Larsen v. State

541 P.3d 439

Remi LARSEN, Petitioner,

v.The STATE of Wyoming, Respondent.

S-23-0063

Supreme Court of Wyoming.

January 11, 2024

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Jeremy Meerkreebs, Assistant Appellate Counsel.

Representing Appellee: Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senior Assistant Attorney General; Donovan Burton, Assistant Attorney General.

Before FOX, C.J., KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.

BOOMGAARDEN, Justice.

[¶1] Remi Larsen moved the circuit court to suppress evidence in her pending misdemeanor possession of a controlled substance prosecution. The court granted Ms. Larsen's motion. The State subsequently filed a petition for an interlocutory writ of review in the district court to challenge the circuit court's suppression order. The district court granted the State's petition and later reversed the circuit court's order after considering the parties’ briefing. We then granted Ms. Larsen's petition to review the district court's order. We conclude the district court abused its discretion when it initially granted the State's petition for an interlocutory writ of review. We reverse with instructions to reinstate the circuit court's suppression order.

ISSUE

[¶2] The dispositive issue is whether the district court abused its discretion when it granted the State's petition for an interlocutory writ of review.

FACTS

[¶3] On February 2, 2022, Ms. Larsen called 911 alleging her neighbor, David Lamers, assaulted her with a club-type object outside her apartment building. Sheridan Police Officer Alex Murray and Corporal Chase Philipp responded to the call. Ms. Larsen was seated in her vehicle when Officer Murray arrived. Officer Murray questioned Ms. Larsen about the incident. She told Officer Murray that Mr. Lamers accosted her outside of her apartment building, yelled at her about her dog, smacked pepper spray out of her hand, and threatened her with a dog toy generally used to throw tennis balls. She also expressed concern about Mr. Lamers videotaping her from his apartment.

[¶4] Around the time Officer Murray was questioning Ms. Larsen, Corporal Philipp had walked into the common area of Ms. Larsen's apartment building. He smelled a strong odor of marijuana and believed it was emanating from Ms. Larsen's apartment. Corporal Philipp informed Officer Murray of the marijuana odor. Officer Murray confirmed with Ms. Larsen the location of her apartment and proceeded to walk into the common area where he confirmed the marijuana smell. Officer Murray returned to Ms. Larsen and asked her: "Will you come to your apartment with me real quick?" Ms. Larsen inquired why and he stated, "It just reeks of marijuana in there. I just want to make sure it's not coming from yours." Ms. Larsen replied, "Oh, no, I..." Officer Murray then stated "Okay. Can we walk through there real quick?" Ms. Larsen unequivocally stated "No."

[¶5] Officer Murray continued to question Ms. Larsen. He asked her how much marijuana she had and she responded, "Just a little bit. Not a lot." Officer Murray explained to Ms. Larsen that if she only had a little bit he would just issue a ticket. Ms. Larsen expressed concern about receiving a ticket because she was not sure if she was still on probation and asserted again that she only had a small amount of marijuana. The officer again asked her to retrieve the marijuana and assured her that he would only give her a ticket. Ms. Larsen exited her vehicle and led Officer Murray to her apartment.¹

[¶6] Ms. Larsen unlocked her apartment door while Officer Murray stood behind her. She asked Officer Murray to stay at the threshold of the apartment. While Ms. Larsen went to retrieve the marijuana, Officer Murray took a step inside and looked around purportedly for officer safety. Corporal Philipp stood outside the apartment in the hallway.

When Ms. Larsen returned to Officer Murray with a container of marijuana, he asked if she had given him the full amount. Ms. Larsen again went back into her apartment and retrieved additional marijuana.

[¶7] Ms. Larsen was cited for misdemeanor possession of a controlled substance under Wyo. Stat. Ann. § 35-7-1031(c)(i)(A) (2023). She later moved to suppress the marijuana evidence obtained from her apartment, arguing in relevant part that she did not voluntarily consent to Officer Murray's warrantless entry into her home, no exigent circumstances existed to justify Officer Murray's warrantless entry, and the evidence was obtained in violation of her right against unreasonable search and seizures.

[¶8] The circuit court held a suppression hearing at which Corporal Philipp, Officer Murray, and Ms. Larsen testified. The court ruled from the bench. It held the State failed to prove by clear and positive testimony that Ms. Larsen consented to the search. The court found Ms. Larsen twice said "no" to Officer Murray's requests to enter her apartment, Officer Murray persisted in seeking consent, and these facts demonstrated Ms. Larsen only acquiesced to Officer Murray's entry rather than voluntarily consented. The court further stated:

I will also add this, I am taking judicial notice of the fact that five days after this event I witnessed Mr. Lamers and this young lady in my courtroom for [a] protection order. I think prior to that, you can ask every one of my clerks about Mr. Lamers’ attitude and how Mr. Lamers came across and his, frankly, bullying.

