Davis v. State

859 P.2d 89, 1993 Wyo. LEXIS 144, 1993 WL 346046
CourtWyoming Supreme Court
DecidedSeptember 14, 1993
Docket92-244
StatusPublished
Cited by41 cases

This text of 859 P.2d 89 (Davis 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
Davis v. State, 859 P.2d 89, 1993 Wyo. LEXIS 144, 1993 WL 346046 (Wyo. 1993).

Opinions

GOLDEN, Justice.

Appellant Helen June Davis appeals her conviction for two counts of delivery of methamphetamines and one count of conspiracy to deliver methamphetamines. Appellant raises issues concerning the applicability of the exclusionary rule when a search warrant’s supporting affidavit contained false statements and the appropriateness of the court’s ordering appellant to pay prosecution costs.

We affirm.

ISSUES

Appellant stated the issues as:

[92]*921. When a police officer obtains a search warrant with deliberately or recklessly false misstatements, should the fruits of the warrant be admitted into evidence?
2. Did the Court abuse its discretion in ordering payment of over $5,000.00 prosecution costs when the only evidence of defendant’s ability to pay showed defendant had assessed state tax liabilities of over $48,000.00, had not filed federal income tax returns for several years and earned $6.50 per hour?

The state rephrased the issues as:

1. Probable cause for the search warrant was properly based on the whole affidavit.
2. The court properly ordered payment of prosecution costs based on the defendant’s ability to pay.

FACTS

On November 18, 1991, Michael Becker was arrested in Gillette, Wyoming, on a city bench warrant. He was found to be in possession of a controlled substance, meth-amphetamines. Later that day he cooperated with the Gillette Police Department, by making a controlled buy of methamphet-amines from Leahmae Haynes. On November 21, 1991, Leahmae Haynes made a controlled purchase of methamphetamines from Sue Fischer. Sue Fischer also cooperated with the Gillette Police Department; she stated appellant was her source of supply of the illegal drug. She described how appellant sent her methamphetamines from the state of Georgia via Federal Express, and how she sent money back to appellant, also via Federal Express. In its follow-up investigation, the police department obtained telephone records showing calls between Fischer and appellant’s home during the period of the conspiracy. The department also obtained from Federal Express copies of records showing the transactions described by Fischer. On January 8, 1992, an arrest warrant for appellant was issued by the Campbell County Court and forwarded to Georgia.

After receiving the Wyoming arrest warrant for appellant, agents of the Tri-Cities Narcotics Task Force (NTF) in Georgia began to conduct their own investigation. Through subpoenas and other investigative channels, the NTF agents obtained appellant’s telephone toll records, showing calls to Sue Fischer. They also obtained records showing appellant’s use of an alternative address for the delivery of mail and Federal Express packages. Appellant’s connections with other persons known to be involved with drugs were investigated. The NTF agents also confirmed the identity and address of appellant.

On March 2, 1992, a magistrate in Fulton County, Georgia, issued NTF Special Agent Curtis B. Jordan a search warrant. Jordan’s supporting affidavit contains statements which the state stipulates are false. The statements are:

Sgt Rozier stated that phone conversations between June Davis and his informant were recorded. These conversations pretaining [sic] to the shipments of methamphetamines from June Davis to a Location in Gillette, WY.

A search was executed, and authorities recovered appellant’s address book containing Fischer's address and phone number and a letter addressed to appellant and her husband discussing the buying and selling of methamphetamines. Appellant requested and received an evidentiary hearing on a motion to suppress this evidence, arguing the false statements rendered the warrant defective. The trial court found the statements were not deliberately false or stated with reckless disregard and denied the motion to suppress. The objection was renewed at trial when Agent Jordan was available to testify and again denied.

A jury found appellant guilty on all three counts. The trial court ordered appellant to pay prosecution costs of $5,231.42.

DISCUSSION

Search Warrant

Both the Fourth Amendment of the United States Constitution and Article 1, § 4 of the Wyoming Constitution require [93]*93a search warrant to be supported by sworn statement. The difference in the language of the two constitutions has been noted by this court:

The provision of the Wyoming Constitution covering search and seizure, being Article 1, § 4, is different than that of the United States Constitution and makes it mandatory that the search warrant be issued upon an affidavit. This difference has heretofore been the subject of comment in State v. Peterson, 27 Wyo. 185, 194 P. 342, 345, 13 A.L.R. 1284, where it was said:
“Our Constitution is some stronger, in that it uses ‘affidavit’ instead of ‘oath or affirmation’; the word ‘affidavit’ requiring the matter to be in written form.”

Smith v. State, 557 P.2d 130, 132 (Wyo.1976). Both constitutional provisions require a hearing when a defendant offers proof that false statements were included in the affidavit knowingly and intentionally or with reckless disregard for the truth. Defendant must show these statements were necessary to a finding of probable cause. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667, 672 (1978); Hyde v. State, 769 P.2d 376, 379 (Wyo.1989).

A suppression hearing on these grounds requires the defendant to establish by a preponderance of the evidence that the affiant gave deliberately false statements or recklessly disregarded the truth. If the defendant meets this burden, then the affidavit’s false material is set to one side. If the remaining content is still sufficient to establish probable cause, then it is proper to deny the motion to suppress. If the remaining content is insufficient, then the search warrant is invalid and the exclusionary rule prohibits the admission of the evidence just as if probable cause was lacking on the face of the affidavit. Hyde, 769 P.2d at 378-79.

The appropriate standard in reviewing a denial of a motion to suppress is whether the trial court judge abused its discretion. This court has said repeatedly:

“[W]e will not interfere with the decision of the district court unless there is a procedural error or unless there is shown to be a clear abuse of discretion.” In our determination whether appellant has clearly shown that the district court abused its discretion, we have said countless times “the ultimate issue is whether or not the court could reasonably conclude as it did.”

Love v. Love, 851 P.2d 1283, 1286 (Wyo.1993) (quoting Gaines v. Doby, 794 P.2d 566, 570 (Wyo.1990)) (citations omitted).

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Bluebook (online)
859 P.2d 89, 1993 Wyo. LEXIS 144, 1993 WL 346046, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-state-wyo-1993.