Hall v. State, 95-36

Decision Date26 February 1996
Docket NumberNo. 95-36,95-36
Citation911 P.2d 1364
PartiesJudy Elaine HALL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Michael J. Krampner of Krampner & Fuller, Casper (argued), for Appellant.

William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Mary Beth Wolff, Senior Assistant Attorney General (argued), for Appellee.


LEHMAN, Justice.

Appellant Judy Elaine Hall (Hall) appeals her convictions for burglary, in violation of W.S. 6-3-301(a)(b), and concealing stolen property, in violation of W.S. 6-3-403(a)(i). Hall challenges the sufficiency of the affidavit and particularity within the search warrant used to seize her property. Hall also asserts that the district court erred when it denied her motion to dismiss the charge of concealing stolen property pursuant to W.R.Cr.P. 48.

We affirm.


Hall phrases the issues as:

1. Did the June 24th, 1992, search warrant fail to particularly describe the thing to be seized, requiring suppression of the engine?

2. Did the officers who executed that warrant search and seize beyond the scope of the authority given to them by the warrant?

3. Was the warrant under authority of which the engine was seized issued without probable cause?

4. Does a "good faith" exception for failure of particularity apply in this case?

5. Did the district court err in refusing to dismiss Count II of the Information for violation of Rule 48, W.R.Cr.P., when approximately two years elapsed from the first arraignment on that charge to trial?

The State rephrases the issues as:

I. Whether the search warrant was supported by sufficient probable cause and was properly executed?

II. Whether the trial court properly denied Appellant's Motion to Dismiss Count II of the Information pursuant to Rule 48, W.R.Cr.P.?


On April 10, 1992, Craig Bush (Bush) discovered that his 1957 Chevrolet sports coupe was missing from the Gillette Campus Vo- Officers located the pickup at Hall's residence, and confirmed that the engine generally met the description of the stolen engine as set out in the warrant. Unable to locate the serial numbers on the engine to make a positive identification, however, the officers seized the truck and had it taken to a Chevrolet garage. At the garage the engine was dismantled, serial numbers located, and parts identified which matched those of the stolen engine.

Tech North College shop were it was being rebuilt and stored. Two months later an informant told Bush that Hall had been bragging that she and some friends had stolen the car, dismantled and disposed of the car body, and then placed the engine into Hall's truck. Bush contacted the sheriff's department, and a meeting was set up between a detective and the informant. A search warrant, supported by an affidavit detailing the information and corroborated facts supplied by the informant, issued to search for the engine in Hall's pickup.

In October of 1992, Hall was charged with felony larceny and concealing or disposing of stolen property. In May of 1993, the court granted a prosecution motion to dismiss. The charge of concealing or disposing of stolen property was refiled and again dismissed on November 18, 1993, on the basis that more than 120 days had elapsed since Hall's arraignment and W.R.Cr.P. 48 mandated dismissal. Thereafter, the police obtained additional information of the burglary and Hall's involvement. Hall was then charged with burglary and concealing or disposing of stolen property. Hall moved to suppress the engine as evidence and to dismiss the charge of concealing or disposing of stolen property; the district court denied both motions. Trial was held in September of 1994, whereupon Hall was found guilty of both counts. Hall timely appeals.

I. Standard of review

Hall argues that the district court erred in denying her motion to suppress the engine as evidence. The standard of review for the denial of a motion to suppress is one of abuse of discretion, which has been said to mean an error of law committed by the court under the circumstances. Morris v. State, 908 P.2d 931, 934 (Wyo.1995); Wilson v. State, 874 P.2d 215, 218 (Wyo.1994); Davis v. State, 859 P.2d 89, 93 (Wyo.1993).

Findings on factual issues made by the district court considering a motion to suppress are not disturbed on appeal unless they are clearly erroneous. Hyde v. State, 769 P.2d 376, 378 (Wyo.1989); Roose v. State, 759 P.2d 478, 487 (Wyo.1988). * * * Since the district court conducts the hearing on the motion to suppress and has the opportunity to: assess the credibility of the witnesses; the weight given the evidence; and make the necessary inferences, deductions and conclusions, evidence is viewed in the light most favorable to the district court's determination. United States v. Werking, 915 F.2d 1404, 1406 (10th Cir.1990).

