                                                                                             06/30/2020



                                                                                         Case Number: DA 18-0357

                                          DA 18-0357

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2020 MT 172N


STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

DAVID GARY BURTON,

               Defendant and Appellant.


APPEAL FROM:           District Court of the First Judicial District,
                       In and For the County of Lewis and Clark, Cause No. CDC 2012-16
                       Honorable Kathy Seeley, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Colin M. Stephens, Smith & Stephens, P.C., Missoula, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                       Attorney General, Helena, Montana

                       Leo J. Gallagher, Lewis and Clark County Attorney, Melissa Broch,
                       Deputy County Attorney, Helena, Montana


                                                   Submitted on Briefs: April 15, 2020

                                                              Decided: June 30, 2020


Filed:
                                 sr---6ma•—•f
                       __________________________________________
                                         Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), 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     Appellant David Gary Burton (Burton) appeals from the Findings of Fact,

Conclusions of Law, and Order issued by the First Judicial District Court, Lewis and

Clark County, denying Burton’s Motion to Suppress. We affirm.

¶3     In December 2011, Lewis and Clark County deputies and Helena police officers

were actively investigating a series of property offenses and other crimes occurring in

Helena and the Helena Valley. Officers viewed videotapes and photographs captured at

businesses in Helena and the Helena Valley starting December 17, 2011, with the goal of

finding vehicles and/or persons shown at the businesses that may be involved in the

crimes.

¶4     During the weekend prior to Monday, December 19, 2011, an investigation was

conducted regarding the burglary of a residence in the Helena Valley, from which a

credit card was stolen and subsequently used at Green Meadow Market. Photographic

evidence supplied by Green Meadow Market shows the stolen credit card was used to

buy gas for a dark pickup truck and a Ford Bronco.           An officer who viewed the

photographs of the vehicles recalled having seen a similar truck a week prior when

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responding to a call at a residence somewhere in the Helena Valley, which led him to

search the area for the vehicle. The officer located the truck at Burton’s residence. On

the morning of December 19, 2011, another officer, Deputy Chris Weiss (Weiss), went to

Burton’s house to observe a black Ford truck parked on the side of the residence. Weiss

believed the truck “was a perfect match” to the truck depicted in the Green Meadow

Market photograph, with “the same rims, same aluminum saddle, toolbox, [and] black

extended cab.” The residence was close to both Green Meadow Market and the house

where the credit card was stolen. After determining that Burton was the registered owner

of the truck, Weiss made contact with Burton’s wife, Mindi Harvey (Harvey), at the

residence sometime between 10:00 and 10:30 a.m. Harvey told Weiss that Burton was

out running errands, so Weiss gave Harvey his business card and asked that Burton call

Weiss upon returning.

¶5    Weiss then continued his investigation of the offenses by viewing videotape taken

at Green Meadow Market; learning Burton was on probation and was supervised by

probation officer Thomas Chvilicek (Chvilicek); and viewing Burton’s driver’s license

photograph.    Weiss directed two other deputies, Andrew Blythe (Blythe) and

Eric Gilbertson (Gilbertson), to go keep an eye on Burton’s truck and residence.

¶6    As Blythe and Gilbertson sat watching Burton’s residence and the truck, they

observed a white male arriving in a white sedan. The male exited the vehicle and walked

toward the house. As Blythe and Gilbertson sat, watched, and listened, they heard

dispatch notify Weiss that Burton was on the telephone in response to Weiss’s request

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that Burton call. Weiss did not take the call, as he was on the phone or radio with

someone else. Shortly thereafter, the same male came back to the white sedan in the

driveway of the residence, got in the vehicle, and left. As Weiss was pulling up to the

residence behind Blythe and Gilbertson, Blythe reported to Weiss by radio, “That white

vehicle that just passed us is going to be him.” Weiss responded, “Go stop him.”

¶7    Burton was stopped by use of top lights on Blythe and Gilbertson’s vehicle, as

well as Weiss’s vehicle, which followed closely behind. Blythe approached the driver’s

side of the white sedan, asked for identification, received identification, and confirmed

the driver was Burton. When Blythe told Burton that the police wanted to talk to him,

Burton immediately stated that he had “called Chris Weiss back.” Weiss then stepped

forward and told Burton to return to his residence. During the stop, Gilbertson assumed

the “cover” role by approaching Burton’s vehicle from the rear passenger side where he

observed license plates in plain view, lying on the rear passenger floorboard. Upon

running the plate number and then the plate tab number affixed to the plates, Gilbertson

learned that the plates were associated with a 1988 tan and blue Ford Bronco previously

owned by Burton.

