Nancy May Hawken v. The State of Wyoming , 2022 WY 77 ( 2022 )

IN THE SUPREME COURT, STATE OF WYOMING
2022 WY 77APRIL TERM, A.D. 2022
June 16, 2022
NANCY MAY HAWKEN,
Appellant
(Defendant),
v. S-21-0194, S-21-0195
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Crook County
The Honorable John R. Perry, Judge
Representing Appellant:
Ronald E. Wirthwein, The Nick Carter Law Firm, Gillette, Wyoming. Argument by
Mr. Wirthwein.
Representing Appellee:
Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General;
Joshua C. Eames, Senior Assistant Attorney General; Donovan Burton, Assistant
Attorney General. Argument by Mr. Burton.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, 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.
FOX, Chief Justice.
[¶1] Nancy Hawken entered a conditional plea of guilty to felony driving under the
influence. On appeal, she claims the district court erred in denying her motion to suppress
evidence obtained after law enforcement entered her home without a warrant or consent.
We reverse and remand.
ISSUES
[¶2] We restate the issues on appeal as follows:
1. Did the district court err when it denied Ms. Hawken’s
motion to suppress the evidence against her based on its
conclusion that her husband consented to entry of her home?
2. Does the unlawful entry of the Hawken home require
suppression of the evidence obtained as a result of that entry?
FACTS
[¶3] On December 15, 2020, Wyoming Highway Patrol Trooper Josh Undeberg received
a report that a vehicle had crashed in a ditch near Sundance, Wyoming, and that the driver
appeared intoxicated. When he arrived at the scene, he opened and checked the vehicle and
found no one in it, but he detected a strong odor of alcohol. He ran the vehicle’s plates and
discovered it belonged to Nancy Hawken, who lived about three miles away.
[¶4] Trooper Undeberg drove to Ms. Hawken’s home, and as he approached, he observed
tire tracks in the fresh snow where it appeared a vehicle had turned out of the driveway and
onto the highway. From this he deduced that Ms. Hawken had received a ride home. He
then parked and encountered a man standing outside the home, who identified himself as
Tyler Hawken, Ms. Hawken’s husband.
[¶5] Trooper Undeberg asked to speak with Ms. Hawken, and Mr. Hawken replied that
she was not home. Trooper Undeberg said he knew she was home because he had talked
to the person who dropped her off, though that was untrue. Mr. Hawken asked what was
going on, and Trooper Undeberg told him about the car. Mr. Hawken said he knew about
the accident and had been about to go look at it. Trooper Undeberg repeated that he wanted
to talk to Ms. Hawken, and Mr. Hawken said he would go get her.
[¶6] Mr. Hawken walked toward the house and entered the home’s mudroom. Mr.
Hawken did not invite the trooper to follow him into the mudroom, and the record contains
no indication Trooper Undeberg requested permission to follow him. Nonetheless, Trooper
1
Undeberg followed, and as he stepped into the house, Mr. Hawken said, “Wait right here.”
Trooper Undeberg testified:
There were a couple statements made as we were going into
the house; he was in the house, I was coming into the house,
and he said, “Wait right here,” and then there was – so I – I
stopped inside of the mudroom and there was one point when
he was going through the other door, he said, “I’ll be right
back.”
[¶7] Trooper Undeberg waited in the mudroom as requested. He heard Mr. Hawken
talking with a woman he assumed was Ms. Hawken, and heard him say, “The sheriffs are
here. You need to go out and talk to them.” When the conversation between the Hawkens
became heated, Trooper Undeberg called Mr. Hawken back to the mudroom to avoid a
possible altercation. Mr. Hawken returned, and Ms. Hawken followed him.
[¶8] Trooper Undeberg told Ms. Hawken to come outside with him to his car so they
could talk about what happened with her vehicle. Ms. Hawken complied, and, because she
had trouble maintaining her balance, Trooper Undeberg helped her walk to his car. After
questioning her, Trooper Undeberg arrested her for driving under the influence. Ms.
Hawken’s breathalyzer test at the detention center indicated a blood alcohol concentration
of .260%.
[¶9] The State charged Ms. Hawken with driving under the influence, driving with a
suspended license, driving without an interlock device, and failure to maintain a single
lane. It also moved to revoke her probation.
[¶10] Ms. Hawken filed a motion to suppress, claiming that Trooper Undeberg unlawfully
entered her home, and that any statements or evidence gained as a result of that unlawful
entry should be suppressed. The district court found that Mr. Hawken voluntarily consented
to Trooper Undeberg’s entry into the home and denied her motion.
[¶11] Ms. Hawken entered a conditional guilty plea to one count of felony driving under
the influence and agreed to admit the allegations against her in the probation revocation
proceeding. The court revoked her probation and reinstated the sentence of thirty to sixty
months for that offense. It sentenced her to a term of five to seven years imprisonment for
the felony driving under the influence count, to be served concurrently with the reinstated
sentence on her probation revocation. Ms. Hawken timely appealed.
STANDARD OF REVIEW
[¶12] Ms. Hawken challenges the district court’s denial of her motion to suppress under
the Fourth Amendment to the United States Constitution.