Morris, at 934 (quoting Wilson, at 218); see also Bravo v. State, 897 P.2d 1303, 1305 (Wyo.1995); Guerra v. State, 897 P.2d 447, 452 (Wyo.1995).

On a motion to suppress evidence obtained by a search warrant, the moving party has the burden of establishing by a preponderance of the evidence that his rights were violated. Guerra, at 452 (citing Davis, 859 P.2d at 93). We defer to the district court's finding of facts regarding this unless clearly erroneous. Guerra, at 452-53; DeLeon v. State, 894 P.2d 608, 611 (Wyo.1995); Wilson, at 218. Therefore, the district court's denial of Hall's motion to suppress, and the underlying issues regarding the validity and execution of the warrant and the search and seizure, are reviewed pursuant to an abuse of discretion-clearly erroneous standard; the ultimate issue, whether a search and seizure occurred in violation of Hall's Fourth Amendment rights, is a question of law and is reviewed de novo. Wilson, at 218; Guerra, at 452-53.

II. Discussion

The Fourth Amendment to the United States 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 Warrants shall issue, but upon probable cause Article 1, § 4 of the Wyoming Constitution has been recognized by this court to be somewhat stronger than its federal counterpart, in that under our Wyoming Constitution it is mandatory that the search warrant be issued upon an affidavit. See Davis, 859 P.2d at 93. Hall attacks the validity of the search warrant issued in this case, arguing: no probable cause existed for the issuance of the search warrant; the search warrant did not particularly describe the item to be seized; and the officers executing the warrant went beyond the scope of authority given to them by the warrant.

supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

A. Sufficiency of Probable Cause

Hall argues that sufficient probable cause did not exist for issuance of the search warrant because in the affidavit there is no indication of the confidential informant's reliability or basis for his knowledge and only innocent details provided by the informant were corroborated. On appeal, there is a presumption of validity with respect to the affidavit supporting the search warrant. Davis, 859 P.2d at 94; Hyde v. State, 769 P.2d 376, 379 (Wyo.1989). A review of a magistrate's determination of the sufficiency of probable cause is reviewable under a "totality of the circumstances test." Davis, 859 P.2d at 94 (citing Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983)); Hyde, 769 P.2d at 379; Bonsness v. State, 672 P.2d 1291, 1293 (Wyo.1983). It is well established that:

In order to issue a proper search warrant, a magistrate must have a "substantial basis" for concluding that probable cause exists. A magistrate's determination of probable cause should be paid great deference. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d. 697, 78 A.L.R.2d 233 (1960).

The Wyoming Constitution requires that a search warrant be issued only upon a showing of probable cause. Probable cause must be supported by an affidavit which supplies the issuing officer with sufficient information to make an independent judgment that probable cause exists for the warrant. Ostrowski v. State, Wyo., 665 P.2d 471 (1983). The affidavit in support of the warrant, therefore, must include more than bare conclusions of the affiant. Facts which lead the affiant to believe that a warrant is justified must be presented in the affidavit. The test for determining the existence of probable cause is whether a factual situation is sufficient to warrant a reasonably cautious or prudent man to believe that a crime was being committed or that one had been committed. Smith v. State, Wyo., 557 P.2d 130 (1976). This test requires that the issuing officer weigh and consider all of the circumstances surrounding the issuance of a warrant.

Bonsness, at 1292-93 (footnote omitted); see also Davis, 859 P.2d at 94, and Hyde, 769 P.2d at 378-79. Although mere suspicion is not enough, certainty is not required. The affidavit is to be tested by much less vigorous standards than those governing the admissibility of evidence at trial. Davis, at 94.

At the motion to suppress hearing, the district court heard testimony from the officer who executed the search warrant and had before it the warrant and supporting affidavit. The district court entered an order finding that, giving great deference to the issuing magistrate and in reviewing the information available and considering the totality of the circumstances, there was sufficient probable cause for issuance of the search warrant. We agree. The record in this case satisfies the "totality of the circumstances" test by the following:

1) Bush reported that his 1957 Chevrolet coupe had...

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