Guerra v. State

• Decision Date: 01 June 1995
• Docket Number: No. 94-96,94-96
• Citation: 897 P.2d 447
• Parties: Cheryl GUERRA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 447

897 P.2d 447

Cheryl GUERRA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 94-96.

Supreme Court of Wyoming.

June 1, 1995.

Leonard Munker, State Public Defender; Gerald M. Gallivan, Director, Defender Aid Program; and Darby L. Hoggatt, Student Intern, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., D. Michael Pauling, Mary Beth Wolff, Sr. Asst. Attys. Gen., Theodore E. Lauer, Director, Prosecution Assistance Program; Sheryl Smith Lansing, Student Director; Elizabeth A. Chapman, and Bruce Horton, Student Interns, for appellee.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR, and LEHMAN, JJ.

TAYLOR, Justice.

The search, on warrant, of appellant's home and her subsequent conviction on two counts of delivery of a controlled substance were predicated upon admissions against penal interest of a "customer" who faced similar charges. From her convictions, appellant prosecutes this appeal, attacking the validity of the search warrant and the district court's admission of evidence seized pursuant to that warrant. We affirm.

I. ISSUES

Appellant, Cheryl Guerra (Guerra), states the issues as follows:

I: Whether the "Affidavit for Probable Cause" provides a sufficient basis for the issuance of a search warrant under the Fourth Amendment to the U.S. Constitution and Article I § 4 of the Wyoming Constitution where the warrant authorized a search for "telephone records, financial records, scales, packaging materials, seal-a-meal, receipts, and other items evidencing transaction involving the sale of marihuna (sic) in violation of Wyoming Statute § 35-7-1031(a)(ii)" ... and the specific allegations of the affidavit were limited to an informant's interview that confessed to drug transactions with appellant that allegedly occurred six and seven months before the affidavit, and Detective Shaw's belief based upon his training and experience with controlled substances that marijuana sales with outstanding debt usually are recorded by the seller.

II: Whether the good faith exception to the exclusionary rule applies in the absence of a valid search warrant, but where the warrant was issued upon the "bare bones" conclusion that certain records would exist in the place sought to be searched.

III: Whether the search of vehicles occurring during the search of the premises conducted pursuant to a search warrant is impermissible under the Fourth Amendment to the United States Constitution and Article I § 4 of the Wyoming Constitution because (1) the search warrant authorized only a search of the premises, not vehicles, (2) the so-called automobile exception is not applicable because there was no probable cause to search the vehicles nor any exigent circumstances and (3) it was not incident to a lawful arrest.

IV: Whether the motion to suppress the contents within appellant's purse should have been granted because the evidence was seized without a legal search warrant, the evidence was not seized incident to a legal arrest, and the evidence could not have been inevitably discovered.

V: Whether the plain view doctrine justifies seizing Exhibit 6, the blue memo book, in the absence of a valid search warrant.

VI: Whether the trial court erred in admitting into evidence a letter from defendant's daughter over a timely objection as to relevance, where the letter was clearly inadmissible hearsay and its admission constituted plain error.

(Emphasis in original.)

Appellee, State of Wyoming (State), states the issues somewhat more succinctly:

I. Whether the county court had probable cause to issue the warrant for the search of appellant's residence.

II. Whether all items seized pursuant to the search warrant were properly admitted.

II. FACTS

Guerra's troubles began on November 11, 1992 when she sold two ounces of marijuana to Karol Potter (Potter). The plot thickened when Potter resold a quarter ounce of the contraband purchased from Guerra, not realizing that the next customer in line was an operative of the Gillette, Wyoming police department. On December 17, 1992, Guerra sold an additional one quarter pound of marijuana to Potter, much of which was seized pursuant to a lawful search of Potter's residence by Gillette police the following day.

Almost six months later, on June 7, 1993, a Gillette police detective interviewed Potter, at which time Guerra was identified as Potter's source for marijuana. Potter specified five separate transactions, each beginning when she would call a particular telephone number in the Gillette calling area. Shortly after each call, an individual known to Potter as "Cheryl" would appear at Potter's residence with a quantity of marijuana. Potter indicated that Guerra had generally "fronted" her the marijuana (i.e., furnished the product on credit subject to later repayment) and provided the police detective with a physical description of "Cheryl," indicating that the woman lived near 84 Lumber, east of Gillette.

