The Two Fourth Amendments in Wyoming

“Well do you mind if I look around the car a little bit?
Well my glove compartment is locked, so is the trunk in the back
And I know my rights so you goin’ need a warrant for that
Aren’t you sharp as a tack? You some type of lawyer or something?
Somebody important or something?
Well, I ain’t passed the bar, but I know a little bit
Enough that you won’t illegally search my shit
Well we’ll see how smart you are when the K-9 come”

– “99 Problems” by JAY-Z

By reading this blog, you ain’t (necessarily) gonna pass the bar or be a type of lawyer or something, but you may gain some of the same confidence that Hov has when it comes to police interactions–whether you’re a law enforcement official or the young buck stopped on the side of the road. In this post, I’m going to break a secret to you that is hidden in plain sight.

A lot of people are generally aware that the Fourth Amendment affords them with certain protections against police or law enforcement “searches.” (“Search” being a deep, complicated term that will be addressed elsewhere.) But what they (and many attorneys) do not appreciate is that there is not just one constitutional protection against law enforcement searches in Wyoming. There are two.

There is the Fourth Amendment to the United States Constitution. It provides that:

“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.”

Through decisions from the U.S. Supreme Court, this Fourth Amendment has become Swiss cheese and it only really limits a law enforcement search in unique circumstances. However, in Wyoming, the Wyoming Constitution provides a second, stronger layer of protection against law enforcement searches.

Now, you may be asking yourself: How is it that the Wyoming Constitution ends up being stronger than the U.S. Constitution? The answer is nuanced, but, in the simplest terms, where the U.S. Constitution affords people rights or protections, it merely sets the constitutional floor — the bare minimum — that States must give to their people. The States are free to grant their people more rights or broader/more muscular protections — just not fewer or weaker protections.

The Wyoming Constitution provides in Article 1, Section 4 that:

“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.”

I have emphasized the extra clause in this Wyoming-only provision that is absent from the U.S. Constitution’s Fourth Amendment. This extra clause means that to secure a warrant in Wyoming, a law enforcement official or agent must provide a sworn affidavit attesting under penalty of perjury to the presence or facts supporting probable cause before the warrant may issue. Under the U.S. Constitution, all that is requires is an “oath or affirmation,” which need not be in writing, made under penalty of perjury, or formally submitted to the judicial officer before the warrant issues.

But the extra protections under Wyoming’s Article 1, Section 4 do not stop there.

Courts often say that the touchstone of the U.S. Constitution’s Fourth Amendment is “reasonableness.” What they mean is the U.S. Constitution permits bad or improper law enforcement searches so long as an average officer might have made the same mistakes, errors, or oversights under the circumstances.

On the contrary, Wyoming’s Article 1, Section 4 imposes greater demands on officer conduct. In particular, during vehicle searches and searches stemming from a traffic stop, “the search [must] be reasonable under all the circumstances.”  O’Boyle v. State, 117 P.3d 401, 409 (Wyo. 2005) (discussing Vasquez v. State, 990 P.2d 476, 484 (Wyo. 1999)). This means that courts can look into the intent of the actual officer involved in the stop in certain occasions and reject a search predicated upon deceptive or false motives. For example, unlike the U.S. Constitution, the Wyoming Constitution prohibits “the use of traffic violations as a pretext to conduct narcotics investigations.”  Id. at 411; Damato v. State, 64 P.3d 700, 705 (Wyo. 2003).

To this end, the Wyoming’s Article 1, Section 4 specifically prohibits law enforcement from extending a traffic stop beyond the time required to complete the ministerial part of writing and issuing a traffic citation in order to explore a hunch that the detained vehicle contains contraband, drugs, weapons, etc.

This post is not exhaustive, but illustrative. There are some protections afforded by both the U.S. and Wyoming Constitutions. But, there are a few extra protections provided only by the Wyoming Constitution that may render an otherwise legal search into an unconstitutional intrusion. Bottom line — do not forget that there are always two sets of constitutional rights at play in any state-level criminal investigation.

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