Summary 2006 WY 72

Summary of Decision issued June 8, 2006

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Case Name: Custer v. State

Citation: 2006 WY 72

Docket Number: 05-136

Appeals from the District Court of Campbell County, the Honorable John R. Perry, Judge.

Representing Appellant (Defendant): Ken Koski, State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Appellate Counsel; Suzannah B. Gambell, Student Intern. Argument by Ms. Gambell.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; James Michael Causey, Assistant Attorney General; Eric A. Johnson, Director, PAP; Jonathan Haidsiak, Student Director; William Foster, Student Intern; Orintha Karns, Student Intern. Argument by Ms. Karns.

Date of Decision: June 8, 2006.

Issue: Whether the officers’ initial contact with appellant amounted to a “seizure” for purposes of Article 1, Section 4 of the Wyoming Constitution. Whether appellant was “seized” for the purposes of the Fourth Amendment before the officers had developed reasonable suspicion.

Holding: Officers were dispatched on a welfare check to investigate a claim that juveniles had stolen one of their parent’s blood pressure medication. The officers questioned a woman and a man at the address who said they were alone in the residence. Several minutes later, another person, Appellant, exited the residence. The officers noted his exit because they had been told there was no one else in the residence and he was carrying a newspaper which he seemed to be trying to conceal. The officers asked Appellant to exit his van. Appellant “dove” down into the passenger side of the vehicle and reached under the seat. The officer attempted to open the driver side door but could not, so he moved to the passenger side and opened the door and removed Appellant from the vehicle. Subsequently, the officers found what appeared to be marijuana and glass pipes located in work gloves wrapped in the newspaper. Appellant was arrested and charged with one count of possession of less than three ounces of marijuana, a third or subsequent offense, in violation of Wyo. Stat. Ann. § 35-7-1031(c)(i)(C) and one count of possession of less than three grams of methamphetamine, a third or subsequent offense, in violation of Wyo. Stat. Ann § 35-7-1031(c)(i)(C). Appellant filed a motion to suppress the evidence resulting from the seizure. The district court held a hearing on his motion and denied it. Appellant subsequently pled guilty on both counts, but reserved his right to appeal the district court’s denial of his motion. Appellant maintains that his acquiescence to the officers’ questions and requests did not amount to valid consent under Article 1, § 4 of the Wyoming Constitution.
The Court defers to the district court’s findings of fact unless they appear clearly erroneous on a motion to suppress evidence. The Court considers the evidence in the light most favorable to the district court’s decision because it is in the best position to assess the witnesses’ credibility. The constitutionality of a particular search or seizure is a question of law which the Court reviews de novo.
State Constitution: Appellant did not properly raise the state constitutional argument in the district court and consequently, the Court declined to consider his argument on appeal.
Fourth Amendment to the United States Constitution: The Fourth Amendment generally recognizes three levels of interaction between a citizen and the police. The consensual encounter, the investigatory or Terry stop and an arrest. In the instant case, the district court concluded that the encounter was consensual until Appellant reached under the seat. Then the officers had reasonable suspicion under Terry to support an investigative detention. The Court judges whether or not a person has been seized by considering the totality of the circumstances. As recognized in Rice, a seizure does not occur simply when a police officer walks up to a person in a public place and asks a question, provided there is no showing of force or indication the person is restrained from leaving.
The initial encounter between the officers and Appellant was consensual and he was not seized under the Fourth Amendment when he was asked to step out of the vehicle. He was seized when he was pulled out of the passenger side of the vehicle but it was justified by reasonable suspicion.

J. Kite delivered the opinion for the court.

Affirmed.

Link to the case: http://tinyurl.com/qpl7f .