Rohda v. State

• Decision Date: 27 September 2006
• Docket Number: No. 03-201.,03-201.
• Citation: 2006 WY 120,142 P.3d 1155
• Parties: Robert Edward ROHDA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

142 P.3d 1155

2006 WY 120

Robert Edward ROHDA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 03-201.

Supreme Court of Wyoming.

September 27, 2006.

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Representing Appellant: Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel. Argument by Ms. Domonkos.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Daniel M. Fetsco, Assistant Attorney General. Argument by Mr. Fetsco.

Before VOIGT, C.J., and GOLDEN, HILL,^* and KITE, JJ., and STEBNER, D.J., Retired.

GOLDEN, Justice.

[¶ 1] Appellant Robert Edward Rohda was charged with violations of state drug laws after state law enforcement officers executing a search warrant discovered marijuana in a shed on Rohda's residential property in Buffalo, Wyoming. The search warrant was issued by a district court commissioner who had determined the existence of probable cause on the strength of an affidavit signed under oath by a special agent of the state division of criminal investigation. The affidavit included hearsay statements of other law enforcement personnel and three confidential informants. Before trial, Rohda moved to suppress evidence seized during the search, asserting that the affidavit was insufficient to establish probable cause as required under both Article 1, Section 4 of the Wyoming Constitution and the Fourth Amendment of the United States Constitution. After a hearing on Rohda's motion, the district court that reviewed the district court commissioner's probable cause determination denied the motion. Rohda then entered a conditional guilty plea to one count of felony possession of marijuana, reserving his right to appeal the district court's order denying his motion to suppress. Pending this appeal, execution of Rohda's sentence was stayed, and Rohda was released on bond.

[¶ 2] Rohda and the State agree that the single issue for this Court's review, as it was for the district court at the suppression hearing, is the district court commissioner's probable cause determination.¹ For reasons expressed more fully below, this Court holds that that determination was correct. Consequently, this Court affirms Rohda's judgment and sentence and remands this case to the district court with directions to take appropriate action in light of this decision.

STANDARD OF REVIEW

The Appellate Standard of Review

[¶ 3] This Court's standard of review applicable to probable cause determinations based on search warrant affidavits is wellknown and need not be repeated here at great length. See, e.g., TJS v. State, 2005 WY 68, 113 P.3d 1054 (Wyo.2005); Page v. State, 2003 WY 23, 63 P.3d 904 (Wyo.2003); Kitzke v. State, 2002 WY 147, 55 P.3d 696 (Wyo.2002); Bonsness v. State, 672 P.2d 1291 (Wyo.1983); Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984) (per curiam); Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

[¶ 4] The duty of reviewing courts is simply to ensure that the warrant-issuing judicial officer had a substantial basis for concluding that probable cause existed. As both our Court and the United States Supreme Court have recognized, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. See, e.g., Upton, 466 U.S. at 732-33, 104 S.Ct. at 2088; Gates, 462 U.S. at 236, 103 S.Ct. at 2331; Page, ¶ 9, 63 P.3d at 909; and Davis v. State, 859 P.2d 89, 94 (Wyo.1993).

The Warrant-Issuing Judicial Officer's Standard for Determining Probable Cause

[¶ 5] The judicial officer who is presented with an application for a search warrant supported by an affidavit applies a "totality of circumstances" analysis in making an independent judgment whether probable cause exists for the issuance of the warrant. See, e.g., Page, ¶ 9, 63 P.3d at 909; Upton, 466 U.S. at 732, 104 S.Ct. at 2087; and Bonsness, 672 P.2d at 1293. In making that independent judgment, the judicial officer is limited to the four corners of the supporting affidavit. Page, ¶ 9, 63 P.3d at 909. The "totality of circumstances" analysis requires the judicial officer simply "to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238, 103 S.Ct. at 2332; see Bonsness, 672 P.2d at 1293.

