Cordova v. State

• Decision Date: 16 October 2001
• Docket Number: No. 00-43.,00-43.
• Citation: 33 P.3d 142,2001 WY 96
• Parties: Richard D. CORDOVA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

33 P.3d 142

2001 WY 96

Richard D. CORDOVA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 00-43.

Supreme Court of Wyoming.

October 16, 2001.

Rehearing Denied November 20, 2001.

Representing Appellant: Sylvia Lee Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Marion Yoder, Senior Assistant Public Defender. Argument by Ms. Yoder.

Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; and Ken DeCock, Student Intern for the Prosecution Assistance Program. Argument by Mr. DeCock.

Before LEHMAN, C.J., and GOLDEN, HILL, and KITE, JJ.

LEHMAN, Chief Justice.

[¶ 1] Appellant Richard D. Cordova entered two nolo contendere pleas to charges of delivery of marijuana in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii) (LexisNexis 2001) and possession of methamphetamine in violation of Wyo. Stat. Ann. § 35-7-1031(c)(ii) (LexisNexis 2001).¹ Under W.R.Cr.P. 11, Mr. Cordova reserved his right to appeal the district court's denial of his motion to suppress evidence seized pursuant to a search warrant. On appeal, Mr. Cordova contends that the affidavit supporting the issuance of the search warrant was not adequate to establish probable cause and thus violated his constitutional rights as guaranteed by the United States and Wyoming Constitutions. Giving deference to the judicial issuing officer and concluding that the district court did not err in denying Mr. Cordova's motion to suppress, we affirm.

ISSUES

[¶ 2] Mr. Cordova presents this statement of the issues:

ISSUE I

Was the affidavit executed in support of the search warrant adequate to establish probable cause?

ISSUE II

Has the Wyoming Supreme Court elected to adopt a "good faith" exception to the exclusionary rule and, if so, does that exception conflict with Article 1, § 4 of the Wyoming Constitution?

Appellee State of Wyoming restates the issue:

Did the district court err in concluding that probable cause existed to support the issuance of the warrant to search Appellant's residence and refusing to suppress the evidence seized by law enforcement during the execution of that warrant?

FACTS²

[¶ 3] On May 6, 1999, Mr. Cordova sold for $160 approximately one and one-half ounces of marijuana to a confidential informant working with the Southwest Wyoming Drug Enforcement Team. This controlled buy took place at Mr. Cordova's residence in Rock Springs under the direction of Officer Russell Schmitt of the Green River Police Department. On July 20, 1999, Mr. Cordova was charged for this act with delivery of marijuana in violation of § 35-7-1031(a)(ii). On that same date, a warrant was issued for his arrest. On July 21, 1999, based on his own affidavit, Officer Schmitt sought and obtained a search warrant for Mr. Cordova's residence from the Sweetwater County Court Commissioner. The warrant was executed the same day. In the course of the search, officers discovered two plastic bags filled with a white powdery substance weighing in excess of three grams. The powder later tested as methamphetamine. On July 27, 1999, Mr. Cordova was charged with felony possession of methamphetamine in violation of § 35-7-1031(c)(i) and (c)(ii).

[¶ 4] Mr. Cordova entered a plea of not guilty to both charges on August 11, 1999. On September 10, 1999, he filed a motion to suppress the evidence obtained during the search of his residence, citing a lack of probable cause for the issuance of the warrant as a violation of his constitutional rights under the United States and Wyoming Constitutions. The suppression motion was heard on October 20, 1999. After testimony from Officer Schmitt and arguments of counsel, the district court denied Mr. Cordova's motion to exclude the search evidence. Subsequently, Mr. Cordova, pursuant to a plea agreement with the State, entered a conditional plea of nolo contendere to both charges properly reserving his right to appeal the district court's denial of his motion to suppress under W.R.Cr.P. 11(a)(2). On December 7, 1999, Judgment and Sentence was entered against Mr. Cordova sentencing him to serve two concurrent terms of two to four years in the Wyoming State Penitentiary. This timely appeal followed.

