                 IN THE SUPREME COURT, STATE OF WYOMING

                                        2013 WY 122

                                                          APRIL TERM, A.D. 2013

                                                                October 4, 2013


TERRY SMITH,

Appellant
(Defendant),

v.                                                  S-12-0230

THE STATE OF WYOMING,

Appellee
(Plaintiff).
DENA T. BLOMQUIST,

Appellant
(Defendant),

v.                                                  S-12-0231

THE STATE OF WYOMING,

Appellee
(Plaintiff).


               W.R.A.P. 11 Certification from the District Court of Teton County
                           The Honorable Timothy C. Day, Judge

Representing Appellant Terry Smith:
      Christopher S. Leigh of Jackson, Wyoming.

Representing Appellant Dena T. Blomquist:
      Richard D. Stout of DeFazio Law Office, LLC, Jackson, Wyoming.
Representing Appellees:
      Gregory A. Phillips, Wyoming Attorney General; Peter K. Michael, Interim
      Attorney General; David L. Delicath, Deputy Attorney General; Theodore R.
      Racines, Senior Assistant Attorney General; Jeffrey S. Pope, Assistant Attorney
      General; Christyne Martens, Assistant Attorney General; D. Terry Rogers and
      Clark C. Allan, Special Assistant Attorneys General. Argument by Mr. Rogers.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, 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.
VOIGT, Justice.

[¶1] On November 6, 2012, this Court issued a Notice of Agreement to Answer
Certified Questions in these two unrelated cases. The questions we agreed to answer
were stated as follows:

               1. Did the Teton County Circuit Court err when it found
               that the remotely communicated search warrants, which were
               not based upon affidavit, issued pursuant to W.S. 31-6-
               102(d), do not violate Wyo. Const. art. 1, § 4?

               2. Did the Teton County Circuit Court err when it found
               that the remotely communicated search warrants do not have
               to comply with the requirements of W.R.Cr.P. 41?

[¶2] We later concluded that, because the wording of the first question is such that it
may be construed to be based upon a faulty legal premise, as will be discussed below, and
because of clarification of search and seizure law by the United States Supreme Court in
the interim, the questions should be re-phrased to better provide guidance to the State’s
courts. Consequently, we issued an Order Requiring Briefing on Revised Certified
Questions, in which we re-stated the questions as follows:

               1.    Do the procedures set forth in Wyo. Stat. Ann. § 31-6-
                     102(d) (LexisNexis 2011) comply with the affidavit
                     requirements of Wyo. Const. art. 1, § 4?

               2.    Must a remotely communicated search warrant issued
                     pursuant to Wyo. Stat. Ann. § 31-6-102(a) comply with
                     the requirements of W.R.Cr.P. 41?

[¶3]   We reply in the affirmative to both questions.

                                             FACTS1

[¶4] In separate incidents in Teton County, Wyoming, the two above-named appellants
were arrested for driving while under the influence of alcohol (DWUI). Each appellant’s
blood-alcohol content was determined via the procedures set forth in Wyo. Stat. Ann.
§ 31-6-102(d) (LexisNexis 2013). That is, the circuit court judge issued a remotely
communicated search warrant after speaking on the telephone with the arresting officer,
who was under oath, and directing the officer to affix the judge’s signature to the search

1
 These facts are derived from the statements of fact contained in the Order Certifying Question to
Supreme Court issued in each case, as well as the Order Denying Motions to Suppress attached thereto.


                                                 1
warrant. The telephone calls were made by the officers to the judge via a recorded
telephone line operated by the Teton County Sheriff’s Office Dispatch.

[¶5] For the limited purpose of answering these questions within the confines of these
two cases, we will presume that the officer in each case had probable cause to make the
DWUI arrest, that the officer was placed under oath by the judge, that the officer in each
case recited to the judge sufficient probable cause for the issuance of a search warrant,
and that the recorded conversation can be or has been transcribed. In other words, the
limited questions presented are whether the requirements of Wyo. Stat. Ann. § 31-6-
102(d) are the equivalent of an affidavit under the state constitution and whether the
dictates of W.R.Cr.P. 41(c) must be met.

