No. 05-260 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2006 MT 182 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

JOHN O. COPELTON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and For the County of Gallatin, Cause No. DC 04B280 

Honorable Mike Salvagni, Presiding Judge 

COUNSEL OF RECORD: 

For Appellant: 

Eric M. Brewer, Gallatin County Public Defender’s Office 

Bozeman, Montana 

For Respondent: 

Hon. Mike McGrath, Attorney General; John Paulson, 

Assistant Attorney General, Helena, Montana 

Marty Lambert, Gallatin County Attorney; Jami Rebson, 

Deputy County Attorney, Bozeman, Montana 

Submitted on Briefs: April 26, 2005 

 Decided: August 8, 2006 

Filed: 

__________________________________________ 

Clerk 
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Chief Justice Karla M. Gray delivered the Opinion of the Court. 

¶1 John O. Copelton (Copelton) appeals from the judgment entered by the Eighteenth 

Judicial District Court, Gallatin County, on his conviction and sentence for the offense of 

criminal possession of dangerous drugs with intent to distribute. We affirm. 

¶2 The issue on appeal is whether the District Court erred in denying Copelton’s motion 

to suppress evidence. 

BACKGROUND 

¶3 On August 24, 2004, Belgrade City Police Officer Mike Dixon (Dixon) was 

dispatched to JR’s Lounge in Belgrade, Montana, to investigate a report of suspicious 

activity involving several persons who appeared to be “casing” the bar and moving back and 

forth between the bar and a red vehicle located in the parking lot. Upon arriving at JR’s 

Lounge, Dixon observed a red vehicle in the parking lot matching the description given in the 

report. Montana Highway Patrol Officer Jason Hoppert (Hoppert) also responded to JR’s 

Lounge to provide assistance to Dixon. Hoppert arrived at the location at approximately the 

same time as Dixon. 

¶4 The officers found Copelton sitting inside the red vehicle. Hoppert remained with 

Copelton while Dixon went to the bar to investigate the report. Dixon made contact inside 

with Ruben Garcia (Garcia). Garcia stated that he was responsible for the red vehicle, which 

he had borrowed from a friend in Oregon, and that he, Copelton and another person had 

traveled from Oregon to Montana in it. Dixon asked Garcia to produce registration for the 
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vehicle. Garcia agreed and accompanied Dixon outside. Garcia walked to the passenger side 

of the vehicle, reached into the glove box and produced some papers, which he handed to 

Dixon. 

¶5 Dixon then asked Garcia if the officers could search the vehicle. Garcia responded by 

shrugging his shoulders and making a gesture which the officers interpreted as his consent to 

the search. The officers began to search the vehicle and discovered methamphetamine. They 

stopped the search and later obtained a search warrant authorizing a further search of the 

vehicle during which more methamphetamine was discovered. 

¶6 The State of Montana (State) subsequently charged Copelton by information with the 

felony offense of criminal possession of dangerous drugs with intent to distribute, based on 

its allegation that Copelton possessed nearly a pound of methamphetamine with the intention 

of selling it. Copelton moved the District Court to suppress the evidence obtained during the 

search of the vehicle, arguing that Garcia’s consent to the initial search of the vehicle was not 

voluntary and there were no other applicable exceptions to the search warrant requirement 

which authorized the initial search. The District Court held an evidentiary hearing on the 

motion at which Dixon, Hoppert, Garcia and Copelton testified, and subsequently entered its 

findings of fact, conclusions of law and order denying Copelton’s motion to suppress. 

¶7 Copelton subsequently pled guilty to the charged offense, expressly reserving his right 

to appeal the District Court’s denial of his motion to suppress. The District Court sentenced 

Copelton to twenty years at the Montana State Prison and entered judgment. Copelton 

appeals. 
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STANDARD OF REVIEW 

¶8 We review a district court’s ruling on a criminal defendant’s motion to suppress 

evidence to determine whether the court’s findings of fact are clearly erroneous and its 

interpretation and application of the law correct. State v. Wetzel, 2005 MT 154, ¶ 10, 327 

Mont. 413, ¶ 10, 114 P.3d 269, ¶ 10. 

DISCUSSION 

¶9 Did the District Court err in denying Copelton’s motion to suppress evidence? 

¶10 The Fourth Amendment to the United States Constitution and Article II, Section 11 of 

the Montana Constitution protect individuals from unreasonable searches and seizures. State 

v. Snell, 2004 MT 269, ¶ 9, 323 Mont. 157, ¶ 9, 99 P.3d 191, ¶ 9. A search or seizure 

conducted in the absence of a valid warrant is per se unreasonable unless justified by a 

recognized exception to the warrant requirement. Snell, ¶ 9. Knowing and voluntary consent 

to a search is a recognized exception to the warrant requirement. Snell, ¶ 9.

