Albany County Judge Denies Motion to Suppress Evidence
An Albany County District Court judge has decided that what has been described as a "clerical error" is not enough to keep crucial evidence out of the courtroom.
Judge Jeffrey Donnell filed a decision letter Tuesday in the state's cases against Shawn and Mitzi Welsbacher, ruling that evidence discovered during the execution of a search warrant will not be excluded, as requested by the defense, due to a missing signature on the affidavit filed in support of that search warrant.
The Welsbachers were arrested after Albany County Sheriff's Deputies searched their property Feb. 13 for a handgun that was allegedly used to threaten a group of people from Colorado who reportedly went to the Welsbachers' property to pick up a vehicle.
While looking for the handgun, deputies reportedly saw marijuana in plain view. After getting a second search warrant for the drugs, deputies returned to allegedly find bundles of marijuana weighing a total of 10 pounds along with scales and packaging materials, as well as $1,057 in cash and about a gram of methamphetamine.
As a result, each of the Welsbachers face felony charges of possession of marijuana and possession with intent to deliver. Each of them could face a sentence of up to 15 years in prison and $20,000 in fines if convicted.
Defense attorneys David Korman, representing Shawn Welsbacher, and Candace Pisciotti, who represents Mitzi Welsbacher, each argued that the search warrant was invalid and therefore all evidence obtained as a result of that search should be suppressed due to a missing signature from Magistrate Devon O'Connell on the affidavit in support and request for search warrant.
Korman and Pisciotti asserted that under Rule 41(d) of the Wyoming Rules of Criminal Procedure, the missing signature warranted exclusion of the evidence during the second search because there is no way to tell whether the affidavit "was sworn to before a person authorized by law to administer oaths and establishing the grounds for issuing the warrant."
The defense contended that the warrant, even if the affidavit was executed under oath, is defective if the affidavit lacks the magistrate's signature, known in legal jargon as a 'jurat'.
But Donnell cited a wealth of case law in his ruling that "the failure of the magistrate here to sign the jurat does not, in and of itself, serve to invalidate the affidavit... this is especially true in light of the undisputed fact that the oath was actually administered when the affiant, Deputy Huston, executed the affidavit in the presence of Magistrate O'Connell."
Deputy Huston testified at a May 31 evidentiary hearing that he swore to the affidavit, and that Magistrate O'Connell must have simply missed the signature line in the midst of signing several different documents.
The defense attorneys also argued that the affidavit failed to support a finding of probable cause for the issuance of a warrant, because "important facts were omitted that may have given the magistrate a more complete statement of actual events," despite containing "facts sufficient to support a finding of probable cause."
Donnell ruled that "none of the issues raised by defendants would change the basic facts," saying "the court is simply at a loss to understand how the questions raised by defendants and not already discussed in the affidavit would in any alter the determination of probable cause."
Shawn Welsbacher is set to stand trial Aug. 15-16, and Mitzi Welsbacher's trial is scheduled for Sept. 22-23.