Brown v. State

• Decision Date: 16 June 1987
• Docket Number: No. 86-104,86-104
• Citation: 738 P.2d 1092
• Parties: Dianne BROWN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1092

738 P.2d 1092

Dianne BROWN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 86-104.

Supreme Court of Wyoming.

June 16, 1987.

Leonard Munker, State Public Defender, Julie D. Naylor, Asst. Public Defender, Gerald M. Gallivan, Director, Wyoming Defender Aid Program, and Edward G. Luhm (argued), Student Intern for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., Judith A. Patton, Asst. Atty. Gen., and James Baiamonte (argued), Legal Intern, for appellee.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

CARDINE, Justice.

Appellant was convicted of possessing methamphetamine with intent to deliver in violation of §§ 35-7-1031(a)(ii) and 35-7-1016(d)(ii), W.S.1977. Her sentence was suspended, and she was placed on probation for a period of four years. Although appellant raises several issues on appeal, we need only determine whether the trial court erred in refusing to suppress evidence obtained in a search of her residence.

We reverse and remand.

FACTS

The narcotics division of the sheriff's office of Campbell County suspected appellant "possibly was dealing in narcotics." They did not arrest appellant, presumably because they lacked sufficient evidence for But here the officer, after knocking on the door, heard footsteps, dogs barking, and a methodical clip like an automatic weapon, all of which he mentally noted to be suspicious activity. Then appellant opened her door, unarmed and wearing pajamas. There was nothing wrong up to this point and surely standard procedure would have been simply to hand her the complaint and summons and leave. But there was something different about this case. The officer asked if anyone else was home. That was totally unrelated to the service of a civil complaint and summons upon a $50.00 claim. Appellant answered yes, her boyfriend was in the house. The officer then entered her home and to his dismay observed an empty knife sheath on the floor. That was enough for the officer who by now was so frightened of the lady in pajamas that he served the complaint and summons and left.

an arrest. Being good police officers, we would assume that they had a desire to obtain evidence for an arrest. So when appellant was sued for the sum of $50.00 in small claims court, Officer Mader was informed that appellant might be dealing in narcotics and dispatched to her home to serve the small claims court summons and complaint. There was nothing wrong to this point. Ordinarily, a process server would simply hand the complaint and summons to appellant and leave. There is nothing wrong with that.

If serving the small claims court summons and complaint was the purpose of this encounter, it had been successful and was over; but if obtaining evidence of appellant's suspected dealing in narcotics was the purpose, the encounter had been singularly unsuccessful. And so Officer Mader, after leaving appellant's residence, met with Officers Bagwell and Cannon, who had been in the area ready to provide backup in the service of the small claims court $50.00 complaint and summons. After some discussion, Officers Bagwell and Cannon returned to the sheriff's office; and shortly thereafter Officer Mader received a call from the sheriff's office dispatcher that "someone [in the office] had come up with a warrant" for appellant's arrest and "they wanted it served." The arrest warrant was for a minor traffic citation that had occurred approximately two years before. For two years there had apparently been no urgency about this warrant. But now it was so imperative that a team of four officers was dispatched to appellant's home to arrest this lady in pajamas. We must keep in mind the danger confronting the officers in this arrest for it was later suggested that officers had been shot and killed in these kinds of situations. Two officers conducted a surveillance, and Officer Mader requested that Corporal Murphey of the sheriff's office go with him to serve the warrant.

Deputy Sheriffs Hagerman and Lauck had undertaken surveillance of appellant's residence. Deputy Lauck was a narcotics agent for the sheriff's office, and he "wanted to look at the situation." In the course of their surveillance, Deputies Hagerman and Lauck observed "a large white male adult enter and leave the residence on foot, go to vehicles and back into the house several times." They also saw "a white female adult go in and out the front door several times, feed a dog, various things."

