Abeyta v. State

167 P.3d 1

2007 WY 142

David Larry ABEYTA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 06-123.

Supreme Court of Wyoming.

September 5, 2007.

Representing Appellant: D. Terry Rogers, Interim State Public Defender; and Donna D. Domonkos, Appellate Counsel.

Representing Appellee: Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and David L. Delicath, Senior Assistant Attorney General.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

VOIGT, Chief Justice.

[¶ 1] The Appellant, David Larry Abeyta, was arrested and charged with three separate criminal drug charges after a search of his residence revealed drugs and drug paraphernalia. Abeyta filed a motion to suppress this evidence asserting that the affidavit submitted in support of the application for the search warrant failed to demonstrate probable cause. The motion to suppress was denied and Abeyta entered a conditional guilty plea pending the outcome of this appeal. We affirm.

ISSUE

[¶ 2] The sole issue before this Court is whether the affidavit executed in support of the search warrant provided the warrant-issuing judicial officer with a substantial basis for concluding that probable cause existed to search Abeyta's residence.

FACTS

[¶ 3] On May 4, 2005, Officer William Hill of the Rawlins Police Department requested a warrant to search Abeyta's home. The affidavit attached in support of the warrant application read, in its entirety, as follows:

AFFIDAVIT

1. I, William Hill, of lawful age, being first duly sworn upon oath according to law, depose and say as follows:

2. On or about April 20, 2005, Rawlins Police Department received information that Larry Abeyta was selling methamphetamine from his house located at 517 McKinley St., which is situated within three hundred feet of Pershing Elementary School in Rawlins, Carbon County, Wyoming.

3. After receiving this information, the Rawlins Police Department began to watch the above-described house to determine whether drug activity was afoot.

4. Over the past two weeks, or so, I, together with other law enforcement officers in the area, have observed numerous known drug users and other individuals frequenting the house located at 517 McKinley Street. These individuals have been observed entering the house, remaining there for short visits of approximately 5-10 minutes and then leaving.

5. On a number of these occasions, officers have observed the above-described persons walking from the house to a shed situated in the back yard of the same property, turning on a light, spending a few minutes inside the shed, and then returning to the house for a few more minutes, and then leaving the premises.

6. On or about May 1, 2005, Rawlins Police Officer Hooper received information that Larry Abeyta had offered to provide a confidential informant with methamphetamine, and that Mr. Abeyta always carries in his waistband a silver, 9mm semi-automatic handgun. Mr. Abeyta told the confidential informant that he was aware the police department is watching him and his residence.

7. During the late evening hours of May 3, 2005, your Affiant was parked outside the house located at 517 McKinley. During this time, I noticed a dark-colored car which appeared to be a Ford, pull into a vacant lot situated to the West of the house. I watched as the vehicle lights were shut off, and approximately 20 seconds later, the person I believed to be the driver of this vehicle entered the front door of 517 McKinley Street. Approximately 10 minutes later, I observed this same person leave the residence, and run from the front door toward the vacant lot where the dark-colored car had been parked. I then observed the dark-colored car start up and drive off, heading South on McKinley Street, then turning to travel East on Center Street. The vehicle then turned to travel North on Washington Street. At that point, I informed officers that the vehicle had left the area and described the vehicle. At this same time, the vehicle was turning in front of Rawlins Police Department Officer Reynolds, and was observed to be traveling 28 miles per hour in a fifteen mile per hour zone.

8. Officer Reynolds placed a stop on the vehicle for exceeding the posted speed limit. The driver told the officer his name was Charles Herbst with a date of birth of 9/20/58. Officer Reynolds was advised by dispatch that there was an active warrant for Charles Herbst.

9. Lieutenant Eric Ford of the Rawlins Police Department and Sheriff's Deputy Jeff Walton were assisting Officer Reynolds and knew from prior contact with the individual that his identity was not Charles Herbst, but was actually David M. Thomas. He was then arrested for interference with a police officer.

10. While inventorying the contents of Mr. Thomas's wallet, a white paper bindle containing what appeared to be a small amount of crystallized methamphetamine was found. The substance in the bindle was tested with a methamphetamine NIK test kit, showing a presumptive positive result for methamphetamine.