                              WYO. CONST. ART. 1, § 4

[¶6] Wyoming’s state constitutional protections against unreasonable search and
seizure are found in Wyo. Const. art. 1, § 4:

                    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.

(Emphasis added.)

                                    W.R.Cr.P. 41(c)

[¶7] Wyoming’s Rules of Criminal Procedure provide the procedural requirements for
the issuance of a search warrant at W.R.Cr.P. 41(c):

                     (c) Issuance and content of warrant.—A warrant
             shall issue only on affidavit sworn to before a person
             authorized by law to administer oaths and establishing the
             grounds for issuing the warrant. If the judicial officer is
             satisfied that the grounds for the application exist or that there
             is probable cause to believe that they exist, the judicial officer
             shall issue a warrant particularly identifying the property or
             person to be seized and naming or describing the person or
             place to be searched. Before ruling on a request for a warrant
             the 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


                                             2
            proceeding shall be taken down by a court reporter or
            recording equipment and made part of the affidavit. The
            warrant shall be directed to any officer authorized to enforce
            or assist in enforcing the state law. It shall state the grounds
            or probable cause for its issuance and the names of the
            persons whose affidavits have been taken in support thereof.
            It shall command the officer to search, within a specified
            period of time not to exceed 10 days, the person or place
            named for the property or person specified. The warrant shall
            direct that it be served between 6 a.m. and 10 p.m., unless the
            issuing authority, by appropriate provision in the warrant, and
            reasonable cause shown, authorizes its execution at other
            times. It shall designate the judicial officer to whom it shall
            be returned.

(Emphasis added.)

                         WYO. STAT. ANN. § 31-6-102(d)

[¶8] The statutory procedure for remotely communicated search warrants in DWUI
cases is found at Wyo. Stat. Ann. § 31-6-102(d):

                   (d) If a person under arrest refuses upon the request
            of a peace officer to submit to a chemical test designated by
            the agency employing the peace officer as provided in
            subsection (a) of this section, none shall be given except in
            cases where serious bodily injury or death has resulted or
            upon issuance of a search warrant. A test of the agency's
            choice may be administered upon issuance of a warrant,
            including a remotely communicated search warrant, when
            reasonable under the circumstances and as provided in this
            subsection. A remotely communicated search warrant may be
            issued upon sworn or affirmed testimony of the peace officer
            who is not in the physical presence of a judicial officer,
            provided the judicial officer is satisfied that probable cause
            exists for the issuance of the warrant. All communication
            between the judicial officer and the peace officer or
            prosecuting attorney requesting the warrant may be remotely
            transmitted by voice, image, text or any combination thereof,
            or by other means and shall be recorded. The testimony and
            content of the warrant shall be recorded by writing or
            mechanical, magnetic, electronic, photographic storage or by
            other means. Upon approval, the judicial officer may direct a


                                           3
             peace officer or the prosecuting attorney requesting a warrant
             from a remote location to sign the judicial officer's name on a
             warrant at a remote location. A remotely communicated
             search warrant shall be valid only for purposes specified in
             this subsection.

                              STANDARD OF REVIEW

[¶9] Certified questions are questions of law that are reviewed de novo pursuant to
W.R.A.P. 11. Preston v. Marathon Oil Co., 2012 WY 66, ¶ 4, 277 P.3d 81, 83 (Wyo.
2012); Sublette Cnty. Sch. Dist. No. Nine v. McBride, 2008 WY 152, ¶ 14, 198 P.3d
1079, 1083 (Wyo. 2008).

