Smith v. State

• Decision Date: 04 October 2013
• Docket Number: Nos. S–12–0230,S–12–0231.,s. S–12–0230
• Citation: 311 P.3d 132
• Parties: Terry SMITH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Dena T. Blomquist, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

311 P.3d 132

Terry SMITH, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

Dena T. Blomquist, Appellant (Defendant),

v.The State of Wyoming, Appellee (Plaintiff).

Nos. S–12–0230, S–12–0231.

Supreme Court of Wyoming.

Oct. 4, 2013.

Representing Appellant Terry Smith: Christopher S. Leigh of Jackson, Wyoming.

Representing Appellant Dena T. Blomquist: Richard D. Stout of DeFazio Law Office, LLC, Jackson, Wyoming.

Representing Appellees: Gregory A. Phillips, Wyoming Attorney General; Peter K. Michael, Interim Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Jeffrey S. Pope, Assistant Attorney General; Christyne Martens, Assistant Attorney General; D. Terry Rogers and Clark C. Allan, Special Assistant Attorneys General. Argument by Mr. Rogers.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

VOIGT, Justice.

[¶ 1] On November 6, 2012, this Court issued a Notice of Agreement to Answer Certified Questions in these two unrelated cases. The questions we agreed to answer were stated as follows:

1. Did the Teton County Circuit Court err when it found that the remotely communicated search warrants, which were not based upon affidavit, issued pursuant to W.S. 31–6–102(d), do not violate Wyo. Const. art. 1, § 4?

2. Did the Teton County Circuit Court err when it found that the remotely communicated search warrants do not have to comply with the requirements of W.R.Cr.P. 41?

[¶ 2] We later concluded that, because the wording of the first question is such that it may be construed to be based upon a faulty legal premise, as will be discussed below, and because of clarification of search and seizure law by the United States Supreme Court in the interim, the questions should be re-phrased to better provide guidance to the State's courts. Consequently, we issued an Order Requiring Briefing on RevisedCertified Questions, in which we re-stated the questions as follows:

1. Do the procedures set forth in Wyo. Stat. Ann. § 31–6–102(d) (LexisNexis 2011) comply with the affidavit requirements of Wyo. Const. art. 1, § 4?

2. Must a remotely communicated search warrant issued pursuant to Wyo. Stat. Ann. § 31–6–102(a) comply with the requirements of W.R.Cr.P. 41?

[¶ 3] We reply in the affirmative to both questions.

FACTS¹

[¶ 4] In separate incidents in Teton County, Wyoming, the two above-named appellants were arrested for driving while under the influence of alcohol (DWUI). Each appellant's blood-alcohol content was determined via the procedures set forth in Wyo. Stat. Ann. § 31–6–102(d) (LexisNexis 2013). That is, the circuit court judge issued a remotely communicated search warrant after speaking on the telephone with the arresting officer, who was under oath, and directing the officer to affix the judge's signature to the search warrant. The telephone calls were made by the officers to the judge via a recorded telephone line operated by the Teton County Sheriff's Office Dispatch.

[¶ 5] For the limited purpose of answering these questions within the confines of these two cases, we will presume that the officer in each case had probable cause to make the DWUI arrest, that the officer was placed under oath by the judge, that the officer in each case recited to the judge sufficient probable cause for the issuance of a search warrant, and that the recorded conversation can be or has been transcribed. In other words, the limited questions presented are whether the requirements of Wyo. Stat. Ann. § 31–6–102(d) are the equivalent of an affidavit under the state constitution and whether the dictates of W.R.Cr.P. 41(c) must be met.

WYO. CONST. ART. 1, § 4

[¶ 6] Wyoming's state constitutional protections against unreasonable search and seizure are found in Wyo. Const. art. 1, § 4:

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.

(Emphasis added.)