The police detective traced the telephone number used by Potter to Guerra's residence, located north of 84 Lumber. Despite the passage of nearly six months, Potter continued to owe Guerra approximately $750.00 for previously "fronted" marijuana. Common sense converged with the police detective's training and experience to suggest that records of the outstanding debt were likely to be kept by Guerra at her residence. On June 8, 1993, the police detective obtained a warrant authorizing a search of Guerra's residence for such records and other artifacts of the trade. The search yielded numerous small marijuana plants, several small but discrete portions of marijuana, notebooks, and a letter.

The district court denied Guerra's motion to suppress evidence seized in the search of her home, and a bench trial on the merits ensued. Timely pursuit of this appeal followed Guerra's conviction upon two counts of delivery of a controlled substance in violation of Wyo.Stat. § 35-7-1031(a)(ii) (1994).

III. SCOPE & STANDARD OF REVIEW

Guerra takes issue with the district court's refusal to suppress items seized from her home during a search conducted pursuant to warrant. Secondly, she attacks the admission into evidence of several items seized pursuant to that warrant, including a letter to her from her daughter proposing a transaction almost identical to those for which Guerra stands convicted.

In assailing the search of her residence, Guerra seeks the protection of Wyo. Const. art 1, § 4, as well as the Fourth Amendment to the United States Constitution. However, Guerra fails to distinguish state protections from federal coverage other than in her discussion of Wyoming's requirement that probable cause for issuance of a warrant be found within the four corners of the affidavit submitted therefor. Because that issue marks the full extent of Guerra's efforts to develop an independent state constitutional argument, it is the sole issue upon which we will address independent state grounds. Wilson v. State, 874 P.2d 215, 219 (Wyo.1994). See generally, Saldana v. State, 846 P.2d 604, 621-24 (Wyo.1993), Golden, J., concurring.

Nonetheless, Guerra enjoys the formidable benefits afforded by the Fourth Amendment to the United States Constitution, which states:

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 Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Application of those protections to the actions of state officers, by virtue of the due process clause of the Fourteenth Amendment to the United States Constitution, was made manifest in Mapp v. Ohio, 367 U.S. 643, 655-56, 81 S.Ct. 1684, 1691-92, 6 L.Ed.2d 1081 (1961).

Like its Wyoming counterpart, the Fourth Amendment to the United States Constitution does not lay down a blanket prohibition upon all searches and seizures. It forbids only those which are unreasonable. Jessee v. State, 640 P.2d 56, 61 (Wyo.1982). The reasonability of any search or seizure may often depend largely upon whether the involved officer has first obtained a warrant. State v. Munger, 43 Wyo. 404, 407, 4 P.2d 1094, 1095 (1931). Where an officer lacks the time, foresight, or confidence in his case to first obtain such a warrant, the questioned search and/or seizure may be characterized as " 'per se unreasonable,' " subject " 'only to a few specifically established and well delineated exceptions.' " Kish v. State, 642 P.2d 453, 455 (Wyo.1982) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967)). The burden clearly rests upon the state, in such cases, to establish reasonability by showing the existence and applicability of such an exception. Jessee, 640 P.2d at 61.

It does not necessarily follow, from the foregoing, that searches conducted pursuant to a warrant are, per se, reasonable, although "an independent determination on the issue of probable cause has already been made by a magistrate, thereby giving rise to a presumption of legality." Malcolm v. United States, 332 A.2d 917, 918 (D.C.App.1975). The value of having first obtained a warrant may lie in a shifting of the onus probandi with respect to the issue of reasonability: "It is well settled that on a motion to suppress evidence obtained by search warrant, the moving party has the initial burden of establishing that his rights were violated." Id.; cf. United States v. Moore, 22 F.3d 241, 243 (10th Cir.), cert. denied, 513 U.S. 891, 115 S.Ct. 238, 130 L.Ed.2d 161 (1994). Furthermore, the moving party must carry the burden by a preponderance of the evidence. Davis v. State, 859 P.2d 89, 93 (Wyo.1993).

Review of a trial court's denial of a motion to suppress evidence is predicated upon acceptance of the trial court's findings of fact, unless clearly erroneous. Roose v. State, 759 P.2d 478, 487 (W...