2
In reviewing a denial of a motion to suppress evidence, we
adopt the district court’s factual findings unless those findings
are clearly erroneous. Rodriguez v. State, 2018 WY 134, ¶ 15,
430 P.3d 766, 770 (Wyo. 2018) (citing Jennings v. State, 2016
WY 69, ¶ 8, 375 P.3d 788, 790 (Wyo. 2016)). We view the
evidence in the light most favorable to the district court’s
decision because the court conducted the hearing and had the
opportunity to “assess the witnesses’ credibility, weigh the
evidence and make the necessary inferences, deductions and
conclusions.” Kunselman v. State, 2008 WY 85, ¶ 9, 188 P.3d
567, 569 (Wyo. 2008) (quoting Hembree v. State, 2006 WY
127 ¶ 7, 143 P.3d 905, 907 (Wyo. 2006)). “On those issues
where the district court has not made specific findings of fact,
this Court will uphold the general ruling of the court below if
supported by any reasonable view of the evidence.” Feeney v.
State, 2009 WY 67, ¶ 9, 208 P.3d 50, 53 (Wyo. 2009) (citing
Neilson v. State, 599 P.2d 1326, 1330 (Wyo. 1979)).
Pryce v. State, 2020 WY 151, ¶ 16, 477 P.3d 90, 94-95 (Wyo. 2020) (quoting Brown v.
State, 2019 WY 42, ¶ 10, 439 P.3d 726, 730 (Wyo. 2019)). However, the underlying
question of whether the search and seizure was constitutional is a question of law, which
we review de novo. Fuller v. State, 2021 WY 36, ¶ 8, 481 P.3d 1131, 1133 (Wyo. 2021)
(quoting Robinson v. State, 2019 WY 125, ¶ 20, 454 P.3d 149, 156 (Wyo. 2019)).
DISCUSSION
I. Trooper Undeberg did not have consent to enter the Hawken house.
[¶13] Ms. Hawken contends the district court erred in denying her motion to suppress
because the record does not support a finding that Mr. Hawken consented to Trooper
Undeberg’s entry into the Hawken home. The parties agree that Mr. Hawken did not
expressly consent to Trooper Undeberg’s entry. The question, in this case of first
impression for this Court, is whether the district court could conclude that he gave implied
consent to Trooper Undeberg’s entry. 1
[¶14] The United States Supreme Court recently reaffirmed the role of the Fourth
Amendment in preserving the sanctity of the home.
1
Ms. Hawken argues that the evidence should have been suppressed under both the Fourth Amendment of
the United States Constitution and Article 1, Section 4 of the Wyoming Constitution, but her plea agreement
reserved only the right to appeal the district court’s Fourth Amendment ruling. We do not consider issues
not reserved in a conditional guilty plea, Ward v. State, 2015 WY 10, ¶ 18, 341 P.3d 408, 412 (Wyo. 2015),
and we therefore address this issue under only a Fourth Amendment framework.
3
The place to start is with our often-stated view of the
constitutional interest at stake: the sanctity of a person’s living
space. “When it comes to the Fourth Amendment, the home is
first among equals.” Florida v. Jardines, 569 U.S. 1, 6, 133
S.Ct. 1409, 185 L.Ed.2d 495 (2013). At the Amendment’s
“very core,” we have said, “stands the right of a man to retreat
into his own home and there be free from unreasonable
government intrusion.” Collins v. Virginia, 584 U. S. ––––, ––
––, 138 S.Ct. 1663, 1670, 201 L.Ed.2d 9 (2018) (internal
quotation marks omitted). Or again: “Freedom” in one’s own
“dwelling is the archetype of the privacy protection secured by
the Fourth Amendment”; conversely, “physical entry of the
home is the chief evil against which it is directed.” Payton v.
New York, 445 U.S. 573, 585, 587, 100 S.Ct. 1371, 63 L.Ed.2d
639 (1980) (internal quotation marks omitted). The
Amendment thus “draws a firm line at the entrance to the
house.” Id., at 590, 100 S.Ct. 1371.
Lange v. California, 594 U.S. ___, ___, 141 S.Ct. 2011, 2018, 210 L.Ed.2d 486 (2021).
[¶15] This Court has also recognized the important role of the Fourth Amendment in
relation to the home. “The Fourth Amendment protects ‘the right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and seizures.’”
Fuller, 2021 WY 36, ¶ 9, 481 P.3d at 1133 (quoting U.S. Const. amend. IV). “Physical
entry of the home is the chief evil against which the wording of the Fourth Amendment is
directed.” Id. (quoting United States v. United States Dist. Court for E. Dist. of Mich., S.
Div., 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972)). Entry into a home,
no matter how limited, constitutes a search. United States v. Jones, 701 F.3d 1300, 1317
(10th Cir. 2012) (citing Payton v. New York, 445 U.S. 573, 582 n.17, 100 S.Ct. 1371, 1377
n.17, 63 L.Ed.2d 639 (1980)).
[¶16] “Warrantless searches and seizures are per se unreasonable unless they are justified
by probable cause and established exceptions.” Fuller, 2021 WY 36, ¶ 9, 481 P.3d at 1134
(quoting Pena v. State, 2004 WY 115, ¶ 29, 98 P.3d 857, 870 (Wyo. 2004)); see also
Mickelson v. State, 906 P.2d 1020, 1024 (Wyo. 1995) (“When the threshold of a home . . .
intervenes, probable cause is insufficient to warrant entry absent the presence of [an
established exception] or the audience of a neutral and detached magistrate.”). A search
conducted pursuant to valid consent is a recognized exception to the warrant requirement.
