Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mathewson v. State

Supreme Court of Wyoming

March 27, 2019

PAUL D. MATHEWSON, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Hot Springs County The Honorable John G. Fenn, Judge.

          Representing Appellant: Thomas A. Fleener, Defender Aid Program, University of Wyoming College of Law; and Crystal Stewart, Student Intern. Argument by Mr. Fleener.

          Representing Appellee: Peter K. Michael, Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; John A. Brodie, Assistant Attorney General; Benjamin E. Fischer, Assistant Attorney General. Argument by Mr. Fischer.

          Before DAVIS, C.J., and BURKE [*] , FOX, KAUTZ and BOOMGAARDEN, JJ.

          BOOMGAARDEN, Justice.

         [¶1] Paul D. Mathewson appeals his drug-related criminal convictions contending the district court erred by denying his motion to suppress evidence and his motion to dismiss for lack of a speedy trial. Mr. Mathewson also challenges his conviction for felony possession of a controlled substance, claiming the liquid contained in his water pipe (bong water), which tested positive for methamphetamine, does not constitute "a controlled substance in a liquid form" as contemplated by Wyo. Stat. Ann. § 35-7-1031 (LexisNexis 2017). Finding no error, we affirm.

         ISSUES

         [¶2] Mr. Mathewson presents three issues, which we reorder and rephrase as follows:

1. Did the district court err when it denied Mr. Mathewson's motion to suppress evidence, which challenged the validity of the search warrant?
2. Was Mr. Mathewson denied his right to a speedy trial?
3. Does sufficient evidence support Mr. Mathewson's conviction of felony possession of methamphetamine in a liquid form as contemplated by Wyo. Stat. Ann. § 35-7-1031?

         FACTS

         [¶3] Law enforcement executed a no-knock search warrant on Mr. Mathewson's Thermopolis home on May 1, 2015. The officers suspected Mr. Mathewson of trafficking methamphetamine in Hot Springs County, Wyoming. Officers seized drugs and drug paraphernalia, including prescription pills, small quantities of marijuana and methamphetamine, syringes, and a water pipe filled with a colored liquid, which tested presumptive positive for methamphetamine. Officers arrested Mr. Mathewson on May 3, 2015. The State initially charged four counts: felony possession of methamphetamine, in violation of Wyo. Stat. Ann. § 35-7-1031(c)(ii); misdemeanor possession of methamphetamine, in violation of Wyo. Stat. Ann. § 35-7-1031(c)(i)(C); misdemeanor possession of methadone, in violation of Wyo. Stat. Ann. § 35-7-1031(c)(i)(D); and misdemeanor possession of marijuana, in violation of Wyo. Stat. Ann. § 35-7-1031(c)(i)(A).

         [¶4] From the beginning, the court proceedings were often continued and rescheduled, due in large part to Mr. Mathewson's dissatisfaction with multiple, court-appointed counsel. Mr. Mathewson refused his first court-appointed attorney, the local public defender, and was reassigned an attorney from Park County. The circuit court attempted to timely hold the preliminary hearing, but Mr. Mathewson's attorney did not appear. The circuit court refused to go forward without Mr. Mathewson's attorney, and rescheduled the preliminary hearing after setting Mr. Mathewson's bail. He posted bond the next day. The State amended the information to include an additional count of felony delivery of methamphetamine, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i). Mr. Mathewson executed a waiver of speedy preliminary hearing and requested a further continuance of the preliminary hearing. The circuit court eventually held the preliminary hearing in June, after which it bound over the two felony charges to district court, while the misdemeanor charges remained in circuit court.

         [¶5] The district court initially set Mr. Mathewson's arraignment for August 2015, but his attorney did not appear due to a scheduling conflict. The district court reset the matter and arraigned Mr. Mathewson on September 14, 2015. He pled not guilty and the district court scheduled a jury trial commencing February 1, 2016. The following month, Mr. Mathewson requested and received a new public defender.