I saw this young lady distraught five days later. And I get to bring that with me to this bench, of how distraught she was over that situation.

So taking that all into account, she was distraught that day. She was concerned. She was scared. She acquiesced to go back into that apartment.

And I'm going to go back to this. Mr. Lamers can say no once and that's fine. How often does a young lady have to say no?

(emphasis added). The court soon after issued a written order incorporating the factual findings from the hearing. The written order did not address the judicial notice the court took during the oral ruling but instead made additional factual findings, reiterated the court's conclusion that Ms. Larsen acquiesced rather than consented to Officer Murray's entry into the apartment, and held Officer Murray's warrantless entry into Ms. Larsen's apartment violated the Fourth Amendment, thus warranting suppression of the marijuana evidence.

[¶9] The State petitioned the district court seeking an interlocutory writ of review of the circuit court's suppression order under W.R.A.P. 13.02. The State asserted a writ of review was necessary because, among other alleged errors, the circuit court erroneously concluded Ms. Larsen's consent was involuntary, the court erroneously took judicial notice of Ms. Larsen's demeanor from a separate hearing, and the court erroneously suppressed the evidence. Ms. Larsen asked the court to deny the petition, arguing the State was not entitled to extraordinary relief while the criminal matter remained pending. She noted such relief is only available to the State in rare and unusual circumstances involving issues of first impression, constitutional magnitude, and great public import. The district court granted the State's petition, which we discuss further below.

[¶10] After receiving briefs and hearing oral arguments, the district court issued a written order reversing the circuit court. Ms. Larsen subsequently filed a petition for writ of review of the district court's order in this Court. We granted her petition.

DISCUSSION

[¶11] We review a district court's grant of a petition for an interlocutory writ of review under an abuse of discretion standard. See W.R.A.P. 13.01(b) ; W.R.A.P. 13.02 (providing that district courts may grant interlocutory writs of review in criminal actions); State v. Newman , 2004 WY 41, ¶ 7, 88 P.3d 445, 447 (Wyo. 2004) (citation omitted). "A district court does not abuse its discretion if it could reasonably conclude as it did."

Winney v. Jerup , 2023 WY 113, ¶ 14, 539 P.3d 77, 82 (Wyo. 2023) (citations omitted). However, as discussed below, precedent expressly limits a district court's discretion to grant the State an interlocutory writ of review of a criminal pretrial order. See State v. Heiner , 683 P.2d 629, 632 (Wyo. 1984) ; State v. Evans , 944 P.2d 1120, 1124 (Wyo. 1997) ; see also Newman , 2004 WY 41, ¶ 7, 88 P.3d at 447 (citing Wright v. State , 707 P.2d 153, 156 (Wyo. 1985) ).

I. Precedent expressly limits a district court's discretion to grant the State interlocutory writs of review in criminal matters to rare and unusual cases that present questions of first impression, constitutional magnitude, and great public import.

[¶12] Historically, the State had no right to a direct appeal from adverse trial court decisions in a criminal case unless it was expressly granted by statute. State v. Ginther , 53 Wyo. 17, 77 P.2d 803, 803 (1938) ; see also Ken v. State , 2011 WY 167, ¶ 32, 267 P.3d 567 (Wyo. 2011) (noting the State "in a criminal case does not have the right of direct appeal" (citing Crozier v. State , 882 P.2d 1230, 1236 (Wyo. 1994) )). Wyo. Stat. Ann. §§ 7-12-102 through -104 affords the only statutory procedure by which the State may seek review of an adverse criminal ruling—a bill of exceptions.² Notably, a bill of exceptions permits this Court only to determine specified issues for future cases. Wyo. Stat. Ann. § 7-12-104(b). It does not "reverse nor in any manner affect the judgment of the court in the case in which the bill of exceptions was taken." Id. ; Crozier , 882 P.2d at 1236 (citation omitted). Until the 1980s, we held the bill of exceptions procedure was the exclusive means for the State to challenge adverse rulings in criminal cases. Newman , 2004 WY 41, ¶¶ 10–15, 88 P.3d at 448–51 ; State ex rel. Gibson v. Cornwell , 14 Wyo. 526, 85 P. 977, 979 (1906) ("It is only upon a compliance with the provisions...