City of Laramie v. Hysong

• Decision Date: 19 March 1991
• Docket Number: No. 90-219,90-219
• Citation: 808 P.2d 199
• Parties: CITY OF LARAMIE, Petitioner (Appellee/Plaintiff), v. Andrew HYSONG, Respondent (Appellant/Defendant).
• Court: Wyoming Supreme Court

Page 199

808 P.2d 199

CITY OF LARAMIE, Petitioner (Appellee/Plaintiff), v. Andrew HYSONG, Respondent (Appellant/Defendant).

No. 90-219.

Supreme Court of Wyoming.

March 19, 1991.

Jane H. Juve and Hugh B. McFadden, Jr. of Corthell & King, Laramie, for petitioner.

Glenn A. Duncan, Laramie, for respondent.

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

GOLDEN, Justice.

Upon a petition for a writ of certiorari, the City of Laramie (City) seeks reversal of the district court's reversal of Andrew Hysong's conviction of interfering with a police officer in violation of the city code. Laramie, Wyoming, Code, Tit. 9, ch. 9, § 30 (1982) (as amended). See Sowerwine v. State, 767 P.2d 181 (Wyo.1989).

The district court, in an appellate capacity, overturned the ruling of the municipal court. The City's petition asks whether the district court erred in overturning the municipal court's findings of fact that the city police officer, acting on a child abuse report, was properly acting within the scope of his official duties in entering the Hysong residence to inspect the Hysongs' child. This court granted the petition because the question presents an issue of importance pursuant to W.R.A.P. 13.

We reverse the district court's decision and reinstate the municipal court's judgment of conviction.

FACTS

At 3:00 p.m., Sunday, April 1, 1990, a city police officer received a report of possible child abuse that had allegedly occurred at 10:30 a.m. that day in a local drug store. According to two store clerks who witnessed the incident, a male adult, presumably the child's father, forcibly jerked the child, a boy about two or three years old, out of a shopping cart in a manner that possibly injured the child's arm. As the adult dangled the child by his arm, he spanked the child and continued to do so all the way out of the store; all the while the child was crying. The adult placed the child in a Chevrolet Blazer parked in the store's parking lot. One of the store clerks believed the adult continued striking the child in the Blazer because of the movement of the adult's arms and shoulders. Based on what they had seen, both clerks stated their belief that the adult had probably injured the child.

After investigating the information provided in the store clerks' report, including the license number of the Blazer, the officer determined that Andrew Hysong was a suspect. The officer contacted the on-call social worker for the Department of Public Assistance and Social Services (D-PASS) and together they visited the Hysong residence. This occurred within an hour after receiving the initial report. The Blazer was not there; no one was home. During the remainder of his shift, the officer periodically drove by the residence to see if the Hysongs had returned, but it was not until 8:00 p.m., four hours after he first checked the residence, that the officer saw that the Hysongs had returned home. The officer and the D-PASS social worker visited the residence at that time. The officer, who was in uniform, knocked on the front door; Mr. Hysong looked out the window, opened the door, and asked what they wanted. The officer introduced himself and the D-PASS social worker, explained the reported alleged incident, and asked if they could check the child's condition. Mr. Hysong refused to let them in without a search warrant.

After further conversation between Mr. Hysong and the officer, Mrs. Hysong came to the door. She knew the officer because she worked for the City. The officer explained the situation to her. According to the officer's trial testimony, in response to his explanation and request to check the child's condition, Mrs. Hysong said, "Okay." According to Mrs. Hysong's trial testimony, the house belongs to her husband The officer, believing Mrs. Hysong had consented to his entry, started to enter, but was met by Mr. Hysong's resistance which caused a scuffle. It was that resistance on Mr. Hysong's part that supported the criminal charge on which his conviction was based. Mr. Hysong argued that his resistance was justified because of the officer's warrantless entry. The municipal court determined, however, that the entry was lawful due to exigent circumstances and Mrs. Hysong's possible consent.

                and her, and in response to the officer's explanation and request, she merely said, "See, he's O.K."   The child, object of the officer's concern, was at that moment inside the house and several feet from the front door
                

Mr. Hysong appealed his municipal court conviction to the district court. In its decision letter the district court stated, "The legal issue for this court to decide is whether the police officer had probable cause to enter the home and inspect the child without a search warrant." Answering that question in the negative, that court based its reversal of Mr. Hysong's conviction on the following:

1. An adequate amount of time had elapsed before any action was taken by the police officer for him to obtain a search warrant in order to legally enter the Hysong residence;

2. There was insufficient evidence which proves that exigent circumstances actually existed in order to permit a "warrantless" search, nor was consent voluntarily obtained;

3. The testimony of the police officer admitting that he went to the residence with no intention of making an arrest leads this court to conclude that the officer was erroneous in entering the appellant's home without a search warrant.