         [¶6] At the pretrial conference in January 2016, the district court informed the parties it vacated the trial date to accommodate another criminal matter. During the conference, the court acknowledged Mr. Mathewson's pro se motion to dismiss, filed the same day, alleging problems with his prior counsel, violations of his speedy preliminary hearing and speedy trial rights, and malicious prosecution.[1] In light of Mr. Mathewson's motion and his continued dissatisfaction with his appointed counsel, the district court left the pretrial conference open until it could be rescheduled along with a new trial date.[2]

         [¶7] On the State's request, the district court reset trial for the end of February. Mr. Mathewson's counsel moved to continue this setting to permit more time to file pretrial motions, subpoena witnesses, and designate exhibits. He also moved to consolidate all of Mr. Mathewson's pending felony and misdemeanor charges and filed speedy trial waivers in the district and circuit court cases.[3] The district court granted both motions and reset the jury trial for the end of May.

         [¶8] The new trial date created a conflict for Mr. Mathewson's counsel, resulting in another request to continue the trial. The district court heard arguments on the motion in April 2016 and asked Mr. Mathewson directly whether he opposed the motion. Mr. Mathewson favored the motion and the court reset the trial for October 2016.

         [¶9] A few months ahead of the October trial date, Mr. Mathewson's counsel filed a motion for substitution of counsel citing conflicts of interest and professional considerations. The district court held a hearing in August 2016 and granted the motion after receiving substitute counsel's assurances he could proceed to trial as scheduled. On August 4, 2016, Mr. Mathewson filed a demand for speedy trial and another pro se motion to dismiss, alleging ineffective assistance of counsel, speedy trial and discovery violations, and expressing his overall disagreement with the charges pursued by the State.

         [¶10] Mr. Mathewson's counsel moved to suppress evidence a few weeks before trial, contending the search warrant was based on unreliable and uncorroborated information from confidential informants, and a neutral and detached magistrate did not issue it. His counsel also filed a pretrial memorandum and raised concerns about the timing for resolution of outstanding motions in advance of trial. Mr. Mathewson's counsel acknowledged the court's concern with another continuance in light of the speedy trial demand, but stated Mr. Mathewson recognized "that any and all continuances related to obtaining new counsel and filing of motions to suppress . . . would not count toward his speedy trial date, and would waive any argument, now or in the future, that these continuances should be counted when calculating the speedy trial date." Mr. Mathewson disagreed with his attorney's statement regarding his calculation of the speedy trial deadline and filed a pro se "Supplement/Amendment of Pretrial Memorandum" stating his objection.

         [¶11] Notwithstanding Mr. Mathewson's pro se speedy trial demand and the imminent trial date, Mr. Mathewson's counsel requested assignment of a new judge after discovering a potential conflict during trial preparation. The district court granted the motion, vacated all deadlines, including the trial date, and reassigned the case. After reassignment, the district court set a hearing in November 2016 to resolve all pending motions and reserved stacked trial dates in January and February in an effort to comply with the speedy trial demand.

         [¶12] Near the end of November, Mr. Mathewson filed another pro se motion to dismiss, again asserting a speedy trial violation and claiming discovery violations. The same day, the court conducted a motions hearing, including the motion to suppress, the pro se motion to dismiss for a speedy trial violation, and other motions Mr. Mathewson filed pro se. After hearing the parties' arguments and receiving evidence pertaining to the suppression motion, the district court took all motions under advisement. A week later, the district court reset Mr. Mathewson's jury trial for January 23, 2017, sua sponte, due to an opening for a first stacked setting on its docket.

         [¶13] In its written order, the district court denied Mr. Mathewson's motion to suppress, finding sufficient reliability and veracity to support the information provided by three of the confidential informants and further finding Mr. Mathewson failed to provide any evidence substantiating his claim that the issuing judge was biased and not impartial. The district court also struck Mr. Mathewson's pro se filings, sua sponte, including the motion to dismiss on speedy trial grounds and the "Supplement/Amendment of Pretrial Memorandum."[4] As a result, Mr. Mathewson's counsel filed a motion to dismiss for lack of a speedy trial and moved to sever the trespassing and driving with a suspended license charges because they were unrelated to the pending drug charges. The district court denied both motions after a hearing, finding the delays in the case were attributable to the defense, Mr. Mathewson was not "substantially prejudiced" in getting his case tried, and the cases were previously consolidated at Mr. Mathewson's request.

