STATE OF MONTANA, Plаintiff and Appellee, v. DARIN HURLBERT, Defendant and Appellant.
No. DA 07-0666.
SUPREME COURT OF THE STATE OF MONTANA
June 30, 2009
2009 MT 221 | 351 Mont. 316 | 211 P.3d 869
Submitted on Briefs October 1, 2008.
For Appellee: Hon. Steve Bullock, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena; Matthew Johnson, Jefferson County Attorney, Boulder.
JUSTICE NELSON delivered the Opinion of the Court.
¶1 Darin Hurlbert appeals a judgment of the District Court for the Fifth Judicial District, Jefferson County, finding him guilty of possession of dangerous drugs, possession of drug paraphernalia, reckless driving and speeding. We affirm.
ISSUES
¶2 Hurlbert raises on appeal two main issues and several sub-issues involving the denial of his motion to suppress. We have restated these issues for clarity as follows:
¶3 1. Whether the law enforcement officer‘s continued questioning of Hurlbert exceeded the scope of the stop.
¶4 2. Whether Hurlbert‘s wife‘s consent to search the vehicle was valid.
¶5 3. Whether Hurlbert was properly advised of his Miranda rights.
FACTUAL AND PROCEDURAL BACKGROUND
¶7 On the afternoon of May 16, 2006, Hurlbert was stopped for speeding by Montana Highway Patrol Trooper Jay Nelson on Interstate 90 near Whitehall, Montana. Trooper Nelson‘s radar confirmed that Hurlbert was traveling 103 miles per hour, more than 25 miles per hour over the speed limit in that area. When Trooper Nelson stopped Hurlbert, Hurlbert stated that he thought he was only doing 90 miles per hour.
¶8 While he was issuing a speeding citation to Hurlbert, Trooper Nelson noticed several indicators of possible illegal activity in addition to the speeding. Trooper Nelson later testified that Hurlbert wаs “nervous,” “definitely shaking,” “sweating quite a bit,” and that Hurlbert “was constantly moving around, very uneasy; he would not sit still; [he was] rapidly smoking a cigarette” and “he would open up his wallet and just stare at [it].” When Trooper Nelson asked Hurlbert where he was coming from, Hurlbert stated he had been visiting his parents in Bozeman, however, Hurlbert could not provide an address for his parents’ house. Based on these initial observations, Trooper Nelson called Deputy Dan Haggerty with the Jefferson County Sheriff‘s Office tо request assistance in case Trooper Nelson decided to search the vehicle.
¶9 Trooper Nelson asked Hurlbert additional questions about drug activity and Hurlbert stated there were no drugs in the vehicle. When Trooper Nelson asked whether Hurlbert would consent to a search of the vehicle, Hurlbert stated he would have to obtain his wife‘s permission, as the vehicle belonged to her. (The vehicle was indeed registered in the name of Hurlbert‘s wife.) Hurlbert also insisted that Troоper Nelson would have to obtain a search warrant to search any of Hurlbert‘s personal belongings that were in the vehicle. Trooper Nelson then asked Hurlbert which items in the vehicle belonged to him and Hurlbert identified a shirt, a camo-colored fanny pack and a radar detector.
¶10 By that time, Deputy Haggerty had arrived and he and Trooper Nelson had Hurlbert exit the vehicle. Deputy Haggerty patted Hurlbert down for weapons while Trooper Nelson called Hurlbert‘s wife, using the phone number Hurlbert had provided him. Hurlbert‘s wife gave Trooper Nelson permission to search the vehicle. Trooper Nelson also asked Hurlbert‘s wife if there was any prior drug use. She
¶11 Due to a disability from a battle with bone cancer, Hurlbert walked with a cane. To accommodate Hurlbert‘s disability, he was allowed to sit in Deputy Haggerty‘s patrol car while Trooper Nelson conducted the search of the vehicle. Hurlbert was not handcuffed and the door to the patrol car remained open. Trooper Nelson did not find anything illegal in the search of the vehicle. However, Deputy Haggerty, who had been standing next to where Hurlbert was sitting, later testified thаt Hurlbert “spontaneously admitted . . . there was a blue box which contained a spoon and a syringe in his camo bag.” Deputy Haggerty conveyed this information to Trooper Nelson.
