96-663




                                                                                  No.       96-663

                                                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                                  1997



                                                                    STATE OF MONTANA,

                                                                      Plaintiff and Respondent,

                                                                                         v.

                                                                                   WESLEY CARTER HUBBEL,


                                                             Defendant and Appellant.




              APPEAL FROM:                    District Court of the Twenty-First Judicial District,
                                                        In and for the County of Ravalli,
                                               The Honorable Jeffrey H. Langton, Judge presiding.


                                                                   COUNSEL OF RECORD:

                                                                                  For Appellant:

                                                                     J. G. Shockley, Victor, Montana

                                                                                For Respondent:

                              Joseph P. Mazurek, Attorney General, Pam Collins, Assistant Attorney
                                 General; Helena, Montana; George Corn, Ravalli County Attorney,
                                           Hamilton,           Montana



                                                                               Submitted on Briefs: June 19, 1997

                                                                               Decided: December 18, 1997
                                                                               Filed:




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                                                          __________________________________________
                                                                          Clerk

                   Justice William E. Hunt, Sr., delivered the Opinion of the Court.


         Defendant Wesley Carter Hubbel (Hubbel) was charged with aggravated assault,
   a felony, after an incident in which he shot his wife, Carole Hubbel. He filed a
                                            motion
   to suppress evidence seized at his home during a warrantless search on the ground
                                             that
    it violated his constitutional rights. The District Court for the Twenty-First
                                          Judicial
  District, Ravalli County, denied his motion. A jury subsequently returned a guilty
                                          verdict.
    Hubbel now appeals the denial of his motion to suppress. We affirm in part and
                                           reverse
                                          in part.
                                 We frame the issues as follows:
       1.    Was the warrantless search and seizure of evidence on private land leading
         up to and including the threshold of Hubbelþs residence constitutional?
         2.    Did the District Court err in holding that Carole Hubbelþs þretroactive
 consent,þ given five months after the police searched and seized evidence inside the
           Hubbel home, cured an otherwise unconstitutional search and seizure?
                                      FACTUAL AND PROCEDURAL BACKGROUND
        During the early hours of November 23, 1995, Hubbel telephoned 9-1-1 to report
 that he had accidentally shot his wife, Carole Hubbel, and that he was bringing her
                                              to
   Mr. Tþs, a convenience store and gas station located in Darby, Montana, to meet an
    ambulance.     Deputy Sheriff Bradford Squires was dispatched to Mr. Tþs. Deputy
                                           Sheriff
                       Gregory Stewart responded separately as backup.
        At Mr. Tþs, Squires approached the car driven by Hubbel and saw Carole Hubbel
 sitting on the passenger side, holding her hand over her neck with blood between her
fingers. Hubbel exited the car and walked up to Squires, stating þArrest me, I just
                                             shot
          my wife. Arrest me, arrest me.þ Squires placed Hubbel under arrest.
           As Squires escorted Hubbel to his patrol car, Hubbel began spontaneously
 þbabbling,þ stating that he accidently shot his wife in their home, although he gave
 conflicting statements about the circumstances. He also described the weapon used
                                             as a
  .357 pistol loaded with .38 special ammunition, and stated that after the incident
                                          he threw
     the gun towards the bathroom. Squires advised Hubbel of his Miranda rights in
  accordance with Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
   694, and Hubbel requested a lawyer. However, he later began þbabblingþ again and
            expressed concern for fifteen dogs that he said were in the house.
        When Stewart arrived at Mr. Tþs, he observed that the car driven by Hubbel was
  parked in the middle of the public road. He moved it to the side of the road for
                                            safety
reasons, and in the process saw bloodstains in the passengerþs seat area. He called
                                               a

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wrecker to have the car hauled to storage. By then, Hubbel had been arrested and was
    seated in Squiresþ patrol car. Although Hubbel was rambling and difficult to
                                      understand,
 Stewart heard Hubbel give Squires his address and comment about numerous dogs in the
                                        house.
       Squires drove Hubbel to the Ravalli County jail, and then went to the hospital
 where he questioned Carole Hubbel. Although seriously injured, Carole was alert and
    responsive. Squires then drove back to the jail and asked Hubbel to perform an
 intoxilizer test, which Hubbel declined. At no time did Squires or anyone else ask
                                        either
  Carole Hubbel or Defendant Hubbel for permission to search their home or property

