Appeal from the District Court of Johnson County The Honorable John G. Fenn, Judge
The opinion of the court was delivered by: Hill, Justice.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, 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 any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] After conditionally pleading guilty to possession with intent to deliver marijuana, Connor Timothy Corrigan Phippen challenges the district court's denial of his motion to suppress evidence discovered during a search of his vehicle. He contends that the drug dog sniff was inconclusive and that the subsequent search of his vehicle was illegal. We affirm, based upon our conclusion that the totality of the circumstances was sufficient to find probable cause.
[¶2] Phippen presents one issue:
Whether or not the warrantless search of Mr. Phippen's vehicle violated Article I, Section 4 of the Wyoming Constitution because it was unreasonable under the circumstances and was not supported by probable cause.
[¶3] In March of 2011, a staff member from the Hampton Inn in Buffalo, Wyoming, reported to the Buffalo Police Department the smell of marijuana emanating from a hotel room. Three officers responded to the report. One of them, Sergeant Dan Fraley, spoke with hotel staff that identified a man checking out at the front desk and a woman seated in the lobby as the alleged pot smokers. Sergeant Fraley approached the man, identified himself, and informed the man of the allegation. Connor Phippen and Dana Rose both admitted that the allegation was true, and Rose added that Phippen gave her the marijuana and that Phippen brought the drug into their hotel room where they both smoked the marijuana.
[¶4] Phippen and Rose told officers they had driven from Denver to Buffalo in a pickup truck, which was parked outside the Hampton Inn. When Sergeant Fraley asked for permission to search the truck, Phippen told him a dog could walk around the truck. Sergeant Fraley radioed his colleague, Lieutenant Andy Tkach, a canine officer who was already in the parking lot with his dog Buddy. Lieutenant Tkach had gone to the Hampton Inn after hearing on his radio that Sergeant Fraley was dispatched there for a complaint involving marijuana. He parked in the parking lot and after learning that the suspects' truck had Minnesota license plates, he identified the only pickup with Minnesota plates and had Buddy walk around the vehicle. Buddy alerted that marijuana was inside the vehicle. However, he did not give his final "sit" which tells his handler that he has pinpointed the source of the odor. His alert, however, told Lieutenant Tkach that the odor of illegal drugs was coming from the pickup.
[¶5] After Buddy had alerted, Lieutenant Tkach asked Phippen for permission to search the truck, and Phippen responded the same way he had to Sergeant Fraley -- that the dog could walk around the vehicle. Although Phippen did not know Buddy had already alerted to the vehicle, Phippen also told Lieutenant Tkach that he could search the vehicle if the dog hit on it. At that point, the officers placed Phippen under arrest. On his person at the time of arrest, Phippen was carrying candy and juice both containing THC, as well as over $4,000.00 in cash, most of which was comprised of $100 dollar bills and $50 dollar bills.
[¶6] After the arrest, Sergeant Fraley began an inventory of the vehicle, during which a grocery bag was found containing items Sergeant Fraley suspected to be illegal drugs. Upon that discovery, Sergeant Fraley stopped the inventory and instructed another officer to apply for a search warrant, which was acquired. Indeed, as suspected the grocery bag contained marijuana. Officers also found a duffle bag with approximately six pounds of marijuana.
[¶7] The Johnson County prosecutor charged Phippen with two felonies: possession with intent to deliver marijuana, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii) and conspiracy to deliver marijuana, in violation of Wyo. Stat. Ann. §§ 35-7-1031(a)(ii) and 35-7-1042. The second charge was dismissed at the preliminary hearing, but arraignment proceeded on the first charge, to which Phippen pled not guilty.
[¶8] As to the first charge, Phippen filed a motion to suppress, alleging the search of his vehicle was unlawful under both the federal and state constitutions. A hearing was held on September 12, 2011. Although Phippen tried to additionally challenge the legality of his arrest, the State objected and the district court limited the hearing to the legality of the search of Phippen's truck. The district court sustained the search, reasoning that the automobile exception justified the search of Phippen's pickup. Applying a totality of the circumstances analysis, which included the report of marijuana usage, that Phippen and Rose both admitted to smoking marijuana, that the truck belonged to Phippen, and that the drug dog alerted, the court concluded that there was probable cause to search the ...