Johnson v. State, 2010 WY 47, ¶ 7, 228 P.3d 1306, 1310 (Wyo. 2010) (citing Pena, 2004
WY 115, ¶ 29, 98 P.3d at 870); see also United States v. Guillen, 995 F.3d 1095, 1103
(10th Cir. 2021) (“Voluntary consent is a longstanding exception to the general
requirement that law enforcement officers must have a warrant to enter a person’s home.”)
4
(quoting United States v. Warwick, 928 F.3d 939, 943 (10th Cir. 2019)). It requires the
government to prove: “(1) the officers received either express or implied consent and (2)
that consent was freely and voluntarily given.” Guillen, 995 F.3d at 1103 (citing Jones, 701
F.3d at 1317); see also United States v. Guerrero, 472 F.3d 784, 789 (10th Cir. 2007)).
[¶17] Ms. Hawken does not claim Trooper Undeberg coerced Mr. Hawken into consenting
to his entry into the Hawken home, so the second prong of the required consent showing is
not at issue. The question is instead whether Mr. Hawken gave implied consent with his
nonverbal gestures or actions. Implied consent may be found where a reasonable officer
would believe a person consented to entry based on the totality of the circumstances. United
States v. Castellanos, 518 F.3d 965, 969-70 (8th Cir. 2008) (quoting United States v. Jones,
254 F.3d 692, 695 (8th Cir. 2001)); see also O’Boyle v. State, 2005 WY 83, ¶ 60, 117 P.3d
401, 418 (Wyo. 2005) (quoting Grant v. State, 2004 WY 45, ¶ 22, 88 P.3d 1016, 1021
(Wyo. 2004)). The Tenth Circuit has explained:
Implied consent to enter a home is no less valid than explicit
consent. Consent “must be clear but it need not be verbal.
Consent may instead be granted through gestures or other
indications of acquiescence, so long as they are sufficiently
comprehensible to a reasonable officer.”
United States v. Lopez-Carillo, 536 F.App’x 762, 768 (10th Cir. 2013) (quoting Guerrero,
472 F.3d at 789-90) (internal citation omitted).
[¶18] The State bears the burden of proving consent by a preponderance of the evidence.
O’Boyle, 2005 WY 83, ¶ 60, 117 P.3d at 417 (quoting Meadows v. State, 2003 WY 37,
¶ 23, 65 P.3d 33, 40 (Wyo. 2003)). Applying both the Fourth Amendment and our
constitution, we have said:
[A] waiver of constitutional rights under our constitution must
appear by clear and positive testimony, and, if a search or
seizure is based upon the proposition that consent was given,
there should be no question from the evidence that consent was
“really voluntary and with a desire to invite search or further
questioning, and not done merely to avoid resistance.”
Acquiescence and nonresistance have not been deemed
sufficient . . . to establish consent.
Johnson, 2010 WY 47, ¶ 8, 228 P.3d at 1310 (quoting Seymour v. State, 2008 WY 61, ¶ 19,
185 P.3d 671, 677 (Wyo. 2008)); see also United States v. Shrum, 908 F.3d 1219, 1238
(10th Cir. 2018) (“The Government cannot meet its burden ‘by showing no more than
acquiescence to a claim of lawful authority.’”) (quoting Bumper v. North Carolina, 391
U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968)); State v. Daino, 475 P.3d 354,
5
360 (Kan. 2020) (“[T]o demonstrate valid consent, the State must . . . provide clear and
positive testimony that consent was unequivocal, specific, and freely and intelligently
given[.]”) (citing State v. Cleverly, 385 P.3d 512, 522 (Kan. 2016)); State v. Reed, 920
N.W.2d 56, 59 (Wis. 2018) (“Consent to search must be unequivocal and specific[.]”)
(citing Andrews v. Hickman Cnty., 700 F.3d 845, 854 (6th Cir. 2012)); United States v.
Amador-Beltran, 655 F.App’x 666, 668 (10th Cir. 2016) (valid consent requires “clear and
positive testimony that consent was unequivocal and specific and freely given”) (quoting
Guerrero, 472 F.3d at 789).
[¶19] Federal courts have considered various factors in the totality of circumstances to
determine whether there was implied consent. If an officer requests permission to enter a
home, a court is more likely to find consent when factored with a defendant’s nonverbal
conduct, such as a failure to object. See Jones, 701 F.3d at 1321 (implied consent found
where officer indicated desire to search home and defendant walked toward home and
unlocked back door with officers behind him); United States v. Shaibu, 920 F.2d 1423,
1427 (9th Cir. 1990) (no implied consent in defendant’s opening of door and failure to
object to entry where officers did not indicate desire to enter home); United States v. Little,
431 F.App’x 417, 420 (6th Cir. 2011) (where officer did not request permission to enter,
no implied consent could be found even though defendant knew officer and did not object
to entry); Bashir v. Rockdale Cnty., 445 F.3d 1323, 1329 (11th Cir. 2006) (no implied
consent where Bashir did not object to entry and asked questions after entry but officers
did not request permission to enter). 2 As these cases illustrate, the failure to object to, or
mere acquiescence in, an officer’s entry into the home is not in itself clear evidence of
implied consent. Bashir, 445 F.3d at 1329; Shaibu, 920 F.2d at 1427; Little, 431 F.App’x
at 420; see also Johnson, 2010 WY 47, ¶ 8, 228 P.3d at 1310. 3
2
Bashir was a civil suit brought pursuant to 42 U.S.C. § 1983. In addressing the lawfulness of the officers’
conduct, however, the court did not confine its analysis to the question of whether the officers had a
reasonable but mistaken belief that they could lawfully enter the plaintiff’s home. Compare Layland v.