[¶ 6] The hearsay provider's "veracity" and "basis of knowledge" were the prongs of the "two-pronged test" established in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). See, e.g., Charles E. Moylan, Jr., Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741 (1974). This Court "never specifically adopted," and in fact rejected "the technical and rigid requirements" set out in Aguilar and Spinelli. Bonsness, 672 P.2d at 1293. In 1983, when the United States Supreme Court in Gates rejected those technical and rigid requirements, it realized, as our Court had, that the "totality of circumstances" approach was more in keeping with the practical, common sense decision required of the warrant-issuing judicial officer. Upton, 466 U.S. at 732, 104 S.Ct. at 2087. The warrant-issuing judicial officer does not measure the affidavit by a "reasonable doubt" standard or a "preponderance of evidence" standard; instead, the measure is that the circumstances set forth in the affidavit must amount to more than a mere suspicion yet need not rise to the level of prima facie evidence of guilt. Lee v. State, 2 P.3d 517, 523 (Wyo.2000).

[¶ 7] An appropriate set of guidelines for the "totality of circumstances" approach can be derived from United States Supreme Court cases, our Wyoming cases, and the work of respected commentators² who have reviewed federal and state case law in this area. The judicial officer deciding whether probable cause exists relies on information coming to him from the outside world. The primary source of that information is a law enforcement officer who is applying for the warrant and has signed under oath an affidavit in support of the application. The affiant law enforcement officer may include in his affidavit the raw data of his own sense perception, that is, what he saw, heard, or smelled firsthand. This firsthand information constitutes the affiant's basis of knowledge — how he acquired his information. From affiant's firsthand information, the judicial officer may draw conclusions about the existence or not of probable cause. With respect to the affiant's veracity or reliability, the judicial officer relies on the affiant's oath, with its sanctions of perjury, which is an integral part of the affiant's affidavit.

[¶ 8] Frequently, the affiant includes in his affidavit information acquired from secondary sources in the persons of other law enforcement officers or confidential informants. As in the case of the primary source affiant, so in the case of the secondary source person, the judicial officer must know both that person's veracity or reliability and basis of knowledge. Because the secondary source person is not before the judicial officer and has not taken an oath, the judicial officer must have a reasonable substitute for an oath in order to be satisfied with the veracity or reliability of the secondary source person. When the secondary source person is a law enforcement officer, courts hold that such an officer is presumed truthful or reliable and, therefore, no special showing of veracity or reliability is necessary. That rule applies not only to law enforcement officers in the same organization as the affiant, but also to those in different organizations at local, state, or federal levels. When the secondary source person is a confidential informant, the veracity or reliability requirement is usually met by the recitation in the affiant's affidavit by either the primary source affiant or the secondary source law enforcement officer of previous instances in which the law enforcement officer obtained information from the confidential informant that led to arrests or convictions. In the absence of such a recitation, an acceptable substitute recognized by courts is the confidential informant's admission of activities against his penal interests contained in the information provided. With respect to the secondary source person's basis of knowledge, the affiant's affidavit must contain the raw data of that person's sense perception — what that person saw, heard, or smelled firsthand. It is from that secondary source's firsthand knowledge that the judicial officer will be able to draw conclusions about the existence or not of probable cause. If the affidavit fails to show how the secondary source person acquired his information, courts have applied the notion of "self-verifying detail" to cure such a failure. Simply stated, the secondary source person's information is considered "self-verifying" if it describes the warrant-target's criminal activity in such sufficient detail that the judicial officer reasonably may know that he is relying on information more substantial than a casual rumor or an accusation based merely on general reputation.

[¶ 9] Mindful of our standard of review and of the above and foregoing guidelines for the "totality of circumstances" approach, we are ready to review whether the warrant-issuing district court commissioner had a substantial basis in the affidavit to make a practical, common sense determination that there was a fair probability that evidence of a crime would be found on Rohda's residential property.

DISCUSSION

[¶ 10] We begin our review by...