State v. Burchill
| Decision Date | 10 December 2019 |
| Docket Number | DA 18-0193 |
| Citation | 2019 MT 285,454 P.3d 633,398 Mont. 52 |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Duane Angelo BURCHILL, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Jack E. Sands, Attorney at Law, Billings, Montana
For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana, Marty Lambert, Gallatin County Attorney, Bjorn E. Boyer, Deputy County Attorney, Bozeman, Montana
¶1 Appellant Duane Angelo Burchill appeals the jury verdict and sentence of the Eighteenth Judicial District Court, Gallatin County, convicting him of two counts of Robbery, in violation of § 45-5-401, MCA ; one count of Conspiracy to Commit Deceptive Practices, as part of a common scheme or plan, in violation of §§ 45-6-317 and 45-2-101(8), MCA ; and one count of Criminal Possession of Dangerous Drugs, in violation of § 45-9-102, MCA.
¶2 We review the following issues on appeal:
¶3 We affirm.
¶4 On September 18, 2016, and again on September 24, 2016, an individual wearing a Jack Skellington1 mask and brandishing a semi-automatic handgun robbed the Magic Diamond II Casino in Bozeman, Montana. One witness identified the gun used in the first robbery as a .380 semi-automatic handgun. The suspect stole $585 in the first robbery and $899 in the second robbery. After the first robbery, law enforcement used a canine unit to track the suspect, but the canine unit lost the trail. Information regarding the location of where the canine unit lost the suspect’s trail and the amounts of money taken during the robberies was never released to the public.
¶5 Law enforcement later learned of an informant detained at the Gallatin County Detention Center who claimed to have information about the two casino robberies. When interviewed by law enforcement, the informant identified Burchill as being responsible for the casino robberies. He claimed to have given Burchill a ride on the night of September 18, following the first robbery. Additionally, he claimed to have picked up Burchill at the same area where the canine unit lost the trail. The informant stated that Burchill got in his car carrying nearly $600 and a Jack Skellington mask. The informant told law enforcement that Burchill likely stored the mask at Burchill’s residence or in a storage tote in the bed of Burchill’s truck.
¶6 On the morning of September 28, 2016, law enforcement began the process of obtaining search warrants for Burchill’s residence and truck. Detective McCormick of the Bozeman Police Department was leaving the Law and Justice Center to secure Burchill’s residence until a search warrant could be obtained when he observed Burchill driving nearby. Burchill eventually parked his truck and entered the Law and Justice Center. Detective McCormick noticed a storage tote in the bed of Burchill’s truck that matched the storage tote the informant claimed could contain the Jack Skellington mask. Detective McCormick secured Burchill’s truck with evidence tape and contacted a towing company for transport. Officers placed Burchill in custody and formally charged him with both robberies later that afternoon.
¶7 Law enforcement obtained a search warrant for Burchill’s truck and found a Jack Skellington mask that appeared to be the same mask from the Magic Diamond II Casino security footage of the robberies and .380 ammunition. The mask was sent to the Montana State Crime Lab and tested positive for the presence of Burchill’s DNA. After executing a search warrant, Burchill’s truck was repossessed and ended up at an automobile auction lot in Idaho.
¶8 Shortly after Detective McCormick observed Burchill walk into the Law and Justice Center, School Resource Officer Anderson, who was investigating Burchill’s roommates Bradley and Amanda Ledford (Ledfords) for separate, recent commercial burglaries, went to Burchill’s residence to interview them. Law enforcement obtained a search warrant for the residence later that day. The warrant application contained information known to law enforcement, including witness statements, video surveillance, the informant’s testimony, and the information regarding the Ledfords’ suspected burglaries. Inside the residence, law enforcement located clothing consistent with eyewitness accounts of the clothing worn by the suspect in the casino robberies, as well as .380 ammunition.
¶9 On October 21, 2016, the State charged Burchill with two counts of Robbery, one count of Conspiracy to Commit Deceptive Practices, as part of a common scheme or plan, and one count of Criminal Possession of Dangerous Drugs. In January 2017, while the charges were pending, an auction lot employee found a .380 semi-automatic handgun hidden inside a rubber glove and stored inside the door paneling of Burchill’s truck during a routine presale cleaning. The employee also found ammunition and Burchill’s driver’s license. The auction lot immediately contacted Idaho law enforcement who secured and shipped the evidence to the Bozeman Police Department.
