O'Boyle v. State

• Decision Date: 28 July 2005
• Docket Number: No. 04-125.,04-125.
• Citation: 117 P.3d 401,2005 WY 83
• Parties: Kevin Francis O'BOYLE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 401

117 P.3d 401

2005 WY 83

Kevin Francis O'BOYLE, Appellant (Defendant), v.The STATE of Wyoming, Appellee (Plaintiff).

No. 04-125.

Supreme Court of Wyoming.

July 28, 2005.

COPYRIGHT MATERIAL OMITTED

Representing Appellant: Terry W. Mackey of Moriarity, Gooch, Badaruddin & Booke, LLC, Cheyenne, Wyoming; Scott A. Homar of Hickey & Evans, LLP, Cheyenne, Wyoming; and Shawna M. Geiger of Shawna Mackey Geiger, P.C., Greenwood Village, Colorado.Argument by Mr. Mackey.

Representing Appellee: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Georgia L. Tibbetts, Senior Assistant Attorney General.Argument by Ms. Tibbetts.

Before HILL, C.J., and GOLDEN, KITE, and VOIGT, JJ., and STEBNER, D.J., RET.KITE, Justice.

[¶ 1]Kevin O'Boyle was stopped for speeding by the highway patrol on Interstate 80 near Cheyenne.After extensively questioning him in the patrol car, the trooper indicated Mr. O'Boyle was free to leave.As Mr. O'Boyle was returning to his vehicle, however, the trooper spoke to Mr. O'Boyle and obtained his agreement to further questioning and, ultimately, to a search of his vehicle.The trooper found approximately five pounds of marijuana in the vehicle.

[¶ 2] Prior to trial, Mr. O'Boyle filed a motion to suppress the evidence seized in the search, claiming that his rights were violated under article 1, § 4 of the Wyoming Constitution and the Fourth Amendment to the United States Constitution.The district court initially granted the motion and then upon reconsideration denied it on the basis of federal law.Mr. O'Boyle then pleaded guilty to one count of possession of a controlled substance in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii)(LexisNexis 2003), conditioned on his right to appeal the denial of his suppression motion.

[¶ 3]We hold that under all of the circumstances the questioning inside the patrol car was unreasonable and unconstitutional under article 1, § 4, of the Wyoming Constitution.We further hold that Mr. O'Boyle's consent to additional questioning outside the patrol car and his consent to the search were not voluntary under article 1, § 4.Analyzing the stop under the Fourth Amendment, we adhere to the rule established in Terry v. Ohio,392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 903-904(1968) that questioning during a traffic stop must be limited to the purpose of the stop, including a reasonable inquiry about travel plans, and may not be extended unreasonably beyond the scope of the initial stop absent valid consent, a reasonable suspicion of other illegal activity, or officer safety concerns.Applying this rule, we hold the detention and search were unconstitutional under the Fourth Amendment.

[¶ 4] Reversed.

ISSUES

[¶ 5] Mr. O'Boyle presents the following issue:

Did the Trial Court err in determining that the recent cases interpreting the federal constitution required him to reverse his Order Granting Motion to Suppress rather than following the Wyoming Constitution and the case law in support thereof?

The State re-phrases the issue as follows:

Did the district court err in denying Appellant's motion to suppress the marijuana evidence discovered during a search of his vehicle?

FACTS

[¶ 6] On February 1, 2003, Wyoming Highway Patrol Trooper Ben Peech stopped the rental car driven by Mr. O'Boyle for traveling 79 miles per hour in a 75 mile per hour zone.Trooper Peech, armed and in uniform, approached Mr. O'Boyle's vehicle and asked to see his driver's license and the rental car agreement.The trooper then asked Mr. O'Boyle to accompany him to his patrol car while he issued a warning for speeding.

[¶ 7] In the patrol car, Trooper Peech requested Mr. O'Boyle's criminal history from dispatch.While waiting for the history, he questioned Mr. O'Boyle extensively, asking him where he was headed, how long he planned to stay, where he was coming from, what he did for a living, how long he had been doing it, who was filling in for him while he was gone, how long his son had been in Boston, what college his son attended, what courses his son was taking, whether his son lived on campus, where he would stay while visiting his son, why he was driving rather than flying, why the rental car was in his daughter's name, where his daughter was at the time, how many daughters he had, and the price of airfare from San Francisco to Boston.During this phase of the questioning, Trooper Peech asked Mr. O'Boyle over thirty questions, most of which had nothing to do with the speeding violation and many of which did not relate to his travel plans.

