Summary 2006 WY 122

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Case Name: Bouch v. State

Citation: 2006 WY 122

Docket Number: 04-176

Appeal from the District Court of Converse County, Honorable John C. Brooks, Judge

Representing Appellant (Defendant): Jason M. Tangeman, of Anthony, Nicholas, Tangeman & Yates, LLC, Laramie, Wyoming.

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

Date of Decision: September 27, 2006

Issues: Whether the search warrant affidavit provided a sufficient nexus to lead a reasonably prudent and cautious person to believe that there was a probability that evidence of the crime was located at the address to be searched. Whether Appellant's guilty plea entered involuntarily because he received ineffective assistance of counsel.

Holdings: The Wyoming Constitution, unlike the Fourth Amendment of the Federal Constitution, requires an affidavit, rather than just an oath or affirmation. Sufficient factual support for issuance of the warrant must be found within the affidavit. The affidavit must supply the issuing officer with sufficient information to make an independent judgment that probable cause exists for the warrant. The affidavit in support of the warrant, therefore, must include more than bare conclusions of the affiant. Because of this affidavit requirement, Article 1, § 4 of the Wyoming Constitution has been characterized as somewhat stronger than its federal counterpart.

Probable cause justifying issuance of a search warrant involves a twofold finding. First, the factual situation must be sufficient to warrant a reasonably cautious or prudent person to believe that a crime was being committed or that one had been committed. Second, there must be an adequate showing that the fruits of the crime or the evidence thereof are in the area or structure sought to be searched. This second prong is often described as requiring a "nexus" between the contraband to be seized or the suspected criminal activity and the place to be searched. It is necessary that there be established a sufficient nexus between (1) criminal activity, and (2) the things to be seized, and (3) the place to be searched.

Under a probable cause analysis, the nexus inquiry is distinct from the first prong relating to criminal activity. Probable cause to believe one has committed a crime does not necessarily provide probable cause for a search of his residence. There must be additional evidence linking the person's home to the suspected criminal activity.. An absence of a nexus precludes a finding of probable cause. The affidavit in the present case failed to establish the required nexus between the crime, or the evidence thereof, and the location to be searched. This affidavit did not indicate why the officer believed that the items to be seized would be located at a specific address or even that Appellant had a connection with the given address Although the court affords favorable inferences to support the issuance of the warrant, it cannot make inferences from facts that are not present.

Unlike reviewing courts, the issuing officer is not necessarily limited to consideration of the facts the affiant has chosen to include in the affidavit. In Wyoming, under W.R.Cr.P. 41(c) a judicial officer may seek supplementation of a search warrant affidavit by examining the applicant under oath and having that testimony recorded. This rule highlights the important role of judicial officers in the search warrant application process. It also reinforces the principle that the probable cause determination for a search warrant be based upon a permanent record. In this case, the magistrate may have been able to remedy the lack of nexus problem had he invoked his authority under W.R.Cr.P. 41(c) or simply refused to sign the warrant until an adequate nexus had been set forth in the affidavit.

Since the affidavit did not supply the requisite nexus between the suspected criminal activity and place to be searched, the magistrate did not have a sufficient basis to find probable cause and should not have issued the warrant. The district court erred in failing to suppress the items obtained from the search.

Having determined that the motion to suppress should have been granted, the ineffectiveness of counsel issue raised by Appellant need not be addressed.

The district court's decision denying the motion to suppress is reversed. The judgment and sentence is hereby vacated and the matter is remanded to the district court for further proceedings consistent with this opinion. Upon remand, Appellant shall be allowed to withdraw his guilty pleas.

J. Burke delivered the opinion for the court.

J. Voigt specially concurred for the reasons set forth in his concurring opinion in Rohda v. State, 2006 WY 120.