NO. 96-188 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

DAVID EUGENE BOESCR, 

Defendant and Appellant. 

APPEALPROM: District Court of theTwenty-First Judicial District, 

In and for the County of Ravalli, 

The Honorable Jeffrey Langton, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

David E. Boesch, Kahului, ~awaii, Pro Se. 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

Patricia J. Jordan, Ass't Attorney General, 

Helena, Montana 

George H. Corn, Ravalli County Attorney, 

Hamil ton, Montana 

K 

Submitted on Briefs: October 24, 1996 

7.; 

;. Decided: November 7, 1996 
Justice Karla M. Gray delivered the Opinion of the Court 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1995 Internal Operating Rules, the following decision shall not be 

cited as precedent and shall be published by its filing as a public 

document with the Clerk of the Supreme Court and by a report of its 

result to Montana Law Week, State Reporter and West Publishing 

Company. 

David Eugene Boesch (Boesch) appeals from the judgment and 

sentence entered by the Twenty-First Judicial District Court, 

Ravalli County, on his guilty plea to the felony charge of criminal 

possession of dangerous drugs, having reserved the right to appeal 

the denial of his pretrial motion to suppress evidence. We affirm. 

We restate the issues on appeal as follows: 

1. Did the District Court err in finding that law enforcement 

officers had a particularized suspicion to stop Boesch and, on that 

basis, in denying his motion to suppress? 

2. Did the District Court err in concluding that Boesch's 

constitutional right to be free from unreasonable searches and 

seizures was not violated? 

The following summarized facts concerning this case, 

unchallenged by Boesch in this appeal, are taken from the District 

Court's order denying Boesch's motion to suppress. In the early 

morning hours of November 23, 1994, Ravalli County Sheriff's Deputy 

Clint Eckhardt (Eckhardt) was advised, via dispatch transmission, 

that a private citizen reported having seen a yellow car parked 
along the side of U.S. Highway 93, pointing south, and containing 

two apparently intoxicated people. Eckhardt requested that the 

Stevensville Police Department (SPD) respond while he travelled 

toward the vehicle; SPD Officer Lance Foster (Foster) responded. 

Foster located the vehicle parked as described by the private 

citizen. Boesch was sitting behind the steering wheel, fumbling 

with keys near the steering column. According to Foster, Boesch 

was slow in answering questions, and Foster detected the odors of 

wine and vomit emanating from the vehicle. He observed a partially 

empty wine jug on the passenger's side floor and what appeared to 

be red-colored vomit on the pavement by the driver's side door. 

Foster also observed a female passenger who, in his opinion, 

appeared intoxicated. He advised Boesch that a sheriff's deputy 

was responding and wanted to interview Boesch. 

On arrival at the scene, Eckhardt noticed the wine bottle in 

the vehicle and the odors. Eckhardt told Boesch to cease 

attempting to start the vehicle and to exit the vehicle. Eckhardt 

directed Boesch to perform field sobriety tests and, when Boesch 

failed the tests, arrested him for driving under the influence of 

alcohol. At that point, Boesch was searched and Eckhardt found a 

plastic baggie containing what he believed to be hashish and a 

container with a number of squares of LSD. Eckhardt placed Boesch 

in his patrol car and returned to interview the passenger, Judy 

Perkins (Perkins), whom he also believed to be intoxicated. 

During a patdown search of Perkins, Eckhardt located what 

appeared to be a marijuana pipe and placed Perkins in the patrol 
car with Boesch. As Perkins had exited the Boesch vehicle, 

Eckhardt noticed various items in plain view between the seats. 

Those items included a clay marijuana pipe, a backpack with a paper 

bag sticking out of it which contained two plastic bags full of 

marijuana, a bag containing a block of hashish, a film canister 

containing three squares of what was believed to be LSD and several 

other small paper bags containing marijuana wrapped in plastic. An 

empty wine bottle was observed behind the passenger's seat. 

Eckhardt also noticed apparent marijuana residue and leaf, together 

with Zigzag cigarette papers and rollers, on the dashboard. 

The State of Montana (State) subsequently charged Boesch, by 

information, with two felony counts of criminal possession of 

dangerous drugs (hashish and LSD) and one misdemeanor count of 

driving or being in actual physical control of a vehicle on a way 

of this state open to the public while under the influence of 

alcohol and/or drugs (DUI). Boesch pleaded not guilty and his 

counsel filed a motion to suppress the evidence seized from 

Boesch's person and vehicle at the time of his arrest, on statutory 

and constitutional grounds. The District Court denied the motion 

to suppress and Boesch's counsel was allowed to withdraw from 

further representation. Boesch subsequently waived his right to 

counsel and the District Court appointed standby counsel. 

