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Pier v. State

Supreme Court of Wyoming

January 11, 2019

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

          Appeal from the District Court of Albany County The Honorable Dawnessa A. Snyder, Judge

          Representing Appellant: Office of the Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Benjamin E. Fischer, Assistant Attorney General.

          Before DAVIS, C.J., and BURKE [*] FOX, KAUTZ, and BOOMGAARDEN, JJ.

          KAUTZ, JUSTICE.

         [¶1] Joshua Lee Pier was convicted of three controlled substance charges. On appeal, he claims the district court erred by denying his motion to suppress the evidence discovered during a search of his vehicle. We affirm.

         ISSUE

         [¶2] Mr. Pier states a single issue on appeal:

Did the trial court commit constitutional error and abuse its discretion by failing to suppress evidence that was obtained by illegal search and seizure contrary to the Fourth Amendment of the United States Constitution?

         FACTS

         [¶3] In April 2017, Wyoming Division of Criminal Investigation Special Agent Luke Rippy learned that Mr. Pier was supplying Derek Archibeque with methamphetamine. Mr. Archibeque said Mr. Pier obtained drugs from a man in Colorado named Terry Kelly and he had accompanied Mr. Pier on one of his trips to pick up drugs from Mr. Kelly. Mr. Archibeque described Mr. Kelly as a white male approximately six feet tall with a bald head and light brown goatee. Mr. Archibeque told Special Agent Rippy that Mr. Pier drove a green Chevrolet pickup and hid the drugs in gas station cups disguised as trash. He also said Mr. Pier used methamphetamine with his girlfriend, Naomi Atkinson.

         [¶4] Special Agent Rippy was able to confirm much of the information provided by Mr. Archibeque. He was familiar with Ms. Atkinson from prior cases and "knew her to be a user of methamphetamine." Special Agent Rippy checked with Colorado law enforcement and learned Mr. Kelly was under investigation for drug trafficking. He obtained a driver's license photo of Mr. Kelly which matched the physical description given by Mr. Archibeque, and the Northern Colorado Drug Task Force identified the person in the photo as Mr. Kelly. Special Agent Rippy was also able to confirm Mr. Pier drove a vehicle consistent with the one described by Mr. Archibeque.

         [¶5] Special Agent Rippy applied for and received a search warrant to place a global positioning system (GPS) tracking device on Mr. Pier's pickup. At 12:39 a.m. on May 5, 2017, the tracker alerted Special Agent Rippy that Mr. Pier's pickup had left Laramie headed south on U.S. Highway 287. At 12:57 a.m., the pickup crossed the state line into Colorado.

         [¶6] Special Agent Rippy contacted Wyoming Highway Patrol Trooper Aaron Kirlin at approximately 4:30 a.m. on May 5, 2017. Special Agent Rippy had previously informed Trooper Kirlin about his investigation into Mr. Pier's drug-related activities and requested that the trooper and his drug-detection canine, Frosty, assist in the investigation. At 5:10 a.m. on May 5, 2017, the GPS tracking device alerted Special Agent Rippy that Mr. Pier's vehicle had re-entered the State of Wyoming and was headed north towards Laramie on U.S. Highway 287. Special Agent Rippy advised Trooper Kirlin of Mr. Pier's approach. Special Agent Rippy told Trooper Kirlin the suspect was Mr. Pier, described the vehicle he was driving, and said he suspected there would be controlled substances in the vehicle, which may be hidden in disposable cups disguised to look like garbage.

         [¶7] Mr. Pier's pickup turned off Highway 287 onto Fort Sanders Road, and Trooper Kirlin headed in that direction. When Trooper Kirlin located Mr. Pier's vehicle, he used his radar to determine Mr. Pier was driving 43 miles per hour in a 40 mile per hour zone. Trooper Kirlin decided to stop Mr. Pier for the speeding violation. The trooper caught up with Mr. Pier as he turned onto a side street and into a trailer park. Mr. Pier stopped his vehicle next to one of the trailers, got out and began walking away. Trooper Kirlin activated his lights and exited the patrol vehicle. He directed Mr. Pier to "come over" to him and informed Mr. Pier that he was going to issue him a warning for speeding.

