Page v. State

63 P.3d 904

2003 WY 23

Franklin Ross PAGE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 01-230.

Supreme Court of Wyoming.

February 25, 2003.

Representing Appellant: Kenneth M. Koski, Public Defender; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Senior Assistant Appellate Counsel.

Representing Appellee: Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Ericka S. Cook, Assistant Attorney General.

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

VOIGT, Justice.

[¶ 1] A jury convicted the appellant, Franklin Ross Page (Page), of felony possession of marijuana, in violation of Wyo. Stat. Ann. § 35-7-1031(c)(i)(A) (LexisNexis 2001). Page was sentenced to the custody of the Department of Corrections for a period of fifteen to thirty months. Page contends in this appeal that his trial counsel was ineffective in failing to move to suppress evidence obtained during a search of Page's residence. Page argues that such a motion would have been granted because the affidavit submitted in support of the warrant did not establish probable cause to search.

[¶ 2] We reverse.

ISSUES

[¶ 3] The issues presented in this case are:

1. Whether defense counsel rendered ineffective assistance of counsel in failing to move to suppress evidence seized during a search of Page's residence?

2. Whether the judicial officer who issued the search warrant erred as a matter of law because the affidavit presented in support of the warrant did not establish probable cause to search?

FACTS

[¶ 4] In early 2001, Page was living at a residence in Gillette with his girlfriend and his girlfriend's daughter. On March 6, 2001, a Campbell County Sheriff's deputy went to the residence to perform a welfare check on the child. His purpose was to ascertain the living conditions in the residence. Upon the deputy's arrival, the child's mother allowed him to enter the residence. Page was present. The deputy inspected the residence and made arrangements for the girl to reside with relatives until conditions in the residence could be improved.

[¶ 5] During the course of the inspection, the deputy noticed a pipe fitting with a duct-taped handle in the entry room. He picked it up, noticed burnt residue on the end, and asked what it was. Page replied that he used it to smoke tobacco. The deputy then asked Page if there were other similar pipes in the residence. Page produced another pipe, which he again said was used to smoke tobacco. Upon the deputy's assertion that the pipes did not smell like tobacco, Page admitted that he had smoked marijuana from the second pipe. The deputy then called another deputy to secure the premises while he obtained a search warrant.

[¶ 6] A circuit court judge issued a warrant to search Page's residence, based on the deputy's four-page affidavit. During the ensuing search, numerous items identified as drug paraphernalia, plus about .11 grams of marijuana, were seized. After his arrest, and after being advised of his "Miranda rights," Page admitted that the marijuana was his. The pipes seized before the warrant was obtained, the items seized after the warrant was obtained, and Page's admission that the marijuana was his were the State's primary evidence against Page at trial.

THE AFFIDAVIT

[¶ 7] In four separately numbered paragraphs, the deputy's affidavit set forth the following information:

• The affidavit was being submitted with personal knowledge, based upon information and belief.

• The affiant was a fourteen-year veteran of the Sheriff's Office and a certified peace officer.

• The affiant had received training in controlled substance investigation and had instructed classes at the Wyoming Law Enforcement Academy on drug identification.

• The affiant believed that the following evidence of a crime was being concealed at Page's residence: "controlled substance(s), including but not limited to mari[j]uana, scales, U.S. currency, pipes, packaging materials, telephone tolls, ledgers, writings, cutting agents, rolling papers, other drug related paraphernalia, address books, storage unit records, and other items used in the furtherance of narcotics trafficking."

• The affiant had, on the same date, conducted a welfare check at the residence, during which he had learned the following information:

• Page, his girlfriend, and the girlfriend's daughter lived there.

• The three had been evicted from Squaw Valley Apartments and were in the process of fixing up the residence so they could live there.

• There was a wood-burning stove in the den, with blistered paint on the wall behind it and melted plastic hanging from the ceiling.

• Page admitted they were using extension cords to borrow electricity from the neighbors, there was no running water, the child bathed at the neighbor's house, the toilet is flushed by pouring water through it, and the pipes were frozen.