      In the meantime, Detective Peter Clarkson had arrived at Mr. Tþs and took charge
  of the investigation. Stewart and he drove in their respective cars to the Hubbel
                                        residence,
 which was approximately 15 to 16 miles away, to investigate the scene and preserve
                                         evidence.
       Clarkson and Stewart arrived at the Hubbel residence at approximately 4:40 a.m.
   The house was located on property that abutted Highway 93.        They pulled into the
      driveway and parked 70 to 75 feet from the front door, so as not to disturb
                                         evidence.
    The place where they parked appeared to be the common parking area used by both
  visitors and the Hubbels themselves.        The two then proceeded on foot towards the
                                             home,
  which was lit by an outside porch light. As they approached, they could hear dogs
  barking.    Clarkson and Stewart both testified that they had no reason to believe
                                          that any
                            other person would be at the home.
       They walked to the end of the parking area to a spot that appeared to be where
                                              the
     Hubbels parked the vehicle that Defendant Hubbel had driven to Mr. Tþs. Using
    flashlights, they observed blood in the leaves and grass in that location. They
                                         continued
 walking to the point where the parking area ends and the sidewalk begins, which was
  about 30 to 35 feet from the front door. From that point, they could see gunshot
                                             holes
in the front door and they observed that some of the wood was missing from around the
 glass. Additionally, they saw blood and broken glass on an elevated stoop below the
  door, as well as a telephone with a severed cord lying next to an overturned chair
                                            on the
 porch. Once on the porch, they also saw a plastic drinking cup of the type commonly
               used at bars, some ice cubes, and a blood smear on the door.
          Clarkson and Stewart entered the house. Inside they saw a loose dog and a
                                           kitten.
   Clarkson locked the dog in the stairwell. Other dogs were already confined in the
 kitchen. They made a 5 to 10 minute sweep through the ground floor area of the home
   and found a .357 magnum on the floor where Hubbel had said it would be, overturned
  furniture, disheveled bedding, blood spatters, bullet holes, and a fresh cigarette
                                           burn in
                                       the carpet.
       They exited the house and discussed whether they should obtain a search warrant
prior to reentering the house to conduct a more thorough search. Clarkson telephoned

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 Ravalli County Sheriff Jay Printz, who for undisclosed reasons determined they would
   not seek one. Squires then arrived with a camera that Clarkson had requested and
 the three officers at the scene, Squires, Clarkson and Stewart, entered the house a
                                           second
time to conduct a thorough investigation. They left the scene at approximately 7:45
                                            a.m.,
  after they had taken photographs and removed the front door and the revolver among
   other items of evidence. There was no indication that the free dog or kitten had
                                 compromised any evidence.
        On December 11, 1995, the Ravalli County Attorney filed an information charging
Hubbel with aggravated assault, a felony. Hubbel pleaded not guilty. On January 29,
  1996, he filed a motion to suppress all evidence seized on the property leading to
                                              the
house as well as all evidence seized inside the house. The court held an evidentiary
 hearing on the motion on May 2, 1996, approximately five months after the search.
                                               At
      that hearing, Carole Hubbel testified that if asked, she would have given her
                                        consent the
    night of the shooting for the search and further testified that she now gave her
                                        retroactive
   consent. Since that incident, she has allowed law enforcement personnel into her
                                             home
to investigate the premises in connection with the shooting incident. Additionally,
                                           Carole
 Hubbel is the sole owner of the house and the property, although Defendant Hubbel,
                                              who
  had been her husband for four and one-half months prior to the shooting incident,
                                             also
                                   resided at the house.
        The District Court denied Hubbelþs motion to suppress. First, with respect to
 evidence seized outside the home, the court applied the criteria enunciated by the
                                           United
      States Supreme Court in U.S. v. Dunn (1987), 480 U.S. 294, 107 S.Ct. 1134, 94
  L.Ed.2d 326, for analyzing þcurtilageþ questions under the Fourth Amendment to the
United States Constitution. It held that the area surrounding the home did not fall
                                           within
   the homeþs curtilage, and thus the police could lawfully search it without first
                                         obtaining
   a warrant. It also analyzed the issue under the Montana State Constitution. It
                                           applied
     State v. Bullock (1995), 272 Mont. 361, 901 P.2d 61, and held that because the
                                          evidence
indicated that the Hubbels did not take any steps to communicate that entry onto the
      property was forbidden, the Hubbels did not have a reasonable expectation of
                                          privacy.
       Thus, the law enforcement officers were within their authority to enter the
                                         property,
  park within the general parking area, and proceed to the front door. All evidence
                          observed in plain view was admissible.
         Second, the District Court held that search and seizure of the evidence within
  Hubbelþs home did not fall within any of the commonly recognized exceptions to the
          warrant requirement, such as a search incident to an arrest or exigent