         [¶14] A week before trial, Mr. Mathewson filed a pro se motion for new counsel claiming his current attorney refused to make legal decisions insisted by Mr. Mathewson. As the jury gathered on the morning of trial, Mr. Mathewson informed the court he desired to retain private counsel, but had not yet done so. The district court denied the motion as untimely and proceeded with the trial as scheduled.

         [¶15] At the close of the State's case, Mr. Mathewson's counsel moved for judgment of acquittal challenging the sufficiency of the evidence on all eight counts. The district court denied the motion, finding that although there may be issues of weight and credibility, the State presented sufficient evidence to submit the matter to the jury. After the court's ruling, Mr. Mathewson's counsel informed the court of the defense's decision not to call any witnesses. The jury ultimately found Mr. Mathewson guilty on six counts: (Count I) felony possession of methamphetamine; (Count III) misdemeanor possession of methamphetamine; (Count V) misdemeanor possession of marijuana; (Count VI) use of methamphetamine; (Count VII) trespassing; and, (Count VIII) driving with a suspended license. The jury acquitted Mr. Mathewson on (Count II) delivery of methamphetamine and (Count IV) possession of methadone.

         [¶16] Mr. Mathewson's counsel filed a motion for judgment of acquittal solely challenging the sufficiency of the evidence for felony possession of methamphetamine. The district court summarily denied Mr. Mathewson's motion after a hearing, concluding the evidence provided a valid basis for Mathewson's felony methamphetamine possession conviction. Following sentencing, Mr. Mathewson moved to stay his sentences pending final disposition after an appeal.[5] The district court granted the stay, but continued Mr. Mathewson's original bond conditions. This appeal followed.

         DISCUSSION

         I. Did the district court err when it denied Mr. Mathewson's motion to suppress evidence, which challenged the validity of the search warrant?

         [¶17] Mr. Mathewson claims the district court improperly denied his motion to suppress evidence, contending the affidavit in support of the no-knock search warrant lacked probable cause, "contained contradictory statements and outright lies by the informants," and was not issued by a neutral and detached magistrate. For these reasons, Mr. Mathewson asserts the search warrant failed to comport with the state and federal constitutions and necessitates suppression of all the evidence obtained under the warrant.

         A. Probable Cause

         [¶18] We have long recognized the Wyoming Constitution is more protective than the Fourth Amendment to the United States Constitution in that it requires that "probable cause be supported by affidavit rather than the more general 'oath or affirmation' of the Fourth Amendment . . . ." Cordova v. State, 2001 WY 96, ¶ 8, 33 P.3d 142, 147 (Wyo. 2001), abrogated on other grounds by TJS v. State, 2005 WY 68, ¶ 8, 113 P.3d 1054, 1056 (Wyo. 2005) (citation omitted). The issue in this case, however, is not whether probable cause was established by affidavit, as there is no dispute that the warrant to search Mr. Mathewson's home was issued in accordance with the affidavit requirement in Article 1, § 4 of the Wyoming Constitution. The substantive issue in this case is whether the affidavit contained sufficient information of the type necessary to establish probable cause. We will analyze Mr. Mathewson's probable cause claim applying federal constitutional principles because he failed to make any argument that the Article 1, § 4 of the Wyoming Constitution provides greater protection under a probable cause analysis than does the Fourth Amendment.[6] Sheesley v. State, 2019 WY 32, ¶¶ 15-16, P.3d, (Wyo. 2019) ("[l]itigants need not engage in a rigid, formulaic analysis to convince us to consider independent state constitutional grounds," however, failure to analyze any of the six nonexclusive Saldana criteria justifies our foregoing any independent state constitutional analysis). Mr. Mathewson's claim that the probable cause affidavit violates the Fourth Amendment is subject to de novo review. Guerra v. State, 897 P.2d 447, 453 (Wyo. 1995); see also TJS, ¶ 9, 113 P.3d at 1057 n.1 (Wyo. 2005).

