STATE of Montana, Plaintiff and Appellee, v. Duane Angelo BURCHILL, Defendant and Appellant.
¶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 truck with evidence tape and contacted a towing company for transport. Officers placed Burchill in custody and formally charged him with both robberies later that afternoon.
¶7 Law enforcement obtained a search warrant for Burchill's truck and found a Jack Skellington mask that appeared to be the same mask from the Magic Diamond II Casino security footage of the robberies and .380 ammunition. The mask was sent to the Montana State Crime Lab and tested positive for the presence of Burchill's DNA. After executing a search warrant, Burchill's truck was repossessed and ended up at an automobile auction lot in Idaho.
¶8 Shortly after Detective McCormick observed Burchill walk into the Law and Justice Center, School Resource Officer Anderson, who was investigating Burchill's roommates Bradley and Amanda Ledford (Ledfords) for separate, recent commercial burglaries, went to Burchill's residence to interview them. Law enforcement obtained a search warrant for the residence later that day. The warrant application contained information known to law enforcement, including witness statements, video surveillance, the informant's testimony, and the information regarding the Ledfords’ suspected burglaries. Inside the residence, law enforcement located clothing consistent with eyewitness accounts of the clothing worn by the suspect in the casino robberies, as well as .380 ammunition.
¶9 On October 21, 2016, the State charged Burchill with two counts of Robbery, one count of Conspiracy to Commit Deceptive Practices, as part of a common scheme or plan, and one count of Criminal Possession of Dangerous Drugs. In January 2017, while the charges were pending, an auction lot employee found a .380 semi-automatic handgun hidden inside a rubber glove and stored inside the door paneling of Burchill's truck during a routine presale cleaning. The employee also found ammunition and Burchill's driver's license. The auction lot immediately contacted Idaho law enforcement who secured and shipped the evidence to the Bozeman Police Department.
¶10 Burchill made several pretrial motions to suppress evidence. He moved to suppress (1) the evidence found at his residence; (2) the evidence found in his truck after the truck was seized pending issuance of the search warrant; and (3) the evidence found in his truck by the auction lot employee after law enforcement released the truck from custody. Following a pretrial hearing, the District Court denied these motions.
¶11 During the four-day trial, Burchill testified that he was not in the area at the time of either robbery. In rebuttal, the State sought to admit evidence of the locations of Burchill's cell phone at the time of the robberies through the testimony of Detective Vanuka of the Bozeman Police Department. These locations were based on records provided by Verizon Wireless pursuant to a search warrant. Burchill objected to the admission of the cell phone location records, arguing that Detective Vanuka was not qualified to testify. The District Court admitted the cell phone location records over Burchill's objection. On August 2, 2017, Burchill was convicted on all counts.
STANDARDS OF REVIEW
¶12 We review a district court's denial of a motion to suppress evidence to determine whether the district court's findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Elison, 2000 MT 288, ¶ 12, 302 Mont. 228, 14 P.3d 456 (citing State v. Dawson, 1999 MT 171, ¶ 13, 295 Mont. 212, 983 P.2d 916).
¶13 We review a district court's evidentiary ruling for an abuse of discretion. State v. Van Kirk, 2001 MT 184, ¶ 10, 306 Mont. 215, 32 P.3d 735 (citing State v. Gustafson, 2000 MT 364, ¶ 14, 303 Mont. 386, 15 P.3d 944). A district court abuses its discretion when it acts arbitrarily, without conscientious judgment, or exceeds the bounds of reason. State v. Franks, 2014 MT 273, ¶ 11, 376 Mont. 431, 335 P.3d 725 (citing State v. Hernandez, 2009 MT 341, ¶ 7, 353 Mont. 111, 220 P.3d 25).
DISCUSSION
¶14 Issue One: Whether the District Court erred when it denied Burchill's motion to suppress the evidence seized from his residence.
¶15 The Fourth Amendment to the United States Constitution and Article II, Section 11, of the Montana Constitution protect persons against unreasonable searches and seizures. See Elison, ¶ 15. Warrantless searches are considered per se unreasonable under both the United States and Montana Constitutions absent a valid exception. State v. Hurlbert, 2009 MT 221, ¶ 19, 351 Mont. 316, 211 P.3d 869 (citing State v. Clark, 2008 MT 419, ¶ 22, 347 Mont. 354, 198 P.3d 809); State v. McLees, 2000 MT 6, ¶ 10, 298 Mont. 15, 994 P.2d 683 (quoting State v. Hubbel, 286 Mont. 200, 212, 951 P.2d 971, 978 (1997)). “The integrity of search warrants is essential” for maintaining these constitutional protections. State v. Kasparek, 2016 MT 163, ¶ 12, 384 Mont. 56, 375 P.3d 372.