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                                    circumstances. In
    particular, there was no reason for the police to believe that the dogs or any
                                          person on
  the property would destroy the evidence. However, the District Court relied upon
                                              dicta
      in State v. Weaver (Ore.1994), 874 P.2d 1322, and held that Carole Hubbelþs
                                        retroactive
consent to the police entry justified the warrantless search and seizure of evidence
                                             within
                                         the house.
       The jury trial commenced June 3, 1996, and the jury found Hubbel guilty. Hubbel
                    now appeals the denial of his motion to suppress.
                                                    STANDARD OF REVIEW
        The standard of review of a district courtþs denial of a motion to suppress is
 whether the courtþs interpretation and application of the law is correct. State v.
                                             Graham
 (1995), 271 Mont. 510, 512, 898 P.2d 1206, 1207-08. We review the courtþs findings
 of fact to determine whether they are clearly erroneous and whether those findings
                                               were
 correctly applied as a matter of law. State v. Siegal (Mont. 1997), 934 P.2d 176,
                                               180,
                                 54 St. Rep. 158, 160-61.
                                                           ISSUE ONE
      Was the warrantless search and seizure of evidence on private land leading up to
            and including the threshold of Hubbelþs residence constitutional?
          Hubbel contends that the evidence discovered by the State pursuant to its
   warrantless entry onto the private property surrounding the house where he lived,
    including the driveway and walkway leading up to and including the front porch,
                                             should
  be suppressed based upon the Fourth and Fourteenth Amendments to the United States
   Constitution and Article II, Section 11 of the Montana State Constitution, which
                                            protect
against unlawful searches and seizures.          Hubbel argues that pursuant to State v. Loh
   (1996), 275 Mont. 460, 914 P.2d 592, because the officers were not legally on the
 property when they first observed evidence, the plain view doctrine does not apply.
         At the outset we note than when analyzing search and seizure questions that
 specially implicate the right of privacy, we consider and address both Sections 10
                                             and 11
  of Article II of the Montana Constitution. Siegal, 934 P.2d at 184. Article II,
                                           Sections
                      10 and 11 of the Montana Constitution provide:
         Section 10. Right of privacy. The right of individual privacy is essential
          to the well-being of a free society and shall not be infringed without the
                            showing of a compelling state interest.

                Section 11.Searches and seizures. The people shall be secure in their
                   persons, papers, homes and effects from unreasonable searches and
           seizures. No warrant to search any place, or seize any person or thing shall
             issue without describing the place to be searched or the person or thing to
                be seized, or without probable cause, supported by oath or affirmation
                                          reduced to writing.
            To determine whether there has been an unlawful search pursuant to Montanaþs

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     constitution, we look to two factors: (1) whether the person has an actual
                                    expectation of
privacy that society is willing to recognize as objectively reasonable; and (2) the
                                        nature
of the stateþs intrusion.     State v. Scheetz (Mont. No. 96-358, decided December 5,
 1997), slip op. at 10. In Bullock, we analyzed the extent to which a person has a
      legitimate expectation of privacy on his private property, and held that
         in Montana a person may have an expectation of privacy in an area of land
        that is beyond the curtilage which the society of this State is willing to
          recognize as reasonable, and that where that expectation is evidenced by
        fencing, þNo Trespassing,þ or similar signs . . . entry by law enforcement
                         officers requires permission or a warrant.

 Bullock, 901 P.2d at 75-76 (internal citation omitted.) We explained that þ[w]hat a
    person knowingly exposes to the public is not protected, but what an individual
                                           seeks to
           preserve as private, even in an area accessible to the public, may be
                                      constitutionally
 protected.þ Bullock, 901 P.2d at 70 (citing Katz v. United States (1967), 389 U.S.
                                             347,
                       351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582).
          In Bullock, the defendant had moved his cabin to a place where it was barely
   visible from the forest service road, had erected a fence and gate separating his
                                          property
  from the road, and had posted þNo Trespassingþ signs. Additionally, the parties in
  Bullock stipulated that anyone wishing to enter the property in the past, including
        members of the Jefferson County Sheriffþs Department, had first requested
                                         permission.
       Bullock, 901 P.2d at 76. Accordingly, in that case, we concluded that the
                                         defendantþs
expectation of privacy was reasonable. We held that the entry by the law enforcement
officers onto the defendantþs property without permission or a warrant constituted an
       unreasonable search and that the evidence that was gathered thereafter was
                                       inadmissible.
                                  Bullock, 901 P.2d at 76.
       Hubbel contends that Bullock has no bearing on this case. He maintains that the
    analysis we outlined in Bullock applies only when examining whether a search of
                                           private
 property beyond the curtilage is lawful. He argues that the property leading up to
                                              the
     front door was within the curtilage. He therefore urges this Court to apply a
                                        þcurtilageþ
analysis, rather than a Bullock analysis, and hold that the warrantless search of his
    curtilage was unconstitutional. He does not elaborate as to whether this Court
                                            should
  apply the same factors for resolving þcurtilageþ questions under the Montana State
    Constitution as used by the Supreme Court pursuant to the Fourth Amendment (See
  Dunn, 480 U.S. at 301), or whether the Court should develop a different method for
                                   analyzing that issue.
        Hubbel misreads Bullock. In Bullock, we traced in great detail the origins of
                                              the
  concepts of þcurtilageþ and þopen fields.þ We explained the manner in which those

