Summary 2006 WY 120

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Case Name: Rohda v. State

Citation: 2006 WY 120

Docket Number: 03-201

Appeal from the District Court of Johnson County, the Honorable John C. Brackley, Judge

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

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Daniel M. Fetsco, Assistant Attorney General.

Issue: The single issue for review is the district court commissioner’s probable cause determination.

Holding: Appellant was charged with violations of state drug laws after state law enforcement officers executing a search warrant discovered marijuana in a shed on Appellant’s residential property. 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. It included hearsay statements of other law enforcement personnel and confidential informants. Before trial, Appellant moved to suppress evidence seized during the search, asserting 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, the district court reviewed the district court commissioner’s probable cause determination and denied the motion. Appellant 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.

Appellate Standard of Review: 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 the Wyoming Supreme 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.

The Warrant-Issuing Judicial Officer’s Standard for Determining Probable Cause: 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. The officer is limited to the four corners of the supporting affidavit. 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. Frequently, the affiant includes information acquired from secondary sources in the persons of other law enforcement officers or confidential informants. 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.

The affidavit was set out in full in the Court’s opinion. The Court placed the sixteen substantive paragraphs of the affidavit into four categories for the purpose of distilling the gross product into net evidence which was truly material to the probable cause determination. First category: paragraphs one through four and sixteen which included affiant’s first-hand knowledge of his current and past employment and peace officer status; training and experience; acquired knowledge; and his opinion that he has probable cause to believe that at Appellant’s residential and other property, drugs and drug records will be found. Second category: paragraphs five, nine and twelve included the hearsay evidence acquired from three confidential informants. Third category: paragraphs six, seven, and thirteen through fifteen, included hearsay evidence from several law enforcement officers. Fourth category: paragraphs eight, ten, eleven and parts of thirteen and fourteen, included affiant’s firsthand knowledge of personal information about Appellant and Nathan Mitchell.

The challenge focuses primarily on the second category which contained the hearsay evidence acquired from three confidential informants. Paragraph five included a barebones conclusion unsupported by underlying facts establishing the informant’s veracity or reliability and basis of knowledge. A barebones conclusion does not assist a warrant-issuing officer making a probable cause determination. Paragraph nine included statements that demonstrated a firsthand knowledge of Nathan Mitchell’s controlled substance criminal activity and constituted admissions against the informant’s penal interest. The challenge fails in light of the admissions against penal interest. Paragraph twelve, included statements that were verified by a recitation by the affiant that informant’s information has led to arrests on previous occasions. In the instant case, the specific detail of the informant’s information is “self-verifying”. Considering next, the third category regarding hearsay evidence of other law enforcement officers which included in paragraph six, information from a DCI Intelligence Analyst which was unsubstantiated. The “fellow-officer/collective knowledge” rule applies to information exchanged between law enforcement officers because the law presumes they are truthful or reliable. In paragraphs thirteen through fifteen, “innocuous, general information” was included. It remains for the warrant-issuing judicial officer to consider in what ways and to what extent such innocuous general information ties in with the other material evidence in the affidavit. In the fourth category, all the paragraphs included mundane personal information. The evidence becomes significant when combined with other evidence in the affidavit. The first category, which includes the affiant’s qualifications, training, observations and probable cause opinion, was properly based on the evidence he collected, the inferences he drew and the deductions he made.

The district court commissioner who issued the search warrant for Appellant’s residential property appropriately considered the totality of the circumstances and had a substantial basis for the determination that there was a fair probability that Appellant was engaged in criminal drug business activity and that the evidence of that activity would be found on Appellant’s residential property. The Court affirmed the conviction and sentence and remanded to the district court for further proceedings.

Affirmed.

C.J. Voigt, specially concurring: The Chief Justice wrote separately because the Court’s case law concerning the standard for reviewing probable cause determinations in the search warrant context is inconsistent. He stated that it was time to say directly that “deference” as defined by federal cases is the appropriate standard of review under either constitution and that the Court is not applying de novo review of search warrant affidavits for probable cause, contrary to what the Court said in In re TJS. The Court’s intent as they apply the constitutional provisions is to give guidance to law enforcement officers and issuing magistrates. That goal is best served by establishing and sticking to the standard of review the majority espouses sub silentio today: 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. That substantial basis must have been contained within the four corners of the affidavit presented with the requested warrant.

J. Golden delivered the order for the court with C.J. Voigt specially concurring.