¶16 A search warrant is obtained by application and must state facts “sufficient to show probable cause to believe an offense has been committed and that evidence of the crime may be found in the place to be searched.” State v. Tucker, 2008 MT 273, ¶ 16, 345 Mont. 237, 190 P.3d 1080 (citing § 46-5-221, MCA; State v. Barnaby, 2006 MT 203, ¶ 30, 333 Mont. 220, 142 P.3d 809). Probable cause exists when there is a reasonable belief based on the information contained within the four corners of the search warrant application that an offense “has been, or is being, committed and that the property sought exists at the place designated.” State v. Kuneff, 1998 MT 287, ¶ 22, 291 Mont. 474, 970 P.2d 556 (citation omitted). See also State v. Rinehart, 262 Mont. 204, 211, 864 P.2d 1219, 1223 (1993) (citations omitted).
¶17 Whether the issuance of a search warrant is supported by probable cause is evaluated under the “totality of the circumstances” test. Tucker, ¶ 16 (citing State v. Zito, 2006 MT 211, ¶ 7, 333 Mont. 312, 143 P.3d 108; Barnaby, ¶ 29). The “totality of the circumstances” test requires “the issuing judicial officer to make a practical, common sense determination, given all the evidence contained in the application for a search warrant, whether a fair probability exists that contraband or evidence of a crime will be found in a particular place.” Tucker, ¶ 16 (citing Zito, ¶ 7; Barnaby, ¶ 29; Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)). This test does not demand prima facie showing of criminal activity, nor does it require an individual report meet the requirements of a particular test. See Barnaby, ¶ 39 (citing Gates, 462 U.S. at 230-31, 103 S. Ct. at 2328) (“The critical question when evaluating probable cause is not whether an individual report meets the requirements of a particular test, but whether the application as a whole states sufficient facts to support a determination of probable cause.”) (emphasis added). Thus, factors with little individual probative value may, when combined with other information, lend support for a determination of substantial evidence to conclude probable cause exists. Barnaby, ¶ 39 (citing State v. Holstine, 260 Mont. 310, 315, 860 P.2d 110, 113 (1993)).
¶18 Burchill argues the evidence seized from his home pursuant to the search warrant should have been suppressed because the search warrant application contained illegally-obtained information. Burchill asserts that basing the search warrant application on information obtained inside the home while simultaneously investigating Burchill's roommates invalidates the warrant. We disagree.
¶19 When a search warrant is based on an application containing illegally-obtained information, this Court will excise that information and review only the remaining information de novo to determine whether probable cause exists to support a search warrant. See Kuneff, ¶ 19. If the remaining information constitutes probable cause, then the search warrant retains its validity and the evidence seized pursuant to it need not be suppressed. See Kuneff, ¶¶ 19, 22.
¶20 Because School Resource Officer Anderson—who interviewed the Ledfords at the residence they shared with Burchill prior to execution of the search warrant—did not testify at the suppression hearing, our ability to review his interaction with the Ledfords and determine whether the information relative to the Ledfords was illegally obtained is similarly limited. However, even if we excise the information regarding the Ledfords from the search warrant application for Burchill's residence, the remaining information, when viewed under a totality of the circumstances, still supports a determination of probable cause such that a reasonable person would believe evidence of the casino robberies would be found in Burchill's residence.2 See Kuneff, ¶¶ 19-22; Tucker, ¶ 16.
¶21 The remaining information in the warrant application was derived from three sources, none of which Burchill challenges on appeal: witness accounts of the casino robberies, the informant's corroborated testimony, and law enforcement's direct observation of Burchill's truck outside the Law and Justice Center. The informant knew the amount of money taken from the first robbery. The location where the informant stated he picked up Burchill shortly after the first robbery was consistent with where the canine unit lost the suspect's scent trail. Neither of these details were released to the public. Furthermore, the informant explicitly identified Burchill's residence and a storage tote in Burchill's truck as locations where Burchill likely stored the mask or the gun. This statement was corroborated when law enforcement observed a locked storage tote in the bed of Burchill's truck. Considering the corroboration and specificity of this information, we conclude that, even in the absence of any reference to the Ledfords, the search warrant application for Burchill's residence contained the requisite probable cause. Therefore, the search warrant was valid, and the District Court did not err in denying the motion to suppress evidence seized.
¶22 Issue Two: Whether the District Court erred when it denied Burchill's motion to suppress evidence found in Burchill's truck by law enforcement.
