Brown v. State , 1987 Wyo. LEXIS 461 ( 1987 )

CARDINE, Justice.

Appellant was convicted of possessing methamphetamine with intent to deliver in violation of §§ 35-7-1031(a)(ii) and 35-7-1016(d)(ii), W.S.1977. Her sentence was suspended, and she was placed on probation for a period of four years. Although appellant raises several issues on appeal, we need only determine whether the trial court erred in refusing to suppress evidence obtained in a search of her residence.

We reverse and remand.

PACTS

The narcotics division of the sheriff’s office of Campbell County suspected appellant “possibly was dealing in narcotics.” They did not arrest appellant, presumably because they lacked sufficient evidence for an arrest. Being good police officers, we would assume that they had a desire to obtain evidence for an arrest. So when appellant was sued for the sum of $50.00 in small claims court, Officer Mader was informed that appellant might be dealing in narcotics and dispatched to her home to serve the small claims court summons and complaint. There was nothing wrong to this point. Ordinarily, a process server would simply hand the complaint and summons to appellant and leave. There is nothing wrong with that.

But here the officer, after knocking on the door, heard footsteps, dogs barking, and a methodical clip like an automatic weapon, all of which he mentally noted to be suspicious activity. Then appellant opened her door, unarmed and wearing pajamas. There was nothing wrong up to this point and surely standard procedure would have been simply to hand her the complaint and summons and leave. But there was something different about this case. The officer asked if anyone else was home. That was totally unrelated to the service of a civil complaint and summons upon a $50.00 claim. Appellant answered yes, her boyfriend was in the house. The officer then entered her home and to his dismay observed an empty knife sheath on the floor. That was enough for the officer who by now was so frightened of the lady in pajamas that he served the complaint and summons and left.

If serving the small claims court summons and complaint was the purpose of this encounter, it had been successful and was over; but if obtaining evidence of appellant’s suspected dealing in narcotics was the purpose, the encounter had been singularly unsuccessful. And so Officer Mader, after leaving appellant’s residence, met with Officers Bagwell and Cannon, who had been in the area ready to provide backup in the service of the small claims court $50.00 complaint and summons. After some discussion, Officers Bagwell and Cannon returned to the sheriff’s office; and shortly thereafter Officer Mader received a call from the sheriff’s office dispatcher that “someone [in the office] had come up with a warrant” for appellant’s arrest and “they wanted it served.” The arrest warrant was for a minor traffic citation that had occurred approximately two years before. For two years there had apparently been no urgency about this warrant. But now it was so imperative that a team of four officers was dispatched to appellant’s home to arrest this lady in pajamas. We must keep in mind the danger confronting the officers in this arrest for it was later suggested that officers had been shot and killed in these kinds of situations. Two officers conducted a surveillance, and Officer Mader requested that Corporal Mur-phey of the sheriff’s office go with him to serve the warrant.

Deputy Sheriffs Hagerman and Lauck had undertaken surveillance of appellant’s residence. Deputy Lauck was a narcotics agent for the sheriff’s office, and he “wanted to look at the situation.” In the course of their surveillance, Deputies Hag-erman and Lauck observed “a large white male adult enter and leave the residence on foot, go to vehicles and back into the house several times.” They also saw “a white female adult go in and out the front door several times, feed a dog, various things.”

