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Brown v. State

Supreme Court of Wyoming

April 18, 2019

DEVON MATTHEW BROWN, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Campbell County The Honorable Michael N. Deegan, Judge

          Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Desiree Wilson, Senior Assistant Appellate Counsel. Argument by Ms. Wilson.

          Representing Appellee: Peter K. Michael, Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Darrell D. Jackson, Faculty Director, Catherine M. Mercer, Student Director, Lucas Plumb, Student Intern, of the Prosecution Assistance Program. Argument by Mr. Plumb.

          Before DAVIS, C.J., FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.


         [¶1] Devon Matthew Brown entered a conditional guilty plea to felony possession of a controlled substance (marijuana) with intent to deliver, reserving his right to appeal the district court's denial of his motion to suppress evidence. On appeal, Mr. Brown contends that law enforcement unlawfully detained him to conduct a canine sniff after completing a traffic stop. We reverse.


         [¶2] Mr. Brown presents two issues for review:

I. Whether the district court's finding that Mr. Brown's demeanor changed when he revoked consent was clearly erroneous?
II. Whether Mr. Brown was subjected to an unreasonable search and seizure in violation of the Fourth Amendment to the United States Constitution?

         The State raises a third issue: Whether Mr. Brown waived his right to assert that the traffic stop concluded earlier than Mr. Brown argued during the suppression hearing?


         [¶3] On August 31, 2016, Corporal Gary Spears of the Campbell County Sheriff's Department observed Mr. Brown's red utility vehicle traveling at a high rate of speed in Gillette, Wyoming. Corporal Spears turned around to catch up to the vehicle and observed Mr. Brown swerving within his lane of travel, crossing the center line, and clocked him going 53 miles per hour in a 45 mile per hour zone. As Corporal Spears neared Mr. Brown's vehicle, Mr. Brown quickly entered a turn lane, hit his brakes, and entered a dead-end street.

         [¶4] Corporal Spears initiated a traffic stop and approached Mr. Brown. When asked about his travel plans, he stated he was headed to his home, which was not located on the dead-end street, after traveling to Gillette from Torrington. He informed Corporal Spears that he had received a speeding ticket earlier that day on the interstate near Wheatland and that he was tired from his long drive.

         [¶5] Corporal Spears initially suspected that Mr. Brown might be intoxicated because of his driving and bloodshot eyes. However, he did not appear to be intoxicated during questioning, which led Corporal Spears to believe his driving, including his abrupt turn, "could be from trying to conceal something." Corporal Spears obtained Mr. Brown's identification and returned to his patrol vehicle where he learned from his dispatcher that Mr. Brown was on unsupervised probation for possession of marijuana.

         [¶6] Corporal Spears decided not to issue a traffic citation. He went back to Mr. Brown's vehicle and returned his identification. When asked, Mr. Brown confirmed he was on probation and volunteered, "You may sobriety test me, you may look, do whatever you like, the other cop did as well." During this conversation, Corporal Spears thought he smelled a faint odor of marijuana, but due to the wind, it was difficult to be sure. He decided to accept Mr. Brown's unsolicited offer to search and requested Mr. Brown exit the vehicle so he could run his drug dog through it.

         [¶7] Mr. Brown hesitated at that point, and he told Corporal Spears that he wanted to make a call to his friend or his mother because it wasn't his vehicle. Corporal Spears explained that he could consent even if he did not own the car, but Mr. Brown remained hesitant. He asked if he could go, but Corporal Spears insisted that he exit the vehicle and stated, "First of all, [you're] totally cooperative, I said ok, you're balking now, so minimum intrusion, I'm gonna run the dog around your car." Mr. Brown complied, and Corporal Spears retrieved his drug dog, who alerted to the exterior of the vehicle in less than a minute.

         [¶8] Corporal Spears searched the interior of the vehicle and found a jar containing marijuana and another package with three sealed baggies of marijuana. The State charged Mr. Brown with felony possession of a controlled substance with intent to deliver.

         [¶9] Mr. Brown filed a motion to suppress, arguing that Corporal Spears lacked reasonable articulable suspicion to expand the scope of the stop and to conduct a canine sniff. The district court denied Mr. Brown's motion after an evidentiary hearing. It found that several factors supported a finding of reasonable suspicion to extend the stop, and that the length of the detention, ten minutes and thirty-seven seconds, was not unreasonable. After the district court denied his motion, Mr. Brown entered a conditional plea of guilty, preserving his right to appeal the adverse decision on his suppression motion. The district court sentenced Mr. Brown to three to five years of imprisonment, with credit for 54 days served, and suspended the sentence subject to four years of supervised probation. Mr. Brown timely appealed after entry of the Sentence and Probation Order.


