Schirber v. State

• Decision Date: 27 September 2006
• Docket Number: No. 05-104.,05-104.
• Parties: Richard T. SCHIRBER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

142 P.3d 1169

2006 WY 121

Richard T. SCHIRBER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 05-104.

Supreme Court of Wyoming.

September 27, 2006.

COPYRIGHT MATERIAL OMITTED

Representing Appellant: Harry G. Bondi, Casper, Wyoming.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Matthew D. Obrecht, Student Intern. Argument by Mr. Obrecht.

Before VOIGT, C.J., and GOLDEN, HILL,^* KITE, and BURKE, JJ.

GOLDEN, Justice.

[¶ 1] Richard T. Schirber appeals from his conviction and sentence on one count of possession of a controlled substance in violation of Wyo. Stat. Ann. § 35-7-1031(c)(iii) and two counts of concealing stolen property in violation of Wyo. Stat. Ann. § 6-3-403(a)(i). Schirber claims the search warrant at issue was fatally flawed because the affidavit upon which it was based was insufficient to establish probable cause, and also that the search conducted incident to that warrant exceeded the scope of the warrant. Finding no error, we affirm.

ISSUES

[¶ 2] Schirber presents the following two issues on appeal:

I. Does the affidavit in support of the application for search warrant establish that it is probable that quantities of controlled substances, records of drug transactions, or proceeds from drug transactions, will be found at Appellant's residence on February 5, 2004? Does the information supplied by the informants supply a sound basis of knowledge of criminal activity, or is the sparse reference to criminal activity outdated and stale?

II. Was the execution of the search warrant at Appellant's residence overly broad and did execution exceed the scope and authority requested or granted when officers searched serial numbers of over two hundred property items including two portable radios?

FACTS

[¶ 3] On February 5, 2004, following an investigation into Schirber's involvement in the distribution of controlled substances in Thermopolis, Wyoming, Officer Mark Nelson of the Thermopolis Police Department obtained a warrant to search Schirber's residence. During the execution of the search warrant, law enforcement discovered Oxycontin (Oxycodone) tablets. The search also revealed several expensive hand-held radios. Officer Nelson removed the battery packs of the radios, where he believed drugs could be hidden. The serial numbers of the radios were exposed upon removal of the batteries. Officer Nelson recorded the serial numbers. Officer Nelson later ascertained that the radios belonged to Schirber's former employer. A new warrant was issued on March 2, 2004, authorizing the search of Schirber's residence and the seizure of the stolen radios and any other stolen property found therein. The search was conducted on March 4, 2004, resulting in the seizure of the stolen radios, along with other items belonging to Schirber's former employer.

[¶ 4] Schirber was charged with, among other things, concealing stolen property and possession of a controlled substance. Before trial, Schirber filed two motions to suppress the evidence discovered during the searches of his residence. The first motion was based on an allegation that law enforcement exceeded the scope of the February 5 warrant by removing the radios' battery packs and recording the serial numbers. In the second suppression motion, Schirber challenged the sufficiency of the affidavit supporting the issuance of the February 5 search warrant. The district court denied both motions. Schirber was ultimately convicted of one count of possession of a controlled substance, in violation of Wyo. Stat. Ann. § 35-7-1031(c)(iii) (LexisNexis 2005), and two counts of concealing stolen property, in violation of Wyo. Stat. Ann. § 6-3-403(a)(i) (LexisNexis 2005). This appeal followed.

DISCUSSION

Issuance of the February 5 Search Warrant

Standard of Review

[¶ 5] In reviewing an affidavit in support of an application for a search warrant, this Court is mindful of the fact that there is a strong preference under the law for law enforcement officers to obtain a warrant instead of engaging in a warrantless search. Cordova v. State, 2001 WY 96, ¶ 11, 33 P.3d 142, 148 (Wyo.2001). Thus, an affidavit comes to this Court with a presumption of validity. TJS v. State, 2005 WY 68, ¶ 10, 113 P.3d 1054, 1057 (Wyo.2005). In order to promote the warrant process, and remembering that affidavits are not normally executed by legal technicians, this Court resolves doubtful or marginal cases in this area in favor of sustaining the warrant. TJS, ¶ 10, 113 P.3d at 1057; Cordova, ¶ 11, 33 P.3d at 148; Hixson v. State, 2001 WY 99, ¶ 6, 33 P.3d 154, 156-57 (Wyo.2001). Ultimately, our duty on review simply is to ensure that the warrant-issuing judicial officer had a substantial basis for concluding probable cause existed. Massachusetts v. Upton, 466 U.S. 727, 728 732-33, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721 (1984) (per curiam).

