Summary 2008 WY 85

Summary of Decision issued July 21, 2008

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Case Name: Kunselman v. State

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=452054

Citation: 2008 WY 85

Docket Number: S-07-0167

Appeal from the District Court of Laramie County, Honorable Edward L. Grant, Judge

Representing Appellant (Defendant): Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Paul S. Rehurek, Senior Assistant Attorney General

Date of Decision: July 21, 2008

Facts: Appellant entered a conditional plea of no contest to a charge of felony possession of methamphetamine. She reserved the right to appeal the district court's denial of her motion to suppress the methamphetamine evidence seized during a search of her purse following a traffic stop.

Issues: The estimate of the speed of Appellant's pickup truck on a Wyoming highway did not meet the requirements of probable cause or reasonable suspicion necessary for search, seizure or investigatory detention and any evidence obtained as a result of such search or seizure should be suppressed.

Holdings: A guilty plea or nolo contendere plea waives appellate review of all non-jurisdictional claims. Constitutional challenges to pretrial proceedings, including claims of unlawfully obtained evidence, as in this case, fall into the category of non-jurisdictional claims which do not survive a valid guilty plea or nolo contendere plea. The only exception to the waiver rule can be found in W.R.Cr.P. 11(a)(2), which allows a defendant to plead guilty while reserving the right to seek review on appeal of any specified pretrial motion. However, a conditional plea of guilty or nolo contendere, while providing a mechanism for appellate review, does not provide carte blanche permission for an appellant to present any and all arguments on appeal. Instead, an appellant may only argue those issues which were clearly brought to the attention of the district court. In her motion to suppress and her argument at the suppression hearing, Appellant focused on the scope and duration of the stop and the subsequent search of her purse. She did not argue that there was insufficient cause to perform a stop for speeding nor did she contest in any manner the reasonableness of the initial traffic stop. In fact, in her motion to suppress, Appellant acknowledged as a factual matter that was stopped for exceeding the posted speed limit. Under well-established precedent, Appellant's conditional plea of no contest preserved only those issues raised in her suppression motion. Appellant did not contest the legality of the initial traffic stop in the district court and, accordingly, waived her right to make that argument on appeal.

The challenged questioning occurred after Appellant's detention on the traffic violation had terminated. The propriety of any further interaction at that juncture depends on Appellant's consent or the presence of reasonable suspicion of criminal activity. Whether Appellant voluntarily consented to the additional questioning is a question of fact which must be determined in light of the totality of the circumstances. Some of the factors which may be considered in assessing whether the consent was voluntary include: the way the request was phrased by the trooper, whether Appellant knew she could refuse the request, and the presence of other coercive factors. The record discloses that: (1) the entire traffic stop was very brief, with the initial traffic detention lasting about ten minutes; (2) Appellant remained in her vehicle while the trooper prepared the traffic citations; (3) she was not questioned concerning matters unrelated to the motor vehicle infractions; (4) Appellant knew she was free to go at the time the request was made; (5) the trooper's conduct throughout the encounter was professional and neither threatening nor otherwise overbearing; and (6) Appellant's consent to further questioning was unhesitant and immediate. Under the totality of the circumstances, Appellant's consent was voluntary. A reasonable person in Appellant's position would have felt free to refuse the trooper's request and proceed on her way. Consequently, constitutional boundaries were not transgressed in this instance.

In response to questioning, Appellant admitted having marijuana. She then produced a small flowered purse and stated, "It's in there." By handing the purse to the officer Wright, Appellant gave implicit consent for the trooper to look inside. Furthermore, Appellant's admission that the purse contained marijuana provided probable cause for the trooper to search it. Thus, the trooper's search of Appellant's purse was constitutionally reasonable under the circumstances.

Appellant waived her right to contest the validity of the initial traffic stop when she failed to present that issue to the district court. Appellant voluntarily consented to further questioning after the traffic stop was completed, and the subsequent search of her purse was proper. The judgment and sentence of the district court is affirmed.

J. Golden delivered the opinion for the court.