Summary of Decision issued October 23, 2007
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Case Name: Flood v. State
Citation: 2007 WY 167
Docket Number: 06-126 & 06-127
Appeal from the District Court of Laramie County, Honorable Peter Arnold, Judge
Representing Appellant (Defendant): D. Terry Rogers, Interim State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Senior Assistant Appellate Counsel; Kirk Morgan, Assistant Appellate Counsel.
Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric A. Johnson, Faculty Director, PAP; Geoff Gunnerson, Student Director, PAP; Scott L. Mullins, Student Intern, PAP.
Date of Decision: October 23, 2007
Facts: After conditionally pleading guilty to two controlled substances offenses, 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 detained in violation of his constitutional rights.
Issues: Whether the state trooper lacked reasonable suspicion to detain appellant while he searched the car, without consent, and therefore did the district court err in denying appellant’s motion to suppress.
Holdings: Although he cited to the Wyoming Constitution in his motion to suppress, Appellant did not present an independent analysis to the district court to establish that the Wyoming Constitution provided different or more extensive protection than the Fourth Amendment in the context of this case. Moreover, on appeal, Appellant did not present a precise argument indicating that, under the circumstances of this case, the state constitutional guarantee against unreasonable searches and seizures provided more protection than its federal counterpart. A mere reference to a state constitutional provision in the district court is not adequate to justify a review of the issue on appeal.
For Fourth Amendment purposes, three tiers of interaction between police and citizens are recognized. 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 (1968). 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. The case at bar is concerned with a traffic stop, which is analogous to an “investigatory detention.” To determine whether the seizure was appropriate under the Fourth Amendment, the two-step inquiry articulated in Terry will be applied: 1) Was the initial stop justified? and 2) Were the officer's actions during the detention reasonably related in scope to the circumstances that justified the interference in the first instance? In the present case, the focus is on the second step of the process because Appellant concedes the validity of the initial stop for speeding.
An investigative detention must be temporary, lasting no longer than necessary to effectuate the purpose of the stop, and the scope of the detention must be carefully tailored to its underlying justification. The State has the burden of demonstrating that a seizure was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure. 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 or a reasonable suspicion that an occupant of the vehicle is armed.
The initial question raised by Appellant is whether the state trooper’s actions while issuing the tickets exceeded the permissible scope of the traffic stop. Appellant claims the trooper did not have the right to order him and his passenger to sit in his patrol car, separately, while he wrote their respective warning tickets. Appellant and his passenger had both allegedly committed traffic violations–Appellant was speeding and his passenger, who was the owner of the car, did not have it properly insured. Thus, the state trooper was justified, “for the sake of safety,” in asking each of them to step back to his car while he wrote their tickets. Moreover, the United States Supreme Court has unequivocally ruled that an officer may ask the driver and passengers to exit their car during the course of a routine traffic stop without violating the Fourth Amendment.
Appellant also claims that he was illegally detained while his passenger was sitting in the patrol car, presumably because he could not leave his passenger. As a practical matter, all of the occupants of a vehicle are detained during a traffic stop. The United States Supreme Court has not suggested there is a fundamental problem with the minimal intrusion into the other travelers’ rights that occurs when they are required to wait for the officer to finish his business with the driver or other passengers. Appellant directs us to no express authority which would indicate he suffered a constitutional violation by having to wait while the state trooper prepared his passenger’s ticket. Consequently, the trooper did not illegally detain Appellant by asking him or his passenger to sit in the patrol car while he issued their respective tickets.
Appellant next contends that the district court erred by ruling that the trooper had reasonable suspicion to continue to detain him after the original purpose of the traffic stop had concluded so he could conduct the canine sniff of the car. To justify a detention after the initial reason for the stop has concluded, an officer must be able to point to 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 determining whether the officer had reasonable suspicion under the Fourth Amendment, the totality of the circumstances and how those circumstances developed during the officer’s encounter with the occupants of the vehicle are examined. In the present action, the testimony indicated that factors upon which the trooper determined it was reasonable to detain the Appellant were: (1) there was a strong odor of cologne on the Appellant and in the car; (2) the Appellant and the passenger were displaying extreme nervousness at significant times during their conversations; (3) there were inconsistencies between the Appellant’s and the passenger’s stories about their travel plans; and (4) the length of time the Appellant said he spent in Cheyenne was a short period of time considering the distance of travel undertaken.
