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Bryan Ellis Phelps v. the State of Wyoming

June 19, 2012

BRYAN ELLIS PHELPS, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF). JUSTIN LINDALE FITCH, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Laramie County The Honorable Michael K. Davis, 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] A Wyoming Highway Patrol trooper stopped Bryan Ellis Phelps and Justin Lindale Fitch for a traffic violation, detained them, conducted a drug dog sniff of their vehicle and, after the dog alerted to the presence of controlled substances, searched the vehicle and found marijuana. Messrs. Phelps and Fitch were each charged with three felonies. They moved to suppress the evidence seized during the search and the district court denied the motion. They subsequently entered pleas of guilty to one of the counts, while reserving their right to appeal the denial of their suppression motion. On appeal, they challenge that denial as well as the district court's denial of a discovery motion. We affirm.

ISSUES

[¶2] Messrs. Phelps and Fitch present the following issues for our consideration:

I. Was there reasonable cause to stop the vehicle?

II. Did the traffic stop exceed the scope of an investigatory detention?

III. Was the dog's alert sufficient to establish probable cause for a search of the vehicle?

IV. Did the district court abuse its discretion and commit reversible error by denying the Appellants' motions to discover*fn1 and to suppress?

The State asserts the initial stop was justified, the initial questioning was reasonably related to the stop, reasonable suspicion supported continued questioning, and probable cause existed to search the vehicle.

FACTS

[¶3] On January 17, 2010, Wyoming Highway Patrol Trooper Karl Germain was on patrol in Laramie County, Wyoming. In the early morning hours, he was seated in his parked patrol car in the median facing west near mile post 349 on Interstate 80. He saw a white Mercedes pass by and observed that it was following too closely behind a semi truck. Trooper Germain left the median and drove eastward to stop the vehicle for following too closely. As he approached, he saw the Mercedes pass the semi truck, come up behind a second semi truck and again follow too closely.

[¶4] Trooper Germain caught up with the vehicle and pulled alongside it to check for seatbelt use. As he came alongside, he saw someone sit up rapidly in the front passenger seat. Neither the driver nor the passenger looked in his direction but the vehicle slowed from approximately 65 to 50 miles per hour. The posted speed limit was 75 miles per hour.

[¶5] Trooper Germain pulled behind the vehicle and activated his flashing lights. The Mercedes immediately pulled off the highway onto the shoulder. Trooper Germain advised dispatch that he had initiated a traffic stop of a white Mercedes with a California registration. He then got out of his patrol car and approached the driver's side of the vehicle. He asked the driver, Mr. Fitch, for his driver's license, registration and proof of insurance. Mr. Fitch handed him a temporary Texas driver's license and a rental agreement for the vehicle. The driver's license had an issue date of January 7, 2010, and expiration date of March 8, 2010, and listed a Texas address for Mr. Fitch. The rental agreement identified Mr. Phelps as having rented the Mercedes and showed that he rented it on January 15, 2010, at the San Francisco Airport, was to return it there on February 14, 2010, and paid $2,650.29 for the rental.

[¶6] Trooper Germain asked Mr. Fitch where he was coming from and where he was headed. Mr. Fitch replied that he was coming from California and headed to Chicago. Trooper Germain asked what he was going to do in Chicago and Mr. Fitch said he was going to get his instrument rating to become a pilot. Trooper Germain advised Mr. Fitch that he had stopped him for following another vehicle too closely. As he spoke, Trooper Germain noticed that both Mr. Fitch and Mr. Phelps seemed unusually nervous and their arms and hands appeared to be shaking rather violently. He also noticed several pieces of luggage in the back seat of the vehicle. The exchange at the driver's side window of the Mercedes lasted less than one minute.

[¶7] Trooper Germain advised Mr. Fitch that he was going to issue him a warning for following too closely and asked him to come back to his patrol car. As Mr. Fitch got out of the Mercedes, the trooper noticed two energy drink bottles in the door compartment. Once in the patrol car, as he filled out the warning, Trooper Germain asked Mr. Fitch more questions, including how long he would be in Chicago, whether he would be living there, who his passenger was, why he was driving to Chicago rather than flying, who had rented the Mercedes, where he was from, whether he was listed as an additional driver on the rental papers, what made him want to be a pilot, whether it cost a lot of money to become a pilot, how he ended up in California, and where Mr. Phelps was from. Mr. Fitch indicated he was not sure how long he would be in Chicago but was moving there temporarily. He said Mr. Phelps was his brother-in-law, had rented the Mercedes, was helping him get to Chicago, would be staying with him there, and had come from Texas to California to rent the vehicle. Mr. Fitch said he did not fly to Chicago because he wanted to make a trip out of it. In response to other questions, Mr. Fitch said he was getting his instrument rating in Chicago rather than California because he liked the school there better; was originally from Texas; had been living in California with his girlfriend; and they had recently broken up. Mr. Fitch indicated he was not sure whether he was listed on the rental agreement as an authorized driver.

