Big Sky Blawg

State v. Hurlbert – 2009 MT 221

After being stopped for speeding (103 in a 75), Hurlbert was detained by a Highway Patrol Officer because Hurlbert’s behavior indicated possible illegal activity in addition to the speeding.  When asked for permission to search the car, Hurlbert said that the officer would need to obtain permission from his wife because the car was her’s.  The officer did so, and found no evidence of illegal activity.  While the officer was on the phone with Hurlbert’s wife she told him that Hurlbert had “prior drug activity.”  During this initial search, Hurlbert, who was seated in a patrol car, but not restrained in any way, spontaneously admitted that there was a blue box which contained a spoon and a syringe in his fanny back.

After the search of the vehicle, the officer advised Hurlbert of his Miranda rights, which Hurlbert stated that he understood – but declined counsel and agreed to answer questions.  He did not sign any form related to his waiver of these rights.  He did, however, sign  a form giving consent to search his personal belongings as well as give oral consent.  Inside his fanny pack the officer discovered the blue metal box containing “a couple syringes, a spoon, various baggies, and … a white powdery substance imprinted on the spoon and in some baggies.”  A field test of the white powder indicated it contained methamphetamine.

Hurlbert raised 4 issues on appeal:

Issue 1:  Whether the law enforcement officer’s continued questioning of Hurlbert exceeded the scope of the stop.

Generally, a traffic stop may not last longer than is necessary to effectuate the purpose of the stop.  Section 46-5-401, MCA.  However, if additional objective data of wrongdoing exists, the additional information may give rise to further suspicions and enlarge the scope of the investigation.  State v. Nelson, 2004 MT 310, ¶ 20.  SCOMONT ruled that there was sufficient evidence presented of objective data from which the officer could make certain inferences of wrongdoing – Hurlbert was nervous, shaking, very uneasy and constantly moving, sweating quite a bit, would not site still, rapidly smoking a cigarette, and he would open his wallet and stare at it.

Issue 2:  Whether Hurlbert’s wife’s consent to search the vehicle was valid.

On appeal, Hurlbert argued that because he lawfully possessed the vehicle at the time of the stop, he had a reasonable expectation of privacy in it and was thus entitled to protection from any unlawful searches and seizures.  SCOMONT found that Hurlbert did not demonstrate that he was prejudiced in any way from the search of the vehicle as that search revealed nothing unlawful.  ”A cause may not be reversed by reason of any error committed by the trial court against the convicted person unless the record shows that the error was prejudicial.”  Section 46-20-701(1), MCA.  SCOMONT found that Hurlbert made no such showing.

Additionally, SCOMONT found that Hurlbert had acquiesced or participated in the search by stating that the officer would have to ask his wife for permission to search the vehicle because it belonged to her.  State v. Cybulski, 2009 MT 79, ¶ 61.  ”Hurlbert waived his right to object to the search of the vehicle when he disclaimed that he had authority to grant permission to search it, and he thereby conceded that he did not have a reasonable expectation of privacy in the vehicle.”  Hurlbert, ¶ 29.

Issue 3:  Whether Hurlbert was properly advised of his Miranda rights.

SCOMONT concluded that Hurlbert was not entitled to a Miranda warning prior to being asked for consent to search the vehicle because he was not in custody at at that time.  The District Court concluded that Hurlbert was in custody after the officer told him to leave his keys on the dashboard of the car and exit his vehicle for the search.  However, no interrogation took place between that point and when Hurlbert was Mirandized.  Hurlbert’s spontaneous “statement was made voluntarily and not in response to questioning by either officer.”  Hurlbert, ¶ 36.

At trial, Hurlbert claimed he was never advised of his Miranda rights, but the District Court found the officers’ account more credible and Hurlbert not particularly credible.  Because the weight of evidence and the credibility of witnesses are exclusively within the province of the trier of fact, SCOMONT deferred to the District Court’s determination that the Miranda warnings were given prior to any custodial interrogation.

Issue 4:  Whether Hurlbert’s consent to search his belongings was given voluntarily.

SCOMONT has adopted a totality-of-the-circumstances test for determining whether consent was given freely, voluntarily and without duress or coercion.  While SCOMONT found that a few facts pointed to the possibility that Hurlbert’s consent was not voluntary, “the overwhelming evidence demonstrates that Hurlbert’s consent to search his personal belongings was given freely and voluntarily.”  Hurlbert, ¶ 49.

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Rohrer v. Knudson, 2009 MT 35

Rohrer bought a lot from Knudson and built a house where he experienced significant settling of the land underneath the building causing cracked walls, broken tile floors, and sticking doors.  After investigating the history of the area, Rohrer found that a ditch and steep railroad embankment existed there and that major earth moving activities filled in the ditch and eliminated the embankment sometime before 1964.  Claiming that Knudson should have been aware of and disclosed the fill conditions, Rohrer filed suit alleging negligence, negligent misrepresentation, and violations of the Montana Consumer Protection Act.

Issue 1: Whether the District Court abused its discretion in prohibiting the Rohrers from presenting evidence of differential settlement damage to other residences in Bel View Palisades.

At trial, Knudson claimed that the settlement problems resulted from Rohrer’s own negligence and submitted expert testimony stating that the cause of the settlement was invariably a water problem resulting from irrigation next to the foundation, poor site grading, and the failure to install drains around the foundation footings.

Before trial began, Knudson moved to preclude Rohrer from presenting evidence of differential settlement damage to neighboring residences claiming that such evidence was irrelevant and prejudicial.  Despite Knudson’s counsel stating that he did not intend to argue that Roher’s house was a unique anomalous occurrence, SCOMONT found that they presented evidence calculated to imply that damage to other homes did not exist.  By “eliciting testimony of the reputation for settlement in the area and suggesting that no extraordinary foundations were required for other houses in the area,” Knudson’s counsel opened the door to rebuttal.  The District Court abused its discretion by excluding the evidence of settling in neighboring homes after such insinuations.  The “exclusion of such rebuttal testimony affected the result since any change in the apportionment of negligence would alter the Rohrers’ recovery.”  Reversed and remanded for retrial where Rohrer should be allowed to present evidence of settlement of other houses in the area to rebut any contention that there is no reputation for settlement in the area or that neighboring houses do not require extraordinary foundations because they are not built on fill.

Issue Two:  Whether the District Court’s instruction defining “unfair practice” under the Montana Consumer Protection Act was a correct statement of the law.

Rohrer’s counsel offered a jury instruction defining an “unfair” act or practice as “one which offends established public policy and which is either immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.”  Ultimately though, the court agreed with Knudson’s counsel and struck “substantially injurious” from the jury instruction defining an “unfair” act or practice.

As a matter of first impression, SCOMONT joined at least a dozen other states and adopted a version of the U.S. Supreme Court’s standard from FTC v. Sperry & Hutchinson Co. (S&H), which used the following criteria to determine whether a practice is unfair:

(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise – whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen).

FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244, n. 5 (1972).  SCOMONT held as a matter of law that under the Montana Consumer Protection Act,  an unfair practice is “one which offends established public oplicy and which is either immoral, unethical, oppresssive, unscrupulous or substantially injurious to consumers.” Rohrer, ¶ 31.

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