¶12 Both officers testified that after Trooper Nelson completed the search of the vehicle, he advised Hurlbert of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). Hurlbert then stated that he understood his rights, declined counsel and agreed to answer questions. Hurlbert did not, however, sign any form acknowledging he was waiving his rights. Hurlbert did sign a form giving his consent to search his personal belongings. Hurlbert also verbally gave Trooper Nelson consent to search his belongings. In the camo bag, Trooper Nelson discovered a blue metal box containing “a couple syringes, a spoon, various baggies, and . . . a white powdery substance imprinted on the spoon and in some of the baggies.” Trooper Nelson conducted a field test of the white powder. The results of this test indicated it contained methamphetamine. Trooper Nеlson seized the items as evidence, photographed them and arrested Hurlbert.
¶13 On May 24, 2006, the State filed an Information charging Hurlbert with criminal possession of dangerous drugs, a felony, in violation of
¶14 On September 14, 2007, the District Court entered its Findings, Judgment and Deferred Sentence wherein it sentenced Hurlbert to a
¶15 Hurlbert now appeals the District Court‘s judgment.
STANDARD OF REVIEW
¶16 This Court reviews a district court‘s denial of a motion to suppress to determine whether the court‘s findings are clearly erroneous. State v. Bieber, 2007 MT 262, ¶ 20, 339 Mont. 309, 170 P.3d 444. To determine whether a finding of fact is clearly erroneous, this Court ascertains whether the finding is supported by substantial credible evidence, whether the district court misapprehended the effect of the evidence, and whether the Court is nevertheless left with a definite and firm conviction that the district court made a mistake. Bieber, ¶ 20. We further review a district court‘s denial of a motion to suppress to determine whether that court‘s interpretation and application of the law are correct. Our review in that regard is plenary. Bieber, ¶ 20 (citing State v. Wetzel, 2005 MT 154, ¶ 10, 327 Mont. 413, 114 P.3d 269).
Issue 1.
¶17 Whether the law enforcement officer‘s continued questioning of Hurlbert exceeded the scope of the stop.
¶18 After giving Hurlbert a citation for speeding, Trooper Nelson continued to question Hurlbert about whether he had any illegal drugs in the vehicle. Hurlbert contends that there was no basis to support this inquiry and that all evidence seized in the traffic stop was illegally obtained and must be suppressed because Trooper Nelson‘s continued questioning exceeded the scope of the stop. The State argues, however, that police/motorist encounters occurring after the purpose for the lawful stop has concluded or is about to conclude are not per se unlawful.
¶19 The
¶20 When a law enforcement officer seizes a person, such as in a brief investigatory stop of a vehicle, the right against unreasonable searches and seizures applies. State v. Case, 2007 MT 161, ¶ 21, 338 Mont. 87, 162 P.3d 849 (citing State v. Roberts, 1999 MT 59, ¶ 12, 293 Mont. 476, 977 P.2d 974). However, this Court recognizes an exception to the general warrant requirement permitting a limited and reasonable investigation without probable cause, where the State can show circumstances that create a particularized suspicion that the person is or has been engaged in wrongdoing or was a witness to criminal activity. Case, ¶ 21 (citing Roberts, ¶¶ 12-13).
¶21 In this case, Trooper Nelson clearly had particularized suspicion for the initial traffic stop as Hurlbert was exceeding the speed limit. See
¶22 At the hearing on Hurlbert‘s motion to suppress, there was sufficient evidence presented of objective data from which Trooper Nelson could make certain inferences of wrongdoing. For example, Trooper Nelson noticed that Hurlbert was nervous, shaking, very uneasy, and constantly moving around. Trooper Nelson also noticed that Hurlbert was sweating quite a bit; he would not sit still; he was rapidly smoking a cigarette; and he would open up his wallet and just stare at it. When Trooper Nelson asked Hurlbert where he was coming from, Hurlbert stated that he had been visiting his parents in Bozeman, however, Hurlbert could not provide an address for his parents’ house.