¶8    Burton drove the sedan back to the residence as Blythe, Gilbertson, and Weiss

followed. At the residence, Burton and the deputies waited until Chvilicek, Burton’s

probation officer, arrived.    Chvilicek had supervised Burton on probation since

February or March 2011, and he knew Burton from prior contacts at the probation office.

Burton was sentenced in January 2008 in Jefferson County for the offense of burglary

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and had signed conditions of probation related to his sentence. Those conditions included

search authority and a prohibition regarding possession or consumption of drugs and

alcohol. On November 23, 2011, Burton provided the probation office with a monthly

report listing his vehicles as a blue 1988 Ford Bronco, a black 1990 Ford 250 truck, and a

white 2001 Nissan Altima. Chvilicek had personally seen Burton driving a white Nissan

to the probation office, and the white sedan in which Burton was stopped on

December 19, 2011, was a white 2001 Nissan.

¶9    After Chvilicek arrived at Burton’s residence, Burton was read his Miranda rights,

and invoked his right not to answer questions without an attorney present.          Upon

observing Burton, Chvilicek believed Burton was under the influence of drugs. Chvilicek

ordered searches of the white sedan, the truck, and the residence. Large sums of cash and

the old Bronco license plates were found in the white Nissan.          Chvilicek ordered

impoundment of Burton’s black Ford truck and had the officers arrest Burton for

probation violations.    Once at the jail, a urinalysis revealed the presence of

methamphetamines and tetrahydrocannabinol (THC) in Burton’s system.             Chvilicek

returned to Burton’s residence later that same day and again the next morning to conduct

more thorough searches.       Those searches revealed more evidence of Burton’s

involvement in various crimes.

¶10   In 2012, Burton was charged by information in Lewis and Clark County with

Robbery and property offenses.      An amended information filed by the State added

charges for Aggravated Kidnapping, Sexual Intercourse Without Consent, Burglary, and

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Theft. The State later filed a second amended information removing the Robbery count

and modifying the Burglary counts because Burton was charged in a separate federal case

with offenses relating to those crimes. The second amended information charged Burton

with Deceptive Practices (Count 1); Burglary (Counts 2, 4, and 6); misdemeanor Theft

(Counts 3 and 5); Aggravated Kidnapping (Count 7); Sexual Intercourse Without

Consent (Count 8); and felony Theft (Counts 9 and 10, charged in the alternative). Upon

Burton’s request, the District Court severed Counts 6, 7, and 8 for purposes of trial.

¶11    In Burton’s federal case, he moved to suppress evidence obtained by law

enforcement as the result of what he claimed to be an unlawful investigative traffic stop.

Based on the evidence presented, the federal district court held that the officers involved

did not possess the level of reasonable suspicion necessary under the Fourth Amendment

of the United States Constitution to justify an investigative stop of Burton’s vehicle.

¶12    In District Court, following the federal district court’s suppression ruling, Burton

likewise moved to suppress evidence seized from the car he was driving when

apprehended, and evidence seized from his house.           Burton argued that the federal

suppression order should be the basis for suppression of the same evidence in his state

court trial. Burton did not identify any specific item or items of evidence that should be

suppressed.   Following an evidentiary hearing on Burton’s motion to suppress, the

District Court disagreed, holding that “Montana law and the facts of this case make

wholesale suppression of evidence improper. Different items of evidence, discovered at




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different times and in different ways, must be discussed in light of Fourth Amendment

law to determine admissibility.”

¶13    Burton appeals, arguing that the District Court erred in denying his motion to

suppress evidence seized as a result of the investigative stop. Burton also raises two

issues for the first time on appeal: (1) that his probation officer lacked authority to seize

his truck; and (2) that the District Court erred by failing to inform potential jurors of the

statutory requirement that jurors be “a resident for at least 30 days of the state and of

the . . . county[.]” Section 3-15-301(2), MCA. Burton argues that the newly raised issues

are structural, thereby warranting plain error review.         We first address Burton’s

arguments regarding the motion to suppress.

¶14    This Court reviews the denial of a motion to suppress to determine whether the

district court’s findings of fact are clearly erroneous and whether the court correctly

interpreted and applied the law to those facts. State v. Dupree, 2015 MT 103, ¶ 8,

378 Mont. 499, 346 P.3d 1114. A court’s determination that particularized suspicion

exists is a question of fact reviewed for clear error. Dupree, ¶ 8. A finding of fact is

clearly erroneous if it is not supported by substantial evidence, if the court

misapprehended the effect of the evidence, or if our review of the record leaves us with a

definite and firm conviction that a mistake has been made. Dupree, ¶ 8.

