Appeal from the District Court of Fremont County, The Honorable Norman E. Young, Judge.
The opinion of the court was delivered by: Burke, Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] In this consolidated appeal, Jason Miller challenges his convictions on several counts of illegal possession of controlled substances. He contends the district court erred in its denial of his motion to suppress evidence in each case. He also claims a violation of his right to a speedy trial in both cases. We find no error and affirm.
[¶2] Mr. Miller presents three issues:
1. Was the court's denial of Mr. Miller's motion to suppress in docket no. 6171 correct in light of the Fourth Amendment to the United States Constitution and Art. 1, § 4 of the Wyoming Constitution?
2. Was the court's denial of Mr. Miller's motion to suppress in docket no. 6192 correct in light of the Fourth Amendment to the United States Constitution and Art. 1, § 4 of the Wyoming Constitution?
3. Was there a violation of Mr. Miller's speedy trial rights pursuant to both the United States Constitution and the Wyoming Constitution and law?
[¶3] On October 18, 2006, Fremont County Sheriff's deputies and Wyoming Division of Criminal Investigation (DCI) agents executed a search warrant at the home of Randy Lowrey. Officers discovered marijuana and methamphetamine during the search. Mr. Lowrey identified Mr. Miller as one of his sources for the drugs. He told officers that he had purchased methamphetamine from Mr. Miller the night before and that he had also purchased marijuana from him. He also informed officers that he recently observed a large amount of controlled substances at Mr. Miller's home and provided details regarding where, in the residence, the drugs could be found. During the interview, Mr. Lowrey received two telephone calls from Mr. Miller. Mr. Lowrey did not answer the calls, but he recognized the incoming phone number and advised officers that Mr. Miller was the caller. He told officers that Mr. Miller lived nearby.
[¶4] Law enforcement officers immediately went to Mr. Miller's home. They found Mr. Miller in his vehicle in front of his residence. Officers asked him to exit the vehicle and he complied. The officers then handcuffed him and placed him in a patrol car. At that point, three officers performed a ―sweep‖ of Mr. Miller's home to determine if anyone else was inside the residence. After discovering no one in the home, officers exited the residence and waited outside while one of the DCI agents left to obtain a search warrant. According to the officers, the ―sweep‖ was completed in approximately two minutes. Following the sweep, Mr. Miller's handcuffs were removed and he was released from the patrol car. Law enforcement officers questioned Mr. Miller further before allowing him to leave. In total, Mr. Miller was detained for approximately forty-five minutes.
[¶5] In the meantime, officers maintained a perimeter around the home and waited for a search warrant. The DCI agent was able to obtain a search warrant for Mr. Miller's home and vehicle. Upon execution, officers discovered 7 ounces of marijuana, 3.4 grams of methamphetamine, and assorted drug paraphernalia in Mr. Miller's vehicle. In the home, officers found 34 ounces of packaged marijuana, an undetermined amount of loose marijuana, psilocybin mushrooms, and additional drug paraphernalia. Mr. Miller was charged with three criminal counts: felony possession of marijuana with intent to deliver in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii), misdemeanor possession of psilocybin in violation of Wyo. Stat. Ann. § 35-7-1031(c)(i)(A), and misdemeanor possession of methamphetamine in violation of Wyo. Stat. Ann. § 35-7-1031(c)(i)(C).*fn1 This case was docketed in the district court as criminal case no. 6171. Mr. Miller was released on bond.
[¶6] After his release, a Fremont County Sheriff's Deputy received an anonymous tip that Mr. Miller and his fiancée*fn2 had driven to Phoenix, Arizona and purchased controlled substances. A few days later, the deputy saw Mr. Miller and stopped to talk with him. Relying upon one of the conditions of Mr. Miller's bond, the deputy requested that Mr. Miller submit to a urinalysis test. Mr. Miller consented to the test. He tested positive for marijuana and cocaine. During this encounter, Mr. Miller admitted he had traveled to Arizona to visit his father but denied purchasing drugs.
