State v. Hill

• Decision Date: 13 July 2004
• Docket Number: No. 03-773.,03-773.
• Citation: 322 Mont. 165,2004 MT 184,94 P.3d 752
• Parties: STATE of Montana, Plaintiff and Respondent, v. Michael Christopher HILL, Defendant and Appellant.
• Court: Montana Supreme Court

94 P.3d 752

2004 MT 184

322 Mont. 165

STATE of Montana, Plaintiff and Respondent, v. Michael Christopher HILL, Defendant and Appellant.

No. 03-773.

Supreme Court of Montana.

Submitted on Briefs April 7, 2004.

Decided July 13, 2004.

For Appellant: Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena, Montana.

For Respondent: Mike McGrath, Attorney General; Jim Wheelis and Anthony C. Johnstone, Assistant Attorneys General; Helena, Montana, Fred Van Valkenburg, County Attorney; Jennifer Johnson, Deputy County Attorney, Missoula, Montana. Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Michael Christopher Hill appeals the order filed on August 21, 2002, by the Fourth Judicial District Court, Missoula County, denying his motion to suppress evidence and the subsequent denial of his motion to reconsider filed on December 13, 2002. We affirm the orders of the District Court.

¶ 2 Hill raises two issues on appeal:

¶ 3 1. Did the District Court err in denying defendant's motion to suppress on the grounds that he was unlawfully seized?

¶ 4 2. Did the District Court err in denying defendant's motion to suppress on the grounds that the trunk of the car that the defendant was driving and the bags found there were illegally searched?

BACKGROUND

¶ 5 On April 18, 2001, Montana Highway Patrol Officer Roman Zylawy stopped Michael Hill for driving 92 miles per hour on Interstate 90. Zylawy informed Hill of the reason for the stop, and Hill apologized, explaining that his cruise control was sticking. Zylawy responded that 92 miles per hour was too fast for a warning and that he would need to collect a forty dollar bond from Hill. Hill handed over his driver's license and told Zylawy that the car was rented. When Zylawy asked for the rental paperwork, Hill "looked for a long time" but could not find it. Zylawy went to his patrol car to run checks on the license and registration. From these, Zylawy learned that the car was registered to Avis, a rental car company, but that the car was not recorded as stolen. Zylawy wrote out the citation, returned to Hill, and explained to him that the forty dollar bond was not an admission of guilt. He elaborated that if Hill wanted to contest the ticket he would have to come back to Montana; otherwise he could simply forfeit the bond and it would be a "done deal." Zylawy handed Hill's license back to him "and said that we're done."

¶ 6 Having noticed that Hill had no bags or clothes in the car, Zylawy then initiated small talk conversation. Zylawy asked where Hill was going and where his traveling clothes were. Hill said that he was coming from Tacoma to see a friend in Missoula and that he did not need any clothes because he was going to stay only one night. Hill added that he may return that night because his friend did not know he was coming — it was a surprise — and he was unable to contact him with his cell phone. Zylawy asked if Hill was carrying "anything illegal in the car — illegal guns, money, or drugs." Hill said "No." Zylawy requested permission to search the car, and, at first, Hill gave it. Returning to his patrol car, Zylawy obtained a consent form and called another officer to the scene. Officer Hader responded.

¶ 7 As Zylawy was going over the terms of the consent form, Hill "started to balk at the idea." Hill said that the car was not his but Avis's and that his friend had rented it. He continued, "I mean my friend rented the car, and what if she put something in there I don't know about." Hill then refused to allow the trunk of the car to be searched, but he permitted Zylawy to inspect the cabin. Zylawy observed only a cell phone and a DVD player in the car's passenger area.

¶ 8 When Zylawy asked Hill where he had gotten the car, Hill replied that a friend, whose name he did not know, had rented it. Hill told Zylawy that he had planned on flying to Missoula from Spokane but that the flights were full, so he had needed a car. When the officers inquired again about the rental paperwork for the car, Hill replied that he thought his friend had left the rental agreement in the car, but that he was again unable to find it. The rental agreement was subsequently located in the glove box where Hill had looked.

