No. 93-628 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsTIMOTHY 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 

Filed: 

Submitted on Briefs: April 28, 1994 

Decided: June 21, 1994 
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 with the intent to 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, on January 12, 1993, applied for and received 

a search warrant to search Hulbertfs ~ivingston residence. 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 the 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 his 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 he 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 told by friends 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 is not sufficient to establish 

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 of the circumstances" test the justice 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 instead relied on the affidavit from the 

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. ItBecause it 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