Original Proceeding Petition for Writ of Review District Court of Campbell County. The Honorable John R. Perry, Judge.
For Petitioner: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; and Nathan Henkes, Special Assistant Attorney General. Argument by Mr. Henkes.
For Respondent: Office of the State Public Defender: Diane Lozano, State Public Defender; and Tina N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
[¶1] Dustin Deen was arrested and charged with delivery of and possession with intent to deliver a controlled substance. He filed a motion to suppress the evidence seized during a search of his home, claiming the search was invalid because the warrant was served after 10 p.m. in violation of W.R.Cr.P. 41(c). The district court agreed and granted the motion. The State filed a petition for writ of review or certiorari in this Court, claiming the district court erred in granting the motion to suppress without first determining whether the violation of Rule 41 constituted prejudicial error. We granted the petition. We conclude that the district court erred in granting the suppression order.
[¶2] The issue for our determination is:
Whether the district court properly suppressed evidence seized pursuant to a search warrant served after 10 p.m. in violation of Rule 41(c) as the product of an unreasonable search under the Fourth Amendment.
[¶3] During a traffic stop at approximately 4:15 on the afternoon of July 19, 2013, a Campbell County Sheriff's deputy searched the vehicle and found 44.7 grams of marijuana. In an interview later that day after his arrest, the driver told investigator Troy Hipsag that he had purchased the marijuana from an individual known to him as Dustin at a house on Peaceful Valley Drive. He said he had purchased marijuana from Dustin thirty to forty times since February, 2013.
[¶4] Investigator Hipsag went to Peaceful Valley Drive and located the house described to him in the interview. He called the county attorney and at approximately 7:05 p.m. met with him to prepare an affidavit and search warrant. When he left the county attorney's office with the documents at approximately 8:35 p.m., Investigator Hipsag tried unsuccessfully to reach the on-call judge and a magistrate. He finally reached a circuit court judge and was able to meet with her at approximately 9:20 p.m. She reviewed the affidavit and signed the warrant. Investigator Hipsag then went to the sheriff's office to organize a team to execute the warrant. They left the sheriff's office at approximately 10:02. On route to execute the search warrant, the officers' access to Peaceful Valley Drive was blocked by a passing train. They arrived at the house identified in the search warrant at 10:18 p.m. They searched the home and found marijuana, drug paraphernalia, and cash in small bills in Mr. Deen's bedroom.
[¶5] Mr. Deen was arrested and charged with felony counts of delivery of a controlled substance and possession of a controlled substance with intent to deliver in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii). Prior to trial, Mr. Deen filed a motion to suppress the evidence seized in the search. He argued that the search was unlawful and in violation of his constitutional rights because the search warrant was served after 10 p.m. contrary to the plain language of the warrant allowing the search between the hours of 6 a.m. and 10 p.m. The State responded that the violation was procedural in nature, did not involve a violation of a fundamental right and should be treated as harmless error. After a hearing, the district court held that the search was executed outside the time ...