¶23 Consequently, we hold that while the purpose of the traffic stop had been effectuated, Trooper Nelson‘s observations gave rise to further suspicions that served to properly enlarge the scope of the investigation.
Issue 2.
¶24 Whether Hurlbert‘s wife‘s consent to search the vehicle was valid.
¶25 Hurlbert argues that because he lawfully possessed the vehicle at the time of the stop, he had a reasonable expectation of privacy in it
¶26 The State counters that Hurlbert did not make any colorable claim of prejudice from the search of the vehicle and, even if he had, Hurlbert did not have a possessory interest in the vehicle that superseded his wife‘s right as the owner of the vehicle to assert actual authority and consent to a sеarch.
¶27 Hurlbert does not demonstrate he was prejudiced in any way from the search of the vehicle as the search of the vehicle itself revealed nothing unlawful. No contraband was found in the vehicle, and Hurlbert does not present any connection between his assertion that the search of the vehicle was illegal and his arguments pertaining to the voluntariness of his consent to search his personal belongings. “A cause may not be reversed by reason of any errоr committed by the trial court against the convicted person unless the record shows that the error was prejudicial.”
¶28 Moreover, Trooper Nelson testified that when he asked Hurlbert for permission to search the vehicle, Hurlbert stated that Trooper Nelson would have to ask his wife because the vehicle belonged to her. We have repeatedly held that we will not put a trial court in error for a ruling or procedure in which a party acquiesced or participated. State v. Cybulski, 2009 MT 70, ¶ 61, 349 Mont. 429, 204 P.3d 7 (citing State v. Clay, 1998 MT 244, ¶ 24, 291 Mont. 147, 967 P.2d 370; Matter of R.B.O., 277 Mont. 272, 283, 921 P.2d 268, 275 (1996); In re Pedersen, 261 Mont. 284, 287, 862 P.2d 411, 413 (1993)).
¶29 Accordingly, we hold that 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.
Issue 3.
¶30 Whether Hurlbert was properly advised of his Miranda rights.
¶31 In this case, there are two separate instances when Hurlbert was questioned by Trooper Nelson, either of which could raise the issue of whether Hurlbert was properly advised of his Miranda rights. The first instance was immediately after Trooper Nelson handed Hurlbert the citation for speeding and Trooper Nelson questioned Hurlbert about illegal drug activity and requested Hurlbert‘s consent to search
¶32 Hurlbert claims he was in custody the minute he wаs stopped and that he should have been given his Miranda warnings when Trooper Nelson first began to question him and requested Hurlbert‘s consent to search the vehicle. We disagree.
¶33 The
¶34 We conclude that Hurlbert was not entitled to a Miranda warning prior to being asked for consent to search the vehicle as Hurlbert was not in custody at that time. This Court has repeatedly held that
law enforcement officers need not administer Miranda warnings to suspects during brief investigative encounters even if those encounters are somewhat coercive. Moreover, we have stated that an interrogation is not custodial unless there is a significant
restriction of personal liberty similar to an arrest . . . and even temporary confinement as a safety precaution does not render the detention ‘custodial’ for Miranda purposes . . . .
State v. Elison, 2000 MT 288, ¶ 27, 302 Mont. 228, 14 P.3d 456 (quoting State v. Dawson, 1999 MT 171, ¶ 35, 295 Mont. 212, 983 P.2d 916). In Elison, we cited with approval the United States Supreme Court‘s holding in Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138 (1984), that “statements made by a defendant in response to an officer‘s roadside questioning did not require warnings of constitutional rights because of the brevity of questioning and its public setting, even though few motorists would feel free to leave.”2 Elison, ¶ 29 (citing Berkemer, 468 U.S. at 436-39, 104 S. Ct. at 3148-49). Thus, “an officer may ask the detainee a moderate number of questions to determine the detainee‘s identity and to try to obtain information confirming or dispelling the officer‘s suspicions before the requirements of Miranda attach.” Elison, ¶ 32 (citing Berkemer, 468 U.S. at 439, 104 S. Ct. at 3150).
