April 17 2012
DA 11-0155
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 85N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
PAUL BURGAD,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Prairie, Cause No. DC 09-08 Honorable Richard A. Simonton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joslyn Hunt, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender, Corey Rundquist, Law Student, John Wright, Law Student, Helena, Montana
For Appellee:
Steve Bullock, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana
Garry Bunke, Prairie County Attorney, Terry, Montana
Submitted on Briefs: March 28, 2012
Decided: April 17, 2012
Filed:
__________________________________________ Clerk Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 The District Court for the Seventh Judicial District, Prairie County, sentenced Paul
Burgad to five years with the Department of Corrections upon his plea of guilty to one
count of felony possession of dangerous drugs. The court also sentenced Burgad to six
months in the Dawson County correctional facility upon his plea of guilty to one count of
misdemeanor possession of dangerous drugs. The court ordered that the sentences run
concurrently and that both sentences be suspended upon various conditions. Burgad now
appeals the court’s Judgment and Sentencing Order.
¶3 Burgad raises three issues on appeal:
¶4 1. Did the District Court err when it failed to look beyond the existence of a
conclusory police communication and failed to evaluate what objective data and
articulable facts officers actually possessed?
¶5 2. Were several of the District Court’s findings regarding Burgad’s observed
conduct clearly erroneous?
¶6 3. Did the State fail to produce objective data and articulable facts that in their
totality created a particularized suspicion of criminal activity?
Factual and Procedural Background
2 ¶7 On the afternoon of February 21, 2009, Montana Highway Patrol Trooper Glen
Quinnell stopped Burgad for speeding on Interstate 94 near Glendive, Montana. When
Trooper Quinnell asked Burgad where he was headed, Burgad, who was from Bismarck,
North Dakota, replied that he was traveling to Portland, Oregon, to visit some friends.
¶8 Trooper Quinnell later testified that when he first stopped Burgad, Burgad seemed
unusually nervous. Trooper Quinnell claimed that Burgad’s lips were quivering, his
hands were shaking, and his pulse was visible in his neck. In addition, Trooper Quinnell
testified that there was an overwhelming odor of air freshener coming from inside the
vehicle.
¶9 Trooper Quinnell also testified that he believed Burgad’s story was inconsistent
because Burgad initially said that he was on vacation and that he was headed to Portland
to visit friends for a week. However, Trooper Quinnell noticed that in the back seat of
the vehicle, Burgad had only a small suitcase that did not seem consistent with a
week-long trip. When Trooper Quinnell asked Burgad where he worked, Burgad said he
worked for a beer distributor, but, at some point during their conversation, Burgad stated
that he was not actually on vacation, he had been laid off. While Trooper Quinnell was
suspicious of Burgad, he did not believe that he had sufficient particularized suspicion to
justify holding Burgad any longer. Thus, Trooper Quinnell issued Burgad a warning for
speeding and allowed him to continue on his way.
¶10 After the traffic stop, Trooper Quinnell asked dispatch to run a criminal history on
Burgad. The criminal history showed that Burgad had been convicted of drug offenses in
the past, and that the Drug Enforcement Administration (DEA) had an ongoing
3 investigation into Burgad’s activities. Based on that information, Trooper Quinnell
contacted Detective Paul Olson with the narcotics unit in Bismarck.
¶11 Although he had heard of Burgad, Detective Olson did not have any direct
knowledge of Burgad’s background. When Detective Olson spoke with his partner, he
learned that Burgad was a known drug dealer in the Bismarck area and that he was
known to use heroin and prescription pills. Detective Olson’s partner also told him that
the narcotics unit had attempted to set up a controlled buy from Burgad using a
confidential informant, but the deal did not go through. Detective Olson relayed this
information to Trooper Quinnell. He also informed Trooper Quinnell that Burgad would
likely have a large amount of cash on him to use to purchase narcotics in Oregon.
¶12 As a result of this information, Trooper Quinnell contacted Prairie County Deputy
Sheriff Gregory Huber, and asked Deputy Huber to watch for Burgad’s vehicle as it
neared Terry, Montana, and to stop Burgad if he saw Burgad commit a violation. About
thirty miles down the road from where Trooper Quinnell had pulled Burgad over, Deputy
Huber pulled Burgad over for speeding. While Deputy Huber was talking to Burgad,
Trooper Quinnell arrived on the scene.
¶13 Believing that he now had sufficient particularized suspicion to conduct a further
investigation of Burgad, Trooper Quinnell called for a canine unit to conduct a canine
sniff of Burgad’s vehicle. Undersheriff Mike Johnson arrived with his dog within fifteen
minutes of Trooper Quinnell’s request. The dog sniffed Burgad’s vehicle and alerted to
the trunk.
