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.

Download State v. Hurlbert

Although Warner did not raise a challenge under the Montana Constitution, the court indicated it would not be easily persuaded by such an argument, stating that “we would have a difficult time holding that the District Court abused its discretion in ordering the forfeiture of a 2003 Chevrolet Pickup which facilitated the scourge of methamphetamine.” ¶ 9.

Download State v. The Forfeiture of: 2003 Chevrolet Pickup