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.
DAVIS, C.J., and HILL [†] , BURKE [‡]
, FOX and KAUTZ, JJ.
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.
Mr. Pier presents four issues on appeal:
I. The peace officer lacked probable cause to stop the
II. The peace officer lacked subsequent reasonable suspicion
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.
Traffic Stop and Vehicle Search
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.
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.
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
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
Q. And what happened after that? Was he able to find all of
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
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.
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
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.
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?
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.
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.
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
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.
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.
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.
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. The court then heard argument on the
motion and took the matter under advisement.
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 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.
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)).
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.
"[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).
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.