               IN THE SUPREME COURT, STATE OF WYOMING

                                        2014 WY 46

                                                                APRIL TERM, A.D. 2014

                                                                         April 9, 2014

SAMUEL P. SNELL,

Appellant
(Defendant),

v.                                                   S-13-0164

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                   Appeal from the District Court of Campbell County
                      The Honorable Thomas W. Rumpke, Judge

Representing Appellant:
      Office of the State Public Defender: Diane Lozano, State Public Defender; Tina
      N. Olson, Chief Appellate Counsel; Diane E. Courselle, Director, and Grant Smith
      of the Defender Aid Program, University of Wyoming College of Law. Argument
      by Mr. Smith.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jeffrey Pope, Assistant Attorney General; Caitlin Young,
      Assistant Attorney General. Argument by Ms. Young.

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


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
DAVIS, Justice.

[¶1] Appellant Samuel P. Snell was arrested and charged with driving while under the
influence of alcohol. He filed a motion to suppress the results of his blood alcohol
concentration (BAC) test, claiming that the affidavit supporting the search warrant
authorizing his blood to be taken for testing failed to demonstrate probable cause. The
motion was denied, and Appellant was subsequently convicted by a jury of driving with a
BAC of at least 0.08% for a fourth or subsequent time in ten years, a felony. He now
challenges the district court’s denial of the motion to suppress as well as the sufficiency
of the evidence to support his conviction. We find that the affidavit in support of the
search warrant is deficient because it contains bare conclusions. Consequently, we must
hold that the district court erred in denying Appellant’s motion to suppress the results of
his BAC test. We reverse.

                                                 ISSUE

[¶2] The dispositive question before us is the sufficiency of the affidavit that resulted in
the issuance of a search warrant authorizing Appellant’s blood to be taken for testing.
For that reason, we restate the controlling issue as follows:1

                      Did the affidavit supporting the application for a
                warrant to draw Appellant’s blood contain sufficient
                information for a judicial officer to make an independent
                judgment that there was probable cause that Appellant had
                been driving while intoxicated?

                                                FACTS

[¶3] In the early evening hours of July 7, 2012, Mr. Svalina was working in his yard in
rural Campbell County when he observed a pick-up truck traveling down the county road
near his home at a high rate of speed, lose control, and roll over. From approximately
275 yards away from the wrecked vehicle, he saw someone crawl out of the passenger
window and run from the scene. Mr. Svalina could not identify the fleeing person at that
distance.

[¶4] While her husband was outside surveying the accident scene, Mrs. Svalina called
law enforcement to report the incident, and Campbell County sheriff’s deputies arrived
shortly thereafter. Mr. Svalina described what he had seen of the driver and accident to
the officers. After securing the scene and determining that the individual who ran from
1
  Appellant presents an additional issue concerning the sufficiency of the evidence to convict him of one
count of felony driving under the influence of alcohol. Because we find the district court erred in denying
Appellant’s motion to suppress the BAC test results, we need not address the ancillary issue. See Bouch
v. State, 2006 WY 122, ¶ 29, 143 P.3d 643, 653 (Wyo. 2006).


                                                     1
the scene was the only occupant of the vehicle, the deputies began to search for the driver
who had fled.2 They checked the truck’s license plate and then went to the home of the
owner, Cynthia Snell, who lived roughly a mile and a half away.

[¶5] Ms. Snell believed that the truck was parked in her garage, but told officers that
her son, the Appellant, could have taken it, even though he was only permitted to operate
vehicles with an ignition interlock device, which the truck did not have. 3 Officers
continued to look for the driver and eventually called a canine unit to assist.
Approximately an hour into the search (and about two hours after the accident), an officer
spotted Appellant near Ms. Snell’s residence. He matched the description Mr. Svalina
had given. The investigating officer, Deputy Gibson of the Campbell County Sheriff’s
Department, observed that Appellant smelled strongly of alcohol, slurred his speech, had
torn clothing, and had fresh cuts and blood on his face and arms. Appellant denied
driving the truck, explaining that his torn clothes and injuries had instead resulted from a
fall while he was tending horses.

[¶6] Appellant consented to field sobriety tests, but he was unable to complete two of
the tests and failed the remaining three. Consequently, he was arrested and taken to the
Campbell County detention center.4 There he was provided with an explanation of
Wyoming’s implied consent laws and asked to submit to a breathalyzer test. He refused.

