Hixson v. State, 00-140.

• Decision Date: 18 October 2001
• Docket Number: No. 00-140.,00-140.
• Citation: 2001 WY 99,33 P.3d 154
• Parties: Gregory John HIXSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

33 P.3d 154

2001 WY 99

Gregory John HIXSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 00-140.

Supreme Court of Wyoming.

October 18, 2001.

Sylvia L. Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Assistant Appellate Counsel; Diane E. Courselle, Director, Defender Aid Program; and Mark Scarr, Student Intern., Representing Appellant.

Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Thomas Kelley, Student Intern., Representing Appellee.

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

VOIGT, Justice.

[¶ 1] This is an appeal from a Judgment and Sentence entered after the appellant, Gregory John Hixson, was convicted by a jury of conspiracy to manufacture a controlled substance, in violation of Wyo. Stat. Ann. §§ 35-7-1031(a)(i) and 35-7-1042 (LexisNexis 2001), a felony, and two counts of possession of a controlled substance, in violation of Wyo. Stat. Ann. § 35-7-1031(c)(i) (LexisNexis 2001), both being misdemeanors. The primary issue is the sufficiency of an affidavit that resulted in the issuance of a search warrant. The appellant also argues that the plain view doctrine is not available to the State to salvage the fruits of the search. For the reasons set forth below, we reverse.

ISSUES

[¶ 2] The issues before this Court are:

1. Was the affidavit sufficient to support the judicial officer's conclusion that probable cause existed for issuance of the search warrant?

2. Was the seizure of items from the appellant's home during his arrest nevertheless justified under the plain view doctrine?

FACTS

[¶ 3] Analysis of this case must begin with a chronology of significant events. On August 10, 1999, law enforcement officers worked with a confidential informant (CI1) to purchase controlled substances from Jason Schibig. CI1 told Wheatland Police Officer Don London that Schibig had told her that Schibig had purchased the controlled substances from the appellant. On August 14, 1999, the police officers worked with a second confidential informant (CI2) to purchase controlled substances directly from the appellant. On August 25, 1999, an Information was filed charging the appellant with unlawful delivery of a controlled substance based on the August 14, 1999, transaction.¹ Also on August 25, 1999, an arrest warrant was issued for the appellant, and Officer London signed an affidavit to support his request for a search warrant directed to the appellant's residence. The search warrant was obtained on August 26, 1999, and executed, along with the arrest warrant, on August 27, 1999. Finally, a second Information was filed on August 28, 1999, charging the appellant with the three counts that are at issue in this appeal. The charges contained in the second Information stemmed from evidence obtained during the search of the appellant's residence pursuant to the warrant, and on his person following his arrest.

[¶ 4] After being bound over to the district court for trial on all four of the charges, the appellant filed a Motion in Limine to Suppress Evidence. The gist of that motion was that Officer London's affidavit failed to provide a substantial basis from which the issuing judicial officer could conclude there was probable cause to issue the search warrant. Specifically, the appellant contended that the affidavit contained conclusions and false statements. The present appeal is from the district court's denial of the motion to suppress evidence.

DISCUSSION

THE SEARCH WARRANT

[¶ 5] The Fourth Amendment to the United States Constitution and Wyo. Const. art. 1, § 4 both protect the people against unreasonable searches and seizures. This Court has had many occasions to compare and apply these two provisions. See Cordova v. State, 2001 WY 96, ¶¶ 5-11, 33 P.3d 142, 146-148 (Wyo.2001)

and Vasquez v. State, 990 P.2d 476, 482-89 (Wyo.1999). Because of the desire recognized in Cordova, 2001 WY 96, ¶ 6,

33 P.3d at 146, and Vasquez, 990 P.2d at 486, to "develop our own constitutional principles under the state provision," we begin by looking to Wyo. Const. art. 1, § 4, which 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.

See Cordova, 2001 WY 96, ¶ 6,

33 P.3d at 146; Vasquez, 990 P.2d at 485. Of significance to our analysis is the language therein requiring the probable cause finding for the issuance of a search warrant to be supported by affidavit.² The requirement of an affidavit "strengthens" the Wyoming citizen's rights by creating a permanent record. Vasquez, 990 P.2d at 483; Davis v. State, 859 P.2d 89, 93 (Wyo.1993).