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     doctrines have seeped into federal constitutional analysis, and the role they
                                     currently play
 in interpreting the reach of the Fourth Amendment to the United States Constitution.
  Bullock, 901 P.2d at 70-75. As the United States Supreme Court explained in Dunn,
                                            the
    concept of curtilage originated at common law to afford a property owner the same
protection under the law of burglary to the area immediately surrounding the dwelling
   house as it afforded the house itself.     Dunn, 480 U.S. at 300. That concept has
                                          spilled
      over into federal constitutional analysis. The Fourth Amendment now extends
                                        protection
   not only to oneþs home but also to the curtilage area immediately surrounding the
                                           home.
It does not extend protection to open fields. Oliver v. United States (1984), 466 U.
                                             S.
              170, 178-80, 104 S.Ct. 1735, 1741-42, 80 L.Ed.2d 214, 224-26.
       For purposes of analyzing search and seizure questions, the concept of curtilage
  is thus meaningful only insofar as it is distinguished from open fields, which are
                                         afforded
    no Fourth Amendment protection.    However, in Bullock, we declined to follow the
 United States Supreme Courtþs distinction between the two, and we declined to apply
                                            the
 Dunn criteria to that case. Bullock, 901 P.2d at 71. Instead, based upon our unique
constitution and this stateþs strong tradition of respect for individual privacy, we
                                          adopted
 our own analysis for determining when entry by law enforcement officers onto private
 property requires a warrant or permission. Bullock, 901 P.2d at 71, 75. Based upon
     Bullock and later cases involving search and seizure, this Court recognizes a
                                        legitimate
  expectation of privacy based upon factors such as the place of the investigation,
                                            the
control exercised by the person over the property being investigated, and the extent
                                            to
       which the person took measures to shield the property from public view, to
                                       communicate
 that entry is not permitted, or to otherwise protect his property from intrusion.
                                         Because
      we have adopted our own analysis under Montanaþs constitution, the concept of
þcurtilageþ is thus meaningless. Accordingly, we apply Bullock to the facts of this
                                           case.
       We hold that with respect to the property leading to the front door, the Hubbels
   had no legitimate expectation of privacy that society is willing to recognize as
                                       objectively
 reasonable. The Hubbel property abutted a heavily traveled U.S. highway. In spite
                                             of
   the propertyþs proximity to frequent passersby, the Hubbels did not erect a fence
 separating their property from the highway, did not place a gate at the entrance to
                                           their
 driveway, did not plant shrubs or bushes to shield their property from public view,
                                            and
    did not post þNo Trespassingþ signs or other signs indicating that entry was not
  permitted. The walkway from the driveway to the front porch was also unobstructed.

