*1 BROWN, (Defendant), Appellant Dianne Wyoming, STATE (Plaintiff). Appellee
No. 86-104. Wyoming. Court of
June 1987. Munker, Defender,
Leonard State Public Naylor, Defender, Julie D. Asst. Public Gallivan, Director, Gerald M. Wyoming De- Program, fender Aid and Edward G. Luhm (argued), Student appellant. Intern for McClintock, Gen., Atty. A.G. Gerald A. Stack, Deputy Gen., Atty. John W. Ren- neisen, Gen., Atty. Sr. Asst. Judith A. Pat- ton, Gen., Atty. Asst. and James Baiamonte (argued), Legal Intern, appellee. BROWN, C.J., THOMAS, Before CARDINE, MACY, URBIGKIT and JJ. CARDINE, Justice.
Appellant was possessing convicted of methamphetamine with intent to deliver in 35-7-1031(a)(ii) violation of and 35-7- §§ 1016(d)(ii), W.S.1977. Her sentence was suspended, placed proba- and she was period years. Although tion for a of four appeal, raises several issues on only we need determine whether the trial refusing erred evi- dence obtained in a search of her residence. We reverse and remand.
PACTS The narcotics division of the sheriff’s of- Campbell County fice of suspected appel- “possibly dealing lant in narcotics.” They appellant, presumably did not arrest because lacked sufficient evidence for *2 officers, Being good police “they it an arrest. we wanted served.” The arrest war- they assume desire to would that had a rant a minor was for traffic citation that evidence for an So when obtain arrest. had approximately occurred years two be- was sued for the sum in appellant $50.00 years fore. For apparently two there had court, claims Officer Mader was in- small urgency been no about this warrant. But dealing appellant might that in formed be imperative now it was so that a team dispatched and to home to narcotics her dispatched four was appellant’s officers the small claims court summons serve and lady home this in pajamas. to arrest We nothing wrong There was complaint. keep danger must in mind the confronting Ordinarily, process point. this server in this officers arrest for it was later simply complaint hand the would and sum- suggested that had been shot and appellant mons and leave. There is killed in these kinds of situations. Two nothing wrong with that. surveillance, officers conducted and Offi- officer, requested cer knocking Corporal here the after on Mader
But Mur- door, footsteps, dogs barking, phey go heard of the office sheriff’s with him to clip a methodical like an automatic and serve the warrant. weapon, mentally all of which he noted to Deputy Hagerman Sheriffs and Lauck suspicious appellant activity. Then had appellant’s undertaken surveillance of door, opened wearing pa- her unarmed and Deputy residence. Lauck was a narcotics
jamas. nothing wrong up There was agent office, for sheriff’s and he point surely procedure this and standard “wanted to at the look situation.” In the simply have been her would to hand surveillance, Deputies Hag- course of their complaint and summons and leave. But large erman and Lauck observed “a white something there was about different this male adult enter and leave the residence anyone case. The officer asked if else was foot, go to and back vehicles into the house totally home. That was unrelated They several times.” also saw “a white complaint a civil service and summons go in female adult and out the front door Appellant claim. $50.00 answered times, dog, feed a things.” several various yes, boyfriend her inwas the house. The Mader Corporal When Officer and Mur- then officer entered her home to his and residence, phey appellant’s Dep- at dismay arrived empty observed an sheath on knife them, Hagerman enough the floor. That was uties Lauck and informed officer radio, appellant now frightened lady subject who was so and a male complaint (later in pajamas appellant’s that he served the boyfriend, identified as Toews) and summons and left. had Arthur been seen outside the home. The two officers walked to mobile serving If the small claims court sum- waiting porch, the front and complaint and mons One of the the door. officers told her encounter, this it had been successful and they a warrant for her had arrest and over; ap- obtaining but Appel- asked her “the man” was. where pellant’s suspected dealing in narcotics was Toews, stepped lant called Mr. and he out- purpose, singu- the encounter had been point side. At this the officers knew that Mader, larly unsuccessful. And so Officer everyone in trailer was on the outside residence, leaving appellant’s after met porch; appellant, lady pajamas, Cannon, Bagwell with Officers and who person was the named in the warrant ready had been the area back- provide