Summary 2006 WY 121

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Case Name: Schirber v. State

Citation: 2006 WY 121

Docket Number: 05-104

Appeal from the District Court of Hot Springs County, the Honorable Gary P. Hartman, Judge

Representing Appellant (Defendant): Harry G. Bondi, Casper, Wyoming.

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

Issue: Whether the affidavit in support of the application for search warrant established that it was probable that quantities of controlled substances, records of drug transactions, or proceeds from drug transactions, would be found at Appellant’s residence on February 5, 2004. Whether the information supplied by the informants supplied a sound basis of knowledge of criminal activity or was the sparse reference to criminal activity outdated and stale. Whether the execution of the search warrant at Appellant’s residence was overly broad and whether execution exceeded the scope and authority requested or granted when officers searched serial numbers of over two hundred property items including two portable radios.

Holding: Appellant appeals from his conviction and sentence on one count of possession of a controlled substance and two counts of concealing stolen property.
Following an investigation into Appellant’s involvement in the distribution of controlled substances in Thermopolis, a warrant was obtained on February 5, 2004 to search Appellant’s residence. During the execution of the warrant, Oxycontin tablets were discovered. The search also revealed several expensive hand-held radios which were later ascertained to belong to a former employer of Appellant’s. The officer removed the battery packs looking for hidden drugs and recorded the serial numbers. On March 2, 2004 a new warrant was issued authorizing the search of Appellant’s residence and the seizure of the stolen radios and any other stolen property found therein. Before trial, Appellant filed two motions to suppress the evidence discovered during the searches of his residence. The district court denied both motions.

Issuance of the February 5 Search Warrant: The standard of review in the area of warrants is to simply ensure that the warrant-issuing judicial officer had a substantial basis for concluding probable cause existed. The probable cause standard depends upon the totality of the circumstances. 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.

The affidavit is included in its entirety in the opinion. Appellant argues that the information is stale. Appellant focused his argument on limited portions of the statements provided by two of the informants. He never analyzed the portions of the affidavit in the context of the affidavit as a whole which is contrary to the Court’s established totality of the circumstances analysis which requires the issuing judicial officer as well as reviewing courts to consider information contained in an affidavit in its entirety. The Court found that the totality of the circumstances presented by the information in the affidavit was sufficient to support a finding that probable cause existed to believe Appellant was engaged in a continuing course of illegal drug activity. The next question then becomes whether the information in whole or in part was credible. Appellant did not effectively challenge the veracity or basis of knowledge of the cooperating witnesses (CWs) regarding the information supplied by them. Independently, the Court found no internal inconsistencies in the affidavit nor other circumstances that compelled them to question the veracity of the CWs. All CWs gave statements against their penal interests. Various statements by the CWs corroborated each other. The Court found no reason to question the basis of the knowledge of the CWs for their respective statements. The Court therefore for appellate purposes accepted that the information provided by the CWs was reasonably trustworthy. The remaining issue was whether the information supplied in the affidavit was adequate to support a finding of probable cause. The supplied information established a continuing course of illegal drug activity. The information can fairly be said to have come from two separate sources. The respective knowledge of the CWs appeared to be independent. Their credibility was strengthened by the fact the drug users they identified included three people that overlapped.

In light of their analysis, the Court found the affidavit contained sufficient reliable information to allow the issuing judicial officer to make a practical, common-sense determination that a fair probability existed that Appellant was engaged in a continuing course of criminal conduct involving possession and delivery of controlled substances and contraband or that other evidence of the criminal conduct could be found in Appellant’s residence.

Propriety of recording of serial numbers: The Court will not disturb findings on factual issues made by a district court unless they are clearly erroneous. The constitutionality of a particular search or seizure is a question of law that they review de novo. Appellant’s argument began from the presumptive premise that the State claimed that search and seizure of serial numbers from extensive personal property was proper under the plain view doctrine. The plain-view doctrine is an exception to the warrant requirement applicable only as a legal justification for a warrantless seizure. But in the instant case, no seizure took place. The United States Supreme Court has made clear that the recording of serial numbers does not constitute a seizure under the Fourth Amendment.

The Court found that when read in its entirety, the affidavit contained enough information to justify a finding of probable cause and thus the issuance of the search warrant. The district court determined that the officer was within the authority granted him by the February 5 warrant when he removed the battery packs of the radios. The ensuing inspection of the serial numbers was therefore also within the scope of the February 5 warrant. The district court did not err in denying the motion to suppress.

Affirmed.

C.J. Voigt, specially concurring: See concurring opinion in Rohda v. State.

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