State v. Deen

• Decision Date: 08 January 2015
• Docket Number: No. S–14–0079.,S–14–0079.
• Citation: 2015 WY 5,340 P.3d 1036
• Parties: The STATE of Wyoming, Petitioner, v. Dustin DEEN, Respondent.
• Court: Wyoming Supreme Court

340 P.3d 1036

2015 WY 5

The STATE of Wyoming, Petitioner

v.Dustin DEEN, Respondent.

No. S–14–0079.

Supreme Court of Wyoming.

Jan. 8, 2015.

Representing Petitioner: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; and Nathan Henkes, Special Assistant Attorney General. Argument by Mr. Henkes.

Representing Respondent: Office of the State Public Defender: Diane Lozano, State Public Defender; and Tina N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.

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

Opinion

HILL, Justice.

[¶ 1] Dustin Deen was arrested and charged with delivery of and possession with intent to deliver a controlled substance. He filed a motion to suppress the evidence seized during a search of his home, claiming the search was invalid because the warrant was served after 10 p.m. in violation of W.R.Cr.P. 41(c). The district court agreed and granted the motion. The State filed a petition for writ of review or certiorari in this Court, claiming the district court erred in granting the motion to suppress without first determining whether the violation of Rule 41 constituted prejudicial error. We granted the petition. We conclude that the district court erred in granting the suppression order.

ISSUE

[¶ 2] The issue for our determination is:

Whether the district court properly suppressed evidence seized pursuant to a search warrant served after 10 p.m. in violation of Rule 41(c) as the product of an unreasonable search under the Fourth Amendment.¹

FACTS

[¶ 3] During a traffic stop at approximately 4:15 on the afternoon of July 19, 2013, a Campbell County Sheriff's deputy searched the vehicle and found 44.7 grams of marijuana. In an interview later that day after his arrest, the driver told investigator Troy Hipsag that he had purchased the marijuana from an individual known to him as Dustin at a house on Peaceful Valley Drive. He said he had purchased marijuana from Dustin thirty to forty times since February, 2013.

[¶ 4] Investigator Hipsag went to Peaceful Valley Drive and located the house described to him in the interview. He called the county attorney and at approximately 7:05 p.m. met with him to prepare an affidavit and search warrant. When he left the county attorney's office with the documents at approximately 8:35 p.m., Investigator Hipsag tried unsuccessfully to reach the on-call judge and a magistrate. He finally reached a circuit court judge and was able to meet with her at approximately 9:20 p.m. She reviewed the affidavit and signed the warrant. Investigator Hipsag then went to the sheriff's office to organize a team to execute the warrant. They left the sheriff's office at approximately 10:02. On route to execute the search warrant, the officers' access to Peaceful Valley Drive was blocked by a passing train. They arrived at the house identified in the search warrant at 10:18 p.m. They searched the home and found marijuana, drug paraphernalia, and cash in small bills in Mr. Deen's bedroom.

[¶ 5] Mr. Deen was arrested and charged with felony counts of delivery of a controlled substance and possession of a controlled substance with intent to deliver in violation of Wyo. Stat. Ann. § 35–7–1031(a)(ii). Prior to trial, Mr. Deen filed a motion to suppress the evidence seized in the search. He argued that the search was unlawful and in violation of his constitutional rights because the search warrant was served after 10 p.m. contrary to the plain language of the warrant allowing the search between the hours of 6 a.m. and 10 p.m. The State responded that the violation was procedural in nature, did not involve a violation of a fundamental right and should be treated as harmless error. After a hearing, the district court held that the search was executed outside the time parameters of the warrant and entered an order granting the motion to suppress the evidence seized in the search. The State filed its petition for writ in this Court, which the Court granted.

STANDARD OF REVIEW

[¶ 6] When reviewing a decision on a motion to suppress evidence we defer to the district court's findings on factual issues unless they are clearly erroneous. State v. Holohan, 2012 WY 23, ¶ 8, 270 P.3d 693, 696 (Wyo.2012), citing Nava v. State, 2010 WY 46, ¶ 7, 228 P.3d 1311, 1313 (Wyo.2010). The constitutionality of a particular search and seizure, however, is a question of law that we review de novo. Id.

DISCUSSION

[¶ 7] The State asserts that the district court erred when it concluded that the search was unconstitutional and the evidence must be suppressed based upon a procedural violation of W.R.Cr.P. 41(c). The State contends that a procedural violation of the rule is not the same as a constitutional violation and, by itself, does not establish that the search was unreasonable under the Fourth Amendment. The State argues further that the district court should have applied the “prejudicial error” test to determine whether suppression of the evidence was appropriate. The State asserts that Mr. Deen did not show that he was prejudiced as a result of the procedural violation of the rule; therefore, the violation did not make the search unconstitutional.

[¶ 8] W.R.Cr.P. 41 addresses search and seizure. Subsection (c) of the rule states:

(c) Issuance and contents 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. [Underline added.]

[¶ 9] Pursuant to the plain language of the Rule, search warrants are to be served between 6 a.m. and 10 p.m. unless, upon a showing of reasonable cause, the warrant provides otherwise. The warrant issued in Mr. Deen's case provided that it was to be served between 6 a.m. and 10 p.m. Investigator Hipsag did not request a warrant providing for service at a different time. It is undisputed that service of the warrant at Mr. Deen's residence at just after 10:18 p.m. was in violation of Rule 41(c). The question is whether that violation required suppression of the evidence seized.

[¶ 10] In Murray v. State, 855 P.2d 350, 355 (Wyo.1993), this Court considered whether law enforcement's failure to inform the defendant at the time of his arrest of the charges against him as required by W.R.Cr.P. 4(c)(3) should lead to exclusion of his post-arrest statements. The version of the rule in effect at the time provided as follows:

(c) Execution or service; and return.

....

(3) Manner.—The warrant shall be executed by the arrest of the defendant. The officer need not have the warrant in his possession at the time of the arrest, but upon request he shall show the warrant to the defendant as soon as possible. If the officer does not have the warrant in his possession at the time of the arrest, he shall then inform the defendant of the offense charged and of the fact that a warrant has been issued. [Underline added.]

[¶ 11] Contrary to this provision, law enforcement did not inform the defendant that he was under arrest for second degree murder or that a warrant had been issued until after he had been arrested, taken to jail and made incriminating statements to an investigator part way through an interview. The Court said:

One method for deterring future violations would be to exclude any evidence which had been obtained in violation of the rule. However, we are not convinced that every violation of the rule warrants exclusion of the evidence. The difficulty in arriving at an appropriate remedy is that the rules, by their nature, “blend constitutional limitations on police activity, procedural limitations designed to avoid constitutional violations, and purely administrative ‘housekeeping’ regulations.” United States v. Searp, 586 F.2d 1117, 1123–24 (6th Cir.1978), cert. denied, 440 U.S. 921, 99 S.Ct. 1247, 59 L.Ed.2d 474 (1979). The remedies should vary accordingly. When the violation compromises a substantial or constitutional right, the exclusionary rule is an appropriate remedy, especially when the right is related to Fourth Amendment protections. See Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 3.1(e) at 146 (1984). But, when the violated rule is merely ministerial or technical, the exclusionary rule becomes a remedy out of proportion to the benefit to be gained. The problem is in ascertaining whether the violation implicates a substantive right or merely a procedure designed to protect that right.

Murray, 855 P.2d at 355.

[¶ 12] In Murray, the Court held that the violation of Rule 4(c)(3) “did not implicate a sufficiently substantive right to warrant exclusion of [the defendant's] statements.” 855 P.2d at 355. In...