When Officer Mader and Corporal Murphey arrived at appellant's residence, Deputies Lauck and Hagerman informed them, by radio, that appellant and a male subject (later identified as appellant's boyfriend, Arthur Toews) had been seen outside the mobile home. The two officers walked to the front porch, and appellant was waiting at the door. One of the officers told her that they had a warrant for her arrest and asked her where "the man" was. Appellant called Mr. Toews, and he stepped outside. At this point the officers knew that everyone in the trailer was outside on the porch; that appellant, the lady in pajamas, was the person named in the warrant in their possession; that all they needed to do was serve the warrant; and that if they felt it necessary, take her into custody and return to the sheriff's office. But that course of events would have resulted in no evidence of "possible dealing in narcotics." So a very fortuitous thing happened. Again appellant turned and walked into her After the marijuana was found, appellant was taken to jail, her mobile home was secured, and Corporal Murphey obtained a search warrant, his discovery of marijuana providing the requisite probable cause. A subsequent search pursuant to that warrant uncovered 14.1 grams of methamphetamine and other evidence of narcotics.

                mobile home, and this time Corporal Murphey followed her in.  What was he to do when this lady in pajamas began to leave?   After all, that is where the evidence of narcotics must be anyway.  And so Corporal Murphey immediately followed appellant into her home and there saw on the floor the empty knife sheath which he immediately recognized as a dangerous situation.  He yelled to Officer Mader, who was on the porch with Mr. Toews, that a weapon was unaccounted for.  Corporal Murphey then told appellant that he was going to conduct a "protective sweep" of the premises and asked her if she would lead him through the mobile home.  Appellant complied, leading Corporal Murphey to the kitchen, bathroom, rear bedroom, front bedroom and back to the living room.  Upon returning to the living room, Corporal Murphey spotted a metal tray containing something that looked like marijuana.  He walked to the tray, inspected it, and concluded that the substance was indeed marijuana
                

After this evidence was discovered, appellant was charged with possession of a controlled substance with intent to deliver. Before trial she moved to suppress the evidence found in her home, contending that the initial entry and "protective sweep" were illegal and therefore the subsequent search was illegal. After a hearing the court denied the motion, finding that the protective sweep was justified by the totality of the circumstances, that the protective sweep was "not of such an intensive nature to be violative of the 4th Amendment," and that the discovery of the marijuana cigarette fell under the plain-view doctrine.

On appeal, appellant now renews her contention that the protective sweep was an unreasonable search under the Fourth Amendment to the United States Constitution and Art. I, § 4 of the Wyoming Constitution and that the evidence revealed in the subsequent search was inadmissible as fruit of the poisonous tree. In response, the State offers three alternative arguments: (1) the protective sweep was reasonable, (2) the discovery of the marijuana was not a result of the protective sweep but instead was the result of a search incident to arrest after the protective sweep was completed, and (3) when Corporal Murphey accompanied appellant through her home and discovered the marijuana in "plain view," he was merely exercising his right, pursuant to Washington v. Chrisman, 455 U.S. 1, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982), to monitor the movements of an arrestee and observe evidence in plain view.

EXCEPTIONS TO THE WARRANT REQUIREMENT

Article I, § 4 of the Wyoming Constitution provides:

"The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by affidavit, particularly describing the place to be searched or the person or thing to be seized."

We have held that a home is entitled to special dignity and special sanctity and that the proper way to search a home is to obtain a search warrant. Goddard v. State, Wyo., 481 P.2d 343, 344 (1971). Moreover, searches and seizures made without a warrant or outside the judicial process are per se unreasonable, subject only to a few specifically established and well-delineated exceptions. Kish v. State, Wyo., 642 P.2d 453, 455 (1982). Two exceptions which we have recognized are the search-incident-to-arrest exception and the plain-view doctrine. Ortega v. State, Wyo., 669 P.2d 935, 940-941 (1983). This court has not ruled on the validity and scope of the "protective sweep doctrine" nor have we determined whether the rule pronounced by the United States Supreme In reviewing the district court's ruling, we are bound by that court's findings unless they are clearly erroneous. Neilson v. State, Wyo., 599 P.2d 1326, 1330 (1979), cert. denied, 444 U.S. 1079, 100 S.Ct. 1031, 62 L.Ed.2d 763 (1980). The district court found that the protective sweep was justified by the totality of the circumstances. We conclude that this finding was clearly erroneous.

Court in Washington v. Chrisman, supra, ...