         [¶8] Trooper Kirlin patted Mr. Pier down for weapons and asked him to sit in the front passenger seat of the patrol vehicle. Mr. Pier said he did not have a driver's license, and Trooper Kirlin asked for his name. Mr. Pier replied that his name was "Jonah," which is his brother's name. He also gave Trooper Kirlin his brother's date of birth. Based upon prior interactions with Mr. Pier, Trooper Kirlin knew the answer was untrue. Trooper Kirlin asked Mr. Pier why he was lying, and he said he was worried that his driver's license was suspended. Trooper Kirlin confirmed Mr. Pier's identity and that he had a valid driver's license.

         [¶9] Trooper Kirlin asked Mr. Pier about his travels - where he had come from and where he was going. Mr. Pier responded that he had come from his girlfriend's house "[j]ust down the street," where he had "been all night." He said he had pulled onto the side street because he was "doing . . . some construction work in the general area." Trooper Kirlin knew Mr. Pier's answer about where he was traveling from was not true because the GPS tracking device on Mr. Pier's pickup showed he had just come from Colorado. Trooper Kirlin stated that his investigation of the speeding ended when Mr. Pier "starting lying" to him.

         [¶10] Trooper Kirlin asked Mr. Pier if there was anything illegal in the pickup, and Mr. Pier responded in the negative. Trooper Kirlin asked for permission to search the pickup, but Mr. Pier refused to consent to a search. Trooper Kirlin then deployed Frosty to sniff the exterior of the pickup. Frosty alerted at the driver's side window.

         [¶11] Trooper Kirlin searched Mr. Pier's vehicle, which was filled with "stuff." Mr. Pier said he was living in his pickup. Trooper Kirlin discovered:

a small amount of prescription pills found in a cigarette box, two scales with suspected methamphetamine residue found in a backpack behind the driver's seat, a gas station coffee cup that contained two large bags of methamphetamine, a small bag of methamphetamine, a bag of black tar heroin, a bag of powdered heroin, a bag of marijuana, several jewelers bags, several syringes, and another small scale.

         [¶12] Trooper Kirlin arrested Mr. Pier, and the State charged Mr. Pier with four counts: 1) possession of methamphetamine in an amount greater than three grams; 2) possession with intent to deliver methamphetamine; 3) possession of heroin in an amount greater than three grams; and 4) possession with intent to deliver heroin. Mr. Pier pleaded not guilty and filed a motion to suppress the evidence obtained in the search of his pickup.[1] The district court held a hearing on Mr. Pier's motion to suppress on November 21, 2017. In an order dated December 7, 2017, the district court denied the motion.

         [¶13] Mr. Pier was tried before a jury in December 2017. The jury found him guilty of the first three counts but acquitted him of the fourth count. The district court entered judgment on the jury's verdict. It concluded the first two counts (possession of methamphetamine and possession with intent to deliver methamphetamine) merged for sentencing and sentenced Mr. Pier to serve ten to fifteen years in prison on Count II. It sentenced Mr. Pier to serve three to five years in prison on Count III, to run concurrently to the sentence on Count II. Mr. Pier filed a timely notice of appeal.

         STANDARD OF REVIEW

         [¶14] We apply the following standard in reviewing a denial of a motion to suppress evidence:

[W]e defer to the court's findings of fact unless they are clearly erroneous. Jennings v. State, 2016 WY 69, ¶ 8, 375 P.3d 788, 790 (Wyo. 2016). We consider the evidence in the light most favorable to the district court's decision because the court had the opportunity to assess the credibility of the witnesses and hear the evidence in the first instance. Owens v. State, 2012 WY 14, ¶ 8, 269 P.3d 1093, 1095 (Wyo. 2012). The underlying legal issue-whether a search or seizure was unreasonable ...

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