¶35 In addition, there is no requirement that Miranda warnings be given prior to a request for consent to search. Clark, ¶ 22 (citation omitted). Consent to search is not an incriminating statement; it is not testimonial or communicative in nature, thus it is not рrotected by the
¶36 Here, the District Court concluded that Hurlbert was in custody after Trooper Nelson told him to leave his keys on the dashboard of the car and exit his vehicle so that Trooper Nelson could search it. Although the State had argued that Hurlbert was still free to leave at that point because he was not in restraints and he was sitting in one of the patrol cars with the door open, we agree with the District Court that Hurlbert was effectively in custody at that time. Hurlbert had limited mоbility because of his disability--he could only walk a short distance and he had to use a cane. The District Court pointed out that it was absurd to suggest “that an obviously disabled individual hike down the interstate or through the borrow pit without his vehicle . . . .”
¶37 Notwithstanding, no interrogation took place from the time Hurlbert exited the vehicle until after Trooper Nelson finished searching it. Trooper Nelson was too busy searching the vehicle and Deputy Haggerty was simply standing by keeping an eye on Hurlbert.
¶38 As to Trooper Nelson‘s questioning Hurlbert after Trooper Nelson finished searching the vehiсle, both Trooper Nelson and Deputy Haggerty testified that Trooper Nelson advised Hurlbert of his Miranda rights before asking Hurlbert any questions about Hurlbert‘s spontaneous statement to Deputy Haggerty and before asking for Hurlbert‘s consent to search his personal belongings. Hurlbert, however, denied that he was ever advised of his Miranda rights.
¶39 After hearing Hurlbert‘s testimony at the suppression hearing along with the testimony from both law enforcement officers, the District Court concluded that Trooper Nelson and Deputy Haggerty were “forthright, articulate, careful, detailed, and supported their testimony by reference to contemporaneously created notes. Their respective reports of the facts were consistent. Their testimony was credible.” As to Hurlbert‘s testimony, the court stated: “In contrast, [the court] also observed the posture, demeanor, facial expression, tone of voice, delivery, and completeness of responses by [Hurlbert]. All of those indicators in sum demоnstrate that [Hurlbert] is not particularly credible.”
¶40 The weight of evidence and the credibility of witnesses are exclusively within the province of the trier of fact, and this Court does not reweigh the evidence or the credibility of witnesses. State v. Pitzer, 2002 MT 82, ¶ 13, 309 Mont. 285, 46 P.3d 582 (citing State v. Pierce, 255 Mont. 378, 383, 842 P.2d 344, 347 (1992)).
“It is not this Court‘s function, on appeal, to reweigh conflicting evidence or substitute our evaluation of the evidence for that of the district court. We defer to the district court in cases involving conflicting testimony because we recognize that the court had the benefit of observing the demeanor of witnesses and rendering a determination of the credibility of those witnesses.”
Gittens, ¶ 27 (quoting Bieber, ¶ 23).
¶41 Therefore, we defer to the District Court‘s determination that both Trooper Nelson‘s and Deputy Haggerty‘s testimony was more credible than Hurlbert‘s testimony, and we hold that Hurlbert was properly advised of his Miranda rights prior to any custodial interrogation by law enforcement officers.
¶42 Whether Hurlbert‘s consent to search his belongings was given voluntarily.
¶43 The District Court determinеd that Hurlbert freely and voluntarily gave his consent based on the following facts: Hurlbert was given a Miranda warning before he was asked for consent to search his personal belongings; he volunteered to answer questions; he was given a written consent form which he signed; and he admitted to reading the bottom portion of the form containing critical language affirming his free and voluntary consent. Even though the District Court found that there is always an inherent risk of coercion in a situation where аn individual is not free to go, the District Court concluded that the other facts taken together demonstrate that Hurlbert freely and voluntarily consented to the search of his personal belongings. The District Court also determined that Hurlbert‘s claim that he didn‘t know what he had signed was “[t]o avoid the impact of his signature on the consent form” and that his testimony is “inconsistent with his acknowledgment that he may refuse entirely or stop at anytime.”