DISCUSSION

[¶ 5] Mr. Cordova contends that the affidavit executed by Officer Schmitt in support of the issuance of the search warrant for his residence was inadequate to establish probable cause as required by Article 1, Section 4 of the Wyoming Constitution and the Fourth Amendment to the United States Constitution. Analyzing this issue under the Wyoming Constitution, we agree that the affidavit in question comes uncomfortably close to violating the protections guaranteed Wyoming citizens by art. 1, § 4. However, viewing the document in its totality and giving deference to the judicial issuing officer, we conclude that the affidavit was adequate to support a finding of probable cause sufficient for the issuance of the warrant.

[¶ 6] This court in Vasquez v. State, 990 P.2d 476 (Wyo.1999), recently articulated our position on the subject of independent state constitutional analysis, vis-à-vis art. 1, § 4 of the Wyoming Constitution. We explained:

[J]ust as we have done with other state constitutional provisions which have no federal counterpart, we think that Article 1, § 4 deserves and requires the development of sound principles upon which to decide the search and seizure issues arising from state law enforcement action despite its federal counterpart and the activity it generates for the United States Supreme Court. Development of sound constitutional principles on which to decide these issues may lead to decisions which parallel the United States Supreme Court; may provide greater protection than that Court; or may provide less, in which case the federal law would prevail; but whatever the result, a state constitutional analysis is required unless a party desires to have an issue decided solely under the Federal Constitution.

990 P.2d at 485. Vasquez further established that, in order to best "develop our own constitutional principles under the state provision by consideration of constitutional theory appropriate to this state," our art. 1, § 4 analysis must take place prior to any federal constitutional analysis. Id. at 486.³

[¶ 7] Article 1, § 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.

Over eighty years ago, this court addressed the section's purpose:

This provision against unreasonable search and seizure has been considered one of the fundamental props of English and American liberty of the individual citizen and to be most sacredly observed, giving rise to the expression that a "man's house is his castle," designed to prevent violation of his private security in property, or the unlawful invasion of the home of the citizen by the officers of the law acting under legislative or judicial sanction, and to give remedy against such usurpations.

State v. Peterson, 27 Wyo. 185, 194 P. 342, 345 (1920).

[¶ 8] It has been long settled that our state constitution's requirement that probable cause be supported by affidavit rather than the more general "oath or affirmation" of the Fourth Amendment to the United States Constitution somewhat strengthened the state provision because it creates a permanent written record. Vasquez, 990 P.2d at 483 (citing Peterson, 194 P. at 346); see also Davis v. State, 859 P.2d 89, 93 (Wyo.1993); Smith v. State, 557 P.2d 130, 132 (Wyo.1976). It is important to note that W.R.Cr.P. 41(c) allows judicial issuing officers to consider additional sworn testimony in making their determination of probable cause provided that the testimony is recorded and becomes part of the written affidavit. This prerequisite saves the rule from impermissibly conflicting with the affidavit requirement of art. 1, § 4 of the Wyoming Constitution.

[¶ 9] In deciding the case before us, we will first examine the standards by which we review a judicial issuing officer's determination of probable cause and issuance of a search warrant under the Wyoming Constitution. It is established law that Wyoming's affidavit requirement limits our review in that we are confined to and can only consider what the record reflects was before the issuing magistrate at the time of the issuance of the warrant. Supplemental testimony taken at a hearing on a motion to suppress cannot be considered in determining whether adequate probable cause existed at the time the warrant was issued. Guerra v. State, 897 P.2d 447, 453 (Wyo.1995); Ostrowski v. State, 665 P.2d 471, 478 (Wyo.1983); Smith, 557 P.2d at 132.⁴

[¶ 10] Traditionally, this court has applied a de novo review when reviewing the sufficiency of an affidavit to support the issuance of a search warrant under art. 1, § 4. Indeed, de novo review is particularly appropriate under these circumstances. The reasons which normally underlie deferring to the district court's denial of a motion to suppress— its ability to assess the credibility of the witnesses, weigh the evidence, and make the necessary inferences, deductions, and conclusions at the hearing on the motion—are absent when reviewing the sufficiency of an affidavit to support a determination of probable cause. Because art. 1, § 4 requires that all information the issuing officer relied upon to make the determination be included within the affidavit, this court is in essentially the same position as the issuing magistrate. Further, we have always held that ultimately whether an unreasonable search or seizure occurred in violation of constitutional rights presents...