Smith v. State
557 P.2d 130
Wyo.
1976
Check Treatment

*1 SMITH, Appellant Robert Gerald

(Defendant below), Appellee Wyoming,

STATE below).

(Plaintiff

No. 4653.

Supreme Wyoming. Court 16, 1976.

Dec. *2 premises

the same and recited that “in the lawful execution of a search warrant on premises September above on 1974” the officer had observed certain items which are the allegedly articles embezzled upon herein and which this conviction was based. The reference to the “lawful exe- cution” is admittedly a reference to the search warrant Penney issued in the C. J. matter. trial, Prior to defendant filed a motion upon to dismiss based the asserted contra- vention of the Fourth Amendment of the United Constitution and States Article Wyoming Constitution. mo- This directly sufficiency tion attacked the Hooper, Pap- David B. of Vidakovich & Penney C. warrant and contended that J. was not based Lander, pas, appellant. for upon proper showing Mendicino, Gen., Atty. Frank and V. agree. this we cause. With Jerry Murray, Atty. Gen., M. Senior Asst. apparent It is that the sufficien Cheyenne, appellee. cy of the facts contained in the affidavits GUTHRIE, J., Before and Mc- C. upon the first which warrant was issued CLINTOCK, RAPER, THOMAS, directly placed in issue because of this con- ROSE, JJ. clusory by statement made the officer to apparent recog secure warrant GUTHRIE, Chief Justice. clearly expressed nition of the rule so Gerald Smith was convicted Edwards, Cir., 441 F.2d States County, Wy- the District Court Natrona 749, 750: oming, embezzlement, of the crime of in- “It neither is well established that volving certain property belonging to the search, illegal evidence found an nor Machinery Wyoming Company. As re- knowledge acquired from such a sult of such conviction he was sentenced to search, enforcing used legally can be a term of not year less than one nor more * * * the law. eighteen prosecutes than months and appeal from that conviction and sentence. addition, Wong see Sun v. United In States, 407, 416, 9 371 U.S. appellant

The first issue raised is that 441; Peterson v. United the search warrant in this 1074, 1078, Cir., certiorari denied supported by that his 199; suppress been motion to should have sus- F.2d Simpson v. explained that there are tained. It must be 294; Mason, Mich.App. People v. two search warrants involved here. The and State v. September 24, 1974, in 178 N.W.2d first was issued O’Bremski, 425, 423 P.2d Wash.2d burglary with a connection Thus, first warrant was unless this Casper and authorized the Store showing of upon proper defendant and a search of the home of acquired cause, the officer returned, the information This car. warrant Chevrolet belonging to allegedly the articles pursuant about showing nothing had been seized Company could Machinery 26, 1974, September the State thereto. On war- the second utilized to secure the search not be affidavit to secure filed another an invi- otherwise would at rant. To hold question, was directed warrant in m.; improvident approximately il- ber at 1 a. tation to issuance an legal place search warrant after a. burglary base had taken 1:30 following legal search. m. on date. rely upon the We will statements in the supple Although some there was

