Summary 2009 WY 148

Summary of Decision issued December 9, 2009

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

Case Name: Sutton v. State

Citation: 2009 WY 148

Docket Number: S-09-0072

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

Representing Appellant (Defendant): Diane Lozano, State Public Defender, PDP; Tina Kerin, Appellate Counsel; Eric M. Alden, 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; Leda M. Pojman, Senior Assistant Attorney General.

Date of Decision: December 9, 2009

After conditionally pleading guilty to a controlled substance offense, Appellant challenges the district court's denial of his motion to suppress evidence discovered during a search of the vehicle he was driving. He maintains that he was unconstitutionally detained for a canine drug sniff.

Issues: Whether the continued detention of Appellant after he refused to consent to a search was supported by reasonable suspicion.

Holdings: There are three tiers of interaction between police and citizens under the Fourth Amendment-consensual encounter, investigatory detention and arrest. A traffic stop is analogous to a second tier investigatory detention. An investigative detention must be temporary, lasting no longer than necessary to effectuate the purpose of the stop. The officer may expand the investigative detention beyond the scope of the initial stop only if the traveler consents to the expanded detention or if there exists an objectively reasonable suspicion that criminal activity has occurred or is occurring. In determining whether an officer had a reasonable suspicion under the Fourth Amendment, the court looks to the totality of the circumstances and how those circumstances developed during the officer's encounter with the occupant of the vehicle. In considering the totality of the circumstances, common sense and ordinary human experience are to be employed, and deference is to be acco rded a law enforcement officer's ability to distinguish between innocent and suspicious actions.

In the present action, the officer found a car rental agreement that contradicted and was inconsistent with the Appellant's stated travel plans; the fact that the rental agreement indicated that Appellant had only rented the car for one day and it should have been returned the day before the stop was a legitimate factor in the reasonable suspicion analysis.

Additionally, Appellant's explanation of his trip was strange. Appellant told the trooper that he had begun his trip in San Francisco, where he had been staying for approximately one month, and he was traveling to Denver. He had, however, passed the exit to Denver by several miles. Appellant stated that his girlfriend was living and attending school in Denver and he had made a last minute decision to travel to Denver to attend the birth of his child, although he was already one day past the due date. He also stated that he did not know how long he would stay in Denver. Further, when the trooper attempted to clarify whether Appellant's Illinois driver's license correctly stated a Chicago address since he had come from California, Appellant explained that the Illinois address was correct and he had been in California for about a month because he was "taking a break" from Chicago and wanted to see if he would like to live there. However, later in the stop, Appellant stated that he had just started a new job in Illinois before he left to go to California, but he was allowed to take a month off because business was slow. The trooper was certainly entitled to rely on the unusual nature of this story in making his reasonable suspicion determination.

The presence of the cooking bags on the front passenger seat was also suspicious. The trooper, who was specially trained in drug interdiction, testified that he was aware that such bags are used by drug couriers to package marijuana because they mask the smell and do not crush the controlled substance. The presence of a potential odor masking agent is an appropriate factor for consideration in the reasonable suspicion analysis.

The trooper also testified that he considered Appellant's unusual level of nervousness as a factor in his reasonable suspicion analysis. Generic nervousness has little weight in establishing reasonable suspicion because a citizen may be expected to be somewhat nervous when stopped by law enforcement for a traffic violation. However, extreme and continued nervousness is entitled to more weight. Moreover, factors such as acting evasive or breaking eye contact when asked certain questions can also form the basis for reasonable suspicion. There is nothing in the record to contradict the trooper's testimony that Appellant was unusually nervous throughout their encounter and reacted suspiciously when asked whether he was transporting marijuana. Consequently, Appellant's nervousness is a factor that may be given some weight in the reasonable suspicion analysis.

These factors, the past due rental agreement, the unusual travel plans, the oven cooking bags and the unusual nervousness, when viewed individually could be seen as innocuous. Nevertheless, when they are all considered together and in relation to one another, they justify the trooper's suspicion that Appellant was engaging in illegal activities. Appellant's constitutional rights were not violated when the trooper detained him for the canine drug sniff.

Affirmed.

J. Kite delivered the opinion for the court.

Link to the case: http://bit.ly/6h3VIf

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