         [¶19] Lieutenant Pebbles of the Hot Springs County Sheriff's Office prepared the probable cause affidavit based on information received from four confidential informants and information known to law enforcement officers through prior investigations, inter alia. Mr. Mathewson asserts Lieutenant Pebbles relied solely on hearsay and double hearsay information from inherently untrustworthy confidential informants as a factual basis for his affidavit. Mr. Mathewson further asserts the affidavit lacked any corroboration of the confidential informants' statements or Lieutenant Pebbles' firsthand knowledge. He also claims the information in the affidavit was stale. The State responds that the affidavit established probable cause that Mr. Mathewson was committing drug-related crimes because the confidential informants provided recent and detailed factual information, much of which was independently corroborated by the Hot Springs County Sheriff's Department or another confidential informant.

         [¶20] To issue a valid search warrant, [7] the judicial officer "must have a substantial basis for concluding that probable cause exists[, ]" based on a two-fold finding: first, "the factual situation described in the affidavit is sufficient to cause a reasonably cautious or prudent person to believe that a crime was being committed or that one had been committed[;]" second, there must be an "adequate showing that the fruits of the crime or the evidence thereof" are in the place to be searched. ¶S, ¶ 12, 113 P.3d at 1057 (citations omitted). The judicial officer does not measure the affidavit by a "reasonable doubt" or "preponderance of [the] evidence standard"; rather, the "circumstances set forth in the affidavit must amount to more than a mere suspicion yet need not rise to the level of prima facie evidence of guilt." Rohda, ¶ 6, 142 P.3d at 1159 (citation omitted).

         [¶21] When, as here, an affidavit contains an informant's hearsay statement, sufficient facts must be set forth for the judicial officer to independently judge "the third party's credibility, veracity, reliability and basis of knowledge" in deciding whether probable cause exists. ¶S, ¶ 13, 113 P.3d at 1057-58 (citation omitted). The credibility of an informant's hearsay statement depends on several factors, including, but not limited to:

whether the informant has previously given reliable information to law enforcement; whether the statements of the informant are against the informant's penal interests; whether the informant acquired knowledge of the events through firsthand observation; whether the amount of detail provided is sufficient to make the statement self-verifying; the interval between the date of the events and the law enforcement officer's application for a warrant; and the extent to which law enforcement officers have corroborated the informant's statements. Also relevant is whether the law enforcement affiant included a professional assessment of the probable significance of the facts related by the informant, based on experience or expertise.

Schirber v. State, 2006 WY 121, ¶ 8, 142 P.3d 1169, 1173 (Wyo. 2006) (citations omitted). No single factor is dispositive, and a deficiency in one factor may be mitigated by a strong showing of another. Id. (citation omitted). For example, an informant's firsthand knowledge of the events or conduct he describes enhances his credibility, as do statements against penal interest. ¶S, ¶ 17, 113 P.3d at 1060 (citations omitted); see Fosen v. State, 2017 WY 82, ¶ 14, 399 P.3d 613, 616-17 (Wyo. 2017) (citations omitted). Credibility is also enhanced by corroboration of facts supplied by the confidential informant. ¶S, ¶ 19, 113 P.3d at 1060. "If an informant is right about some things, he is more likely right about other things." Id. (quoting Bonsness v. State, 672 P.2d 1291, 1293 (Wyo. 1983)). However, "[i]t is not necessary that the affidavit reflect verification of all facts presented by the informant." Id. (citation omitted). We consider a confidential informant's information "self-verifying" if the informant describes the suspect's criminal activity "in such sufficient detail that the judicial officer reasonably may know that he is relying on information more substantial than a casual rumor or an accusation based merely on general reputation." Rohda, ¶ 8, 142 P.3d at 1160.

         i. Sufficiency of Information from Confidential Informants

         [¶22] Mr. Mathewson contends the affidavit lacked sufficient information for the judicial officer to make an independent decision concerning the confidential informants' credibility and veracity. He asserts the hearsay statements of confidential informants facing their own criminal charges, "are the epitome of bare conclusions," which were never corroborated or investigated by Lieutenant Pebbles and, thus, are not entitled to enhanced credibility. Mr.