¶11 It is undisputed here that the officers did not have a search warrant authorizing the 

initial search of the vehicle. Based on the testimony presented at the suppression hearing, 

however, the District Court determined that Garcia gave the officers his knowing and 

voluntary consent to search the vehicle. Consequently, the court concluded the initial search 

was justified by the consent exception to the warrant requirement and denied Copelton’s 

motion to suppress the evidence obtained as a result of the search. Copelton asserts error.

¶12 Copelton first contends that the State must establish probable cause for the search in 

addition to a knowing and voluntary consent to the search, relying on State v. Shaw, 2005 
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MT 141, 327 Mont. 281, 114 P.3d 198. He asserts the State presented no evidence at the 

suppression hearing establishing the existence of probable cause to search the vehicle. He 

also points out that the District Court’s order denying his motion to suppress included no 

findings of fact or conclusions of law regarding the existence of probable cause to search. 

On that basis, he argues the District Court incorrectly applied the law and, therefore, erred in 

denying his motion.

¶13 The State responds that there is no probable cause requirement for a search where the 

investigating officers obtain knowing and voluntary consent prior to conducting the search. 

The State contends we previously addressed and rejected an identical probable cause 

argument in Snell. We agree.

¶14 In Snell, a highway patrol officer stopped the defendant for speeding. After issuing 

the defendant a citation for failure to carry proof of insurance, the officer asked if he could 

search the defendant’s vehicle. The defendant consented and the officer found marijuana and 

drug paraphernalia in the vehicle. The defendant subsequently moved the district court to 

suppress the drug evidence obtained during the search. He conceded he voluntarily 

consented to the search and the State conceded the officer did not have probable cause for the 

search. Snell, ¶¶ 3-6. The district court relied on State v. Parker, 1998 MT 6, 287 Mont. 

151, 953 P.2d 692, in concluding that an officer need not have probable cause where there is 

voluntary consent to a search, and denied the defendant’s motion to suppress. Snell, ¶ 10.

¶15 On appeal, the defendant argued that the rule stated in Parker conflicted with our 

subsequent decision in State v. Elison, 2000 MT 288, ¶ 54, 302 Mont. 228, ¶ 54, 14 P.3d 456, 
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¶ 54, in which we stated that a warrantless vehicle search requires both probable cause and a 

recognized exception to the warrant requirement such as plain view, search incident to arrest 

or exigent circumstances. The defendant asserted that, although he voluntarily consented to 

the search of his vehicle, the officer did not have the requisite probable cause for the search 

and, therefore, the search was unlawful pursuant to Elison. Snell, ¶ 11. We concluded, 

however, that the two cases were not in conflict because Parker directly addressed the 

consent exception to the warrant requirement without requiring a finding of probable cause, 

while Elison addressed the exigent circumstances exception and did not impose a probable 

cause requirement on consensual searches. Snell, ¶¶ 12-15. Consequently, we affirmed the 

district court’s conclusion that the defendant’s voluntary consent was sufficient, in and of 

itself, to justify the warrantless search of his vehicle. Snell, ¶ 17.

¶16 Less than a year after Snell, we decided Shaw. There, a deputy sheriff stopped the 

defendant for speeding. During the course of the stop, the deputy asked the defendant 

whether he could search her car and the defendant consented. The deputy discovered an 

open container of alcohol and drug paraphernalia in the vehicle. The State subsequently 

charged the defendant with several drug-, alcohol- and driving-related offenses. The 

defendant moved to suppress the evidence obtained during the search of her vehicle, arguing 

that the deputy had coerced her consent to the search by using threats. The district court 

denied the motion. Shaw, ¶¶ 3-4.

¶17 In addressing the consent to search issue on appeal, we cited Elison for the proposition 

that “[a] warrantless search of a vehicle in Montana requires both the existence of probable 
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cause and a generally recognized exception to the warrant requirement.” Shaw, ¶ 7. We then 

concluded, based on the facts and circumstances of the case, that the deputy possessed the 

requisite probable cause and the defendant knowingly and voluntarily consented to the search 

of her vehicle. Shaw, ¶ 12. Nowhere in Shaw did we reference Snell and our holding therein 

that there is no probable cause requirement for a warrantless search of an automobile based 

on a knowing and voluntary consent to the search.

¶18 We take this opportunity to reaffirm our holding in Snell. A knowing and voluntary 

consent, in and of itself, is sufficient to justify a warrantless search of an automobile. 

Therefore, we reverse that portion of Shaw which requires a finding of probable cause in 

conjunction with the consent exception to the search warrant requirement. As a result, we 

need address only Copelton’s arguments regarding the knowing and voluntary nature of 

Garcia’s consent to the vehicle search.

¶19 Courts apply the totality of the circumstances test in determining whether consent has 

been voluntarily given and is uncontaminated by coercion or duress. Wetzel, ¶ 16. Thus, the 

determination of voluntariness of consent is dependent on the facts of each case, with no 

single fact being dispositive. State v. Dawson (1988), 233 Mont. 345, 352, 761 P.2d 352, 

356. 

