Patterson v. State

ROONEY, Chief Justice.

Appellants appeal from judgments and sentences rendered on a jury verdict finding appellant Patterson guilty of possession of a controlled substance (marijuana) with intent to deliver the same, and finding appellant Spoon guilty of delivery of a controlled substance (marijuana), both in violation of §§ 35-7-1014(d)(x) and 35-7-1031(a)(ii), W.S.1977.

Appellants present three issues on appeal:

*2551. Did the court err in refusing to excuse a juror for cause on motions of the prosecution and of both appellants?

2. Did the court err in denying appellants’ motions to suppress evidence?

3. Did the court err in denying appellant Patterson’s motion for judgment of acquittal?

Inasmuch as we find error, under the particular facts of this case, in the trial court’s refusal to excuse a juror for cause, we reverse and remand for a new trial. Although not dispositive of this case, we find no error with reference to the other two issues, and we address these issues only because they are bound to arise in connection with the new trial.

“ * ⅜ ⅝ jg pr0per for the supreme court to decide incidental questions which are bound to arise again in the case. * * * ” Rocky Mountain Oil and Gas Association v. State, Wyo., 645 P.2d 1163, 1167 (1982).

CHALLENGE FOR CAUSE

The simple deciding factor in this case is the existence of bias or prejudice on the part of juror Taylor as reflected in his answers to questions addressed to him on voir dire. Section 7-11-105, W.S.1977, provides in pertinent part:

“(a) The following shall be good cause for challenge to any person called as a juror on any indictment:
* ⅜ * S}5 ⅜ ⅝
“(ii) That he * ⅜ f is biased or prejudiced for or against the accused.”

Juror Taylor’s answers in this respect were contradictory and ambiguous. To determine evidence of bias or prejudice, the answers must be examined as a whole without undue emphasis on any one portion of them. The following answers do indicate such bias or prejudice:

1.On inquiry by the State:
“I would like to state my views about use of marijuana. I don’t think the laws are strict enough, I think the court system is far too lenient in their sentencing.
I don’t feel that I could be impartial in my verdict.”
“No I don’t think [I could be impartial] if it comes down to whether it was close to whether he was innocent or not guilty, I think I would lean to vote guilty.”
“ * * * if I feel it is clearly innocent, I would vote innocent, but if I think a slight shadow of doubt I think I would vote guilty.”
“I don’t think so.” (That I ought to serve on this jury panel).
“I think so.” (That it would be in the interests of justice that I be excused because of my strongly held feelings).
2. On inquiry by appellant Patterson: “ * * ⅜ a little bit of evidence that said innocent and a little more said guilty, I would vote guilty.”
“I don’t think so.” (That I could be a fair and impartial juror).
“No.” (I would not want a juror in my frame of mind sitting as a juror if I were the defendant).
3. On inquiry by appellant Spoon:
“I would have a tendency not to believe them.” (If they used drugs).
“Yes, I would.” (Intrinsically favor the non-drug users even if the judge would give me certain rules of law to apply to certain factual situations that will be presented).
“It might.” (Such favoring of non-drug users might interfere with my ability to apply the law as given to me in this case and with my ability to be fair and impartial).

The following indicates the lack of such bias and prejudice:

1. After the State’s inquiry and after challenge by the State, in which both appellants joined:

“THE COURT: Mr. Taylor, the critical issue is whether you could decide this case based upon the evidence and instructions upon the law here. Could you base your decision on that?
“MR. TAYLOR: I could listen to the evidence, and based on the evidence, but I think to where I vote not guilty or *256innocent or not guilty, I think if there was the slightest question in my mind, that he was guilty, I think I would vote guilty.
“THE COURT: I am not asking you that. I am asking you if you could follow the law as given to you in the instructions?
“MR. TAYLOR: Yes, could do that.
“THE COURT: And you would base your decision based upon that and the evidence here in the case?
“MR. TAYLOR: Yes.”

2. During inquiry by appellant Patterson:

Answered “no” to question as to whether or not he had any problem with the “premise of law” requiring the burden “upon the prosecution to prove the defendant guilty beyond a reasonable doubt.”

3. After challenge by appellant Patterson:

“THE COURT: Mr. Taylor, you earlier indicated you would decide the case based solely upon the law and the evidence here in court, what would be unfair or lacking in impartiality in that case?
“MR. TAYLOR: Well, I already have strong feelings about marijuana, and I think that has to, you know, have something to do with the way I think, make decisions.
“THE COURT: Well, it is still your position though you would decide the case based solely upon the evidence?
“MR. TAYLOR: Upon the facts, yes, sir.”

