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Pier v. State

Supreme Court of Wyoming

July 12, 2018

JOSHUA LEE PIER, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Albany County The Honorable Tori R.A. Kricken, Judge.

          Representing Appellant: Office of the Wyoming State Public Defender: Diane Lozano, Wyoming State Public Defender; Tina N. Olson [*] , Chief Appellate Counsel; Christopher G. Humphrey, Assistant Appellate Counsel. Argument by Mr. Humphrey.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne Martens, Deputy Attorney General; Benjamin Fischer, Assistant Attorney General. Argument by Mr. Fischer.

          Before DAVIS, C.J., and HILL [†] , BURKE [‡] , FOX and KAUTZ, JJ.


          KAUTZ, J.

         [¶1] Joshua Lee Pier pled guilty to felony possession of anabolic steroids found in a search of his vehicle, subject to the right to appeal the denial of his motion to suppress the drugs found in his vehicle. We affirm.


         [¶2] Mr. Pier presents four issues on appeal:

I. The peace officer lacked probable cause to stop the Defendant.
II. The peace officer lacked subsequent reasonable suspicion to detain.
III. The canine drug sniff while inside Mr. Pier's [v]ehicle constituted an illegal search and seizure due to illegal dog sniff.
IV. The peace officer did not have additional probable cause to search absent the illegal dog sniff.


         A. Traffic Stop and Vehicle Search

         [¶3] On September 6, 2016, at around 2:45 p.m., Deputy Derrick Colling of the Albany County Sheriff's Office was on patrol in Laramie, Wyoming. He was traveling south on 3rd Street when he observed an oncoming truck with a basketball-sized crack in the windshield, covering about a quarter of the passenger side, just to the right of center. Because Deputy Colling believed the crack obstructed the driver's view and was thus a traffic violation, he made a U-turn with the intention of stopping the truck.

         [¶4] Before Deputy Colling activated his overhead lights, the truck turned left at Clark Street and onto a bridge over the railroad tracks. Deputy Colling waited through a red light at the intersection and then turned onto the bridge and saw the truck turn left off Clark Street onto Cedar Street. As Deputy Colling caught up to the truck, it signaled briefly and pulled abruptly to the right curb. Deputy Colling then activated his overhead lights and initiated a traffic stop.

         [¶5] Deputy Colling approached the truck and asked for the driver's identification, and learned that he was Joshua Pier. Deputy Colling described his initial interactions and observations when he spoke to Mr. Pier.

Q. So what did you say to the - to Mr. Pier when you approached his vehicle?
A. Well, first off, before I ever said anything, he looked at me and he said, "What's going on, man?" very abruptly. After that, I told him the reason for the stop. I told him that I stopped him for - for having the broken windshield and for not signaling for 100 feet before pulling over.
Q. When you first spoke with Mr. Pier, did you notice anything about his demeanor?
A. Yes. He was extremely nervous.
Q. And how could you tell he was extremely nervous?
A. His hands were visibly shaking. He was very,
very erratic with his movement. He was very fidgety with his hands, fidgety with his legs. He had his leg kind of propped up, his right leg kind of propped up in a very awkward - in a very awkward manner.
Q. Did you know - did you notice anything behind that leg?
A. Yes, I did.
Q. What was that?
A. I saw a - a black pouch. It was about the size of a fist and it was - it was kind of like a shaving kit looking sort of pouch. And it appeared to me that he was attempting to conceal that pouch behind his right leg.
Q. How did your interaction with Mr. Pier go on after you told him that you had - why you pulled him over?
A. I asked him for his information, for his driver's license, registration, proof of insurance. He reached into his glove box and pulled out a large stack of papers, set those papers on his lap, and for - for several seconds, he shifted through those papers and I could - I could - I could see his hands shaking while he was sorting through the papers as well.
Q. And what happened after that? Was he able to find all of the documentation?
A. I know that he found his driver's license. I believe he found [the] registration. I'm not sure about insurance. But he handed me the documents and I went back to my vehicle.