• As he was leaving the residence after the welfare check, the affiant had observed a pipe fitting with a duct-taped handle with burnt residue in the end protruding from the inner core of a toilet paper roll. In answer to the affiant's questions, Page allowed the affiant to look at the pipe, indicated that he used it to smoke tobacco, and produced another similar pipe with burnt residue.

• Another deputy and his "K-9 companion" then responded to the deputy's request for back-up assistance. Page refused the second deputy's request for permission to search the residence. That deputy then secured the residence while the affiant sought a search warrant.

• The affiant knows the following from his experience and training, and from information shared by other agents:

• During the course of most searches for controlled substances pursuant to a search warrant, items of identification such as driver's licenses, and documents such as phone bills, rent receipts, checks, canceled mail envelopes, utility bills, ledgers, and personal written diaries and electronic digital diaries are often discovered, and which items are later useful in identifying the persons responsible for a crime and are used as evidence to prosecute those persons.

• While executing search warrants for controlled substances, it is common to find persons on the premises and that those persons often are found to have controlled substances and/or evidence of controlled substance violations on their persons due to their association either as customers or other dealers, which is why they are found at the premises of someone who is dealing in controlled substances/narcotics.

• The affiant has seen the following from his years in law enforcement:

• Persons involved in controlled substance(s) use and/or sales generally have also been associated with other controlled substances such as marijuana and/or persons who use other controlled substances such as marijuana.

• Persons who use marijuana or have association with persons who are using marijuana generally have devices used to ingest the marijuana, including pipes, rolling papers, bongs and other devices.

• The affiant believes the following evidence of crime is being concealed at the Page residence: "controlled substance(s), including but not limited to mari[j]uana, scales, U.S. currency, pipes, packaging materials, telephone tolls, ledgers, writings, cutting agents, rolling papers, other drug related paraphernalia, address books, storage unit records, and other items used in the furtherance of narcotics trafficking."

STANDARD OF REVIEW

[¶ 8] We have recently repeated our well-established standard for reviewing claims of ineffective assistance of counsel:

"`When reviewing a claim of ineffective assistance of counsel, the paramount determination is whether, in light of all the circumstances, trial counsel's acts or omissions were outside the wide range of professionally competent assistance. Herdt v. State, 891 P.2d 793, 796 (Wyo.1995); Starr v. State, 888 P.2d 1262, 1266-67 (Wyo.1995); Arner v. State, 872 P.2d 100, 104 (Wyo.1994); Frias v. State, 722 P.2d 135, 145 (Wyo.1986). The reviewing court should indulge a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Herdt, at 796; Starr, at 1266; Arner, at 104; Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984).

Under the two-prong standard articulated in Strickland and Frias, an appellant claiming ineffective assistance of counsel must demonstrate on the record that counsel's performance was deficient and that prejudice resulted. Strickland, 466 U.S. at 687,104 S.Ct. at 2064; Starr, at 1266; King v. State, 810 P.2d 119, 125 (Wyo.1991) (Cardine, J., dissenting); Campbell v. State, 728 P.2d 628, 629 (Wyo.1986); Frias, 722 P.2d at 145. In other words, to warrant reversal on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel failed to "render such assistance as would have been offered by a reasonably competent attorney" and that "counsel's deficiency prejudiced the defense of [the] case." Lower v. State, 786 P.2d 346, 349 (Wyo.1990). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Strickland, 466 U.S. at 686,104 S.Ct. at 2064.'

Chapman v. State, 2001 WY 25, ¶ 6, 18 P.3d 1164, 1168-69 (Wyo.2001) (quoting Grainey v. State, 997 P.2d 1035, 1038-39 (Wyo.2000))."

Becker v. State, 2002 WY 126, ¶ 12, 53 P.3d 94, 98-99 (Wyo.2002) (quoting Reyna v. State, 2001 WY 105, ¶ 19, 33 P.3d 1129, 1134-35 (Wyo.2001)). An appellant bears the burden of proving that counsel was ineffective. Barkell v. State, 2002 WY 153, ¶ 10, 55 P.3d 1239, 1242 (Wyo.2002). Specifically, with reference to the allegations of this case, the failure to file a suppression...