Big Sky Blawg

State v. Saale – 2009 MT 95

Saale was involved in a single car accident soon after leaving a Bar.  Passers by helped Salle out of her vehicle and noticed that she was highly intoxicated, but not seriously injured.  Soon after, Saale’s husband (Chris) arrived at the scene, place Saale in his vehicle and took her home.  When officers arrived on the scene, they learned of Saale’s departure and, en route to her home, contacted the on-call county attorney for advice on entering the home without a  warrant.  The officers were told they could enter the home without a warrant due to exigent circumstances.

Upon arriving at the home, officers were met by Chris who refused entry and placed himself in the doorway to block the trooper’s entry.  He was handcuffed and removed from the scene and Saale was removed from the residence and taken to the scene of her accident.  At the scene, she refused medical treatment, refused any field sobriety tests, and failed a portable breath test.  Saale’s Motion to Suppress the evidence obtained from the warrantless search of her home was denied in Justice Court and District Court on the basis of exigent circumstances. Saale appealed.

Exigent Circumstances are “those that would cause a reasonable person to believe that entry (or other prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.”  State v. Wakeford, 1998 MT 16, ¶ 24.  The State argued that the potential destruction of evidence (Saale’s level of intoxication), and the possibility that Saale had sustained serious injuries justified the warrantless entry.

SCOMONT rejected the “destruction of evidence” argument because a person’s blood alcohol content (BAC) “is not evidence until it exists in a state capable of analysis.” State v. Peplow, 2001 MT 253, ¶ 25.  ”[T]aking into account our holding in Peplow, it is illogical to conclude there was an exigent circumstance arising from the potential destruction of evidence, as there was no physical evidence in existence.  Without a sample previously extracted from the body, there was simply no physical evince to destroy.”  Saale, ¶ 11.

The Court likewise rejected the physical safety argument because the officers had already been informed that Saale did not appear to be seriously injured by witnesses at the scene.  Additionally, Justice Cotter noted that “if the ostensible exigency had been a true concern for her physical well-being, the officers presumably would have taken Saale directly to the emergency room rather than have her sit idly and unattended in the backseat of a patrol car for 45 minutes while they investigated the scene.”  Saale, ¶ 14.

The State failed to meet their heavy burden in demonstrating the existence of truly exigent circumstances justifying a warrantless entry into Saale’s home.

Download State v. Saale

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.

Download State v. Hurlbert

State v. Ellis, 2009 MT 192

The Court addressed whether an exception for child victims exists to the rule that a youth cannot consent to a search of the shared property of she and her parents. In State v. Schwartz, SCOMONT established “a per se rule that a youth under the age of sixteen lacks the capacity or authority to consent to a search of her parents’ home.” Schwartz, ¶ 14. Schwartz explicitly left no such exception, but the State argued in Ellis that one was necessary to protect minor children. Justice Nelson dismissed those concerns, observing that the United States Supreme Court acknowledged that requiring a warrant when consent to search is disputed does not prevent law enforcement officers from protecting victims of domestic violence. He went on to note that, as a practical matter, it would have been possible for the officers involved to engage a neutral magistrate to review an application for a search warrant.

Stating that one of the first cases cited in Schwartz considered the possibility that a child may consent to a search of the home after reporting that they were the victim of or a witness to a crime, SCOMONT held that no such exception existed to the Schwartz rule. Concurring in the majority opinion were Cotter, Warner and District Court Judge Sandefur (sitting for Chief Justice McGrath).

Download State v. Ellis

On Wednesday, The Supreme Court of the United States decided Herring v. United States. Although the focus of this blawg is primarily Montana law, current interpretations of the federal constitution bear on what happens in the state – and I thought the decision was interesting.

In Herring, SCOTUS was presented with the issue of whether the Fourth Amendment required suppression when a negligent error in a police database led an officer to incorrectly believe that there was an arrest warrant out for a suspect and arrest him. Chief Justice Roberts, writing for the majority, held that “[w]hen police mistakes are the result of negligence such as that described here, rather than systemic errors or reckless disregard of constitutional requirements, any marginal deterrence does not pay its way.”

According to the majority, the exclusionary rule is not an individual right and applies only when it will result in appreciable deterrence. Because originally the purpose of the exclusionary rule was to provide incentive for the government to stop violating suspect’s constitutional rights, a Fourth Amendment violation does not necessarily mean that the exclusionary rule applies. Instead, “[t]he deterrent effect of suppression must be substantial and outweigh any harm to the justice system.” In conducting the balancing test required by the exclusionary rule, the more culpable the officers, the more reason to suppress the evidence. Triggering the exclusionary rule requires deliberate, reckless or grossly negligent conduct on the part of the officers under the majority opinion. Recurring or systemic negligence are also mentioned.

As Ginsburg’s dissent points out, this seems to be assuming that the exclusionary rule “is capable of only marginal deterrence when the misconduct at issue is merely careless, not intentional or reckless.” The problem, as she mentions, is that this contradicts a basic assumption of tort law – that liability for negligence creates an incentive to act with greater care. Justice Ginsburg also points out that the exclusionary rule is the only significant means of redress an individual has in a situation like Herring’s.

We’ll have to wait to see the ultimate significance of this opinion. In some ways, the facts of Herring are quite specific and provide ample grounds for distinctions. At one point the majority describes the error at issue as a result of isolated negligence attenuated from the search. Limited to situations like that, the decision is of relatively little consequence.

On the other hand, the majority opinion certainly supports the proposition that negligent violations of the Fourth Amendment are immune from the exclusionary rule. This would be a significant expansion of the so-called “good faith” exception and blow to what protections remain of the Fourth Amendment.

If I were arguing for suppression in federal court post-Herring, I would latch on to the attenuation language and hold on to with everything I had. But maybe that’s just me…

Herring v. U.S.