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 The Hubbels placed no fencing, planting or other enclosure around the home and took
   no steps to shield the porch from public view or to prevent casual visitors from
                                         walking
to the front door. The police were thus well within their authority when they drove
                                           into
 the driveway and parked in the general parking area where they observed evidence in
plain view. They were well within their authority to proceed on the open walkway to
                                            the
               front door, where they saw yet more evidence in plain view.
         We next consider the nature of the Stateþs intrusion. Scheetz, slip op. at
                                        10.     In
  Bullock, the Stateþs invasion was overly intrusive. The officers entered private
                                        property
    that was fenced and gated, ignored posted warnings, and scrutinized areas of the
 defendantþs homestead that he sought to keep private. Bullock, 901 P.2d at 76. In
 contrast, the intrusion in this case was minimal. The police simply parked in the
                                         general
 parking area routinely used by other visitors, and, after observing blood evidence
                                          on the
driveway and bullet holes in the front door, continued walking along the sidewalk to
                                            the
  front porch. They did not ignore posted warnings, hop fences, open gates, or slip
  through bushes intended to screen the home from view. In short, they did nothing
                                           other
than what any other casual visitor to the Hubbel residence would do. In fact, Hubbel
stated that if the police had parked in the driveway and walked to the front door to
                                           sell
      policemen ball tickets, they would have had a legitimate right to be on the
                                        premises.
   Under these circumstances, we conclude that the State did not offensively intrude
                                           upon
 the Hubbelsþ privacy. We hold that the entry onto the Hubbelsþ property leading up
                                             to
         and including the threshold of the residence did not require a warrant.
           Because Montanaþs unique constitutional scheme affords citizens broader
                                       protection
      of their right to privacy than does the Fourth Amendment to the United States
Constitution, we usually need not consider the Fourth Amendment issue. Scheetz, slip
   op. at 5. (citation omitted.); Bullock, 901 P.2d at 75. However, Hubbel argues
                                         that the
  application of Bullock to the facts in this case renders Montanaþs constitutional
                                         right to
   privacy to be narrower than that afforded by the Fourth Amendment. He maintains
                                           that
   the area from the driveway to the porch falls within the definition of þcurtilageþ
     enunciated in Dunn, and insists that the Fourth Amendment to the United States
 Constitution extends protection to that area even if the Montana State Constitution
                                           does
                                           not.
       Hubbel is incorrect on both counts. An application of federal Fourth Amendment
      analysis leads to the same result. The United States Supreme Court resolves
                                        curtilage

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questions with reference to four factors: (1) the proximity of the area claimed to be
       curtilage to the home; (2) whether the area is included within an enclosure
                                        surrounding
    the home; (3) the nature of the uses to which the area is put; and (4) the steps
                                          taken by
 the resident to protect the area from observation by people passing by.      Dunn, 480
                                            U.S.
at 301 (citing California v. Ciraolo (1986), 476 U.S. 207, 221, 106 S.Ct. 1809, 1817,
       90 L.Ed.2d 210, 222 (Powell, J., dissenting)). In this case, as we already
                                        elaborated,
  the area is not enclosed by a fence or shrubbery, and the Hubbels took no steps to
                                           screen
   the porch from passersby or otherwise prevent visitors from observing what was in
                                            plain
view. There is no evidence that the area surrounding the home was put to any special
   use which would indicate that it was intimately connected with the home itself or
                                         that the
    Hubbels reasonably expected that the area should be treated the same as the home
                                          itself.
   Thus, even under a federal analysis, the area in question does not fall within the
     þcurtilageþ of the home, and it is not protected by the Fourth Amendment to the
                                           United
    States Constitution. Montanaþs right of privacy as enunciated in Bullock is not
                                         narrower
  than the federal right. Indeed, we continue to hold that our constitution affords
                                         citizens
 broader protection to that right than does the Fourth Amendment to the United States
   Constitution. Accordingly, we hold that the District Court did not err in denying
Hubbelþs motion to suppress any evidence observed and seized within plain view in the
                   parking area, on the walkway, and on the front porch.
                                                       ISSUE TWO
        Did the District Court err in holding that Carole Hubbelþs þretroactive consent,
                                              þ
   given five months after the police searched and seized evidence inside the Hubbel
                                           home,
                  cured an otherwise unconstitutional search and seizure?
              Pursuant to the Fourth and Fourteenth Amendments to the United States
    Constitution and Article II, Section 11 of the Montana Constitution, warrantless
                                         searches
 conducted inside a home are per se unreasonable, þsubject only to a few specifically
 established and well-delineated exceptions.þ Katz v. United States (1967), 389 U.S.
                                            347,
   357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576,585. See also State v. Rushton (1994), 264
      Mont. 248, 257, 870 P.2d 1355, 1361. One such exception is when the search is
conducted pursuant to a consent that is freely and voluntarily given. Schneckloth v.
      Bustamonte (1973), 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854, 860
  (citing Bumper v. North Carolina (1968), 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20
    L.Ed.2d 797, 802); State v. Kim (1989), 239 Mont. 189, 196, 779 P.2d     512, 517.
 This Court has adopted the þtotality of the circumstancesþ test used by the Supreme
                                           Court
to determine whether consent is voluntary. Kim, 779 P.2d at 517 (citing Schneckloth,
                      412 U.S. at 248-49); Rushton, 870 P.2d at 1361.