¶20 Garcia, Dixon, Hoppert and Copelton testified at the hearing on Copelton’s motion to 

suppress. The following facts, supported by testimony at the hearing and found by the 

District Court, are essentially undisputed. Garcia was born in Mexico and has lived in the 

United States since 1993. He received six years of education while growing up in Mexico. 
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At the time of the vehicle search at issue here, Garcia was 29 years old and had only a limited 

understanding of the English language. Garcia testified, however, that he had prior 

experiences with law enforcement officers and has had his vehicle searched on other 

occasions. He further stated that, notwithstanding his limited knowledge of English, he 

clearly understood what Dixon was asking when the officer requested his consent to search 

the vehicle. In response to Dixon’s request, Garcia shrugged his shoulders and gestured with 

his hands in an affirmative manner. Garcia testified that he consented to the search and did 

not care whether the officers searched the vehicle because he did not have anything to hide.

¶21 Dixon and Hoppert both testified that, upon being asked to consent to a search of the 

vehicle, Garcia responded by shrugging his shoulders, nodding his head affirmatively and 

saying “yeah” or “yeah, sure.” Dixon conceded that he did not inform Garcia of his right to 

refuse to consent to the search. Copelton also testified that, after Dixon requested permission 

to search the vehicle, Garcia shrugged his shoulders, gestured and looked at Copelton. 

Copelton interpreted Garcia’s movements as asking Copelton for advice on how to respond 

to Dixon.

¶22 Based on the above facts, the District Court concluded that “[u]nder the totality of the 

circumstances Garcia’s consent was freely and voluntarily given and uncontaminated by any 

express or implied duress or coercion.” Copelton asserts that this conclusion is erroneous. 

He contends that three factors exist which establish that Garcia’s consent to the vehicle 

search was not knowingly and voluntarily given.
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¶23 First, Copelton argues that Garcia’s limited education with no instruction regarding 

the American legal system weighs heavily against his ability to voluntarily consent to a 

search. However, Copelton provides no authority for the proposition that an American 

education or instruction on the American legal system is required for a person to be able to 

knowingly and voluntarily consent to a search. Moreover, Garcia testified that he had prior 

experiences with law enforcement while in the United States, including prior vehicle 

searches, and he understood what Dixon was asking when the officer requested to search the 

vehicle. Garcia stated that he consented to the search because he had nothing to hide and did 

not care whether the officers looked through the vehicle. We conclude that Garcia’s limited 

foreign education did not impede his ability to knowingly and voluntarily consent to the 

vehicle search.

¶24 Second, Copelton asserts that Garcia’s limited understanding of the English language 

at the time of the search indicates he could not knowingly consent to the search and that “[i]t 

is unclear that Garcia fully understood what he was being asked to do.” As discussed above, 

however, this assertion directly contradicts Garcia’s testimony at the suppression hearing. 

We conclude Garcia’s limited abilities to speak and understand English did not impede his 

ability to knowingly and voluntarily consent to the search.

¶25 Third, Copelton contends that the fact that the officers did not inform Garcia he had 

the right to refuse to consent to the vehicle search weighs in favor of a determination that the 

consent was not knowing and voluntary. Copelton concedes, however, that lack of 

knowledge of the right to refuse consent is not determinative that the consent was not 
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voluntary in and of itself. See Wetzel, ¶ 19. In light of Garcia’s statement that he did not 

care whether the officers searched the vehicle, we conclude the officers’ failure to inform 

him of his right to refuse to consent does not render his consent unknowing or involuntary 

under the totality of the circumstances.

¶26 Finally, Copelton makes a passing assertion that “a mere shrug of the shoulders was 

not enough to indicate to the officers that Garcia was giving consent to search.” We have 

held, however, that nonverbal consent can be effective where the conduct indicates 

unequivocal consent to the search. In Dawson, we concluded that, where a law enforcement 

officer requested permission to enter the defendant’s motel room, the defendant’s actions of 

stepping back, opening the door wider and not objecting by words or action to the officer’s 

entry into the room indicated unequivocal, voluntary consent. Dawson, 233 Mont. at 352-53, 

761 P.2d at 357. Here, Garcia, Dixon and Hoppert all testified that Garcia responded to 

Dixon’s request to search the vehicle by shrugging his shoulders, nodding his head and 

making an affirmative gesture with his hands. All three further testified that Garcia’s 

affirmative gestures clearly indicated his consent to the vehicle search. Copelton’s argument 

in this regard is without merit.

¶27 We conclude the District Court did not err in determining that, under the totality of the 

circumstances, Garcia’s consent to the vehicle search was freely and voluntarily given. We 

hold, therefore, that the District Court did not err in denying Copelton’s motion to suppress 

evidence.

¶28 Affirmed.
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/S/ KARLA M. GRAY 

We concur: 

/S/ PATRICIA COTTER 

/S/ W. WILLIAM LEAPHART 

/S/ JOHN WARNER 

/S/ JIM RICE