                IN THE SUPREME COURT, STATE OF WYOMING

                                         2015 WY 5

                                                            OCTOBER TERM, A.D. 2014

                                                                    January 8, 2015

THE STATE OF WYOMING,

Petitioner,

v.                                                   S-14-0079

DUSTIN DEEN,

Respondent.

                                   Original Proceeding
                                Petition for Writ of Review
                            District Court of Campbell County
                           The Honorable John R. Perry, Judge

Representing Petitioner:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jenny L. Craig, Senior Assistant Attorney General; and Nathan
      Henkes, Special Assistant Attorney General. Argument by Mr. Henkes.

Representing Respondent:
      Office of the State Public Defender: Diane Lozano, State Public Defender; and
      Tina N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.

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

[¶1] Dustin Deen was arrested and charged with delivery of and possession with intent
to deliver a controlled substance. He filed a motion to suppress the evidence seized
during a search of his home, claiming the search was invalid because the warrant was
served after 10 p.m. in violation of W.R.Cr.P. 41(c). The district court agreed and
granted the motion. The State filed a petition for writ of review or certiorari in this
Court, claiming the district court erred in granting the motion to suppress without first
determining whether the violation of Rule 41 constituted prejudicial error. We granted
the petition. We conclude that the district court erred in granting the suppression order.

                                                 ISSUE

[¶2]    The issue for our determination is:

                Whether the district court properly suppressed evidence
                seized pursuant to a search warrant served after 10 p.m. in
                violation of Rule 41(c) as the product of an unreasonable
                search under the Fourth Amendment.1

                                                 FACTS

[¶3] During a traffic stop at approximately 4:15 on the afternoon of July 19, 2013, a
Campbell County Sheriff’s deputy searched the vehicle and found 44.7 grams of
marijuana. In an interview later that day after his arrest, the driver told investigator Troy
Hipsag that he had purchased the marijuana from an individual known to him as Dustin at
a house on Peaceful Valley Drive. He said he had purchased marijuana from Dustin
thirty to forty times since February, 2013.

[¶4] Investigator Hipsag went to Peaceful Valley Drive and located the house described
to him in the interview. He called the county attorney and at approximately 7:05 p.m.
met with him to prepare an affidavit and search warrant. When he left the county
attorney’s office with the documents at approximately 8:35 p.m., Investigator Hipsag
tried unsuccessfully to reach the on-call judge and a magistrate. He finally reached a
circuit court judge and was able to meet with her at approximately 9:20 p.m. She
reviewed the affidavit and signed the warrant. Investigator Hipsag then went to the

1
   In both the district court and this Court, Mr. Deen also asserted the search was unreasonable under Art.
1 § 4 of the Wyoming Constitution. In his one-paragraph argument in district court, however, Mr. Deen
did not assert, much less establish, that the Wyoming Constitution provides greater protection than the
federal constitution under these circumstances. “[W]hen a defendant fails to assert a cogent independent
state constitutional based argument before the district court, a defendant fails to preserve such issues for
appellate review.” Flood v. State, 2007 WY 167, ¶ 12, 169 P.3d 538, 543 (Wyo. 2007), quoting Lindsay
v. State, 2005 WY 34, ¶ ¶ 16-17, 108 P.3d 852, 856 (Wyo. 2005).


                                                      1
sheriff’s office to organize a team to execute the warrant. They left the sheriff’s office at
approximately 10:02. On route to execute the search warrant, the officers’ access to
Peaceful Valley Drive was blocked by a passing train. They arrived at the house
identified in the search warrant at 10:18 p.m. They searched the home and found
marijuana, drug paraphernalia, and cash in small bills in Mr. Deen’s bedroom.

[¶5] Mr. Deen was arrested and charged with felony counts of delivery of a controlled
substance and possession of a controlled substance with intent to deliver in violation of
Wyo. Stat. Ann. § 35-7-1031(a)(ii). Prior to trial, Mr. Deen filed a motion to suppress the
evidence seized in the search. He argued that the search was unlawful and in violation of
his constitutional rights because the search warrant was served after 10 p.m. contrary to
the plain language of the warrant allowing the search between the hours of 6 a.m. and 10
p.m. The State responded that the violation was procedural in nature, did not involve a
violation of a fundamental right and should be treated as harmless error. After a hearing,
the district court held that the search was executed outside the time parameters of the
warrant and entered an order granting the motion to suppress the evidence seized in the
search. The State filed its petition for writ in this Court, which the Court granted.