         Mathewson particularly challenges the weight, if any, to give CI 15-4's statements, because, according to Mr. Mathewson, CI 15-4 is a "drug user turned informant for preferential treatment." Mr. Mathewson also argues that too much time passed between CI 15-4's statements to Lieutenant Pebbles and the issuance of the warrant. We disagree.

         [¶23] The affidavit makes clear that Lieutenant Pebbles primarily relied on information provided by three confidential informants to establish probable cause. Two of the informants had not previously provided information to officers leading to arrests or convictions; thus, the judicial officer could not establish their veracity or reliability on that basis. See Rohda, ¶ 8, 142 P.3d at 1160 ("When the secondary source person is a confidential informant, the veracity or reliability requirement is usually met by the recitation in the affiant's affidavit by either the primary source affiant or the secondary source law enforcement officer of previous instances in which the law enforcement officer obtained information from the confidential informant that led to arrests or convictions."). However, both those informants provided statements against their penal interests, which is a recognized factor for establishing veracity or reliability. See id. Further, when the affidavit is considered as a whole, the confidential informants supplied sufficient "self-verifying" details for the judicial officer to independently determine whether probable cause existed to issue the warrant, including whether the information was too stale to support the warrant. We summarize and analyze the contents of the affidavit as follows:

         a. Confidential Informant 15-4

         [¶24] Lieutenant Pebbles received information from CI 15-4 two days before the warrant issued, implicating Mr. Mathewson in the Thermopolis methamphetamine trade. CI 15-4's statements contained recent observations, included statements against his penal interest, and Lieutenant Pebbles corroborated some of his facts. For example, CI 15-4 told Lieutenant Pebbles he purchased one-half gram of methamphetamine for $75 from Mr. Mathewson on April 9, 2015, at Mr. Mathewson's home. He stated Mr. Mathewson "weighed out" the one-half gram from a larger quantity of about 13 to 14 grams of methamphetamine. CI 15-4 injected the methamphetamine the same day. This statement against CI 15-4's penal interest was corroborated by Lieutenant Pebbles because he knew CI 15-4 tested positive for methamphetamine on April 9, 2015. In addition, this statement shows CI 15-4's firsthand knowledge of criminal activity, adding further weight to his credibility. Bonsness, 672 P.2d at 1293 (citation omitted) (explaining that a detailed description of criminal activity along with a statement that the event was observed firsthand, entitles the informant's "tip" to carry greater weight than it might otherwise).

         [¶25] CI 15-4 informed Lieutenant Pebbles he purchased methamphetamine from Mr. Mathewson almost daily at the Mathewson residence from January 1, 2015, until approximately March 1, 2015. He explained that Mr. Mathewson keeps some of his "stash" in a metal tea can in a drawer under the love seat in his living room, as well as hidden in the walls throughout the house, in his garage, and outbuildings. He explained he purchased methamphetamine from Mr. Mathewson for about a year before Mr. Mathewson ever revealed where he kept the drug, evidencing Mr. Mathewson's ongoing criminal activities. This level of detail describing Mr. Mathewson's conduct is self-verifying and sets forth CI 15-4's firsthand observations, further enhancing his credibility. See Rohda, ¶ 8, 142 P.3d at 1160.