                                     DISCUSSION

[¶10] We begin this discussion by reference to a very recent opinion of the United States
Supreme Court wherein it was held that “the natural metabolization of alcohol in the
bloodstream [does not present] a per se exigency that justifies an exception to the Fourth
Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving
cases.” Missouri v. McNeely, ___ U.S. ___, ___, 133 S.Ct. 1552, 1556, 185 L.Ed.2d 696
(2013). In other words, the Fourth Amendment to the United States Constitution
demands that, absent an exigency or other exception to the general rule, a search warrant
is required to draw blood for a blood-alcohol test in a DWUI case, with reasonableness of
the search to be determined under all the attending circumstances. The parties suggest
that McNeely is irrelevant to the issues in the instant case, but we asked for re-briefing
because the circuit court relied specifically upon Schmerber v. California, 384 U.S. 757,
86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and Schmerber’s material point, as will be
discussed below, was overruled by McNeely.

[¶11] Perhaps it will be helpful at this point to summarize what we have just said about
the status of the law in regard to the necessity for law enforcement officers to obtain a
search warrant before determining an arrestee’s blood-alcohol content via the withdrawal
of a blood sample. The law of Schmerber―that the metabolization of alcohol in the
blood is a per se exigency that creates an exception to the requirement to obtain a search
warrant―has been overruled by the law of McNeely―which holds that the
metabolization of alcohol in the blood is not a per se exigency that creates an exception
to the requirement to obtain a search warrant. McNeely, ___ U.S. at ___, 133 S.Ct. at
1563. The result is that whether a search warrant must be obtained before obtaining the
blood sample depends upon reasonableness under all of the circumstances then attaining.
That law is the same under the federal constitution and the state constitution. That leaves
the question of whether the statutory requirements for obtaining a remotely
communicated warrant are the equivalent of the state constitution’s more stringent
requirement for an affidavit, rather than the federal constitution’s requirement of only an


                                            4
oath or affirmation, and it leaves the question of whether a remotely communicated
search warrant under the statute must meet the requirements of W.R.Cr.P. 41.

[¶12] Inasmuch as states are not permitted to impose less stringent standards than the
U.S. Constitution when protecting individual rights, the same search warrant
requirements, or requirements equivalent thereto, must apply under article 1, section 4 of
the Wyoming Constitution. Saldana v. State, 846 P.2d 604, 632 (Wyo. 1993).
Furthermore, Wyo. Stat. Ann. § 3-6-102(d) cannot stand alone as some sort of “statutory
warrant” that need not meet constitutional dictates.2 That proposition leads to the first
question―are the statutory procedures for obtaining a remotely communicated search
warrant the equivalent of the state constitution’s affidavit requirement? We must ask this
question because, unlike the Fourth Amendment, which requires only that probable cause
for issuance of a warrant be supported by “oath or affirmation,” the Wyoming
Constitution requires that such be supported “by affidavit.”

[¶13] It is in this legal context that we note the nature of the questions before us. We are
not determining whether, as a matter of fact, either the arrest or blood-alcohol content test
was supported by probable cause or was reasonable. We are only determining whether
the procedures dictated by statute are sufficient under the state constitution and the court
rule.

                                    The Affidavit Requirement

[¶14] This Court has repeatedly held that 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 e.g., Crackenberger v. State, 2006 WY 162, ¶ 7,
149 P.3d 465, 470 (Wyo. 2006); O’Boyle v. State, 2005 WY 83, ¶ 24, 117 P.3d 401, 408
(Wyo. 2005); Hall v. State, 911 P.2d 1364, 1368 (Wyo. 1996). Beyond that, we have
stated that an affidavit must be in written form. State v. Peterson, 27 Wyo. 185, 194 P.
342, 345 (1920). That definition is consonant with the generally accepted definition. See
Black’s Law Dictionary 66 (9th ed. 2009). The specific question before us, therefore, is
whether a recorded telephone conversation, which conversation has been or may be
transcribed into written form, satisfies the Wyoming Constitution’s affidavit requirement.
In that regard, we will point out that we have identified the greater protection provided by
the affidavit requirement as being the creation of a permanent written record. Cordova v.
State, 2001 WY 96, ¶ 8, 33 P.3d 142, 147 (Wyo. 2001); Vasquez v. State, 990 P.2d 476,
483 (Wyo. 1999). The overarching question should be whether the statutory remotely
communicated search warrant procedures provide the same protection.