Stevens, 2007 WY 188, ¶¶ 29-30, 171 P.3d 1070, 1076-77 (Wyo. 2007). It instead did the same Fourth
Amendment analysis it would have done had it been presented with a suppression question.
3
The State argues that the Tenth Circuit said otherwise in United States v. Patten, 183 F.3d 1190, 1194
(10th Cir. 1999). We disagree. In Patten, the question was not whether the defendant consented to a search
but the scope of that consent, and whether the defendant could allow the scope to be broadened by remaining
silent. In that context, the court said:
In determining the scope of a defendant’s consent, we ask what a
reasonable person would have understood by the exchange between the
defendant and police officer. A defendant’s silence and acquiescence may
support a finding of voluntary consent. Moreover, a defendant’s “failure
to object when the search exceeds what he later claims was a more limited
consent, is an indication the search was within the scope of consent.”
Id. at 1194; see also Johnson, 2010 WY 47, ¶ 8, 228 P.3d at 1310 (acquiescence not sufficient to establish
consent); Shrum, 908 F.3d at 1238 (“The Government cannot meet its burden ‘by showing no more than
acquiescence to a claim of lawful authority.’”) (quoting Bumper, 391 U.S. at 548-49, 88 S.Ct. 1788).
6
[¶20] Another factor courts consider in determining if a party impliedly consented to an
entry is whether the allegedly consenting party would understand he or she was not free to
enter the home in question without an officer. See Harney v. City of Chicago, 702 F.3d
916, 926 (7th Cir. 2012) (implied consent found where party was told he was under arrest
prior to entering home) 4; Castellanos, 518 F.3d at 970 (implied consent to enter home
found where intoxicated defendant taken there by officers to retrieve identification); United
States v. Coulter, 461 F.App’x 763, 767 (10th Cir. 2012) (implied consent found where
homeowner entered home after officer advised her she could not enter home alone for
safety reasons and she did not object to his entry).
[¶21] Certain gestures by their very nature will provide clear evidence of consent. See
United States v. White, 508 F.App’x 837, 841 (10th Cir. 2013) (implied consent found
where officers asked homeowner where defendant was and homeowner led them into home
and pointed upstairs); United States v. Faler, 832 F.3d 849, 853 (8th Cir. 2016) (implied
consent found where apartment resident opened door wider in response to request to enter
and pointed officers toward defendant).
[¶22] Against this backdrop, we consider the district court’s ruling. The district court
made no specific findings concerning implied consent or the actions it relied on to find that
Mr. Hawken consented to Trooper Undeberg’s entry into the home. The district court did,
however, cite the following facts in its decision letter, and it is these this Court will consider
in determining whether the record supports the district court’s ultimate finding of implied
consent.
Trooper Undeberg testified Mr. Hawken said he would
get his wife and turned and walked toward the house. Trooper
Undeberg followed. Mr. Hawken opened the door to what
appeared to be a mudroom attached to the residence. The
Trooper testified as he stepped into the mudroom, Mr. Hawken
instructed him to “wait right here,” and then said, “I’ll be right
back” as he was going through the door from the mudroom into
the house. Trooper Undeberg remained in the mudroom as
requested.
At the hearing, the Trooper acknowledged Mr. Hawken
did not specifically invite him into the mudroom. When asked
on direct examination if Mr. Hawken had allowed “the door to
slam in his face,” the Trooper responded, “No, he did not.”
4
Like Bashir, Harney was a civil suit, but its posture did not affect the court’s Fourth Amendment analysis.
7
[¶23] Mr. Hawken told Trooper Undeberg he would go get his wife, a statement that a
reasonable person would interpret as a signal to wait for his return. Mr. Hawken did not
invite the trooper to follow or invite him into the home, and Trooper Undeberg did not
request permission to enter the home. Contrary to the State’s assertion, there is no evidence
that Mr. Hawken held the door open for the trooper. The only thing we know from the
record is that he did not let the door slam in the trooper’s face. That leaves other options.
Given the State has the burden to prove consent by “clear and positive testimony,” we are
unwilling to draw the inferences the State argues from the limited testimony that was
presented. Johnson, 2010 WY 47, ¶ 8, 228 P.3d at 1310; see also Reed, 920 N.W.2d at 67
(“Consent to a search should not . . . be lightly inferred.”) (citing United States v. Como,
340 F.2d 891, 893 (2nd Cir. 1965)). 5
[¶24] The facts in this case are like those in Shaibu, where no implied consent was found.
920 F.2d at 1427. In that case, officers were searching for a suspect in a bank fraud scheme,
who they mistakenly believed resided at Mr. Shaibu’s apartment. Id. at 1424. The officers
rang Mr. Shaibu’s apartment buzzer at the apartment complex entrance and were admitted
into the complex. Mr. Shaibu came out of his apartment and walked toward the officers.