they possession; their that all needed to do up in the service of the small claims warrant; was serve the and that if complaint and summons. After $50.00 necessary, discussion, custody felt it take her into Bagwell some Officers and Can- office; return to the sheriff’s office. But that non returned to the sheriff’s no shortly thereafter received a course of events would have resulted in Officer Mader dispatcher “possible dealing call from the evidence of sheriff’s office narcotics.” up very happened. that “someone come thing had So a fortuitous [in office] appellant’s Again appellant with a warrant” for arrest and turned and walked into her home, Corporal time Mur- United mobile Amendment to the States Constitu- I, in. What was he to phey Wyoming her do tion and 4 of the followed Art. Consti- began to lady pajamas when this leave? tution and revealed all, After evidence of where subsequent search was inadmissible as anyway. Corpo- And so narcotics must be response, fruit tree. poisonous Murphey immediately appel- ral followed argu- three alternative State offers *3 lant and there on into her home saw the (1) sweep protective ments: the was rea- sheath empty floor the knife which he im- sonable, (2) discovery marijuana of the the dangerous mediately recognized as a situa- protective the sweep was a result of Mader, yelled tion. He to Officer who was but instead the result of a was search Toews, porch weap- on the Mr. that a with after incident to arrest the Corporal for. Mur- was unaccounted sweep (3) completed, Corpo- was and when phey appellant going that he then told was accompanied Murphey appellant ral sweep” “protective to conduct through her home and discovered the mari- premises her she would lead and asked view,” juana “plain he was exer- through Appellant him home. the mobile cising right, pursuant his to Washington v. Corporal Murphey complied, leading to the 1, Chrisman, 812, 455 102 U.S. S.Ct. 70 bedroom, kitchen, bathroom, rear front (1982), L.Ed.2d 778 to monitor the move- to the living bedroom and room. back ments of an and arrestee observe evidence room, returning living Upon Corpo- view. Murphey spotted tray ral a metal contain- ing something marijuana. that looked like TO THE EXCEPTIONS WARRANT it, tray, inspected He walked to the and REQUIREMENT concluded that the substance was indeed I, Wyoming Article 4 of the Con § marijuana. provides: stitution found, was marijuana appellant After the right people “The of the be secure in jail, was taken to her mobile home was houses, persons, papers their and effects secured, Corporal Murphey and obtained a against unreasonable searches and sei- warrant, discovery marijuana search of his violated, zures shall not and no be war- providing probable requisite cause. A upon probable cause, rant shall issue but subsequent pursuant search to that war- affidavit, supported by particularly de- grams methamphet- rant uncovered 14.1 scribing place to be searched or the amine and other evidence narcotics. person thing to be seized.” discovered, ap- After this was a home We have held that is entitled to pellant possession charged was with of a special dignity special sanctity and that controlled with intent substance to deliver. proper way search a home is Before trial she moved obtain a search warrant. Goddard v. home, contending evidence found in her State, 343, Wyo., (1971). 481 P.2d 344 entry “protective the initial Moreover, searches and seizures made sweep” illegal were and therefore the sub- judicial without a warrant or outside the sequent illegal. search After a hear- process unreasonable, per subject are se motion, finding the court denied only to specifically a few established and protective sweep justified exceptions. State, well-delineated Kish v. circumstances, totality (1982). Wyo., 453, excep- 642 P.2d 455 Two protective sweep “not of such an inten- recognized tions which we have are the sive nature to be violative of the 4th exception and search-incident-to-arrest Amendment,” discovery and that plain-view State, Ortega Wyo., doctrine. v. marijuana cigarette plain- fell under the 935, (1983). 669 P.2d 940-941 This court view doctrine. validity scope has not ruled on the appeal, sweep “protective
On
now
her
doctrine” nor have
renews
pro-
contention
protective sweep
was we determined whether
rule
unreasonable
under the Fourth
nounced
States
search
United
Chrisman, supra,
Numerous state and federal courts have
Washington
Court
may not
used as a
held that an arrest
817,
allows a
which
102 S.Ct.
pretext
to search for evidence of an un-
of an
“monitor the movements
officer to
Burkoff,
crime.