         [¶6] When Deputy Colling returned to his vehicle, he conducted a records check and found out Mr. Pier's license was valid and that he had no outstanding warrants or anything else of note. As he was completing the records check, he recalled information he had learned months earlier about Mr. Pier.

A. Well, after seeing - after seeing his name, I realized that this was an individual that had some previous history and - and I had heard previous - I had heard information about his previous history being drug convictions.
Q. Where did you hear about this information?
A. From other deputies in the sheriff's office.
Q. When were you talking to the other deputies about Mr. Pier?
A. It was a few months prior.
Q. What did you learn specifically about Mr. Pier?
A. Specifically, I learned that he had prior drug convictions for distributing methamphetamine. I learned that he had served time in the Wyoming state prison and was a very prolific gang member in the prison. I also learned that he was out of prison and was suspected of currently selling drugs.
Q. And to be clear, those were just suspicions?
A. That's correct.
Q. Did you personally do any investigating of Mr. Pier prior to this day?
A. I had a citizen source that I spoke with a few months prior to the stop as well, and this person told me that Mr. Pier was also actively selling drugs in Albany County.

         [¶7] Deputy Colling began preparing a citation for the cracked windshield, and because he needed Mr. Pier's contact information to complete it, he returned to Mr. Pier's vehicle. On his return, Deputy Colling saw that the black pouch that had been behind Mr. Pier's right leg was no longer there, which further raised his suspicions.

Q. What was suspicious to you about this black bag?
A. Well, I've been in this line of work for 12 years and I've seen thousands of drug cases. It's very common that people who carry drugs, use drugs, sell drugs, possess drugs in sort of fashion use a small - a small kind of pouch, and it's their - it's their drug kit, so to speak.
Q. Was that your suspicion on that day?
A. Yes, it was.
Q. Okay. Was it buoyed by the fact of your prior knowledge of Mr. Pier's past?
A. Yes.

         [¶8] Deputy Colling proceeded to ask Mr. Pier for his contact information so he could complete the citation. He "really stuttered over his words" when he gave Deputy Colling his address and then inverted the numbers when he repeated his address. He did the same thing with his telephone number, which caused Deputy Colling to believe that he was trying to conceal where he lived. Deputy Colling then asked Mr. Pier where he was coming from and where he was headed. His responses caught Deputy Colling's attention because his destination was a mile or more away from where he pulled over. Deputy Colling then asked Mr. Pier why he had pulled over on Cedar Street. He stated that he stopped in front of the house to see a friend or someone who lived there, but when Deputy Colling asked who lived in the house, he could not provide a name and just stated, "I don't know." Deputy Colling then asked Mr. Pier if he had any weapons in the vehicle, to which he responded that he had some knives.

         [¶9] After this second contact, Deputy Colling decided to detain Mr. Pier and request that a K-9 unit be dispatched to his location. He explained his decision:

Q. And why did you have Mr. Pier step out of the vehicle?
A. Well, it was really the totality of the circumstances. He - he pulled over very abruptly without being signaled. His intent look into the mirror. His - without me even talking to him, he asked me what was going on and continually asked me what was going on during the stop. He was very paranoid, very fidgety with his hands, shaking like a leaf, so to speak. It appeared he was trying to conceal that black bag initially with his leg, and then the second time I approached him, the black bag was gone. He had prior convictions for - for drug - for drugs, and I had prior information that he was actively selling drugs. It was just a very, very, very strange situation. He had lied about his - about his address, about his phone number, and didn't really have a legitimate reason for stopping where he was. So it was just a very strange thing. I thought there was some kind of crime afoot.

         [¶10] When Mr. Pier exited his vehicle, he left his door open and Deputy Colling was able to see that the black pouch had been tucked underneath the truck's center console. Deputy Colling directed Mr. Pier toward the front of his patrol vehicle, conducted a pat-down of his person, and then called for a K-9 unit. Deputy Colling described what occurred during the time they waited for the K-9 unit.