11. Mr. Thomas claimed that he had come from Stagecoach apartments, and that he found the bindle on the ground in his shop earlier in the day. It is known that Mr. Thomas has no shop, and in fact, received permission on Monday, May 2, 2005, from District Court Judge Wade Waldrip to move to Cheyenne, where he had obtained employment with Sky Harbor Air Service, being unemployed here in Rawlins. Additionally, your Affiant personally observed him to have come from 517 McKinley Street, and that he had not come from the Stagecoach Apartments.

12. Your Affiant is aware that David M. Thomas is presently out on bond for a felony charge of concealing or disposing of stolen property in Criminal Docket No. CR-2005-044, in the District Court for the Second Judicial District, State of Wyoming.

FURTHER YOUR AFFIANT SAITH NAUGHT.

Based on the above affidavit, a search warrant was issued on May 4, 2005, and executed that same day. Upon searching Abeyta's residence, officers discovered a measurable amount of crystal methamphetamine on a digital scale and a marijuana pipe with marijuana residue in it next to the bed where a five-year-old child was sleeping. Officers also discovered, among other items, additional drugs, scales and other drug paraphernalia, weapons—including a handgun and ammunition, large quantities of cash, a video surveillance system, and a police scanner.

[¶ 4] Abeyta was charged with possession of methamphetamine, in violation of Wyo. Stat. Ann. § 35-7-1031(c)(ii) (LexisNexis Supp.2004), possession of cocaine, in violation of Wyo. Stat. Ann. § 35-7-1031(c)(iii) (Lexis-Nexis Supp.2004), and endangering a child with methamphetamine, in violation of Wyo. Stat. Ann. § 6-4-405(c) (LexisNexis Supp. 2004). On October 4, 2005, Abeyta filed a motion to suppress evidence wherein he asserted that the affidavit attached to the search warrant was not sufficient to establish probable cause. The matter was assigned to the circuit court judge for the limited purpose of deciding Abeyta's motion to suppress. A hearing was held on October 26, 2005, and an order denying Abeyta's motion to suppress was entered on November 14, 2005.

[¶ 5] On November 22, 2005, Abeyta changed his not-guilty plea to a conditional guilty plea. Abeyta was sentenced to three to seven years in prison for the possession of methamphetamine charge, three to five for the possession of cocaine charge, and three to five for the endangering a child with methamphetamine charge, with all periods of incarceration running concurrently.

[¶ 6] Abeyta timely appealed the judgment and sentence.

STANDARD OF REVIEW

[¶ 7] When reviewing the adequacy of a probable cause affidavit, we have said that:

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 our 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.

Rohda v. State, 2006 WY 120, ¶ 4, 142 P.3d 1155, 1158 (Wyo.2006).

DISCUSSION

[¶ 8] The legal standards applied when reviewing the sufficiency of a probable cause affidavit are well established. Both the Fourth Amendment to the United States Constitution and Wyoming Constitution Article 1, § 4, protect citizens against unreasonable searches and seizures. Our state provision, however, is stronger because it requires "the probable cause finding for issuance of a search warrant to be supported by affidavit." Hixson v. State, 2001 WY 99, ¶ 5, 33 P.3d 154, 156 (Wyo.2001) (footnote omitted).¹ We have held that the affidavit requirement strengthens the Wyoming citizen's rights by creating a permanent record. Id. Wyoming Constitution Article 1, § 4 provides:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by affidavit, particularly describing the place to be searched or the person or thing to be seized.

[¶ 9] When reviewing whether a particular affidavit provided probable cause for issuance of a search warrant, this Court begins with the presumption that an affidavit presented in support of a search warrant is valid. Page v. State, 2003 WY 23, ¶ 9, 63 P.3d 904, 909 (Wyo.2003). Search warrant affidavits are tested by much less vigorous standards than those governing the admissibility of evidence at trial, and because of the preference for warrants, and the desire to encourage law enforcement personnel to seek warrants, any doubt should be resolved by sustaining the search. Davis v. State, 859 P.2d 89, 94 (Wyo.1993).

[¶ 10] The warrant-issuing judicial officer must examine the affidavit to determine whether the factual...