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 S eventh 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 Rund quist, 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 April 17 20122

Justice James C. Nelson delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Ru les, this case is decided by me morandum 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 f

ive years with the Department of Corrections upon his plea of gu ilty to one count of felony possession of dangerous drugs . The court also sentenced Burgad to six months in the Dawson County c orrectional 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 fa iled to look beyond the existence of a conclusory police communication and fa iled to evaluate what objective data and articulable facts officers actually possessed? ¶5 2. Were several of the District Court’s findings reg arding Burgad ’s observed conduct clearly erroneous? ¶6 3. D id 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**3

¶7 On the afternoon of February 21, 2009, Montana HighwayP atrol Trooper Glen Quinnell stopped Burgadf o r speeding on I

nterstate 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, Burgadseemed 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 ov erwhelming odor of air freshener coming from insidethe 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 v isit friendsf

or a week
. However, Trooper Quinnell noticed that inthe 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 v acation, he had been laid off. While Trooper Quinnell was suspicious of Burg

ad, he did not believe that he had sufficient particularized suspicion to justify holding Burgad any longer. Thus, Trooper Quinnel l 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. Thecriminal history showed that Burgad had been convicted of drug offenses in the past, and that the Drug Enforcement Administration (DEA) had an ongoing4

investigation into Burgad’s activities. B ased on that information, Trooper Quinnell contacted Detective Paul Olson with the narcotics unit in Bismarck. ¶11 Although he had heard of Burg ad, Detective Olson did not have any direct knowledge of Burgad’sb ackground. W hen Detective Olson spoke with hisp artner, he learned that Burgad was a known drug dealer in the Bismarck area and that he was known to use heroin and prescription pills. D et ective 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. D etective Olson relayed this information to Trooper Quinnell . He also informed Trooper Quinnellthat Burgad would likely have a large amount of cash on him to use to p urchase narcotics in Oregon. ¶12 As a result of this information, Trooper Quinnell contacted Prairie County Deputy Sheriff Gregory Huber, and asked Deputy Huber t o wat ch for Burgad ’s vehicle as it neared Terry, Montana, and to stop Burgadif he saw Burgad commit a violation
. About thirty miles down the roadfrom where Trooper Quinnel l had pulled Burgadover, Deputy Huber pulledBurgad 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.5

¶14 Based on the canine sniff, Trooper Quinnell informed Burgad that he was going to
se ize the v

ehicle 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. B urg ad 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 paraphernaliaincluding a digital scaleand numerous syringes and Ziplocb ags containing drug residue
. B urgad was charged with two counts of felony possession of dang

erous 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 arg uing that Trooper Quinnell lacked particularized suspicion to stop Burgad or to search his vehicle. I n that
same motion, Burgad arg ued thatTrooper Quinnell failed to read Burgad his Miranda rights prior to questioning him. The District Court denied Burg ad’s motion after a hearing. ¶17 Burgad entered into a plea agreement with the State wherein he agreed to plead gu ilty to one count of felony possession of dangerous drugs and one count of misdemeanor possession of dangerous drugsw hile reserving

h is rig ht to appeal his6

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 c orrectional 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 hav

e 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 11 6 6. We defer to the district courts on mattersof fact

- finding, and we will not disturb a trial court’s findings of fact unless they are clearly erroneous. Kaufman , ¶ 12. I

n addition, we apply the leg al 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
rev iew this application of leg al 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
rev iew legal conclusions and the application of legal standards de novo.” Kaufman , ¶ 12 (emphasis omitted).7

¶20 We conclude in this case that the District Court’s fin dings of fact are supported by substantial evidence and the legal issues are controlled by settled Montana law, which the District Court correctly interpreted. Accordingly, b ased on the totality of the circumstances in this case, we hold that the DistrictC ourt 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