State v. Hubbel
| Citation | 286 Mont. 200,951 P.2d 971 |
| Decision Date | 03 February 1998 |
| Docket Number | No. 96-663,96-663 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Wesley Carter HUBBEL, Defendant and Appellant. |
| Court | United States State Supreme Court of Montana |
Joseph P. Mazurek, Attorney General, Pam Collins, Assistant Attorney General, Helena, George Corn, Ravalli County Attorney, Hamilton, for Plaintiff and Respondent.
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 appeals from the judgment of conviction based upon 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 Hubbel's residence constitutional?
2. Did the District Court err in holding that Carole Hubbel's "retroactive consent," given five months after the police searched and seized evidence inside the Hubbel home, cured an otherwise unconstitutional search and seizure?
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. T's, a convenience store and gas station located in Darby, Montana, to meet an ambulance. Deputy Sheriff Bradford Squires was dispatched to Mr. T's. Deputy Sheriff Gregory Stewart responded separately as backup.
At Mr. T's, 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 Squires placed Hubbel under arrest.
As Squires escorted Hubbel to his patrol car, Hubbel began spontaneously "babbling," 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 "babbling" again and expressed concern for fifteen dogs that he said were in the house.
When Stewart arrived at Mr. T's, 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 passenger's seat area. He called a wrecker to have the car hauled to storage. By then, Hubbel had been arrested and was seated in Squires' 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 In the meantime, Detective Peter Clarkson had arrived at Mr. T's 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.
injured, Carole was alert and responsive. Squires then drove back to the jail and asked Hubbel to perform an intoxilyzer test, which Hubbel declined. At no time did Squires or anyone else ask either Carole [286 Mont. 205] Hubbel or Defendant Hubbel for permission to search their home or property.
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. T's. 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 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 Hubbel's motion to suppress. First, with respect to evidence Second, the District Court held that search and seizure of the evidence within Hubbel's 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 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 (1994), 319 Or. 212, 874 P.2d 1322, and held that Carole Hubbel's retroactive consent to the police entry justified the warrantless search and seizure of evidence within the house.
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 "curtilage" questions under the Fourth Amendment to the United States Constitution. It held that the area surrounding the home did not fall within the home's 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.
The jury trial commenced June 3, 1996, and the jury found Hubbel guilty. Hubbel now appeals the denial of his motion to suppress.
The standard of review of a district court's denial of a motion to suppress is whether the court's 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 court's 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 (1997), 281 Mont. 250, 257, 934 P.2d 176, 180.
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