[Copyrighted Material Omitted]
Representing Appellant: Bernard Q. Phelan, Cheyenne, Wyoming.
Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
KITE, Chief Justice.
[¶ 1] Keith Vogt was stopped for failing to use his turn signal and subsequently arrested for driving while under the influence of a controlled substance (DUI) in violation of Wyo. Stat. Ann. § 31-5-233(b) (LexisNexis 2009). He refused to submit to chemical testing. The Wyoming Department of Transportation (the State) notified him that his driver's license would be suspended for six months. Mr. Vogt requested a hearing. After the hearing, the Office of Administrative Hearings (OAH) found there was probable cause for the arrest and upheld the suspension. Mr. Vogt appealed the ruling to the district court, which affirmed the OAH decision. He then appealed to this Court, claiming reasonable suspicion did not exist for detaining him beyond the scope of the initial traffic stop and the OAH ruling that probable cause existed to arrest him for DUI is contrary to the overwhelming weight of the evidence. We conclude probable cause did not exist to arrest Mr. Vogt for DUI and reverse the OAH order upholding the driver's license suspension.
[¶ 2] The issues for this Court's determination are:
1. Whether reasonable suspicion existed to detain Mr. Vogt for field sobriety tests after he was stopped for a traffic violation;
2. Whether the OAH's determination that probable cause existed to arrest Mr. Vogt for DUI was clearly contrary to the overwhelming weight of the evidence.
[¶ 3] On July 8, 2010, at 10:17 p.m., Officer T.J. Whitaker of the Cheyenne Police Department observed a vehicle enter an intersection and make a wide right-hand turn without signaling, continue on to a stop sign and make a second turn without signaling. The officer followed the vehicle and turned on his flashing lights. After the vehicle pulled over, the officer approached the driver's side window and asked the occupant, Mr. Vogt, for his driver's license and proof of insurance. The video of the stop shows that Mr. Vogt did not immediately find the correct insurance information for the car he was driving. He produced an expired insurance card and one for another vehicle he owned before producing the correct card.
[¶ 4] Officer Whitaker asked him where he was coming from and Mr. Vogt responded that he was looking at some apartments in the area. Upon further questioning Mr. Vogt stated he was looking at apartments on Campbell Avenue and provided his home address. According to Officer Whitaker, Mr. Vogt's hands shook, his voice trembled and he mumbled.
[¶ 5] Officer Whitaker instructed Mr. Vogt to wait and returned to his patrol car where he called for assistance. Officer Lisa Koeppel  arrived and Officer Whitaker returned to Mr. Vogt's vehicle and asked him to get out of the car. Officer Whitaker performed a pat down search of Mr. Vogt. He asked Mr. Vogt if he had been drinking and Mr. Vogt said no. Officer Whitaker asked if he was taking any prescription medications and Mr. Vogt responded, " Uh, not really, no." Officer Whitaker asked Mr. Vogt if he was taking over the counter medication. Mr. Vogt responded that he had taken Prozac. The officer asked if he had any physical disabilities and Mr. Vogt said no. He asked Mr. Vogt what his highest level of education was and Mr. Vogt responded that he had about a year of college. Officer Whitaker
then asked Mr. Vogt about the apartments he was looking at on Campbell Avenue. He asked Mr. Vogt why he was moving and Mr. Vogt stated that he was not moving; rather, he was looking at apartments for someone else.
[¶ 6] Officer Whitaker then asked Mr. Vogt to perform the horizontal gaze nystagmus (HGN) test. According to the officer's signed statement, Mr. Vogt showed some signs of nystagmus but not others. Officer Whitaker also had Mr. Vogt perform a walk and turn, one leg stand and Romberg test. The officer concluded Mr. Vogt failed the tests. The video recording then shows Officer Koeppel taking Mr. Vogt's pulse. The results are unknown but Officer Koeppel can be seen talking with Mr. Vogt and he can be heard saying he is nervous. Officer Koeppel had Mr. Vogt stare straight ahead while she looked at his eyes with her flashlight. Using her flashlight, she also looked in his mouth and had him swallow. She asked if he was a smoker and he appears to respond, " Sometimes." Again, there is no indication in the report what, if anything, Officer Koeppel may have seen or determined from these actions.
