Wyoming Supreme Court: Preventing Door From Slamming in Face of Police Officer Does Not Constitute Implied Consent to Enter Home Without a Warrant
by Anthony W. Accurso
In a case of first impression, the Supreme Court of Wyoming held that the district court erred in ruling an officer had implied consent to enter a suspect’s home without a warrant because the totality of circumstances would not lead a reasonable officer to believe he had consent to enter.
On December 15th, 2020, Wyoming State Highway Patrol Trooper Josh Undeberg discovered a crashed vehicle in a ditch near Sundance, Wyoming. The vehicle’s registration indicated the owner, Nancy Hawken, lived about three miles away.
When he went to her home, he noticed fresh tracks in the snow, which he inferred to be evidence that the driver of the crashed vehicle had received a ride home in another vehicle. Undeberg then encountered Tyler Hawken, Nancy’s husband. There was an exchange between the men during which Tyler originally denied that Nancy was at home but then said “he would go get her” after Undeberg lied about speaking with the person who drove her home.
Undeberg later testified that when Tyler walked toward the house, he followed. Tyler never invited Undeberg inside, nor did Undeberg request permission to enter the home. Nevertheless, Undeberg followed Tyler into the mudroom attached to the residence. Once inside, Tyler instructed Undeberg to “wait right here” and advised “I’ll be right back” as he went farther into the home.
While waiting in the mudroom, Undeberg overheard a tense exchange between Tyler and Nancy. Trying to avoid a physical altercation, he requested that Tyler return to the mudroom. When Tyler returned, he was accompanied by Nancy, who was so drunk that she needed assistance remaining upright.
Upon Undeberg’s request, she accompanied him to his patrol car. After a short conversation, he arrested her for driving under the influence. The result of her breathalyzer test at the detention center indicated a blood alcohol concentration of 0.260%, and the State charged her with DUI.
Nancy filed a motion to suppress all evidence obtained after what she argued to be a warrantless search of her home, but the district court denied the motion, concluding that Tyler had provided implied consent to Undeberg for him to enter the residence. Nancy then entered a conditional plea deal, allowing her to proceed on appeal regarding the suppression motion.
On appeal, the Court stated that the issue is one of first impression for the Wyoming Supreme Court.
The Court observed that the U.S. Supreme Court recently reaffirmed the sanctity of the home as “first among equals” under the Fourth Amendment. See Lange v. California 141 S. Ct. 2011 (2021) (quoting Florida v. Jardines, 569 U.S. 1 (2013)). Similarly, the home occupies an equally important position in the view of Wyoming courts. See Fuller v. State, 481 P.3d 1131 (Wyo. 2021) (“Physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”) (quoting United States v. United States Dist. Court for E. Dist. of Mich., S. Div., 407 U.S. 297 (1972)). The Court explained that entry “into a home, no matter how limited, constitutes a search.” Payton v. New York, 445 U.S. 573 (1980).
The Court then discussed the principle that “Warrantless searches and seizures are per se unreasonable unless they are justified by probable cause and established exceptions.” Pena v. State, 98 P.3d 857 (Wyo. 2004). Consent is a recognized exception to the warrant requirement. Johnson v. State 228 P.3d 1306 (Wyo. 2010); United States v. Guerrero, 472 F.3d 784 (10th Cir. 2007). For consent, the government bears the burden of proof, O’Boyle v. State, 117 P.3d 401 (Wyo. 2005), and must prove: “(1) the officers received either express or implied consent and (2) that consent was freely and voluntarily given.” United States v. Guillen, 995 F.3d 1095 (10th Cir. 2021). Implied consent exists when a reasonable officer would believe a person consented to entry based on the totality of the circumstances. United States v. Castellanos, 518 F.3d 965 (8th Cir. 2008); O’Boyle.
The Wyoming Supreme Court has instructed that a waiver of a constitutional right “must appear by clear and positive testimony … there should be no question from the evidence that consent was ‘really voluntary and with a desire to invite search or further questioning, and not merely to avoid resistance.” Johnson (quoting Seymour v. State, 185 P.3d 671 (Wyo. 2008). Similarly, the U.S. Supreme Court has stated that the government can’t satisfy its burden “by showing no more than acquiescence to a claim of lawful authority.” Bumper v. North Carolina, 391 U.S. 543 (1968).
Turning to the present case, the Court determined that there was no implied consent for Undeberg to enter the residence, not even the mudroom. It based its conclusion on the fact that Undeberg never asked for permission to enter the home, Tyler never invited him inside, and Tyler instructed Undeberg to “wait right here” as the latter entered the mudroom. The Court explained “the law requires that consent be obtained before entering a protected area,” see Mickelson v. State, 906 P.2d 1020 (Wyo. 1995); consent must be obtained prior to entry and cannot be justified or obtained after the fact. See Terry v. Ohio, 392 U.S. 1 (1968). As such, Tyler telling Undeberg to wait in the mudroom as he was already entering it in no way signals consent, according to the Court.
Additionally, contrary to the State’s claim that Tyler held the door to the mudroom open for Undeberg – indicating an invitation to enter, the Court explained that the record doesn’t support that characterization; Tyler simply didn’t let the mudroom door slam in Undeberg’s face. Just because a door is left open or a door isn’t allowed to slam in someone’s face, without other signs of nonverbal consent, doesn’t constitute implied consent, the Court explained. See United States v. Shaibu, 920 F.2d 1423 (9th Cir. 1990). Thus, the Court determined that the State failed to satisfy its burden of proving the consent exception to the warrant requirement applies and ruled that Undeberg’s entry into the Hawken residence violated the Fourth Amendment.
However, the Court determined that the record isn’t sufficiently developed for it to review whether the evidence obtained in violation of Nancy’s Fourth Amendment rights must be suppressed.
Accordingly, the Court reversed the district court’s determination that Undeberg had implied consent and remanded the case to the district court to make findings as to whether the unlawful entry requires suppression of the evidence. See: State v. Hawken, 511 P.3d 176 (Wyo. 2022).
Editor’s note: The Court discusses several implied-consent cases from various jurisdictions. Anyone who is interested in this topic should read the full opinion.
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