[¶7] The deputy then sought out Mr. Miller's fiancée. After receiving information that she was seen going to her mother's house, he attempted to contact her there. When he arrived at the residence, the deputy observed a vehicle in the driveway matching the informant's description of the car driven to Arizona. The deputy spoke with the fiancée's mother who told him her daughter had left the car and its keys at the house while she and her father traveled to Cheyenne for a medical appointment. In response to an inquiry from the deputy, mother advised that the vehicle was registered in her name and consented to a search of the vehicle. Before searching the vehicle, the deputy asked that a ―drug detection canine‖ be dispatched. Upon arrival, the dog alerted to the vehicle. The deputy then searched the vehicle and found drug paraphernalia and more than 20 ounces of marijuana. Mr. Miller was not present during the search. He was subsequently arrested and charged with conspiracy to distribute marijuana in violation of Wyo. Stat. Ann. §§ 35-7-1031(a)(ii) and 35-7-1042, and possession of marijuana with intent to deliver in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii).*fn3 This case was docketed in the district court as criminal case no. 6192.
[¶8] During the course of the legal proceedings, Mr. Miller had six attorneys. Some of these attorneys withdrew at Mr. Miller's request. As a result of the numerous changes in Mr. Miller's representation, as well as other factors, including a court-ordered psychiatric evaluation, both proceedings were delayed considerably. Mr. Miller filed a written waiver of his right to speedy trial on two occasions.
[¶9] Mr. Miller moved to suppress evidence derived from the searches in both cases. In each case, the court denied the motion. A jury found Mr. Miller guilty of all three counts charged in docket no. 6171. He appealed that conviction. In docket no. 6192, Mr. Miller entered a conditional plea of nolo contendere, reserving the right to appeal the denial of his motion to suppress. He subsequently filed an appeal in that case. We consolidated the appeals.
[¶10] This Court reviews a district court's ruling on a motion to suppress evidence de novo, giving deference to the trial court's findings of fact, unless they are clearly erroneous. Gompf v. State, 2005 WY 112, ¶ 14, 120 P.3d 980, 984-85 (Wyo. 2005). When a claim is raised for the first time on appeal, the appellant has the burden of establishing plain error. Strange v. State, 2008 WY 132, ¶ 4, 195 P.3d 1041, 1043 (Wyo. 2008). To establish plain error, Mr. Miller must show: (1) the record is clear about the incident alleged as error; (2) there was a transgression of a clear and unequivocal rule of law; and (3) he was denied a substantial right which materially prejudiced him. Duke v. State, 2009 WY 74, ¶ 22, 209 P.3d 563, 571 (Wyo. 2009).
[¶11] Mr. Miller contends the sweep of his home violated his Fourth Amendment right to be free from unreasonable searches because officers entered his home without a search warrant.*fn4 There are ―well-delineated exceptions to the warrant requirement.‖ Vassar v. State, 2004 WY 125, ¶ 19, 99 P.3d 987, 995 (Wyo. 2004). Among them is the exception for exigent circumstances. Pena v. State, 2004 WY 115, ¶ 29, 98 P.3d 857, 870 (Wyo. 2004). In order for the exception to apply, the government must establish that the officers had probable cause supporting the search and that exigent circumstances made it impracticable to obtain a warrant before conducting the search. Id. Among the exigent circumstances justifying a warrantless search is a need ―to prevent the imminent destruction of evidence.‖ Id.; Jones v. State, 902 P.2d 686, 691 (Wyo. 1995).
[¶12] We applied the exigent circumstances exception to a warrantless entry in Rideout v. State, 2005 WY 141, 122 P.3d 201 (Wyo. 2005). In Rideout, officers went to the defendants' residence to investigate drug-related activities. As they exited their vehicles, they smelled burning marijuana coming from the residence, and the officers realized ―their presence was known to the occupants.‖ Id., ¶¶ 5, 24, 122 P.3d at 203, 208. At that point, officers decided to enter the house and secure it to prevent the destruction of evidence before seeking a search warrant. Id., ¶ 7, 122 P.3d at 203. We affirmed the denial of the motion to suppress and found no Fourth Amendment violation because: (1) officers possessed probable cause that a crime was being committed within the residence; (2) exigent circumstances justified the warrantless entry to secure the residence and prevent destruction of any evidence; and (3) the officers refrained from searching the home until they had authorization-either in the form of consent or a search warrant. Id., ¶ 25, 122 P.3d at 208. The district court found similar justification in this case.
[¶13] The district court determined that Mr. Lowrey was a reliable and credible witness and that the information he provided was sufficient to establish probable cause. When an officer receives information from an informant, it must be evaluated under the totality of the circumstances. Holzheuser v. State, 2007 WY 160, ¶¶ 8, 10, 169 P.3d 68, 74-76 (Wyo. 2007). This Court has held that certain factors are relevant in ...