Analysis

[¶ 6] On appeal, Schirber earnestly maintains that the affidavit executed and submitted by Officer Nelson, which is comprised primarily of statements from cooperating witnesses (CWs), fails to contain sufficient information to support a finding by a neutral magistrate of probable cause, a necessary precursor to the issuance of a warrant under both Article 1, Section 4 of the Wyoming Constitution and the Fourth Amendment of the United States Constitution. The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances. TJS, ¶ 10, 113 P.3d at 1057; Davis v. State, 859 P.2d 89, 94 (Wyo.1993); Ostrowski v. State, 665 P.2d 471, 478 (Wyo.1983); Smith v. State, 557 P.2d 130, 133 (Wyo.1976). Probable cause

is a "practical, nontechnical conception." Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). "In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Id., at 175, 69 S.Ct. at 1310.

* * * *

[P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.

Illinois v. Gates, 462 U.S. 213, 231-32, 103 S.Ct. 2317, 2328-29, 76 L.Ed.2d 527 (1983); see Guerra v. State, 897 P.2d 447, 453-54, 456 (Wyo.1995).

[¶ 7] When reviewing affidavits for probable cause, this Court continues to adhere to the standard espoused by the United States Supreme Court:

The task of the issuing magistrate is 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 also TJS, ¶¶ 12-13, 113 P.3d at 1057-58; Cordova, ¶ 15, 33 P.3d at 149; Hixson, ¶ 11, 33 P.3d at 159; Hyde v. State, 769 P.2d 376, 380 (Wyo.1989); Bonsness v. State, 672 P.2d 1291, 1293 (Wyo.1983). An affidavit must contain sufficient information within its four corners to allow the issuing judicial officer to make an independent determination that probable cause exists. Some underlying factual information, as opposed to mere suspicions or conclusory statements, must be supplied.

[¶ 8] Many factors may be relevant to a determination of the veracity and the basis of knowledge of an informant. A non-exhaustive lists includes: whether the informant has previously given reliable information to law enforcement; whether the statements of the informant are against the informant's penal interests; whether the informant acquired knowledge of the events through firsthand observation; whether the amount of detail provided is sufficient to make the statement self-verifying; the interval between the date of the events and the law enforcement officer's application for a warrant; and the extent to which law enforcement officers have corroborated the informant's statements. Also relevant is whether the law enforcement affiant included a professional assessment of the probable significance of the facts related by the informant, based on experience or expertise. See Gates, 462 U.S. at 233-34, 103 S.Ct. at 2329-30; United States v. Harris, 403 U.S. 573, 584-85, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723 (1971); United States v. Mykytiuk, 402 F.3d 773, 776-77 (7th Cir. 2005); United States v. Zayas-Diaz, 95 F.3d 105, 111 (1st Cir.1996). No one factor is dispositive in the credibility analysis, and a deficiency in one may be compensated by a strong showing of another. Id.

[¶ 9] With this analytical framework in mind, we turn to Schirber's complaint that the affidavit supporting the February 5 search warrant is insufficient to support a finding of probable cause. The affidavit reads:¹

AFFIDAVIT OF MARK NELSON

THE UNDERSIGNED, Mark Nelson, being of lawful age, and being first duly sworn upon his oath, deposes and says:

1. That I am a certified Wyoming Law Enforcement Officer employed by the Town of Thermopolis, Wyoming as a Police Officer.

2. That I have reason to believe that at 640 Fremont, Thermopolis, Hot Springs County, Wyoming, * * * owned by William J. Bruckner and Billie Lou Bruckner and currently occupied by Richard "Rick" Schirber there is being concealed certain property, to-wit: controlled substances, illegal drugs, or evidence of use or transactions in illegal drugs and controlled substances, plus documentation, whether it be written, audio, video or visual pertaining to the use or transactions in controlled substances to include, but not limited to drug paraphernalia, package materials, containers, photographs, lock boxes...