448 P.3d 844
Wyo.2019Background:
- July 1, 2017 traffic stop: Holly Herrera was found in the back seat with three children; she initially gave false names and dates of birth and was arrested on an outstanding probation warrant.
- Inventory of the vehicle revealed methamphetamine, a glass pipe with meth residue, syringes, and related paraphernalia; State charged Herrera with three felony child-endangerment counts and one misdemeanor possession count.
- As a condition of probation, while jailed on July 3, Herrera was ordered to provide a urine sample; observed first attempt failed and on the second observed attempt she dipped the collection cup into the toilet, contaminating the sample.
- At trial defense cross-examination elicited testimony about the warrant; the court permitted the prosecutor to ask about the trooper’s attempts to obtain a UA (but not the warrant’s underlying offense); the trooper testified she saw Herrera dip the cup in the toilet.
- Herrera was convicted on all counts and appealed, arguing the admission of testimony about her contaminating a compelled urine sample violated her Fifth Amendment right against self-incrimination.
- The Wyoming Supreme Court found good cause for Herrera’s failure to move to suppress, reviewed for plain error, and held the contamination was a non‑testimonial physical act (not compelled communicative evidence) so no Fifth Amendment violation occurred; conviction affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of testimony that Herrera contaminated a compelled urine sample (Fifth Amendment) | Herrera: dipping the cup was a communicative/testimonial act revealing guilty knowledge; admission violated right to remain silent | State: contamination was a physical, non‑testimonial act (like refusal or altering a physical exemplar) and Herrera alone chose to contaminate the sample | Court: contamination is non‑testimonial physical conduct and not compelled; admission did not violate Fifth Amendment |
| Waiver for failure to file pretrial suppression motion | Herrera: good cause existed (State gave no notice and did not intend to introduce evidence of the warrant/UA attempts) | State: claim waived under W.R.Cr.P. 12(b)(3) because no pretrial motion was filed | Court: found good cause and declined to treat claim as waived |
| Standard of review for constitutional claim raised first on appeal | Herrera: fundamental error requiring de novo review and State must show harmlessness beyond a reasonable doubt | State: review should be plain‑error because issue was not raised below | Court: review is for plain error (good cause for not moving to suppress does not convert to de novo review) |
Key Cases Cited
- Pennsylvania v. Muniz, 496 U.S. 582 (establishes testimonial vs. physical‑evidence distinction under the Fifth Amendment)
- Schmerber v. California, 384 U.S. 757 (compelled physical samples are not testimonial communications)
- Doe v. United States, 487 U.S. 201 (act‑of‑production can be testimonial when it implicitly communicates facts)
- South Dakota v. Neville, 459 U.S. 553 (refusal to submit to testing held not protected as compelled testimonial evidence)
- United States v. Hubbell, 530 U.S. 27 (clarifies limits of testimonial privilege and act/communication distinction)
- Smith v. State, 199 P.3d 1052 (Wyo. 2009) (applied Neville to refusal/compelled‑sample context)