Appeal from the District Court of Carbon County The Honorable Wade E. Waldrip, Judge,
The opinion of the court was delivered by: Burke, Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] In their consolidated appeals, Derrick Loo and Yoeun Yoeuth challenge the district court‟s denial of their motions to suppress evidence obtained during a traffic stop and subsequent search of the vehicle‟s trunk. We affirm in both cases, although in Ms. Yoeuth‟s, on a basis different from that of the district court.
[¶2] Mr. Loo states his issue as follows: Did the trial court abuse its discretion and commit reversible error when it denied appellant‟s motion for suppression?
[¶3] Ms. Yoeuth presents this issue: Did Ms. Yoeuth have standing to object to the stop of the vehicle in which she was a passenger, and did she lose that standing by vague statements regarding the contents of the rental vehicle‟s trunk?
[¶4] At about two o‟clock on the afternoon of November 3, 2007, Wyoming Highway Patrol Trooper Jason Green was on duty on Interstate 80 east of Rawlins. He observed a speeding eastbound vehicle, and gave chase. During the pursuit, as he was about to overtake a silver-colored passenger car, the driver of that car abruptly hit his brakes. As Trooper Green described it, the driver "[m]ashed on them pretty hard" and "slowed way down."
[¶5] Trooper Green thought that behavior unusual, so he contacted dispatch for a check on the silver car‟s license plate number. The dispatcher initially responded that there was no record of this license plate. However, Trooper Green had mistakenly read an "8" on the license plate as a "B." When that error was corrected, the dispatcher informed Trooper Green that the license plate now appeared to be registered to two different vehicles. Given that information, Trooper Green abandoned his chase of the speeding vehicle and continued to observe the silver car. As Trooper Green followed, the driver again hit the brakes abruptly, and slowed from 75 miles per hour, the speed limit, to 65 miles per hour. When the car came up behind a semi truck, it did not pass, but instead followed behind at approximately one car length, and continued following closely for approximately half a mile. Trooper Green decided to stop the silver car for following the truck too closely.
[¶6] When Trooper Green stopped the car, he noticed for the first time that there was a passenger. Approaching the driver‟s window, he detected a strong smell of perfume coming from inside. He told the driver that he had been stopped for following another vehicle too closely, and because the license plate was registered to two different vehicles. The driver informed the trooper that the car was rented. The trooper asked for a driver‟s license, and learned that the driver was Derrick Loo. The trooper also asked for the rental agreement. When Mr. Loo reached into the glove compartment to get it, Trooper Green saw two different rental agreements in the glove box, one from Hertz and one from Avis. Trooper Green also noticed that Mr. Loo‟s hands were trembling, he appeared very uncomfortable, and an artery was pulsing visibly at his temple. During this time, the passenger fixed her stare straight forward, not looking at Trooper Green or engaging him in any way.
[¶7] The Hertz rental agreement indicated that Mr. Loo had rented the car in Reno, Nevada, just after midnight earlier the same day. It was a one-way rental agreement, with the car to be turned in at Indianapolis, Indiana. After examining the rental agreement, Trooper Green asked Mr. Loo to come to the patrol car. He told Mr. Loo that he would get a warning citation for following too closely.
[¶8] Although it was cold outside, Mr. Loo was sweating heavily as he entered the passenger side of the patrol car. When Mr. Loo entered, Trooper Green observed that Sandy, a trained drug-sniffing dog, stirred in the back seat and began sniffing at Mr. Loo. Sandy is not trained to alert to humans, but Trooper Green testified that every time he has seen the dog sniff at a person the way she sniffed at Mr. Loo, that person was either using or in possession of a controlled substance.
[¶9] While sitting in the patrol car, Trooper Green asked Mr. Loo about being in Reno, where the car had been rented. Mr. Loo said he had gone to Reno for some gambling. The Trooper asked his destination, and Mr. Loo said he was going to Indiana to visit friends. During the conversation, Mr. Loo would not make eye contact with Trooper Green. He continued to show signs of nervousness. The artery at his temple continued pulsing, and sweat beaded up on his forehead. Trooper Green found this unusual. In his experience, a detainee‟s initial nervousness usually subsides or goes away when told he will get only a warning.
[¶10] Because the license plate on the silver car was registered to two vehicles, Trooper Green decided to check the vehicle identification number. Leaving Mr. Loo in the patrol car, Trooper Green walked to the silver car to read the number. This time, the odor of perfume was gone. He began talking to the passenger in the car, and asked where they were going. She said they were going to Indiana, but said she did not know why. Asked about being in Reno, she said that they had not done any gambling. This conversation was short, lasting only about a minute.
[¶11] Trooper Green returned to the patrol car, and gave dispatch the vehicle identification number. While waiting for a response, he again asked questions of Mr. Loo. This time, Mr. Loo said they were going to Indiana to visit the passenger‟s family. He continued to exhibit a high level of nervousness. Trooper Green completed the paperwork on the warning ticket, gave the warning to Mr. Loo along with his driver‟s license and rental agreement, and told Mr. Loo he was free to go.