2
  In its Order Denying Motions to Suppress, the circuit court characterized the remotely communicated
search warrant as a “statutory search warrant” that need not comply with the state constitution. We know
of no such creature.


                                                   5
[¶15] It is instructive to consider how other state courts have handled similar issues and
to realize that, because of differences in constitutional language, statutory language, and
court rule language, they are “all over the place.” In Idaho, for instance, where the search
warrant provision of that state’s constitution requires that “no warrant shall issue without
probable cause shown by affidavit,” the Supreme Court of Idaho has held that “the word
‘affidavit’ is broad enough to include the recording of sworn testimony.” State v.
Badger, 525 P.2d 363, 365 (Idaho 1974). Going on, the court stated:

              We find no express requirement of a “written” affidavit and
              our holding does no violence to the purpose or spirit of our
              constitution but merely recognizes modern advances in
              technology.

Id.

[¶16] In an opinion published thirty years after Badger, the Supreme Court of Idaho re-
iterated its holding in Badger, and expanded that opinion to include the conclusion that
the words “[a] warrant shall issue only on an affidavit or affidavits sworn to before a
district judge or magistrate” found in a rule of criminal procedure did not require the
affiant to appear physically before the judge. State v. Bicknell, 91 P.3d 1105, 1107
(Idaho 2004). And just prior to the publication of Bicknell, the same court held that a
magistrate could authorize a law enforcement officer to affix the magistrate’s signature to
the warrant. State v. Fees, 90 P.3d 306, 310 (Idaho 2004). Clearly, the Supreme Court of
Idaho takes an expansive view of all of that state’s search warrant affidavit requirements.

[¶17] In State v. Boyse, 303 P.3d 830, 831 (N.M. 2013), the New Mexico Supreme
Court was faced with the question of whether the request for and approval of a search
warrant by telephone satisfied New Mexico’s state constitution’s requirement that a
search warrant be based upon “a written showing of probable cause.” The court held that
“showing” means “a presentation or statement of facts that can be made through audible
or other sensory means as well as through visual means.” Id. In reaching the conclusion
that telephonic search warrants are not unconstitutional in New Mexico, the court
emphasized the fact that other states’ precedent was difficult to apply because of different
constitutional, statutory, and court rule contexts. Id. at 836-37.

[¶18] It would be unrealistic to find that all states view the issue of remotely
communicated search warrants―telephone warrants―from the same perspective. State
v. Valencia, 459 A.2d 1149 (N.J. 1983), is illustrative of that observation. We will quote
at some length from Valencia because it so thoroughly enunciates the point of view
contrary to that of the Supreme Court of Idaho:




                                             6
       A primary objective of our rules governing search
warrants is to enhance the soundness and integrity of the
judicial decisional process entailed in their issuance. [The
court rule] contemplates that an application for a search
warrant will furnish the issuing judge with credible and
reliable evidence of probable cause.          It clearly and
unequivocally demands that the officer seeking the warrant
“shall appear personally before the [issuing] judge.”
Testimony in the judge’s presence safeguards the individual’s
rights under [the] Fourth Amendment and the State
Constitution. The presence of the applicant, along with the
testimony or affidavits of any witnesses, leads to a more
thorough and deliberate examination of the factual basis for
issuing the warrant. . . .

      ....

       In this case there are several obvious and major
departures from the requirements of the search warrant rules.
The applicant did not appear personally before the issuing
judge. Further, as found on the motion to suppress, the
testimony offered in support of the warrant was not duly
sworn or given under oath. The notes of the issuing judge
were not, arguably, a complete contemporaneous recordation
of the oral application. Finally, the authorization itself was
issued verbally. As a result, the subsequent written warrant
cannot be reliably compared to any prior recordation to
determine its fidelity to the contents of the original
application and oral authorization.

. . . We conclude that since [the court rule] is presently the
sole determinant as to what constitutes a “search warrant,” the
telephonically authorized search must be viewed as a
warrantless search.