Q. * * * Particularly what happened while you were waiting with Mr. Pier for the K9 unit to get there?
A. When Mr. Pier opened his door, when I asked him to exit the vehicle, he left his door open. And that would be the driver side door of his [pickup] truck. I directed him back to the front of my vehicle and again, like I said, conducted the pat down. During those several minutes that we were waiting for the - for the dog to come, Mr. Pier became very angry that his door was open and he ordered me to shut his door. I told him that I was not going to shut his door.
I also walked towards his vehicle and Mr. Pier again became very angry. He told me that I didn't have permission to search his vehicle, and I told him I wasn't going to search his vehicle, and Mr. Pier started walking towards me, just kind of bowing out his arms, puffing out his chest, like he wanted to fight and again ordered me to shut the door. I told him I wasn't going to shut the door and I wasn't going to let him anywhere near the vehicle. Based on his actions and the fact that there were knives in the vehicle, I wasn't going to let him touch his vehicle nor shut his door.

         [¶11] A Wyoming Highway Patrol K-9 unit reported to the scene about fifteen to twenty minutes after Deputy Colling called in his request. Trooper Aaron Kirlin was the handler and his K-9 was Frosty, a springer spaniel. Trooper Kirlin had Frosty on a leash approximately ten feet long, and began Frosty's exterior sniff at the back driver's side of Mr. Pier's truck. Deputy Colling described Frosty's actions during the exterior sniff.

Q. And how exactly did that go?
A. He led his dog around from the - from the driver's side, so he started at the back, the back driver's side of the truck. He led his dog towards the front of the vehicle. I saw Trooper Kirlin walk past the open door and directed [sic] Frosty towards the front quarter panel of the vehicle in front of the open door. Frosty stopped by the driver's side door that was already open. I saw Frosty sniff in the air and then Frosty jumped into the vehicle.
I'm not a K9 handler, but it appeared that Frosty stuck his nose right by that black bag and kind of stiffened up. Trooper Kirlin told me later that Frosty had alerted to the odor of a controlled substance.

         [¶12] Based on Frosty's alert, Deputy Colling determined he had probable cause to believe controlled substances would be found in Mr. Pier's vehicle, and he searched it. He found approximately three grams of marijuana in plant form in the black pouch under the truck's center console. In another black pouch, Deputy Colling found fifty anabolic steroid tablets with a total weight of approximately five grams.

         B. Proceedings Below

         [¶13] On September 8, 2016, the State filed an information charging Mr. Pier with felony possession of marijuana, third or subsequent offense, and felony possession of anabolic steroids. Mr. Pier was arraigned and pled not guilty to the charges, and on December 19, 2016, he filed a motion to suppress the evidence obtained in the search of his vehicle.

         [¶14] On March 30, 2017, the district court held a hearing on Mr. Pier's motion to suppress. Noting that the State bore the burden of proving the legality of the search, the court directed the State to put on its evidence first. The State offered the testimony of only one witness, Deputy Colling.[1] The court then heard argument on the motion and took the matter under advisement.

         [¶15] On April 3, 2017, the district court issued an order denying Mr. Pier's motion to suppress. The court found that Frosty's leap into the vehicle during his exterior sniff was spontaneous and not in response to a command or encouragement by Trooper Kirlin. The court also found that because it was Mr. Pier, and not Trooper Kirlin, who opened and left open the vehicle's door, Trooper Kirlin did not facilitate Frosty's entry into the vehicle. For these reasons, the court concluded Frosty's alert did not violate the Fourth Amendment and provided probable cause for Deputy Colling's search. The court further concluded that even in the absence of Frosty's alert, Deputy Colling had probable cause to search the vehicle. It reasoned:

Additional probable cause came from the culmination of the information known to Deputy Colling at the time he asked Mr. Pier to exit the vehicle combined with Mr. Pier's extreme and aggressive dealings with Deputy Colling while awaiting the arrival of the K-9 unit. Mr. Pier was insistent, to the point of near-violence, on closing his vehicle door and not allowing Deputy Colling near the vehicle. The Court places no emphasis on Mr. Pier's constitutional right to deny a search, or even his desire to have his vehicle closed. However, Mr. Pier's extreme reactions are noteworthy and, under a totality of the circumstances, justified a search of the vehicle.

