Southworth v. State
| Decision Date | 20 March 1996 |
| Docket Number | No. 95-49,95-49 |
| Citation | 913 P.2d 444 |
| Parties | Mark SOUTHWORTH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Sylvia L. Hackl, State Public Defender; Deborah Cornia, Assistant Public Defender; Gerald M. Gallivan, Director of the Defender Aid Program; and Frederick Dethlefsen and Delia Reeves, Student Interns for the Defender Aid Program, for Appellant.
William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General, for Appellee.
Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.
Appellant Mark Southworth appeals from his conviction for possession with intent to deliver marijuana.
We affirm.
Appellant did not include in his brief a statement of the issues which are being presented for our review as is required by W.R.A.P. 7.01(d). He does, however, make three arguments in his brief:
ARGUMENT I
Evidence derived from the search of Appellant's residence should have been suppressed as the affidavit for a search warrant did not establish probable cause to search and the officer[ ]s could not have reasonably relied in good faith on the warrant, thus the police were not legitimately on the premises when the plain view search and seizure occurred.
Testimonial and physical evidence derived from the custodial interrogation of Appellant should also have been suppressed as he was not informed of his rights against self incrimination prior to questioning.
The Wyoming Supreme Court should decline to adopt a good faith exception to the exclusionary rule under Article I § 4 of the Wyoming Constitution.
Computer equipment was taken from a Cheyenne elementary school in a burglary which was discovered on January 2, 1994. This burglary was featured on the "Silent Witness" television program during the week of January 10, 1994.
An informant told a detective for the Laramie County sheriff's department that he had observed Appellant hooking up some computer equipment which appeared to match the description of the equipment featured on the "Silent Witness" program. He reported that he had learned from his and Appellant's mutual friend that the person who had stolen the computer equipment asked Appellant to get rid of it and that, instead of doing so, Appellant decided to keep the equipment. The informant said that the mutual friend had also mentioned that the school district identification tags were still attached to the computer equipment.
The detective prepared an affidavit to support the issuance of a search warrant. On the basis of this affidavit, the county court judge issued a search warrant for Appellant's residence, listing the items to be searched for as:
Two Apple IIe disc drives
Apple IIe monitor
Computer cables
Other stolen property belonging to the Laramie County School District
Five officers executed the warrant on January 18, 1994, at a mobile home which was Appellant's residence. When they arrived at the mobile home, one of the residents was in the front yard. The officers entered the mobile home with their weapons drawn in order to secure the premises. Another resident was in the living room, watching television. As two of the officers were proceeding down the hallway, they encountered Appellant, who apparently was leaving his bedroom. They advised him that they had a search warrant and asked him to wait in the living room until they secured the mobile home. Appellant informed the officers that he needed to take his dog outside, which he did. Appellant reentered the mobile home and proceeded to wander around.
When the officers had the premises secured, they holstered their weapons. One officer returned to Appellant's bedroom to begin his search. Almost immediately, he noticed a large plastic baggie of marijuana which was sitting on top of a cassette holder on a dresser. Appellant appeared in the doorway to his bedroom, and the officer asked him about the marijuana. Appellant replied that this baggie contained the stash which he kept for friends and that he had not had time to get rid of it. He further offered that he kept his personal stash in the headboard of his waterbed. He also told the officer that he sold only enough marijuana to allow him to smoke for free. When he was asked whether he had any scales, Appellant went to a dining room cabinet and retrieved a scale.
The officers discovered the computer equipment in another bedroom, but the school district identification tags were missing. The officers, therefore, conducted an intensive search of the entire mobile home, looking for the missing tags. A further search of the dining room cabinets revealed a larger scale as well as some other drug paraphernalia. The officers seized the marijuana After they completed the search of the mobile home, the officers asked the three residents to accompany them to the sheriff's department to answer some questions. The residents rode with the officers in separate vehicles and were interviewed in separate rooms. After the interviews were completed, an officer gave the residents a ride back to their mobile home.
the scales, the drug paraphernalia, and the computer equipment.
On February 25, 1994, several weeks after the search had been made, a warrant for Appellant's arrest was issued, and a criminal information was filed which charged Appellant with possession with intent to deliver marijuana as defined in WYO.STAT. §§ 35-7-1031(a)(ii) and 35-7-1014(d)(xxi) (1985). Appellant was arrested, and, at his arraignment, he pleaded not guilty.
Appellant moved on Fourth Amendment and Fifth Amendment grounds to suppress the bags of marijuana, the scales, and the statements which he made to the officers. A hearing was held, and the district court denied Appellant's motion. Appellant subsequently entered a conditional guilty plea, reserving the right to appeal from the denial of his motion to suppress. The district court sentenced Appellant to serve a prison term of not less than two years nor more than four years but then suspended Appellant's jail sentence and placed him on supervised probation for a period of four years. Appellant appealed to this Court.
We do not disturb the findings on factual issues which the district court has made in considering a motion to suppress unless the findings are clearly erroneous. Wilson v. State, 874 P.2d 215, 218 (Wyo.1994). Since the district court conducts the hearing on the motion to suppress and has the opportunity to assess the credibility of the witnesses, weigh the evidence, and make the necessary inferences, deductions, and conclusions, we view the evidence in the light most favorable to the district court's determination. Id. The constitutionality of a particular search or seizure is a question of law which we review de novo. DeLeon v. State, 894 P.2d 608, 611 (Wyo.1995).
Appellant contends that the information contained in the affidavit failed to satisfy the substantial basis test which is used in determining whether probable cause supported the issuance of the search warrant.
We have often addressed the issue of whether an affidavit in support of a search warrant contained sufficient information for the issuing judge to make an independent judgment that probable cause existed. Bland v. State, 803 P.2d 856 (Wyo.1990); Roose v. State, 759 P.2d 478 (Wyo.1988); Bonsness v. State, 672 P.2d 1291 (Wyo.1983). We have said:
Roose, 759 P.2d at 485 (quoting Bonsness, 672 P.2d at 1292-93 (footnote and citations omitted)). See Bland, 803 P.2d at 859-60; see also Guerra v. State, 897 P.2d 447, 455 "A magistrate's determination of probable cause is reviewable, under a 'totality of the circumstances test.' " Id. (citing Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328-29, 76 L.Ed.2d 527 (1983); Bonsness, 672 P.2d at 1293). An affidavit upon which a search warrant is issued carries a presumption of validity. Id.; see also Guerra, 897 P.2d at 452.
(Wyo.1995). While mere suspicion is not adequate, certainty is not required. Davis v. State, 859 P.2d 89, 94 (Wyo.1993).
In determining whether an affidavit establishes probable cause, a magistrate is entitled to rely upon practical considerations of everyday life. 897 P.2d at 456. "The 'affidavits of probable cause for search are to be tested by much less rigorous standards than those governing admissibility of evidence at the trial.' " Hyde v. State, 769 P.2d 376, 380 (Wyo.1989) (quoting Deeter v. State, 500 P.2d 68, 70 (Wyo.1972)).
Applying the above rules to the affidavit in the case at bar and considering the totality of the circumstances, we conclude that sufficient probable cause supported the issuance of the warrant. The affidavit which was presented to the county court judge provided in...
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