       The question next posed is whether, and by what
standards, a “warrantless” search that has been judicially
authorized over the telephone can otherwise be sustained as a
constitutionally reasonable search. To sustain a warrantless
search, the State must ordinarily demonstrate that exigent
circumstances prevented obtaining a written warrant and that
probable cause for the search existed.



                              7
              ....

              . . . We now hold that to sustain a telephone-authorized
              search, the State must still show the existence of probable
              cause to search. In addition, the State must demonstrate to
              the issuing judge that the failure to secure a written warrant is
              necessitated by “exigent circumstances.”

Id. at 1153-54 (citations omitted).

[¶19] In White v. State, 842 So.2d 565, 568-69 (Miss. 2003), the Supreme Court of
Mississippi took a position quite similar to that taken by the New Jersey Supreme Court
in Valencia:

                     While not statutorily provided for in Mississippi,
              telephonic search warrants could possibly act as a buffer
              against warrantless searches which often undermine Fourth
              Amendment protections. In the trial court’s ruling as to the
              reasonableness of the search, the judge stated his belief that
              this Court would prefer “a finding of probable cause by a
              neutral and detached magistrate telephonically” in a situation
              where the only other alternative would be a warrantless
              search. While this may be true, there are other problems with
              this procedure which warrant[] a detailed examination and
              discussion by this Court. If exigent circumstances existed so
              as to preclude obtaining a proper search warrant, as long as
              the officers were in good faith in their request and followed
              other procedural safeguards, evidence found as a result of the
              issuance of a “telephonic search warrant” would be
              admissible at trial.     However, nothing under current
              Mississippi law provides for this type of search warrant.

                     ....

                      It is for this Court as the final interpreter of
              Mississippi’s Constitution to determine the legality of this
              type of search. Penick v. State, 440 So.2d 547, 551 (Miss.
              1983). This Court finds that the search was a warrantless
              search, as Mississippi has yet to recognize the viability of
              telephonic warrants. In Boyd v. State, 206 Miss. 573, 40
              So.2d 303 (1949), we reversed a conviction based on the
              illegality of a warrant. There the officer had signed the
              affidavit at his office, and a judge in another county signed


                                             8
             off on the warrant. The officer never appeared before the
             judge, and thus the warrant was illegally obtained. We note
             that the process of appearing before the judge is important in
             Mississippi. The current status of our law requires the
             affiant’s and the affidavit’s presence before the issuing
             magistrate before a search warrant may properly issue. See
             Miss.Code Ann. § 41-29-157(a)(2) (2001). The form of an
             affidavit for a search warrant also indicates the presence of
             the affiant at issuance. See Miss.Code Ann. § 99-25-15
             (2000). Thus, by requiring a sworn affidavit before issuance
             of a warrant, we insure the affidavit is free from facts which
             might be discovered later and included in a subsequently filed
             affidavit to support the finding of probable cause. Whiteley v.
             Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

[¶20] Two other cases frequently cited in the telephonic search warrant debate―State v.
Myers, 815 P.2d 761 (Wash. 1991), and People v. Taylor, 555 N.E.2d 1218 (Ill. App. Ct.
3d Dist. 1990)―are not, in this Court’s opinion, very helpful to the resolution of the
present issue. In Myers, the equipment used to record the warrant application failed,
leaving the officer and the judge to attempt during the suppression hearing to reconstruct
their telephonic conversation. Myers. 815 P.2d at 764. The Supreme Court of
Washington held that the reconstructed affidavit was insufficient because it prevented
judicial review of the sufficiency of probable cause. Id. at 768. That distortion of the
focal question is not present in our case. Similarly, in Taylor, the court held that, not
only did no state statute authorize telephonic search warrants, the warrant at issue was
technically deficient because of the absence of date, time, and judicial signature. 555
N.E.2d at 1221. These complicating factors also do not impair the direct question
presented in our case.

