Summary 2006 WY 148

Summary of Decision issued November 17, 2006

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Case Name: Fertig v. State

Citation: 2006 WY 148

Docket Number: 04-56

Appeal from the District Court of Platte County, the Honorable Keith G. Kautz, Judge

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Public Defender.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General (counsel); D. Michael Pauling, Senior Assistant Attorney General.

Issue: Whether a traffic stop initiated by law enforcement after observing a traffic offense violates Article 1, Section 4 of the Wyoming Constitution when the primary purpose of the stop is to conduct a search for evidence of illegal drug activity.

Holding: Wheatland police had received information indicating that illegal drug activities were taking place at a specific residence in Wheatland. Surveillance was established and officers positioned their vehicles along the two most likely routes of travel. The vehicle in question was spotted and the speed was recorded in excess of the 30mph zone. During the course of the stop, an officer observed drug paraphernalia in the glove box. He concluded he had probable cause to search the vehicle for illegal controlled substances. Fertig was arrested for possession of drug paraphernalia and a bag containing methamphetamine was found in his pocket. Fertig appealed from a judgment and conviction following his entry of a conditional guilty plea to one count of felony possession of a controlled substance. The district court denied his motion to suppress evidence obtained after he had been stopped for speeding by Wheatland police.
Standard of Review: The Court will not disturb the factual findings of the district court in determining a motion to suppress unless the findings are clearly erroneous. Whether an unreasonable search or seizure occurred in violation of constitutional rights presents a question of law which the Court reviews de novo.
The Court stated that the sole issue presented was whether a pretextual traffic stop violated Article 1, Section 4 of the Wyoming State Constitution. A pretextual stop occurs when the police use a legal justification to make the stop in order to search a person or place, or to interrogate a person, for an unrelated crime for which they did not have the reasonable suspicion to support a stop. According to Fertig, the underlying motive rendered the stop unconstitutional at its inception. Fertig contended that the Wyoming Constitution affords greater individual protection than the Fourth Amendment of the U.S. Constitution.
The Court’s review requires that searches and seizures be reasonable under all the circumstances. Reasonableness depends upon a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers. In O’Boyle, the Court determined that the principles for assessing the reasonableness of a traffic stop under the Fourth Amendment were not significantly different than those applicable separately under the Wyoming Constitution. In O’Boyle, the focus of the Court’s constitutional analysis involved an evaluation of police conduct after the stop. The Court did not question an officer’s authority to initiate a traffic stop after an observed traffic violation. In Damato, the Court recognized that an officer has probable cause to initiate a traffic stop when the officer personally observes a traffic violation. The Court declined to move away from the reasoning of the Whren decision.
The Court concluded that a traffic stop initiated by a law enforcement officer after personally observing a traffic violation is supported by probable cause and does not violate Article 1, Section 4 of the Wyoming Constitution, regardless of the officer’s primary motivation. The Court’s holding addressed only the initial police action upon which the vehicular stop was predicated. The scope, duration and intensity of the seizure as well as any search made by the police subsequent to the stop remain subject to the strictures of Article 1, Section 4 and judicial review. The nature of the traffic offense remains relevant in determining whether the search and seizure was “reasonable under all the circumstances” as required by Article 1, Section 4.
It was undisputed that the officer personally observed the traffic violation and had probable cause to initiate the traffic stop. The scope, duration and intensity of the seizure after the initial stop were not contested. Therefore, the district court properly denied the motion to suppress.

Affirmed.

J. Burke delivered the opinion of the court.

Link to the case: http://tinyurl.com/thbd2 .