Burgos-Seberos v. State, BURGOS-SEBERO

• Decision Date: 10 December 1998
• Docket Number: No. 97-329,BURGOS-SEBERO,A,97-329
• Citation: 969 P.2d 1131
• Parties: Eudaldoppellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1131

969 P.2d 1131

Eudaldo BURGOS-SEBEROS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 97-329.

Supreme Court of Wyoming.

Dec. 10, 1998.

Sylvia L. Hackl, State Public Defender; and Donna D. Domonkos, Appellate Counsel, for Appellee.

William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Robin Sessions Cooley, Assistant Attorney General, for Appellant.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and TAYLOR, ^* JJ.

MACY, Justice.

Appellant Eudaldo Burgos-Seberos appeals from the judgment and sentence entered after a jury convicted him of possessing more than three ounces of marihuana.

We affirm.

ISSUES

The appellant presents the following issues, which are phrased as statements, for our review on appeal:

I: The trial court erred in denying Appellant's motion to suppress the marijuana found in his vehicle, since Appellant did not voluntarily consent to the search.

II: Appellant did not voluntarily waive his constitutional right to testify since he did not understand either the rights themselves or the concept of waiver, due to a language barrier.

FACTS

During the early morning hours of September 1, 1996, Robert Mizel, Jr., a watch commander with the Sweetwater County sheriff's office, noticed a car driving slowly, weaving within its lane, and crossing the center line of the road. Thinking that the driver might be intoxicated, Commander Mizel stopped the vehicle and summoned Michael Crosson, a deputy sheriff, to assist in the stop. When Commander Mizel approached the vehicle, he recognized the appellant. The commander was aware that the appellant usually carried a gun in his car, and he, therefore, asked the appellant where his gun was. The appellant pointed to his legs. Commander Mizel told the appellant to exit and stand at the rear of the vehicle. He subsequently determined that the appellant was not intoxicated and told him that he was free to leave.

The appellant remained outside his car and engaged in casual conversation with Commander Mizel. At some point during the conversation, Commander Mizel asked the appellant if he could search the car, and the appellant acquiesced. During his search, Commander Mizel discovered two packages containing approximately thirty-one ounces of marihuana. He arrested the appellant and charged him with possessing more than The appellant's trial attorney filed a motion to suppress the evidence that was seized during the search of the vehicle. After holding an evidentiary hearing, the trial court denied the motion to suppress. The appellant was tried by a jury in July 1997, and the jury returned a guilty verdict. The trial court entered a judgment in accordance with the jury's verdict and sentenced the appellant. The appellant subsequently perfected his appeal to the Wyoming Supreme Court.

three ounces of marihuana. The appellant pleaded not guilty to the charge.

DISCUSSION

A. Motion to Suppress

The appellant contends that the trial court erred by denying his motion to suppress the evidence that was seized during Commander Mizel's search of his car. The state asserts that the evidence was admissible because the appellant consented to the search. We agree that the appellant voluntarily gave the commander permission to search his car. The trial court correctly admitted the evidence that was seized during the search.

We generally do not disturb evidentiary rulings made by a trial court unless the trial court abused its discretion. Wilson v. State, 874 P.2d 215, 218 (Wyo.1994). In reviewing a trial court's ruling on a motion to suppress evidence, we do not interfere with the trial court's findings of fact unless the findings are clearly erroneous. Gehnert v. State, 956 P.2d 359, 361 (Wyo.1998). We view the evidence in the light most favorable to the trial court's determination because the trial court has an opportunity at the evidentiary hearing to assess "the credibility of the witnesses, weigh the evidence, and make the necessary inferences, deductions, and conclusions." Id. The constitutionality of a particular search or seizure is, however, a question of law that we review de novo. Id.; Jones v. State, 902 P.2d 686, 690 (Wyo.1995).

The appellant concedes that Commander Mizel's initial detention of him was proper because it was part of a routine traffic stop. He asserts, however, that he was unlawfully detained when Commander Mizel requested permission to search his car and that, consequently, he did not freely give his consent to the search. The appellant points to the following facts as being evidence that he was coerced into consenting to the search: The appellant did not return to his vehicle before Commander Mizel sought permission to conduct the search; he was not told that he could decline to give his permission for the search; two officers attended the stop; and the stop occurred late at night on a deserted side street. The appellant maintains that these coercive factors, coupled with the facts that he was not a United States citizen and that he had a less-than-perfect command of the English language, rendered his consent involuntary.