The Pretext
related
See
dictates,
judgment
as his
person,
arrested
It,
Search Doctrine: Now You See
Now
following
and observe
arrest”
[an]
Don’t,
(1984);
17 U.Mich.J.L.Ref. 523
You
so,
doing
compatible
plain view while
LaFave,
Seizure,
5.2(e)
Search and
W.
constitution.
our state
(2nd
1987).
pretext
A
search occurs
ed.
reviewing
ruling,
court’s
the district
depart
proce-
from routine
when officers
findings un
by that court’s
we are bound
engage
dure and
in arrest and search activ-
clearly erroneous. Neilson v.
less
are
ity
not have been undertaken
which “would
State,
1326,
Wyo., 599 P.2d
but
‘underlying intent or motiva-
[an]
denied, 444 U.S.
100 S.Ct.
cert.
which,
alone,
standing
sup-
could not
tion’
(1980).
The district
62 L.Ed.2d
ply a lawful basis for the
conduct.”
*4
sweep
justi
protective
was
found that the
LaFave,
1.4(e)
supra,
(Emphasis
at 93.
totality of the circumstances.
fied
Blair,
Thus,
Mo.,
v.
original.)
in
State
finding
clearly
that this
was
We conclude
police suspected
ranted under these subjective motives of fic warrant —the over, ruling that the court’s is we conclude * * Id. become irrelevant view of the supportable by a reasonable at 260-261. contrary, the record con evidence. To the war- held the unrelated traffic The court arrest, pursuant appellant’s us that vinces for evidence pretext arrest a to search rant warrant, outstanding merely to an stating: suppressed by the sheriff’s office to pretext utilized limitation on “A well established appellant’s them to search home for enable excep- arrest incident to a valid search evidence of narcotics. Well, an arrest not be “THE COURT: there are some tion is the rule that facts, however, suggest for evidence.” I pretext used as a search —and say just casually more than would Id. at 262. —that very Office Sheriff's much would— surrounding ap- the circumstances Given to be wanted able to know what was intensity of the pellant’s arrest and the inside that house. The fact that all the case, we of her home initial search backup people were narcotics officers— that the un- escape the conclusion cannot good or that a number of them were for the arrest derlying intent or motivation certainly sugges- narcotics officers—is desire to search the officers’ tive of that. home for evidence appellant’s search agree, “MR. I COWAN: would Your narcotics. Honor, perhaps they did. But what say that the situation It is nonsense we have to be concerned here with is pajamas her here and this they anything whether did that violated danger posed great officers. It any doing the Fourth Amendment that. anyone danger silly say suggest would did not. being simple fact is there was shot. you “If look the search warrant it- Entering ap- danger anyone. at all to no self— two-year-old pellant’s pursuant home to a They “THE pro- COURT: sure did the ruse and done for the traffic citation was a merely tective search was a—or screen gathering permit you or whatever call it—was charging crime. To condone this another *5 get opportunity reason to an to take a pretext search is to condone conduct which good look around the house.” rights afforded violates the constitutional light suppres- In of this discussion at the every country against unrea- citizen of this hearing, strange sion it is that the dissen- sonable search and seizure. That others pretextual ters still “how the ar- wonder may justification violate the law is no proposition present ap- became in rest this They enforcement to do so. are sworn law peal.” quoted In addition to the discussion uphold the law and above all else should above, brief, appellant’s note we also which recognize constitution and and honor the States, Taglavore cites 291 F.2d United rights the afforded it to the citizens of Cir.1961), (9th proposition 262 for the country. pretext this This search was un- arrests should traffic-related not be used lawful, thereby and the obtained evidence Taglavore engage overbroad searches. suppressed. should have been leading subject pretext is a case on the of appellant The dissenters’ conclusion arrests. And while the dissenters’ famil- theory pretext “disavowed” the arrest is iarity with Hans Christian Andersen is unsupported by the record. When discuss- commendable, suggest we a review of the below, ing concept the defense counsel appellate cases cited in the before briefs merely position the took the resorting fairy tales. suppressed should bad faith be even if It has been held that “[w]hen could not be demonstrated. When the subterfuge arrest is for conduct court asked the critical issue was wheth- search, ing illegal spite the search is “ruse,” er the coun- search was a defense validity of the arrest.” Common replied: sel Freeman, 178, Pa.Super. 