Big Sky Blawg

State v. Schwartz – 2009 MT 234

After selling marijuana twice to a confidential informant who was wearing a wire, Schwartz was arrested and charged with distribution of dangerous drugs.  Because the police failed to obtain a warrant authorizing the electronic surveillance, Schwartz filed a motion to suppress “all statements, cash, drugs, observations and other evidence obtained as the result of an illegal warantless search conducted by a confidential informant outfitted with a body wire.”  The District Court denied the motion based primarily on State v. Brown, 232 Mont. 1 (1988), which held that one participant to a conversation can consent to having it electronically monitored without the necessity of a search warrant.  After the denial of his motion, Schwartz pled guilty, but reserved his right to appeal.

Despite the fact that State v. Goetz, 2008 MT 296, effectively over ruled Brown (holding that electronic monitoring and recording of an individual’s conversations with the confidential informant in that case constituted a search subject to the warrant requirement of Article II, Section 11 of the Montana Constitution), SCOMONT ruled that there was sufficient evidence to support Schwartz’s guilty plea wholly apart from the electronic surveillance.  The District Court’s decision was affirmed.

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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.

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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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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).

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State v. Wilkins – 2009 MT 99

Issue: Whether a person in a parked vehicle is necessarily seized when an officer stops behind the parked vehicle without activating the emergency lights on the patrol car and contacts the person in the vehicle.

Noting that the officer did not initiate the stop of Wilkins’ vehicle, the officer did not impede her liberty by means of physical force or show of authority,  the officer did not have his emergency lights or sirens on, nor did he shine a spotlight into her car – SCOMONT concluded that the stop in a public place did not amount to a seizure.  Because there was no seizure, there was no need to engage in an analysis of particularized suspicion or the community caretaker doctrine.  Without a seizure,  particularized suspicion was not necessary to justify the contact and the evidence obtained from the interaction was admissible.

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