[¶7] Deputy Gibson sought and obtained a search and seizure warrant to obtain
Appellant’s blood, breath and/or urine for testing to determine his alcohol concentration.
Approximately four hours after the accident, Appellant’s blood was drawn and tested as
permitted by the warrant. The testing determined Appellant’s BAC to be 0.21%.

[¶8] Appellant was charged with one count of driving with an alcohol concentration of
0.08% or more, a fourth or subsequent offense within ten years, in violation of Wyo. Stat.
Ann. § 31-5-233(b)(i)(e), which is a felony. He filed a motion to suppress the blood
alcohol test, asserting that the search warrant was based upon an affidavit containing
conclusory statements, and that it failed to establish probable cause that he was driving
the vehicle at the time of the accident. The district court denied the motion.

[¶9] With the motion denied, the case proceeded to trial. Appellant testified in his own
defense, and for the first time admitted that he had been driving the truck at the time of



2
  Officers searching the truck at the scene found a Bud Light beer bottle and a Coors light can in the
backseat (or rear area) of the vehicle.
3
  Earlier that day, Appellant had been released from the Campbell County jail after serving a sentence on
a previous DWUI charge.
4
  The officer informed Appellant that he was being arrested for, inter alia, driving while intoxicated,
leaving the scene of a crash, and driving with a suspended license.


                                                    2
the accident. However, he claimed that he consumed beer and whiskey5 he had
purchased and transported in the vehicle only after the accident; that is, he grabbed the
alcohol when he fled and consumed it all sometime before being found by law
enforcement near his mother’s house. In other words, he testified that he became
intoxicated after he was no longer driving and was therefore not guilty of the offense with
which he was charged. The jury found Appellant guilty nonetheless, and the district
court sentenced him to incarceration for not less than two nor more than six years. This
appeal was timely perfected.

                                  STANDARD OF REVIEW

[¶10] Our standard of review for evaluating the sufficiency of an affidavit to support the
issuance of a search warrant under Article 1, Section 4 of the Wyoming Constitution is de
novo. TJS v. State, 2005 WY 68, ¶¶ 9-10, 113 P.3d 1054, 1057 (Wyo. 2005). While we
view a search warrant affidavit in its totality through a commonsense and realistic lens,
our review is ultimately constrained by the information included within its four corners.
Id.; see also Rohda v. State, 2006 WY 120, ¶¶ 3-4, 142 P.3d 1155, 1158 (Wyo. 2006).
Because our Constitution requires all information relied upon by the issuing judicial
officer to determine probable cause to be included in the affidavit, deference is
unnecessary because we are in the same position to assess the information as the issuing
magistrate or judge.

[¶11] We have also emphasized that an affidavit supporting a search warrant is
presumed valid, and that it is tested by a less vigorous standard than that for determining
admissibility of evidence at trial. Bouch v. State, 2006 WY 122, ¶ 6, 143 P.3d 643, 646
(Wyo. 2006). In order to promote the use of warrants and recognizing that affidavits are
not normally prepared by attorneys or legal technicians, this Court will resolve doubtful
or marginal cases in favor of the validity of the warrant. Id

                                          DISCUSSION

[¶12] Article 1, Section 4 of the Wyoming Constitution protects its citizenry against
unreasonable searches and seizures.6
5
  Appellant testified that he purchased a six-pack of Budweiser cans and a pint of Jack Daniels whiskey
earlier that day.
6
  The Fourth Amendment to the United States Constitution also protects the people against unreasonable
searches and seizures:

                       The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable searches and seizures, shall not
               be violated, and no Warrants shall issue, but upon probable cause,
               supported by Oath or affirmation, and particularly describing the place
               to be searched, and the persons or things to be seized.



                                                    3
                       The right of the people to be secure in their persons,
                houses, papers and effects against unreasonable searches and
                seizures shall not be violated, and no warrant shall issue but
                upon probable cause, supported by affidavit, particularly
                describing the place to be searched or the person or thing to
                be seized.

