Barney v. State, S-21-0122

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBOOMGAARDEN, JUSTICE.
Citation2022 WY 49
PartiesHAROLD WILLIAM BARNEY III, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
Docket NumberS-21-0122
Decision Date11 April 2022

2022 WY 49

HAROLD WILLIAM BARNEY III, Appellant (Defendant),

THE STATE OF WYOMING, Appellee (Plaintiff).

No. S-21-0122

Supreme Court of Wyoming

April 11, 2022

Appeal from the District Court of Crook County The Honorable Thomas W. Rumpke, Judge

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Francis H. McVay, Senior Assistant Appellate Counsel. Argument by Mr. McVay.

Representing Appellee: Bridget L. Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Timothy P. Zintak, Senior Assistant Attorney General. Argument by Mr. Zintak.




[¶1] Harold William Barney III entered conditional guilty pleas to possession of marijuana, aggravated fleeing or attempting to elude, reckless endangering, and interference with a peace officer. He reserved his right to appeal the district court's denial of his motion to suppress. On appeal Mr. Barney challenges the constitutionality of his traffic stop under the Fourth Amendment to the United States Constitution. We affirm.


[¶2] The dispositive issues are:

I. Did Mr. Barney waive his Fourth Amendment claim by filing an untimely motion to suppress
II. Did the district court err in denying Mr. Barney's motion to suppress


[¶3] Around 4:36 p.m. on January 5, 2020, Crook County Sheriff's Office Sergeant Daniel Bush initiated a traffic stop after seeing a Nissan Rogue driving over the speed limit on Highway 585. He activated his body camera to record the traffic stop.

[¶4] Sergeant Bush explained to the driver, Mr. Barney, that he pulled him over for speeding. Mr. Barney volunteered his driver's license and an Enterprise rental car pamphlet. Sergeant Bush asked Mr. Barney about his travel plans and whether he had any weapons or anything illegal in the car. Mr. Barney said he did not.

[¶5] When Sergeant Bush returned to his patrol car, he opened the Enterprise pamphlet and realized it contained no rental agreement so he returned to the Nissan Rogue and asked Mr. Barney if he had a copy. Mr. Barney said Enterprise had not given him any additional paperwork and then began searching his phone for an email from Enterprise.

[¶6] Five minutes into the stop, Mr. Barney showed Sergeant Bush his phone and stated that all he had was a reminder email. Sergeant Bush said he needed to see the rental agreement to ensure Mr. Barney legally possessed the rental car. As Mr. Barney continued searching his phone, Sergeant Bush asked him more travel plan questions. After a couple minutes, Mr. Barney stated he had his reservation, identification, and membership information, but he could not find the email Sergeant Bush needed and offered to call Enterprise himself. Sergeant Bush did not take him up on his offer.


[¶7] Eleven minutes into the stop, Sergeant Bush walked back towards his patrol vehicle to talk to Deputy Troy Skeens, who had arrived to assist. Sergeant Bush explained to Deputy Skeens that Mr. Barney did not have a rental agreement. He told the deputy that, based on Mr. Barney's behavior and answers to questions, he intended to conduct a free air dog sniff on the car. Though Deputy Skeens did not have a computer, Sergeant Bush asked him to verify Mr. Barney's driver's license and they discussed calling Enterprise to confirm Mr. Barney legally possessed the car.

[¶8] Sergeant Bush then returned to the Nissan Rogue and asked Mr. Barney if he had found the agreement. Mr. Barney initially said he found something but then explained there had been an issue with him having two car reservations. Sergeant Bush informed Mr. Barney he intended to walk his drug dog around the car while Mr. Barney continued searching his phone. Before doing so, Sergeant Bush asked Mr. Barney whether he had anything illegal in the car and whether he would consent to a search. Mr. Barney denied having anything illegal and did not consent. During this exchange, Sergeant Bush's body camera recorded Deputy Skeens reading Mr. Barney's driver's license information to dispatcher Jan Pruet over the radio.

[¶9] The trained drug dog alerted on the front passenger door of the Nissan Rogue about 14 minutes into the stop. Around the same time, Ms. Pruet stated over the radio that Mr. Barney's license was valid. She then began contacting Enterprise to determine whether Mr. Barney had a valid rental agreement. The verification process was lengthy because she "had to go through several channels before [reaching Enterprise's] law enforcement section[.]"