         [¶16] The State and Mr. Pier reached a plea agreement. In exchange for the State's agreement to dismiss the felony marijuana possession charge and make a sentencing recommendation, Mr. Pier agreed to plead guilty to felony steroid possession, subject to his right to appeal the district court's suppression ruling. On May 31, 2017, the district court issued its order accepting Mr. Pier's conditional guilty plea, and on that same date the court entered its judgment, which sentenced Mr. Pier to the State-recommended prison term of eighteen to twenty-four months. Mr. Pier filed a timely notice of appeal to this Court.


         [¶17] When a defendant challenges a warrantless search, the State bears the burden of proving the legality of the search. Pena v. State, 2004 WY 115, ¶ 29, 98 P.3d 857, 870 (Wyo. 2004). We review the district court's suppression ruling as follows:

We review the district court's factual findings on a motion to suppress for clear error. We defer to those findings and view the evidence in the light most favorable to the prevailing party because the district court is in the best position to weigh the evidence, assess the credibility of witnesses, and make the necessary inferences, deductions, and conclusions. However, we review the ultimate determination regarding the constitutionality of a particular search or seizure de novo.

Clay v. State, 2016 WY 55, ¶ 14, 372 P.3d 195, 197 (Wyo. 2016) (quoting Allgier v. State, 2015 WY 137, ¶ 11, 358 P.3d 1271, 1275 (Wyo. 2015)).


         [¶18] Mr. Pier challenges the district court's suppression ruling on numerous fronts. He contends: (1) Deputy Colling's traffic stop was illegal; (2) Deputy Colling lacked reasonable suspicion to detain him; (3) Frosty's entry into the vehicle was illegal; and (4) Deputy Colling did not have probable cause to search his vehicle without Frosty's alert. For each of these claims, Mr. Pier asserts constitutional violations under both the Wyoming and the United States constitutions. Because most of these arguments were not presented to the district court in a clear manner and with cogent argument and authority, we begin our discussion by narrowing the questions we will address.

         [¶19] "[A] conditional plea of guilty or nolo contendere, while providing a mechanism for appellate review, does not provide carte blanche permission for an appellant to present any and all arguments on appeal." Ward v. State, 2015 WY 10, ¶ 15, 341 P.3d 408, 411 (Wyo. 2015) (quoting Kunselman v. State, 2008 WY 85, ¶ 11, 188 P.3d 567, 569-70 (Wyo. 2008)); see also, Tibbetts v. State, 2017 WY 9, ¶ 12, 388 P.3d 517, 520 (Wyo. 2017). An appellant "may only raise those issues on appeal which were clearly called to the attention of the district court" and were supported by "at least a minimum effort to present a cogent legal argument." Flood v. State, 2007 WY 167, ¶ 12, 169 P.3d 538, 543 (Wyo. 2007) (quotation marks and citations omitted). With respect to Wyoming constitutional arguments in particular, we have said:

An appellant does not preserve a Wyoming constitutional argument for appeal by merely citing to the Wyoming Constitution in his motion to suppress without independent supporting analysis of why or how that constitution provides different or more extensive protections.

Phippen v. State, 2013 WY 30, ¶ 12, 297 P.3d 104, 108 (Wyo. 2013) (citing Flood, ¶ 12, 169 P.3d at 543).

         [¶20] Mr. Pier's motion to suppress was a three-sentence document. The first two sentences asserted that Deputy Colling's traffic stop and search of Mr. Pier's vehicle, and Frosty's entry into the vehicle, violated both the Wyoming and United States constitutions. The third sentence informed the district court that additional authority would be presented at the suppression hearing. During the suppression hearing itself, Mr. Pier presented only two arguments: that Frosty's vehicle entry was illegal and that without Frosty's alert, Deputy Colling did not have probable cause to search his vehicle. Mr. Pier did not offer a separate state constitutional analysis, and he did not challenge the traffic stop or Deputy Colling's grounds for extending the traffic stop. Because Mr. Pier failed to present the district court with his arguments about probable cause for the stop or reasonable suspicion to continue his detention, we decline to consider those claims here. Similarly, we decline to consider Mr. Pier's argument about the Wyoming Constitution.[2]

         Independent ...

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