State v. Hulbert

No. 93-628

IN THE SUPREME COURT OF THE STATE OF MONTANA
1994

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
TIMOTHY JEROME HULBERT,

APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Byron L. Robb, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Karl Knuchel, Attorney at Law, Livingston,
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; John
Paulson, Assistant Attorney General, Helena,
Montana
Wm. Nels Swandal, Park County Attorney,
Livingston, Montana

Submitted on Briefs: April 28, 1994
Decided: June 21, 1994
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.

Timothy Jerome Hulbert (Hulbert) appeals the Sixth Judicial
District Court's , Park County, denial of his motion to suppress the
results of a search conducted by the Livingston Police Department
pursuant to a search warrant issued January 12, 1993, by the
Justice of the Peace. Hulbert also appeals the District Court's
findings of fact and conclusions of law which found him guilty of
criminal possession of dangerous drugs w i t h the intent t o sell, a
felony, and guilty of criminal possession of drug paraphernalia, a
misdemeanor. We affirm.
The issues are:
I Was the January 12, 1993, search warrant based on probable
cause?
I1 Was the State required to prove that Hulbert had in excess
of one kilogram of marijuana to charge and convict him of criminal
possession with the intent to sell pursuant to 45-9-103(1), MCA?

Based on tips from a confidential informant, Livingston Police
chief, Lynn ~illett, January 12, 1993, applied for and received
on
a search warrant to search Hulbertfs~ivingstonresidence. At 8:00
p.m., Chief Gillett and three other law enforcement officers served
the search warrant. The officers entered the house and found
Hulbert and Thomas Gibson inside.
The officers secured the house and videotaped items which were
in plain view. The officers then searched t h e house and seized
forty-three items af evidence. On the main floor of the residence
they found and seized several marijuana pipes, an Ohaus triple-beam
balance scale and other drug paraphernalia.
The basement door was locked and the officers asked Hulbert to
unlock the door. He refused and the officers removed the door from
the hinges to check the basement. In the basement the officers
found five small marijuana plants, three medium sized marijuana
plants and one large marijuana plant. The plants were located in
two rooms equipped with several huge grow lights and an elaborate
scheme of plant feeder tubes, timers and fans. The officers also
foundtransformers,pumps, reflectors, buckets, potting soil, other
planting materials and a file folder marked "grow room" which
documented various expenses and provided a ledger with names and
figures.
Chief Gillett described the grow operation as a sophisticated
set up which could run itself through the use of timers and other
electrical equipment. The plants were sent to the State Crime Lab.
The Crime Lab confirmed that the plants were marijuana and
determined that the plants weighed 111.67 grams.
On February 12, 1993, the Park County Attorney filed an
information charging Hulbert with: 1) criminal sale of dangerous
drugs, marijuana, by cultivation, a felony violation of 5 45-9-101,
MCA (1991): and 2) criminal possession of drug paraphernalia, a
misdemeanor violation of § 45-10-103, MCA (1991).
On March 9, 1993, Hulbert filed a motion to dismiss the
criminal sale charge. On March 22, 1993, the county attorney filed
a motion to amend the information to substitute the criminal sale
count with the charge of criminal possession of dangerous drugs
with the intent to sell, a felony violation of 5 45-9-103(1), MCA
(1991). The District Court denied Hulbert's motion to dismiss and
granted the State's motion to amend.
Hulbert, on April 30, 1993, filed a motion to suppress the
evidence obtained during the January 12, 1993, search. Hulbert
argued that the search warrant was not based on probable cause and,
thus, the search was invalid. The District Court denied Hulbert's
motion. The State amended the information on June 2, 1993, and
Hulbert was arraigned on June 15, 1993.
The parties stipulated to certain facts, Hulbert waived his
right to a jury trial, and the District Court held a non-jury trial
on June 28, 1993. After the parties submitted proposed findings of
fact and conclusions of law, the District Court found Hulbert
guilty on both charges. The court sentenced him to seven years at
the Montana State Prison, four years suspended, on the charge of
criminal possession with the intent to sell and a concurrent six
months for criminal possession of drug paraphernalia. The District
Court stayed the execution of Hulbert's sentence pending this
appeal.
I
Was the January 12, 1993, search warrant based on probable
cause?
Hulbert argues that the search warrant application did not
contain sufficient facts to establish probable cause. According to
Hulbert, since the search warrant was not valid, his house was
illegally searched and the District Court should have suppressed
the evidence obtained from that search.
It is well established that the *ltotality of the
circ~mstances'~
test is used to determine whether probable cause
supports the issuance of a search warrant. State v. Neely (Mont.
l993), 862 P.2d 1109, 1110, 50 St.Rep. 1363, 1364. We review the
circumstances set forth in the affidavit and consider whether the
issuing magistrate had a substantial basis for concluding that
probable cause existed. State v. Sunberg (1988), 235 Mont. 115,
122, 765 P.2d 736, 741. Probable cause is established if there is
a fair probability that incriminating items will be found at the
place described in the search warrant. Sunberq, 765 P.2d at 739.
In this case, Chief Gillett submitted a search warrant
affidavit setting forth these facts:
On or about the 5th day of December, 1992, I, Chief
of Police Lynn H. Gillett, met with confidential
informant #264 at the Livingston Police Department.
CI264 has on numerous occasions given affiant and other
law enforcement officers information that has proven to
be reliable and accurate upon further investigation.
CI264 stated he had received information that a
subject by the name of Timothy Hulbert is currently
growing marijuana in the basement of his residence.
Hulbertfs residence is located at the old Broken Stirrup
Saddelry which is west of the Yellowstone Truck Stop on
Old Highway 10 West. CI264 stated he has known Hulbert