Thereafter, Boesch and the State entered into a plea agreement 

pursuant to which Boesch would plead guilty to possession of 

dangerous drugs (LSD), the State would move to dismiss the other 

drug charge (hashish) and the DUI charge, the State would recommend 
a 5-year suspended sentence subject to certain terms and 

conditions, and Boesch would reserve his right to appeal the denial 

of his motion to suppress. The District Court accepted the change 

of plea and ordered a presentence investigation report. 

A sentencing hearing was held on February 7, 1996. The court 

advised that it was not inclined to follow the sentencing 

recommendations contained in the plea agreement and, therefore, 

that Boesch was entitled to withdraw his guilty plea. Boesch 

declined to withdraw the plea and agreed to accept the sentence the 

court described. 

On February 23, 1996, the District Court entered judgment and 

sentence on Boesch's conviction of the offense of felony criminal 

possession of dangerous drugs. Boesch appeals, appearing pro se. 

At the outset, it is appropriate to comment on the matters 

Boesch purports to raise. Boesch's brief in this appeal is an 

amalgam of so-called spiritual precedent, pronouncements about 

"natural laws and responsibilities" and assertions regarding "nonpositive legislation," liberally sprinkled with Latin phraseology. 

The gist of it all appears to be Boesch's assertion of a right to 

use drugs pursuant to God-given law, "natural law," and his 

constitutional right to freedom of religion. 

Only the District Court's denial of Boesch's motion to 

suppress is before us in this appeal. That motion was grounded on 

the alleged absence of particularized suspicion to stop and 

investigate him which is required by § 46-5-401, MCA, and this 

Court's cases thereunder, and the search and seizure provisions of 
the United States and Montana Constitutions. Absent the existence 

of circumstances not before us here, assertions of error not 

properly raised or preserved in the trial court 11 not be 

considered by this Court on appeal. See § 46-20-701, MCA. 

Therefore, we decline to address the referenced matters Boesch 

raises in his brief on appeal. 

Did the District Court err in finding that law 

enforcement officers had a particularized suspicion to 

stop Boesch and, on that basis, in denying his motion to 

suppress? 

Section 46-5-401, MCA, authorizes a peace officer to stop a 

person or vehicle observed in circumstances that create a 

particularized suspicion the person has committed, is committing or 

is about to commit an offense. Whether a particularized suspicion 

existed is a questi~n of fact which depends or1 the totaity of the 

circumstances. State .J. Reynolds (1995), 272 Mont. 46, 50, 899 

P.2d 540, 542-43. Here, ~he District Court analyzed the facts 

surrounding the incident, addressed the applicable sratute and 

cases, and found that a particularized suspicion existed to support 

the officers' investigation 

Boesch does not challenge the facts as found by the District 

Court. Nor does he advance any legal authority interpreting § 46- 

5-401, MCA, which would render the District Court's appiication of 

the law to those facts erroneous. An appellant carries the burden 

of establishing error by the trial court. Moreover, Rule 23, 

M.R.App.P., requires the appellant to cite to authority which 

supports the position being advanced on appeal. Boesch has failed 

to do so. Therefore, we conclude that the District Court did not 

6 
err in finding that a particularized suspicion existed for the stop 

and investigation of Boesch and in denying Boesch's motion to 

suppress. 

Did the District Court err in concluding that Boesch's 

constitutional right to be free from unreasonable 

searches and seizures was not violated? 

Boesch's motion to suppress also was based on a denial of his 

right, under both the United States and Montana Constitutions, to 

be free from unreasonable searches and seizures. Specifically, he 

contended that the bag of unlawful substances seized from his 

automobile was not located in plain view and that no other 

exception to the warrant requirement applied. The District Court 

analyzed Boesch's argument, as presented, and concluded that his 

constitutional rights had not been violated. 

For the same reasons set forth above with regard to issue 

one, we need not address this issue on the merits. In addition, 

the LSD which formed the basis for the one count of criminal 

possession of dangerous drugs to which Boesch pleaded guilty was 

that found on his person, not in his vehicle. The only basis on 

which that evidence was challenged was 5 46-5-401, MCA, and we have 

concluded above that the District Court did not err in that regard. 

Thus, even a successful challenge to the evidence seized from 

Boesch's vehicle would not impact the judgment and sentence 

resulting from Boesch's guilty plea to, and conviction of, the 

felony offense of criminal possession of dangerous drugs (LSD). 

Affirmed . 
We concur: