no way have infringed on the rights of the defendant and was not prejudicial,” we did not directly address the issue again until State ex rel. Sanford v. District Court Thirteenth Judicial Dist. (1976), 170 Mont. 196, 551 P.2d 1005. As in Meidinger and Snider, the search warrant in Sanford was directed to “[a]ny Peace Officer of this State.” Sanford, 170 Mont. at 198, 551 P.2d at 1006. Without analysis or further discussion, we held in Sanford that we would be unwilling to allow the practice to continue and noted that we had previously condemned the State’s practice of routinely directing search warrants to “any” peace officer. Sanford, 170 Mont. at 198, 551 P.2d at 1006. There we stated that “[w]e simply will not tolerate further violation of section 95-703, R.C.M. 1947 [now § 46-5-223, MCA], to permit incursions by law enforcement officers into a constitutionally protected area.” Sanford, 170 Mont. at 199, 551 P.2d at 1006. For that reason, we reversed the district court’s denial of the defendant’s motion to suppress evidence.

¶18 Based on our decision in Sanford, Pipkin contends that anything but strict compliance with § 46-5-223, MCA, violates the Fourth Amendment. Because this warrant was not addressed to officer Chenoweth, Pipkin contends that suppression is required.

¶ 19 Our review of the record leads us to conclude that Pipkin has not been prejudiced by the State’s procedural omission, and that the effect of failure to comply with a statutory procedural requirement must be considered in the context of other relevant statutory provisions. In that regard, § 46-5-103, MCA, states that “[a] search and seizure, whether with or without a warrant, may not be held to be illegal if... any irregularity in the proceedings has no effect on the substantial rights of the accused.” Considering the purpose of § 46-5-223, MCA, and the facts in this case, we conclude that Pipkin’s substantial rights have not been affected by the fact that the salutation of the warrant was not directed to Chenoweth.

¶20 Our approach finds support in recent search and seizure decisions of this Court in which we have considered violations of statutory procedure to determine whether that violation affected the substantial rights of the accused. In State v. Steffes (1994), 269 Mont. 214, 887 P.2d 1196, State v. Cope (1991), 250 Mont. 387, 819 P.2d 1280, overruled on other grounds by State v. Bower (1992), 254 Mont. 1, 7, 833 P.2d 1106, 1110, and State v. Chatriand (1990), 243 Mont. 375, 792 P.2d 1107, we held that the State’s failure to comply with ministerial statutory requirements does not void an otherwise valid search so long as the purpose of the statute in question is fulfilled. In each case we concluded that the State’s failure to comply with statutory procedure did not affect the substantial rights of the defendants.

¶21 Similarly, in this case, the Justice of the Peace complied with all applicable constitutional provisions and, but for the omission of Chenoweth’s name in the heading of the warrant, all of Montana’s statutory provisions. To suppress all evidence obtained as a result of the search warrant because Chenoweth’s name was not in the heading, even though he applied for the warrant, served the warrant, and executed the return of service for the warrant, would be an irrational result.

¶22 Even when the defect in the search warrant is one of constitutional magnitude, we have refused to automatically invoke the exclusionary rule. See State v. Peterson (1987), 227 Mont. 503, 741 P.2d 392; State v. Broell (1991), 249 Mont. 117, 814 P.2d 44. In Peterson, the defendant claimed that the incriminating evidence seized should be excluded because the search warrant was not supported by probable cause and it did not particularly describe the items to be seized. We held that although the search warrant, standing alone, would be invalid for its failure to describe with particularity the contraband to be seized, the warrant was valid because:

When the application for the search warrant and the search warrant are read together and when, as in this case, the application is signed by the officer named in the warrant as the officer directed to make service of the warrant and who did personally make such service, the documents in combination satisfy the requirement of particularly describing the thing to be seized.

Peterson, 227 Mont. at 506, 741 P.2d at 394. We reaffirmed our holding that it is appropriate to read the search warrant and the search warrant application together when considering the statutory and constitutional requirement of particularity in Broell, 249 Mont. at 122, 841 P.2d at 47.

¶23 When we apply the same approach to this case we conclude that the purpose of § 46-5-223, MCA, has been satisfied and, therefore, that Pipkin’s substantial rights have not been affected.

¶24 When read alone, the search warrant in this case clearly identifies, on the first line of the text, that “[a] sworn application has been made before [Judge Beitz] by Deputy Darrell Chenoweth.” When read in combination with the application for the search warrant, it is clear that Chenoweth swore to the accuracy of the information presented therein. The fact that Chenoweth directed the execution of the search warrant is evident by the fact that he personally filed the return of service with the court. If Pipkin could not determine the officer to whom the warrant was directed and by whom it was executed from the language of the warrant itself, she could have easily determined the officer’s identity from the return of service. Despite technical noncompliance with the statute, the information the statute was intended to provide was otherwise available to the person who was subject to the warrant.

¶25 As stated by the Commission Comments, the purpose of the requirement in § 46-5-223, MCA, that the officer be named, “presumes that the officer will have knowledge of the place to be searched and the object to be seized.” Section 46-5-223, MCA, Commission Comments. Clearly, Chenoweth, the officer who swore to the accuracy of the information contained within the warrant application and who was named in the warrant, had knowledge of the place to be searched and the objects to be seized.

¶26 We recognize that the requirement of including the officer’s name in the heading of the warrant is more than a mere formality. In any instance where this requirement is not met, the noncompliance must be carefully examined to see if the interests of the defendant have been compromised.

¶27 However, the public policy of this state is to encourage law enforcement officers to seek prior judicial approval before conducting searches, and to conduct those searches pursuant to search warrants. Therefore, technical attacks on warrants must be dealt with in a realistic manner. The correct approach is to analyze the facts and circumstances of each case to determine whether the irregularity in procedure has had an affect on the substantial rights of the accused.

¶28 Our application of that approach to the facts of this case leads us to the conclusion that the omission of Chenoweth’s name from the heading of the search warrant was an irregularity in the procedure that did not affect Pipkin’s substantial rights. Accordingly, we conclude that the District Court erred when it ordered that all evidence obtained as a result of the search warrant be excluded. We reverse the District Court’s suppression order and remand for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON, REGNIER, HUNT and LEAPHART concur.