Kenneth L. Fosen, Jr. v. State
2017 WY 82
| Wyo. | 2017Background
- Officer Roesner investigated a Pioneer Manor resident who tested positive for THC and admitted eating a marijuana cookie given by a friend she called “Ken.”
- The resident described Ken’s trailer (a white single-wide in the second row on Laramie), a Harley motorcycle and a Cadillac-type vehicle.
- Officers located a white trailer at 602 E. Laramie Lot 10 with a Harley (registered to Kenneth Fosen) and a black Lincoln; a man identified himself as Kenneth; Fosen denied consent to search.
- Roesner applied for and obtained a warrant to search Fosen’s trailer, the Harley, and the Lincoln; the search produced marijuana, other controlled substances, and drug paraphernalia; cookie remnants were found on the motorcycle.
- Fosen moved to suppress, arguing the affidavit failed to establish probable cause and did not particularly describe the place to be searched; the district court denied suppression, and Fosen entered conditional guilty pleas reserving the right to appeal that denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether affidavit established probable cause for a search warrant | Fosen: affidavit contained errors (nonexistent intersection), vague vehicle descriptions, and lacked particularity tying the address to the residence; thus no probable cause | State: informant’s admission, corroboration by officers (location, vehicle registrations, identity) and temporal proximity support probable cause and particularity | Court: Affirmed — totality of circumstances, corroboration, and common-sense reading yielded probable cause and sufficient particularity |
| Whether affidavit particularly described place to be searched | Fosen: erroneous street reference undermines particularity | State: affidavit repeatedly referred to “residence” and described a white single-wide trailer at Lot 10; no other plausible alternative | Court: Affirmed — description plus address in warrant and context made it reasonably particular |
| Whether informant’s statement was sufficiently reliable | Fosen: informal descriptions and temporal gaps undermine reliability | State: informant’s admission was against penal interest and corroborated by police observations | Court: Affirmed — admission against penal interest and corroboration supported credibility/probable cause |
| Whether officer’s statement that they “went to the area described” was misleading | Fosen: that statement obscured the nonexistent intersection detail | State: not raised below; factual errors viewed in context of corroboration | Court: Issue not preserved on appeal; in any event, totality and corroboration render the affidavit adequate |
Key Cases Cited
- Snell v. State, 322 P.3d 38 (Wyo. 2014) (review of affidavit for probable cause uses totality of circumstances and is de novo)
- TJS v. State, 113 P.3d 1054 (Wyo. 2005) (probable cause and temporal proximity factors in warrant affidavits)
- Bouch v. State, 143 P.3d 643 (Wyo. 2006) (Wyoming Constitution requires affidavit; four-corners sufficiency for issuing officer)
- Lefferdink v. State, 250 P.3d 173 (Wyo. 2011) (practical common-sense standard: fair probability evidence will be found)
- Mueller v. State, 202 P.3d 404 (Wyo. 2009) (totality of circumstances in issuing probable cause determinations)
- Bonsness v. State, 672 P.2d 1291 (Wyo. 1983) (admissions against penal interest bear indicia of credibility for probable cause)
- Cordova v. State, 33 P.3d 142 (Wyo. 2001) (timeliness of information relevant to showing evidence likely still present)
- Rohda v. State, 142 P.3d 1155 (Wyo. 2006) (consider affidavit as a whole; avoid piecemeal analysis)
- Schirber v. State, 142 P.3d 1169 (Wyo. 2006) (preference for warrants and presumption of validity)
- United States v. Harris, 403 U.S. 573 (U.S. 1971) (informant statements against penal interest carry indicia of reliability)
- United States v. Hunter, 86 F.3d 679 (7th Cir. 1996) (failure to state explicitly that an address is the suspect’s residence is not necessarily fatal when the affidavit otherwise points only to that residence)