The officers identified themselves and asked Mr. Shaibu if the suspect was in the
apartment. Mr. Shaibu walked back into the apartment without replying, leaving the door
open. Officers followed him in without asking permission or indicating they wanted to
come in. Id. They found evidence of bank fraud in the apartment and charged him
accordingly. Id. at 1425.
[¶25] On appeal, Mr. Shaibu argued that the evidence should have been suppressed
because the officers did not have consent to enter the apartment. Shaibu, 920 F.2d at 1425.
The court agreed. Id. at 1427. It relied on two factors in its decision: the officers never
asked permission to enter, and Mr. Shaibu did not act affirmatively. Id. It said:
[Mr. Shaibu] opened the door not to let the police enter, but
only for himself to step out of the apartment to meet visitors
outside rather than inside. There is no contention that the police
expressly or impliedly asked consent to enter nor that Shaibu
expressly granted or refused entry. It is one thing to infer
consent from actions responding to a police request. It is quite
another to sanction the police walking [into] a person’s home
without stopping at the door to ask permission. . . . To infer
consent in this case is only a conjecture and would exceed the
5
We note also that the district court did not draw the inferences the State is arguing from Trooper
Undeberg’s testimony. The court’s findings were limited to a recitation of the facts to which the trooper
testified or the court heard on the audio.
8
scope of any recognized exception to the Fourth Amendment’s
bar to warrantless entry of the home.
Id.
[¶26] The court’s reasoning in Shaibu is persuasive. Like Mr. Shaibu, Mr. Hawken took
no affirmative action to indicate he was inviting Trooper Undeberg into the house. He
simply opened the door and entered. This is not clear evidence of consent. “We do not
expect others to walk [into] our homes, even if the door is open, without first requesting
permission to enter.” Shaibu, 920 F.2d at 1427; see also Bashir, 445 F.3d at 1329(“[C]onsent cannot reasonably be inferred from Bashir’s simple act of disengaging from
conversation with Sergeant Reed and walking into the house[.]”).
[¶27] The facts in this case also distinguish it from Jones, the primary case relied upon by
both the district court and the State. 6 In Jones, officers followed Mr. Jones to his home
from a store that sold products used in growing marijuana. 701 F.3d at 1304-05. Once out
of their vehicles, one of the officers told Mr. Jones he was there for his marijuana and
wanted to clear up what Mr. Jones had. Id. at 1305-06. The officer then indicated he wanted
to search Mr. Jones’s home. Id. at 1306. Mr. Jones turned and began walking toward his
home, and the officers followed. They followed him into a screened porch and waited for
him to unlock the back door. Mr. Jones entered and went through the kitchen and into the
living room, and the officers again followed him. Id. He then turned to the officers with his
palms up as if to say there was nothing to see. Id. at 1307. When one of the officers gave
him a look to suggest he could smell the marijuana, Mr. Jones grabbed a gun, and the
officers retreated. They later obtained a search warrant, and Mr. Jones was charged with
marijuana and firearm offenses. Id.
[¶28] On appeal, Mr. Jones argued the evidence against him should have been suppressed
because the officers entered his home without consent. Jones, 701 F.3d at 1317. The Tenth
Circuit cited the following factors as evidence that Mr. Jones gave implied consent: an
officer indicated they wanted to search Mr. Jones’s house, and Mr. Jones responded to the
request by walking towards the house; he did not ask the officers why they were following
him; he unlocked the back door with officers behind him; he did not try to stop officers,
through words or otherwise, from following him into the house; and he made a gesture
with his palms up once inside the house. Id. at 1320.
[¶29] Unlike in Jones, Trooper Undeberg did not request or indicate a desire to enter the
Hawken home. Because he did not, there was no request for Mr. Hawken to verbally refuse,
6
The State also relies on our analysis of law enforcement’s warrantless entry of a rental property in Layland,
2007 WY 188, ¶¶ 29-30, 171 P.3d at 1076-77. That reliance is misplaced because Layland was an action
brought pursuant to 42 U.S.C. § 1983, and our analysis focused solely on whether an unequivocal rule of
law put the officer on notice that his conduct would clearly be unlawful. Id. We did not evaluate the entry
as we would have in reviewing a suppression ruling.
9
which was a significant factor in Jones. Likewise, because Trooper Undeberg did not
request entry, Mr. Hawken’s act of walking toward his house could not reasonably be
interpreted as consent, as it was in Jones. At most, Mr. Hawken acquiesced in Trooper
Undeberg following him to and into his home, and the Fourth Amendment does not permit
an inference of consent from mere acquiescence. Johnson, 2010 WY 47, ¶ 8, 228 P.3d at
1310; Shrum, 908 F.3d at 1238.
[¶30] We also reject the State’s argument that Mr. Hawken provided consent when he told
Trooper Undeberg, “Wait right here,” as he entered the mudroom. It is difficult to
understand how an officer may reasonably infer he has consent to enter a premises based
on conduct that occurs after the entry. More importantly, the law requires that consent be
obtained before entering a protected area. Mickelson, 906 P.2d at 1022 (“[E]fforts to
establish consent via post hoc colloquy with the owner ran afoul of the proposition that
such action must be ‘justified at its inception . . . .’”) (quoting Terry v. Ohio, 392 U.S. 1,
20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968)); see also Shrum, 908 F.3d at 1232 (“The
initial legality of a [search] turns on the facts and circumstances known to the police at the
time of the [search] rather than on facts and circumstances subsequently discovered.”);
State v. Ellis, 210 P.3d 144, 153 (Mont. 2009) (“[T]o be valid and qualify as an exception
to the warrant requirement, a consent must precede a search.”) (emphasis in original).