When Officer Mader and Corporal Mur-phey arrived at appellant’s residence, Deputies Lauck and Hagerman informed them, by radio, that appellant and a male subject (later identified as appellant’s boyfriend, Arthur Toews) had been seen outside the mobile home. The two officers walked to the front porch, and appellant was waiting at the door. One of the officers told her that they had a warrant for her arrest and asked her where “the man” was. Appellant called Mr. Toews, and he stepped outside. At this point the officers knew that everyone in the trailer was outside on the porch; that appellant, the lady in pajamas, was the person named in the warrant in their possession; that all they needed to do was serve the warrant; and that if they felt it necessary, take her into custody and return to the sheriff’s office. But that course of events would have resulted in no evidence of “possible dealing in narcotics.” So a very fortuitous thing happened. Again appellant turned and walked into her mobile home, and this time Corporal Mur-phey followed her in. What was he to do when this lady in pajamas began to leave? After all, that is where the evidence of narcotics must be anyway. And so Corporal Murphey immediately followed appellant into her home and there saw on the floor the empty knife sheath which he immediately recognized as a dangerous situation. He yelled to Officer Mader, who was on the porch with Mr. Toews, that a weapon was unaccounted for. Corporal Mur-phey then told appellant that he was going to conduct a “protective sweep” of the premises and asked her if she would lead him through the mobile home. Appellant complied, leading Corporal Murphey to the kitchen, bathroom, rear bedroom, front bedroom and back to the living room. Upon returning to the living room, Corporal Murphey spotted a metal tray containing something that looked like marijuana. He walked to the tray, inspected it, and concluded that the substance was indeed marijuana.

After the marijuana was found, appellant was taken to jail, her mobile home was secured, and Corporal Murphey obtained a search warrant, his discovery of marijuana providing the requisite probable cause. A subsequent search pursuant to that warrant uncovered 14.1 grams of methamphetamine and other evidence of narcotics.

After this evidence was discovered, appellant was charged with possession of a controlled substance with intent to deliver. Before trial she moved to suppress the evidence found in her home, contending that the initial entry and “protective sweep” were illegal and therefore the subsequent search was illegal. After a hearing the court denied the motion, finding that the protective sweep was justified by the totality of the circumstances, that the protective sweep was “not of such an intensive nature to be violative of the 4th Amendment,” and that the discovery of the marijuana cigarette fell under the plain-view doctrine.

On appeal, appellant now renews her contention that the protective sweep was an unreasonable search under the Fourth Amendment to the United States Constitution and Art. I, § 4 of the Wyoming Constitution and that the evidence revealed in the subsequent search was inadmissible as fruit of the poisonous tree. In response, the State offers three alternative arguments: (1) the protective sweep was reasonable, (2) the discovery of the marijuana was not a result of the protective sweep but instead was the result of a search incident to arrest after the protective sweep was completed, and (3) when Corporal Murphey accompanied appellant through her home and discovered the marijuana in “plain view,” he was merely exercising his right, pursuant to Washington v. Chrisman, 455 U.S. 1, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982), to monitor the movements of an arrestee and observe evidence in plain view.

EXCEPTIONS TO THE WARRANT REQUIREMENT

Article I, § 4 of the Wyoming Constitution provides:

“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.”

We have held that a home is entitled to special dignity and special sanctity and that the proper way to search a home is to obtain a search warrant. Goddard v. State, Wyo., 481 P.2d 343, 344 (1971). Moreover, searches and seizures made without a warrant or outside the judicial process are per se unreasonable, subject only to a few specifically established and well-delineated exceptions. Kish v. State, Wyo., 642 P.2d 453, 455 (1982). Two exceptions which we have recognized are the search-incident-to-arrest exception and the plain-view doctrine. Ortega v. State, Wyo., 669 P.2d 935, 940-941 (1983). This court has not ruled on the validity and scope of the “protective sweep doctrine” nor have we determined whether the rule pronounced by the United States Supreme Court in Washington v. Chrisman, supra, 102 S.Ct. at 817, which allows a police officer to “monitor the movements of an arrested person, as his judgment dictates, following [an] arrest” and observe evidence in plain view while doing so, is compatible with our state constitution.

In reviewing the district court’s ruling, we are bound by that court’s findings unless they are clearly erroneous. Neilson v. State, Wyo., 599 P.2d 1326, 1330 (1979), cert. denied, 444 U.S. 1079, 100 S.Ct. 1031, 62 L.Ed.2d 763 (1980). The district court found that the protective sweep was justified by the totality of the circumstances. We conclude that this finding was clearly erroneous.

The Tenth Circuit Court of Appeals has defined the protective sweep doctrine in the following terms:

“When officers have arrested a person inside his residence, the exigent circumstances exception permits a protective search of part or all of the residence when the officers reasonably believe that there might be other persons on the premises who could pose some danger to them.” United States v. Riccio, 726 F.2d 638, 641 (10th Cir.1984). (Emphasis added.)