4 ¶14 Based on the canine sniff, Trooper Quinnell informed Burgad that he was going to
seize the vehicle and apply for a warrant to search it. Trooper Quinnell asked Burgad if
there was anything in the trunk that he should know about. Burgad informed him that the
trunk contained $5,000 in cash, a marijuana cigarette, and some used syringes that might
have drug residue on them. Burgad claimed that he had the cash because he is a
professional poker player.
¶15 When the trunk of Burgad’s vehicle was searched some time later pursuant to a
search warrant, the officer conducting the search discovered a marijuana cigarette, $5,000
in cash, and drug paraphernalia including a digital scale and numerous syringes and
Ziploc bags containing drug residue. Burgad was charged with two counts of felony
possession of dangerous drugs in violation of § 45-9-102(6), MCA; one count of
misdemeanor possession of dangerous drugs in violation of § 45-9-102(2), MCA; and
one count of misdemeanor possession of drug paraphernalia in violation of § 45-10-103,
MCA.
¶16 Burgad filed a motion to dismiss and to suppress evidence arguing that Trooper
Quinnell lacked particularized suspicion to stop Burgad or to search his vehicle. In that
same motion, Burgad argued that Trooper Quinnell failed to read Burgad his Miranda
rights prior to questioning him. The District Court denied Burgad’s motion after a
hearing.
¶17 Burgad entered into a plea agreement with the State wherein he agreed to plead
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April 17 2012
DA 11-0155
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 85N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
PAUL BURGAD,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Prairie, Cause No. DC 09-08 Honorable Richard A. Simonton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joslyn Hunt, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender, Corey Rundquist, Law Student, John Wright, Law Student, Helena, Montana
For Appellee:
Steve Bullock, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana
Garry Bunke, Prairie County Attorney, Terry, Montana
Submitted on Briefs: March 28, 2012
Decided: April 17, 2012
Filed:
__________________________________________ Clerk Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 The District Court for the Seventh Judicial District, Prairie County, sentenced Paul
Burgad to five years with the Department of Corrections upon his plea of guilty to one
count of felony possession of dangerous drugs. The court also sentenced Burgad to six
months in the Dawson County correctional facility upon his plea of guilty to one count of
misdemeanor possession of dangerous drugs. The court ordered that the sentences run
concurrently and that both sentences be suspended upon various conditions. Burgad now
appeals the court’s Judgment and Sentencing Order.
¶3 Burgad raises three issues on appeal:
¶4 1. Did the District Court err when it failed to look beyond the existence of a
conclusory police communication and failed to evaluate what objective data and
articulable facts officers actually possessed?
¶5 2. Were several of the District Court’s findings regarding Burgad’s observed
conduct clearly erroneous?
¶6 3. Did the State fail to produce objective data and articulable facts that in their
totality created a particularized suspicion of criminal activity?
Factual and Procedural Background
2 ¶7 On the afternoon of February 21, 2009, Montana Highway Patrol Trooper Glen
Quinnell stopped Burgad for speeding on Interstate 94 near Glendive, Montana. When
Trooper Quinnell asked Burgad where he was headed, Burgad, who was from Bismarck,
North Dakota, replied that he was traveling to Portland, Oregon, to visit some friends.
¶8 Trooper Quinnell later testified that when he first stopped Burgad, Burgad seemed
unusually nervous. Trooper Quinnell claimed that Burgad’s lips were quivering, his
hands were shaking, and his pulse was visible in his neck. In addition, Trooper Quinnell
testified that there was an overwhelming odor of air freshener coming from inside the
vehicle.
¶9 Trooper Quinnell also testified that he believed Burgad’s story was inconsistent
because Burgad initially said that he was on vacation and that he was headed to Portland
to visit friends for a week. However, Trooper Quinnell noticed that in the back seat of
the vehicle, Burgad had only a small suitcase that did not seem consistent with a
week-long trip. When Trooper Quinnell asked Burgad where he worked, Burgad said he
worked for a beer distributor, but, at some point during their conversation, Burgad stated
that he was not actually on vacation, he had been laid off. While Trooper Quinnell was
suspicious of Burgad, he did not believe that he had sufficient particularized suspicion to
justify holding Burgad any longer. Thus, Trooper Quinnell issued Burgad a warning for
speeding and allowed him to continue on his way.
¶10 After the traffic stop, Trooper Quinnell asked dispatch to run a criminal history on
Burgad. The criminal history showed that Burgad had been convicted of drug offenses in
the past, and that the Drug Enforcement Administration (DEA) had an ongoing
3 investigation into Burgad’s activities. Based on that information, Trooper Quinnell
contacted Detective Paul Olson with the narcotics unit in Bismarck.
