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State v. Burchill

Supreme Court of Montana

December 10, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
DUANE ANGELO BURCHILL, Defendant and Appellant.

          Submitted on Briefs: June 12, 2019

          APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC 16-0368A Honorable Holly Brown, Presiding Judge.

          For Appellant: Jack E. Sands, Attorney at Law, Billings, Montana.

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

          Marty Lambert, Gallatin County Attorney, Bjorn E. Boyer, Deputy County Attorney, Bozeman, Montana.

          OPINION

          James Jeremiah Shea, Justice.

         ¶1 Appellant Duane Angelo Burchill appeals the jury verdict and sentence of the Eighteenth Judicial District Court, Gallatin County, convicting him of two counts of Robbery, in violation of § 45-5-401, MCA; one count of Conspiracy to Commit Deceptive Practices, as part of a common scheme or plan, in violation of §§ 45-6-317 and 45-2-101(8), MCA; and one count of Criminal Possession of Dangerous Drugs, in violation of § 45-9-102, MCA.

         ¶2 We review the following issues on appeal:

Issue One: Whether the District Court erred when it denied Burchill's motion to suppress the evidence seized from his residence.
Issue Two: Whether the District Court erred when it denied Burchill's motion to suppress the evidence found in Burchill's truck by law enforcement.
Issue Three: Whether the District Court erred when it denied Burchill's motion to suppress the evidence located in his truck by an auction lot employee months after the truck was searched and released from law enforcement custody.
Issue Four: Whether the District Court's admission of records containing the location of Burchill's cell phone during the robberies was harmless error.

         ¶3 We affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶4 On September 18, 2016, and again on September 24, 2016, an individual wearing a Jack Skellington[1] mask and brandishing a semi-automatic handgun robbed the Magic Diamond II Casino in Bozeman, Montana. One witness identified the gun used in the first robbery as a .380 semi-automatic handgun. The suspect stole $585 in the first robbery and $899 in the second robbery. After the first robbery, law enforcement used a canine unit to track the suspect, but the canine unit lost the trail. Information regarding the location of where the canine unit lost the suspect's trail and the amounts of money taken during the robberies was never released to the public.

         ¶5 Law enforcement later learned of an informant detained at the Gallatin County Detention Center who claimed to have information about the two casino robberies. When interviewed by law enforcement, the informant identified Burchill as being responsible for the casino robberies. He claimed to have given Burchill a ride on the night of September 18, following the first robbery. Additionally, he claimed to have picked up Burchill at the same area where the canine unit lost the trail. The informant stated that Burchill got in his car carrying nearly $600 and a Jack Skellington mask. The informant told law enforcement that Burchill likely stored the mask at Burchill's residence or in a storage tote in the bed of Burchill's truck.

         ¶6 On the morning of September 28, 2016, law enforcement began the process of obtaining search warrants for Burchill's residence and truck. Detective McCormick of the Bozeman Police Department was leaving the Law and Justice Center to secure Burchill's residence until a search warrant could be obtained when he observed Burchill driving nearby. Burchill eventually parked his truck and entered the Law and Justice Center. Detective McCormick noticed a storage tote in the bed of Burchill's truck that matched the storage tote the informant claimed could contain the Jack Skellington mask. Detective McCormick secured Burchill's ...


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