¶23 The “automobile exception” to the search warrant requirement is no longer a recognized exception in Montana, having previously been determined to be irreconcilable with our fundamental right to privacy conferred by Article II, Section 11, of the Montana Constitution. Elison, ¶ 54. Instead, in Elison, we held that a “warrantless search of an automobile requires the existence of probable cause as well as a generally applicable exception to the warrant requirement.” Elison, ¶ 54 (emphasis added).3
¶24 We have not extended this requirement to warrantless seizures of automobiles, however, instead holding that law enforcement may seize an automobile pursuant to probable cause entirely independent of the presence of a generally applicable exception to the warrant requirement. State v. Pierce, 2005 MT 182, ¶ 18, 328 Mont. 33, 116 P.3d 817 (citing Elison, ¶ 54 n. 3); State v. Broell, 249 Mont. 117, 122, 814 P.2d 44, 47 (1991). Therefore, whether Burchill's truck was validly seized prior to issuance of the search warrant, under either the Fourth Amendment to the United States Constitution or Article II, Section 11, of the Montana Constitution, depends on whether Detective McCormick had probable cause at the time of the seizure. See Pierce, ¶ 19 (citing Broell, 249 Mont. at 122, 814 P.2d 44, 47 (1991)).
¶25 In determining whether Detective McCormick had probable cause to seize Burchill's truck, we examine the same information used in determining whether Detective McCormick had probable cause to search Burchill's residence. See Pierce, ¶ 18. We again note that, at the time of the seizure, Detective McCormick had the statements from witnesses to the robberies, the corroborated and specific information provided by the informant, and his personal observations of Burchill's truck. The specificity and corroboration of this information would merit a reasonable person's belief that evidence of the casino robberies would be found in Burchill's truck. See Kuneff, ¶ 22; Rinehart, 262 Mont. at 211, 864 P.2d at 1223. The seizure of Burchill's truck was based on probable cause, and the District Court did not err in denying Burchill's motion to suppress the evidence found in his truck.
¶26 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.
¶27 After Burchill's truck was searched pursuant to the warrant, it was repossessed and ended up at an auction lot, where the glove, gun, ammunition, and Burchill's driver's license were found hidden behind a door panel by an auction lot employee. This evidence was then turned over to Montana law enforcement in January 2017. Burchill argues this evidence should have been suppressed because the State failed to maintain a chain of custody of that evidence from the time the truck was initially seized by law enforcement in September 2016 until the law enforcement received the evidence in January 2017. We disagree.
¶28 The chain of custody rule requires the State to establish a continuous chain of custody from the time law enforcement acquires evidence until that evidence is used at trial. State v. Walton, 222 Mont. 340, 343, 722 P.2d 1145, 1147 (1986); State v. Bowser, 2005 MT 279, ¶ 30, 329 Mont. 218, 123 P.3d 230 (citing State v. Weeks, 270 Mont. 63, 75-76, 891 P.2d 477, 489 (1995)) (“The State need only demonstrate to the court's satisfaction that no substantial change occurred in the evidence from the time that the State gathered it to the time the State tested it or offered it into evidence.”). Burchill's argument that the State must establish a chain of custody going back to the seizure of the truck in September 2016 misapprehends the requirements of the chain of custody rule, essentially asserting the State must maintain the “chain of custody” of evidence before the evidence is, in fact, in the State's custody.
¶29 In the present case, the State acquired the glove, gun, ammunition, and Burchill's driver's license from Idaho law enforcement in January 2017. Under the chain of custody rule, the State was only required to establish a chain of custody from January 2017—when law enforcement received the evidence—until July 2017—when the evidence was used at trial. See Walton, 222 Mont. at 343, 722 P.2d at 1147. The District Court did not err when it denied Burchill's motion to suppress the evidence found by the auction lot employee.
¶30 Issue Four: Whether the District Court's admission of records containing the location of Burchill's cell phone during the robberies was harmless error.
¶31 The State concedes that if it wanted to include the location of Burchill's cell phone during the robberies in its case-in-chief, it needed to produce testimony from a Verizon records custodian to establish foundation for the evidence. Instead, the State introduced the cell phone location evidence on rebuttal. The issue therefore is only whether that error was harmless.
¶32 In Van Kirk, we laid out the framework for determining whether an error was harmless or reversible. Van Kirk, ¶¶ 37-47. The first step is determining whether the error is a structural error or trial error. Van Kirk, ¶¶ 37, 41. Structural errors are presumptively prejudicial and automatically reversible. Van Kirk, ¶ 38. Structural error is the “type of error that ‘affects the framework within which the trial proceeds, rather than simply an error in the trial process itself.’ ” Van Kirk, ¶¶ 38-39 (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 1265, 113 L.Ed.2d 302 (1991)).