         [¶26] CI 15-4 also stated he knew other people who purchased methamphetamine from Mr. Mathewson and observed them doing so. He first identified Jackie Wurtz and stated he purchased methamphetamine from Ms. Wurtz, who obtained the methamphetamine directly from Mr. Mathewson. He then identified Phyllis Hugh, stating he would sometimes sell methamphetamine to Ms. Hugh and other times she would purchase it directly from Mr. Mathewson. CI 15-4 admitted to smoking methamphetamine with Mr. Mathewson, Ms. Wurtz, and Karl Wurtz at the Mathewson residence sometime in February 2015, and stated Mr. Mathewson kept the device used to smoke the drug, a clear glass "kronk," by his couch or in the drawer underneath the couch with the metal tea can. These statements are also against CI 15-4's penal interest, contain self-verifying details, and show his firsthand knowledge of criminal activity, adding weight to his credibility. Lieutenant Pebbles corroborated some of CI 15-4's information about Jackie Wurtz when he received information from two other confidential informants that they, too, purchased methamphetamine from Jackie Wurtz. And, Lieutenant Pebbles knew "from personal experience that Jackie Wurtz has been convicted of felony Possession of a Controlled Substance, Methamphetamine in Hot Springs County, Wyoming."

         [¶27] CI 15-4 estimated Mr. Mathewson made between $1, 000 and $2, 000 per day selling methamphetamine and he acquired numerous vehicles and lived a comfortable life as a result. He provided a detailed description of the interior and exterior of Mr. Mathewson's home and surrounding property, including fencing, gates, and access to the house. Lieutenant Pebbles also knew from personal experience that Mr. Mathewson lived at the house described by CI 15-4, and there were numerous vehicles on the Mathewson property, including cars, trucks, buses, a motor home, and a camper.

         [¶28] CI 15-4 described Mr. Mathewson's security and intercom system, stating he had cameras at the front and back doors, the doors facing the street and the alley, and at the edge of the property facing toward the house. This information provided additional self-verifying details and support for issuance of a no-knock warrant, as discussed infra at ¶ 43. Lieutenant Pebbles knew Mr. Mathewson had a similar, sophisticated surveillance system at a previous home that Lieutenant Pebbles searched in 2009 and where Mr. Mathewson was found to possess controlled substances. At that time, Mr. Mathewson was able to see and hear law enforcement approaching, and because officers did not have a no-knock warrant, they suspected he flushed controlled substances down the toilet before officers eventually entered.

         [¶29] CI 15-4 told Lieutenant Pebbles that Mr. Mathewson recently traded methamphetamine for a generator with an individual from the Town of Shoshoni. Lieutenant Pebbles confirmed with Fremont County law enforcement that generators had recently been reported stolen in that area. CI 15-4 then told Lieutenant Pebbles that Mr. Mathewson's son, Jordan, sold methamphetamine for his father, but the two were not currently getting along because Jordon was shorting customers and owed people a lot of money. This information was corroborated by a second informant, CI 15-1. Finally, CI 15-4 stated Mr. Mathewson obtained his methamphetamine supply from Salt Lake City, Utah, which CI 15-1 corroborated.

         b. Confidential Informant 15-1

         [¶30] CI 15-1's statements likewise contained direct and recent knowledge of criminal activity and included statements against his penal interest. Some of the information CI 15 - 1 provided was corroborated by Lieutenant Pebbles or CI 15-4. For example, CI 15 - 4 told officers he previously sold methamphetamine to CI 15-1 on multiple occasions, which CI 15-1 confirmed. CI 15-1 stated that all the methamphetamine being sold in Thermopolis was coming from Mr. Mathewson, who obtained his methamphetamine from Salt Lake City, Utah. CI 15-1 told officers Mr. Mathewson supplies multiple people with methamphetamine, who in turn sell to CI 15-1, including CI 15-4. CI 15-1 further stated that when purchasing methamphetamine from CI 15-4, he would go to CI 15-4's home to give him the money and CI 15-4 would obtain the methamphetamine from Mr. Mathewson's home. He explained CI 15-4 would either go alone or CI 15-1 would drop CI 15-4 off outside Mr. Mathewson's home and then drive around and later return to pick him up and receive the methamphetamine. The purchase price was usually $150 per gram and he would buy between 1-3 grams per purchase.

