Summary 2010 WY 47

Summary of Decision issued April 20, 2010

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

Case Name: Johnson v. State

Citation: 2010 WY 47

Docket Number: S-09-0029

Appeal from the District Court of Campbell County, the Honorable John R. Perry, Judge.

Representing Appellant Johnson: Kenneth DeCock of Plains Law Offices, LLP, Gillette, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda J. Pojman, Senior Assistant Attorney General.

Facts/Discussion: Johnson entered a conditional plea of guilty to one count of conspiracy to deliver a controlled substance. The dispositive issue is whether the drug evidence was obtained in violation of Johnson’s constitutional rights under the Fourth Amendment to the United States Constitution and Article 1, § 4 of the Wyoming Constitution. This is the second time for this case on appeal. The Court remanded the case to the district court for the limited purpose of the entry of a supplemental order including the factual findings required by W.R.Cr.P. 12(f) as well as a statement by the district court of the conclusions of law it reached on those findings.
Under both the Wyoming and United States Constitutions, the Court examines the totality of the circumstances to determine whether consent was voluntary. The Court agreed with the district court that the officers’ demeanor was appropriate, non-threatening and not coercive. No weapons were brandished. Johnson was not handcuffed or otherwise restrained. He was not placed under arrest. The discussion was brief and informational.

Conclusion: Whether analyzed under the Wyoming Constitution or the United States Constitution, Johnson’s argument that his consent was coerced, and thus involuntary, failed.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/y3qo4kh .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2010 WY 46

Summary of Decision issued April 20, 2010

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

Case Name: Nava v. State

Citation: 2010 WY 46

Docket Number: S-09-0144

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

Representing Appellant Nava: Scott Powers of Law Office of Scott Powers, Cheyenne, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Anna C. Swain, Assistant Attorney General.

Facts/Discussion: Nava appealed from his conviction for felony possession of a controlled substance. He claimed that the district court erred in denying his motion to suppress the evidence found in his car during a traffic stop.

Nava contended that after he was issued a warning citation and told he was free to leave, the trooper’s further questioning resulted in custodial interrogation and he should have been “Mirandized” before being subjected to questions. General on-the-scene questioning as to facts and statements volunteered freely without compelling influences are not custodial interrogation. Four factors are relevant to the determination: whether a suspect is questioned in familiar or neutral surroundings; the number of officer present; the degree of physical restraint; and the duration and character of the interrogation. Nava did not analyze the trooper’s further questioning using the factors. He argued that the Appellant never felt free to leave any time after the issuance of the citation. The Court stated the subjective feelings of neither the trooper nor Nava were relevant to the question of whether a particular interrogation was custodial. The Court’s review of the record revealed the trooper was not required to give Miranda warnings before further questioning.
Next, the Court considered whether Nava’s consent to the search of his vehicle was valid. Consent is considered within the “totality of the circumstances” with no single factor determinative. Nava relied upon O’Boyle v. State. The State relied upon the Court’s decisions in Marquez-Guittierrez v. State and Marinaro v. State. The Court stated the factual circumstances in the State’s cases were similar to the instant case and the reasoning compelling. The Court found Nava voluntarily consented to the search.

Conclusion: Nava was not in police custody and therefore not entitled to Miranda warnings before further questioning after he received a warning citation and was told he was free to leave. Also, no violation of his Fourth Amendment right to be free from unreasonable searches and seizures occurred because Nava voluntarily consented to the further questioning and subsequent search of his vehicle.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/y6zpqlu.

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2009 WY 125

Summary of Decision issued October 13, 2009

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

Case Name: Miller v. State

Citation: 2009 WY 125

Docket Number: S-08-0190; S-08-0191

Appeal from the District Court of Fremont County, the Honorable Norman E. Young, Judge.

Representing Appellant Miller: Michael H. Reese, PC, Cheyenne, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric Alan Johnson, Director Prosecution Assistance Program; Eric K. Thompson, Student Director; Cortney Kitchen, Student Intern.

Facts/Discussion: Miller challenged his conviction for several counts of illegal possession of controlled substances. He contended the district court erred in its denial of his motion to suppress evidence in each case. He also claimed a violation of his right to speedy trial in both cases.

Motions to Suppress: Miller contended the sweep of his home violated his Fourth Amendment rights because officers entered his home without a warrant. The district court determined the information received from the informant was sufficient to establish probable cause. Information received from an informant must be evaluated under the totality of the circumstances. The witness’s statements were based upon firsthand knowledge, were against his penal interests, and were close in time to the events he described. The district court recognized that the presence of evidence that is easily destroyed (methamphetamine and marijuana) combined with phone calls from Miller to the informant and the close proximity of Miller’s and the informant’s homes created exigent circumstances justifying the sweep of the residence prior to receiving the warrant. It was undisputed the challenged evidence was obtained during execution of the search warrant. On appeal, Miller did not identify any evidence or information that was found during the sweep or his detention that was used to obtain the warrant.
Miller sought to suppress evidence found as a result of the search of his fiancée’s vehicle. The district court denied the motion on the basis that he lacked standing to challenge the search. It was undisputed Miller did not own the vehicle and was not present at any time during the search. The Court distinguished both United States v. Soto and United States v. Rubio-Rivera from the instant case. Neither defendant owned the cars in those cases but both had standing because each was in possession of the vehicle at the time of the search.
Speedy Trial: Miller did not assert a speedy trial defense in the district court and did not reserve his right to assert the issue on appeal in docket no. 6192. In docket no. 6171, Miller signed two waivers of speedy trial. In his appeal, Miller did not contend that his trial was delayed more than 180 days after each waiver or that the delay violated W.R.Cr.P. 48(b). The Court then considered the four-factor test set out in Barker v. Wingo that requires the Court to evaluate the length of delay, the reason for delay, defendant’s assertion of the right and prejudice to the defendant. Miller was arrested in 2006 and not brought to trial until 2008, a delay of 504 days. The Court stated it previously found that such a delay was presumptively prejudicial. A review of the record revealed that most of the delay was attributable to Miller’s six changes in defense counsel and the requests by defense to allow adequate time for new counsel to prepare for trial. Miller signed two waivers but did not otherwise bring any speedy trial claims to the attention of the district court. Miller made no argument that his pretrial incarceration was oppressive. A bare assertion will not suffice. The possibility that the defense was impaired by the delay is the most serious factor in determining prejudice. Miller failed to demonstrate that he was prejudiced by the delay.

