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Tucker v. State

August 25, 2009

IRA GEORGE TUCKER, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Sheridan County, The Honorable John G. Fenn, Judge.

The opinion of the court was delivered by: Kite, Justice.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1] Ira Tucker entered conditional guilty pleas to two counts of possession of a controlled substance with intent to deliver, reserving his right to appeal the denial of his motion to suppress evidence. On appeal, he claims his conditional plea was invalid; the stop, search of his vehicle and his subsequent arrest were not supported by probable cause; he was denied due process because of misrepresentations contained in the affidavit supporting the Information, limitations on his access to discovery and delay caused by changes of counsel; and the arrest warrant was defective. We affirm.

ISSUES

[¶2] In his brief, Mr. Tucker presents the following issues:

I. Were the "traffic stop," search of appellant's vehicle and subsequent arrest of appellant illegal, as there was no probable cause?

II. Was appellant denied due process of law in the following ways: (1) by the conduct of the prosecutor who included misrepresentations in the affidavit supporting the Information; (2) in the limited access appellant was provided to the discovery in his case; and (3) by the delay which resulted from changes of counsel?

III. Was the arrest warrant defective?

The State presents substantially the same issues. Prior to argument, Mr. Tucker advised the Court that he intended to rely on Walters v. State, 2008 WY 159, 197 P.3d 1273 (Wyo. 2008), which we issued after he filed his brief, to argue that his convictions must be reversed because, contrary to Walters, his conditional plea was based in part on an issue that was not dispositive.

FACTS

[¶3] On the afternoon of December 8, 2006, the Sheridan County Sheriff's Office received word that an individual wished to provide information concerning the use of controlled substances in the county. Deputies Ryan Mulholland and Boot Hill interviewed the man. In the course of the interview, the man told the deputies that he had purchased methamphetamine from a man named "Ira" on two occasions.*fn1 He gave the deputies "Ira's" telephone number and told them that "Ira" drove a black Jeep Cherokee and, when he made trips into the Sheridan area, frequented the residence of an individual whose name the deputies recognized from prior controlled substance investigations.

[¶4] The following evening, Deputy Mulholland received a call from the informant advising him that "Ira" was in town. Deputies Mulholland and Hill went to the addresses the informant provided but were unable to locate a vehicle matching the description of "Ira's" vehicle. They returned later with the informant and observed the vehicle at one of the locations. Dispatch confirmed the vehicle license plate belonged to Mr. Tucker and was registered to a 1996 black Jeep Cherokee. Deputies also obtained a copy of Mr. Tucker's driver's license with his photograph.

[¶5] A few days later, the informant went to the Sheridan office of the Division of Criminal Investigation (DCI) and placed a recorded phone call to Mr. Tucker. Deputy Hill monitored and recorded the call during which Mr. Tucker said that he had been to Sheridan and left some "stuff" and would be back again the next weekend. He also said that if the informant wanted "green" he could get "QP650." Based upon his training and experience as a drug task force officer, Deputy Hill understood this to mean that Mr. Tucker could provide the informant with a quarter pound of marijuana for $650.

[¶6] Several months later, Deputy Mulholland received another phone call from the informant advising him that Mr. Tucker had called again and would soon be on his way to Sheridan. Deputy Mulholland asked the informant to place another recorded telephone call to Mr. Tucker. The informant agreed and met with Special Agent Michael Hamilton to place the call. Special Agent Hamilton monitored the conversation during which Mr. Tucker stated that he normally charged 200 by the "O" and used the word "kind." Based upon his training and experience, Special Agent Hamilton understood the first reference to mean that Mr. Tucker charged $200 per ounce for marijuana and the term "kind" to refer to the grade of the marijuana. Mr. Tucker also told the informant that if he invested in Mr. Tucker's "little corporation," Mr. Tucker would "wake him up." Special Agent Hamilton was not familiar with the phrase "wake him up" and the informant advised him it meant Mr. Tucker would provide him with methamphetamine.

[¶7] On the basis of what they heard during the recorded phone calls, DCI and the sheriff's office made plans to stop and search Mr. Tucker's vehicle as he approached Sheridan. Agents from Casper who had been conducting surveillance of Mr. Tucker's Casper residence advised that he left his home with a female companion in a white Pontiac with a black bra. Deputy Mike Gale parked his patrol car at an I-25 exit ramp south of Sheridan and waited. When he saw a white Pontiac with a black bra and two occupants approaching from the south, he confirmed the license plate as belonging to Mr. Tucker and stopped the vehicle. He told Mr. Tucker that there had been a traffic complaint involving a vehicle like the one he was driving. Deputy Mike Rogers arrived with his dog and had the dog perform an air sniff around the outside of Mr. Tucker's vehicle. The dog alerted to the rear of the vehicle. Deputy Rogers searched the rear of the vehicle and found substances that later tested positive for marijuana and methamphetamine.

[¶8] The State charged Mr. Tucker with two counts of possession of controlled substances with intent to deliver, one count for marijuana and the second for methamphetamine. Mr. Tucker filed a motion to suppress the evidence seized from his vehicle claiming the State lacked a reasonable articulable suspicion to justify the stop because there was no traffic violation. Mr. Tucker also asserted law enforcement lacked probable cause to search his vehicle because the drug dog was not reliable. The State filed a response in which it clarified that it was not relying on a traffic violation or the drug dog to justify the stop and search. Rather, the State asserted, the stop was justified on the basis of probable cause which arose from the information obtained from and as a result of the confidential informant. After a hearing, the district court issued an order denying the motion on the ground that law enforcement had probable cause to stop the vehicle.

[¶9] On the morning the jury trial was scheduled to begin, defense counsel advised the district court that Mr. Tucker wished to enter a conditional guilty plea, reserving his right to appeal the denial of his suppression motion and "other motions that were filed." Upon questioning from the district court, defense counsel identified "the other motions filed" as involving a due process violation resulting from the State's "subterfuge" in making it appear that law enforcement stopped Mr. Tucker following a traffic complaint and searched his vehicle based upon a dog sniff, allegedly without revealing the confidential informant's involvement. After some discussion aimed at clarifying the issues being reserved for appeal, the district court dismissed the jury and accepted Mr. Tucker's conditional plea. The district court also indicated it would schedule another hearing to allow full presentation and consideration of the due process claim.

[ΒΆ10] Defense counsel subsequently filed a document captioned "Further Specifications for Basis of Motion to Suppress" alleging that the State had violated Mr. Tucker's due process rights and various court rules by misrepresenting to him and the district court throughout the proceedings prior to the suppression hearing that his arrest resulted from a traffic stop and dog alert rather than information obtained from the confidential informant. The district court convened another hearing and, after the parties' arguments, denied the motion. The district court subsequently sentenced Mr. Tucker to consecutive ...


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