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        In this case, the parties agree that neither Hubbel nor his wife Carole Hubbel
                                              gave
      the officers prior consent to search and seize evidence inside their home.
                                        However, five
months after the search, at the hearing on the motion to suppress, Carole Hubbel gave
 her þretroactive consent.þ Hubbel now urges this Court to reject any notion that a
                                               so-
called þretroactive consentþ can justify an otherwise illegal search and seizure. He
 contends that allowing a person to consent to an otherwise unconstitutional search
                                           that has
       already been conducted would render þthe situation ripe for either improper
                                         inducements,
  misleading statements, or pressure by the police to gain consent after an illegal
                                          search has
  been conducted.þ For policy reasons, Hubbel urges this Court to hold that consent
                                              must
  be given prior to the search for it to be valid and qualify as an exception to the
                                            warrant
   requirement.      The State, on the other hand, contends that the retroactive consent
  operates to cure all constitutional infirmities. It argues that the timing of the
                                          consent is
 simply one fact that should be considered under the þtotality of the circumstancesþ
                                               and
  that this Court should apply the þtotality of the circumstancesþ test to find that
                                             Carole
    Hubbelþs consent was valid. The State relies heavily upon State v. Weaver (Ore.
                                             1994),
     874 P.2d 1322, the case cited by the District Court. It also points to United
                                           States v.
    Tovar-Rico (11th Cir. 1995), 61 F.3d 1529, 1535-36 and United States v. Gonzalez
                                             (11th
                 Cir. 1996), 71 F.3d 819, 828-830 in support of its position.
        This Court has had at least two occasions to touch upon the issue of retroactive
consent. One occurred over two decades ago in State v. Keller (1976), 170 Mont. 372,
 553 P.2d 1013. In that case, the sheriff had confiscated the defendantþs truck and
                                               had
   conducted a search without a warrant and without the defendantþs knowledge. Four
                                              days
later, while in jail, the defendant signed a written consent form. Keller, 553 P.2d
                                                at
 1021-22. This Court nonetheless held that the evidence seized during the search was
                                  inadmissible.     We stated:
                [The sheriff] attempted to remove the taint of illegality by a consent
               form signed by defendant four days later that does not purport to be
           retroactive. Defendantþs signature was obtained after search of the truck
              while defendant was held in jail in the absence of counsel. Material
             obtained from this truck was the subject of the laboratory test and was
              introduced in evidence over defendantþs objection. This material was
           illegally obtained, and its admission in evidence and the expert testimony
                     and laboratory tests concerning it was prejudicial error.

Keller, 553 P.2d at 1021-22 (emphasis added).                                                   Accordingly, although we held that the

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consent did not justify an earlier illegal search and seizure, we hinted that if the
                                          scope of
    the consent expressly related back to the search (and if the defendant had been
                                          assisted
      by counsel), the result may have been different. However, that statement was
                                         ambiguous
                                and in any event was dicta.
           More recently, in Bullock, we again broached the issue. In that case, the
   defendant had been charged with unlawfully killing and possessing a game animal in
  violation of õõ 87-3-103 and 112, MCA. Bullock, 901 P.2d at 63. The State argued
                                             that
even if the police officers had unlawfully entered the property when they viewed the
                                              elk
 the defendant had allegedly killed, the defendant had subsequently consented to the
  search when he allowed the police officers to inspect the elk and offered to take
                                           them to
 the kill site. Bullock, 901 P.2d at 76. This Court rejected the Stateþs argument,
                                           stating
    that þ[e]ven if [the defendant] consented, it was after the officers wrongfully
                                        entered his
 property and saw the elk.þ Bullock, 901 P.2d at 76 (emphasis added).       However, in
                                             that
 case, we reached our decision based upon our conclusion that the consent flowed from
the unlawful entry and therefore could not be used to justify it. Bullock, 901 P.2d
                                            at 76.
In this case, Hubbel does not contend that Carole Hubbelþs þconsentþ was the product
                                               of
 the unlawful entry. Additionally, in Bullock, it does not appear that the defendant
 expressly stated that he intended his consent to apply retroactively. We thus view
                                              the
      precise issue before the Court today to be one of first impression in Montana.
             At the outset, we reject the Stateþs proposal that a þtotality of the
                                      circumstancesþ
   test should be used to determine the validity of the þretroactive consent.þ That
                                           test is
   used when determining whether or not a consent was voluntarily and freely given.
                                             Kim,
 779 P.2d at 517 (citing Schneckloth, 412 U.S. at 248-49); Rushton, 870 P.2d at 1361.
In this case, Hubbel does not contend that Carole Hubbelþs þconsentþ was the product
                                              of
    duress or coercion. Rather, what is at issue is the timing of the consent, and
                                          whether,
as a matter of law, a consent can justify an earlier unconstitutional search if the
                                            person
                              giving the consent so intends.
        Because the voluntary nature of Carole Hubbelþs þconsentþ is not at issue, two
   cases cited by the State in support of its position, Gonzalez and Tovar-Rico, are
inapposite. At issue in both cases was whether or not the consent was freely given,
                                              not
     whether a retroactive consent validated an earlier unconstitutional search and
                                        seizure of
  evidence. See Gonzalez, 71 F.3d at 829-30 (deciding whether the policeþs illegal

