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Johnson v. State

August 21, 2009

LEVI WILLIAM JOHNSON, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Campbell County The Honorable John R. Perry, Judge.

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

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

[¶1] Appellant, Levi William Johnson, entered a conditional plea of guilty to conspiracy to deliver marijuana, reserving the right to challenge the denial of his motion to suppress. In this appeal, Johnson challenges, as he did below, the legality of the search of his residence under both the Wyoming and United States Constitutions. Finding that the district court‟s suppression ruling is insufficient to permit adequate appellate review, we remand the case to the district court for the limited purpose of supplementing the record with written findings consistent with this opinion.

ISSUES

[¶2] Johnson states the issues as follows:

A. Was law enforcement‟s entry into the Appellant‟s residence a violation of the Appellant‟s Fourth Amendment right to be free of unreasonable search and seizure as guaranteed by the Constitution of the United States?

B. Was law enforcement‟s entry into the Appellant‟s residence a violation of the Appellant‟s right to be free of unreasonable search and seizure as guaranteed by Article 1, § 4 of the Wyoming Constitution?

FACTS

[¶3] On February 21, 2008, Officer Vogt of the Gillette Police Department and members of the Campbell County Fire Department responded to a vehicle fire. The vehicle was located four to five feet in front of a mobile home, which was the residence of Johnson and his girlfriend, Brittany Kuhnel. Because smoke had engulfed the mobile home, firefighters asked Ms. Kuhnel, who had arrived at the scene, for permission to enter the home to conduct a safety check. Although Ms. Kuhnel was reluctant to consent, she eventually unlocked and opened the front door for the firefighters. The ensuing safety check revealed no smoke or damage, but disclosed a flag with a marijuana leaf on the wall and a large sum of money on a coffee table.

[¶4] After learning about the flag and the money, Officer Vogt spoke with Ms. Kuhnel about her hesitancy to allow the firefighters in the home. Ms. Kuhnel indicated there were some items in the home she was not supposed to have. When Officer Vogt inquired about the presence of drugs, specifically marijuana, Ms. Kuhnel refused to answer the officer‟s question, stating, "That would be a confession. I plead the fifth." Officer Vogt then contacted narcotics detective Chad Trebby, who came to the scene.

[¶5] The facts of what transpired thereafter are in conflict. According to the testimony of Officer Vogt, he was briefing Detective Trebby about the incident when they noticed Ms. Kuhnel and Johnson walking toward the door of the mobile home. Officer Vogt testified Detective Trebby intercepted them, explained what he had learned from Officer Vogt, and requested consent to search the residence. Both Ms. Kuhnel and Johnson then asked what would happen if consent was not granted. According to Officer Vogt, Detective Trebby explained he would apply for a search warrant based on the information he had and, if a warrant was granted, the home would be searched. Officer Vogt also testified that Detective Trebby further informed them that if they consented to the search, he and Officer Vogt would conduct the search; whereas if he obtained a search warrant, a canine unit would be brought to the scene, resulting in a more intrusive search. Officer Vogt testified that Ms. Kuhnel and Johnson expressed concerns about their pet dog and the potential damage to their house if a warrant was obtained and ultimately consented to the search.*fn1

[¶6] According to the testimony of Detective Trebby, he intercepted Ms. Kuhnel as she was approaching the door of the mobile home and talked to her about the information he had received from Officer Vogt. During that conversation, Ms. Kuhnel indicated there might be a small amount of marijuana in the mobile home. The detective then asked for permission to go into the residence and retrieve the marijuana. Detective Trebby testified that Ms. Kuhnel "said yes, but she wanted to speak with [Johnson]." They then walked over to where Johnson was standing by the smoldering vehicle. Detective Trebby asked Johnson for permission to enter the mobile home to retrieve the marijuana Ms. Kuhnel had mentioned. Johnson inquired what would happen if he refused consent, to which Detective Trebby responded he would apply for a search warrant and, if one was granted, he would return and search the home. Detective Trebby also explained to Johnson that if he "obtained a search warrant, due to the amount of time it took to obtain a search warrant and manpower that we needed to secure the scene, it would likely occur that... Officer Vogt would be released from the scene and I would request the assistance of my counterparts with the police department and possibly an agent with the DCI to assist and secure and search the residence," and that they would conduct a "thorough and systematic" search of his house. Detective Trebby testified that Johnson then agreed to allow them into the residence to retrieve the marijuana: "he did make a statement that said -- he indicated to me that he would allow us to go inside with him and get [the marijuana], then he began walking towards the front door with us following."

[¶7] Richard Pfeil, a friend of Johnson who was inside the mobile home at the time the officers entered with Johnson and Ms. Kuhnel, offered a different account of the events. Pfeil testified about a conversation he overheard between Detective Trebby and Johnson that occurred in front of the residence, in which the detective asked for permission to enter the house and Johnson inquired about the consequences of his refusal to grant permission. According to Pfeil, Detective Trebby told Johnson that "if he allowed him in the house now, they would just do a visual walk-through; and if he refused... he would go get a search warrant and his team and tear the place apart."

[¶8] Ultimately, Johnson, Ms. Kuhnel, and the officers entered the mobile home. Once inside, Johnson gave Detective Trebby a small baggie of marijuana and some glass pipes. Thereafter, Johnson and Ms. Kuhnel consented to a further search of the home, but withdrew their consent a few minutes later. Based in part on the items found in the home, Detective Trebby sought and obtained a search warrant. When the warrant was executed, officers found, among other things, additional marijuana, drug paraphernalia, and money.

[¶9] The State charged Johnson with possession of marijuana with intent to deliver in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii) (LexisNexis 2009) and conspiracy to deliver marijuana in violation of Wyo. Stat. Ann. §§ 35-7-1031(a)(ii) and 35-7-1042 (LexisNexis 2009). Johnson filed a motion to suppress the marijuana evidence as fruit of an unlawful search under both the Fourth Amendment to the United States Constitution and Article 1, § 4 of the Wyoming Constitution. Johnson argued his consent for the officers‟ initial entry into the home was coerced and involuntary. In particular, he claimed consent was the product of his ignorance and fear about the consequences of resisting -- specifically, the fear of a more intrusive search and damage to the home as a result of numerous officers and a drug dog executing a search warrant. Johnson argued that any evidence obtained as a result of that initial entry, including the evidence recovered during the execution of the search ...


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