Here appellant was arrested outside her home, and we can find nothing in the record to support a reasonable belief that there might be other persons inside appellant’s home who posed a threat to the officers’ safety. The information gained through the surveillance of appellant’s home supported her assertions that her boyfriend was the only other person on the premises, and he had already stepped outside.

A protective sweep was not warranted under these circumstances. Moreover, we conclude that the court’s ruling is not supportable by a reasonable view of the evidence. To the contrary, the record convinces us that appellant’s arrest, pursuant to an outstanding warrant, was merely a pretext utilized by the sheriff’s office to enable them to search appellant’s home for evidence of narcotics.

Numerous state and federal courts have held that an arrest may not be used as a pretext to search for evidence of an unrelated crime. See Burkoff, The Pretext Search Doctrine: Now You See It, Now You Don’t, 17 U.Mich.J.L.Ref. 523 (1984); 2 W. LaFave, Search and Seizure, § 5.2(e) (2nd ed. 1987). A pretext search occurs when officers depart from routine procedure and engage in arrest and search activity which “would not have been undertaken but for [an] ‘underlying intent or motivation’ which, standing alone, could not supply a lawful basis for the police conduct.” 1 LaFave, supra, § 1.4(e) at 93. (Emphasis in original.) Thus, in State v. Blair, Mo., 691 S.W.2d 259 (1985), the police suspected defendant of homicide. The court stated:

“On January 23, Detective Lauffer requested that defendant be picked up for homicide but did not ask for a homicide arrest or search warrant because he believed there was not enough evidence to support a warrant. The police then learned that she was the subject of an outstanding city warrant for a traffic violation.” Id. at 260.

Defendant was arrested and

“[a]fter the interrogation, the officer requested that her palm print be compared with that taken from the crime scene.

“On February 8,1982, upon learning that defendant’s print matched the print found at the scene of the crime, police sought and received an arrest warrant on the homicide. * * * During an interrogation that began at 6:15 p.m., officers confronted her with evidence of the matching prints and obtained inculpatory statements.” Id. at 260.

The State contended

“that once a legal basis for an arrest exists — in this case the outstanding traffic warrant — the subjective motives of the police become irrelevant * * Id. at 260-261.

The court held the unrelated traffic warrant arrest a pretext to search for evidence and suppressed the evidence stating:

“A well established limitation on the search incident to a valid arrest exception is the rule that an arrest may not be used as a pretext to search for evidence.” Id. at 262.

Given the circumstances surrounding appellant’s arrest and the intensity of the initial search of her home in this case, we cannot escape the conclusion that the underlying intent or motivation for the arrest and search was the officers’ desire to search appellant’s home for evidence of narcotics.

It is nonsense to say that the situation here and this appellant in her pajamas posed any great danger to the officers. It is silly to say that anyone was in danger of being shot. The simple fact is there was no danger at all to anyone. Entering appellant’s home pursuant to a two-year-old traffic citation was a ruse and done for the purpose of gathering evidence to permit charging another crime. To condone this pretext search is to condone conduct which violates the constitutional rights afforded every citizen of this country against unreasonable search and seizure. That others may violate the law is no justification for law enforcement to do so. They are sworn to uphold the law and above all else should recognize and honor the constitution and the rights afforded by it to the citizens of this country. This pretext search was unlawful, and the evidence obtained thereby should have been suppressed.

The dissenters’ conclusion that appellant “disavowed” the pretext arrest theory is unsupported by the record. When discussing the concept below, defense counsel merely took the position that the evidence should be suppressed even if bad faith could not be demonstrated. When the court asked if the critical issue was whether the search was a “ruse,” defense counsel replied:

“We don’t have to have them — I mean, that’s fraud. That’s — that’s illegal. We don’t have to * * * go to that extent to exclude this.” (Emphasis added.)