Trooper Undeberg needed a warrant or implied or express consent before crossing the
threshold of the Hawken home. He had neither, and therefore nothing that occurred after
his entry is relevant to our inquiry.
[¶31] In Jones, officers had nonverbal conduct from which they could reasonably infer
consent to enter the home. Specifically, an officer indicated the officers wanted to search
his home, and Mr. Jones responded by walking to his home with the officers in tow. Jones,
701 F.3d at 1320. Allowing the officers to follow him through the home and his hand
gestures merely confirmed that Mr. Jones expected and consented to their presence in the
home. Id. We do not agree that a reasonable officer would have interpreted Mr. Hawken’s
order to “wait right here,” given as Trooper Undeberg was crossing the threshold, as
consent to be in the Hawken home—particularly since Mr. Hawken had earlier said he
would go get Ms. Hawken. Under the circumstances, “wait right here” is more reasonably
interpreted as either a rebuke of the trooper’s uninvited presence, or at best, acquiescence.
[¶32] Trooper Undeberg did not have a warrant to enter the Hawken home, and his entry
was therefore presumptively unreasonable. Fuller, 2021 WY 36, ¶ 9, 481 P.3d at 1133. To
overcome the presumption that Trooper Undeberg’s warrantless entry of the Hawken home
was unreasonable, the State had to prove, based on the totality of the circumstances and
with clear evidence, that a reasonable officer would have believed Mr. Hawken consented
to his entry. Castellanos, 518 F.3d at 969-70; O’Boyle, 2005 WY 83, ¶ 60, 117 P.3d at 418.
While we accept the district court’s findings of basic fact, we do not agree with its ultimate
conclusion that the State met its burden. As a matter of law, the facts the State proved, and
the district court found, do not add up to implied consent. See Castellanos, 518 F.3d at 972
10
(noting court was not disturbing findings of credibility or fact but rather the application of
law to those findings).
[¶33] Because the State did not meet its burden, we must conclude that Trooper
Undeberg’s entry into the Hawken home violated the Fourth Amendment. We therefore
turn to the question of whether the exclusionary rule requires suppression of the evidence
against Ms. Hawken.
II. The record is not sufficiently developed for our review of the suppression issue, and
we therefore remand.
[¶34] After Trooper Undeberg unlawfully entered the Hawken home, Ms. Hawken
consented to leaving her home, getting into his patrol car, and talking with him. This led to
her arrest and breathalyzer test, which revealed a blood alcohol content of .260%. At this
stage of our analysis, the question is whether Trooper Undeberg’s unlawful entry of the
Hawken home tainted the evidence his ensuing investigation produced, thus requiring its
suppression. Campbell v. State, 2014 WY 156, ¶ 31, 339 P.3d 258, 265 (Wyo. 2014). 7
[¶35] “Under the exclusionary rule, evidence obtained in violation of an individual’s
Fourth Amendment rights cannot be used against them in a criminal proceeding.” Barney
v. State, 2022 WY 49, ¶ 27, 507 P.3d 459, 464 (Wyo. 2022) (citing United States v.
Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974)). A defendant has
the initial burden of establishing a causal connection between illegal police action and the
evidence he seeks to suppress. Shrum, 908 F.3d at 1233 (citing United States v. Torres-
Castro, 470 F.3d 992, 999 (10th Cir. 2006)). “Specifically, the defendant must establish
the incriminating evidence ‘would not have come to light but for the illegal [search].’” Id.(quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441(1963)). A defendant’s “but for” showing does not end the inquiry. Id. If a defendant makes
the required showing, the burden shifts to the government to prove that an exception to the
exclusionary rule applies. Id.[¶36] There are three exceptions to the exclusionary rule: the independent source doctrine;
the inevitable discovery doctrine; and the attenuation doctrine. Utah v. Strieff, 579 U.S.
232, 238, 136 S.Ct. 2056, 2061, 195 L.Ed.2d 400 (2016). Before the district court, the State
made no reference to either of the first two exceptions and seemed to rely on the attenuation
doctrine, so that is the exception we will look to.
7
The unlawfulness of Trooper Undeberg’s entry of the Hawken home has no effect on the admissibility of
the evidence against Ms. Hawken in the probation revocation proceeding. Panesenko v. State, 706 P.2d
273, 275 (Wyo. 1985) (“The great majority of courts which have ruled on this question have held that
evidence obtained by illegal search and seizure is admissible in a probation revocation hearing even though
it would be inadmissible in a criminal prosecution.”) (quoting Gronski v. State, 700 P.2d 777, 779 (Wyo.
1985)).
11
[¶37] Under the attenuation doctrine, “evidence is admissible when the connection
between unconstitutional police conduct and the evidence is remote or has been interrupted
by some intervening circumstance, so that the interest protected by the constitutional
guarantee that has been violated would not be served by suppression of the evidence
obtained.” Barney, 2022 WY 49, ¶ 28, 507 P.3d at 464 (quoting Strieff, 579 U.S. at 238,
136 S.Ct. at 2061) (internal quotation marks omitted).
The notion of attenuation or “‘dissipation of the taint’ of the
prior illegality attempts to mark the point at which the
detrimental consequences of illegal police action become so
attenuated that the deterrent effect of the exclusionary rule no
longer justifies its cost.”
