from the District Court of Fremont County The Honorable
Marvin L. Tyler, Judge
Representing Appellant: Office of the State Public Defender:
Diane Lozano, State Public Defender; Tina N. Olson, Chief
Appellate Counsel. Argument by Ms. Olson.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; David L. Delicath, Deputy Attorney General;
Christyne Martens, Senior Assistant Attorney General;
Benjamin M. Burningham, Assistant Attorney General. Argument
by Mr. Burningham.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Appellant Douglas Lemley was convicted of possessing
relatively small amounts of morphine and methamphetamine.
Both offenses were felonies due to Lemley's prior
controlled substance convictions. We affirm.
Lemley asks this Court to consider the following three
1. Was defense counsel ineffective in failing to move for the
suppression of evidence found during the warrantless search
of Lemley's backpack?
2. Was the State's evidence sufficient to prove that
Lemley constructively possessed the drugs found in his
3. Did the district court's failure to grant Lemley's
request for an additional instruction on the topic of
constructive possession amount to reversible error?
At approximately 8:30 a.m. on September 4, 2014, Wyoming
Highway Patrol Trooper Daniel Wyrick was driving eastbound
toward Shoshoni on Highway 789, when a westbound SUV owned
and driven by Michael Keele crossed the centerline into the
trooper's lane, nearly causing a head-on collision. It
later turned out that Lemley was a passenger in the vehicle.
Wyrick turned his cruiser around and pulled Keele's
vehicle over. He approached the driver's window, asked
for Keele's license and insurance, and asked if he had
been drinking or texting at the time he swerved out of his
lane. Keele denied drinking and handed the trooper his proof
of insurance and a temporary identification card he had been
issued pending replacement of his lost driver's license.
Wyrick confirmed that Keele had a valid license, and had him
exit his vehicle to perform field sobriety tests. He showed
no signs of intoxication, so Trooper Wyrick had him return to
the SUV while he prepared a citation. In the meantime, the
trooper radioed for assistance, and Fremont County Deputy
Sheriff Kevin Coulter and Chief of Police Bartlett from
Shoshoni came to the scene.
When Deputy Coulter arrived, the trooper handed him
Keele's identification papers. The deputy then approached
the passenger side of the SUV, introduced himself to Lemley,
and asked to see some identification. Lemley produced his
driver's license, and the deputy had his dispatcher run a
warrant check on both him and Keele. When he returned to the
vehicle, he asked for and was granted permission by Keele to
search it. When he asked for permission to search from the
driver's side window, Keele was in the driver's seat
and Lemley was seated next to him in the front
Because he intended to employ his drug dog for the search and
wanted to avoid any risky interactions between the dog and
the two men, Deputy Coulter asked them to step out of the
vehicle, directed Keele to take a seat in Trooper
Wyrick's cruiser, and sent Lemley to Chief Bartlett's
High winds made it impossible to effectively use the dog
outside the vehicle, and the deputy decided the animal might
be injured if allowed to move around inside because it was
filled with clothes, debris, food, and "garage"
items. The seats and floor were covered with these items, and
the cargo area of the SUV was similarly loaded from half to
three quarters of the way to the headliner. Consequently,
Deputy Coulter returned the dog to his patrol vehicle and
searched Keele's SUV by hand.
The deputy began his search with the driver's seat and
the floor and area near it. Finding nothing of interest
there, he turned his attention to the area around the front
passenger seat and again found nothing significant. He
proceeded next to that portion of the rear seat and floor
immediately behind the front passenger seat, where he found a
large plastic tote bag that filled approximately that half of
the rear bench seat. It contained a lot of clothing and
sundry household items. Next, the deputy examined the rear
driver-side seat and floor. On the seat was a blue and black
Coulter first unzipped the middle compartment of the pack and
found men's clothes, toiletries, and a
wallet. In the fully zipped front compartment, he
found a small, zippered leather pouch containing small
plastic baggies, one containing four purplish pink pills and
the other what initially appeared to be a gnawed-upon white
pill. The officers on the scene were able to quickly identify
the pink pills as morphine sulphate from markings pressed
into them by conducting an internet search on a smartphone.
Deputy Coulter separately asked first Keele and then Lemley
who owned the backpack. Keele said it belonged to Lemley, who
had brought it with him when he got in the SUV. Lemley
confirmed that the pack was his. When confronted with the
leather pouch and its contents, however, Lemley denied it was
The deputy arrested Lemley for possession of the suspected
morphine. Later laboratory testing established that the pills
were indeed morphine, and also that what appeared to be a
gnawed-on pill ...