We do not interpret this as a “disavowal,” and neither did the district court, as is demonstrated by the following exchange between the judge and the prosecutor:

“THE COURT: Well, there are some facts, however, that suggest — and I would say more than just casually — that the Sheriff's Office would — very much wanted to be able to know what was inside that house. The fact that all the backup people were narcotics officers— or that a good number of them were narcotics officers — is certainly suggestive of that.

“MR. COWAN: I would agree, Your Honor, that perhaps they did. But what we have to be concerned here with is whether they did anything that violated the Fourth Amendment in doing that. I would suggest that they did not.

“If you look at the search warrant itself—

“THE COURT: They sure did if the protective search was merely a — or screen or whatever you call it — was merely a reason to get an opportunity to take a good look around the house.”

In light of this discussion at the suppression hearing, it is strange that the dissenters still wonder “how the pretextual arrest proposition became present in this appeal.” In addition to the discussion quoted above, we also note appellant’s brief, which cites Taglavore v. United States, 291 F.2d 262 (9th Cir.1961), for the proposition that traffic-related arrests should not be used to engage in overbroad searches. Taglavore is a leading case on the subject of pretext arrests. And while the dissenters’ familiarity with Hans Christian Andersen is commendable, we suggest a review of the cases cited in the appellate briefs before resorting to fairy tales.

It has been held that “[w]hen the arrest is merely a subterfuge for conducting a search, the search is illegal in spite of the validity of the arrest.” Commonwealth v. Freeman, 222 Pa.Super. 178, 293 A.2d 84, 85 (1972). In the present case, the State did not even establish the validity of the arrest. No arrest warrant appears in the record. If we were to uphold the search conducted in this case on the record before us, we would open the door to the possibility of warrantless general searches of the homes of every citizen ever given a traffic citation. Law enforcement officers may not use the pretext of an arrest on a minor charge as a means to engage in an overbroad search to uncover evidence of an unrelated offense.

The State contends that regardless of the propriety of the protective sweep, the search was permissible under the United States Supreme Court’s decision in Washington v. Chrisman, supra, 102 S.Ct. 812. In Chrisman, the Court held that arresting officers may monitor the movements of an arrestee and, while doing so, observe any evidence in plain view. In this case, the officers did more than “monitor” appellant’s movements. After Corporal Murphey had followed appellant inside, he took the opportunity to prolong and expand the “plain view” search, ultimately searching the entire home. We refuse to apply the plain-view doctrine in these circumstances.

FRUIT OF THE POISONOUS TREE AND THE EXCLUSIONARY RULE

The marijuana discovered by Corporal Murphey during his initial search of appellant’s premises provided probable cause for the search warrant. The subsequent search conducted pursuant to the search warrant resulted in the discovery of the evidence which appellant sought to suppress. In Goddard v. State, supra, 481 P.2d at 345, we held that

“if the initial search is held improper, not only the evidence obtained by such search but everything which becomes accessible to the prosecution by reason of the initial search would be inadmissible as ‘a fruit of the poisonous tree.’ ”

In this case the evidence found pursuant to the search warrant became accessible to the prosecution only as a result of the illegal initial search and, therefore, that evidence constitutes fruit of the poisonous tree.

We conclude that che exclusionary rule must be applied in this case. The reason for condemning “bad faith” or “pretext” searches is explained by one commentator in the following terms:

“[T]he unconstitutionality of ‘bad faith’ searches is compelled by the need to restrict police discretion — a policy that is at the heart of the fourth amendment. In a ‘bad faith’ search, the police officer’s actions may be based solely upon suspicion or whim, or worse. This type of discretion in the hands of the police is one of the abuses that the requirements of the fourth amendment were expressly designed to curtail.” Burkoff, Bad Faith Searches, 57 N.Y.U.L.Rev. 70, 102-103 (1982).

In Fondren v. State, Wyo., 724 P.2d 461, 462 (1986), we held that the purpose of the exclusionary rule is to deter unlawful police conduct. The conduct of the police officers in this case amounted to an attempt to circumvent Art. I, § 4 of the Wyoming Constitution. We find the exclusionary rule to be particularly appropriate here. Reversed and remanded.

THOMAS, J., filed a dissenting opinion in which BROWN, C.J., joins.