¶15    Both the Fourth Amendment of the United States Constitution and Article II,

Section 11 of the Montana Constitution protect citizens from unreasonable searches and

seizures by requiring police officers and other government officials to obtain a validly

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issued warrant prior to conducting a search or seizure of an individual. Absent the

meeting of an exception to the warrant requirement, searches and seizures

conducted without a valid warrant are considered per se unreasonable. Dupree, ¶ 19.

One such exception to the warrant requirement is the investigative stop.             Under

§ 46-5-401(1), MCA, law enforcement officers are required to have a “particularized

suspicion” that the person in question “has committed, is committing, or is about to

commit an offense” prior to effecting an investigative stop.       To have particularized

suspicion for an investigative stop, the officer must be possessed of: (1) objective data

and articulable facts from which he or she can make certain reasonable inferences; and

(2) a resulting suspicion that the person to be stopped has committed, is committing, or is

about to commit an offense. State v. Wagner, 2013 MT 159, ¶ 10, 370 Mont. 381,

303 P.3d 285. Where a defendant has filed a motion challenging the legality of a stop,

the State must show that there was objective data from which the officer could make

inferences and deductions of some sort of criminal activity. Wagner, ¶ 10. Whether the

officer had particularized suspicion is evaluated under the totality of the circumstances

confronting the officer at the time of the stop, and requires consideration of the quantity

or content of the information available to the officer and the quality or degree of

reliability of that information. Wagner, ¶ 10.

¶16    In the present case, a review of the totality of the circumstances presented to the

District Court shows that the officers who stopped Burton possessed the requisite

particularized suspicion necessary to effectuate a valid investigative stop of Burton in the

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white sedan. In contrast to the evidence presented in federal court on Burton’s federal

motion to suppress, the evidentiary hearing on Burton’s state motion to suppress revealed

vastly different, supplementary information.    The first finding of the District Court

provides:

      Comparison of the record created in this Court with the transcript of the
      federal proceedings establishes that the evidence before the federal court
      was vastly different, not because the witnesses testified differently, but
      because different questions were asked, different witnesses were called,
      different items of evidence were admitted, and different attorneys presented
      to the Court.

Upon our review of the record, we agree with the District Court that the evidence

presented on Burton’s motion to suppress reveals that the investigative stop was lawful

and in accordance with Montana law.

¶17   On December 19, 2011, officers stopped Burton in his vehicle in an attempt to

identify him. The stop was undisputedly of a nature “to obtain or verify an account of the

person’s presence or conduct or to determine whether to arrest the person[.]”

Section 46-5-401(1), MCA. All the officers testified at the evidentiary hearing regarding

their knowledge, observations, and inferences prior to the stop of Burton on

December 19, 2011. As Blythe and Gilbertson were watching Burton’s residence and the

truck, they knew the suspect truck was registered to Burton and that Weiss wanted to talk

to Burton. They knew from surveillance photographs that the person who used the stolen

credit card at Green Meadow Market was a white male. They did not have a physical

description of Burton or other knowledge of his appearance, but they saw that the driver

of the white sedan was a white male. When Blythe stated on his radio to Weiss,
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“That white vehicle that just passed us is going to be him,” Blythe was expressing that

the person in the white vehicle was the person who had arrived to, and was now leaving,

Burton’s residence. Weiss believed it to be a confirmation that it was Burton and ordered

the stop of the vehicle. According to Weiss’s testimony, had he not believed Blythe was

confirming that Burton was driving, he would not have ordered the stop at that time.

According to Gilbertson, had Weiss not ordered the stop, it would not have happened.

Nonetheless, the officers would have followed the car and ultimately stopped Burton

once they verified his identity. The misunderstanding of Blythe referring to “him” as the

person Blythe and Gilbertson watched arrive at the residence in the white Nissan and

potentially enter the residence before returning to the vehicle, while Weiss referred to

“him” as Burton, does not negate the entirety of circumstances that established

particularized suspicion.

¶18    Viewed objectively, the observations of all officers and the evidence compiled

show that the stop of the driver of the white Nissan was based on the

particularized suspicion that he was involved in the offenses being investigated.

Section 46-5-401(1), MCA. Specifically, the white male arrived at the residence of

probationer Burton, where Burton’s truck was parked, and where Burton was expected to

return after running errands. Burton’s truck had been identified as a probable match to

the one at Green Meadow Market, where a stolen credit card was used to purchase gas for

the truck. The person arriving at Burton’s residence was a white male, consistent with

the photographic and videotape evidence taken at Green Meadow Market. A call was

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made by Burton to Weiss during the short time period that the white male was at Burton’s

residence, where Weiss had left his card and requested that Burton call upon his return.