¶11 Although he had heard of Burgad, Detective Olson did not have any direct
knowledge of Burgad’s background. When Detective Olson spoke with his partner, he
learned that Burgad was a known drug dealer in the Bismarck area and that he was
known to use heroin and prescription pills. Detective Olson’s partner also told him that
the narcotics unit had attempted to set up a controlled buy from Burgad using a
confidential informant, but the deal did not go through. Detective Olson relayed this
information to Trooper Quinnell. He also informed Trooper Quinnell that Burgad would
likely have a large amount of cash on him to use to purchase narcotics in Oregon.
¶12 As a result of this information, Trooper Quinnell contacted Prairie County Deputy
Sheriff Gregory Huber, and asked Deputy Huber to watch for Burgad’s vehicle as it
neared Terry, Montana, and to stop Burgad if he saw Burgad commit a violation. About
thirty miles down the road from where Trooper Quinnell had pulled Burgad over, Deputy
Huber pulled Burgad over for speeding. While Deputy Huber was talking to Burgad,
Trooper Quinnell arrived on the scene.
¶13 Believing that he now had sufficient particularized suspicion to conduct a further
investigation of Burgad, Trooper Quinnell called for a canine unit to conduct a canine
sniff of Burgad’s vehicle. Undersheriff Mike Johnson arrived with his dog within fifteen
minutes of Trooper Quinnell’s request. The dog sniffed Burgad’s vehicle and alerted to
the trunk.
4 ¶14 Based on the canine sniff, Trooper Quinnell informed Burgad that he was going to
seize the vehicle and apply for a warrant to search it. Trooper Quinnell asked Burgad if
there was anything in the trunk that he should know about. Burgad informed him that the
trunk contained $5,000 in cash, a marijuana cigarette, and some used syringes that might
have drug residue on them. Burgad claimed that he had the cash because he is a
professional poker player.
¶15 When the trunk of Burgad’s vehicle was searched some time later pursuant to a
search warrant, the officer conducting the search discovered a marijuana cigarette, $5,000
in cash, and drug paraphernalia including a digital scale and numerous syringes and
Ziploc bags containing drug residue. Burgad was charged with two counts of felony
possession of dangerous drugs in violation of § 45-9-102(6), MCA; one count of
misdemeanor possession of dangerous drugs in violation of § 45-9-102(2), MCA; and
one count of misdemeanor possession of drug paraphernalia in violation of § 45-10-103,
MCA.
¶16 Burgad filed a motion to dismiss and to suppress evidence arguing that Trooper
Quinnell lacked particularized suspicion to stop Burgad or to search his vehicle. In that
same motion, Burgad argued that Trooper Quinnell failed to read Burgad his Miranda
rights prior to questioning him. The District Court denied Burgad’s motion after a
hearing.
¶17 Burgad entered into a plea agreement with the State wherein he agreed to plead
guilty to one count of felony possession of dangerous drugs and one count of
misdemeanor possession of dangerous drugs while reserving his right to appeal his
5 motion to dismiss and to suppress. The District Court sentenced Burgad to five years
with the Department of Corrections for the charge of felony possession of dangerous
drugs, and six months in the Dawson County correctional facility for the charge of
misdemeanor possession of dangerous drugs. The court ordered that the sentences run
concurrently and that both sentences be suspended upon various conditions. Burgad now
Discussion
¶18 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for noncitable memorandum opinions.
¶19 We review a district court’s denial of a motion to suppress evidence to determine
whether the court’s findings of fact are clearly erroneous, and whether the court correctly
applied those findings as a matter of law. State v. Kaufman, 2002 MT 294, ¶ 9, 313
Mont. 1, 59 P.3d 1166. We defer to the district courts on matters of fact-finding, and we
will not disturb a trial court’s findings of fact unless they are clearly erroneous.
Kaufman, ¶ 12. In addition, we apply the legal standard of objective reasonableness in
our particularized suspicion analysis to determine whether the inferences drawn from the
objective facts give rise to a particularized suspicion of wrongdoing. Kaufman, ¶ 11. We
review this application of legal standards to factual findings de novo. Kaufman, ¶ 12.
This bifurcated standard of review “affords appropriate deference to the trial court’s
fact-finding role and responsibility, while providing this Court with the opportunity to
review legal conclusions and the application of legal standards de novo.” Kaufman, ¶ 12
(emphasis omitted).
6 ¶20 We conclude in this case that the District Court’s findings of fact are supported by
substantial evidence and the legal issues are controlled by settled Montana law, which the
District Court correctly interpreted. Accordingly, based on the totality of the
circumstances in this case, we hold that the District Court correctly determined that
Trooper Quinnell had a particularized suspicion of wrongdoing.
¶21 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ MIKE McGRATH /S/ BRIAN MORRIS /S/ JIM RICE /S/ BETH BAKER