[¶8] During this exchange, Trooper Germain explained to Mr. Fitch why he had been stopped, what constituted the offense of following too closely, and what he was doing as he filled out the warning. This exchange in the patrol car between Trooper Germain and Mr. Fitch lasted less than six minutes. During the conversation, Trooper Germain noticed that Mr. Fitch continued to be shaky and nervous and appeared to be having trouble breathing and speaking.

[¶9] After issuing the warning and speaking with Mr. Fitch, Trooper Germain asked him to remain in the patrol car while he went to speak with Mr. Phelps. In addition to asking Mr. Phelps for identification, Trooper Germain asked him whether he had rented the vehicle, where he was coming from, why he was going to Chicago, how he knew Mr. Fitch, how long he would be in Chicago and whether he would be returning to San Francisco immediately. Mr. Phelps confirmed that he had rented the vehicle, handed the trooper a permanent Texas driver's license and said that he and Mr. Fitch were traveling from California to Chicago for Mr. Fitch's pilot training. He indicated that Mr. Fitch would probably stay in Chicago for a couple of weeks and would likely fly home. Mr. Phelps said he would be conducting some business in Chicago before heading back to California to return the rental car. During the conversation, Trooper Germain noticed that Mr. Phelps' hands continued to shake. The trooper returned Mr. Phelps' driver's license and went back to the patrol car. The exchange between Trooper Germain and Mr. Phelps lasted about two minutes.

[¶10] Back in the patrol car, Trooper Germain asked Mr. Fitch how long he expected the training in Chicago to take, where he was going to live, what he and Mr. Phelps did for a living, how long he had known Mr. Phelps, who was paying for the rental car, whether Mr. Phelps would be doing any business in Chicago, and why he was driving rather than flying to Chicago. Mr. Fitch said he would probably be in Chicago for three months, depending on how long it took him to log his flight hours, would be finding a place to live, was unemployed, was not certain what Mr. Phelps did for work and that Mr. Phelps had paid for the rental car. Trooper Germain returned the rental agreement and gave Mr. Fitch a copy of the warning he had issued. He then asked Mr. Fitch if there was anything illegal inside the Mercedes. Mr. Fitch said there was not. Trooper Germain asked if there was a large amount of cash in the vehicle and Mr. Fitch again said there was not. The trooper then asked separately whether there was marijuana, cocaine, heroin, or methamphetamine in the vehicle. Each time, Mr. Fitch responded negatively. Trooper Germain asked Mr. Fitch if there were guns or explosives in the car. Again, Mr. Fitch said, "No." Trooper Germain asked Mr. Fitch if he had any objection to his drug dog sniffing the Mercedes. The trooper explained that there were discrepancies in the stories he had been given, the trip did not make sense to him and the circumstances seemed consistent with the transportation of controlled substances. Mr. Fitch did not clearly consent to the dog sniff and so Trooper Germain went back to the Mercedes to ask Mr. Phelps for permission to search the vehicle. The second exchange between the trooper and Mr. Fitch inside the patrol car lasted just under four minutes.

[¶11] Back at the Mercedes, Trooper Germain asked Mr. Phelps if he had any objection to the dog sniff. As he had done with Mr. Fitch, Trooper Germain explained to Mr. Phelps that the stories given to him were inconsistent and the situation indicated to him that they were transporting controlled substances. Mr. Phelps responded that if they were not under arrest he would like to go. Trooper Germain advised Mr. Phelps that he was not under arrest but that he was being detained. This exchange lasted less than one minute.

[¶12] Trooper Germain returned to his patrol car and told Mr. Fitch to go back to the Mercedes and have a seat, that he was being detained while the trooper called for backup before having his drug dog sniff the vehicle. Just over four minutes later, another trooper arrived on the scene. The troopers directed Mr. Fitch and Mr. Phelps to get out of the Mercedes and stand away while Trooper Germain ran the dog around the vehicle. The dog alerted to the presence of a controlled substance. The troopers searched the vehicle, found marijuana and placed Mr. Fitch and Mr. Phelps under arrest.

[¶13] Messrs. Fitch and Phelps were each charged with three felony counts: conspiracy to deliver and possess marijuana in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i) (LexisNexis 2009); possession with intent to deliver marijuana in violation of § 35-7-1031(a)(ii); and possession of marijuana in violation of § 35-7-1031(c)(iii). They both filed motions to suppress the evidence seized during the search. Prior to a hearing on the motions, the State moved to join the defendants' cases under Rules 8(b) and 13 of the Wyoming Rules of Criminal Procedure. The defense did not oppose the motion and the district court granted it. The ...


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