The contradictions are obvious. The juror will decide the case on a preponderance of the evidence rather than on the lack of reasonable doubt, but he will decide the case under the instructions which will direct to the contrary. The last quotation, supra, reflects a change by the juror in the court’s question relative to reliance solely on the evidence. His answer expanded “evidence” to “facts.” Perhaps he meant facts presented in the case, but perhaps he meant more. The juror steadfastly maintained his prejudice against those involved in marijuana, even to the extent of asserting that such would make him partial and a juror whom he would not want to decide a case in which he was a defendant. Yet He agreed to act only on the evidence and according to the instructions.

Ordinarily, we defer to the action of the trial court in connection with jury selection. Parks v. State, Wyo., 600 P.2d 1053 (1979); Loy v. State, 26 Wyo. 381, 185 P. 796 (1919); Reynolds v. United States, 98 U.S. 145, 8 Otto 145, 25 L.Ed. 244 (1879). In this instance, however, the bias or prejudice of juror Taylor was definitely evidenced. There is no indication that he realized that the instructions would require proof beyond a reasonable doubt by the prosecution for conviction instead of his avowed intention to apply the standard of preponderance of the evidence. His stated position left nothing to speculation. It established the fact that he would use a preponderance of the evidence standard, and the court’s questions relative to following instructions were not sufficiently specific to establish a disposition on the part of the juror to do other than his stated intention. The error is manifest. Although it is not controlling, it is of note that all parties, including the prosecution, challenged juror Taylor for cause.

Nor in this instance was the denial of the challenge for cause a harmless error. Appellants objected to the ruling, did not accept the jury because of it, exhausted their peremptory challenges, and designated the juror against whom they would have exercised the peremptory challenge necessarily used against juror Taylor. Parks v. State, supra.

The court’s refusal to grant the challenge of juror Taylor for cause in effect reduced the allowable peremptory challenges of the parties. Rule 25(b), W.R.Cr.P., provides in pertinent part:

“(b) Peremptory challenges. — In every case, * * * the state shall be entitled to the aggregate number of peremptory challenges to which the defendant or defendants are entitled. * * * If the of*257fense charged is punishable by imprisonment for more than one (1) year, each defendant shall be entitled to 8 peremptory challenges. * * * ”

Appellants were “entitled to” sixteen peremptory challenges over and above their unlimited number of challenges for cause. They were improperly forced to use a peremptory challenge in lieu of a challenge for cause.

MOTION TO SUPPRESS EVIDENCE

Appellants’ motions to suppress certain physical evidence seized at the time of their arrest were denied, and their objections at the trial to the introduction of such evidence were overruled. The record reflects the following:

On May 6, 1983, officers of the Casper Police Department initiated an undercover drug operation. Officer Lee Strope was wired with a hidden transmitter, and he proceeded to the Wonder Bar in Casper, where an informant had indicated he could meet some men who would sell him marijuana. Officer Burgen followed Strope in one car, while Officers Bachert and Anderson followed in another, listening to broadcasts over the transmitter which was wired to Strope.

Officer Strope contacted John Eshelman and Ken Brooks at the Wonder Bar. They were unable to sell him any marijuana, but they knew a dealer who might have some. They called the dealer, but he was unavailable. Anxious to help Officer Strope, Brooks and Eshelman accompanied him in his car to the home of Fred Daniels, a man whom they believed would have some marijuana. Daniels did not have any marijuana either, but he knew a dealer he felt could supply them with marijuana, so Daniels joined Eshelman, Brooks and Strope in Strope’s car.

Followed by Officers Burgen, Bachert and Anderson, Strope drove to the Homax Oil parking lot at Daniels’ direction. Ho-max Oil was located next to a trailer park. Strope gave Daniels a hundred dollar bill, the serial number of which the officers had previously recorded.

Daniels left the car and walked up a drive into the trailer park. Officers Bur-gen, Bachert and Anderson had positioned their cars so that they could observe Daniels as he walked up the drive and into a trailer at 429 Pleasant Drive. Daniels was in the trailer for a short time, after which he was observed leaving the trailer. As Daniels returned to the car, Officer Strope could see the bulge in Daniels’ pocket, which contained marijuana purchased inside the trailer. Daniels handed Officer Strope the marijuana he had purchased in the trailer and thirty dollars change which he had received when he used the hundred dollar bill to purchase the marijuana in the trailer. At this point, Officers Burgen, Bachert and Anderson moved in and arrested Daniels, Brooks and Eshelman. Daniels was searched; the pre-recorded hundred dollar bill was not on him.

