                                                                                              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


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¶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


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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.




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¶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


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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

appeals the court’s Judgment and Sentencing Order.

                                       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).


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¶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




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