State v. Boesch

NO. 96-188
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DAVID EUGENE BOESCR,
Defendant and Appellant.
APPEALPROM: District Court of theTwenty-First Judicial District,
In and for the County of Ravalli,
The Honorable Jeffrey Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David E. Boesch, Kahului, ~awaii,Pro Se.
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Patricia J. Jordan, Ass't Attorney General,
Helena, Montana
George H. Corn, Ravalli County Attorney,
Hamilton, Montana
K
Submitted on Briefs: October 24, 1996
7.;
.; Decided: November 7, 1996
Justice Karla M. Gray delivered the Opinion of the Court
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to Montana Law Week, State Reporter and West Publishing
Company.
David Eugene Boesch (Boesch) appeals from the judgment and
sentence entered by the Twenty-First Judicial District Court,
Ravalli County, on his guilty plea to the felony charge of criminal
possession of dangerous drugs, having reserved the right to appeal
the denial of his pretrial motion to suppress evidence. We affirm.
We restate the issues on appeal as follows:
1. Did the District Court err in finding that law enforcement
officers had a particularized suspicion to stop Boesch and, on that
basis, in denying his motion to suppress?
2. Did the District Court err in concluding that Boesch's
constitutional right to be free from unreasonable searches and
seizures was not violated?
The following summarized facts concerning this case,
unchallenged by Boesch in this appeal, are taken from the District
Court's order denying Boesch's motion to suppress. In the early
morning hours of November 23, 1994, Ravalli County Sheriff's Deputy
Clint Eckhardt (Eckhardt) was advised, via dispatch transmission,
that a private citizen reported having seen a yellow car parked
along the side of U.S. Highway 93, pointing south, and containing
two apparently intoxicated people. Eckhardt requested that the
Stevensville Police Department (SPD) respond while he travelled
toward the vehicle; SPD Officer Lance Foster (Foster) responded.
Foster located the vehicle parked as described by the private
citizen. Boesch was sitting behind the steering wheel, fumbling
with keys near the steering column. According to Foster, Boesch
was slow in answering questions, and Foster detected the odors of
wine and vomit emanating from the vehicle. He observed a partially
empty wine jug on the passenger's side floor and what appeared to
be red-colored vomit on the pavement by the driver's side door.
Foster also observed a female passenger who, in his opinion,
appeared intoxicated. He advised Boesch that a sheriff's deputy
was responding and wanted to interview Boesch.
On arrival at the scene, Eckhardt noticed the wine bottle in
the vehicle and the odors. Eckhardt told Boesch to cease
attempting to start the vehicle and to exit the vehicle. Eckhardt
directed Boesch to perform field sobriety tests and, when Boesch
failed the tests, arrested him for driving under the influence of
alcohol. At that point, Boesch was searched and Eckhardt found a
plastic baggie containing what he believed to be hashish and a
container with a number of squares of LSD. Eckhardt placed Boesch
in his patrol car and returned to interview the passenger, Judy
Perkins (Perkins), whom he also believed to be intoxicated.
During a patdown search of Perkins, Eckhardt located what
appeared to be a marijuana pipe and placed Perkins in the patrol
car with Boesch. As Perkins had exited the Boesch vehicle,
Eckhardt noticed various items in plain view between the seats.
Those items included a clay marijuana pipe, a backpack with a paper
bag sticking out of it which contained two plastic bags full of
marijuana, a bag containing a block of hashish, a film canister
containing three squares of what was believed to be LSD and several
other small paper bags containing marijuana wrapped in plastic. An
empty wine bottle was observed behind the passenger's seat.
Eckhardt also noticed apparent marijuana residue and leaf, together
with Zigzag cigarette papers and rollers, on the dashboard.
The State of Montana (State) subsequently charged Boesch, by
information, with two felony counts of criminal possession of
dangerous drugs (hashish and LSD) and one misdemeanor count of
driving or being in actual physical control of a vehicle on a way
of this state open to the public while under the influence of
alcohol and/or drugs (DUI). Boesch pleaded not guilty and his
counsel filed a motion to suppress the evidence seized from
Boesch's person and vehicle at the time of his arrest, on statutory
and constitutional grounds. The District Court denied the motion
to suppress and Boesch's counsel was allowed to withdraw from
further representation. Boesch subsequently waived his right to
counsel and the District Court appointed standby counsel.