¶10 Burchill made several pretrial motions to suppress evidence. He moved to suppress (1) the evidence found at his residence; (2) the evidence found in his truck after the truck was seized pending issuance of the search warrant; and (3) the evidence found in his truck by the auction lot employee after law enforcement released the truck from custody. Following a pretrial hearing, the District Court denied these motions.
¶11 During the four-day trial, Burchill testified that he was not in the area at the time of either robbery. In rebuttal, the State sought to admit evidence of the locations of Burchill’s cell phone at the time of the robberies through the testimony of Detective Vanuka of the Bozeman Police Department. These locations were based on records provided by Verizon Wireless pursuant to a search warrant. Burchill objected to the admission of the cell phone location records, arguing that Detective Vanuka was not qualified to testify. The District Court admitted the cell phone location records over Burchill’s objection. On August 2, 2017, Burchill was convicted on all counts.
¶12 We review a district court’s denial of a motion to suppress evidence to determine whether the district court’s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Elison , 2000 MT 288, ¶ 12, 302 Mont. 228, 14 P.3d 456 (citing State v. Dawson , 1999 MT 171, ¶ 13, 295 Mont. 212, 983 P.2d 916 ).
¶13 We review a district court’s evidentiary ruling for an abuse of discretion. State v. Van Kirk , 2001 MT 184, ¶ 10, 306 Mont. 215, 32 P.3d 735 (citing State v. Gustafson , 2000 MT 364, ¶ 14, 303 Mont. 386, 15 P.3d 944 ). A district court abuses its discretion when it acts arbitrarily, without conscientious judgment, or exceeds the bounds of reason. State v. Franks , 2014 MT 273, ¶ 11, 376 Mont. 431, 335 P.3d 725 (citing State v. Hernandez , 2009 MT 341, ¶ 7, 353 Mont. 111, 220 P.3d 25 ).
¶14 Issue One: Whether the District Court erred when it denied Burchill’s motion to suppress the evidence seized from his residence.
¶15 The Fourth Amendment to the United States Constitution and Article II, Section 11, of the Montana Constitution protect persons against unreasonable searches and seizures. See Elison , ¶ 15. Warrantless searches are considered per se unreasonable under both the United States and Montana Constitutions absent a valid exception.
State v. Hurlbert , 2009 MT 221, ¶ 19, 351 Mont. 316, 211 P.3d 869 (citing State v. Clark , 2008 MT 419, ¶ 22, 347 Mont. 354, 198 P.3d 809 ); State v. McLees , 2000 MT 6, ¶ 10, 298 Mont. 15, 994 P.2d 683 (quoting State v. Hubbel , 286 Mont. 200, 212, 951 P.2d 971, 978 (1997) ). "The integrity of search warrants is essential" for maintaining these constitutional protections. State v. Kasparek , 2016 MT 163, ¶ 12, 384 Mont. 56, 375 P.3d 372.
¶16 A search warrant is obtained by application and must state facts "sufficient to show probable cause to believe an offense has been committed and that evidence of the crime may be found in the place to be searched." State v. Tucker , 2008 MT 273, ¶ 16, 345 Mont. 237, 190 P.3d 1080 (citing § 46-5-221, MCA ; State v. Barnaby , 2006 MT 203, ¶ 30, 333 Mont. 220, 142 P.3d 809 ). Probable cause exists when there is a reasonable belief based on the information contained within the four corners of the search warrant application that an offense "has been, or is being, committed and that the property sought exists at the place designated."
State v. Kuneff , 1998 MT 287, ¶ 22, 291 Mont. 474, 970 P.2d 556 (citation omitted). See also State v. Rinehart , 262 Mont. 204, 211, 864 P.2d 1219, 1223 (1993) (citations omitted).
¶17 Whether the issuance of a search warrant is supported by probable cause is evaluated under the "totality of the circumstances" test. Tucker , ¶ 16 (citing State v. Zito , 2006 MT 211, ¶ 7, 333 Mont. 312, 143 P.3d 108 ; Barnaby , ¶ 29 ). The "totality of the circumstances" test requires "the issuing judicial officer to make a practical, common sense determination, given all the evidence contained in the application for a search warrant, whether a...
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