         [¶10] In reviewing a denial of a motion to suppress evidence, we adopt the district court's factual findings unless those findings are clearly erroneous. Rodriguez v. State, 2018 WY 134, ¶ 15, 430 P.3d 766, 770 (Wyo. 2018) (citing Jennings v. State, 2016 WY 69, ¶ 8, 375 P.3d 788, 790 (Wyo. 2016)). We view the evidence in the light most favorable to the district court's decision because the court conducted the hearing and had the opportunity to "assess the witnesses' credibility, weigh the evidence and make the necessary inferences, deductions and conclusions." Kunselman v. State, 2008 WY 85, ¶ 9, 188 P.3d 567, 569 (Wyo. 2008) (quoting Hembree v. State, 2006 WY 127 ¶ 7, 143 P.3d 905, 907 (Wyo. 2006)). "On those issues where the district court has not made specific findings of fact, this Court will uphold the general ruling of the court below if supported by any reasonable view of the evidence." Feeney v. State, 2009 WY 67, ¶ 9, 208 P.3d 50, 53 (Wyo. 2009) (citing Neilson v. State, 599 P.2d 1326, 1330 (Wyo. 1979)). "The ultimate question of whether the search or seizure was legally justified, however, is a question of law we review de novo." Rodriguez, ¶ 15, 430 P.3d at 770.


         [¶11] Mr. Brown challenges the denial of his motion to suppress, claiming that Corporal Spears unlawfully detained him after returning his identification approximately seven minutes and forty seconds into the stop, or alternatively, approximately nine minutes and fourteen seconds into the stop when Mr. Brown revoked his consent to search and asked if he could leave. In response, the State contends that Mr. Brown waived any claim that he was unlawfully detained on return of his identification, but regardless, that Corporal Spears had reasonable, articulable suspicion to detain him to conduct a canine sniff after completing the traffic stop. We first address the State's contention that Mr. Brown failed to preserve any claim that he was unlawfully detained on return of his identification.

         I. Waiver

         [¶12] The State correctly notes that a guilty plea waives appellate review of all non-jurisdictional claims, including claims of unlawfully obtained evidence. See, e.g., Kunselman, ¶ 11, 188 P.3d at 569. W.R.Cr.P. 11(a)(2) provides the sole exception to the waiver rule and "allows a defendant to plead guilty while reserving the right to seek review on appeal of any specified pretrial motion." Kunselman, ¶ 11, 188 P.3d at 569. We have cautioned that although a conditional guilty plea provides a mechanism for appellate review, it does not provide carte blanc he permission to present any and all arguments on appeal. Id. ¶ 11, 188 P.3d at 570. Rather, an appellant's argument is limited to those issues clearly brought to the district court's attention. Id.

         [¶13] In determining the scope of an issue brought to the district court's attention, we will read any ambiguity in the conditional plea agreement "against the Government and in favor of a defendant's appellate rights." United States v. Anderson, 374 F.3d 955, 957 (10th Cir. 2004) (citation omitted); see also Lovato v. State, 901 P.2d 408, 411 (Wyo. 1995) (explaining that "W.R.Cr.P. 11(a)(2) is identical, in all material aspects, to the corresponding federal rule" and consideration of relevant federal precedent is therefore proper). "[T]he text of the plea agreement is our guide." Anderson, 374 F.3d at 957.

         Applying these standards, we are not persuaded that Mr. Brown waived his right to argue that he was unlawfully detained after Corporal Spears returned his identification.

         [¶14] In his plea agreement, Mr. Brown reserved the right to "seek review of the adverse determination of his Motion to Suppress Evidence." His suppression motion broadly challenged the scope of the stop, contending that Corporal Spears lacked reasonable suspicion:

6. The deputy improperly expanded the scope of the stop without reasonable articulable suspicion of further illegal activity.
7. All evidence obtained in violation of the defendant's Fourth Amendment right against illegal searches and seizures should therefore be suppressed pursuant to both the United States and Wyoming Constitutions.

         (Emphasis added.) After the suppression hearing concluded, the district court determined that "there was reasonable cause to detain the young man so as to permit the dog to do a free air sniff, not in the vehicle, but around the vehicle." Nothing in the plea agreement, the suppression motion, or the district court's denial of the suppression motion limited Mr. Brown's Fourth Amendment challenge to precisely nine minutes and fourteen seconds into the stop.

         [¶15] We acknowledge that Mr. Brown's argument became more focused at the suppression hearing when his counsel argued during closing remarks that Corporal Spears lacked reasonable suspicion to further detain him after he revoked his consent and asked to leave nine minutes and fourteen seconds into the stop, whereas Mr. Brown now contends that the traffic stop concluded two minutes earlier. However, the district court did not specifically determine when Corporal Spears completed the traffic stop, and Mr. Brown's general allegation that Corporal Spears unlawfully expanded the scope of the stop without reasonable articulable suspicion has not changed.