While observing Daniels enter the trailer, Officer Burgen noticed that there were many ears parked around the trailer. One of the cars was blue, with an antenna on the back. While the officers were in the process of arresting Daniels, Brooks and Eshelman, the blue ear which had been parked at the trailer drove by. It contained three people. While they were arresting Daniels, Daniels informed the officers that while he was in the trailer he heard the occupants discussing a cocaine deal that was about to occur.

Given the traffic leaving the trailer, the imminent cocaine deal, the possibility that the occupants of the blue car had seen the arrest, and the fact that the pre-recorded hundred dollar bill was in the trailer, the officers decided that immediate action was necessary. Officers Anderson, Bachert, Burgen and Strope approached the trailer. The door was .ajar, so Officer Anderson pushed it open and the police entered, announcing their presence. Six people were in the trailer, sitting in the living room. Marijuana was immediately seen by the officers, marijuana odor was in the air, and a lit marijuana cigarette was present next to a woman seated beside Charles Spoon. *258The officers then asked everyone to produce identification, and the wallets were checked for the presence of hundred dollar bills. Charles Spoon’s wallet was the only one which contained a hundred dollar bill. His was kept and the others were returned. Charles Spoon was seen trying to hide a baggie of marijuana which was at his feet. The officers made a quick, cursory sweep of the trailer to determine if anyone else was present. When nobody else was found, Officers Burgen and Anderson left to procure a search warrant. Officers Bac-hert and Strope stayed at the trailer. Upon return with a warrant, Officer Anderson announced that he had a warrant and was going to read everybody their Miranda rights. Before he could do so, Scott Patterson blurted out that “all of the marijuana in my house is mine, and I take full responsibility for it.” Patterson and Spoon were then arrested and the trailer was thoroughly searched. The search uncovered, among other things, several bags of marijuana seeds, one large bag of marijuana, a small bag of marijuana, an extremely delicate scale, baggies, roaches, a bong and other paraphernalia and trays of marijuana.

Appellants argue that this physical evidence shoüld have been suppressed for the reason that the warrantless entry into the trailer and the arrests were violative of defendants’ constitutional rights and that the search warrant was therefore defective.

The general rule prohibits search of a person’s home without a warrant. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

“The basic underpinning of any search and seizure question, is that warrantless searches are assumed to be unreasonable per se, Tobin v. State, 36 Wyo. 368, 255 P. 788 (1927); State v. George, 32 Wyo. 223, 231 P. 683 (1924), and the burden is on the State to justify any search conducted in the absence of a warrant by convincing this court that one of the well-delineated exceptions to the rule is applicable. * * * ” (Footnote omitted.) Stamper v. State, Wyo., 662 P.2d 82, 86 (1983).

See Ortega v. State, Wyo., 669 P.2d 935 (1983); and Jessee v. State, Wyo., 640 P.2d 56, reh. denied 643 P.2d 681 (1982).

By denying the motion in limine, the trial court found that the State had met its burden to establish “well-delineated exceptions” to the rule that a warrantless search is improper, to-wit, exigent circumstances and good faith. We uphold the ruling of the trial court on a motion to suppress when specific findings are not made “if it is supportable by any reasonable view of the evidence.” Neilson v. State, Wyo., 599 P.2d 1326, 1330 (1979), cert. denied 444 U.S. 1079, 100 S.Ct. 1031, 62 L.Ed.2d 763 (1980).

The existence of exigent circumstances is dependent upon all of the facts or circumstances viewed in their entirety. If such facts reflect the danger of destruction of valuable evidence, exigent circumstances are present. Jessee v. State, supra; Ortega v. State, supra. In this instance, the officers knew that an occupant, or occupants, of the trailer was, or were, in the business of selling and delivering marijuana, that he, or they, had possession of a hundred dollar bill which would evidence and confirm a recent sale and delivery of marijuana, that the number of automobiles near the trailer could indicate the presence of several people in the trailer, that an automobile with passengers came from the trailer and passed them when they were taking Daniels, Brooks and Eshelmaninto custody, that these passengers had the potential to advise the occupants of the trailer of the officers’ presence and activities, and that such knowledge could result in the destruction of the hundred dollar bill and of contraband before a warrant could be obtained. Taken as a whole, the circumstances were exigent. There was a distinct danger of destruction of valuable evidence. Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973); Jessee v. State, supra. The trial court correctly found that there was probable cause for the warrantless search. The denial of the motion in limine was proper. It is noted *259that evidence was not seized until after the issuance of a search warrant. The police actions prior thereto were for the sole purpose of securing the premises to avoid destruction of evidence.