[¶12] As Mr. Loo was walking back toward his car, Trooper Green asked if he would answer a few more questions. Mr. Loo said yes. Trooper Green reminded Mr. Loo that he did not have to answer any more questions. Mr. Loo said he understood, but was willing to answer questions. Trooper Green said that he had become "pretty suspicious about everything that was going on here," including the fact that Mr. Loo was very nervous and sweating. Mr. Loo denied being nervous. Nevertheless, Trooper Green believed that the circumstances were "consistent with things that I see on drug interdictions," so he asked Mr. Loo if there was anything illegal in the car. Mr. Loo said no, without making eye contact with the trooper. Trooper Green asked if he could search the vehicle, and Mr. Loo‟s response was "just stammering and stuttering." Trooper Green took that to mean that Mr. Loo did not consent to a search of the car.
[¶13] Trooper Green then said that he was going to have the dog check the car. When Sandy was let out of the patrol car, she ran to the side of the vehicle, sniffed intently at the panel behind the rear wheel on the driver‟s side, and then sat down at a spot between the wheel well and the trunk. This behavior was consistent with an alert to drugs. When asked, Mr. Loo again denied that there was anything illegal in the car. Trooper Green then asked the passenger if there were any drugs in the car. When she said no, the Trooper said that the dog had indicated there were drugs. The passenger‟s response was, "I didn‟t put anything in the trunk." This response seemed odd to Trooper Green because, from where the passenger was seated inside the vehicle, it would have been difficult for her to see that the dog had alerted near the trunk.
[¶14] Trooper Green opened the trunk and found several duffle bags. Inside one of the bags, he saw packages of what appeared to be marijuana. He placed Mr. Loo and the passenger under arrest. At this time, Trooper Green learned the identity of the passenger, Yoeun Yoeuth. Later testing established that the material in the trunk was marijuana, about thirty-seven pounds in total.
[¶15] In separate cases, Mr. Loo and Ms. Yoeuth were each charged with possession of a controlled substance in violation of Wyo. Stat. Ann. § 35-7-1031(c)(iii) (LexisNexis 2007), possession of a controlled substance with intent to deliver in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii), and conspiracy to deliver a controlled substance in violation of Wyo. Stat. Ann. §§ 35-7-1042 and -1031(a)(ii). Both Mr. Loo and Ms. Yoeuth filed motions to suppress the evidence found by Trooper Green when he searched the trunk of the car,*fn1 and consented in writing to a joint hearing before the district court. At the hearing, Trooper Green was called as a witness by the State, cross-examined by counsel for Mr. Loo, and cross-examined by counsel for Ms. Yoeuth. After the district court denied both motions, Mr. Loo entered a conditional guilty plea to two charges: possession with intent to deliver, and conspiracy to deliver. Ms. Yoeuth entered a conditional guilty plea to a single count of conspiracy to deliver. They reserved their rights to appeal the district court‟s decision denying their motions to suppress.
[¶16] When we review a district court‟s decision to deny motions to suppress, we defer to the district court‟s findings of fact unless they are clearly erroneous. Fertig v. State, 2006 WY 148, ¶ 8, 146 P.3d 492, 495 (Wyo. 2006); O'Boyle v. State, 2005 WY 83, ¶ 18, 117 P.3d 401, 407 (Wyo. 2005). "The evidence is viewed in a light favorable to the district court‟s determination, because that court had the opportunity to hear the evidence and assess the credibility of the witnesses." Hicks v. State, 2008 WY 83, ¶ 13, 187 P.3d 877, 880 (Wyo. 2008). The issue of law -- whether a search was unreasonable and in violation of constitutional rights -- is reviewed de novo. Fertig, ¶ 8, 146 P.3d at 495; McChesney v. State, 988 P.2d 1071, 1074 (Wyo. 1999).
[¶17] Mr. Loo and Ms. Yoeuth moved the district court to suppress the evidence -- that is, the thirty-seven pounds of marijuana -- Trooper Green found when he searched the trunk of the rental car. Both contended that Trooper Green violated their constitutional rights throughout the encounter. On appeal, Mr. Loo continues to maintain that he suffered violations of his rights under both Article 1, Section 4 of the Wyoming Constitution, and under the Fourth Amendment to the United States Constitution. Precedent suggests that such contentions are best analyzed in stages, with the appropriate legal standard applied at each stage. See O'Boyle, ¶ 28, 117 P.3d at 409. We will analyze five separate stages of the encounter: 1) the initial stop;*fn2 2) the initial detention and questioning; 3) the second round of questioning; 4) the canine sniff of the car; and 5) the search of the trunk. At each stage, we must determine whether, under all of the circumstances, Trooper Green‟s actions were reasonable and in compliance with our state and federal constitutional prohibitions against unreasonable searches and seizures.
[¶18] Ms. Yoeuth‟s appeal is not a direct challenge to the validity of Trooper Green‟s actions. Her position is that the district court incorrectly ruled that she did not have standing to pursue that challenge, thereby wrongfully denying her the opportunity to assert that Trooper Green violated her constitutional rights. We will turn ...