Summary 2011 WY 75

Summary of Decision May 3, 2011

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Case Name: Lefferdink v. State

Citation: 2011 WY 75

Docket Number: S-10-0201

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462106

Appeal from the District Court of Albany County, The Honorable Jeffrey A. Donnell, Judge

Representing Appellant (Defendant): David McCarthy, Laramie, WY

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Senior Assistant Attorney General. Argument by Ms. Pojman.

Date of Decision: May 3, 2011

Facts: During an undercover operation, Appellant’s computer IP address showed that it was downloading child pornography. The sheriff’s department began to monitor that address. A search warrant was obtained from the communications company to identify the user of the IP address. Subsequently, Appellant was charged with two counts of sexual exploitation of children.

Appellant filed a motion to suppress evidence, based upon the contention that the sheriff’s deputy lied in his affidavits. Appellant also filed a motion requesting that the court issue a subpoena duces tecum to the Division of Criminal Investigation requiring the production of all notes, documents, and reports created during its forensic investigation of Appellant’s computers. The district court granted the motion requesting the subpoena duces tecum. However, a motion to quash was filed, because the subpoena directed the information to be produced to Appellant, and not the court. The court granted the motion to quash because the subpoena was not in compliance, but encouraged the issuance of another subpoena in compliance with the law. However, another subpoena was never issued.

Both parties stipulated that the deputy did misstate the time and date in both affidavits of when he first saw Appellant’s IP address. The court still denied the motion to suppress, however, and found that the misstated time and date was at most a simple mistake. The court ruled that even if the time and date were omitted from the affidavits, they still contained enough information to support the search warrants.

Appellant entered a conditional plea with the understanding of both parties that his intent was to appeal the denial of the motion to suppress. He was sentenced on both counts. The sentence was suspended, and he was placed on supervised probation and received credit for time served. This appeal followed.

Issues: 1. Whether the misstatement of fact in the affidavit for a search warrant should be stricken as knowingly and intentionally made or in reckless disregard for the truth. 2. Whether Appellant’s right to confrontation and due process were violated for a failure to disclose exculpatory evidence. 3. Whether, if stricken, probable cause for the search of a computer IP address or residence exists within the four corners of the affidavit.

Holdings: During the motion hearing, the deputy testified that in drafting the first affidavit for a search warrant, he included references to multiple computer files containing child pornography and the dates and times during which he observed them being viewed or shared through Appellant’s IP address. However, before presenting the affidavit to the circuit court, a county attorney suggested to the officer that he include “the worst of the worst” files in the affidavit in order to simplify the search. In doing so, remaining dates and times of observations were deleted. The affidavits supported the deputy’s testimony. The deputy stated on direct examination that misstating the date and time was not intentional, but a "cut and paste" error. The Court agreed with the district court, that although the date and time was wrong as it was listed in the affidavits, the misinformation was simply a mistake made by the deputy and was not deliberate. Given that the trial court had an opportunity at the evidentiary hearing to assess the credibility of the witnesses, weigh the evidence, and make the necessary inferences, deductions, and conclusions, the Court would not interfere with its decision to deny the motion to suppress.

The Court did not find deficiencies in the affidavits. The Court agreed with the State that the remaining content was sufficient to cause a reasonably cautious person to believe that the crime of sexual exploitation of children had been or was being committed by the user of the IP address listed in the affidavits. The affidavits sufficiently indicated that the IP user’s identifying information was available from the communications company, and that evidence of a crime could be found on the computers located in that user’s residence. Under an objective test, there was adequate information to justify the assertions made by the affiant and relied upon by the judge in issuing the warrant.

The order of the district court denying Appellant’s motion to suppress was affirmed.

On the issue that the State failed to disclose material and favorable evidence, the Court found that Appellant’s conditional plea did not preserve any Brady issue. The Court therefore declined to consider that issue on appeal.

The Judgment and Sentence of the district court was affirmed.

J. Hill delivered the opinion for the court.