                               STANDARD OF REVIEW

[¶6] When reviewing a decision on a motion to suppress evidence we defer to the district
court’s findings on factual issues unless they are clearly erroneous. State v. Holohan, 2012
WY 23, ¶ 8, 270 P.3d 693, 696 (Wyo. 2012), citing Nava v. State, 2010 WY 46, ¶ 7, 228
P.3d 1311, 1313 (Wyo. 2010). The constitutionality of a particular search and seizure,
however, is a question of law that we review de novo. Id.

                                      DISCUSSION

[¶7] The State asserts that the district court erred when it concluded that the search was
unconstitutional and the evidence must be suppressed based upon a procedural violation
of W.R.Cr.P. 41(c). The State contends that a procedural violation of the rule is not the
same as a constitutional violation and, by itself, does not establish that the search was
unreasonable under the Fourth Amendment. The State argues further that the district
court should have applied the “prejudicial error” test to determine whether suppression of
the evidence was appropriate. The State asserts that Mr. Deen did not show that he was
prejudiced as a result of the procedural violation of the rule; therefore, the violation did
not make the search unconstitutional.

[¶8]   W.R.Cr.P. 41 addresses search and seizure. Subsection (c) of the rule states:

                     (c) Issuance and contents of warrant. A warrant
              shall issue only on affidavit sworn to before a person
              authorized by law to administer oaths and establishing the


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             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 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. [Underline added.]

[¶9] Pursuant to the plain language of the Rule, search warrants are to be served
between 6 a.m. and 10 p.m. unless, upon a showing of reasonable cause, the warrant
provides otherwise. The warrant issued in Mr. Deen’s case provided that it was to be
served between 6 a.m. and 10 p.m. Investigator Hipsag did not request a warrant
providing for service at a different time. It is undisputed that service of the warrant at
Mr. Deen’s residence at just after 10:18 p.m. was in violation of Rule 41(c). The
question is whether that violation required suppression of the evidence seized.

[¶10] In Murray v. State, 855 P.2d 350, 355 (Wyo. 1993), this Court considered whether
law enforcement’s failure to inform the defendant at the time of his arrest of the charges
against him as required by W.R.Cr.P. 4(c)(3) should lead to exclusion of his post-arrest
statements. The version of the rule in effect at the time provided as follows:

             (c) Execution or service; and return.
             ....
                     (3) Manner.--The warrant shall be executed by the
             arrest of the defendant. The officer need not have the warrant
             in his possession at the time of the arrest, but upon request he
             shall show the warrant to the defendant as soon as possible.


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             If the officer does not have the warrant in his possession at
             the time of the arrest, he shall then inform the defendant of
             the offense charged and of the fact that a warrant has been
             issued. [Underline added.]

[¶11] Contrary to this provision, law enforcement did not inform the defendant that he
was under arrest for second degree murder or that a warrant had been issued until after he
had been arrested, taken to jail and made incriminating statements to an investigator part
way through an interview. The Court said:

             One method for deterring future violations would be to
             exclude any evidence which had been obtained in violation of
             the rule. However, we are not convinced that every violation
             of the rule warrants exclusion of the evidence. The difficulty
             in arriving at an appropriate remedy is that the rules, by their
             nature, “blend constitutional limitations on police activity,
             procedural limitations designed to avoid constitutional
             violations, and purely administrative ‘housekeeping’
             regulations.” United States v. Searp, 586 F.2d 1117, 1123-24
             (6th Cir.1978), cert. denied, 440 U.S. 921, 99 S.Ct. 1247, 59
             L.Ed.2d 474 (1979). The remedies should vary accordingly.
             When the violation compromises a substantial or
             constitutional right, the exclusionary rule is an appropriate
             remedy, especially when the right is related to Fourth
             Amendment protections. See Wayne R. LaFave & Jerold H.
             Israel, Criminal Procedure § 3.1(e) at 146 (1984). But, when
             the violated rule is merely ministerial or technical, the
             exclusionary rule becomes a remedy out of proportion to the
             benefit to be gained. The problem is in ascertaining whether
             the violation implicates a substantive right or merely a
             procedure designed to protect that right.

Murray, 835 P.2d at 355.

