Borgwardt v. State

946 P.2d 805, 1997 Wyo. LEXIS 130, 1997 WL 644023
CourtWyoming Supreme Court
DecidedOctober 21, 1997
Docket96-249
StatusPublished
Cited by17 cases

This text of 946 P.2d 805 (Borgwardt v. State) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Borgwardt v. State, 946 P.2d 805, 1997 Wyo. LEXIS 130, 1997 WL 644023 (Wyo. 1997).

Opinion

MACY, Justice.

Appellant Carl Borgwardt appeals from the judgment and sentence which the district court entered after he conditionally pleaded nolo contendere to a charge of possession with intent to deliver a controlled substance.

We affirm.

ISSUES

Borgwardt presents two related issues for our review:

*806 ISSUE I

The evidence obtained during the war-rantless search of [Borgwardt]’s vehicle should have been suppressed as it was obtained without a warrant and does not fall within the “plain view’ exception to the warrant requirements of the United States and Wyoming constitutions.

ISSUER

The evidence obtained during the war-rantless search of [Borgwardt]’s vehicle should have been suppressed as the search was not supported by probable cause.

FACTS

On February 29, 1996, Kevin Hughes and Chris Cook, agents with the Division of Criminal Investigation (DCI), and Sheridan police department officers were investigating a matter at a Sheridan saloon which was not related to this case. After Agent Hughes left the bar, Agent Cook called him on the radio, stating that a woman had reported that Borgwardt had a significant amount of marihuana in his ear which was parked in the bar’s parking lot. Agent Hughes returned to the bar. The woman, who was drunk, stated that Borgwardt had a pistol and that, when he found out that the police officers were at the bar, he placed his jacket in the front seat of his car and left the area. She also volunteered that she did not like Borgwardt.

At Agent Hughes’s request, the dispatch cheeked the car’s license plate number and determined that the car did, in fact, belong to Borgwardt. Agent Hughes recognized Borg-wardt’s name and confirmed that DCI had previously investigated him. The agent also discovered that Borgwardt had been arrested on several felony charges and convicted of a number of misdemeanors. One of the convictions was for possession of a controlled substance.

Agent Cook observed two rifles in the back window of Borgwardt’s car. The interior ear lights were on, and Agent Hughes shined his flashlight into the car through the windows. The car windows were covered with a slight dusting of snow, and, although he could see into the car without doing so, Agent Hughes proceeded to wipe the snow off of the windows so that he would have a better view. He observed two baggies which were lying partially under a denim shirt on the back seat floor and saw that one baggie contained marihuana. Agent Hughes also noticed a blanket in the back seat which looked like it was covering something.

Consistent with the woman’s report, Agent Hughes observed a jacket in the front seat of the car. Agent Cook entered the car to determine whether a pistol was in the jacket, and he found one. He then went inside the bar to look for a man who matched Borg-wardt’s description. When Agent Cook returned after being unable to locate Borg-wardt in the bar, Agent Hughes directed him to continue searching the car. During his search, Agent Cook found: (1) a small container which he suspected contained marihuana; (2) a marihuana pipe; and (3) the baggies, which Agent Hughes had seen earlier, containing marihuana. The car was impounded, and Borgwardt was arrested the next day.

Borgwardt pleaded not guilty to a charge of possession with intent to deliver a controlled substance. He moved to suppress the evidence which was seized during the search of his car, but the district court denied his motion. Borgwardt changed his plea to a conditional plea of nolo contendere, reserving the right to appeal from the district court’s denial of his motion to suppress. After Borgwardt was sentenced, he appealed to this Court.

DISCUSSION

Borgwardt contends that the war-rantless search of his vehicle was unconstitutional. He argues that the evidence which was seized as a result of that search was inadmissible and that the district court erred by denying his motion to suppress. The State maintains that the evidence was admissible because the police had probable cause to search the vehicle and because the evidence was in plain view.

When a district court makes specific factual findings regarding a motion to suppress, those findings are binding upon this Court unless they are clearly erroneous. *807 Gronski v. State, 910 P.2d 561, 563 (Wyo.1996); Neilson v. State, 599 P.2d 1326, 1330 (Wyo.1979), cert. denied, 444 U.S. 1079, 100 S.Ct. 1031, 62 L.Ed.2d 763 (1980). When, as in this case, the district court does not make specific findings of fact, “this court upholds the general ruling of the trial court if it is supportable by any reasonable view of the evidence.” Neilson, 599 P.2d at 1330. “The issue of law, whether an unreasonable search or seizure occurred in violation of constitutional rights, is reviewed de novo.” Gronski 910 P.2d at 563.

The Fourth Amendment to the United States Constitution and Article 1, Section 4 of the Wyoming Constitution generally prohibit warrantless searches. 910 P.2d at 564. The rule that warrantless searches are unreasonable per se is subject to only a few specific and well defined exceptions. Id.

The search and/or seizure of an automobile upon probable cause is one of the recognized exceptions. In an earlier decision, this court recognized that differences exist between motor vehicles and other property, which permit warrantless searches of automobiles in circumstances in which war-rantless searches would not be reasonable in other contexts. Neilson, 599 P.2d at 1330. The Fourth Amendment to the United States Constitution and Art. 1, § 4 of the Wyoming Constitution prohibit unreasonable searches and seizures. Reasonableness is determined by all the circumstances of each ease.

Id. (some citations omitted). The police may, therefore, search an automobile without having a warrant when they have probable cause to believe that the ear contains evidence of a crime or contraband. See Gronski 910 P.2d at 564-65; Neilson, 599 P.2d at 1334.

Borgwardt maintains that, because the woman’s report was inherently unreliable, the law enforcement personnel did not have probable cause to search his ear. He claims that, since the woman was drunk and admitted that she disliked him, the officers could not rely upon her report in determining whether they had probable cause to search the car.

In deciding whether a report from an informant is sufficient to establish probable cause, courts have generally drawn a distinction between reports from common citizens and reports from informants who regularly supply information to the police. 2 Wayne R. LaFave, SEARCH AND SEIZURE § 3.3 at 88-89 (3d ed.1996). Factors which courts consider in determining whether an informant’s report established probable cause include the informant’s veracity and reliability and the basis of his knowledge.

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Bluebook (online)
946 P.2d 805, 1997 Wyo. LEXIS 130, 1997 WL 644023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borgwardt-v-state-wyo-1997.