[¶ 8] Also during this phase of the questioning, Trooper Peech called for back-up assistance, specifically requesting a canine unit.The unit arrived within two minutes of the call and parked behind and to the right of Trooper Peech's patrol car.¹Trooper Peech continued to question Mr. O'Boyle until dispatch advised that Mr. O'Boyle had a criminal history and later advised that his history was negative for violent or drug-related offenses.²At that point, seven minutes into the traffic stop, Trooper Peech handed Mr. O'Boyle his documentation and the warning and told him to "have a safe trip."

[¶ 9] Mr. O'Boyle got out of the patrol car and was passing in front of it, heading toward the rental car, when Trooper Peech also got out and inquired whether he could ask Mr. O'Boyle a few more questions.Mr. O'Boyle responded, "Sure, go ahead" and Trooper Peech questioned him for another five minutes, repeating many of the same questions Mr. O'Boyle had already answered.

[¶ 10] During this part of the questioning, the trooper and Mr. O'Boyle were standing on the edge of the interstate a few feet apart in front of the patrol car.The canine unit was still parked behind and to the right of Trooper Peech's patrol car.³Trooper Peech held a clipboard on which he appeared to be writing down Mr. O'Boyle's answers.He asked Mr. O'Boyle an additional thirty questions during this phase of the stop, including his son's name, date of birth, address and phone number, what courses his son was taking at Northeastern University, his daughter's name and phone number, why she rented the car, whether his son had a job, and the name of Northeastern University's mascot.

[¶ 11] Trooper Peech then asked Mr. O'Boyle whether he had anything in his vehicle that he should know about — guns, bombs, dead people, body parts, large amounts of cash, drugs, methamphetamines, heroine, cocaine or marijuana.Mr. O'Boyle denied having any of those items.Trooper Peech asked Mr. O'Boyle why he was so nervous, repeated his question about guns, bombs and body parts and asked if he could search the vehicle.Mr. O'Boyle responded, "Sure, go ahead."Trooper Peech opened the back hatch of the rental car, unzipped a bag located inside and discovered a vacuum-sealed bag containing a substance resembling marijuana underneath some clothing.At that point, the dog was released to "sniff" the vehicle.He alerted to the back of the vehicle.Ultimately, the troopers recovered five such bags totaling approximately five pounds of marijuana.

[¶ 12] Mr. O'Boyle was charged with one count of possession of a schedule I non-narcotic controlled substance, marijuana, with intent to deliver in violation of § 35-7-1031(a)(ii).Prior to trial, he filed a motion to suppress the evidence seized from his vehicle, asserting that "the illegal contact, detention, interrogation and search" violated both the state and federal constitutions and citing Wyoming and federal law in support of his claim.The State filed a responsive brief in which it argued the initial traffic stop was legal, whether the stop was pre-textual was irrelevant, the detention inside the patrol car was reasonable, and the encounter and search that followed were consensual.

[¶ 13]The district court conducted a hearing on the motion to suppress.Trooper Peech was the only witness and he testified for several hours.During the hearing, the district court asked counsel about a recent Wyoming Supreme Court opinion in which this Court declined to address a state constitutional claim on the ground that it was not adequately presented.Defense counsel was not familiar with the case and offered to file a supplemental brief addressing the case.

[¶ 14] A couple of weeks later, Mr. O'Boyle filed a supplemental brief in which he discussed Fender v. State,2003 WY 96, 74 P.3d 1220(Wyo.2003), the recent opinion issued by this Court, and re-argued and expanded upon his contention that the stop violated article 1, § 4 of the Wyoming Constitution.The same day, the State also filed a supplemental memorandum.It did not address the state constitutional claim but, citing federal cases, focused instead on the argument that the Fourth Amendment was not implicated because the encounter was consensual.Two weeks later, and before the State responded to Mr. O'Boyle's supplemental brief, the district court entered an order granting the motion to suppress.In the order, the district court stated:

Despite the fact that O'Boyle received his paperwork back from Trooper Peech, the totality of the circumstances suggests that the investigative stop never ended, but continued after O'Boyle left the patrol car.

* * *

The burden lies with the State to dispel the suggestion that the investigative stop continued even after O'Boyle exited the patrol car.I am not persuaded that the State has carried this burden.

[¶ 15] The following day, the State filed a supplemental brief on the state constitutional claim in which it argued that Wyoming generally has followed federal search and seizure law and the Wyoming case cited by Mr. O'Boyle, Tobin v. State,36 Wyo. 368, 255 P. 788(Wyo.1927), in which this Court arguably applied a different standard under the Wyoming Constitution, did not change the fact that evidence seized after a detainee voluntarily consented to further...