293 wealth v. mean, “We don’t have to have them—I (1972). case, present A.2d In the illegal. that’s fraud. That’s—that’s We validity did not even establish the State ** * go don’t have to to that extent to appears arrest warrant the arrest. No added.) (Emphasis exclude this.” uphold the record. If we were to “disavowal,” interpret We do not this as a search conducted this case on the record court, us, open and neither the door to the did the district as is before we would general following exchange possibility demonstrated of warrantless searches every given a judge prosecutor: between the and the of the homes of citizen ever unconstitutionality of officers ‘bad faith’ traffic citation. Law enforcement “[T]he compelled by the searches is need to re- may pretext of an arrest on a not use the policy police strict discretion—a that is at charge engage in an minor as a means the fourth amendment. In a heart of of an overbroad search to uncover evidence search, police ‘bad faith’ officer’s ac- unrelated offense. solely upon may suspicion tions be based regardless The State contends that whim, type or This of discre- worse. protective sweep, propriety tion in the hands of the is one of permissible search was under Unit requirements the abuses that decision in ed States Court’s expressly fourth amendment were de- Chrisman, supra, 102 Washington v. S.Ct. Burkoff, signed Bad Faith to curtail.” Chrisman, In the Court held that 812. Searches, 70, 102-103 57 N.Y.U.L.Rev. arresting officers monitor the move (1982). so, and, doing arrestee while ments State, Wyo., Fondren v. In 724 P.2d any view. observe we held that case, the officers did more than “monitor” po- exclusionary rule is to deter unlawful Corporal appellant’s movements. After lice conduct. The conduct of the inside, he Murphey had followed this case amounted to an at- expand prolong opportunity took the I, tempt Wyo- Art. 4 of the to circumvent search, ultimately search “plain view” ming find the exclusion- Constitution. We apply home. We refuse to the entire ary particularly appropriate rule to here. plain-view doctrine in these circum and remanded. Reversed stances.
THOMAS, J., dissenting filed a TREE THE POISONOUS BROWN, C.J., FRUIT OF opinion joins. in which AND THE EXCLUSIONARY RULE THOMAS, Justice, dissenting, with by Corporal marijuana discovered BROWN, Justice, joins. whom Chief appel- Murphey during his initial search of struggled what have discover provided probable cause for premises lant’s wrong Certainly, case. it is not a *6 with this subsequent The the search warrant. wrongful act to serve a civil summons pursuant conducted to the search search complaint. wrong Neither is it for an offi- discovery in the of the warrant resulted com- serving cer that civil summons and sup- appellant sought to evidence which surroundings in which plaint to observe the State, Goddard v. press. supra, 481 Wyo- I that in it is served. cannot believe 345, at held that P.2d we ming wrong an arrest war- it is to serve improper, “if is held not the initial search Furthermore, efforts on rant. reasonable by such only the evidence obtained part arresting protect of officers to ac- everything search but which becomes denigrated. should not be themselves prosecution by reason of to the cessible Lastly, justifies the seizure of con- our law the initial search would be inadmissible perceived at traband which view ” poisonous tree.’ as ‘a fruit of the right place where an officer has a to be. pursuant to In this case the evidence found persuaded I am not Court to search warrant became accessible indiscriminately set of this State chooses to only prosecution as a result possessing drugs aside convictions with and, therefore, illegal initial search pressed I am to intent to distribute them. poisonous fruit of the evidence constitutes wrong that what is in this the conclusion tree. majority per- to case is the failure of the Court, role of this to understand exclusionary rule ceive the conclude that che
We
the facts established
the record and
The reason
applied
must
this case.
deciding
appropriate rules of law
condemning
“pretext”
faith” or
follow
“bad
question, I
Without
would af-
explained by
commentator
issues.
searches is
one
Dianne Brown’s conviction.
following
firm
in the
terms:
search,
scope of the
conducted
record convinc
“4. The
majority says,
“[T]he
warrant,
pursuant
search
was rea-
arrest, pursuant
appellant’s
es us that
descrip-
sonable and conformed with the
warrant,
pre
outstanding
places
things
to be
tion of
office to en
by the sheriff’s
text utilized
for,
in the search
searched
set out
war-
home for
appellant’s
them to search
able
rant.”
majority
Later the
evidence of narcotics.”