¶44 Hurlbert contends that his consent to search his personal belongings was not valid because it was not given freely and voluntarily. Hurlbert claims he “eventually consented to the search of his personal belonging[s], because he perceived that he had no other choice, and was being forced to do so.” He also claims that he signed the permission to search form after the search thinking that it was actually an inventory of what was in the vehicle. We conclude that Hurlbert‘s contentions are disingenuous and we agree with the District Court‘s determination that Hurlbert freely and voluntarily gave his consent to search his personal belongings.
¶45 As noted earlier in this Opinion, warrantless searches are per se unreasonable, subject only to a few carefully drawn exceptions. Clark, ¶ 22 (citing Bieber, ¶ 29). “One such exception ‘arises when a citizen has knowledgeably and voluntarily consented to a search.‘” Clark, ¶ 22 (quoting Bieber, ¶ 29). Moreover, the prosecution carries the burden of establishing that consent to a warrantless search was freely and voluntarily givеn and was uncontaminated by any express or implied coercion. Munson, ¶ 50 (citing State v. Olson, 2002 MT 211, ¶ 20, 311 Mont. 270, 55 P.3d 935; State v. Rushton, 264 Mont. 248, 257-58, 870 P.2d 1355, 1361 (1994)).
¶46 This Court has adopted the United States Supreme Court‘s totality-of-the-circumstances test for determining whether consent was given freely, voluntarily and without duress or coercion. Munson, ¶ 51
¶47 One factor in this totality-of-the-circumstances test is whether the accused wеre advised of their Miranda rights. However, there is no requirement that Miranda warnings be given prior to a request for consent to search. Clark, ¶ 22. In the end, the determination of whether consent was given freely, voluntarily, and without duress or coercion depends on the totality of all the surrounding facts, and no single fact is dispositive. Munson, ¶ 51 (citing State v. Copelton, 2006 MT 182, ¶ 19, 333 Mont. 91, 140 P.3d 1074).
¶48 The following facts support the District Court‘s determination that Hurlbert‘s consent was given voluntarily. While sitting in the back of Deputy Haggerty‘s patrol car, Hurlbert spontaneously аdmitted to Deputy Haggerty that there was a blue box, which contained a spoon and a syringe, in his camo bag. Based on this information, Trooper Nelson asked Hurlbert to sign a form consenting to a search of his personal belongings, specifically including the “camo fanny pack.” Hurlbert signed the form, which was entitled at the top in bold, capital letters ”PERMISSION TO SEARCH AND SEIZE.” The form specifically stated at the bottom “I am giving this written permission to these officers freely and voluntarily, without any threats or promises having been made, and after having been informed by said officer that I have a right to refuse this search and or seizure, and to stop such search at any time.” Trooper Nelson wrote “camo fanny pack” on the form as an item to be searched. In addition, Hurlbert was given a Miranda warning before Trooper Nelson asked him any questions regarding his personal belongings and before Trooper Nelson asked him to sign the consent to search form. Both Deputy Haggerty аnd Trooper Nelson
¶49 While a few facts point to the possibility that Hurlbert‘s consent was not voluntary, including the District Court‘s determination that Hurlbert was not free to leave during the latter part of the stop, the fact that the officers were both armed (although no weapоns were ever drawn), and the fact that Hurlbert testified that Trooper Nelson told him he could obtain a search warrant for the search if necessary, the overwhelming evidence demonstrates that Hurlbert‘s consent to search his personal belongings was given freely and voluntarily.
¶50 Accordingly, we agree with the District Court‘s determination that Hurlbert freely and voluntarily gave his consent to search his personal belongings.
CONCLUSION
¶51 Based on the foregoing, we hold that the District Court did not err in denying Hurlbert‘s motion to suppress.
¶52 Affirmed.
JUSTICES LEAPHART, COTTER, WARNER and RICE concur.