Kenneth L. Fosen, Jr. v. State , 399 P.3d 613 ( 2017 )

IN THE SUPREME COURT, STATE OF WYOMING
2017 WY 82APRIL TERM, A.D. 2017
July 6, 2017
KENNETH L. FOSEN, JR.,
Appellant
(Defendant),
v. S-16-0239
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Campbell County
The Honorable John R. Perry, Judge
Representing Appellant:
Nicholas H. Carter and Derek A. Thrall, The Nick Carter Law Firm, PC, Gillette,
Wyoming. Argument by Mr. Thrall.
Representing Appellee:
Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General;
Christyne M. Martens, Senior Assistant Attorney General; James M. LaRock,
Assistant Attorney General. Argument by Mr. LaRock.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Chief Justice.
[¶1] Kenneth Fosen entered a conditional guilty plea to charges of delivery of a
controlled substance and possession of a controlled substance, reserving his right to
appeal the district court’s denial of his motion to suppress evidence collected pursuant to
a search warrant. On appeal, he contends that the police officer’s affidavit used to obtain
the search warrant was deficient, that the circuit court judge improperly issued the
warrant, and that the search violated his rights under the Fourth Amendment to the
United States Constitution and Article 1, Section 4 of the Wyoming Constitution. We
affirm.
ISSUE
[¶2] Although Mr. Fosen presents the issues differently, the dispositive issue before us
is whether the affidavit established probable cause sufficient to justify the issuance of the
search warrant.
FACTS
[¶3] On May 3, 2015, Police Officer Roesner went to Pioneer Manor, a nursing home
in Gillette, Wyoming, in response to a report that Gina Jones, a Pioneer Manor resident,
had tested positive for THC, the active ingredient in marijuana. Ms. Jones admitted to
having eaten a marijuana cookie the day before, and informed Officer Roesner that her
friend “Ken” delivered the cookie to her. She described how to find “Ken’s” trailer
home, and told the officer “Ken” had a Harley Davidson motorcycle and “a Cadillac type
vehicle.”
[¶4] Officers Roesner and Vogt located a trailer home they believed was a match to
Ms. Jones’s description, with a motorcycle and a black Lincoln car parked outside. The
motorcycle was registered to Kenneth Fosen. A man who exited the trailer home
confirmed that his name was Kenneth. The officers explained why they were there, and
Mr. Fosen replied that “if there were marijuana cookies they were no longer around.” He
denied any involvement, and rejected a request from the officers to search the premises.
[¶5] Officer Roesner prepared an affidavit and applied for a warrant to search
Mr. Fosen’s residence, motorcycle, and car. The judge issued the warrant. The ensuing
search of Mr. Fosen’s residence yielded marijuana, other suspected controlled substances,
and a long list of drug-related items and paraphernalia. The search of the motorcycle
yielded three baggies containing marijuana cookies or cookie crumbs. No evidence was
found in the car.
[¶6] Mr. Fosen was charged with three counts of possession of a controlled substance,
one count of possession of a controlled substance with intent to deliver, and one count of
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delivery of a controlled substance. He initially pled not guilty to all of the charges. Prior
to trial, Mr. Fosen filed a motion to suppress all of the evidence obtained in the search.
He contended that the affidavit presented in support of the warrant did not establish
probable cause justifying the search. Following a hearing, the district court denied the
motion.
[¶7] Mr. Fosen subsequently reached a plea agreement with the State. He agreed to
plead guilty to two charges, delivery of a controlled substance (marijuana) and possession
of a controlled substance (morphine), and the State agreed to dismiss the remaining
charges. The guilty pleas were conditional, pursuant to W.R.Cr.P. 11(a)(2), and he
retained the right to appeal the denial of his motion to suppress. The district court
accepted the conditional guilty pleas, and sentenced Mr. Fosen to concurrent sentences of
three to six years in prison, suspended in lieu of six years of supervised probation. This
timely appeal followed.
STANDARD OF REVIEW
[¶8] Our standard of review is de novo. Snell v. State, 2014 WY 46, ¶ 10, 322 P.3d 38,
41 (Wyo. 2014); TJS v. State, 2005 WY 68, ¶¶ 9-10, 113 P.3d 1054, 1056-57 (Wyo.
2005).
DISCUSSION
[¶9] Article 1, Section 4 of the Wyoming Constitution provides as follows:
The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures
shall not be violated, and no warrant shall issue but upon
probable cause, supported by affidavit, particularly describing
the place to be searched or the person or thing to be seized.