State,
to Neilson v.
According
supra,
be-
escape the conclu
that,
says
cannot
“[W]e
finding
made no
cause the district court
intent or motiva
underlying
sion that
search,
respect
pretextual
this
and search was the
the arrest
tion for
suppression if
uphold
court should
it is
appellant’s home
desire to search
officers’
supportable by any reasonable view of the
Those are fac
of narcotics.”
for evidence
Clearly,
evidence.
it is.
determinations,
appellate and an
tual
course,
findings
quoted
and con-
Of
questions of fact. As we
resolve
does not
specifi-
do
clusions of the district court
State, Wyo., 599 P.2d
v.
said in Neilson
cally
concept
pretextual
address
denied,
1326,
(1979),
444 U.S.
cert.
search. There is a reason for that.
It was
(1980):
1031,
1079,
“3. controlled substances pretextual arrest One ask how officers, subsequently used as a present appeal. proposition became this warrant, for a falls under Literally, basis search the answer is from nowhere or perhaps everywhere.1 majority from The the “Plainview Doctrine.” Andersen, (Panthe- Eighty Fairy Tales 1. One is of the marvelous wisdom Christian reminded Books, 1976). contained in Hans wonder- Christian Andersen's on New York Emperor’s ful tale "The New Clothes.” Hans
1099
persuaded
pretext
The
arrest
probably
of the court is
that the doctrine
rationale
apply
should not
in cases
was a concern of the
where there is a
pretextual
arrest
pre-existing
outstanding.
warrant
Appendix B
State v.
Attached hereto as
are
court.
Davis,
724,
Wash.App.
35
to the order
See
cases into ‘the underlying intent or moti-
128,
(Mo.
involved,’
S.W.2d
130
vation of the
Giffin,
State v.
640
officers
it would
1982).
seem,
ordinarily
has
prompted
been
by
inability
an
of the courts to ascertain in a
law-supported
“Third
rule
is the case
more
police
direct fashion whether the
reviewing
court is free to dis-
particular
departed
case had
from
inferences,
regard contrary
practice.
their usual
sug-
This is not to
ruling on
and is to affirm the trial court’s
however,
gest,
inquiry
into motiva-
a
if the evidence is
motion
tion is either a desirable or an accurate
findings. Giffin,
sufficient to sustain its
resolving
means of
that issue. For one
Baskerville,
supra;
616
State v.
S.W.2d
thing,
hardly
perfect
there is
a
correla-
839,
(Mo.1981);
Rainbolt,
State v.
tion between motivation and deviation.
(Mo.App.1984).”
676 S.W.2d
Presence of an
may
ulterior motive
show
principles,
About the first of these
is
there
why
might
depart
officer
want
dispute.
majority in
no
The
the instant
procedure
from the usual
but does not
proceeds antithetically
case
to the second
so,
show that he has done
and even in the
principles
by
and third
invoked
the Su-
absence
an ulterior motive the officer
preme Court of Missouri. It is noted that
by
have
inadvertence failed to con-
majority
bootstrap
position
seeks to
its
practice.
form to the usual
Secondly,
alluding
when
to the irrelevant factor of
perhaps
important,
more
there is no
protective sweep.
says
It
“We con-
reason to believe that courts can with
finding
clearly
clude that this
errone-
any degree of success determine in which
to,
ous.” No
alluded
for the
police
instances the
had an ulterior mo-
none,
obvious reason
there is
which
quite
tive. As Professor Amsterdam has
support
would
that statement.
persuasively noted:
pertinent
rule in this instance is
“
surely
‘But
the catch is not worth the
States,
found in Scott v. United
436 U.S.
trouble of the hunt when courts set out
128, 138,
1717, 1723,
98 S.Ct.
56 L.Ed.2d
bag
the secret
motivations of
in which the Court said:
subjective
this context. A
purpose to do
“We have since held that the fact that
something
applicable
legal
rules
the officer does not have the state of
say
objective
there is sufficient
cause to
hypothecated
mind
by
which is
the rea-
do
easily
can be fabricated all too
provide
legal justification
sons which
undetectably.