brief of State as to what the affidavits testimony taken mental time *3 showed, they pos- appear to be the best suppress, are hearing on the motion to we summary by of conceived sible the facts as what the confined to and can consider the They are as follows: State. issuing mag before the record reflects was Smith, possessed “1. the Kenneth who the at the the issuance of istrate time of rifles, the father of Robert Texas, warrant, Aguilar 378 v. State of Smith; and Gerald Smith Ronald 1511, 108, 1509, 12 84 L.Ed.2d U.S. S.Ct. That and Ron- “2. 723, Spinelli Gerald Smith approval in v. Unit cited with Smith, brothers, 587, lived at 939 410, 584, ald both ed 89 S.Ct. Casper, Wyo- in State, South Chestnut Street 3 Md. Frey and v. ming; partic is 38, 237 778. This App. A.2d ularly considering a motion to true when That a “3. Ronald Smith was issued Wyoming the Consti suppress based and at a time traffic citation on date Wyoming The provision of tution. Casper, Wyoming, burglary in when the seizure, covering and search Constitution place; took of store 1, 4, is that different than being Article § of United States Constitution That “4. Robert Gerald Smith Ron- mandatory the search war it that makes fa- ald were then seen at their Smith upon an affidavit. This dif issued rant be morning ranch of the bur- ther’s subject of has heretofore been ference glaiy Penneys.” Peterson, Wyo. in v. comment State attached to were two affidavits There 342, 345, 13 A.L.R. where 185, 194 P. printed conclusory presented with it said: officer, and which ref- affidavit is stronger, Constitution “Our some therein, upon incorporated erence were of ‘oath or instead it uses ‘affidavit’ showing prob- its based State requir- affirmation’; the word ‘affidavit’ to able cause secure such warrant. One form.” to be in written ing the matter was the Dovala which affidavit Officer exclusively dealt with the establishment of court, this difference the recognition In a burglary fact that occurred and had approval P. cited had been certain stolen found People, 51 N.E. Ill. Lippman v. Smith, at the residence of Kenneth father and Illi- noting after at his residence located identical constitutional nois County, Wyoming, being Fremont provisions,1 said: wherein was miles south Lander. This affidavit “ * * * beyond step is the Con- It way no refers this defendant or his to requir- stitution of the United suggests any possible brother or connection cause to ing evidence of defendant with crime. The af- permanent the form record in made fidavit of Officer sets out the re- Johnson * * * affidavit; an lationship his of defendant and bother to Elias, 147 N.E. People v. 316 Ill. Smith; they Kenneth resided in Cas- 474,follows same rule. per; they at the had been seen Ken- necessary to be cause morning Sep- neth ranch on Smith uphold search warrant 7; that had ci- tember there been traffic shown proposition Septem- tation to Ronald Smith on case must be directed at 1870). (adopted 1. Article Illinois Constitution conjunction evi- of the crime or with the were fruits case of Wiggin State, Wyo. 480, 373, 376, area or structure in the 206 P. thereof dence searched, e., i. defendant’s asserts the rule that a search warrant is sought to be invalid if the affidavit prob- must be does There not show residence.2 able committed but cause. Deeter is not employed a crime has been only that blindly crime in the sustain magis- the actions of is evidence that there State, searched, supra. place any trate or Frey v. reviewing court in a place to be position Wolff, may that it clearly in Rice refuse to stated examine is This factual 1280, 1285,reversed on other basis for such issuance. To refuse — or to -, fail to do so could result in serious grounds erosion of one of our most valuable consti- L.Ed.2d 1067: rights, tutional and unless there is factual “ * * * It fundamental constitu- basis for determination of law, course, that a search war- tional *4 this responsibil- court would be evading its showing that may only upon a rant issue ity by failing to declare this to be the case. probable that is cause to believe there approved haveWe heretofore the prem- the sought located on item is the probable test of being cause as a factual re- warrant is ises for which the search * * reasonably situation sufficient to warrant a quested. *.” [Citations] prudent cautious man a or to have belief Kirk, Cir., v. 8 534 And see United States that there a crime being committed or 1262, The case of F.2d 1280. United committed, that one had Rodarte v. been 1051, Lucars, Cir., v. 9 430 F.2d States Riverton, Wyo., 1245, City P.2d 552 of 1055, clearly application the delineates 1253, applied and that standard must be principle, dispositive the ele this which is the in this case for a determination facts case, in this state ment with following they would warrant a reasona whether ment : bly prudent believe and cautious man to follow in all “But of course it cannot property that stolen from cases, simply prob existence of from the part Company was concealed suspect guilty, a able cause believe suspicion not es this residence. Mere does probable there is cause to that also cause, Spinelli v. probable United tablish * n * 3 search his residence. States, supra, 89 S.Ct. 590.4 probable adopted The determination of We heretofore upon cause must factual recognized rule that rest affidavits helpful are in each' “Decided cases which search warrants are based to be case. are rule, and are declaring general “by rigorous much tested less standards they present admissibility persuasive only insofar governing than those evi States, 10 facts,” v. United that similar issuing magistrates dence and are not Garhart nearly limitations,” Cir., 777, Although 779. by niggardly confined 157 F.2d atten State, come to our 68, which have Wyo., all the Deeter v. 500 P.2d cases involve also, State, researching matter Wyo., tion see Croker 477 P.2d v. reliability inform- 122, however, questions Deeter, read 127. must be Judge tected, special dignity Learned remarks “A is 2. home entitled to see Cir., Rabinowitz, sanctity,” State, special Wyo., v. United States Hand in Goddard v. grounds 344, 735, 732, 343, citing approval on other reversed v. 176 F.2d P.2d with Holt 430, State, L.Ed. 653. 