KENNETH L. FOSEN, JR., Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).
from the District Court of Campbell County The Honorable John
R. Perry, Judge
Representing Appellant Nicholas H. Carter and Derek A.
Thrall, The Nick Carter Law Firm, PC, Gillette, Wyoming.
Argument by Mr. Thrall.
Representing Appellee Peter K. Michael, Attorney General;
David L. Delicath, Deputy Attorney General; Christyne M.
Martens, Senior Assistant Attorney General; James M. LaRock,
Assistant Attorney General. Argument by Mr. LaRock.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Kenneth Fosen entered a conditional guilty plea to charges of
delivery of a controlled substance and possession of a
controlled substance, reserving his right to appeal the
district court's denial of his motion to suppress
evidence collected pursuant to a search warrant. On appeal,
he contends that the police officer's affidavit used to
obtain the search warrant was deficient, that the circuit
court judge improperly issued the warrant, and that the
search violated his rights under the Fourth Amendment to the
United States Constitution and Article 1, Section 4 of the
Wyoming Constitution. We affirm.
Although Mr. Fosen presents the issues differently, the
dispositive issue before us is whether the affidavit
established probable cause sufficient to justify the issuance
of the search warrant.
On May 3, 2015, Police Officer Roesner went to Pioneer Manor,
a nursing home in Gillette, Wyoming, in response to a report
that Gina Jones, a Pioneer Manor resident, had tested
positive for THC, the active ingredient in marijuana. Ms.
Jones admitted to having eaten a marijuana cookie the day
before, and informed Officer Roesner that her friend
"Ken" delivered the cookie to her. She described
how to find "Ken's" trailer home, and told the
officer "Ken" had a Harley Davidson motorcycle and
"a Cadillac type vehicle."
Officers Roesner and Vogt located a trailer home they
believed was a match to Ms. Jones's description, with a
motorcycle and a black Lincoln car parked outside. The
motorcycle was registered to Kenneth Fosen. A man who exited
the trailer home confirmed that his name was Kenneth. The
officers explained why they were there, and Mr. Fosen replied
that "if there were marijuana cookies they were no
longer around." He denied any involvement, and rejected
a request from the officers to search the premises.
Officer Roesner prepared an affidavit and applied for a
warrant to search Mr. Fosen's residence, motorcycle, and
car. The judge issued the warrant. The ensuing search of Mr.
Fosen's residence yielded marijuana, other suspected
controlled substances, and a long list of drug-related items
and paraphernalia. The search of the motorcycle yielded three
baggies containing marijuana cookies or cookie crumbs. No
evidence was found in the car.
Mr. Fosen was charged with three counts of possession of a
controlled substance, one count of possession of a controlled
substance with intent to deliver, and one count of delivery
of a controlled substance. He initially pled not guilty to
all of the charges. Prior to trial, Mr. Fosen filed a motion
to suppress all of the evidence obtained in the search. He
contended that the affidavit presented in support of the
warrant did not establish probable cause justifying the
search. Following a hearing, the district court denied the
Mr. Fosen subsequently reached a plea agreement with the
State. He agreed to plead guilty to two charges, delivery of
a controlled substance (marijuana) and possession of a
controlled substance (morphine), and the State agreed to
dismiss the remaining charges. The guilty pleas were
conditional, pursuant to W.R.Cr.P. 11(a)(2), and he retained
the right to appeal the denial of his motion to suppress. The
district court accepted the conditional guilty pleas, and
sentenced Mr. Fosen to ...