is,
any
Motivation
for the officer’s action does not invali-
event,
self-generating phenomenon:
a
long
date the action taken as
as the
purpose
a
to search for
legally
heroin can
circumstances,
objectively, justify
viewed
accomplished only
accompanied
when
that action.”
by
weapon,
to search for a
Chrisman,
Washington
See also
v.
knowledgeable
expe-
seldom
will
1, 102
(1982).
U.S.
S.Ct.
HOI
are more
there
reliable and feasible
“And I’m also mindful of the fact that
in
determining
particular
protective
a
means of
case
the
sweep was
in scope
limited
challenged
produce
the
arrest or
and did
whether
no
all.
arbitrary.
search was
This can best be
gone
“If he
looking
had
in and started
accomplished by
widespread appli-
more
through drawers, something beyond a
requirement
by
cation
utilized
the
merely protective sweep,
then
think
in
Op-
Court
South Dakota v.
that evidence would be properly sup-
namely,
perman,
the Fourth
pressable.”
activity
Amendment
‘was carried out in
analyzed
When this case is
from an ob-
procedures
accordance with
in
standard
jective perspective,
nothing
present
there
* * * ”
police department.’
the local
1 which demonstrates an unlawful search.
LaFave,
Seizure,
1.4(e)
W.
Search and
officers in accordance with the
(2d
1987). (Footnotes
at 95-96
ed.
omit-
recognized
rule
in Washington v. Chris-
ted;
original.)
emphasis in
man, supra,
lawfully
following
acted
in
quoted
Dianne
by
Professor Amsterdam
Brown when she went
into
Professor
back
the
being
trailer home
vigorous
pursuant
has
a
after
arrested
LaFave
been
and successful
to the arrest
rights.
warrant. The district
advocate of constitutional
His ac
court
correctly found
ceptance
that it was
particularly
of Scott is
reasonable for
notewor
protective sweep.
the officers to do a
thy
explanation
as well as his
for
Cor-
the rea
poral Murphey
place
was in a
where he
subjective pretextual
son the
search doc
lawfully entitled to
when
he saw the
rejected.
trine should be
See United
marijuana cigarette
plain
in
Hawkins,
(3d
view. The
States v.
backs and put properly seized. Dianne Brown’s con- get her it? was lice car to should be affirmed rather than re- viction mean, very long had—it wasn’t “I we’ve versed. shot ago two officers were very walking away from a
community dwelling. They of a went routine check A APPENDIX dwelling there had been a a because to cooperation— inquiring, even total entry. They there and report of an went down, then, THE it come COURT: Does walking nothing back and start found your analysis finally sift view—does up opened on. they’re car and their * # # * * * not, question of whether or down to a facts, totality it based dead, them’s “THE COURT: One of merely, appears that this search was as shot.” one of them was it, think, earlier, I ruse and it you recall “lady paja- free the In their zeal to go was to there and was that —the (according to the record Dianne mas” way get in figure some the house and clothing) wearing pajama-type Brown around— look her criminal ac- consequences of from the No. MR. SOWADA: No. of the dis- tivity refute views and to disregards opposed protect- THE —as majority COURT: senting justices, its I don’t think it proceeds upon yourself? facts of comes down the record and analysis. refer- It does seem that a to that kind of an own invention. medieval double-headed batt- ence to the I MR. SOWADA: No. think civil the side of a strapped to leax which was liability analy- down to that kind of comes parked yard in the in front motorcycle sis, justifiable and I don’t think it would be speaks more Brown’s house trailer Dianne liability in this case. That’s where civil the offi- eloquently to the situation which ought come in. present. presence perceived to be cers question is here is that if this What the shotgun in the 12-guage sawed-off of a kind of search does occur is it violative further along other firearms trailer and—of the Con- under the circumstances danger. perception of
justifies their is it of the United States —and stitution Nevertheless, majority opinion ridicules thing ought protected we to be kind of Ridicule concerns of these officers. citizens, against as not to the extent of some levels of de- appropriate being suing the but to the extent State bate, style denigration is unbe- but that exclusionary protected as a result of the highest coming opinion of the to an rule. of a state. mean, don't have to have them—I We Furthermore, sug- majority opinion illegal. We that’s fraud. That’s—that’s sweep was con- gests protective go to that extent to don’t have to have from the dan- ducted to secure the officers this. exclude posed “lady pajamas,” gers by the here another event position must be addition —there’s illogic the