¶ 9 When Zylawy returned to his patrol car to check on the car's origin, he learned that it had been rented from the Avis office at the Spokane International Airport. Hader then used his cell phone to call the Avis office at the Spokane airport. He learned from Avis that the car was two days overdue and that Hill was not an authorized driver on the rental agreement. An Avis representative requested that the officers impound the car and consented to a search of the vehicle. Standing outside the vehicle, Hill requested that he be able to retrieve his personal belongings. Hill pointed out the things that were his and pulled them out of the car, not touching the trunk or its contents. Hader then asked Hill if there was anything in the trunk of the vehicle, and Hill replied, "No."

¶ 10 Hill was placed in the back of the patrol car and was held on suspicion of unauthorized use of a vehicle. The officers then opened the trunk of the car and found two duffel bags. Before opening the bags, they asked Hill if they were his. He responded that they were not. In one duffel bag the officers found shoes, clothes, a shaving kit, and a cell phone charger that matched Hill's cell phone. In the other bag they discovered six and a half pounds of marijuana and half a pound of hashish.

¶ 11 Hill was charged with two counts of criminal possession of dangerous drugs with intent to distribute and with speeding. The speeding charge was later dismissed. Hill initially pled not guilty to the drug charges. He filed a motion to suppress the evidence obtained from the car, but the motion was denied. Hill filed a motion to reconsider the motion to suppress, which was also denied. Hill then entered into a plea agreement with the county attorney and withdrew his not guilty plea. Accepting the plea agreement, the District Court found Hill guilty of one count of criminal possession of dangerous drugs with intent to distribute and dismissed the second count. The District Court sentenced him to five years incarceration, suspended with conditions. Hill appeals.

STANDARD OF REVIEW

¶ 12 The standard of review of a trial court's grant of a motion to suppress is whether the court's findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Henderson, 1998 MT 233, ¶ 9, 291 Mont. 77, ¶ 9, 966 P.2d 137, ¶ 9. A court's findings are clearly erroneous if they are not supported by substantial evidence, the court has misapprehended the effect of the evidence, or our review of the record convinces us that a mistake has been committed. Henderson, ¶ 9.

DISCUSSION

¶ 13 Did the District Court err in denying defendant's motion to suppress on the grounds that he was unlawfully seized?

¶ 14 Hill does not challenge the legality of the initial stop for his traffic violation. Rather, he contends that, once Zylawy gave him the citation, the officer had no right to then engage him in small talk and that doing so amounted to an unlawful detention. Hill argues that he was not free to leave.

¶ 15 We recently considered the identical issue in State v. Merrill, 2004 MT 169, 322 Mont. 47, 93 P.3d 1227. In Merrill, a sheriff's deputy stopped the defendant for making an illegal lane change. After the deputy told the defendant that he would only give her a warning, he told her she was free to go and stepped away from the vehicle. Noticing that the defendant was unusually nervous, the deputy re-engaged her in conversation. Merrill, ¶ 4. The deputy requested to speak to her, then to search her car, and finally to search her person. Each time the defendant freely consented. The deputy discovered methamphetamine on the defendant's person. Merrill, ¶ 4. The defendant moved to suppress the evidence, arguing that she was unlawfully seized, which the District Court denied. We affirmed the District Court's determination that a reasonable person would have felt free to leave at any time after the conclusion of the traffic stop and that the defendant and the deputy were in engaged in a voluntary exchange when the illegal drugs were found in the defendant's possession. Merrill, ¶ 20.

¶ 16 Within the meaning of both the Fourth Amendment of the United States Constitution and Article II, Section 11, of the Montana Constitution, a person is seized "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Merrill, ¶ 10.

¶ 17 Once Zylawy gave back Hill's license and indicated the matter was done, the investigatory stop concluded. A reasonable person under these circumstances would have believed he was free to leave, and therefore, the subsequent conversation which developed between the officers and Hill was a voluntary exchange. Only when the officers discovered that Hill was not an authorized driver of the vehicle did they detain him. Thus, Hill was not unlawfully seized during his pre-detention conversation with the officers.

¶ 18 Did the District Court err in denying defendant's motion to suppress on the grounds that the trunk of the car that the defendant was driving and the bags found there were illegally searched?

¶ 19 The Fourth Amendment to the United States Constitution protects citizens against unreasonable searches and seizures. The search and seizure provision of the Montana Constitution is set forth in Article II, 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

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