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Fosen v. State

Supreme Court of Wyoming

July 6, 2017

KENNETH L. FOSEN, JR., Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal 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.

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          BURKE, Chief Justice.

         [¶1] 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.

         ISSUE

         [¶2] 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.

         FACTS

         [¶3] 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."

         [¶4] 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.

         [¶5] 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.

         [¶6] 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 motion.

         [¶7] 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 ...


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