for several years during which time he has had personal
knowledge that Hulbert has grown marijuana on numerous
occasions. Hulbert is known to grow mostly bud which has
been known to sell for several thousand dollars a pound.
CI264 advised that the grow operation will be in two
separate rooms. One room for starter plants and one room
for larger plants.
On or about December 15, 1992, CI264 called, stating
that he had been in the Hulbert residence to visit
Hulbert and while there observed that the door leading
into the basement of the residence where the grow
operation is located was covered with plywood and
fastened with screws. CI264 stated that this would be
normal for Hulbert because he would not want anyone in
the rooms or light let in at the wrong time. CI264 has
also known Hulbert, with the assistance from an
electrician, to by-pass the electric meter to get power
for his grow operations to avoid detection by law
enforcement if they were to check his power bills. CI264
stated Hulbert usually takes out a six month lease on a
residence other than his own residence to conduct his
grow operations, but Hulbert has been low on money,
making it impossible to lease a separate location, so he
set the grow up in h i s awn residence. The grow operation
should be on timers and a grow takes approximately
seventy (70) days. C1264 was also told personally by
Hulbert that he was indeed growing marijuana, but was
unable to show the plants because there were too many
people around.
On or about December 20, 1992, affiant was contacted
by CI264 who stated h e had been at the Hulbert residence
and a male subject from Wyoming who is staying with
Hulbert showed CI264 starter plants in a small room in
the basement. CI264 was only able to view the starter
plants for a short time because someone else knocked on
the door to the residence and they had to leave the
basement. C1264 did observe approximately ten (10)
starter plants in peat moss in the room.
During the months of December 1992 and start of
January 1993, CI264 reported that on several occasions
Hulbert has had parties at his residence where alcohol
and illegal drugs were consumed. During this time,
Hulbert appeared to CI264 to be using alcohol and drugs
to excess and has become very paranoid even towards his
close friends. CI264 has been t o l d by f r i e n d s of
Hulbertfs that when they went to his residence, he would
peek out the curtain, but not open the door. CI264 has
also personally observed Hulbert act this way when he is
strung out on cocaine. Also, CI264 knows Hulbert is
always very observant of law enforcement while he has a
grow growing.
On January 8, 1993, affiant received from Montana
Power Company a computer printout of the power usage at
Hulbert's residence, a copy of which is attached. The
printout reflects usage before and after Wulbert had the
power put in his name. The power was placed in Hulbertf s
name in April 1992. The following comparisons were made
from the printout. The month of October 1991 compared to
1992 - the difference in kilowatt hours is 1,980 KWH more
 usage in 1992. November 1991 compared to November 1992 -
the kilowatt usage was 1,388 KWH more in 1992. December
1991 compared to December 1992 - the kilowatt usage was
1,032 KWH more in 1992. Affiant believes that the power
records indicate a substantial increase in power usage
which would indicate the use of grow lights and assorted
equipment used in the growing of marijuana.
Since December, 1992, affiant has observed on
numerous occasions suspected drug users parked at or
leaving Hulbertps residence. Also, Hulbert's vehicles
have been parked at the residence and all information
received states that Hulbert is the occupant of the
residence.
Hulbert argues that certain facts in the search warrant
affidavit contain hearsay statements which are inadequate to
establish probable cause. However, "[rleliable hearsay information
may be considered to establish probable cause." State v. Jensen
(l985), 217 Mont. 272, 277, 704 P.2d 45, 48. Reliability can be
established through corroborative evidence or surrounding facts
which support the conclusion that it is probable that incriminating
items will be found at the place to be searched. Jensen, 704 P.2d
at 48.
We refuse to review a search warrant application sentence by
sentence, rather we examine the entire affidavit to determine
whether the issuing magistrate had a substantial basis to conclude
that probable cause existed. Sunberq, 765 P.2d at 741. Although
CI264 stated that he had received information that Hulbert was
growing marijuana in his residence, this hearsay statement was
supported by these surrounding facts: 1) CI264 had personally
observed ten starter marijuana plants in Hulbertts basement; 2)
CI264 specifically stated that the plants were in two basement
rooms--one room containing starter plants and one room containing
7
larger plants; 3) Hulbert admitted to CI264 that Hulbert was
growing marijuana in his basement; and 4) CI264 also knew that
Hulbert's operation contained timers. Moreover, the police
corroborated CI264's statement by obsewing the presence of
suspected drug users at or leaving Hulbert's residence and
analyzing Hulbert's increased use of electricity in 1992 as
compared to the amount used in 1991. We conclude that the hearsay
statement of CI264 was supported by surrounding facts and police
corroboration which justified the issuing magistrate's conclusion
that probable cause existed to search Hulbertfs residence.
Hulbert next argues that the affidavit does not establish that
CI264 was reliable. According to Hulbert the conclusory statement
that I1C1264 has on numerous occasions given [Gillett] and other law
enforcement officers information that has proven to be reliable and
accurate upon further investigationgf not sufficient to establish
is
CI264's reliability.
While the reliability of an informant is an important
consideration under the "totality of the circumstancesu test, we
have never required an affidavit to particularly describe each
incident in which an informant provided reliable and accurate
information. We conclude that a sworn statement by a law
enforcement officer that an informant was reliable and accurate on
other occasions is an acceptable method to establish an informant's
reliability. See State v . Hendrickson (1985), 217 Mont. 1, 5, 701
P.2d 1368, 1371; State v. Seaman (1989), 236 Mont. 466, 472, 771