utter of that ought analyzed I to be a little While think apparent to even a casual reader. differently strictly I think more not be material probably her attire would They against the have to make fire the sawed-off State. she could whether they can make the arrest. They arrest when shotgun, they knew where she was. true, Now, a reason not to arrest there’s legitimate concern about were entitled to a possibly there’s a rea- than Dianne presence person a third other Brown— justifiable per- don’t think there is male son—I Dianne Brown or the identified this case—but there could be a reason in hope that law enforcement son. would until a to arrest Dianne Brown unduly by this reason not not be offended will made, sweep sweep set slight enforce the law of their efforts to opinion. made. majority forth in the
H03 substances, with controlled there was some *11 to may weap- reason that believe there parties the Hopefully, the in mobile ons in the from clicking house the that home, they’re dangerous go- if people, are sounded like being bullets to transferred ing police to assume that the are there for weapon, sheath, the receiver of a the knife reason, and, so, they another won’t take right motorcycle. ax All any away. They— violent measures of those assuming they assuming—not point things see- to that. —but — ing going she’s to that be arrested. recognize, I uphold, as the cases a that actually happens, But what as a matter search, although incep- reasonable at its case, they in this is fact announce to her tion, may violate the Fourth Amendment anything happens all before at that we’re by intensity scope. its going to you. arrest I don’t find that happened in this dangerous THE But is COURT: protective sweep, instance. The it to seems part? dangerous part Or is the when— me, that. The officer—wheth- even if she doesn’t—if she doesn’t resist— accompanied er he was by Mrs. or Brown around, her, you when turn her handcuff not seemed to me to be immaterial. The your walking and turn and start backs point is very briskly that he walked police get put car to her towards in it? through apparently the rooms. He was mean, very long I had—it we’ve wasn’t looking people searching for other ago that two officers were shot in this for contraband or evidence a crime. community walking away very a from rou- resulting observance the officer dwelling. They tine check of a went to a suspected me, marijuana, it seems to dwelling report because there had been observing things was a result of his which entry. They of an went there and found plainly open were to his view. nothing walking and start back their they’re opened up car and on. got room, think, living He into the I following either Mrs. Brown there APPENDIX B event, her consent. either it was WEDNESDAY, OCTOBER appropriate for him to be there. (Whereupon, proceedings were com- Certainly, Washing- as the Court said menced, p.m. in chambers at 3:15 Chrisman, ton un- the—it was not present.) The defendant was not policeman monitor, for reasonable as routine, a matter of movements of THE COURT: This is State v. Brown. person, as judgment arrested his dictates. opportunity I’ve had an to do some read- That was the instance he where followed ing on the search area of and seizure and boy up dormitory get to his room identi- have reached a decision in the case. picked up fication after he had him enough really I’ve not had orga- time to possession being boy a minor in and the my thoughts nize in as coherent a fashion up went to the room and the officer accom- to, as you’re I’d like but I understand panied got room, him. he he When both anxious to have the decision an- marijuana discovered seeds and other con- So, you’ll forgive nounced. an inarticu- trolled substances. announcement, late I you can at least tell my originally suppressed by what decision is and That the—I the basis for it. think it was the State Appellate Court— I going am not up- and the United States Court obtained the search of Dianne Brown’s part held that as reasonable on the house. officer. protective sweep, I think that first they all, And also said—and I think that this justified by totality appropriate protective sweep, as point circumstances the case and authority fact well—that people officer knew that the the officer’s custodial suspects dealing in there were least depend upon over an arrestee doesn’t gone in looking
