Summary 2009 WY 67

Summary of Decision issued May 21, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Feeney v. State

Citation: 2009 WY 67

Docket Number: S-08-0087

Appeal from the District Court of Laramie County, Honorable Peter G. Arnold, Judge

Representing Appellant (Defendant): Dion J. Custis of Dion J. Custis, PC, Cheyenne, Wyoming.

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

After conditionally pleading guilty to a controlled substance offense, the Appellant challenged the district court’s denial of his motion to suppress evidence discovered during a search of the vehicle he was driving. He maintained that he was detained in violation of his constitutional rights.

Issue: Whether the appellant’s right to be free from unreasonable searches and seizures under the Fourth Amendment of the United States Constitution was violated so as to require suppression of evidence and dismissal of charges.

Holdings: The appellant conceded that the traffic stop was justified and that the trooper’s initial questioning inside the patrol car was proper and did not exceed the scope of the stop. However, the appellant claims that he did not consent to further questioning after he exited the trooper’s vehicle and that the trooper did not have reasonable suspicion to further detain him once the appellant received his warning ticket.

The appellant raised his claim under both the Fourth Amendment to the United States Constitution and Article 1 § 4 of the Wyoming Constitution. When a litigant endeavors to interpret the Wyoming Constitution independent of the Federal Constitution, the litigant “must provide a precise, analytically sound approach when advancing” such a claim. Six factors must be analyzed when a separate state constitutional claim has been raised: 1) the textual language; 2) the differences in the text; 3) constitutional history; 4) preexisting state law; 5) structural differences; and 6) matters of particular state or local concern. The appellant’s attempt to present an independent state constitutional claim falls short. Although he mentions the above-cited factors, he fails to analyze any of them, or even generally describe how Article 1 § 4 might provide him greater protection than the Fourth Amendment.

There are three tiers of interaction between police and citizens for Fourth Amendment purposes. The least intrusive contact between a citizen and police is a consensual encounter. A consensual encounter is not a seizure and does not implicate Fourth Amendment protections. The second tier is the investigatory or Terry stop, named after the seminal case Terry v. Ohio, 392 U.S. 1. An investigatory detention is a seizure under the Fourth Amendment. However, because of its limited nature, a law enforcement officer is only required to show “the presence of specific and articulable facts and rational inferences which give rise to a reasonable suspicion that a person has committed or may be committing a crime” in order to justify the detention. The most intrusive encounter between police and a citizen is an arrest. An arrest “‘requires justification by probable cause to believe that a person has committed or is committing a crime.

A traffic stop is more analogous to an investigative detention than a custodial arrest; therefore the reasonableness of such a stop is analyzed under the two-part test articulated in Terry v. Ohio: 1) whether the initial stop was justified; and 2) whether the officer’s actions during the detention were “reasonably related in scope to the circumstances that justified the interference in the first instance.

During a routine traffic stop, a law enforcement officer may request a driver’s license, proof of insurance and vehicle registration, run a computer check, and issue a citation. Generally, the driver must be allowed to proceed on his way without further delay once the officer determines the driver has a valid driver’s license and is entitled to operate the vehicle. In the absence of consent, an officer may expand the investigative detention beyond the purpose of the initial stop only if there exists an objectively reasonable and articulable suspicion that criminal activity has occurred or is occurring. The existence of objectively reasonable suspicion of criminal activity is determined by evaluating the totality of the circumstances. The “whole picture” must be considered, common sense and ordinary human experience are to be employed, and deference is to be accorded a law enforcement officer’s ability to distinguish between innocent and suspicious actions. Each factor adding up to reasonable suspicion need not be examined individually, they are evaluated to see how convincingly they fit together into a cohesive, convincing picture of illegal conduct.

In this case, the district court’s order denying the motion to suppress listed the factors it found provided the trooper reasonable suspicion to further detain the appellant. It appeared to the court that there were numerous factors present that led the trooper to conclude that he had reasonable suspicion that some illicit activity was occurring. These factors included: 1) the overwhelming smell of dryer sheets emanating from the car with no dryer sheets or laundry in sight; 2) there was only one small bag visible in the back seat; 3) the appellant exhibited extreme nervousness and this nervousness did not subside even after the appellant was informed he would only be receiving a warning; 4) the appellant’s travel plans were inconsistent with the rental agreement; and, 5) upon being questioned about his travel plans, the appellant initially claimed he had called the rental company to inform them of his intention to return the car in Massachusetts but then stated he never had any intention to return the car in California.

Fourth Amendment precedent is clear that the scent of a potential masking agent is one factor which may be considered in a reasonable suspicion analysis. The strong odor of dryer sheets, especially in the case of rental cars, which typically do not need strong air fresheners, is a factor that may be properly considered in a determination of reasonable suspicion. The district court properly considered this factor in its reasonable suspicion analysis.

Generic nervousness is of little significance in establishing reasonable suspicion because the average citizen is usually nervous when stopped by law enforcement for a routine traffic violation. It is generally accepted that nervousness upon the initial confrontation is normal and the telling information is whether the citizen calmed after the initial few minutes of the encounter. The trooper testified that during the short conversation that took place at the driver’s side window of the appellant’s vehicle, the appellant was acting very nervous. He appeared to be trying to avoid conversing. The trooper testified that, based on his experience, most individuals make eye contact with him and their attention is focused on him during a traffic stop, as most individuals want to know the reason for the stop, what they did wrong, and whether the trooper is going to give them a ticket. The trooper also testified that he found it unusual that the appellant’s nervousness continued even after the trooper informed him that he was only going to write him a warning for speeding. The trooper also noted the appellant’s continued nervous behavior while the trooper reviewed the rental agreement. The trooper testified that in his experience most motorists will engage him in conversation as he looks over a rental agreement, asking him what he is looking for or offering to help the trooper by providing additional information. Finally, even after the trooper told the appellant he was only issuing him a warning and that he was free to go, the trooper described the appellant’s continued nervousness. Thus, it was proper for the district court to consider the appellant’s continuing nervousness as a factor in the reasonable suspicion determination.

Unusual or inconsistent travel plans are a proper consideration in a reasonable suspicion analysis. During their initial conversation, the appellant told the trooper that he was returning home to Massachusetts from California where he had been visiting friends. The trooper became suspicious of this statement after seeing that the terms of the rental agreement required the appellant to return the vehicle to California. Further, the trooper testified that he was concerned that although the rental agreement required the vehicle to be returned to the same location where it was rented, the appellant’s statements indicated that it was actually one-way rental. The trooper testified that in his experience, one-way rental vehicles are often used to transport illegal drugs. Finally, although the appellant represented to the trooper that he had called the rental company to resolve the discrepancies in the rental agreement, when the trooper contacted the rental company, they had no record of any contact by the appellant. The district court properly considered this factor in its reasonable suspicion analysis.

These behaviors and observations when considered in isolation, could be interpreted as innocent. However, when considered together, they justify a reasonable suspicion of illegal activity. Looking at the whole picture, the district court’s determination is affirmed inasmuch as the overwhelming smell of dryer sheets, the appellant’s extreme and continuing nervousness, and the appellant’s behaviors related to the irregularities in his travel plans provided the trooper with reasonable suspicion to detain the appellant until the K-9 unit arrived.

Affirmed.

C.J. Voigt delivered the opinion for the court.

Link: http://tinyurl.com/lv8r65 .

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