P.2d 950, 953-54.
 Finally, Hulbert argues that since CI264 observed the
marijuana plants three and one-half weeks before the search warrant
was issued, there was no proof that the plants would be in
existence at the residence when the warrant was issued. Hulbert
contends that CI264's observations were stale and, thus, probable
cause did not exist.
Staleness depends on the nature of the property which is the
object of the search warrant. State v. Walston (1989), 236 Mont.
218, 223, 768 P.2d 1387, 1390. However, if it is established that
the criminal activity is continuing, "a greater amount of time may
elapse between the observation of the activity and the application
for a search warrant without negating probable cause." Walston,
768 P.2d at 1390.
Here, the target of the search was not only the marijuana
plants, but also the grow operation which existed in Hulbert's
basement. Moreover, CI264 stated that a grow takes seventy days
and that he saw starter plants in the basement on December 20,
1992. Since Hulbert had marijuana starter plants in his basement
on December 20, 1992, and it took seventy days to grow marijuana,
the District Court correctly concluded that the informant's
observations were not too remote to negate probable cause.
After a careful review of the entire affidavit, we conclude
that under the v*totality the circumstances" test the justice of
of
the peace had a substantial basis to conclude that it was probable
that incriminating items would be found at Hulbert's residence.
These facts establish that the justice of the peace was justified
in concluding that probable cause existed: 1) the substantial