[¶12] In Murray, the Court held that the violation of Rule 4(c)(3) “did not implicate a
sufficiently substantive right to warrant exclusion of [the defendant’s] statements.” 855
P.2d at 355. In reaching that result, the Court relied on United States v. Shelton, 742 F.
Supp. 1491, 1502 (D. Wyo. 1990). There, the court emphasized the difference “between
the right to be free from unnecessary and frightening intrusions by the State into our
homes in the middle of the night and the procedures which have been established to
protect that right.” Id. quoting United States v. Searp, 586 F.2d 1117, 1122 (6th Cir.
1978). It then adopted the following test for determining whether to apply the



                                             4
exclusionary rule in cases involving search warrants issued in violation of Fed.R.Cr.P.
41:

              [V]iolations of Rule 41 alone should not lead to exclusion
              unless (1) there was ‘prejudice’ in the sense that the search
              might not have occurred or would not have been so abrasive
              if the Rule had been followed, or (2) there is evidence of
              intentional and deliberate disregard of a provision in the Rule.

Murray, 855 P.2d at 355, quoting Shelton, 742 F. Supp. at 1502.

[¶13] Applying this test, the Court in Murray looked first to whether the defendant was
prejudiced by the violation. To make that determination, the Court considered the
violation in light of the rights W.R.Cr.P. 4(c)(3) might be designed to protect: 1) to
prevent the unexplained detention of a lawfully arrested defendant, and 2) to safeguard a
defendant’s privilege against self-incrimination. Id., 855 P.2d at 355-356. The Court
concluded the defendant was not prejudiced by law enforcement’s failure to inform him
that he was being charged with second degree murder because his statements during the
arrest showed he knew that he was being arrested for shooting the victim and he made the
incriminating statement knowing that was the reason for his arrest. Considering the
second part of the Shelton test, the Court concluded the facts did not support a finding
that law enforcement deliberately, and in bad faith, violated W.R.Cr.P. 4(c)(3). Id. at
356.

[¶14] Employing this same analysis, we begin by considering whether Mr. Deen was
prejudiced by the Rule 41 violation, looking first at the right the rule was intended to
protect. It is clear from our precedent that it was intended to protect the right of privacy.
“It is axiomatic that ‘a home is entitled to special dignity and special sanctity and that the
proper way to search a home is to obtain a search warrant.’” Johnson v. State, 2010 WY
47, ¶ 7, 228 P.3d 1306, 1310 (Wyo. 2010), quoting Brown v. State, 738 P.2d 1092, 1094
(Wyo. 1987).

              Historically, there has been a strong aversion to nighttime
              searches. Searches of private dwellings executed during the
              nighttime take on additional constitutional significance. The
              fourth amendment protects individual privacy, and entry into
              an occupied dwelling in the middle of the night is clearly a
              greater invasion of privacy than entry executed during the
              daytime. “A knock at the door is more alarming in the middle
              of the night, and it is no less so because the officer knocking
              has a search warrant.”




                                               5
Roose v. State, 759 P.2d 478, 486 (Wyo. 1988), quoting State v. Lindner, 100 Idaho 37,
592 P.2d 852, 857 (1979). Consistent with the Fourth Amendment’s prohibition of
unreasonable searches, Rule 41(c) prohibits nighttime searches of private dwellings
except when reasonable cause is shown for conducting the search after 10 p.m.

[¶15] No showing of reasonable cause was made for searching Mr. Deen’s residence
after 10 p.m. However, when law enforcement entered the residence there was a lamp on
in the living room, a fully clothed female came into the room from the hallway and a
male, also fully clothed, came out of the first bedroom. Mr. Deen and a third male were
also fully clothed. This was not a situation where law enforcement entered a private
dwelling late at night when the occupants were asleep in their beds.

[¶16] Additionally, Investigator Hipsag testified that if he had realized it was after 10
p.m., he probably would have contacted the judge again and tried to obtain an
endorsement allowing execution of the search warrant after 10 p.m. Otherwise, he
testified, he most likely would have secured the residence by posting law enforcement
outside and waited until 6 a.m. to execute the warrant. One way or the other a search was
going to happen in the next eight hours.

[¶17] Given these facts, we conclude that Mr. Deen was not prejudiced by service of the
search warrant at just after 10:18 p.m. The occupants of the residence were awake when
law enforcement arrived. The search was going to occur either that night with a
nighttime endorsement or early the next morning without an endorsement. In the latter
event, a search in compliance with Rule 4(c) at 6 a.m. when the occupants might well
have been asleep would have been more abrasive than the 10:18 search when they were
awake. Under the first part of the test this Court adopted in Murray, 855 P.2d at 355,
there was no prejudice “in the sense that the search might not have occurred or would not
have been so abrasive if the Rule had been followed.”