[¶10] While the rental agreement search was ongoing, Sergeant Bush spoke with Mr. Barney again. During this exchange Mr. Barney denied having any drugs in the car or having previously smoked marijuana in it. He eventually said he could not find an email identifying him as the person who rented the car. Approximately 20 minutes into the stop, Sergeant Bush informed Mr. Barney the dog had alerted to the odor of a controlled substance in the car and asked him to exit so Sergeant Bush could search it. Mr. Barney locked the doors and refused to exit. Officers spent over 30 minutes trying to convince him to exit the car. Near the end of this half hour and approximately 51 minutes into the stop Ms. Pruet confirmed over the radio that Mr. Barney had a valid rental agreement.

[¶11] Eventually, Officer Chris Tomford of the Sundance Police Department approached Mr. Barney's car with a tool to break his car window. When Mr. Barney saw this, he fled the scene. During the ensuing high speed chase after dark Mr. Barney drove over 100 miles per hour on the interstate with no headlights and forced other vehicles off the interstate. The chase continued from the interstate onto several nearby highways and roads. Mr. Barney ran several stop signs along the way before crashing his car in a ditch.


[¶12] After Mr. Barney was transported for medical treatment, Sergeant Bush noticed fresh human footprints in the snow leading from the rental car into the woods. He followed the footprints and found multiple containers of marijuana hidden under brush near the tracks. The marijuana, including packaging, weighed over 13 ounces.

[¶13] The State charged Mr. Barney with nine crimes, including two counts of aggravated assault and battery (Counts 1 and 2); two counts of interference with a peace officer (Counts 3 and 4); felony possession of marijuana (Count 5); aggravated fleeing or attempting to elude (Count 6); reckless endangering (Count 7); interference with a peace officer (Count 8); and fleeing or attempting to elude (Count 9). The circuit court bound over all but Count 3 to the district court, where Mr. Barney pleaded not guilty.

[¶14] In February, the district court issued an initial case management order setting a March 12 deadline for all pretrial motions, including motions to suppress. In May, Mr. Barney's public defender moved to continue all proceedings because Mr. Barney wanted to hire private counsel. Private counsel entered an appearance and moved to extend the pretrial deadline, but the court never ruled on the request. It issued three amended case management orders, none of which extended the pretrial motion deadline.

[¶15] Mr. Barney filed his motion to suppress on June 29. He argued the following: Sergeant Bush did not have reasonable suspicion to expand the traffic stop's scope; Sergeant Bush's persistent questioning was improper and prevented him from finding his rental agreement; he produced an email confirming his rental car reservation; and the dog alert did not provide probable cause to search the car because Wyoming drug dogs cannot differentiate between marijuana and legal hemp.

[¶16] The State objected to Mr. Barney's motion to suppress as untimely. The State responded to the motion after the court scheduled a suppression hearing, primarily arguing that neither the alleged improper questions nor the dog sniff extended the stop because Mr. Barney could not produce his rental car agreement. It further argued Sergeant Bush had reasonable suspicion to prolong the stop for a dog sniff; the dog alert provided probable cause to search the car; and the exclusionary rule did not apply because Sergeant Bush did not act deliberately, recklessly, or with gross negligence.

[¶17] At the suppression hearing, Sergeant Bush testified about the traffic stop, and the court admitted a copy of his body camera video. In addition, Ms. Pruet testified about checking Mr. Barney's driver's license and contacting Enterprise to verify he legally possessed the car.

[¶18] The court denied Mr. Barney's motion to suppress on alternative grounds. First, it denied his motion as untimely because the initial case management order required all pretrial motions be filed no later than March 12 and Mr. Barney filed his motion on June 29. In the alternative, it denied his motion on the merits. The court reasoned that Sergeant


Bush's persistent questioning may have been improper but it did not prolong the traffic stop because officers could reasonably detain Mr. Barney until he produced a rental car agreement, which he never did. Further, Sergeant Bush conducted the dog sniff while Deputy Skeens continued the mission of verifying Mr. Barney's driver's license and determining whether he had a valid rental agreement.

[¶19] Mr. Barney pleaded guilty to Counts 5, 6, 7, and 8, conditioned on his right to appeal the denial of his motion. The court found him guilty, dismissed the remaining counts, and ordered that he had "the right to appeal the motion to suppress heard and denied by the court in accordance...

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