Submitted on Briefs: June 12, 2019
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.
Appellant: Jack E. Sands, Attorney at Law, Billings, Montana.
Appellee: Timothy C. Fox, Montana Attorney General, Mardell
Ployhar, Assistant Attorney General, Helena, Montana
Lambert, Gallatin County Attorney, Bjorn E. Boyer, Deputy
County Attorney, Bozeman, Montana.
Jeremiah Shea, Justice.
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.
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
Issue Four: Whether the District Court's admission of
records containing the location of Burchill's cell phone
during the robberies was harmless error.
AND PROCEDURAL BACKGROUND
On September 18, 2016, and again on September 24, 2016, an
individual wearing a Jack Skellington 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
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.
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 ...