PAUL D. MATHEWSON, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).
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.
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ and BOOMGAARDEN, JJ.
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.
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. §
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).
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.
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.
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. 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.
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. The district
court granted both motions and reset the jury trial for the
end of May.
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.
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.
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.
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
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.
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." 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.
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.
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.
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. The district court granted the stay, but
continued Mr. Mathewson's original bond conditions. This
Did the district court err when it denied Mr. Mathewson's
motion to suppress evidence, which challenged the validity of
the search warrant?
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.
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. 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.
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
To issue a valid search warrant,  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).
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
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.
Sufficiency of Information from Confidential Informants
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.
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
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:
Confidential Informant 15-4
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).
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.
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
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.
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.
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.
Confidential Informant 15-1
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.
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.
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.
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
Confidential Informant 15-2
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.
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.
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.
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.
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).
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.
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, ¶ 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