Readers of this blog may know that police can enter your house to “secure evidence” of a crime inside the house before getting a warrant. However, this logic is the exception to the rule; not the rule itself. Today, let’s visit a more ordinary case.
On June 16, 2022, the Wyoming Supreme Court issued a decision in Hawken v. State, 2022 WY 77, where it revisited the constitutionality of law enforcement entering a home without a warrant. You can read the full opinion here:
In Hawken, the Court considered whether a law enforcement officer unconstitutionally entered the defendant’s home when he entered the home without a warrant or consent.
I. The Facts
In that case, Wyoming Highway Patrol Trooper Josh Undeberg received a report of a vehicle crashed in a ditch near Sundance, Wyoming, and the driver appeared intoxicated. Trooper Undeberg arrived on scene, but found no one in or near the crashed vehicle. Trooper Undeberg did detect “a strong odor of alcohol.”
Trooper Undeberg ran the plates on the vehicle and found that the vehicle belonged to the defendant, Nancy Hawken, who lived a few miles away. So, Trooper Undeberg decided to pay Ms. Hawken a visit.
When Trooper Undeberg arrived at Ms. Hawken’s home, he observed “tire tracks in the fresh snow” and figured that Ms. Hawken had received a ride home. Trooper Undeberg parked his vehicle and encountered a man standing outside the home, Tyler Hawken. Mr. Hawken self-identified as Ms. Hawken’s husband.
Trooper Undeberg asked to speak with Ms. Hawken to which Mr. Hawken replied that she was not home. Trooper Undeberg challenged Mr. Hawken’s statement with a lie by saying something to the effect of he talked to someone who dropped Ms. Hawken at the home earlier. (Yes – law enforcement in America can lie to you.) Mr. Hawken asked Trooper Undeberg what was going on. Trooper Undeberg told Mr. Hawken about the crash. Mr. Hawken explained he knew about the accident and was about to go looking for Ms. Hawken’s vehicle.
Trooper Undeberg, at this point, repeated that he wanted to speak with Ms. Hawken. Mr. Hawken stated he would go get her.
Mr. Hawken walked toward the house and entered the home’s mudroom. Mr. Hawken did not invite Trooper Undeberg into the home or ask Trooper Undeberg to follow Mr. Hawken. Trooper Undeberg did not request permission to follow Mr. Hawken into the home. Still, Trooper Undeberg followed Mr. Hawken into the house.
In the mudroom, Mr. Hawken stated, “wait right here” to Trooper Undeberg. Trooper Undeberg remained in the mudroom as he overheard a conversation between Mr. Hawken and a woman who was later identified as Ms. Hawken. When the conversation became “heated,” Trooper Undeberg called Mr. Hawken back to the mudroom. Mr. Hawken returned with Ms. Hawken trailing behind him.
Trooper Undeberg asked Ms. Hawken to follow him outside where he questioned her. He ultimately arrested Ms. Hawken for DUI and later administered a breathalyzer test at the detention center, which yielded a 0.260% BAC.
Ms. Hawken filed a motion to suppress the BAC on the grounds that Trooper Undeberg unlawfully entered her home such that any evidence obtained subsequently should be suppressed as the fruit of an unlawful search. The district court concluded that Mr. Hawken had given Trooper Undeberg voluntary consent to enter the home and denied the motion.
Ms. Hawken later entered a conditional guilty plea to a felony DUI, reserving the right to appeal the trial court’s denial of her suppression motion. The trial court sentenced Ms. Hawken to five (5) to seven (7) years to be served concurrently to the thirty (30) to sixty (60) months she had to serve on a distinct probation revocation.
II. Opinion – Silence or Acquiescence to Authority Does Not Prove Consent to Search
The Wyoming Supreme Court carefully analyzed whether Trooper Undeberg had received consent from Mr. Hawken to enter the home and reasoned he had not. The Court’s conclusion stemmed primarily from the fact that Trooper Undeberg did not ask for permission to enter and Mr. Hawken did not take any affirmative actions “to indicate he was inviting Trooper Undeberg into the house.” Hawken, 2022 WY 77, ¶ 26.
The Court started from the bedrock constitutional principle that the “chief evil” against which the words of the Fourth Amendment to the United States Constitution are directed is “physical entry of the home” by government agents. See id. at ¶ 15 (quoting United States v. United States Dist. Court for E. Dist. of Mich., S. Div., 407 U.S. 297, 313 (1972)). “Entry into a home, no matter how limited, constitutes a search.” Id.
The Court repeated the general rule governing warrantless police investigative conduct–that warrantless entry into a home are per se unreasonable unless justified by probable cause and established exceptions. See id. at ¶ 16 (quoting Fuller v. State, 2021 WY 36, ¶ 9, 481 P.3d 1131, 1134 (Wyo. 2021)). It pointed out that consent–even implied consent–is a recognized exception, but noted that consent must be clear and comprehensible to a reasonable law enforcement officer. Id. at ¶ 17 (following United States v. Lopez-Carillo, 536 F. App’x 762, 768 (10th Cir. 2013)). It further reiterated that the State bears the burden of proving consent by a preponderance of the evidence. Id. at ¶ 18.
It noted that “the failure to object to, or mere acquiescence in, an officer’s entry into the home is not in itself clear evidence of implied consent.” Id. at ¶ 19. The Court ultimately concluded that Mr. Hawken did not give affirmative consent nor did Trooper Undeberg ask for such consent to enter the home (i.e., to search). “At most, Mr. Hawken acquiesced in Trooper Undeberg following him to and into his home, and the Fourth Amendment does not permit an inference of consent from acquiescence.” Id. at ¶ 29. Furthermore, the Court concluded that law enforcement cannot “reasonably infer consent to enter a premises based on conduct that occurs after the entry.” Id. at ¶ 30. “[T]he law requires that consent be obtained before entering a protected area. [N]othing that occurred after [Trooper Undeberg’s] entry is relevant to [the] inquiry.” Id.
The Court reversed the trial court’s denial of the motion to suppress and remanded for further proceedings to develop a record about whether Trooper Undeberg’s unconstitutional search demanded suppression of the BAC results under the exclusionary rule.
III. Bottom Line
The constitutionality of law enforcement’s consent-based searches depends on what happened before the search (entry into home) and whether the resident/owner/occupier of the home gave some kind of clear consent to enter the home. This is a pretty ordinary constitutional outcome. But still important for Wyoming citizens to understand that they may withhold consent from law enforcement when law enforcement tries to enter their homes.