These facts provided the objective basis for stopping the white Nissan driven by the white

male, who did, in fact, turn out to be Burton.

¶19    Following the stop of Burton on December 19, 2011, officers promptly confirmed

his identity and informed him of the reason for the stop, pursuant to § 46-5-401(1), MCA.

At that point, Burton indicated his willingness to talk to the officers, stating that he had

returned Weiss’s phone call. Burton voluntarily drove, by himself, the short distance

back to his residence with officers following. Given the evidence presented in the record,

the investigative stop was made in accordance with Montana law, and the District Court

was correct to deny Burton’s motion to suppress.

¶20    Montana law also provides that evidence need not be suppressed if the evidence at

issue would inevitably be discovered.       See State v. Pearson, 2011 MT 55, ¶ 24,

359 Mont. 427, 251 P.3d 152 (providing that the doctrine of inevitable discovery is

applied when investigatory procedures were already in progress and the lawful

investigation eventually would have revealed the evidence obtained). “This Court has

made clear that it must appear ‘as certainly as night follows day’ that the evidence would

have been discovered without reference to the violation of the defendant’s rights.”

Pearson, ¶ 24. In the present case, the evidence found in the white Nissan would have

inevitably been found in the course of the investigation. It is undisputed that Burton’s

status as a probationer gave his probation officer broad authority to search, investigate,

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and consider Burton’s activities and belongings. The officers testified that, had the stop

not occurred when it did, they would have continued to follow Burton until he stopped of

his own accord and then approached. While it may have taken more time to contact

Burton and the car, all evidence established that the investigation would have continued

and both Burton and the car would have been located. The white Nissan was registered

in Harvey’s name, and it was listed on probation documents provided by Burton to

Chvilicek. The evidence supports our conclusion that Burton would have been stopped,

and his vehicle searched, through the course of the investigation.

¶21    Finally, we briefly address the two arguments raised by Burton for the first time

on appeal. Burton argues two structural errors in the District Court proceedings: (1) that

his probation officer lacked authority to seize his truck; and (2) that the District Court

erred by failing to inform potential jurors of the statutory requirement that jurors be

“a resident for at least 30 days of the state and of the . . . county[.]”

Section 3-15-301(2), MCA. Burton urges this Court to apply plain error review to these

issues regardless of Burton’s failure to object in the proceedings below. We decline.

This Court has consistently held that it generally will not consider issues raised for the

first time on appeal. State v. Taylor, 2010 MT 94, ¶ 12, 356 Mont. 167, 231 P.3d 79.

¶22    As to the first argument, Burton has failed to establish that failure to review his

claim about the seizure of his truck under the plain error doctrine would result in a

fundamental miscarriage of justice. He concedes that officers lawfully searched his truck

and home pursuant to his probation conditions. See State v. Beaudry, 282 Mont. 225,

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228, 937 P.2d 459, 460-61 (1997) (A “probation officer may search a probationer’s

residence without a warrant so long as the officer has reasonable cause for the search.”).

The truck was in plain view of the officers and was implicated in a crime. The plain view

doctrine permits the seizure of evidence “without a warrant—so long as the evidence can

be plainly seen by the officer, the incriminating nature of the evidence is immediately

apparent, and the officer has a lawful right of access to the evidence.”

State v. Lewis, 2007 MT 295, ¶ 24, 340 Mont. 10, 171 P.3d 731. The officers had the

authority to access and search the truck, and the incriminating nature was immediately

apparent because gas was purchased for the truck using a stolen credit card, and the tires

on the truck appeared to match tire tracks left at the scene of a suspected burglary and

kidnapping. Because the State had authority to search the truck and seize evidence in

plain view, Burton failed to demonstrate that he would suffer a manifest miscarriage of

justice if this Court declined to review his claim.

¶23    As to Burton’s newly raised argument regarding the District Court’s failure to

discuss with potential jurors the statutory residence requirement, we likewise decline to

conduct plain error review. Burton did not raise any objection to the District Court’s

omission of the residency requirement at trial; nor did Burton ask jurors questions about

their residency during voir dire. Burton waived his challenge to the competency of the

jury panel by failing to object in District Court. Comm’r of Political Practices for Mont.

v. Wittich, 2017 MT 210, ¶ 61, 388 Mont. 347, 400 P.3d 735 (“We have long held that




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the ‘general rule is that, by failing to challenge or object, a party waives an irregularity in

the impaneling of a jury.’”).

¶24    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. This appeal

presents no constitutional issues, no issues of first impression, and does not establish new

precedent or modify existing precedent.

¶25    Affirmed.


                                                   /S/ LAURIE McKINNON


We concur:

/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR




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