[¶21] We begin our own discussion of this issue with two general observations. First,
statutes are presumed to be constitutional, and the party challenging the constitutionality
of a statute must overcome this strong presumption. Thomson v. Wyo. In-Stream Flow
Comm., 651 P.2d 778, 789-90 (Wyo. 1982). Second, this Court has repeatedly
recognized the “strong preference under the law for law enforcement officers to obtain a
warrant instead of engaging in a warrantless search.” Holzheuser v. State, 2007 WY 160,
¶ 7, 169 P.3d 68, 74 (Wyo. 2007). See also Page v. State, 2003 WY 23, ¶ 9, 63 P.3d 904,
909 (Wyo. 2003); Cordova, 2001 WY 96, ¶ 11, 33 P.3d at 148; and Davis v. State, 859
P.2d 89, 94 (Wyo. 1993).

[¶22] Interestingly enough, some members of the defense bar, recognizing that the
availability of a remote search warrant procedure in DWUI situations is actually an
additional protection for the defendant, have begun to base motions to suppress upon the



                                            9
failure of law enforcement to obtain a remotely communicated warrant where the
procedure is available.

             If defense lawyers begin moving to suppress evidence
             because the police have not utilized existing technology to
             seek to obtain electronic search warrants, courts will begin
             suppressing evidence. The police will respond to this
             depressing state of affairs (for them, not for the defendants
             and their lawyers) and begin utilizing electronic search
             warrant procedures. This will result in more search warrants
             being issued, thus protecting citizens from the potential harm
             from unwarranted intrusions into private places by police
             officers “engaged in the often competitive enterprise of
             ferreting out crime.” New life will be breathed into the
             Fourth Amendment (and state constitutions’ parallel
             provisions).

John Henry Hingson, III, Telephonic and Electronic Search Warrants: A Fine Tonic for
an Ailing Fourth Amendment--Part One, Champion 38 (September/October 2005). See
also John Henry Hingson, III, Telephonic and Electronic Search Warrants: A Fine Tonic
for an Ailing Fourth Amendment--Part Two, Champion 34 (November 2005) (“[T]he
failure of the police to employ that technology can be used to cement the strength of the
warrant requirement of our beloved Fourth Amendment. Unless bullets are flying, or
blood is flowing, the warrant requirement should reign supreme.”), and H. Morley
Swingle & Lane P. Thomasson, Beam Me Up: Upgrading Search Warrants With
Technology, 69 J. Mo. B. 16 (2013).

[¶23] Although this does not answer the affidavit question, we will note that the United
States Supreme Court has spoken to the need to recognize technological advances in the
search warrant arena:

                    The State’s proposed per se rule also fails to account
             for advances in the 47 years since Schmerber was decided
             that allow for the more expeditious processing of warrant
             applications, particularly in contexts like drunk-driving
             investigations where the evidence offered to establish
             probable cause is simple. The Federal Rules of Criminal
             Procedure were amended in 1977 to permit federal magistrate
             judges to issue a warrant based on sworn testimony
             communicated by telephone. See 91 Stat. 319. As amended,
             the law now allows a federal magistrate judge to consider
             “information communicated by telephone or other reliable
             electronic means.” Fed. Rule Crim. Proc. 4.1. States have


                                           10
               also innovated. Well over a majority of States allow police
               officers or prosecutors to apply for search warrants remotely
               through various means, including telephonic or radio
               communication, electronic communications such as e-mail,
               and video conferencing.[] And in addition to technology-
               based developments, jurisdictions have found other ways to
               streamline the warrant process, such as by using standard-
               form warrant applications for drunk-driving investigations.[]

McNeely, ___ U.S. at ___, 133 S.Ct. at 1561-62.3 While there are states that remain
resistant, the idea of telephonic search warrants is treated as a foregone conclusion at 68
Am. Jur. 2d Searches and Seizures § 188 (2010). The question for us is whether there is
something inherent in the word “affidavit,” as it appears in article 1, section 4 of the
Wyoming Constitution, that prohibits this Court from finding that the procedures outlined
in Wyo. Stat. Ann. § 31-6-102(d) are not the substantive equivalent of a written
document.

