By Joy Ufford
Pinedale Roundup Via Wyoming News Exchange 

Brand inspection case heads back to court


December 3, 2020

PINEDALE – A 2019 court case with five misdemeanor citations for violating a brand inspection law is taking new life as parties prepare for a second round in Circuit Court. 

The misdemeanor case against Rex F. Rammell has traveled to both low and high level courtrooms after a magistrate’s decision brought brand inspection checks to a standstill and outside judges were called to weigh in. 

On June 27, 2019, Rammell was driving his truck and livestock trailer into Sublette County from Sweetwater County when a local deputy stopped and asked him for brand inspections on five horses. Rammell contested the citations in Sublette County Circuit Court, requesting to have the deputy’s report “suppressed” as evidence – the case’s only evidence. 

In December 2019, Circuit Court Magistrate Clay Kainer, assigned by Judge Curt Haws, ruled that the deputy’s stop and resulting report was not admissible as evidence – throwing a curve to deputies enforcing the brand inspection law. 

Kainer cited the law was “in essence, a theft detection and prevention statute.” 

“Based on the foregoing, the Court finds that the State has failed to meet the burden imposed upon it by the U.S. Constitution to demonstrate that the warrantless seizure of [Rammell’s] vehicle was not unreasonable,” he wrote. “Accordingly, any evidence obtained after Deputy Huffman ‘activated’ his lights was obtained illegally and shall not be admissible at trial.” 

Kainer’s decision effectively shut down Sublette deputies’ brand inspection stops that Rammell argues are unconstitutional.

Sublette County Deputy Attorney Stan Cannon appealed the order in two courts – first by asking Judge Haws to review Kainer’s order and next by petitioning 9th District Judge Marv Tyler for a higher court’s opinion. Haws accepted Kainer’s order and passed the case to another judge who later retired. Judge Tyler transferred the petition to a Sheridan judge. 

It turned out that Kainer was never officially and properly appointed as a magistrate until county commissioners approved it after his order. That also led to Kainer’s order being reversed and remanded. 

4th District Judge John Fenn ruled that Kainer used an incorrect legal analysis and remanded the case – back to the point of the previous evidence suppression hearing and after applying “the three-prong Burger analysis.” 

Judge Haws transferred the case to 3rd Circuit Court Judge Gregory S. Corpening in Kemmerer. 

The Wyoming Attorney General’s Office has continually expressed interest to follow the case as it involves the constitutionality – or not – of a law created by Wyoming legislators. Last summer, Judge Corpening, Rammell and the Sublette County Attorney’s Office set up a schedule to redo the evidence suppression hearing and carry on – perhaps to trial.

The Burger analysis resulted from an out-of-state appeal of the state’s authority to search a commercial salvage yard. The decision applied three tests: There must be “substantial government interest” for the stop, that “the warrantless inspections are necessary” and that the state’s statutory inspection program provides an adequate substitution for a warrant.” 

As the person moving the case forward, Rammell now has the burden of proving the state law is unconstitutional. He filed his legal brief in Circuit Court before his Nov. 13 deadline – the original 2019 brief plus a new document outlining his arguments against the brand inspection law. Rammell includes his criticism of the Burger analysis, which allows “a ‘special need’ exemption” for regulatory or administrative stops such as to check brand inspections. 

The prosecution failed to provide evidence that there was any “special need” to stop him and “failed ridiculously” by saying the “special need” is to prevent disease spread or account for strays, Rammell said. 

Requiring brand inspections for every county-to-county transfer does not prevent disease – Wyoming Livestock Board regulations do that, Rammell argued. 

“[Cannon] did not present any evidence that proves the state has a substantial government interest in requiring random warrantless brand inspections to move from county to county.” 

There is little case precedent for this kind of stop and search, both sides have acknowledged. 

“Only four industries in 45 years fit in the category of regulated industries and livestock is not one of them,” Rammell wrote. “… One of our most cherished rights is the right to be left alone. That is why out of 50 states, only Wyoming and Montana have a law they say gives them the authority to make unreasonable searches and seizures.” 

Rammell listed his “statements of issues,” questioning if the state law “provides an adequate substitute for a warrant.” He asked why prosecution did not protest Kainer’s appearance in court until after the magistrate “issued an adverse order.” He also asked if Judge Haws’ ratification of Kainer’s order reinforced it as a done deal. 

“It is interesting that [the Sublette County Attorney’s Office] and Wyoming Attorney General’s Office have come up with every reason they can think of to justify subversion of our constitutions,” he wrote. “…The constitutionality of the Wyoming statute in question was not ruled on in the magistrate’s order nor was there a declaratory motion to challenge its constitutionality.” 

Thus, the law’s constitutionality was not initially raised by the prosecution and should not be considered in the case now, where the burden of proof is shifted from the state to him, Rammell said.

“The issue must be properly addressed by the legislature of Wyoming who erroneously authored it in 1931.” 

In closing, Rammell referred to his original brief – “Although the state is currently a party to this matter, the Wyoming Supreme Court has repeatedly recognized the Attorney General, being the chief legal officer of the state, has a duty to protect the interests and wellbeing of the people in declaratory judgment actions where statutory constitutional questions are in issue.” 

Senior Assistant Attorney General Joshua Eames submitted a response on Nov. 20, again asking to be involved in the case going forward “to address the constitutionality of Wyoming Statute 20-18-103(a).” 

On Nov. 24, Eames responded to Rammell’s brief, stating, “This court should deny his motion and find [the law] is constitutional.”

“… The statute is necessary to meet the state’s special need in enforcing brand inspection statutes, and the brand inspection AGO Continued from 1A statutes provide reasonable notice to those transporting livestock that they are subject to greater regulation than the general public,” Eames wrote. 

The Wyoming Supreme Court has recognized “three tiers” of law enforcement interactions, from a “consensual encounter” to “investigatory detention” to “arrest,” and “a traffic stop is an investigatory detention,” he wrote. 

“Although neither the Wyoming Supreme Court nor the U.S. Supreme Court have addressed the situation presented by a brand inspection stop, numerous courts have considered similar stops by game wardens to enforce game and fish statutes,” Eames wrote. “The court should apply the U.S. Supreme Court precedent of ‘special needs’ searches under the Fourth Amendment.” 

The Sublette County Attorney’s Office has a Nov. 30 deadline to respond to Rammell’s brief. If Rammell chooses to rebut that response, it is due in Circuit Court by Dec. 9. The Circuit Court hearing itself – which will be held online by Sublette County Circuit Court – is scheduled for Friday, Dec. 18, with Judge Corpening presiding. The case could continue to trial, which Rammell requested in 2019.


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