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.
DAVIS, C.J., FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
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.
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
II. Whether Mr. Brown was subjected to an unreasonable search
and seizure in violation of the Fourth Amendment to the
United States Constitution?
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?
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
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
Scope of the Stop
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. 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)).
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 ...