The Fourth Amendment to the United States Constitution also protects against
unreasonable searches and seizures, stating that “no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.” The Wyoming Constitution requires
an affidavit, while the federal constitution requires only an oath or affirmation and, on
this basis, we have recognized that the protection afforded by our state constitution is
“somewhat stronger than its federal counterpart.” Bouch v. State, 2006 WY 122, ¶ 13,
143 P.3d 643, 648 (Wyo. 2006) (citing Smith v. State, 557 P.2d 130, 132 (Wyo. 1976)).
Because the Wyoming Constitution requires an affidavit, “we have held that sufficient
factual support for issuance of the warrant must be found within the affidavit.” Bouch,
¶ 13, 143 P.3d at 648.
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[¶10] Officer Roesner’s affidavit sought a warrant to search the premises at 602 East
Laramie Street, Lot 10, described as a “white single wide mobile home,” a Harley
Davidson motorcycle with license plate 17-MC-1372, and a black Lincoln Town Car
with license plate 17-PC-53703. As facts supporting issuance of the warrant, Officer
Roesner stated:
On 05032015 at 1835 hours, I responded to Pioneer Manor,
900 W. 8th St, for a report that a client, Gina Jones, had a
positive urinalysis for THC and had admitted to eating
marijuana cookies a friend brought to her. I contacted Gina
along with staff at Pioneer Manor. Gina admitted to having a
marijuana cookie yesterday and stated her friend brought
some to her room earlier in the day on 5/3/15 and she told
him she did not want the marijuana cookies. Gina informed
me the friend’s name was “Ken”. She described his residence
to me. Gina stated there is a white building at 2nd St and
Laramie. If you turn on Laramie it would be the 2nd row of
trailers. The trailer is white. I was informed “Ken” had a
Harley Davidson motorcycle and a Cadillac type vehicle. She
did not know which one he had been driving.
Officer Vogt and I went to the area described and located 17-
MC-1372 parked outside of trailer 10. The registration came
back to Kenneth Fosen. Also there was a black Lincoln car,
registration 17-PC-53703.
While driving by a male subject came outside. I asked if he
was Kenneth and he stated he was not. I asked if Kenneth
was there and at that time another male exited the residence
who acknowledged he was Kenneth. I informed Kenneth of
the reason I was at his residence. Kenneth stated if there were
marijuana cookies they were no longer around. Kenneth then
denied any involvement. Kenneth denied consent to search
his residence.
I informed Kenneth based on the information provided I was
going to apply for a search warrant for his property.
[¶11] Mr. Fosen challenges this affidavit in several respects. He claims that it did not
contain facts sufficient for the circuit court judge to determine that probable cause existed
to justify issuance of the search warrant. He claims that, because the “white building at
2nd St and Laramie” does not exist, the affidavit did not particularly describe the place to
be searched, and Officer Roesner’s statement that he and Officer Vogt “went to the area
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described” was misleading.
[¶12] Search warrants may issue only upon a showing of probable cause, and probable
cause exists when an affidavit contains facts “sufficient to cause a reasonably cautious or
prudent person to believe that a crime was being committed or that one had been
committed.” TJS, ¶ 12, 113 P.3d at 1057. “The judicial officer who is presented with an
application for a search warrant supported by an affidavit applies a ‘totality of
circumstances’ analysis in making an independent judgment whether probable cause
exists for the issuance of the warrant.” Lefferdink v. State, 2011 WY 75, ¶ 14, 250 P.3d
173, 177 (Wyo. 2011) (citing Mueller v. State, 2009 WY 27, ¶ 9, 202 P.3d 404, 406-07
(Wyo. 2009)). The affidavit, within its four corners, “must supply the issuing officer
with sufficient information to make an independent judgment that probable cause exists
for the warrant.” Bouch, ¶ 13, 143 P.3d at 648 (citing TJS, ¶ 12, 113 P.3d at 1057;
Bonsness v. State, 672 P.2d 1291, 1292-93 (Wyo. 1983)). The warrant is properly issued
if the judicial officer makes the “practical, common sense decision” that “there is a fair
probability that contraband or evidence of a crime will be found in a particular place.”
Lefferdink, ¶ 14, 250 P.3d at 177 (quoting Mueller, ¶ 9, 202 P.3d at 407).