If he had and started drawers, through something beyond a assessment reviewing after-the-fact court’s sweep, I merely protective then think that of the arrest situation. properly suppressable. evidence would be specifical- speaking there And were just any don’t see not the whether or ly about balance protect- interest in moved into a situation to en- legitimate arrestee was officer had a attack. possible from the himself to search. If that were the able your argument case—and this is also to deciding whether or true in I think that’s arresting opportunity, at the about first sweep is order should be anot *12 perhaps I which think is a more attenuated discretion, pro- largely to the officer’s left argued. you Certainly, standard than that objective factors that there are vided that police they cannot to arrest decision. wait until support that opportunity have to do a search incident back, then, plain I think the view Coming their I that’s motive because think clear- living clearly applicable in the doctrine inly this case it was not. The first time object plain view. room. The over, Mr. Mader went he was into invited in Coolidge stated v. New As Court time, living room. The they— second object during Hampshire, view they most announced to her accounts— appropri- that is search incident to arrest they that she was arrested before even existing ately scope limited in under law dwelling. entered the a warrant. be seized without they If had those ulterior motives based they seized Clearly, I think could have conduct, prior I upon her think it would The search the roach at that time. was—if police for the have been reasonable have permissible. at all—was there was a search they gotten assumed could have into her That, think, I also meets the test an- room, living they and would have tried to nounced Chimal. they do that before arrested her. And that argument, Mr. your I’m not unmindful of evidence, I wasn’t the don’t believe Sowada, policy the exclusion- about the that that was their motive. ary police deter conduct. rule to serve to Ohio, pointed Terry But as it out in think, finally, you IAnd had some com- exclusionary powerless deter rule is plaints things about what—or what were constitutionally-guaranteed invasions of seized. police inter- rights where the either have no pretty clearly pursuant I think on the— willing forego prosecution est in or are police searching were warrant serving prosecution the interest of some any marijuana or other evidence of goal. other they crime that come across in the search really And I don’t think in this instance long reasonably so as the search was serve suppressing the evidence would were, product of the warrant and any legitimate any have deterrent —would fact, described, looking for the material legitimate deterrent effect. is, controlled substances. testimony I think the officer’s was that just buy argument I don’t house, through that going he was to look gone to all would have that effort whether she whether she consented or get pick up a search warrant to that one motive, think, Clearly, I was to didn’t. his they could have roach which seized without himself, protect going and he was to do sought. a warrant at the time it was sup- that. And whether the evidence was pressed or not I don’t think would have presence in As far as the officers’ secur- anything to do with whether or not he premises couple for the or hours conducting pro- would be deterred in such long get it took to the warrant. however sweep tective in the future. Seguera v. United States was a case where the secured a house for 19 And I’m also mindful of the fact that the there, hours while no one was and the protective sweep scope was limited in upheld that. produce did no evidence at all. Court
H05 instance, boy- In this know if the don’t legitimate any
friend was—had claims to premises Nevertheless, or not. all appeared he
evidence was that to live
there, and the that I indi- heard
cated that there were no restrictions comings goings. fact,
his or he left
halfway through, he apparently had possessory rights if not posses-
some some interest in
sory premises. searching
The evidence no was that
done, they pur- were there for the
poses making that no sure
contraband was removed.
Anything else? *13 nothing,
MR. I have Your COWAN:
Honor. Nothing.
MR. SOWADA: prepare
THE You’ll Okay. COURT:
order, please. Yes, COWAN: Your
MR. Honor.
(Whereupon, proceedings were p.m.)
concluded at 3:25
[*] [*] [*] [*] [*] [*] SCHMIDT,
Ronald William
Appellant (Defendant), Munker, D. Leonard State Public Defend- Wyoming, The STATE of er, Wyatt Skaggs, Asst. Public Defend- (Plaintiff). Appellee er, appellant. for No. 86-291. Gen., Joseph Meyer, Atty. B. John W. Wyoming. Court of Gen., Renneisen, Atty. Terry Sr. Asst. Gen., Armitage, L. Atty. appellee. Asst.
June 1987. BROWN, C.J., THOMAS, Before CARDINE, MACY, URBIGKIT and JJ. BROWN, Chief Justice. single issue in this ease whether trial court abused its discretion re- probation.
voking appellant’s We affirm. will