Wyo. Const. art. 1, § 4 (emphasis added). The requirement that the probable cause
supporting the issuance of a search warrant must be reflected in an affidavit is significant
to our analysis. “Because the Wyoming Constitution, unlike the Fourth Amendment,
requires an affidavit, rather than just an oath or affirmation, we have held that sufficient
factual support for issuance of the warrant must be found within the affidavit.” Bouch, ¶
13, 143 P.3d at 648. The requirement of an affidavit fortifies Wyoming citizens’ rights
by creating a permanent written record. Smith v. State, 2013 WY 122, ¶ 14, 311 P.3d
132, 136 (Wyo. 2013).

[¶13] The affidavit must therefore provide sufficient information within its four corners
for a judicial officer to make an independent judgment that there is probable cause to
issue the warrant based upon the totality of the circumstances. Bouch, ¶ 13, 143 P.3d at
648. “The totality of circumstances analysis requires the judicial officer simply to make
a practical, common sense decision whether, given all the circumstances set forth in the
affidavit before him, including the veracity and basis of knowledge of persons supplying
hearsay information, there is a fair probability that contraband or evidence of a crime will
be found in a particular place.” Lefferdink v. State, 2011 WY 75, ¶ 14, 250 P.3d 173, 177
(Wyo. 2011) (quotation marks omitted). Thus, it is necessary that the affidavit include
some underlying facts, rather than bare conclusions of the affiant.7

[¶14] With these principles in mind, we turn to the Affidavit for DWUI and Seizure
Warrant at issue, which we set forth in its entirety for ease of reference:


U.S. Const. amend. IV (emphasis added). The use of the word “affidavit” in Article 1, Section 4 of the
Wyoming Constitution, rather than the words “oath or affirmation” that appear in the Fourth Amendment
to the United States Constitution, means that the former provides greater protection than the latter. See
Crackenberger v. State, 2006 WY 162, ¶ 7, 149 P.3d 465, 470 (Wyo. 2006). Because the narrow issue
presently before us concerns the sufficiency of the affidavit in support of the search warrant, we confine
our analysis accordingly.
7
  Bouch, ¶ 13, 143 P.3d at 648 (“The affidavit in support of the warrant, therefore, must include more than
bare conclusions of the affiant.”); Abeyta v. State, 2007 WY 142, ¶ 16, 167 P.3d 1, 8 (Wyo. 2007) (“[T]he
law does not require that an affidavit be absolutely devoid of conclusory statements; rather, the law
requires that the affidavit must include more than bare conclusions of the affiant.” (quotation marks and
emphasis omitted)); Schirber v. State, 2006 WY 121, ¶ 7, 142 P.3d 1169, 1173 (Wyo. 2006) (“Some
underlying factual information, as opposed to mere suspicions or conclusory statements, must be
supplied.”).


                                                     4
5
[¶15] Appellant complains that the affidavit is too conclusory to pass muster because it
does not tell us how Deputy Gibson knew that Appellant was the driver of the vehicle.
He asserts that there is a nexus requirement that is not fulfilled by this form affidavit, and
that it paints an inadequate picture that does not reflect the actual circumstances of the
case. After a solicitous review of controlling case law and the record, we must agree. 8

[¶16] Probable cause to justify the issuance of a search warrant requires a twofold
finding. See Bouch, ¶ 15, 143 P.3d at 648. “First, the factual situation must be sufficient
to warrant a reasonably cautious or prudent person to believe that a crime was being
committed or that one had been committed.” Id. “Second, there must be an adequate
showing that the fruits of the crime or the evidence thereof are in the” place to be
searched. Id. “It is ‘necessary that there be established a sufficient nexus between (1)
criminal activity, and (2) the things to be seized, and (3) the place to be searched.’” Id.
(quoting Wayne R. LaFave, Search and Seizure § 3.7(d), at 412 (4th ed. 2004)).

[¶17] To establish a nexus between the crime and Appellant, probable cause that he was
driving had to be contained within the affidavit, which would also provide a nexus to the
thing to be seized (blood or other bodily fluids) and the place to be searched (Appellant’s
person). The affidavit repeatedly asserts that Appellant was the driver of the vehicle but