[¶13] When we review the sufficiency of a search warrant affidavit on appeal, we also
consider the affidavit in its totality, interpreting it in a realistic and common sense
manner to determine if it presents probable cause supporting the issuance of the warrant.
Snell, ¶ 10, 322 P.3d at 41 (citing TJS, ¶ 10, 113 P.3d at 1057; Rohda v. State, 2006 WY
120, ¶¶ 3-4, 142 P.3d 1155, 1158 (Wyo. 2006)). Because there is a “strong preference
under the law for law enforcement officers to obtain a warrant instead of engaging in a
warrantless search,” we begin with the presumption that the warrant and supporting
affidavit are valid. Schirber v. State, 2006 WY 121, ¶ 5, 142 P.3d 1169, 1172 (Wyo.
2006). We resolve doubtful or marginal cases by sustaining the search. Bouch, ¶ 6, 143
P.3d at 646; TJS, ¶ 10, 113 P.3d at 1057.
Probable cause justifying issuance of a search warrant
involves a twofold finding. First, the factual situation must
be sufficient to warrant a reasonably cautious or prudent
person to believe that a crime was being committed or that
one had been committed. Second, there must be an adequate
showing that the fruits of the crime or the evidence thereof
are in the area or structure sought to be searched. Cordova [v.
State, 2001 WY 96,] ¶ 12, 33 P.3d [142,] 148 [(Wyo. 2001)].
Bouch, ¶ 15, 143 P.3d at 648.
[¶14] As to the first finding, there is no dispute that the affidavit contained sufficient
information allowing the circuit court judge to believe that a crime had been committed.
The affidavit stated that the informant told Officer Roesner she had eaten a marijuana
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cookie provided by “Ken.” She also told the officer that “Ken” had brought more
marijuana cookies to her room on the day of the interview. This admission that she had
possessed and used marijuana was a statement against her penal interest, and “[s]uch
admissions of crime ‘carry their own indicia of credibility – sufficient at least to support a
finding of probable cause to search.’” Bonsness, 672 P.2d at 1293 (quoting United States
v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723 (1971)).
[¶15] As to the second prong, the question is closer. At the hearing on the motion to
suppress, Mr. Fosen established that Second Street and Laramie Street in Gillette,
Wyoming, do not intersect. Thus, the location first mentioned in the affidavit – “a white
building at 2nd St and Laramie” – does not exist. Because this location does not exist,
Mr. Fosen insists that the affidavit does not adequately indicate that evidence or fruits of
the crime could be found in the place to be searched. Further, he insists that the affidavit
does not meet the constitutional mandate of particularly describing his residence as the
place to be searched.
[¶16] We, however, review the affidavit as a whole and consider the totality of the
circumstances. The affidavit also states that the informant said to “turn on Laramie” and
go to a white trailer in the second row of trailers. When Officer Roesner stated that he
and Officer Vogt “went to the area described,” the realistic and common sense
interpretation is that he went to a white trailer in the second row of trailers along Laramie
Street. The informant further indicated that Ken had a “Harley Davidson motorcycle and
a Cadillac type vehicle.” At the area described, Officer Roesner located a motorcycle
that was registered to Mr. Fosen and a black Lincoln. The application sought permission
to search a Harley Davidson motorcycle. The reasonable assumption from the affidavit is
that the motorcycle observed at the location was a Harley Davidson registered to
Mr. Fosen. We also agree with the observation in the district court’s decision letter that a
“reference to a ‘Cadillac-type’ vehicle would, to most people, include a Lincoln.” In
addition, the informant said the supplier of the marijuana cookie was named Ken.
Consistent with that information, a man exited the trailer and told Officer Roesner that
his name was Kenneth. Applying a realistic and common sense interpretation, the
information contained in the affidavit appears to describe with sufficient particularity the
place to be searched.