Conclusion: Miller failed to establish the required nexus between the alleged misconduct and the evidence that he sought to suppress. Miller did not have a reasonable expectation of privacy in the vehicle and therefore lacked standing to challenge the search. Miller was not denied his statutory or constitutional right to a speedy trial in either case.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/yl4k6so .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 8

Summary of Decision issued January 29, 2009

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

Case Name: McGarvey v. State

Citation: 2009 WY 8

Docket Number: S-08-0070

Appeal from the District Court of Natrona County, the Honorable W. Thomas Sullins, Judge.

Representing Appellant McGarvey: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; and Kirk A. Morgan, Senior Assistant Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig, Interim Faculty Director, Prosecution Assistance Program; Eric Thompson, Student Director; and Jill Cottle Garrett, Student Intern.

Facts/Discussion: McGarvey entered conditional pleas of guilty to felony possession of marijuana and misdemeanor possession of methamphetamines. The condition attached to her plea was that she be permitted to pursue an appeal of the district court’s order denying her motion to suppress the evidence seized by the State at the time she was briefly stopped and then arrested.

McGarvey’s contentions were limited to improper searches and seizures under the United States Constitution. The Court referred to their decision in Speten v. State where it described the analytical framework for questions of probable cause. Questions about improper search and seizure are resolved by taking into account the totality of the circumstances. The Court noted that the officer had over 19 years of experience in law enforcement. In Flood v. State, the Court described the three tiers of interaction between police and citizens. The Court determined that the search and seizure in the instant case was not unreasonable. The district court might well have reasoned that the officer’s initial efforts were aimed at a consensual encounter when he followed McGarvey and her companion into the Parkway. McGarvey’s behavior quickly transformed the encounter into an investigatory stop and segued equally as rapidly into an arrest for disobeying the officer’s instructions and McGarvey’s possession of controlled substances.
The Court stated the search of the automobile was a more complicated question. The Court noted that it appeared there was a close temporal relationship between McGarvey’s occupation of the car and her arrest. The officer’s initial action was to merely look through the windows and observe what was in plain view. The Court concluded the factors weighed heavily in favor of categorizing the search as being one incident to her arrest and that the search of it was for evidence of the crime for which she was arrested. Taking into account all of the relevant evidence which the district court was privy to, the Court concluded that the findings were not clearly erroneous and that the search did not violate the Fourth Amendment.

Conclusion: The Court held that the district court properly denied McGarvey’s motion to suppress the evidence obtained incident to a search of her person and of her car.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/ab88kb .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2007 WY 123

Summary of Decision issued August 2, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Case Name: Marinaro v. State

Citation: 2007 WY 123

Docket Number: S-07-0014

Appeal from the District Court of Laramie County, Honorable Nicholas Kalokathis, Judge

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

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Paul S. Rehurek, Senior Assistant Attorney General

Date of Decision: August 2, 2007

Issue: Whether the district court abused its discretion or erred as a matter of law in denying the appellant’s motion to suppress the evidence found in his car during a traffic stop.

Facts/Discussion: During the course of a legal detention of an individual, law enforcement officers may pose questions to that person that are unrelated to the underlying purpose of the seizure and that are not independently justified by reasonable suspicion. Additionally, suspicionless questioning of a motorist by a law enforcement officer during the course of a traffic stop regarding weapons and contraband is not a Fourth Amendment violation so long as it does not extend the duration of the traffic stop. In the present action, the hearing transcript and the videotape of the traffic stop establish quite clearly that (1) the appellant does not challenge the validity of the initial traffic stop; (2) the brief questioning in the patrol car did not extend the period of detention necessary to write out the warning tickets; and (3) the appellant consented to the questioning in the patrol car, he consented to the questioning after he exited the patrol car, and he consented to the search of his car.
In examining the totality of the circumstances to determine whether these consents were voluntary, such factors as the way the requests were phrased by the officer, whether the individual was told he could refuse the request, and the presence of other coercive factors are examined. Once again, the hearing transcript and the videotape of the traffic stop in the present action to point out that: (1) the entire traffic stop was very brief (2) the trooper’s conduct throughout was professional, courteous, and completely non-coercive; and (3) all of the consents given by the appellant were unhesitant and immediate.

Holdings: The “coercive factors” present during this traffic stop are the same “coercive factors” that are present at every traffic stop: an armed and uniformed officer, plus the flashing lights on the patrol car. In the present case, the appellant knew that he was free to go because the trooper had told him he could go. His departure was stopped only by his consent to a non-demanding, relatively cordial request by the trooper to ask more questions. A reasonable person in the appellant’s position at that time would have felt that he could have said “no” and proceeded on his way. Thus, the evidence in this case was discovered via the voluntary consent of the appellant.

Affirmed.

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

Link: http://tinyurl.com/ys3bj8 .