Appellants argue that the search and seizure were in violation of the Fourth Amendment to the Constitution of the United States.1 Subsequent to the briefs and arguments in this case, the United States Supreme Court specifically ruled that the exclusionary rule was non -constitutional in origin and exists only to deter unlawful police conduct. United States v. Leon, — U.S. -, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). It held that the exclusionary rule was not a necessary corollary of the Fourth Amendment but is instead a judicially created remedy designed to protect Fourth Amendment rights generally through its deterrent effect; that in gauging its deterrent effect, the exclusion question “must be resolved by weighing the costs and benefits; ” that the exclusionary rule exacts “substantial social costs; ” that the truth-finding functions of judges and juries are impeded by the exclusionary rule and some guilty defendants may go free or receive reduced sentences due to plea bargains; that indiscriminate application of the exclusionary rule may generate disrespect for the administration of justice; and that the rule should be applied only where its remedial objectives are best served. Id. 104 S.Ct. at 3412, 3413.

«* * ⅜ particularly when law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system. * * * ” United States v. Leon, supra, 104 S.Ct. at 3413.

In a companion case to United States v. Leon, the United States Supreme Court again applied the good faith exception to the exclusionary rule in finding that the police action was reasonable. Massachusetts v. Sheppard, — U.S. -, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984).

Both cases involved a search made pursuant to a defective warrant, but the rationale and conclusions are particularly applicable to this case. The officers had a reasonable purpose in securing the premises to prevent destruction of evidence. They did not have an opportunity to obtain a search warrant before the potential for such destruction became manifest. They acted in objective good faith, and if there was any transgression it was minor. If they had waited for a search warrant and if the evidence were not destroyed, the result would have been the same.

Segura v. United States, — U.S. -, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), is a third companion case to United States v. Leon and Massachusetts v. Sheppard, supra. In it, the Court held that even if an initial entry were illegal, the evidence should not be excluded if the connection between it and the discovery and seizure of it is “ ‘so attenuated as to dissipate the taint.’ ” It is not excluded, for example, “if police had an ‘independent source’ for discovery of the evidence.” Id. 104 S.Ct. at 3386. Defendant had been arrested in the lobby of his apartment house after the arresting agents had received information from another person that he had purchased cocaine from defendant. They took defendant to his apartment and made a security check of it, observing drug paraphernalia as they did so. Due to the “administrative delay,” a search warrant was not issued until some nineteen hours after the entry. The agents waited in the apartment and searched it after the warrant was obtained. The district court granted the motion to suppress all of the seized evidence. The court of appeals reversed the district court as to evidence discovered after issuance of *260the search warrant. The Supreme Court agreed.

The exigent circumstances occasioned by the potential for destruction of evidence coupled with the good faith actions of the officers bring this case definitely within the exceptions of the exclusionary rule.

DENIAL OF MOTION FOR JUDGMENT OF ACQUITTAL

Appellant Patterson argues that there was insufficient evidence of his intent to deliver the controlled substance found in his possession to allow the charge to go to the jury, intent to deliver (not actual delivery) being one of the elements of the charge. He recognizes that we view the evidence most favorable to the State together with all logical and reasonable inferences to be drawn therefrom in reviewing the trial court’s ruling on denial of a motion for judgment of acquittal. Chavez v. State, Wyo., 601 P.2d 166 (1979); Russell v. State, Wyo., 583 P.2d 690 (1978). If there was substantial evidence to sustain the material elements of the offense charged, the motion was properly denied. Russell v. State, supra.

The following substantial evidence was sufficient to allow a jury to reasonably conclude the intent on the part of appellant Patterson to deliver controlled substances: The physical evidence found in Patterson’s trailer, consisting of marijuana cigarettes, narcotics, paraphernalia, baggies similar to that brought from the trailer by Daniels, a delicate scale, zip-lock and other bags containing marijuana and marijuana seeds, a tin canister containing marijuana seeds, a white envelope marked “Sinsemilla, $120 an ounce,” another envelope marked “Co-lumbian Gold ‘gold’ $60 oz.,” rolling papers and a fine screen; 'testimony that Daniels knew where he could buy marijuana and the fact that he went straight to Patterson’s trailer to do so; and Daniels' testimony that he had purchased marijuana from Patterson several times before.

The trial court properly overruled Patterson’s motions.

Reversed and remanded for a new trial.

. Amendment IV to the Constitution of the United States provides:

"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.”