[¶ 7] At that point, twenty minutes into the stop, Officer Whitaker asked Mr. Vogt if there was anything in his car and if he could take a look. Mr. Vogt said there was nothing in the car and refused permission to search his vehicle. Officer Whitaker called for a drug dog and a portable breath test (PBT). Twenty-two minutes into the stop, while waiting for the drug dog and PBT, Officer Whitaker advised Officer Koeppel within Mr. Vogt's hearing that he had stopped Mr. Vogt for failing to signal, making a wide turn into the center of the street and then failing to signal again at the next turn. He also advised Officer Koeppel there was no indication Mr. Vogt was under the influence of alcohol. He then questioned Mr. Vogt again, asking the name of the friend he was looking at apartments for (Mr. Vogt responded " Rene" ); why he was looking this late at night (Mr. Vogt said he wanted to see what the neighborhood was like late at night); whether the apartment was on this or that side of Lincolnway (Mr. Vogt provided the address of the apartment and said it was on that side); and why he was making a right turn on 14th Street (Mr. Vogt described turning right onto Campbell and right onto 14th Street heading west). Officer Whitaker asked Officer Koeppel what she thought and she motioned toward her mouth. Officer Whitaker asked Mr. Vogt to stick out his tongue and used a flashlight to look in his mouth again.
[¶ 8] Officer Whitaker returned to his patrol car and began writing a ticket for the traffic violation. Officer Pat Johnston arrived and Officer Whitaker administered the PBT, which showed negative results for alcohol. Officer Johnston had the dog perform an exterior sniff of the vehicle and the dog alerted on the driver's side. The officer let the dog inside the vehicle; it did not alert again. Officers Johnston and Koeppel searched the vehicle and found nothing illegal.
[¶ 9] Meanwhile, Officer Whitaker had Mr. Vogt stand up against his patrol car while he conducted a more thorough search. He found a receipt in Mr. Vogt's pant pocket. As he unfolded it, he thought he saw something
flicker in the headlights and fall to the street. He advised the other officers who came and looked and questioned Mr. Vogt about what he had taken. Again Mr. Vogt said he had taken Prozac. Officer Johnston took the receipt and something Officer Koeppel picked up from the street and apparently field tested them for controlled substances. Officer Koeppel told Officer Whitaker within Mr. Vogt's hearing that the test was positive for crack. A few minutes later, she advised Officer Whitaker that she had lied about the results of the field test. At 11:10 p.m., fifty minutes after the stop, Officer Whitaker placed Mr. Vogt under arrest for DUI and advised him of the implied consent law. Mr. Vogt refused to submit to chemical testing and was taken to the police station.
[¶ 10] The State notified Mr. Vogt that as a result of his arrest and refusal to submit to chemical testing his driver's license would be suspended for six months. Mr. Vogt requested a hearing. A hearing was convened. The State did not appear but submitted the certified record which included among other items Officer Whitaker's signed statement and booking sheet. Mr. Vogt appeared with counsel and testified. Mr. Vogt's case before the agency focused on whether probable cause existed to arrest him for DUI. He did not argue that Officer Whitaker lacked reasonable suspicion to detain him after the traffic stop for the purpose of conducting field sobriety tests. Mr. Vogt testified in some detail about what happened during the stop. He testified that he had consumed no alcohol or controlled substances on the night he was arrested. He testified he had taken Prozac which was prescribed for an anxiety disorder. He further testified that he was nervous and anxious during the traffic stop because he had never before been in a situation like it. After the hearing, the OAH issued an order finding that probable cause existed for the arrest and upholding the suspension of Mr. Vogt's driver's license.
[¶ 11] Mr. Vogt petitioned for review in the district court. Again, he argued the officer did not have probable cause to arrest him for DUI. The district court affirmed the OAH. Mr. Vogt timely appealed to this Court, claiming for the first time that ...