The Fourth Amendment to the United States Constitution and Article 1, Section 4 of the Wyoming Constitution generally prohibit warrantless searches and seizures. Borgwardt v. State, 946 P.2d 805, 807 (Wyo.1997). The rule that warrantless searches and seizures are, per se, unreasonable is, however, subject to a few exceptions. Id.; Gehnert, 956 P.2d at 362. Searches and seizures that are conducted pursuant to a valid consent fall within one of the recognized exceptions to the prohibition against warrantless searches and seizures. Gehnert, 956 P.2d at 362; Jones, 902 P.2d at 690.

In the course of making a routine traffic stop, a law enforcement officer may: request a driver's license and vehicle registration; run a computer check; and issue a citation. United States v. Elliott, 107 F.3d 810, 813 (10th Cir.1997); United States v. Sandoval, 29 F.3d 537, 539-40 (10th Cir.1994); see also Wilson, 874 P.2d at 224. Generally, the driver must be allowed to proceed without further delay once the officer determines that the driver has a valid license and is entitled to operate the vehicle. Elliott, 107 F.3d at 813. An officer may further question a driver, however, if the driver voluntarily consents to the additional questioning. Id.; Sandoval, 29 F.3d at 540. When the driver has given his voluntary consent to being questioned further, no seizure has taken place. Elliott, 107 F.3d at 813; Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). A consensual encounter between a law enforcement officer and a citizen does not prompt constitutional scrutiny. Bostick, 501 U.S. at 434, 111 S.Ct. 2382.

In determining whether a warrantless search was justified by a valid consent, we inquire "into the 'voluntariness' of the consent in light of 'the totality of the circumstances' " of the particular case. Amin v. State, 695 P.2d 1021, 1024 (Wyo.1985). See also Elliott, 107 F.3d at 813-14. Some of the factors that a court may consider in determining whether the consent was voluntary include: the way the law enforcement officer phrased the request for permission to search; whether the officer told the individual that he could refuse the request; and the presence of other coercive factors. Stamper v. State, 662 P.2d 82, 87 (Wyo.1983). We must consider all the circumstances surrounding the encounter to determine whether a reasonable person would have felt "free to decline the officers' requests or otherwise terminate the encounter." Bostick, 501 U.S. at 436, 111 S.Ct. 2382. See also Sandoval, 29 F.3d at 540. No single factor is determinative when we are ascertaining whether a seizure occurred. Sandoval, 29 F.3d at 540.

In Elliott, 107 F.3d 810, the Tenth Circuit Court of Appeals analyzed the voluntariness of a driver's consent to search in the context of a routine traffic stop. In that case, a patrolman issued a warning ticket to Elliott after he stopped her for exceeding the speed limit. 107 F.3d at 812. The patrolman returned Elliott's driver's license and registration to her and asked if there was anything illegal in the trunk of her car. Id. Elliott responded in the negative. The patrolman requested permission to inspect the trunk, and Elliott agreed. Id. The patrolman discovered marihuana during his search of the trunk. 107 F.3d at 812-13.

The Tenth Circuit Court of Appeals determined that Elliott had voluntarily consented to the patrolman's search. 107 F.3d at 814. ¹ In concluding that Elliott's consent was voluntary, the court stated that, although the patrolman did not inform Elliott that she was free to leave after he returned the documentation to her, the patrolman's questioning was not accompanied by a "coercive show of authority." 107 F.3d at 814. The court noted that the patrolman testified that he did not lean on or touch Elliott's car, his demeanor was normal, he did not threaten Elliott or her passenger, and he did not gesture toward his holster. Id. The court determined that, after the patrolman returned Elliott's documentation to her, the remainder of the encounter between them was " 'an ordinary consensual encounter between a private citizen and a law enforcement official.' " Id. (quoting United States v. Werking, 915 F.2d 1404, 1408 (10th Cir.1990)).

In the case at bar, Commander Mizel stopped the appellant to determine whether he was intoxicated. After Commander Mizel determined that the appellant was not intoxicated, he told him that he was free to leave. The appellant did not, however, return to his car but chose, instead, to linger outside and engage in a casual conversation with the commander. Because the appellant was not being detained and was free to leave at that time, the encounter was consensual.

Commander Mizel testified at the motion-to-suppress hearing that he...