[¶18] There also was no evidence of intentional and deliberate disregard of Rule 4(c).
Investigator Hipsag testified that at the time of the search he did not realize it was after
10 p.m. He did not discover it was after 10 p.m. until two days later when he looked at
the radio log. He testified that it was “absolutely not” a willful violation of the 10 p.m. to
6 a.m. rule; it was an “oversight.” He also testified that had he realized it was after 10
p.m., he would not have executed the warrant. The district court expressly found credible
the testimony that there was no intent on the part of law enforcement to serve the warrant
outside the warrant’s time limitations. Under the second part of the Murray test, there
was no evidence of an intentional and deliberate disregard of the rule supporting a
determination that Mr. Deen was prejudiced by execution of the search warrant just after
10:18 p.m. Because Mr. Deen was not prejudiced, exclusion of the evidence seized in the
search was not warranted. Murray, 855 P.2d at 355.




                                               6
[¶19] Shelton, 742 F.Supp. 1491, provides further support for this result. A state district
court judge issued warrants stating that they could be executed at any time, day or night.
However, the supporting affidavits did not demonstrate that cause existed for executing
the warrants at night and the issuing judge did not find that cause existed for nighttime
execution. Id. at 1494, 1501-1502. The defendants sought suppression of the evidence
seized in the search based upon the rule violation. The reviewing court concluded that
execution of the warrant at nighttime was in violation of W.R.Cr.P. 41, but that
suppression of the evidence seized in the search was not warranted. Id. at 1503. The
Court stated:

             First, the Court was given no evidence that the defendants
             were prejudiced by the nighttime service. There has been no
             showing that the searches . . . would not have occurred absent
             the prompt nighttime execution of the warrants. In fact, all
             indications are that the two locations would have remained
             secured by the task force agents until the warrants could be
             executed. No evidence was presented suggesting that the
             searches were abrasive in character because of the time at
             which they were executed. No one was in the residence at the
             time.

                    Second, there has been no allegation of either
             intentional or deliberate disregard by the agents for the
             requirements of the Wyoming Statute or rule. Actually, the
             evidence suggested just the opposite, that the agent preparing
             the affidavit may or may not have been aware that nighttime
             execution of warrants always requires an additional showing
             of cause.

Id., 742 F.Supp. 1503.

[¶20] In support of his argument to the contrary, Mr. Deen cites O’Rourke v. City of
Norman, 875 F.2d 1465, 1467 (10th Cir. 1989), in which police officers entered a private
residence at 10 p.m. to execute a state, daytime bench warrant for the arrest of the
homeowners’ emancipated daughter for contempt for failing to appear in small claims
court to show cause for not paying $125.00 owed to her roommate. Although the
homeowners informed the officers that their daughter was not in the home, they searched
every room in the house. Id. at 1467-68. The homeowners filed an action against the city
and police officers alleging that the search was unreasonable and violated 42 U.S.C. §
1983. The Court held that the search of the home at 10 p.m. without a nighttime
endorsement on the warrant was unreasonable under the Fourth Amendment.




                                             7
[¶21] O’Rourke, a case decided a year before Shelton, is distinguishable from Mr.
Deen’s case. It was a civil rights case rather than a criminal case. The warrant resulted
from the daughter’s failure to appear in small claims court in a case involving a $125.00
debt. The home the police officers entered belonged to the daughter’s parents, who were
not the subject of the warrant. The test adopted in Shelton was not addressed or applied,
and the issue was whether the search was reasonable under the Fourth Amendment, not
whether evidence seized in the search should be suppressed. O’Rourke simply did not
involve the exclusionary rule. For these reasons, we find it to be of little precedential
value for purposes of the present case.

[¶22] Mr. Deen also cites cases from other courts that have applied the exclusionary rule
to evidence seized pursuant to search warrants that failed to comply with a statute or rule.
Those courts either have not addressed or have expressly rejected the test this Court
adopted in Murray, 855 P.2d, 355. See also Lobatos v. State, 875 P.2d 716, 723 (Wyo.
1994), noting disagreement with the argument that a violation of Wyo. Stat. Ann. § 35-7-
1045(e), authorizing no-knock search warrants only for controlled substances violations
carrying a penalty of imprisonment for more than one year, would automatically result in
exclusion of the evidence seized. Applying our precedent, the violation of Rule 41(c) did
not warrant suppression of the evidence seized in the search under the circumstances
presented here.

[¶23] We reverse the order suppressing the evidence seized in the search and remand for
further proceedings.




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