[¶24] There are too many cases to cite for the accepted proposition that the
constitutional affidavit requirement provides two protections for a defendant. First, it
guarantees that an impartial judicial officer will determine whether probable cause exists
based upon a review of specific sworn testimony. Second, it ensures that such sworn
testimony will be preserved for potential later review by an appellate court. We can only
conclude that the procedures for a remotely communicated search warrant set forth in
Wyo. Stat. Ann. § 31-6-102(d) provide equal protections. In addition, the availability of
such a procedure increases the likelihood that a search warrant will be obtained in DWUI
arrest situations, and it greatly decreases the amount of time necessary to obtain the
warrant.

[¶25] Historically, an affidavit was a “written” instrument. We do not believe that the
statute or this opinion changes that fact. What has changed over time, because of
technological advances, is the meaning of the word “written.” Recorded sworn
testimony, which if preserved, and from which a transcript may be produced, is as much a
“writing” in today’s world as was a quill-penned line on a piece of parchment two
centuries ago. To conclude otherwise would ignore today’s technological realities, and
would place form over substance. We decline to view the law in so restrictive a fashion.

[¶26] We answer the first certified question in the affirmative. That is, the procedures
set forth in Wyo. Stat. Ann. § 31-6-102(d) do comply with the affidavit requirements of
Wyo. Const. art. 1, § 4.


3
  We omitted the footnotes from the quoted material, one of which lists the State of Wyoming as one of
the states allowing remotely communicated search warrants.


                                                 11
                                     W.R.Cr.P. 41(c)

[¶27] A remotely communicated search warrant issued pursuant to Wyo. Stat. Ann.
§ 31-6-102(d) is distinguishable from other search warrants in that it is limited to a
particular type of evidence gathering in a particular type of crime. By its own language,
it is “valid only for purposes specified in this subsection.” At the same time, there is
nothing about the context in which it is issued that requires it to be treated differently
than any other search warrant in the particulars governed by W.R.Cr.P. 41(c). A close
reading of W.R.Cr.P. 41(c) reveals that it contains no provision that cannot be met in the
issuance of a remotely communicated search warrant under the statute. Paraphrasing the
rule, we note that, in addition to the affidavit requirement, which has been discussed
above, W.R.Cr.P. 41(c) provides that (1) the issuing officer may require the affiant to
appear personally; (2) the warrant must with particularity identify the property or person
to be seized and or searched; (3) a record of the proceedings be made by a court reporter
or recording equipment; (4) the warrant be directed to an officer authorized to enforce or
assist in enforcing state law; (5) the grounds for probable cause for the warrant’s issuance
and the names of the persons supplying affidavits be stated in the warrant; (6) the search
of the named person or place be conducted within a specific period of time not to exceed
ten days; (7) the warrant be served between 6:00 a.m. and 10:00 p.m., unless the issuing
authority provides otherwise in the warrant based upon reasonable cause; and (8) the
warrant shall designate the judicial officer to whom the warrant shall be returned.

[¶28] Wyo. Stat. Ann. § 31-6-102(d) and W.R.Cr.P. 41(c) complement, rather than
contradict, one another. There is no reason that an officer seeking a remotely
communicated search warrant under the statute cannot also comply with the rule. The
same is true of the issuing judicial officer. In fact, there are procedural protections in
W.R.Cr.P. 41(c) that would seem to have particular application in the context of a
telephonically obtained search warrant. For instance, inasmuch as the record is being
made electronically, rather than on paper, it is likely that no transcription thereof will be
available at the time the warrant is served, meaning that the subject of the warrant would
not know the reasons for the judicial officer’s finding, or the scope of the warrant, unless
the probable cause finding is contained within the warrant.

[¶29] We answer the second certified question in the affirmative. That is, a remotely
communicated search warrant issued pursuant to Wyo. Stat. Ann. § 31-6-102(d) must
comply with the provisions of W.R.Cr.P. 41(c).

                                     CONCLUSION

[¶30] The procedures set forth in Wyo. Stat. Ann. § 31-6-102(d) do not violate Wyo.
Const. art. 1, § 4. Search warrants issued pursuant to Wyo. Stat. Ann. § 31-6-102(d)
must meet the requirements of W.R.Cr.P. 41(c).



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