Pena v. State

In Pena v. State, 792 P.2d 1352 (Wyo. 1990), one of the issues raised was whether the trial court erred in allowing evidence that parole agents had seized without a search warrant. Pena, 792 P.2d at 1354. Pena was on parole for a previous drug conviction and had signed a parole agreement providing he was to abstain from drug use and to submit to warrantless searches of his residence. Id. at 1357. Acting on an anonymous tip that Pena possessed cocaine, four parole officers went to Pena's residence and told him they were going to search it. Pena said, "Okay. Sure. Come on in." Id. at 1356. During a search of the residence, one of the parole officers found a packet of cocaine in the floor vent. Id. After his arrest for several drug crimes, Pena moved to suppress the cocaine, arguing the search was conducted without a warrant and without his consent. Id. Coupling Pena's invitation, "Okay. Sure. Come on in," with Pena's having signed the parole agreement, the trial court ruled Pena had consented to the search. Id. at 1357. On appeal of that ruling, the Court reviewed both the consent issue and the issue whether a warrantless search is subject to a Fourth Amendment reasonableness requirement. It is true that in our "reasonableness requirement" discussion we said we adopted the view of the Utah Supreme Court in State v. Velasquez, 672 P.2d 1254, 1260 (Utah 1983), that before a parole officer searches a parolee he or she must have a reasonable suspicion that the parolee has committed a parole violation or crime, and that the search must be reasonably related to the parole officer's duty. Pena, 792 P.2d at 1357-58. However, the Court stated that we did not need to resolve the reasonableness of the parole officers' search of Pena's residence because we held that Pena's statement," Okay. Sure. Come on in," evinced his voluntary consent to the search of his residence. Id. at 1358. Because the affirmance in Pena was on the sole ground of consent, the discussion of the "reasonableness requirement" was purely dictum.