70 S.Ct. Wis.2d 117 N.W.2d certiorari denied City dissenting opinion in v. Rodarte 4.The o 1064, rehearing denied 375 U.S. f plainly supra, Riverton, P.2d at suspicion be the cannot mere sets that out probable “persons,” considerable expression and cites cause basis of a clear 3. For authority sepa- “houses,” “papers,” therefor. and “effects” are constitutionally pro- privileged areas rate ants, suggested proximity from them of some if facts secured sence crime, place light in the upon which to rest were sufficient cause, place probable Casper the case of fact that is Ronald’s resi- finding of presumed might If facts Flanagan, dence. these States they anything, might to show show the a factual situation does reflect burglary, posi- in- but helpful. Flanagan case commission of this is most a of a tion of the State cause can showing of commission volved a manner, possi- in this as the in the affida- arise insofar by a defendant named crime part bility con- jewelry, being stolen vit. Some residence, upon de- cealed within the defendant’s property stolen, was found recognize certainly re- does the distinction and the not he was arrested fendant when rule Defendant and the set out States recovered. was not mainder Lucarz, attempted supra; to flee and if are to hold oth- we known felon who was a Additionally, say cause the affidavit erwise we must when arrested. conclusory property is state- arrest involving in that case included to search a residence of it was affiant’s belief cause ment that demonstrably true. jewelry concealed which is remainder residence, attempted which was defendant’s fact the record does Because that this was to be a recitation fortified any probable not establish believe probability.” held “strong The court Penney burglary that the articles from the *5 proper showing did not constitute at this resi- might have been concealed showing was much That cause. upon dence, the basis for the warrant showing be- than the in stronger made herein has been de- which reliance is revealed a direct connection cause it stroyed no and we must find was per- who identified was war- for the issuance of the crime, petrator prop- and the case, and the rant for search erty his residence. Here we own probable cause showing lack of makes relationship, only the father son of both Arti- this search warrant violative fa- proof of the crime directed cle Constitution single fact from ther. There is not the Fourth Amendment to the Consti- could drawn any inference tution of United States. goods the defendant’s these stolen were Although appellant raises five other Flanagan disposal In its residence. reversal, points necessity for we find no case, holding its the court based discussing chance is most them because the remaining jewelry lack they might in the retrial remote arise residence, reciting might his be found at of this matter. dis- merely the inference that it was attorney. the inference is trict Here judgment is reversed. officer, factual ba- with less police relationship of this case the mere sis. In THOMAS, (concurring). Justice to even cre- and son used father cannot set forth in I concur in all system not, suspicion in our ate as we do opinion in this An exami- majority case. law, the father the sins of visit nation of the record discloses these visited the son. The fact that sons for and Seizure which Warrant Search mother, standing ranch the father and descrip- no this case contains any alone, suspicious cir- does not create property officers tion of theoritically search for authorized to cumstance, were improp- unless be considered W.R.Cr.P., 40(c), if Rule and seize found. er families maintain relation- such that information to be included ships. particular requires any Nor can we attach As the United States search warrant. to the inference traffic citation the ab- Appeals Tenth has for the Circuit Court

said: “ ** * required warrants are Search particularly things describe the to be executing war

seized and officers

rant are authorized to seize

property general A search is described. permitted. Texas, Stanford 431; U.S. S.Ct. States,

Marron v. United Seymour L.Ed. cert.

denied, * * *” L.Ed.2d 239. Mesmer v. (10th 405 F.2d 316 Cir.

1969). appellant

While the did not assert this case, subject

defect in this it is to notice

pursuant 49(b), to Rule W.R.Cr.P. Such potential nullify any

defect has the prosecution,

criminal and law enforcement

officers, judges and commissioners should

be alert to notice whether the search war- proper,

rant as well as the affi- supporting

davits, adequately describes

be seized. *6 Appellant WILLIAMS, Lee (Defendant below), Wyoming, Appellee

STATE of (Plaintiff below). 4635.

No.

Supreme Wyoming. Court of

Dec.