         [¶16] These circumstances are different from those in cases where we determined waiver applied. See, e.g., Morgan v. State, 2004 WY 95, ¶¶ 22-25, 95 P.3d 802, 808-09 (Wyo. 2004) (appellant waived right to argue a lack of probable cause and failure to establish foundation for reliability of the drug dog where appellant limited the suppression motion to whether an exterior dog sniff constituted a search); Lindsay v. State, 2005 WY 34, ¶¶ 19 n.7, 108 P.3d 852, 857 n.7 (Wyo. 2005) (declining to consider appellant's challenge to the reasonableness of the initial stop where appellant only challenged the reasonableness of the further detention before the district court); Kunselman, ¶¶ 10-12, 188 P.3d at 569-70 (appellant waived right to challenge the legality of the initial stop because her motion to suppress and argument at the suppression hearing focused on the scope and duration of the stop and the subsequent search of her purse); see also Anderson, 374 F.3d at 958 (new theory advanced on appeal fell outside the scope of appellant's reserved appellate rights where the plea agreement preserved only the right to appeal the order denying defendant's motion to suppress and neither the order nor the motion raised the new "improper-patdown argument").

         [¶17] Furthermore, this is not a case in which the record is undeveloped, thus precluding our review. See, e.g., Snell v. State, 2014 WY 46, ¶ 24, 322 P.3d 38, 47 (Wyo. 2014) (declining to review an issue because the facts relevant to a determination were not developed before the district court); cf. Campbell v. State, 2004 WY 106, ¶ 14, 97 P.3d 781, 785 (Wyo. 2004) (finding sufficient evidence to review an issue the district court did not analyze). The evidence at the suppression hearing encompassed the entire stop, and it included Corporal Spears' body camera video.

         [¶18] The district court's decision rests largely on its finding that Corporal Spears had reasonable, articulable suspicion prior to Corporal Spears returning Mr. Brown's identification. The district court specifically noted that although Corporal Spears did not issue a citation, "[t]hat doesn't mean he can't take into account [the] myriad of factors" leading up to the return of Mr. Brown's identification, including Mr. Brown's probation status, and the district court analyzed all of those factors to support its reasonable suspicion determination. Consequently, the record makes available those facts relevant to our review of the district court's determination. For these reasons, we consider the full scope of his Fourth Amendment challenge.

         II. Scope of the Stop

         [¶19] Mr. Brown concedes that the initial traffic stop was justified, but he contends that his continued detention for a canine sniff of his vehicle after Corporal Spears completed the traffic stop violated the Fourth Amendment of the federal constitution.[1] U.S. Const. amend. IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ."). We evaluate the reasonableness of an investigatory stop under the Fourth Amendment by using the two-part inquiry from Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968): "(1) whether the initial stop was justified; and (2) whether the officer's actions during the detention were reasonably related in scope to the circumstances that justified the interference in the first instance." Kennison, ¶ 13, 417 P.3d at 150. "An officer's conduct is judged by an objective standard taking into account the totality of the circumstances." Sweets v. State, 2017 WY 22, ¶ 9, 389 P.3d 1214, 1216 (Wyo. 2017) (quoting LaPlant v. State, 2006 WY 154, ¶ 14, 148 P.3d 4, 7 (Wyo. 2006)). "[W]hile the test is objective, the officer's training, experience, and expertise are to be considered as part of the 'totality of the circumstances.'" Speten v. State, 2008 WY 63, ¶ 4, 185 P.3d 25, 28 (Wyo. 2008) (citing McKenney v. State, 2007 WY 129, ¶ 11, 165 P.3d 96, 98-99 (Wyo. 2007)).

         [¶20] As to the second prong of the Terry test, we note that "[a]n investigative detention must be temporary, lasting no longer than necessary to effectuate the purpose of the stop, and the scope of the detention must be carefully tailored to its underlying justification." Campbell, ¶ 12, 97 P.3d at 784. During a routine traffic stop, an officer may request a driver's license, proof of insurance, and vehicle registration, run a computer check, and issue a citation or warning. Id. ¶ 12, 97 P.3d at 785. The driver and his vehicle may only be detained for the period of time reasonably necessary to complete these routine matters. Id.; see also Rodriguez v. United States, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015). "Once the initial reason for a stop has been resolved, an officer must have specific, articulable facts and rational inferences giving rise to reasonable suspicion that another crime has been or is being committed to justify a continued detention." Meadows v. State, 2003 WY 37, ¶ 18, 65 P.3d 33, 38 (Wyo. 2003) (citing United States v. McRae, 81 F.3d 1528, 1534 (10th Cir. 1996)); see also O'Boyle v. State, 2005 WY 83, ¶ 49, 117 P.3d 401, 415 (Wyo. 2005).

         A.New Facts Are Not Required to Extend the ...

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