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Barekman v. State

February 5, 2009

DARIN C. BAREKMAN, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Carbon County, The Honorable Wade E. Waldrip, Judge.

The opinion of the court was delivered by: Kite, Justice.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1] Darin C. Barekman pleaded guilty to one count of possession with intent to deliver a controlled substance, marijuana, while reserving his right to appeal the denial of his motion to suppress evidence seized from his trash. In his motion, and on appeal, he claimed the search of his trash without a warrant violated his right to be free from unreasonable searches, as protected by the United States and Wyoming constitutions. We hold the search did not violate Mr. Barekman's constitutional rights and affirm the denial of his suppression motion.

ISSUE

[¶2] The issue for our determination is whether the search of Mr. Barekman's trash violated his right to be free from unreasonable searches guaranteed by the Fourth Amendment to the United States Constitution or Art. 1, § 4 of the Wyoming Constitution.

FACTS

[¶3] On May 24, 2007, Eric Ford, a Carbon County Sheriff's Deputy assigned to the Wyoming Division of Criminal Investigation as a Special Agent, met with an individual who was in custody in Rawlins awaiting trial on drug charges. The individual informed Special Agent Ford that on approximately 7 to 10 occasions from June of 2006 to February of 2007, he had purchased marijuana in one ounce to one-quarter pound quantities from Mr. Barekman at his residence in Rawlins. The informant stated that Mr. Barekman had possessed up to 10 pounds of marijuana at a time and sold it to numerous people, sometimes making sales every 15 minutes. He said that Mr. Barekman worked for Shepard Construction during the day and sold marijuana in the evenings. According to the informant, Mr. Barekman drove his Shepard Construction work truck to Colorado about twice per month, usually on Friday, to pick up the marijuana and bring it back to his residence. He informed Special Agent Ford that Mr. Barekman kept the marijuana in a clear Tupperware container behind a couch in his living room and had a blue glass pipe that he used to smoke the marijuana.

[¶4] The same day, after the interview with the informant, Special Agents Ford and Nicholas Bisceglia went to Mr. Barekman's address, located some trash cans in front of the residence and removed a trash bag. Inside, they found mail addressed to Mr. Barekman, a paper plate with what appeared to be marijuana cigarette butts on it, and packing material with what appeared to be marijuana residue and pieces inside. Special Agent Ford recognized the packing material as consistent with the type used for concealing and transporting marijuana. The agents performed field tests on the materials, the results of which were presumptively positive for marijuana.

[¶5] Later, the agents conducted surveillance at Mr. Barekman's residence. They observed a pickup truck matching the description provided by the informant pull into the driveway. They also observed an individual whom they identified by photo verification as Mr. Barekman get out of the pickup truck and enter the residence.

[¶6] On the basis of the information received from the informant and the evidence found in the trash can, Special Agent Ford obtained a warrant to search Mr. Barekman's residence. He executed the warrant on June 4, 2007, and found three to four ounces of marijuana, misdemeanor amounts of LSD, psilocybin mushrooms and cocaine, as well as packaging materials, scales and other drug paraphernalia.

[¶7] The State charged Mr. Barekman with two felony counts, possession of marijuana with intent to deliver and possession of marijuana, and three misdemeanor counts for possession of cocaine, psilocybin mushrooms and LSD. Prior to trial, Mr. Barekman filed a motion to suppress the evidence seized from the trash can outside his residence. The district court held a hearing on the motion and, after taking the matter under advisement, issued a decision letter and order denying the motion. Mr. Barekman and the State subsequently reached a plea agreement in which Mr. Barekman agreed to enter a conditional plea of guilty to one count of possession with intent to deliver marijuana and the State agreed to dismiss the remaining counts and recommend a sentence of three to five years in prison. After a sentencing hearing, the district court entered judgment against Mr. Barekman and sentenced him in accordance with the plea agreement with credit for 333 days served.

STANDARD OF REVIEW

[¶8] Our review of alleged error in the denial of a motion to suppress is governed by the following standards:

Rulings on the admissibility of evidence are within the sound discretion of the trial court. We will not disturb such rulings absent a clear abuse of discretion. An abuse of discretion occurs when it is shown the trial court reasonably could not have concluded as it did. Factual findings made by a trial court considering a motion to suppress will not be disturbed unless the findings are clearly erroneous. Because the trial court has the opportunity to hear the evidence, assess witness credibility, and draw the necessary inferences, deductions, and conclusions, we view the evidence in the light most favorable to the trial ...


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