Shrum, 908 F.3d at 1235 (cleaned up) (quoting Brown v. Illinois, 422 U.S. 590, 609, 95
S.Ct. 2254, 2264, 45 L.Ed.2d 416 (1975) (Powell, J., concurring in part)).
[¶38] We consider three factors in determining whether the attenuation doctrine applies.
The first factor examines the temporal proximity between the
unconstitutional conduct and the discovery of evidence to
determine how closely the discovery of evidence followed the
unconstitutional conduct. The second factor considers the
presence of intervening circumstances. The third factor
examines the purpose and flagrancy of the official misconduct.
Barney, 2022 WY 49, ¶ 29, 507 P.3d at 464 (cleaned up).
[¶39] The district court made no alternative findings as to the applicability of the
attenuation doctrine, and understandably so. The record is scant as to its applicability.
Trooper Undeberg testified that while he was waiting for Mr. Hawken to retrieve Ms.
Hawken, he heard the two of them talking, with Mr. Hawken cussing and yelling at Ms.
Hawken, “The sheriffs are here. You need to go out and talk to them. You need to go
outside and talk to them. They’re here.” He further testified:
When Mr. Hawken and [Ms. Hawken] started to have that
verbal argument, it sounded to me like it was escalating, so I
asked Mr. Hawken through the closed door, I yelled at him to
come back out there to talk to me, because I didn’t want them
to end up in an altercation inside of the house.
[¶40] In response, Mr. Hawken returned to the mudroom, followed by Ms. Hawken. At
that point, Trooper Undeberg addressed Ms. Hawken for the first time. He testified:
12
A. I told her I needed her to come outside with me and
come out to my car so we could discuss what happened with
her car as far as the crash and her car being left in the ditch.
Q. . . . . And when you asked her to come outside with you,
what did she say?
A. I don’t recall. Um, there was some confusion in the
conversation there. Um, when I had asked her to come outside,
there was – I don’t recall any immediate verbal response and
then [Mr. Hawken] interjected himself and – and conversed
about who had given her a ride home and told her she needed
to go outside with me. There was a long back and forth
conversation between her and [Mr. Hawken] at that time.
Q. Did you, in any way, force Ms. Hawken to come outside
with you?
A. No, I did not.
Q. And, um, in fact, did she stop to put some shoes or boots
on before she came outside?
A. Yeah. She did not have shoes on. I believe she put a pair
of muck boots on, if I recall correctly.
Q. . . . And did [Ms. Hawken] walk out to your car on her
own?
A. There was some assistance just to help her maintain her
balance, but, yes, she did walk out on her own.
Q. And then at that point, did you do your investigation
into, um – into the accident?
A. Yes, I did.
Q. And, ultimately, did you arrest the defendant for driving
under the influence?
A. Yes, I did.
13
Q. Was she taken to the detention center and, um, had a test
of her breath?
A. That is correct, yes.
Q. And the results?
A. I believe – without referencing my report, I believe that
she was .26 on the breath test.
[¶41] The record leaves questions as to Ms. Hawken’s required “but for” showing. It
appears that Mr. Hawken brought considerable pressure to bear on Ms. Hawken to get her
to face law enforcement. Would Ms. Hawken have inevitably left the home to talk with
Trooper Undeberg because of her husband’s independent urging? Would Mr. Hawken have
been as adamant if Trooper Undeberg were not in the home? Was it her husband’s pressure
that caused Ms. Hawken to enter the mudroom, or was it Trooper Undeberg’s yelling to
her husband to return to the mudroom? These are factual questions that must be resolved
to determine whether Ms. Hawken has met her burden of showing that but for Trooper
Undeberg’s entry, she would not have consented to his seizure and questioning.
[¶42] As to application of the attenuation doctrine, the only factor we can weigh with
certainty based on the present record is the temporal proximity between the
unconstitutional conduct and the discovery of evidence that supported charges against Ms.
Hawken. To weigh against suppression, the time between the two had to be “substantial.”
Barney, 2022 WY 49, ¶ 30, 507 P.3d at 464 (quoting Strieff, 579 U.S. at 239, 136 S.Ct. at
2062). In Barney, we held a lapse of two hours was not substantial and that the temporal
proximity factor weighed in favor of suppression. Id. Here, the time was minutes. This
factor plainly weighs in favor of suppression.
[¶43] The remaining factors are less certain. When Ms. Hawken entered the mudroom,
she was intoxicated and was immediately met by Trooper Undeberg, who testified that he
used a “somewhat firm tone,” when he told her “I needed to speak with her about her crash,
and I needed her to come out to my car.” Ms. Hawken complied. Whether this consent
constituted an intervening event that weighs against suppression, however, depends on
whether it was truly an act of free will. United States v. Smith, 919 F.3d 1, 11 (1st Cir.
