from the District Court of Hot Springs County The Honorable
Robert E. Skar, Judge
Representing Appellant: Office of the State Public Defender:
Diane Lozano, State Public Defender; Kirk A. Morgan, Chief
Appellate Counsel. Argument by Mr. Morgan.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; Christyne M. Martens, Deputy Attorney General;
Samuel Williams, Assistant Attorney General. Argument by Mr.
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
A jury convicted Holly Herrera of three counts of child
endangerment and one count of possession of a controlled
substance. On appeal, she claims that her Fifth Amendment
right to remain silent was violated when the district court
allowed testimony regarding her contamination of a urine
sample she was compelled to provide. We affirm.
Ms. Herrera raises a single issue on appeal, which we state
Was Ms. Herrera's Fifth Amendment right to remain silent
violated when the district court admitted testimony regarding
her contamination of a compelled urine sample?
State frames the issue similarly, but also raises the
additional question of whether Ms. Herrera waived her Fifth
Amendment claim when she failed to raise it in the district
At around 12:00 a.m. on July 1, 2017, Wyoming Highway Patrol
Trooper Beatriz Schulmeister stopped a vehicle outside
Thermopolis, Wyoming for failure to have the rear license
plate illuminated. She approached the vehicle on the
passenger side, and she initially saw a little girl and two
young boys sleeping in the back seat, and a male driver and
an adult male passenger in the front. She knocked on the
front passenger window, and when it was rolled down, she
introduced herself and informed the driver of the reason for
the stop. When she asked for his driver's license,
insurance information, and registration, the driver admitted
that he did not have a license on him, and that his license
had been suspended.
Trooper Schulmeister asked both the driver and his passenger
their names and dates of birth so that she could verify the
suspension and determine whether the passenger, who said he
was licensed but did not have his license with him, would be
available to drive the vehicle when the stop concluded. She
wrote that information down and again asked for insurance and
registration. She noticed that both the driver and the
passenger were nervous when they pulled documents from the
glove box and console, and that they were moving fast without
looking at the paperwork. She also observed that the
windshield was broken, and she asked how long it had been
like that. The driver responded that he did not know because
the vehicle belonged to his sister, Holly Herrera.
Trooper Schulmeister ran a check on the information she was
given and confirmed that the driver was Christopher Decker
and that the front passenger was Derek Fyffe. Because the
vehicle had only temporary tags, she was not able to run
those for vehicle ownership information, and she returned to
the vehicle to again ask for the registration and proof of
insurance. She approached on the passenger side but then
pointed her flashlight at the driver's side because Mr.
Decker was moving about in a nervous manner that concerned
her, and she wanted to see his hands. While she was shining
her flashlight on the driver's side, its light glanced
off of the back seat, and Trooper Schulmeister saw the top of
a head underneath one of the children. The person was sitting
low in the seat behind the driver's seat and was not
wearing a seatbelt. Trooper Schulmeister knocked on the
window to ask about the seatbelt and found that the
additional passenger was an adult female.
That adult female was Holly Herrera, but when Trooper
Schulmeister asked her to identify herself, Ms. Herrera gave
her a false name, Jacqueline Marie Cardenas, and a false
birth date. She said she did not have a current driver's
license but that she had a suspended Nevada license. After
Trooper Schulmeister obtained Ms. Herrera's information,
she told Mr. Decker and Mr. Fyffe that she still needed the
vehicle registration. Mr. Fyffe looked in the glove box again
and found a certificate of title, which he gave to Trooper
The certificate of title identified Holly Herrera as the
vehicle's owner, and Trooper Schulmeister returned to her
patrol car to verify the vehicle ownership and the
information Ms. Herrera had given her. She was unable to
verify the information Ms. Herrera gave her and requested
clarification of the correct spelling for her name and her
birth date. Ms. Herrera again provided false information,
changing the spelling of the false name slightly and date of
birth, and Trooper Schulmeister was again unable to verify
the information. She then asked Ms. Herrera to write down her
information so she could be sure she had the correct spelling
and birth date. In response, Ms. Herrera provided false
information a third time, again using the same name with
minor adjustments to its spelling and her birth date, and
Trooper Schulmeister was again unable to verify the
By this time, Sergeant Jerimie Kraushaar of the Hot Springs
County Sheriff's Office had arrived to provide backup. He
used information from the certificate of title to find Holly
Herrera's Facebook profile and based on the profile photo
determined Ms. Herrera's true identity. He informed
Trooper Schulmeister of this, and that there was an
outstanding warrant for Ms. Herrera's arrest. Trooper
Schulmeister cited her for interference with a peace officer
and placed her under arrest.
