Representing Appellant Terry Smith: Christopher S. Leigh of Jackson, Wyoming.
Representing Appellant Dena T. Blomquist: Richard D. Stout of DeFazio Law Office, LLC, Jackson, Wyoming.
Representing Appellees: Gregory A. Phillips, Wyoming Attorney General; Peter K. Michael, Interim Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Jeffrey S. Pope, Assistant Attorney General; Christyne Martens, Assistant Attorney General; D. Terry Rogers and Clark C. Allan, Special Assistant Attorneys General. Argument by Mr. Rogers.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
[¶ 1] On November 6, 2012, this Court issued a Notice of Agreement to Answer Certified Questions in these two unrelated cases. The questions we agreed to answer were stated as follows:
1. Did the Teton County Circuit Court err when it found that the remotely communicated search warrants, which were not based upon affidavit, issued pursuant to W.S. 31-6-102(d), do not violate Wyo. Const. art. 1, § 4?
2. Did the Teton County Circuit Court err when it found that the remotely communicated search warrants do not have to comply with the requirements of W.R.Cr.P. 41?
[¶ 2] We later concluded that, because the wording of the first question is such that it may be construed to be based upon a faulty legal premise, as will be discussed below, and because of clarification of search and seizure law by the United States Supreme Court in the interim, the questions should be re-phrased to better provide guidance to the State's courts. Consequently, we issued an Order Requiring Briefing on Revised
Certified Questions, in which we re-stated the questions as follows:
1. Do the procedures set forth in Wyo. Stat. Ann. § 31-6-102(d) (LexisNexis 2011) comply with the affidavit requirements of Wyo. Const. art. 1, § 4?
2. Must a remotely communicated search warrant issued pursuant to Wyo. Stat. Ann. § 31-6-102(a) comply with the requirements of W.R.Cr.P. 41?
[¶ 3] We reply in the affirmative to both questions.
[¶ 4] In separate incidents in Teton County, Wyoming, the two above-named appellants were arrested for driving while under the influence of alcohol (DWUI). Each appellant's blood-alcohol content was determined via the procedures set forth in Wyo. Stat. Ann. § 31-6-102(d) (LexisNexis 2013). That is, the circuit court judge issued a remotely communicated search warrant after speaking on the telephone with the arresting officer, who was under oath, and directing the officer to affix the judge's signature to the search warrant. The telephone calls were made by the officers to the judge via a recorded telephone line operated by the Teton County Sheriff's Office Dispatch.
[¶ 5] For the limited purpose of answering these questions within the confines of these two cases, we will presume that the officer in each case had probable cause to make the DWUI arrest, that the officer was placed under oath by the judge, that the officer in each case recited to the judge sufficient probable cause for the issuance of a search warrant, and that the recorded conversation can be or has been transcribed. In other words, the limited questions presented are whether the requirements of Wyo. Stat. Ann. § 31-6-102(d) are the equivalent of an affidavit under the state constitution and whether the dictates of W.R.Cr.P. 41(c) must be met.
WYO. CONST. ART. 1, § 4
[¶ 6] Wyoming's state constitutional protections against unreasonable search and seizure are found in Wyo. Const. art. 1, § 4:
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.
[¶ 7] Wyoming's Rules of Criminal Procedure provide the procedural requirements for the issuance of a search warrant at W.R.Cr.P. 41(c):
(c) Issuance and content of warrant. — A warrant shall issue only on affidavit sworn to before a person authorized by law to administer oaths and establishing the grounds for issuing the warrant. If the judicial officer is satisfied that the grounds for the application exist or that there is probable cause to believe that they exist, the judicial officer shall issue a warrant particularly identifying the property or person to be seized and naming or describing the person or place to be searched. Before ruling on a request for a warrant the judicial officer may require the affiant to appear personally and may examine under oath the affiant and any witnesses the affiant may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the affidavit. The warrant shall be directed to any officer authorized to enforce or assist in enforcing the state law. It shall state the grounds or probable cause for its issuance and the ...