8
  Compare Bouch, ¶¶ 7-25, 143 P.3d at 646-52 (affidavit in support of search warrant insufficient to
establish nexus between the suspected criminal activity and location to be searched, therefore failing to
establish probable cause, and warranting suppression of resulting evidence); Page v. State, 2003 WY 23,
63 P.3d 904 (Wyo. 2003) (affidavit submitted in support of search warrant did not establish probable
cause), abrogated on other grounds by TJS v. State, 2005 WY 68, 113 P.3d 1054 (Wyo. 2005); Hixson v.
State, 2001 WY 99, ¶¶ 5-12, 33 P.3d 154, 156-59 (Wyo. 2001) (affidavit contained insufficient
information to give issuing judicial officer substantial basis to independently determine probable cause
for issuing search warrant), abrogated on other grounds by TJS v. State, 2005 WY 68, 113 P.3d 1054
(Wyo. 2005), with Lefferdink, ¶¶ 8-16, 250 P.3d at 175-78 (affidavit in support of search warrant
sufficient); Mueller v. State, 2009 WY 27, 202 P.3d 404 (Wyo. 2009) (affidavit provided a judicial officer
with a substantial basis to conclude that probable cause existed to issue a warrant); Abeyta v. State, 2007
WY 142, 167 P.3d 1 (Wyo. 2007) (affidavit sufficient to support probable cause finding for search
warrant); Holzheuser v. State, 2007 WY 160, ¶¶ 6-10, 169 P.3d 68, 73-76 (Wyo. 2007) (search warrant
supported by probable cause); Schirber, ¶¶ 9-20, 142 P.3d at 1177-82 (when read in its entirety, affidavit
contained sufficient information to establish a finding of probable cause and thus the issuance of the
search warrant); Crackenberger v. State, 2006 WY 162, 149 P.3d 465 (Wyo. 2006) (information in
affidavit sufficient to support probable cause); Rohda v. State, 2006 WY 120, 142 P.3d 1155 (Wyo. 2006)
(substantial basis for issuance of search warrant); TJS v. State, 2005 WY 68, 113 P.3d 1054 (Wyo. 2005)
(affidavit contained sufficient information to support credibility of confidential informant and to establish
probable cause); Urbigkit v. State, 2003 WY 57, ¶¶ 6-15, 67 P.3d 1207, 1212-17 (Wyo. 2003) (affidavits
adequate to support a finding of probable cause sufficient for the issuance of the warrants), abrogated on
other grounds by TJS v. State, 2005 WY 68, 113 P.3d 1054 (Wyo. 2005); Kitzke v. State, 2002 WY 147,
¶¶ 7-12, 55 P.3d 696, 698-701 (Wyo. 2002) (officer’s search warrant affidavit constituted probable cause
to issue search warrant); Cordova v. State, 2001 WY 96, 33 P.3d 142 (Wyo. 2001) (information in
affidavit was sufficiently timely to establish probable cause to issue warrant), abrogated on other grounds
by TJS v. State, 2005 WY 68, 113 P.3d 1054 (Wyo. 2005).


                                                      6
omits any explanation as to how Deputy Gibson or a judicial officer could reach that
conclusion. The affidavit creates the impression that Deputy Gibson encountered
Appellant at or near the scene within minutes of the accident, and that he saw him
abscond from it. Under those facts, there would not be much doubt as to whether
Appellant was driving the vehicle, even though he denied doing so.

[¶18] However, that is not what actually occurred. See ¶¶ 3-5, supra. The judicial
officer (the circuit judge issuing the search warrant) had to rely on the deputy’s
conclusions, which suggest that he saw Appellant driving the vehicle or that he saw him
running from it soon after the accident. See Bouch, ¶ 16, 143 P. 3d at 648. The judge
was not provided with facts that supported Deputy Gibson’s conclusion that Appellant
was driving when the search warrant was issued. Often these facts are self-evident from
the affidavit, as when an officer states that he stopped a vehicle, approached the driver’s
door, and spoke with the defendant, but they were not in this unusual situation. The
judge issuing the warrant could have taken additional testimony to fill in the gaps under
Wyoming Rule of Criminal Procedure 41(c),9 but there is no indication in the record that
this was done.