The children in the vehicle were Ms. Herrera's
twelve-year-old son, a fourteen-year-old neighbor boy, and
Mr. Decker's four-year-old daughter. Trooper Schulmeister
requested that dispatch contact the Wyoming Department of
Family Services for assistance with the children, and that it
send a wrecker to tow the vehicle. It had to be towed because
Mr. Decker's driver's license was suspended, Mr.
Fyffe did not have a license on him, and Ms. Herrera was
Before the vehicle was towed, Trooper Schulmeister
inventoried it, as required by Wyoming Highway Patrol policy.
During her inventory, she found a white baggy containing a
white powdery substance on the floor between the driver's
seat and the door. The State Crime Lab later identified the
substance as methamphetamine. She also found a bag of unused
syringes in the glove box. On the floor behind the
driver's seat, she found a "torch," which she
recognized as a type of lighter commonly used to smoke
controlled substances from a pipe. In the middle of the back
seat floor, she found a pink and black cosmetic case that
contained cosmetics and a glass pipe wrapped in a paper
towel. The glass pipe contained a residue that the State
Crime Lab identified as methamphetamine.
The outstanding warrant for Ms. Herrera's arrest was for
a probation violation. As a condition of her probation, Ms.
Herrera was required to submit to urine testing, and on July
3, while she was still in the detention center, Trooper
Schulmeister asked her to provide a urine sample. On her
first attempt to provide a sample, which was observed by
Trooper Schulmeister, Ms. Herrera said she was unable to
produce one. On her second attempt a short time later, also
observed by Trooper Schulmeister, she was able to urinate but
contaminated the sample by dipping it into the toilet water.
Because the sample was contaminated, Trooper Schulmeister did
not submit it for analysis and made no further attempts to
obtain a sample.
On July 6, 2017, the State filed an information charging Ms.
Herrera with three felony counts of child
endangerment-exposure to methamphetamine, and one misdemeanor
count of possession of a controlled substance. Before trial,
Ms. Herrera requested notice of the State's intent to
introduce W.R.E. 404(b) (other acts) evidence, and the State
provided no such notice.
A jury trial was held February 14-16, 2018. During defense
counsel's cross-examination of Trooper Schulmeister, the
following exchange occurred concerning Ms. Herrera providing
a false name and birth date (footnote added):
Q. Okay. You made a statement yesterday that oftentimes
people - oftentimes people who have warrants don't give
their correct names; do you remember making that statement
Q. Okay. Do you run into that quite often? Well, you've
apparently run into it before?
A. Can you give me a minute to think about it?
Q. Yeah, that's fine.
A. I don't think that people gave me the wrong names, I
don't recall - I don't recall anybody having a
warrant, maybe they were just lying because something else.
Q. Okay. With Mr. Fyffe you were really digging there because
things weren't matching up?
Q. And there was a warrant for him, okay, and so you were at
that time thinking, "Well, he's possibly given me
some false information because he's got a warrant; is
Q. So that was kind of going through your mind. You
eventually found out who Ms. Herrera was; is that correct?
A. Later on, yes.
Q. Later on. And you also found out that she had a warrant;