W.R.Cr.P. 41(c)

[¶ 7] Wyoming's Rules of Criminal Procedure provide the procedural requirements for the issuance of a search warrant at W.R.Cr.P. 41(c):

(c) Issuance and content of warrant.—A warrant shall issue only on affidavit sworn to before a person authorized by law to administer oaths and establishing the grounds for issuing the warrant. If the judicial officer is satisfied that the grounds for the application exist or that there is probable cause to believe that they exist, the judicial officer shall issue a warrant particularly identifying the property or person to be seized and naming or describing the person or place to be searched. Before ruling on a request for a warrant the judicial officer may require the affiant to appear personally and may examine under oath the affiant and any witnesses the affiant may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the affidavit. The warrant shall be directed to any officer authorized to enforce or assist in enforcing the state law. It shall state the grounds or probable cause for its issuance and the names of the persons whose affidavits have been taken in support thereof. It shall command the officer to search, within a specified period of time not to exceed 10 days, the person or place named for the property or person specified. The warrant shall direct that it be served between 6 a.m. and 10 p.m., unless the issuing authority, by appropriate provision in the warrant, and reasonable cause shown, authorizes its execution at other times. It shall designate the judicial officer to whom it shall be returned.

(Emphasis added.)

WYO. STAT. ANN. § 31–6–102(d)

[¶ 8] The statutory procedure for remotely communicated search warrants in DWUI cases is found at Wyo. Stat. Ann. § 31–6–102(d):

(d) If a person under arrest refuses upon the request of a peace officer to submit to a chemical test designated by the agency employing the peace officer as provided in subsection (a) of this section, none shall be given except in cases where serious bodily injury or death has resulted or upon issuance of a search warrant. A test of the agency's choice may be administered upon issuance of a warrant, including a remotely communicated search warrant, when reasonable under the circumstances and as provided in this subsection. A remotely communicated search warrant may be issued upon sworn or affirmed testimony of the peace officer who is not in the physical presence of a judicial officer, provided the judicial officer is satisfied that probable cause exists for the issuance of the warrant. All communication between the judicial officer and the peace officer or prosecuting attorney requesting the warrant may be remotely transmitted by voice, image, text or any combination thereof, or by other means and shall be recorded. The testimony and content of the warrant shall be recorded by writing or mechanical, magnetic, electronic, photographic storage or by other means. Upon approval, the judicial officer may direct a peace officer or the prosecuting attorney requesting a warrant from a remote location to sign the judicial officer's name on a warrant at a remote location. A remotely communicated search warrant shall be valid only for purposes specified in this subsection.

STANDARD OF REVIEW

[¶ 9] Certified questions are questions of law that are reviewed de novo pursuant to W.R.A.P. 11. Preston v. Marathon Oil Co., 2012 WY 66, ¶ 4, 277 P.3d 81, 83 (Wyo.2012); Sublette Cnty. Sch. Dist. No. Nine v. McBride, 2008 WY 152, ¶ 14, 198 P.3d 1079, 1083 (Wyo.2008).

DISCUSSION

[¶ 10] We begin this discussion by reference to a very recent opinion of the United States Supreme Court wherein it was held that “the natural metabolization of alcohol in the bloodstream [does not present] a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases.” Missouri v. McNeely, ––– U.S. ––––, ––––, 133 S.Ct. 1552, 1556, 185 L.Ed.2d 696 (2013). In other words, the Fourth Amendment to the United States Constitution demands that, absent an exigency or other exception to the general rule, a search warrant is required to draw blood for a blood-alcohol test in a DWUI case, with reasonableness of the search to be determined under all the attending circumstances. The parties suggest that McNeely is irrelevant to the issues in the instant case, but we asked for re-briefing because the circuit court relied specifically upon Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and Schmerber's material point, as will be discussed below, was overruled by McNeely.

[¶ 11] Perhaps it will be helpful at this point to summarize what we have just said about the status of the law in regard to the necessity for law enforcement officers to obtain a search warrant before determining an arrestee's blood-alcohol content via the withdrawal of a blood sample. The law of Schmerber—that the metabolization of alcohol in the blood is a per se exigency that creates an exception to the requirement to obtain a search warrant—has been overruled by the law of McNeely—which holds that the metabolization of alcohol in the blood is not a per se exigency that creates an exception to the requirement to obtain a search warrant. McNeely, ––– U.S. at ––––, 133 S.Ct. at 1563.The result is that whether a search warrant must be obtained before obtaining the blood sample depends upon reasonableness under all of the circumstances then attaining. That law is the same under the federal constitution and the state constitution. That leaves the question of whether the statutory requirements for obtaining a remotely communicated warrant are the equivalent of the state constitution's more stringent requirement for an...