Original Proceeding Petition for Writ of Review District Court of Uinta County The Honorable Dennis L. Sanderson, Judge
The opinion of the court was delivered by: Kite, Chief Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made before final publication in the permanent volume.
[¶1] After initiating a traffic stop, a Wyoming Highway Patrol trooper found marijuana in Jason Holohan's vehicle. Mr. Holohan was charged with two counts of possession of a controlled substance with intent to deliver. He filed a motion to suppress the evidence seized during the search of his vehicle, claiming the trooper lacked probable cause or reasonable suspicion to justify the traffic stop at the time he activated his flashing lights and could not use events occurring after activating his lights to justify the stop. The district court agreed and granted the motion. The State filed a petition for writ of review of the district court's order which this Court granted. We reverse.
[¶2] The State presents the issue for this Court's determination as follows:
Does the Fourth Amendment require reasonable suspicion for a traffic stop to exist at the moment an officer makes his show of authority (activating his light bar), and may traffic violations occurring after the show of authority be used to establish reasonable suspicion for the stop?
Mr. Holohan restates the issue as follows:
The District Court correctly ruled that, under the Fourth Amendment to the United States Constitution, reasonable suspicion must exist at the moment a law enforcement officer makes a "show of authority" that compels a person to some action. Therefore, traffic violations made by a non-fleeing motorist that occur after a show of authority cannot be used to retroactively establish the reasonable suspicion required to initiate the traffic stop.
[¶3] On July 13, 2010, Trooper Brandon Dyson was on patrol on
Interstate 80 in Uinta County, Wyoming. At approximately 7:30 a.m., he
was parked in the median parallel to the highway facing west watching
oncoming eastbound traffic. His drug sniffing dog was in the seat
directly behind him. He observed a vehicle coming toward him at
approximately 10 miles per hour under the posted speed limit. He
estimated that it was
traveling 65 miles per hour in a 75 mile per hour zone.*fn1
As the vehicle approached his patrol car, Trooper Dyson
observed it slow rapidly. He watched the vehicle as it passed his
location. He continued to watch and, when the vehicle was
approximately 100 yards away, he saw both of its right side tires
cross approximately one foot over the fog line and remain over the
line for a distance of 100 to 150 feet before crossing back into the
[¶4] Trooper Dyson pulled onto the highway and followed the vehicle. According to his affidavit, he saw the vehicle cross over the center line and the fog line. Based upon his observations, he made the decision to initiate a traffic stop. Before activating his flashing lights, however, he moved into the passing lane and pulled up next to the vehicle to get a look at the driver and check whether he was wearing his seat belt. He then pulled back and activated his flashing lights. The vehicle continued eastward for approximately two miles, swerving side to side as it traveled. When the vehicle did not stop, Trooper Dyson turned on his siren. The vehicle then pulled off the highway onto an exit ramp and stopped. Trooper Dyson saw the driver and one of the passengers switch places.
[¶5] Trooper Dyson pulled up behind the vehicle, got out of his patrol car and approached the driver's side door. The person in the driver's seat was not the person he had observed driving when he had pulled up parallel to the vehicle on the highway. He requested the occupants' identification, the vehicle registration and proof of insurance. There was no proof of insurance. He asked Mr. Holohan, who had been driving prior to the stop, to come back to the patrol car. Trooper Dyson began filling out citations when another trooper arrived. He asked the trooper to finish the citations while he ran his dog around the vehicle. The dog alerted. The troopers searched the vehicle and found what later tested positive as marijuana. Mr. Holohan was charged with two counts of possession of marijuana with intent to deliver in violation of Wyo. Stat. Ann. §§ 35-7-1031(a)(ii) and 35-7-1014(a) and (d)(xiii) (LexisNexis 2009).
[¶6] Mr. Holohan filed a motion to suppress the evidence seized in the search of his vehicle. He argued that Trooper Dyson did not have reasonable suspicion of criminal activity justifying the initial stop of his vehicle. After a hearing, the district court found the evidence did not support Trooper Dyson's testimony that the vehicle crossed the fog or center lines several times before he decided to initiate the traffic stop; therefore, he did not have even a reasonable suspicion justifying using his flashing lights to stop the vehicle. The district court ...