increase in power usage; 2) observation of suspected drug users at

Hulbert's residence; 3) CI264's personal observations of Hulbert's
grow operation; 4) Hulbertfs drug parties; and 5) Hulbert8s
admissions to CI264 that Hulbert was growing marijuana in his
basement. The District Court properly denied Hulbert's motion to
suppress.
I1
Was the State required to prove that Hulbert had in excess of
one kilogram of marijuana to charge and convict him of criminal
possession with the intent to sell pursuant to 5 45-9-103 (I), MCA?
Initially, Hulbert was charged with possession of drug
paraphernalia and criminal sale of dangerous drugs by cultivation.
Because of our decision in State ex rel. Zander v. District Court
(1979), 180 Mont. 548, 591 P.2d 656, the State moved to delete the

criminal sale charge and amend the information to charge Hulbert
with criminal possession of dangerous drugs with the intent to
sell. The State did not file a separate affidavit to support the
amended charge, but i n s t e a d relied on t h e a f f i d a v i t from t h e
initial charge. We have previously held that when the initial
affidavit establishes probable cause as to the amended charge, the
State is not required to submit a second affidavit to support the
amended charge. State v. Ecker (1990), 243 Mont. 337, 340, 792
P.2d 1079, 1081.
Here, Hulbert argues that the initial affidavit is
insufficient since it does not allege that Hulbert possessed in
excess of one kilogram of marijuana. According to Hulbert the
State was required to prove that he possessed in excess of one
kilogram of marijuana in order to charge and convict him of
criminal possession of dangerous drugs with the intent to sell--§
45-9-103(1), MCA. We disagree.
Prior to 1987, 1 45-9-103(1), MCA, stated:
A person commits the offense of criminal possession with
intent to sell if he possesses with intent to sell any
dangerous drug as defined in 50-32-101. No person
commits the offense of criminal possession with intent to
sell marijuana unless he possesses 1 kilogram or more.
The Annotator's note to § 45-9-103 (I), MCA, refers to the second
sentence as creating "a conclusive presumption of no intent to sell
where marijuana is possessed in amounts less than one kilogram."
However, in 1987, the legislature deleted the second sentence of §

45-9-103 (1), MCA. Although we discussed 5 45-9-103 (1), MCA, in
State v. Garberding (lggo), 245 Mont. 356, 801 P.2d 583, we did not
apply any presumption for or against the defendant, concerning the
quantity of marijuana and the defendant's intent to sell. Our
holding in Garberdinq did not, as Hulbert suggests, resurrect the
conclusive presumption which the legislature deleted from 9 45-9-
103 (I), MCA, in 1987. We hold that 5 45-9-103 (I), MCA, does not
require the State to prove possession in excess of one kilogram of
a dangerous drug to convict a person of possession of dangerous
drugs with the intent to sell.
However, the State is required to prove that the person
intended to sell the drugs. We have previously recognized the
difficulty in proving criminal intent. State v. Hall (1991), 249
Mont. 366, 371, 816 P.2d 438, 441. ItBecauseit is seldom subject
to direct proof, intent must be inferred from the acts of the
accused and the facts and circumstances of the offense." Hall, 816
P.2d at 441. In m, we concluded that the presence of drugs and
other items commonly used in drug transactions--such as scales,
containers, packaging materials and individually packed drugs--
support an inference of intent to sell. 816 P.2d at 441.
Here, Hulbert had a large grow operation with an elaborate set
of timers, feeder tubes, fans, vents, lights and potting materials
in his basement. The police confiscated nine marijuana plants and
other items which are commonly used in drug transactions: 1) an
Ohaus triple-beam balance scale; 2) various pipes and bongs; and 3)
a manila folder marked "grow room1'containing names and an expense
ledger. These cumulative facts justified an inference that Hulbert
intended to sell the marijuana. We hold that there was sufficient
proof to support the District Court's verdict. Accordingly, we
affirm Hulbert's conviction and the sentence imposed on him by the
District Court.
,.
 June 21, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:

KARL KNUCHEL
Attorney at Law
P.O. Box 953
Livingston, MT 59047

HON. JOSEPH P. MAZUREK, Attorney General
Assistant
Justice Bldg.
Helena, MT 59620

Wm. Nels Swandal
Park County Attorney
414 East Callender Street
Livingston, MT 59047

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA