Snell v. State

322 P.3d 38

Samuel P. SNELL, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–13–0164.

Supreme Court of Wyoming.

April 9, 2014.

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Diane E. Courselle, Director, and Grant Smith of the Defender Aid Program, University of Wyoming College of Law. Argument by Mr. Smith.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey Pope, Assistant Attorney General; Caitlin Young, Assistant Attorney General. Argument by Ms. Young.

Before KITE, C.J., and HILL, BURKE, DAVIS, and FOX, JJ.

DAVIS, Justice.

[¶ 1] Appellant Samuel P. Snell was arrested and charged with driving while under the influence of alcohol. He filed a motion to suppress the results of his blood alcohol concentration (BAC) test, claiming that the affidavit supporting the search warrant authorizing his blood to be taken for testing failed to demonstrate probable cause. The motion was denied, and Appellant was subsequently convicted by a jury of driving with a BAC of at least 0.08% for a fourth or subsequent time in ten years, a felony. He now challenges the district court's denial of the motion to suppress as well as the sufficiency of the evidence to support his conviction. We find that the affidavit in support of the search warrant is deficient because it contains bare conclusions. Consequently, we must hold that the district court erred in denying Appellant's motion to suppress the results of his BAC test. We reverse.

ISSUE

[¶ 2] The dispositive question before us is the sufficiency of the affidavit that resulted in the issuance of a search warrant authorizing Appellant's blood to be taken for testing. For that reason, we restate the controlling issue as follows: ¹

Did the affidavit supporting the application for a warrant to draw Appellant's blood contain sufficient information for a judicial officer to make an independent judgment that there was probable cause that Appellant had been driving while intoxicated?

FACTS

[¶ 3] In the early evening hours of July 7, 2012, Mr. Svalina was working in his yard in rural Campbell County when he observed a pick-up truck traveling down the county road near his home at a high rate of speed, lose control, and roll over. From approximately 275 yards away from the wrecked vehicle, he saw someone crawl out of the passenger window and run from the scene. Mr. Svalina could not identify the fleeing person at that distance.

[¶ 4] While her husband was outside surveying the accident scene, Mrs. Svalina called law enforcement to report the incident, and Campbell County sheriff's deputies arrived shortly thereafter. Mr. Svalina described what he had seen of the driver and accident to the officers. After securing the scene and determining that the individual who ran from the scene was the only occupant of the vehicle, the deputies began to search for the driver who had fled. ² They checked the truck's license plate and then went to the home of the owner, Cynthia Snell, who lived roughly a mile and a half away.

[¶ 5] Ms. Snell believed that the truck was parked in her garage, but told officers that her son, the Appellant, could have taken it, even though he was only permitted to operate vehicles with an ignition interlock device, which the truck did not have.³ Officers continued to look for the driver and eventually called a canine unit to assist. Approximately an hour into the search (and about two hours after the accident), an officer spotted Appellant near Ms. Snell's residence. He matched the description Mr. Svalina had given. The investigating officer, Deputy Gibson of the Campbell County Sheriff's Department, observed that Appellant smelled strongly of alcohol, slurred his speech, had torn clothing, and had fresh cuts and blood on his face and arms. Appellant denied driving the truck, explaining that his torn clothes and injuries had instead resulted from a fall while he was tending horses.

[¶ 6] Appellant consented to field sobriety tests, but he was unable to complete two of the tests and failed the remaining three. Consequently, he was arrested and taken to the Campbell County detention center.⁴ There he was provided with an explanation of Wyoming's implied consent laws and asked to submit to a breathalyzer test. He refused.

[¶ 7] Deputy Gibson sought and obtained a search and seizure warrant to obtain Appellant's blood, breath and/or urine for testing to determine his alcohol concentration. Approximately four hours after the accident, Appellant's blood was drawn and tested as permitted by the warrant. The testing determined Appellant's BAC to be 0.21%.

[¶ 8] Appellant was charged with one count of driving with an alcohol concentration of 0.08% or more, a fourth or subsequent offense within ten years, in violation of Wyo. Stat. Ann. § 31–5–233(b)(i), (e), which is a felony. He filed a motion to suppress the blood alcohol test, asserting that the search warrant was based upon an affidavit containing conclusory statements, and that it failed to establish probable cause that he was driving the vehicle at the time of the accident. The district court denied the motion.

[¶ 9] With the motion denied, the case proceeded to trial. Appellant testified in his own defense, and for the first time admitted that he had been driving the truck at the time of the accident. However, he claimed that he consumed beer and whiskey ⁵ he had purchased and transported in the vehicle only after the accident; that is, he grabbed the alcohol when he fled and consumed it all sometime before being found by law enforcement near his mother's house. In other words, he testified that he became intoxicated after he was no longer driving and was therefore not guilty of the offense with which he was charged. The jury found Appellant guilty nonetheless, and the district court sentenced him to incarceration for not less than two nor more than six years. This appeal was timely perfected.

STANDARD OF REVIEW

[¶ 10] Our standard of review for evaluating the sufficiency of an affidavit to support the issuance of a search warrant under Article 1, Section 4 of the Wyoming Constitution is de novo. TJS v. State, 2005 WY 68, ¶¶ 9–10, 113 P.3d 1054, 1057 (Wyo.2005). While we view a search warrant affidavit in its totality through a commonsense and realistic lens, our review is ultimately constrained by the information included within its four corners. Id.; see also Rohda v. State, 2006 WY 120, ¶¶ 3–4, 142 P.3d 1155, 1158 (Wyo.2006). Because our Constitution requires all information relied upon by the issuing judicial officer to determine probable cause to be included in the affidavit, deference is unnecessary because we are in the same position to assess the information as the issuing magistrate or judge.

[¶ 11] We have also emphasized that an affidavit supporting a search warrant is presumed valid, and that it is tested by a less vigorous standard than that for determining admissibility of evidence at trial. Bouch v. State, 2006 WY 122, ¶ 6, 143 P.3d 643, 646 (Wyo.2006). In order to promote the use of warrants and recognizing that affidavits are not normally prepared by attorneys or legal technicians, this Court will resolve doubtful or marginal cases in favor of the validity of the warrant. Id.

DISCUSSION

[¶ 12] Article 1, Section 4 of the Wyoming Constitution protects its citizenry against unreasonable searches and seizures.⁶

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.

Wyo. Const. art. 1, § 4 (emphasis added). The requirement that the probable cause supporting the issuance of a search warrant must be reflected in an affidavit is significant to our analysis. “Because the Wyoming Constitution, unlike the Fourth Amendment, requires an affidavit, rather than just an oath or affirmation, we have held that sufficient factual support for issuance of the warrant must be found within the affidavit.” Bouch, ¶ 13, 143 P.3d at 648. The requirement of an affidavit fortifies Wyoming citizens' rights by creating a permanent written record. Smith v. State, 2013 WY 122, ¶ 14, 311 P.3d 132, 136 (Wyo.2013).

[¶ 13] The affidavit must therefore provide sufficient information within its four corners for a judicial officer to make an independent judgment that there is probable cause to issue the warrant based upon the totality of the circumstances. Bouch, ¶ 13, 143 P.3d at 648. “The totality of circumstances analysis requires the judicial officer simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Lefferdink v. State, 2011 WY 75, ¶ 14, 250 P.3d 173, 177 (Wyo.2011) (quotation marks omitted). Thus, it is necessary that the affidavit include some underlying facts, rather than bare conclusions of the affiant. ⁷

[¶ 14] With these principles in mind, we turn to the Affidavit for DWUI and Seizure Warrant at issue, which we set forth in its entirety for ease of reference:

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[¶ 15] Appellant complains that the affidavit is too conclusory to pass muster because it does not tell us how Deputy Gibson knew that Appellant was the driver of the vehicle. He asserts that there is a nexus requirement that is not fulfilled by this form affidavit, and that it paints an inadequate picture that does not reflect the actual circumstances of the case. After a solicitous review of controlling case law and the record, we must agree.⁸

[¶ 16] Probable...