[¶19] A comparison to another probable cause affidavit provided the next day by Deputy
Gibson to support Appellant’s arrest demonstrates the conclusory nature of the search
warrant affidavit. The post-arrest affidavit—which is not on a form—lays out the exact
sequence of events which led the deputy to the reasonable conclusion that Appellant was
driving:

                      Deputy Gibson responded to a reported one vehicle
               rollover near the intersection of Svalina Road and Rustic Hills
               Road. Upon arrival, Deputy Gibson observed a black, Chevy
               Truck positioned in a pasture on its driver side. The truck
               was unoccupied with the engine running. Area resident,
               Robert Svalina was present and informed Deputy Gibson of
               witnessing the truck traveling west on Svalina Road at a high
               rate of speed. Svalina witnessed the truck sliding sideways,
               rolling though a barbed wire cattle fence and coming to rest
               on its driver’s side. Svalina approached the truck and
               observed a white male wearing jeans, a white T-shirt and
               possibly a ball cap, running away from the truck toward a dry
               creek bed in a northwestern direction. The male stopped,
               turned and looked directly at Svalina before continuing to run
               away from the accident scene. Deputy Gibson conducted a

9
  “[T]he judicial officer may require the affiant to appear personally and may examine under oath the
affiant and any witnesses the affiant may produce, provided that such proceeding shall be taken down by
a court reporter or recording equipment and made part of the affidavit.” W.R.Cr.P. 41(c).


                                                   7
preliminary search and confirmed no other persons w[]ere in
the vehicle or the immediate area.

        Deputies Gibson and Feddersen along with WHP
Trooper Briggs proceeded to the vehicle’s registered owner,
Cynthia Snell’s residence at 162 Rustic Hills Road. Deputy
Gibson informed Snell of her registered vehicle being
involved in a rollover and Snell commented about the vehicle
being in her garage earlier during the day. Deputy Gibson
asked Snell who could have possibly taken the vehicle from
the residence and Snell replied her son Sam may have
however, Sam was released from the Campbell County jail
earlier in the morning and has to utilize an ignition interlock
to drive. The black Chevy truck does not have an ignition
interlock installed. Snell also commented, Sam left earlier in
the day with a friend. Snell was informed by Deputy Gibson
that law enforcement was looking for the truck’s driver who,
ran away from the scene of the rollover and if Sam is the
alleged driver and returns to her residence to notify the
Sheriff’s Office because he could possibly be injured.
Deputies, along with WHP Trooper Briggs, began patrolling
the Rustic Hills area paying special attention to the pastures
adjacent to Cynthia Snell’s residence.

       Believing the alleged driver may be injured; Deputies
also summoned a canine unit to establish a track in hopes of
locating the alleged driver. A canine search began at
approximately 1735 hours, conducted by Corporal Spears and
canine Rocky. Deputies Gibson and Feddersen assisted the
canine search while Trooper Briggs continued patrolling the
Rustic Hills area.

       Approximately one hour into the canine search,
Trooper Briggs notified the Sheriff’s Office Dispatchers of
detaining a man matching the alleged driver’s description.
The male was observed by Trooper Briggs walking in an
eastern direction approximately 1/10 mile northwest of
Cynthia Snell’s residence. Trooper Briggs informed the male
of wanting to speak with him however, the male continued to
walk away from Briggs at which time; Trooper Briggs
crossed a cattle fence and verbally commanded the male to
stop. The male was detained until Deputies arrived.



                               8
                     Deputies arrived at Trooper Briggs’ location and
              Deputy Gibson was informed by Briggs, the male identified
              as Samuel Paul Snell, emitted a strong odor similar to that of
              an alcoholic beverage when speaking to Briggs. Snell wore
              jeans, a white T-shirt and dark colored croc type shoes.
              Deputy Gibson observed Snell had various cuts on his arms
              and bruises on his face. Snell refused medical attention.
              Snell’s T-shirt was torn in several places and contained
              various dirty spots. Deputy Gibson asked Snell how he
              received the cuts, bruises and shirt tears and Snell explained
              they were caused by falling in the brush while out tending to
              horses.

                      Deputy Gibson smelled a strong odor similar to an
              alcoholic beverage emitting from Snell when Snell spoke.
              Snell’s speech was slurred while admitting drinking two beers
              earlier during the day while at his mom’s residence. Snell
              denied leaving his mother’s residence and denied driving her
              truck. Deputy Gibson asked Snell if he would consent to
              field sobriety tests and Snell consented. Snell failed to
              properly perform all sobriety tests conducted by Deputy
              Gibson to include, Horizontal Gaze Nystagmus, One Legged
              Stand and Walk and Turn.

                                         .   .    .

