Summary 2010 WY 133

Summary of Decision issued October 6, 2010

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Case Name: Dods v. State

Citation: 2010 WY 133

URL: http://tiny.cc/2lwr6

Docket Number: S-09-118

Appeal from the District Court of Albany County, Honorable Jeffrey A. Donnell, Judge

Representing Appellant (Defendant): R. Michael Vang, of Fleener & Vang, Laramie, WY

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


Date of Decision: October 6, 2010

Facts: A state trooper observed Appellant’s minivan passenger side tires cross the white fog line by approximately eight inches for about five seconds/several hundred yards. The trooper initiated a traffic stop. Upon contacting Appellant, the trooper smelled raw marijuana coming from the vehicle. Eventually, a search of the vehicle produced approximately 60 pounds of marijuana. Appellant was charged with one count of possession of marijuana with intent to deliver and one count of felony possession of marijuana. He filed a motion to suppress, which the district court denied, finding that the trooper was authorized to initiate the stop. Appellant subsequently entered a conditional plea of guilty to the charge of possession of marijuana with intent to deliver.

Issues: Whether the arresting officer possessed sufficient facts to stop Appellant and ultimately was there probable cause to search and seize Appellant pursuant to Article 1 Section 4 of the Wyoming Constitution.

Holdings: Under the language of Wyo. Stat. 31-5-209 (2009), when an officer merely observes someone drive a vehicle outside the marked lane, he does not automatically have probable cause to stop that person for a traffic violation. The use of the phrase “as nearly as practicable” in the statute precludes such absolute standards and requires a fact-specific inquiry to assess whether an officer has probable cause to believe that a violation has occurred. However, the facts in this case warrant the conclusion that Appellants’ one-time lane deviation, being extensive both in time and distance, constituted a violation of Wyoming law, and thus warranted the invasion of Appellant’s Fourth Amendment rights.

Taking into account the totality of circumstances, the district court’s decision denying Appellant’s motion to suppress is affirmed.

J. Hill delivered the opinion for the court.

J. Voigt filed a specially concurring opinion. If the trooper saw what he says he saw, then he was justified in making the traffic stop. However, there are a couple of conceptual difficulties. First is the question of whether a traffic stop must be justified by probable cause or by the lower reasonable suspicion standard. Wyoming law is not at all clear in that regard. The cases cited in the majority opinion, as well as the majority opinion itself, do not seem to come down clearly on one side or the other on this question. Of even more concern, however, is the fact that this is one bizarre statute. Apparently, it is not a crime if one violates the statute a little bit, but it is a crime if one violates the statute somewhat more than a little bit. If you stay in your lane, you have not violated the statute, but if you go out of your lane, you may have violated the statute. In the context of the present case, if the appellant’s conduct may or may not have provided the officer with reasonable suspicion and/or probable cause to believe that the appellant violated the statute, how on earth is the appellant supposed to have notice, before the fact, that his conduct will violate the statute? The point is that a traffic code provision, like any criminal law, is supposed to describe the conduct that is prohibited. Additionally, given a particular set of evidentiary facts, judges should not be allowed to declare differently whether that conduct justified a traffic stop. But under the statute in question, that is precisely the case. Both the citizenry and law enforcement require more guidance than that.