At the suppression hearing, the state trooper testified that, when he first approached the vehicle, he smelled a strong odor that he recognized as musk cologne or patchouli oil. He also stated that, when he asked Appellant and his passenger to sit in his car, he noticed that each of the men smelled strongly of the cologne. He testified that, in his experience, drug transporters commonly use such products to mask the scent of marijuana. Although we agree that a strong odor of cologne, alone, generally will not give rise to a reasonable suspicion, 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. Thus, it was appropriate for the district court to consider the strong odor of a potential masking agent in its reasonable suspicion analysis.
The second factor the district court relied upon in concluding the trooper had reasonable suspicion to detain Appellant was the “extreme nervousness” displayed by Appellant and his passenger at significant points in his conversation with each of them. The state trooper testified that Appellant’s mannerisms and body language changed when he asked certain questions. In particular, he stated that Appellant would not make eye contact and seemed to have trouble formulating his answers when asked about his travel plans. Appellant’s reaction was significantly different than when they discussed how fast the patrol car would travel, in which case Appellant looked at the trooper and spoke freely. 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. However, exhibiting unusual signs of nervousness is a factor that may be considered in determining whether reasonable suspicion existed. The evidence does support a finding that the men were more nervous than would be expected during a routine traffic stop. Appellant’s reaction and level of nervousness changed based upon the topic being discussed. He would not make eye contact and had difficulty answering when the topic of discussion was his travel plans but he was comfortable when they discussed the performance of the patrol car. His passenger’ behavior while in the patrol car was also telling. He fidgeted throughout the whole encounter with the state trooper and, unlike most innocent people, he did not calm down after a few minutes with the trooper. The trooper described his behavior as “a strong sign of nervousness.” While the men’s nervousness, alone, may not have been enough to establish reasonable suspicion, it was appropriate for the district court to consider their reactions to the trooper and his questions as one factor in its evaluation.
The third factor referenced by the district court in concluding the trooper had reasonable suspicion to detain Appellant after the traffic stop had concluded was the discrepancy between Appellant’s and his passenger’s accounts of their trip. The state trooper testified Appellant stated he and the passengers were returning to home after they had visited one of his family members in Cheyenne. Appellant stated they had traveled from to Cheyenne earlier in the day. The trooper testified that the passenger’s story was different. the passenger stated that they had driven to Cheyenne the previous afternoon, spent the night, and were returning home when they were stopped. The video tape of the stop confirms the trooper’s testimony and also establishes that the trooper’s questions about their travel plans did not amount to an improper interrogation.
Inconsistencies in the descriptions of travel plans given by the occupants of a vehicle stopped for a traffic violation may be a factor in determining whether a law enforcement officer had reasonable suspicion to further detain the travelers. Consequently, the inconsistency between Appellant’s and his passenger’s stories about their trip was a legitimate factor in establishing reasonable suspicion.
Although not relied upon by the district court in its decision denying Appellant’s suppression motion, the record reveals another inconsistency in the men’s stories. The state trooper asked about the men’s relationship to one another and to the boy riding in the backseat. Appellant stated that he and his passenger were good friends but were not related, and the boy was his nephew. His passenger also stated that he was not related to Appellant, but he stated that the boy was his grandson. The trooper testified that he found it odd that both men denied they were related to one another, but each claimed a familial relationship to the boy. On cross examination, defense counsel asked the trooper if he had considered that the boy could be Appellant’s brother’s son, making him Appellant’s nephew, and His passenger could be the father of Appellant’s brother’s wife, which would make him the boy’s grandfather. Under those circumstances, the men would both be related to the boy but they would not truly be related to one another. The trooper indicated that, even if that were true, he thought it was odd that the men would not claim some sort of familial association to one another.
The final factor identified by the district court was the short duration of Appellant’s visit with his family in light of the relatively long roundtrip distance traveled. The brevity of a trip, which is described in some cases as a short “turnaround” trip, is a proper consideration in a reasonable suspicion analysis. The district court was, therefore, justified in considering that factor in determining whether the trooper had reasonable suspicion to extend his detention of the travelers in this case.
Each of the factors identified by the district court, when considered in isolation, could be interpreted as innocent behavior. The totality of the circumstances must be examined to determine whether the factors, considered together, justify a reasonable suspicion of illegal activity. Although the evidence is not overwhelming, the factors, including: the strong odor of a potential masking agent; the nervousness of the travelers; the inconsistency in the travelers’ accounts of their trip and their relationship to one another and the boy; and the short turnaround time suggested nefarious, rather than innocent, conduct. Therefore, the totality of the circumstances established a reasonable suspicion to support further detention of Appellant.
The district court did not err by denying Appellant’s motion to suppress. Affirmed.
J. Kite delivered the opinion for the court.
Link: http://tinyurl.com/3yrse4
Written by Kathy Carlson.