¶33 Trial errors, on the other hand, typically occur in the presentation of a case to the jury and are “amenable to qualitative assessment by a reviewing court for prejudicial impact relative to the other evidence introduced at trial.” Van Kirk, ¶ 40. “Trial error[s] [are] not presumptively prejudicial and therefore not automatically reversible ․” Van Kirk, ¶ 40. If a trial error occurs, the court must proceed to the second step of the analysis to determine whether the error was harmless under the circumstances. Van Kirk, ¶ 41.
¶34 The test for whether a trial error is prejudicial––and thereby reversible––is “whether there is a reasonable possibility that the inadmissible evidence might have contributed to the conviction.” Van Kirk, ¶ 42. Once a convicted person has raised and established that the admitted evidence was erroneously admitted and has alleged prejudice, the burden shifts to the State to demonstrate that the error was not prejudicial. Van Kirk, ¶ 42. The State must demonstrate this by directing the Court to other admissible evidence that (1) proved the same fact as the tainted evidence, and (2) was of such a quality that there was no reasonable possibility the tainted evidence might have contributed to the defendant's conviction. Van Kirk, ¶¶ 44-47. If the State meets this burden, the error is deemed harmless and we will not reverse the outcome. See Van Kirk, ¶¶ 44-47.
¶35 In Burchill's case, admission of the cell phone evidence was not structural error. This evidence did not “affect the framework” of the trial; in fact, the State did not seek to admit the cell phone location during its case-in-chief. See Van Kirk, ¶ 38. The evidence was only introduced in rebuttal after Burchill testified to be in Livingston, Montana, at the time of the robberies. Furthermore, the nature of the evidence makes it amenable to comparison of other admissible evidence. See Van Kirk, ¶ 40. Therefore, admission of the cell phone evidence was trial error and not automatically reversible.
¶36 Our analysis then turns to whether the State can demonstrate that this trial error was not prejudicial. Van Kirk, ¶ 46. The State argues that there is cumulative evidence that Burchill was the casino robbery suspect and there was no reasonable possibility that the cell phone location records contributed to the conviction. We agree.
¶37 The State introduced witness descriptions and security footage of the suspect that matched Burchill's height and weight; a distinctive mask that was used in both robberies that was found in Burchill's possession and contained his DNA; an informant with verifiable knowledge of the robberies, whose testimony was corroborated by non-public information, identified Burchill as the casino robbery suspect; and a gun of the same caliber used in the robberies was found in Burchill's truck. All of this is compelling, cumulative evidence of Burchill's guilt. See Van Kirk, ¶ 43.
¶38 Evidence of the cell phone locations at the times of the robberies, on the other hand, were imprecise. When compared, qualitatively, to the cumulative evidence of Burchill's guilt, there is no reasonable possibility that the cell phone location records might have contributed to his conviction. Van Kirk, ¶ 46. The District Court's admission of the cell phone location records at trial was harmless error.
CONCLUSION
¶39 The District Court did not err in denying Burchill's motions to suppress evidence. The District Court's admission of the Verizon cell phone location records was harmless error. We affirm.
FOOTNOTES
1. Jack Skellington is the main character in the animated motion picture, The Nightmare Before Christmas (Walt Disney Pictures (1993)).
2. The search warrant application for Burchill's residence contained thirty-one paragraphs. Of these, only paragraphs 19-27, 29, and sub-parts 9-14 of paragraph 31 refer to the Ledfords and the separate commercial burglaries they were suspected of committing. Although both investigations were conducted simultaneously, the Ledfords were not suspected in the casino robberies, and Burchill was not suspected in the commercial burglaries.
3. We, at one point, did recognize the “automobile exception” as a valid exception to the Fourth Amendment warrant requirement. Elison, ¶ 44 (citing State v. Spielmann, 163 Mont. 199, 205, 516 P.2d 617, 621 (1973)). This exception provided that “automobiles and other conveyances may be searched without a warrant in circumstances that would not justify the search without a warrant of a house ․” Spielmann, 163 Mont. at 204, 516 P.2d at 620 (citing Carroll v. United States, 267 U.S. 132, 153-59, 45 S. Ct. 280, 285-87, 69 L.Ed. 543 (1925)). Probable cause was required for both the warrantless search and seizure of an automobile. Spielmann, 163 Mont. at 205, 516 P.2d at 621. We concluded in Spielman that there was “no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” Spielmann, 163 Mont. at 205, 516 P.2d at 621.
Justice James Jeremiah Shea delivered the Opinion of the Court.
We Concur: MIKE McGRATH, C, J. DIRK M. SANDEFUR, J. INGRID GUSTAFSON, J. JIM RICE, J.
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