[¶ 6] Wyoming's law concerning the probable cause necessary for the issuance of a search warrant, as well as the standard for review of that decision, is succinctly stated in Davis, 859 P.2d at 94 (quoting Hyde v. State, 769 P.2d 376, 378, 379 (Wyo.1989)

; Bonsness v. State, 672 P.2d 1291, 1292 (Wyo.1983); Ostrowski v. State, 665 P.2d 471, 478 (Wyo.1983); United States v. Shelton, 742 F.Supp. 1491, 1498-99 (D.Wyo.1990); and Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978)):

In order to issue a search warrant, the judge or magistrate must have a "substantial basis" for concluding that probable cause exists. * * * The judge or magistrate must be supplied with sufficient information to support his independent judgment that probable cause exists. * * * The affidavit "must include facts sufficient to warrant a reasonably prudent and cautious man to believe that a crime has been committed and that there is evidence of the crime at the place to be searched."

* * * While mere suspicion is not enough, certainty is not required. * * *

There is a presumption of validity with respect to the affidavit supporting a search warrant. * * * Furthermore, the affidavit is to be tested by much less vigorous standards than those governing the admissibility of evidence at trial. * * * The issuing judge's determination should be paid great deference upon appeal. * * * Because of the preference for warrants, and the desire to encourage law enforcement personnel to seek warrants, any doubt should be resolved by sustaining the search.

We further delineated the nature of our scope of review in Cordova, 2001 WY 96, ¶¶ 9-15, 33 P.3d at 146-147.

[¶ 7] We traditionally review the sufficiency of an affidavit to support the issuance of a search warrant under Wyo. Const. art. 1, § 4 de novo, giving deference³ to the issuing magistrate's determination of probable cause such that it places the burden on the appellant to prove, by a preponderance of the evidence, that his rights were violated. Cordova, 2001 WY 96, ¶ 10, 33 P.3d at 148; Hall v. State, 911 P.2d 1364, 1367 (Wyo.1996); Guerra v. State, 897 P.2d 447, 452 (Wyo.1995). Review of the magistrate's decision is accomplished under a "totality of the circumstances" test, but it must not be forgotten that, in determining probable cause to issue a search warrant, the magistrate is limited to "the four corners of the proffered affidavit in determining existence of probable cause."⁴ Southworth v. State, 913 P.2d 444, 448 (Wyo.1996); Hall, 911 P.2d at 1368; Guerra, 897 P.2d at 453; Ostrowski, 665 P.2d at 478. Likewise, Wyoming's constitutional affidavit requirement means that "[s]upplemental testimony taken [during a suppression hearing] cannot be considered in determining whether probable cause existed at the time the warrant was issued."⁵ Cordova, 2001 WY 96, ¶ 9, 33 P.3d at 147. The affidavit must "supply the issuing officer with sufficient information to make an independent judgment that probable cause exists for the warrant. To that end, the affidavit must include more than bare conclusions of the affiant" and the affiant must "adequately articulate the factual basis for their request...." Cordova, 2001 WY 96, ¶¶ 13-14, 33 P.3d at 148 (emphasis in original).

[¶ 8] The affidavit used to obtain the warrant to search the appellant's residence reads in full as follows:

AFFIDAVIT OF DON LONDON

COMES NOW the Affiant, Don London, who after being duly sworn upon his oath, states as follows:

1. I am employed as an officer with the Wheatland Police Department.

2. I am certified as a peace officer in the State of Wyoming, and have been so certified at all times relevant herein.

3. Pursuant to an investigation conducted in Wheatland, Wyoming, a confidential informant purchased controlled substances from a Jason Schibig.

4. As part of the purchase on August 10, 1999, money was given to Schibig by the confidential informant at a motel in Wheatland.

5. After receiving the money from the confidential informant, Schibig traveled to 905 14th Street, Wheatland, and then returned to the motel bringing marijuana and methamphetamine.

6. On a second occasion on that same date, Jason Schibig received an additional order for methamphetamine and again traveled to 905 14th Street, Wheatland, and returned bearing the controlled substance.

7. The amounts of controlled substances ordered by the confidential informant and delivered by Schibig were of differing weights and discussion was had between Schibig and the confidential informant of the differing weights of the materials and the various pricing for different amounts of these substances.

8. One of the residents at 905 14th Street, Wheatland, is a Gregory John Hixson.

9. On August 14, 1999, a different confidential informant purchased approximately ¼ oz. of marijuana from Mr. Hixson.

10. In the course of the Schibig transactions, Mr. Schibig informed the confidential informant that the drugs he was delivering were coming from Hixson.

...