2019) (“The presence of intervening circumstances that provide the defendant an
opportunity to pause and reflect, to decline consent, or to revoke consent help demonstrate
that the illegality was attenuated.”) (quoting United States v. Whisenton, 765 F.3d 938, 942
(8th Cir. 2014)). We explained in Campbell:
When a consensual search follows a Fourth Amendment
violation, the government must prove not only that the
defendant’s consent was voluntary in the sense that his will
14
was not overborne by police coercion, but also that pressures
resulting from the initial constitutional violation had
diminished and were no longer so great as to prevent him from
acting with a degree of free will sufficient to purge his consent
of the taint of that violation.
Campbell, 2014 WY 156, ¶ 31, 339 P.3d at 265 (citing 4 Wayne R. LaFave, Search and
Seizure § 8.2(d) (5th ed. 2014 update)); see also Shrum, 908 F.3d at 1238 (“Well
established precedent teaches us that the question here is not only whether Defendant’s
consent was voluntary but also whether his consent was ‘an act of free will sufficient to
purge the primary taint of the unlawful invasion.’”) (quoting Kaupp v. Texas, 538 U.S. 626,
632, 123 S.Ct. 1843, 1847, 155 L.Ed.2d 814 (2003)).
[¶44] Also relevant to this inquiry is any advisement Ms. Hawken was given, see
Whisenton, 765 F.3d at 942; United States v. Delancy, 502 F.3d 1297, 1311 (11th Cir.
2007), and whether her intoxication prevented her from providing a knowing consent.
United States v. Gay, 774 F.2d 368, 377 (10th Cir. 1985) (“The issue squarely put is
whether Gay was so intoxicated that his consent to search was not the product of a rational
intellect and a free will.”); see also United States v. Sims, 428 F.3d 945, 953 (10th Cir.
2005) (“[T]he most troubling issue is whether, given Sims’s mental condition, his consent
was nonetheless the ‘product of a rational intellect and a free will’ and made with a ‘mental
awareness so that the act of consent was that of one who knew what he was doing.’”).
[¶45] The record does not tell us what, if any, advisements, including Miranda, Trooper
Undeberg gave Ms. Hawken, and when those were given. It also does not provide sufficient
evidence of Ms. Hawken’s level of intoxication to allow a determination of whether she
could knowingly consent to the Trooper’s requests. Thus, whether her consent was an act
of free will, and free from the pressure of Trooper Undeberg’s unlawful entry, is a question
best answered in the first instance by the district court. Campbell, 2014 WY 156, ¶ 34, 339
P.3d at 266; see also United States v. Melendez–Garcia, 28 F.3d 1046, 1055 (10th Cir.
1994) (“The district court is in a better position to reconstruct the circumstances of the
consent.”).
[¶46] The third factor, the purpose and flagrancy of the official misconduct, is likewise a
factor we cannot weigh based on the present record. “Purposeful and flagrant misconduct
is not limited to situations where police act in an outright threatening or coercive manner.”
United States v. Fox, 600 F.3d 1253, 1261 (10th Cir. 2010) (quoting United States v. Reed,
349 F.3d 457, 465 (7th Cir. 2003)) (internal alterations omitted). Instead:
Purposeful and flagrant misconduct is generally found where:
(1) the impropriety of the official’s misconduct was obvious or
the official knew, at the time, that his conduct was likely
unconstitutional but engaged in it nevertheless; and (2) the
15
misconduct was investigatory in design and purpose and
executed in the hope that something might turn up.
Barney, 2022 WY 49, ¶ 38, 507 P.3d at 466 (quoting Fox, 600 F.3d at 1261) (cleaned up).
[¶47] This is an inquiry best left to the district court in the first instance. Our law is well
established that an officer may not enter a home without a warrant or consent. The record
does not reflect whether it was obvious to Trooper Undeberg that he did not have consent
or that he knew he was crossing a line. Additionally, while Trooper Undeberg’s intrusion
was slight and of a short duration, he remained in the mudroom when Ms. Hawken
appeared. Whether his entry and decision to stay in the mudroom after Ms. Hawken
appeared were actions that were investigatory in design and purpose are questions we
likewise cannot answer based on the record before us and are best left to the district court.
CONCLUSION
[¶48] The district court erred in concluding that Trooper Undeberg had implied consent
to enter the Hawken home, and his entry therefore violated the Fourth Amendment. We
reverse and remand for a determination of whether the unlawful intrusion requires
suppression of the evidence against Ms. Hawken. 8
8
In Campbell, we remanded for consideration of the suppression question because the district court did not
reach it after erroneously concluding the search in that case was constitutional and the record had not been
developed sufficiently for this Court to decide the question in the first instance. 2014 WY 156, ¶ 34, 339
P.3d at 266. In doing so, we relied on Tenth Circuit precedent, and it is apparently common practice for
that court to remand cases for that determination. See Shrum, 908 F.3d at 1240 (Eid, J., concurring in part
and dissenting in part) (“It is the general practice of this court to remand for determination of such issues.”).
This case makes us question that practice. The practice leads to multiple hearings, with the remand hearing
potentially occurring years after the events in question, when memories are unlikely to be as fresh, and has
the potential to lead to piecemeal appeals. We thus encourage parties to meet the entirety of their respective
burdens of proof in the initial suppression hearing. See United States v. Achana-Suaso, 568 F.App’x 627,
632 (10th Cir. 2014) (“We do ‘not invite an open season for the government to make the record that it failed
to make in the first instance.’”) (quoting United States v. Forsythe, 437 F.3d 960, 963-64 (10th Cir. 2005)).
16