Thereafter, Boesch and the State entered into a plea agreement
pursuant to which Boesch would plead guilty to possession of
dangerous drugs (LSD), the State would move to dismiss the other
drug charge (hashish) and the DUI charge, the State would recommend
a 5-year suspended sentence subject to certain terms and
conditions, and Boesch would reserve his right to appeal the denial
of his motion to suppress. The District Court accepted the change
of plea and ordered a presentence investigation report.
A sentencing hearing was held on February 7, 1996. The court
advised that it was not inclined to follow the sentencing
recommendations contained in the plea agreement and, therefore,
that Boesch was entitled to withdraw his guilty plea. Boesch
declined to withdraw the plea and agreed to accept the sentence the
court described.
On February 23, 1996, the District Court entered judgment and
sentence on Boesch's conviction of the offense of felony criminal
possession of dangerous drugs. Boesch appeals, appearing pro se.
At the outset, it is appropriate to comment on the matters
Boesch purports to raise. Boesch's brief in this appeal is an
amalgam of so-called spiritual precedent, pronouncements about
"natural laws and responsibilities" and assertions regarding "non-
positive legislation," liberally sprinkled with Latin phraseology.
The gist of it all appears to be Boesch's assertion of a right to
use drugs pursuant to God-given law, "natural law," and his
constitutional right to freedom of religion.
Only the District Court's denial of Boesch's motion to
suppress is before us in this appeal. That motion was grounded on
the alleged absence of particularized suspicion to stop and
investigate him which is required by § 46-5-401, MCA, and this
Court's cases thereunder, and the search and seizure provisions of
the United States and Montana Constitutions. Absent the existence
of circumstances not before us here, assertions of error not
properly raised or preserved in the trial court 1 1 not be
considered by this Court on appeal. See § 46-20-701, MCA.
Therefore, we decline to address the referenced matters Boesch
raises in his brief on appeal.
Did the District Court err in finding that law
enforcement officers had a particularized suspicion to
stop Boesch and, on that basis, in denying his motion to
suppress?
Section 46-5-401, MCA, authorizes a peace officer to stop a
person or vehicle observed in circumstances that create a
particularized suspicion the person has committed, is committing or
is about to commit an offense. Whether a particularized suspicion
existed is a questi~nof fact which depends o1 the totaity of the
r
circumstances. State .J. Reynolds (1995), 272 Mont. 46, 50, 899
P.2d 540, 542-43. Here, ~ h e
District Court analyzed the facts
surrounding the incident, addressed the applicable sratute and
cases, and found that a particularized suspicion existed to support
the officers' investigation
Boesch does not challenge the facts as found by the District
Court. Nor does he advance any legal authority interpreting § 46-
5-401, MCA, which would render the District Court's appiication of
the law to those facts erroneous. An appellant carries the burden
of establishing error by the trial court. Moreover, Rule 23,
M.R.App.P., requires the appellant to cite to authority which
supports the position being advanced on appeal. Boesch has failed
to do so. Therefore, we conclude that the District Court did not
6
err in finding that a particularized suspicion existed for the stop
and investigation of Boesch and in denying Boesch's motion to
suppress.
Did the District Court err in concluding that Boesch's
constitutional right to be free from unreasonable
searches and seizures was not violated?
Boesch's motion to suppress also was based on a denial of his
right, under both the United States and Montana Constitutions, to
be free from unreasonable searches and seizures. Specifically, he
contended that the bag of unlawful substances seized from his
automobile was not located in plain view and that no other
exception to the warrant requirement applied. The District Court
analyzed Boesch's argument, as presented, and concluded that his
constitutional rights had not been violated.
For the same reasons set forth above with regard to issue
one, we need not address this issue on the merits. In addition,
the LSD which formed the basis for the one count of criminal
possession of dangerous drugs to which Boesch pleaded guilty was
that found on his person, not in his vehicle. The only basis on
which that evidence was challenged was 5 46-5-401,MCA, and we have
concluded above that the District Court did not err in that regard.
Thus, even a successful challenge to the evidence seized from
Boesch's vehicle would not impact the judgment and sentence
resulting from Boesch's guilty plea to, and conviction of, the
felony offense of criminal possession of dangerous drugs (LSD).
Affirmed .
We concur: