Submitted on Briefs: July 12, 2017
FROM: District Court of the Third Judicial District, In and
For the County of Anaconda-Deer Lodge, Cause No. DC 13-36
Honorable Ray J. Dayton, Presiding Judge.
Appellant: Paul Sullivan, Measure, Sampsel, Sullivan &
O'Brien, P.C., Kalispell, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Jonathan
M. Krauss, Assistant Attorney General, Helena, Montana Ben
Krakowka, Anaconda-Deer Lodge County Attorney, Anaconda,
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
Appellant Tisha Ann Brunell (Brunell) appeals from a judgment
entered in the Third Judicial District Court, Deer Lodge
County, following her guilty plea. Brunell appeals the denial
of her motion to suppress, which she reserved pursuant to the
terms of the plea agreement and its acceptance by the court.
The parties rely upon the District Court's order denying
Brunell's motion to suppress to present the relevant
facts underlying this appeal. As both parties refer this
Court to those facts, we will accept them as undisputed.
The District Court summarized the facts as follows. On July
3, 2014, Detective Scott King (Detective King) of the
Missoula County Sheriff's Office was informed that
Stanley Isaac Lebeau (Lebeau), an inmate at the Missoula
County Jail, was requesting to speak to law enforcement.
Detective King met with Lebeau and a conversation about
Brunell ensued. Lebeau stated that he knew Brunell as a
result of having previously been incarcerated at the Montana
State Prison (MSP) where Brunell worked as a nurse at the
time. Lebeau informed Detective King that Brunell contacted
him after his release from MSP and sought his assistance in a
felony prosecution against her for sexual intercourse without
consent, transferring illegal articles, and unauthorized
communications. The charges were pending in district court
and arose from Brunell's conduct while employed as a
licensed nurse at the Sanction, Treatment, Assessment,
Revocation and Transition facility (START). Brunell asked
that Lebeau help her to ensure that a witness, Joshua
Svennungsen (Svennungsen), did not testify against her.
Lebeau consented to Detective King conducting a search of his
phone. Detective King's search revealed text messages
sent from Brunell's phone. The messages included
Svennungsen's name, place of employment, and phone
number. Based upon the information reported by Lebeau and the
phone search, Detective King applied for and received a
search warrant to record phone conversations between Lebeau
and Brunell. Lebeau was released from Missoula County Jail
and transported to Missoula County Sheriff's Office.
Lebeau texted Brunell who then called him. Brunell stated she
still wanted to "bump" into Svennungsen and Lebeau
ended the conversation by telling Brunell that if she came to
pick him up they would take care of it.
On July 17, 2013, Lebeau placed a telephone call to Brunell.
Detective King was present and recorded the call. Brunell
told Lebeau that she was aware of what days Svennungsen had
off from work and they confirmed a plan to "bump"
into Svennungsen. The conversation ended with Lebeau and
Brunell planning to meet on July 22, 2013, to travel to
Helena. Brunell did not appear at the planned meeting. The
State filed an Information charging Brunell with the felony
offense of solicitation to tamper with witnesses.
The District Court rejected Brunell's argument that
because Detective King did not directly obtain consent from
the Missoula County Jail prior to communicating with Lebeau,
that the evidence Detective King obtained through the
recorded conversation between Lebeau and Brunell must be
suppressed. The District Court denied Brunell's motion to
suppress, concluding that sufficient facts were presented to
the judge issuing the warrant; Detective King did not commit
an illegal act by communicating with Lebeau at the Missoula
County Jail; and Brunell failed to present sufficient
evidence that Detective King deliberately omitted information
from his affidavit in support of the warrant application. The
District Court also rejected Brunell's entrapment theory.
Brunell pled guilty and was sentenced to a term of five years
at the Montana Women's Prison to run concurrent with the
sentence imposed for the felony sexual intercourse,
transferring of illegal articles, and unauthorized
communications. The only issue Brunell raises on appeal is
whether evidence of the recorded conversation between Lebeau
and Brunell should be suppressed because it was obtained by
Detective King without consent of the person in charge of the
This Court reviews a district court's decision on a
motion to suppress to determine whether the findings of fact
were clearly erroneous and the court's application of the
law was correct. State v. Beaver, 2016 MT 332,
¶ 8, 386 Mont. 12, 385 P.3d 956. This Court will affirm
the district court when it reaches the right result, even if
for the wrong reason. State v. Betterman, 2015 MT
39, ¶ 11 378 Mont. 182, 342 P.3d 971.
Although a warrant was issued authorizing the recording of
Lebeau's communications with Brunell, Brunell maintains
that pursuant to § 45-7-307(2)(a), MCA, any
communication with Lebeau absent consent from the person in
charge of the official detention is unlawful and must be
suppressed as "fruit of the poisonous tree."
Section 45-7-307(2)(a), MCA, provides that "[a] person
commits the offense of unauthorized communication if the
person knowingly or purposely communicates ...