The City's petition for writ of certiorari followed. ¹

DISCUSSION

The municipal court of the City of Laramie is a court of limited jurisdiction and is, in the judicial context, inferior in jurisdiction to the district court. An appeal from the municipal court's judgment to the district court is governed both by the Wyoming Rules of Appellate Procedure and the Wyoming Rules of Appellate Procedure for Courts of Limited Jurisdiction. W.R.A.P. 1.01; W.R.A.P.C.L.J. 1.01; W.S. §§ 5-6-106 and 107 (Cum.Supp.1990). There shall be no trial de novo in the district court exercising its appellate jurisdiction. The district court may reverse the municipal court's judgment for errors appearing on the record. W.R.A.P. 1.03.

In its appellate jurisdiction, the district court is governed by the same appellate principles and standards of review that govern this court in its exercise of appellate jurisdiction. This court has announced these principles and standards countless times; they are so universally understood and accepted that we need not cite authority for them. The trial court's findings of fact are presumed to be correct, and an appellate court shall not disturb them unless they are inconsistent with the evidence, clearly erroneous, or contrary to the great weight of the evidence. On questions of law, an appellate court accords no special deference to, nor is it bound by the trial court's decision. However, if the trial court's judgment is sustainable on any legal ground or theory appearing in the record, an appellate court must affirm that judgment, even if the legal ground or theory articulated by the trial court as sustaining the judgment is incorrect.

The foregoing appellate principles and standards of review apply in the realm of the law of search and seizure. It is elementary that our federal and state constitutions prohibit "unreasonable searches and seizures." U.S. Const. amend. IV; Wyo. Const. art. 1, § 4. Subject to certain recognized exceptions, warrantless searches and seizures are per se unreasonable. Wilde v. State, 706 P.2d 251, 256 (Wyo.1985); Ortega v. State, 669 P.2d 935, 940 (Wyo.1983). Among the recognized exceptions are searches and/or seizures conducted pursuant to voluntary consent ² and conducted when necessary to render emergency aid to a person reasonably believed to be in distress and in need of assistance. Ortega, 669 P.2d at 941. Whether an exception exists in a particular case is a question of fact that may be properly resolved by a preponderance of the evidence standard in the light of all attendant circumstances. Wilde, 706 P.2d at 256; Patterson v. State, 691 P.2d 253, 258 (Wyo.1984), cert. denied sub nom. Spoon v. Wyoming, 471 U.S. 1020, 105 S.Ct. 2048, 85 L.Ed.2d 311 (1985); Ortega, 669 P.2d at 941; Stamper v. State, 662 P.2d 82, 86-87 (Wyo.1983); Parkhurst v. State, 628 P.2d 1369, 1378 (Wyo.), cert. denied, 454 U.S. 899, 102 S.Ct. 402, 70 L.Ed.2d 216 (1981). On appellate review of the trial court's resolution of that question of fact, the appellate court must view the evidence in a light most favorable to the prevailing party in the trial court. Wilde, 706 P.2d at 256; Stamper, 662 P.2d at 86; Parkhurst, 628 P.2d at 1378; Amin v. State, 695 P.2d 1021, 1024-25 (Wyo.1985).

In applying the foregoing appellate principles and standards in the realm of search and seizure law, we focus our attention on the municipal court's findings of fact. These concern the existence and voluntariness of Mrs. Hysong's consent and the presence of exigent circumstances, that is, the need to render emergency aid to a child reasonably believed to be in distress and in need of assistance. "[A] consent to search is not testimonial and it is not evidence which can be described as being of a testimonial or communicative nature." Stamper, 662 P.2d at 87. From the totality of the circumstances, the municipal court had to determine whether voluntary consent was given. The officer testified that Mrs. Hysong answered "Okay" in response to his request to enter the home and inspect the child; Mrs. Hysong testified that she merely said, "See he's O.K." To that testimony the municipal court commented that "[o]ne might see that the officer could have construed that Mrs. Hysong gave him permission." Further, that court stated it "could see there is a possibility that an officer in the heat could have considered [that she gave him permission]." Viewing the evidence in the light most favorable to the City, an appellate court must affirm a...