         [¶31] CI 15-1 told officers he purchased a gram of methamphetamine from CI 15-4 around February 28, 2015, two months prior to the search of Mr. Mathewson's home. On that date, CI 15-1 dropped CI 15-4 off at the Mathewson residence, picked him up a short time later, and received the methamphetamine. CI 15-1 informed the officers where CI 15-4 hid methamphetamine in his house, which officers independently confirmed by searching CI 15-4's home in April 2015, thereby enhancing CI 15-1's credibility.

         [¶32] CI 15-1 also purchased methamphetamine from Jennifer Smith, who he knew went to Mr. Mathewson's home to obtain the methamphetamine, and from Ms. Smith's girlfriend, Shannon Ireland. He accompanied Ms. Smith to Mr. Mathewson's home to pick up the methamphetamine. These are additional statements against CI 15-1's penal interest.

         [¶33] Finally, CI 15-1 stated that Mr. Mathewson's son, Jordan, sells methamphetamine depending on whether he is getting along with Mr. Mathewson at the time, and has sold to CI 15-1. CI 15-1 stated Jordan will go to Mr. Mathewson's home to obtain the methamphetamine if he is not carrying it. Jordan also informed CI 15-1 that he was the person going into yards and stealing items such as gas and camping equipment, including chainsaws and camping equipment from Jake Yeoman's house. Jordan told CI 15-1 he stored the stolen property in Mr. Mathewson's bus and outbuildings. Lieutenant Pebbles knew through independent investigation that some of the properties CI 15-1 described had items such as gasoline, rakes, camping items, and a chainsaw stolen. CI 15-1's statements against penal interest, self-verifying details, and corroboration of some of the information by law enforcement officers, lend further weight to CI 15-1's credibility. See, e.g., Bonsness, 672 P.2d at 1293.

         c. Confidential Informant 15-2

         [¶34] CI 15-2 further corroborated CI 15-4's statements implicating Mr. Mathewson in the ongoing sale of illegal drugs. CI 15-2 is deemed reliable because he previously provided verified information to law enforcement officers. See, e.g., Rohda, ¶ 8, 142 P.3d at 1160 (citation omitted). On this occasion, CI 15-2 told Lieutenant Pebbles that in March and April of 2015, he purchased methamphetamine from "Jackie." He did not know Jackie's last name, but stated that during a purchase on April 22, 2015, Jackie arrived in a blue Neon and CI 15-2 knew the car belonged to Karl from T-Town Auto. Lieutenant Pebbles independently knew that Jackie Wurtz's husband, Karl Wurtz, drove a 2005 blue Dodge Neon and was employed by T-Town Auto. In addition, CI 15-4 named Jackie Wurtz as a person who purchased methamphetamine from Mr. Mathewson. CI 15-2's identification of Jackie Wurtz as a methamphetamine dealer lent credibility to CI 15-4's information regarding Mr. Mathewson, even though CI 15-2 did not directly implicate Mr. Mathewson.[8]

         [¶35] Having reviewed Lieutenant Pebbles' affidavit de novo, we are satisfied probable cause existed. The information provided by CI 15-4 and CI 15-1, as further supported by CI 15-2's statements, contained sufficiently recent and detailed factual information to establish probable cause, including the nexus between the alleged criminal activity and Mr. Mathewson's residence. Much of the information received from the confidential informants was independently corroborated by law enforcement or other confidential informants. Non-corroborated hearsay statements were supported by other acceptable indicia of reliability. Thus, the judicial officer reasonably knew he was relying on something more substantial than casual rumors or accusations based merely on general reputation, and properly considered the confidential informants' information as part of the totality of the circumstances showing probable cause. See, e.g., Abeyta, ¶¶ 23-24, 167 P.3d at 9.