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                                            entry
     into the ownerþs kitchen should be deemed coercive activity that affected the
                                       ownerþs later
    consent to search other parts of the premises); Tovar-Rico, 61 F.3d at 1535-36
                                         (deciding
      whether the defendantþs initial oral consent to enter the apartment and her
                                        subsequent
              written consent to conduct a thorough search were voluntary).
       The only cited case that addresses the precise issue is Weaver. In that case,
                                              the
   Oregon Supreme Court held that the timing of the consent in and of itself was not
 dispositive. Instead, relying on the proposition that the consenting party is the
                                           person
  who determines the scope of the consent, the court stated in dicta that a consent
                                            could
    retroactively validate a search or seizure that would otherwise be unlawful if
                                          evidence
     indicates that the consenting party so intended. Weaver, 874 P.2d at 1327-28.
However, in that case, no evidence indicated that the defendant intended his consent
                                               to
  retroactively apply to the earlier search. The evidence seized by the police was
                                             thus
                         suppressed. Weaver, 874 P.2d at 1328.
        Not surprisingly, there is a dearth of cases in other jurisdictions that have
addressed the precise issue before this Court today. We review those cases located
                                               to
 glean insight to the issue. Just as the Weaver court in Oregon, at least two other
       jurisdictions have held or implied that a consent can justify an earlier
                                     unconstitutional
  search. See State v. Kimble (La. 1979), 375 So.2d 924, 927 (holding that ownerþs
                                           after-
 the-fact consent to search and seize evidence in a vacant trailer that incriminated
defendants constituted a waiver of the warrant requirement.); State v. Williams (La.
   1977), 353 So.2d 1299, 1303-05 (holding that the defendantþs subsequent, written
  consent, given with the full knowledge that the police had previously entered his
                                            house
 without a warrant, amounted to a waiver of the warrant requirement and rendered the
   earlier search and seizure valid), cert. denied, 437 U.S. 907 (1978); Martin v.
                                           United
 States (D.C. 1989), 567 A.2d 896, 906 n. 23 (þWe assume without deciding (since the
     point has not been briefed or argued) that consent . . . can be retroactive,
                                      provided that
             the person giving the consent intends it to be retroactive.þ).
        On the other hand, we also located cases that, although distinguishable from
                                             this
  case to varying degrees, all fairly stand for the proposition that a consent must
                                          precede
        a search and seizure for it to provide a valid exception to the warrant
                                    requirement. See
   U.S. v. Wilson (5th Cir. 1994), 36 F.3d 1298, 1304-05 (holding that evidence was
  inadmissible because it was not within the scope of defendantþs oral pre-seizure
                                          consent

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to a cursory visual inspection and the seizure was conducted þprior to, not pursuant
                                               to
      [the defendantþs] written consentþ to conduct a complete search)(emphasis in
                                        original);
 United States v. Melendez-Gonzalez (5th Cir. 1984), 727 F.2d 407, 414 (rejecting the
  argument that a written consent form which þsimply came too lateþ vitiates a prior
                                           illegal
  search, because þ[t]here is no authority which justifies an earlier illegal search
                                        based upon
a later consent to an additional search.þ ); Mickelson v. State (Wyo. 1995), 906 P.2d
  1020, 1022 (stating that efforts to establish consent after an illegal entry þran
                                       afoul of the
proposition that such action must be 'justified at its inception.'þ)(citing Terry v.
                                             Ohio
  (1968), 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905); People v. Thiret
   (Colo. 1984), 685 P.2d 193, 201 (holding that a search exceeded the scope of the
                                           initial
    oral consent and was not validated by a subsequent written consent: þAn allegedly
   consensual seizure must stand or fall on the basis of the consent pre-existing the
                                        seizure.þ).
         Unfortunately, the cases cited provide little or no analysis to assist us.
                                          However,
it is our opinion that the conclusion reached in the latter cases reflect the better
                                            view:
  to be valid and qualify as an exception to the warrant requirement, a consent must
                                    precede a search.
        A search validated by a þretroactive consentþ is not really a search conducted
   pursuant to a consent at all. Rather, at the moment of inception, the search is
                                          unlawful
     and unjustified. In Montana, we jealously guard our broad right of privacy.
                                          Scheetz,
   slip op. at 6, 8 ; Siegal, 934 P.2d at 191. However, when the police conduct a
                                           search
      such as the one at issue in this case, they are acting in the absence of any
                                      safeguards to
   that privacy: a neutral, objective court has not made an advance determination of
 probable cause; no exigent circumstances or any other emergency situation apparent
                                            prior
  to the search exists; and no one with authority has consented to the intrusion.
                                         That they
                  subsequently obtain a þconsentþ is merely fortuitous.
        The requirement of advance justification, by virtue of a warrant or carefully
                                           carved
exception, is nothing new. Indeed, it is fundamental and inherent to all search and
seizure cases. For example, in another other context not involving the question of
                                              the
   timing of a consent, the United States Supreme Court stated that to be lawful, a
                                           search
and seizure must be justified from the beginning. In Terry v. Ohio (1968), 392 U.S.
                                               1,
  88 S.Ct. 1868, 20 L.Ed.2d 889, the Supreme Court evaluated the circumstances under
which a police officer may search an individual for hidden weapons during the course

