Hyde v. State

• Decision Date: 17 February 1989
• Docket Number: No. 88-109,88-109
• Citation: 769 P.2d 376
• Parties: Ver Dean HYDE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 376

769 P.2d 376

Ver Dean HYDE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 88-109.

Supreme Court of Wyoming.

Feb. 17, 1989.

Leonard D. Munker, State Public Defender, Steven E. Weerts, Sr. Asst. Public Defender, and Norman A. Newlon, Legal Intern, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., and Sylvia Lee Hackl, Sr. Asst. Atty. Gen., for appellee.

Before THOMAS, URBIGKIT, MACY and GOLDEN, JJ., and BROWN, Ret. J BROWN, Justice, Retired.

A search of appellant's premises, authorized by a search warrant, resulted in the seizure of numerous growing marijuana plants, dried marijuana, scales and other paraphernalia. Appellant's motions to suppress evidence seized were denied and he was convicted by a jury of possession of a controlled substance with intent to deliver. Appellant was sentenced to a penitentiary term, fined, and assessed $50 for the Crime Victim's Compensation Account.

The issues on appeal are:

I

Whether the search of the appellant's house and garage was in violation of the United States and Wyoming Constitutions.

II

Whether the trial court's surcharge against the appellant for contribution to the Crime Victim's Compensation Account violates the appellant's rights under the United States and Wyoming Constitutions and whether the Crime Victim's Compensation Act violates the Wyoming Constitution.

We will affirm.

Appellant Ver Dean Hyde and one Barbara Clark commenced living together in 1984. In late 1986, appellant and Ms. Clark were the architects and builders of a garage located about fifty yards from the former's house. Initially appellant may have intended to use the second story of the garage for woodworking, but he soon became interested in horticulture. He decided to use this space for a greenhouse to develop a specific variety of marijuana plant. He experimented with different varieties.

In the early months of 1987, Barbara Clark and Kathy Jorgensen became acquainted. Ms. Clark and Ms. Jorgensen traded marijuana and the former became Ms. Jorgensen's supplier. On April 14, 1987, Ms. Clark delivered a half-ounce of marijuana to Ms. Jorgensen, who in turn sold it to Georgia Rollins, a friend of her daughter, Suni. Georgia Rollins was, in fact, an undercover name for Veronica Davison, who had enrolled in Star Valley High School as an undercover narcotics agent to assist the Lincoln County Sheriff's Office. On that day, Ms. Davison (a/k/a Rollins) was wearing a body microphone, and her conversations with the Jorgensens were monitored by Detective Ron Hartley.

After observing the events of April 14, 1987, and the controlled buy, Detective Hartley obtained a search warrant for appellant's residence. When the warrant was executed the next day, the officers found nine mature marijuana plants over four feet in height, along with several bags and boxes of marijuana, scales and other paraphernalia in appellant's house. The search of the garage yielded an additional 128 marijuana plants, dried marijuana, growing lights, and a cement mixer containing dirt and growing mixture.

Appellant was charged with possession of a controlled substance with intent to deliver. Before trial, appellant moved to suppress all evidence seized during the April 15, 1987, search of his house and garage. He challenged the sufficiency of the warrant and its execution. During the suppression hearing held on June 23, 1987, defense counsel argued that false statements were contained in the affidavit. His first contention was that the affidavit erroneously stated that "marijuana and other controlled substances" were believed to be present on the property.

Counsel also focused on an incorrect reference to Barbara Clark as Barbara Hyde, and argued that the statement, "[S]he says she can't get back to me until Dean gets home from work," was false because there was no evidence that "Dean" referred to Ver Dean Hyde. Finally, counsel contended that the only probable cause apparent from the affidavit was probable cause to search Barbara Clark's residence, not appellant's, and that, in any event, the warrant did not include the garage. In support of his contention that the garage was entirely separate from the house, defense counsel called as a witness an investigator, retained by the defense, who had examined appellant's property and taken photographs of it. The trial court reserved a ruling on the suppression motion.

On the morning of trial, defense counsel renewed the suppression motion. The trial court heard additional testimony from (1) the officer who prepared the affidavit, (2) Barbara Clark, (3) appellant, and listened to the arguments of counsel. The trial court ruled that the affidavit was sufficient and that the warrant was properly issued and executed. The motion to suppress was then denied and the trial court's ruling was embodied in a written order filed on January 26, 1988. The order in part stated:

The Defendant, Ver Dean Hyde, filed a motion to suppress evidence found in the search of the Ver Dean Hyde residence on April 15, 1987. This court denied the motion insofar as it pertained to the search of the house but reserved a ruling on the search of the garage. Prior to trial, on January 11, 1988, the Defendant again raised the issue of the search in a motion in limine. The court having heard the testimony and having considered all exhibits produced in the hearing, finds:

1. That the affidavit for a search warrant contained sufficient statements of fact to support the finding of probable cause to issue a search warrant to search for controlled substances on the premises known as the residence of Ver Dean Hyde.

2. That the officer requesting the warrant acted in good faith and did not include a statement of fact in the affidavit known to him to be materially false nor did he omit a statement which would have led the commissioner issuing the warrant to conclude that no probable cause existed.

3. That the garage which was searched was approximately 50 yards from the Ver Dean Hyde house; was enclosed with the house by a fence on the east and south, a country road on the north and an open field to the west; was not separated from the house by a fence or other feature which would indicate that it was separate from the residence. There was evidence of use in conjunction with the house, a trail or path led from the house to the garage, there were two vehicles parked between the house and the garage.

The foregoing facts in addition to other facts developed at the hearing on the motion in limine leads the court to find as a matter of fact that the garage was within the curtilage of the residence of Ver Dean Hyde. The garage therefore did not need to be named specifically in the warrant and affidavits and the search of the garage as part of the premises known as the Ver Dean Hyde residence was proper.

IT IS THEREFORE ORDERED that the motion to suppress and the motion in limine seeking to suppress the evidence found in the search of the Defendant's house and garage are hereby denied.

Appellant was convicted of possession of a controlled substance with intent to deliver in violation of W.S. 35-7-1031(a)(ii) (Cum.Supp.1987).

I

On appeal, appellant attacks the affidavit in support of a search warrant and challenges the sufficiency of the search warrant and the scope of the search. The trial court's findings on the motion to suppress "are binding on this court unless clearly erroneous." Neilson v. State, 599 P.2d 1326, 1330 (Wyo.1979), cert. denied 444 U.S. 1079, 100 S.Ct. 1031, 62 L.Ed.2d 763 (1980).

The basic principles governing search warrants have been summarized by this court in Bonsness v. State, 672 P.2d 1291, 1292-93 (Wyo.1983) (footnotes omitted):

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.

In reviewing the sufficiency of the affidavit, we first note that "[t]here is, of course, a presumption of validity with respect to the affidavit supporting the search warrant." Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667, 682 (1978). One who challenges an affidavit must allege "deliberate falsehood" or "reckless disregard for the truth." Id. at 171, 98 S.Ct. at 2684 (emphasis added). See also Williams v. State, 655 P.2d 273, 277 (Wyo.1982). Appellant neither makes such allegations nor supports them with the requisite offer of proof.

Furthermore, this court adopted the " 'totality of the circumstances' " test as the appropriate standard by which to review the sufficiency of a probable cause determination. Bonsness, 672 P.2d at 1293, citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). When that test is applied to the affidavit in the case here, it is evident that the court commissioner acted properly in...