         [¶36] We are not troubled by the amount of time between when CI 15-4 purchased methamphetamine from Mr. Mathewson and when law enforcement executed the search warrant. Mr. Mathewson's argument that the information in the affidavit was stale overlooks the many facts in the probable cause affidavit that described Mr. Mathewson's ongoing scheme to sell methamphetamine. See, e.g., Cordova, ¶ 21, 33 P.3d at 150, abrogated on other grounds by TJS, 113 P.3d 1054 (citation omitted) ("Time and staleness assuredly are elements of probable cause. However, when an affidavit indicates the existence of an ongoing scheme to sell drugs, the passage of time becomes less significant than is the case of a single, isolated transaction."); see also Crackenberger v. State, 2006 WY 162, ¶ 14, 149 P.3d 465, 472 (Wyo. 2006) (citation omitted). The facts in the affidavit established that CI 15-4's purchase from Mr. Mathewson was not a single, isolated transaction. Because the facts in the affidavit related instead to verified, ongoing criminal activity involving Mr. Mathewson and his residence, probable cause existed to issue the search warrant. The district court therefore properly denied Mr. Mathewson's motion to suppress the evidence.

         B. False Information

         [¶37] For the first time on appeal, Mr. Mathewson asserts the probable cause affidavit contains false information, contradictory statements, and outright lies, thereby creating an insufficient affidavit and warranting suppression of the evidence. Mr. Mathewson's suppression motion was premised on his claims that the affidavit lacked probable cause because the confidential informants' information was unreliable and uncorroborated, not because the confidential informants' statements were false. His arguments at the suppression hearing were limited to those same claims, and he made no effort pursuant to Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978) to prove that false statements were intentionally or recklessly included in the affidavit and that the alleged false statements were necessary to find probable cause. Consequently, Mr. Mathewson's "false information" argument is procedurally misplaced. Guerra, 897 P.2d at 457.

         [¶38] Franks requires a defendant to "make a preliminary showing of intentional or reckless falsity, together with a demonstration that the affidavit is insufficient, absent the false statements . . . ." Guerra, 897 P.2d at 457. Once the preliminary showing is made, the defendant is entitled to a hearing where the burden is on the defendant to prove his claims by a preponderance of the evidence. Id. (citation omitted); see also Williams v. State, 655 P.2d 273, 277 (Wyo. 1982); Lefferdink v. State, 2011 WY 75, ¶ 9, 250 P.3d 173, 176 (Wyo. 2011). When this process is followed, we review the denial of a motion to suppress raising false information claims for an abuse of discretion. Davis v. State, 859 P.2d 89, 93 (Wyo. 1993).

         [¶39] Mr. Mathewson's counsel stated in his pretrial memorandum that he believed a Franks hearing on the truthfulness of the affidavit would be necessary. However, Mr. Mathewson's motion to suppress did not raise a "false information" allegation, and he never otherwise filed a motion or made the preliminary showing that would have entitled him to a Franks hearing. The supplement to Mr. Mathewson's motion to suppress, filed after his pretrial memorandum and before the suppression hearing, made no reference to the necessity of a Franks hearing, whatsoever. Nor did Mr. Mathewson request a Franks hearing at the motion to suppress hearing. On appeal, he baldly asserts the suppression hearing was "effectively a suppression hearing and a [Franks] hearing wrapped up as one." The record refutes this assertion.

         [¶40] Mr. Mathewson's failure to raise a "false information" argument and make the required preliminary showing prior to trial hampers our review because it is difficult to apply an abuse of discretion standard when the district court had no opportunity to decide the issue. See, e.g., Broberg v. State, 2018 WY 113, ¶ 18, 428 P.3d 167, 172 (Wyo. 2018) (quoting Schreibvogel v. State, 2010 WY 45, ΒΆ 33, 228 P.3d 874, 885 (Wyo. 2010)) ("[A]pplication of an abuse of discretion standard is difficult, if not impossible, in a situation where the issue is not brought to the attention of the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.