[¶20] We do not mean to suggest that the search warrant affidavit needed to include all
of the information contained in the subsequent arrest affidavit. However, some of the
underlying factual information supporting Deputy Gibson’s conclusion that Appellant
had been driving the vehicle was essential to support issuance of the search warrant. See
Schirber, ¶ 7, 142 P.3d at 1173 (Wyo. 2006) (“Some underlying factual information, as
opposed to mere suspicions or conclusory statements, must be supplied.”).

[¶21] We note that the search warrant affidavit is on a form that provides an affiant with
only a few lines to set out sufficient information for a judicial officer to determine if
probable cause exists. While the form may in most cases be adequate, when, as here, the
facts are more complicated, an affiant may feel constrained to write within the lines
provided and make his or her statements conclusory and lacking in the detail necessary
for a judicial officer to evaluate the facts constituting probable cause. We believe that to
have been the case here. We do not criticize Deputy Gibson—we have every reason to
believe that he thought the affidavit was as complete and candid as space permitted—but
it is likely that the form simply did not provide adequate space to explain the unique
circumstances that led to the need for a search warrant. We also understand the time


                                              9
pressures related to the evanescent nature of the evidence – Appellant’s blood alcohol
concentration was diminishing with each passing minute.

[¶22] Problems with form affidavits in DWUI cases should be alleviated by the
relatively recent enactment of a statutory procedure for remotely communicated search
warrants in those cases. See Smith, ¶ 26, 311 P.3d at 139-40 (“[P]rocedures set forth in
Wyo. Stat. Ann. § 31-6-102(d) do comply with the affidavit requirements of Wyo. Const.
art. 1, § 4.”). We are confident that Deputy Gibson would have provided more
information or that the circuit judge would have asked for further details during a
telephonic conversation. In either event, it is likely that the record would reflect
additional facts supporting the finding that probable cause existed to believe that
Appellant was the driver. We can readily see that it did exist in hindsight.
Unfortunately, those facts were not contained in the affidavit used to obtain the search
warrant which authorized Appellant’s blood to be drawn, and we must evaluate its
sufficiency at the time the circuit judge issued it, rather than in light of information
provided later. A retrospective test would render constitutional protections against
unreasonable search and seizure meaningless. The fruit of the search, the BAC test,
should for these reasons have been suppressed.

Good Faith Exception

[¶23] The State urges this Court to adopt and apply the “good faith” exception to the
exclusionary rule set out in United States v. Leon,10 which would sustain the admission of
Appellant’s BAC blood test at trial even if the affidavit was deficient. In Leon, the
United States Supreme Court created a good faith exception to the exclusionary rule.
Under that ruling, if an officer relies in good faith upon a search warrant, the fruits of the
search will not be suppressed simply because the warrant is later determined to have been
invalid.11

[¶24] We have previously acknowledged that this exception exists under the Fourth
Amendment to the United States Constitution, but we have declined to determine if it
should be recognized under the parallel provisions of the Wyoming Constitution, Article
1, Section 4.12 This Court must again decline to do so in this case. The issue was not
decided by the district court, which received no briefing on that question from the parties,
and no facts relevant to the determination of good faith were developed. A determination

10
  468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
11
  Id. at 922, 104 S.Ct. at 3420; see also Davis v. United States, 131 S. Ct. 2419, 2428-29, 180 L.Ed.2d
285 (2011) (good faith exception applies to objectively reasonable reliance on binding appellate authority
that is later overruled); Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009)
(applying the good-faith exception to bar application of the exclusionary rule in a case involving police
error regarding a warrant).
12
     Rohda, ¶ 2 n.1, 142 P.3d at 1158; Page, ¶ 16, 63 P.3d at 911.


                                                        10
of whether the good faith exception might apply would require, inter alia, the testimony
of the officer executing the affidavit. Unfortunately, Deputy Gibson did not testify at the
suppression hearing. We therefore have no facts to demonstrate that this is an
appropriate case to consider whether a good faith exception should become part of the
Wyoming Constitution’s protections against unreasonable search and seizure.

                                    CONCLUSION

[¶25] We hold that the search warrant affidavit was required to include more than the
bare conclusions provided to establish probable cause that Appellant was the driver of the
vehicle. The district court erred in denying Appellant’s motion to suppress the results of
his blood alcohol concentration test.

[¶26] Reversed.




                                             11