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                                               of
 an investigation without running afoul of the Fourth Amendment.      The Supreme Court
    stated that the search must be justified based upon the facts available to the
                                      officer at the
   moment of the seizure.    Terry, 392 U.S. at 21-22. The officerþs actions must be
þjustified at its inception. . .þ. Terry, 392 U.S. at 20. The Supreme Court further
       cautioned that when practicable, the police must þobtain advance judicial
                                      approval . . .
  through the warrant procedure.þ Terry, 392 U.S. at 20. See also State v. Stubbs
                                           (1995),
270 Mont. 364, 369, 892 P.2d 547, 550 (citing Terry and stating that a stop and frisk
must be þjustified at its inception.þ), overruled on other grounds, 914 P.2d 592. In
     Montana, since we first adopted the plain view doctrine in 1973 until today, a
  fundamental requirement has been that the police officers have prior justification
                                         to search
 a protected area. See State v. Loh (1996), 275Mont. 460, 471-73, 914 P.2d 592, 599-
601 (generally tracing Montana case law regarding the plain view doctrine).      Exigent
 circumstances for conducting a warrantless search are þthose circumstances where it
                                               is
  not practicable to secure a warrant.þ State v. McCarthy (1993), 258 Mont. 51, 57,
                                              852
  P.2d 111, 114-15. It is axiomatic that the exigent circumstances, such as mobile
                                          vehicle,
    possible destruction of evidence, safety of police officers or other emergency
                                        situation,
                       be apparent at the inception of the search.
         Additionally, requiring prior consent is the only view that makes sense in
                                          light of
   the purposes behind the suppression rule. The rule excluding illegally obtained
                                          evidence
 serves primarily to deter lawless police conduct. Terry, 392 U.S. at 12 (citations
   omitted). Allowing an after-the-fact þconsent" to justify an otherwise lawless
                                        search and
  seizure would erode the suppression ruleþs deterrent force. This is particularly
                                          true in
  cases where the police do not have probable cause to obtain a warrant. In such a
                                            case,
the police have nothing to lose. An unlawful intrusion may be viewed as expedient on
             the off-chance that someone with authority will later þconsent.þ
           In this case, the police officers did not obtain consent prior to their
                                        search. At
 least one officer apparently believed that a warrant was required. However, rather
                                             than
 seek prior judicial approval, they chose instead to intrude into the privacy of the
                                            Hubbel
 home. We hold that their entry without a warrant and without prior consent violated
 Article II, Section 11 of the Montana State Constitution and evidence gathered as a
                                            result
of the unlawful search was inadmissible by virtue of the exclusionary rule. See Wong
Sung v. United States (1963), 371 U.S. 471, 486-88, 83 S.Ct. 407, 417, 9 L.Ed.2d 441,
   455. We accordingly hold that the District Court erred when it held that Carole
                                          Hubbelþs

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                          þretroactive consentþ validated the search.
              Affirmed in part, reversed in part, and remanded for further proceedings
                                           consistent
                                       with this opinion.

                                                                                                /S/        WILLIAM E. HUNT, SR.


                                                                           We Concur:

                                                              /S/ J. A. TURNAGE
                                                              /S/ JAMES C. NELSON
                                                            /S/ W. WILLIAM LEAPHART
                                                            /S/ TERRY N. TRIEWEILER




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