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.
BURKE, J., delivers the opinion of the Court; VOIGT, C.J., files a dissenting opinion.
[¶1] Martin Hernandez challenges his convictions on four charges relating to illegal drugs. We will affirm.
[¶2] Mr. Hernandez presents two appeal issues. We will discuss them in this order:
1. Did the district court err when it denied Appellant‟s motion to suppress evidence obtained after a traffic stop, when the State did not meet its burden of proof to justify the warrantless search and seizure; and did plain error occur when the district court failed to address the appropriateness of the search and seizure after the initial stop?
2. Whether the cumulative effect of the State introducing irrelevant and prejudicial evidence, and the prosecutor making an inappropriate community protection argument, denied Mr. Hernandez his right to a fair trial?
[¶3] On February 7, 2008, Agent Ford of the Wyoming Division of Criminal Investigation interviewed two people in Rawlins, Wyoming, who had recently been arrested on illegal drug charges. The two informed him that they had purchased methamphetamine several times from a man named James Moxley. They agreed to cooperate with Agent Ford, and made a controlled purchase from Mr. Moxley, who was arrested after the transaction. He also agreed to cooperate, and told Agent Ford that he was purchasing methamphetamine from three men staying at a local motel.
[¶4] Agent Ford began conducting surveillance of the three men at the motel. On February 19, 2008, the motel manager telephoned Agent Ford and told him that at least one of the men was planning to check out of the motel and leave town. Agent Ford contacted Deputies Craig and Rakoczy of the Carbon County Sheriff‟s Department and asked for their assistance. Agent Ford then went to the motel, where he saw one of the men put something into a vehicle and drive away. Agent Ford informed the Deputies which way the vehicle was going. The Deputies spotted the vehicle, and as they watched, the driver turned a corner without signaling. They made a traffic stop, and identified the driver as Mr. Hernandez.
[¶5] Agent Ford arrived soon after the traffic stop, and began questioning Mr. Hernandez. Lieutenant Rosentreter of the Carbon County Sheriff‟s Department also arrived at the scene, bringing his drug-detecting dog. The dog alerted on the vehicle, indicating drugs inside. The vehicle was searched, and the officers found a backpack containing approximately 20 grams of methamphetamine and 5 grams of cocaine, along with a digital scale, several razor blades, and packaging material. Mr. Hernandez admitted that the backpack was his, and later admitted that documents in the backpack were his.
[¶6] Mr. Hernandez was arrested, and was found to be carrying several hundred dollars in cash. He was charged with two counts of possession of a controlled substance, one for methamphetamine and one for cocaine, in violation of Wyo. Stat. Ann. § 35-7-1031(c)(ii) (LexisNexis 2007), and with two counts of possession of a controlled substance with intent to deliver, again one for methamphetamine and one for cocaine, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i). He was also charged with one count of conspiracy to deliver a controlled substance, in violation of Wyo. Stat. Ann. §§ 35-7-1042 and 35-7-1031(a)(i). The conspiracy charge was soon dismissed by the State, however, and Mr. Hernandez was bound over to the district court for trial on the remaining four counts.
[¶7] Mr. Hernandez filed a pretrial motion to suppress, claiming that he had been unlawfully stopped and, accordingly, that the evidence obtained in the subsequent search was inadmissible at trial. After a hearing, the district court denied the motion. A jury trial commenced on October 8, 2008, and Mr. Hernandez was found guilty the next day. On January 12, 2009, Mr. Hernandez was sentenced. The district court merged the two counts relating to methamphetamine, and sentenced him to ten to twenty years on those charges. It also merged the two counts relating to cocaine, and sentenced Mr. Hernandez to ten to twenty years on those charges, with the two sentences to run concurrently. Mr. Hernandez filed a timely notice of appeal.
Issue 1. Denial of Motion to Suppress
[¶8] On appeal, Mr. Hernandez does not dispute that the officers stopped him after he failed to signal a turn, which was a traffic violation. He concedes that "a traffic stop initiated by a law enforcement officer after personally observing a traffic violation is supported by probable cause and does not violate Article 1, Section 4 of the Wyoming Constitution, regardless of the officer‟s primary motivation." Fertig v. State, 2006 WY 148, ¶ 28, 146 P.3d 492, 501 (Wyo. 2006); see also Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). However, Mr. Hernandez relies on the point that the "scope, duration, and intensity of the seizure, as well as any search made by the police subsequent to [a] stop, remain subject to the strictures of Article 1, Section 4, and judicial review." Fertig, ¶ 28, 146 P.3d at 501. Any detention or search pursuant to a traffic stop must be "reasonable under all the circumstances." O'Boyle v. State, 2005 WY 83, ¶ 31, 117 P.3d 401, 410 (Wyo. 2005).
[¶9] Mr. Hernandez does not affirmatively contend that his detention and search were unreasonable. Rather, the thrust of his argument is that the prosecution presented absolutely no evidence about the scope, duration, or intensity of the detention and seizure, and thereby failed to meet its burden of showing that they were reasonable under all of the circumstances. The record reflects that the two officers at the hearing testified about the traffic stop and events leading to it, but neither testified about anything that occurred after the initial ...