[¶17] Mr. Fosen contends that while the application for the search warrant lists the
address of his residence, 602 East Laramie Street, Lot 10, the affidavit’s description of
the place to be searched lacks any connection to that address. Again, we find that
Mr. Fosen’s argument focuses on a single detail rather than the totality of the
circumstances. In United States v. Hunter, 86 F.3d 679, 681 (7th Cir. 1996), the court
stated that an affidavit’s failure to state explicitly that a specified address was the
suspect’s residence, “by itself, is not a fatal flaw.” In Hunter, the affidavit referred
several times to the suspect’s residence and made no reference to any other place
connected to the suspect. Although the affidavit did not explicitly state that this was the
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suspect’s residence, that was “the only logical conclusion supported by a common-sense
reading of the affidavit.” Id. at 682. Similarly, while Officer Roesner’s affidavit does
not explicitly assert that the address to be searched is Mr. Fosen’s residence, it mentions
“residence” several times. The white trailer described by the informant was referred to as
“his residence.” The affidavit also mentions that Mr. Fosen “exited the residence” and
that he denied consent to search “his residence.” Officer Roesner informed Mr. Fosen
that he was going to apply for a search warrant for “his property.” No other building is
referred to in the affidavit and the “premises” to be searched was described as a “white
single wide mobile home.” A common sense reading of the affidavit leads to the
inescapable conclusion that the premises identified as “602 E. Laramie lot 10” was the
“residence” mentioned in the affidavit.
[¶18] Mr. Fosen further asserts that the affidavit was inadequate to show that evidence
of the crime could be found in the location sought to be searched. Again, he focuses on
the informant’s reference to the non-existent intersection of Second Street and Laramie
Street. He also claims that the informant’s reference to a “Cadillac type vehicle” was too
vague to provide a connection with Mr. Fosen’s black Lincoln. Similarly, he claims that
the informant’s reference to a Harley Davidson motorcycle is insufficiently connected to
the fact that there was a motorcycle parked outside his residence. In each instance,
Mr. Fosen asserts that the affidavit did not contain enough information to show that
evidence of the crime might be found at his residence, in his car, or on his motorcycle.
[¶19] Mr. Fosen’s individualized analyses of the location, the car, and the motorcycle
are contrary to our “totality of circumstances approach,” by which we “consider all of the
material evidence together, and not in piecemeal fashion.” Rohda, ¶ 11, 142 P.3d at
1164. The informant provided sufficient information to establish that Mr. Fosen had
committed a crime. He brought marijuana cookies to her on May 2nd, and she ate one,
resulting in a positive urinalysis for THC. He also brought marijuana cookies the next
day, May 3rd. Officer Roesner visited Mr. Fosen’s residence and sought the search
warrant on that same day. “Temporal proximity should also be considered. Information
contained in the affidavit concerning the timeframe of the informant’s involvement
assists . . . in determining whether the items to be seized are likely to be present at the
location described in the warrant.” TJS, ¶ 18, 113 P.3d at 1060. See also Cordova, ¶ 21,
33 P.3d at 150 (“[T]he facts and circumstances set forth in an affidavit submitted in
support of the issuance of a search warrant should be current and timely so as to indicate
that the premises, person, place, or thing to be searched presently contains the fruits or
evidence of the crime.”) (citing United States v. Johnson, 461 F.2d 285, 286 (10th Cir.
1972)). The fact that Mr. Fosen had so recently delivered marijuana cookies to the
informant makes it reasonably probable that evidence of those marijuana cookies could
be found on Mr. Fosen’s motorcycle or in his car.
[¶20] Further, the affidavit indicates that Officer Roesner did not rely solely on the
information provided by the informant before seeking the warrant. See TJS, ¶ 21, 113
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P.3d at 1060. He corroborated the details provided by the informant by locating the
white trailer in the second row of trailers on Laramie Street, confirming that a motorcycle
registered to Mr. Fosen and Cadillac type vehicle were parked there, and verifying that it
was the residence of a man named “Kenneth.” The totality of the information set forth in
the affidavit, when considered in a realistic and common sense manner, provided facts
sufficient to support a reasonable belief that a crime had been committed, and to show a
fair probability that the fruits or evidence of the crime could be found in Mr. Fosen’s
residence, on his motorcycle, or in his car. We conclude that the affidavit established
probable cause supporting the issuance of the search warrant.
[¶21] Mr. Fosen’s final contention – that Officer Roesner’s statement that he and Officer
Vogt “went to the area described” was misleading – is in many respects a reiteration of
his assertion that the location first described in the affidavit does not exist. To the extent
this may be viewed as a new issue, Mr. Fosen admits in his brief that it was not raised at
the suppression hearing. “[W]e generally decline to review issues raised for the first time
on appeal.” Kordus v. Montes, 2014 WY 146, ¶ 10, 337 P.3d 1138, 1141 (Wyo. 2014).
There are exceptions to this general rule. Id. Mr. Fosen does not assert that any
exception applies here.
[¶22] Affirmed.
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