Collins v. State

• Decision Date: 11 June 1993
• Docket Number: No. 92-65,92-65
• Parties: Kelly J. COLLINS, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 688

854 P.2d 688

Kelly J. COLLINS, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).

No. 92-65.

Supreme Court of Wyoming.

June 11, 1993.

Rehearing Denied July 20, 1993.

Wyoming Public Defender Program: Leonard D. Munker, State Public Defender; Mike Cornia, Sr. Asst. Public Defender; Deborah Cornia, Appellate Counsel, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Barbara L. Boyer, Sr. Asst. Atty. Gen., Prosecution Assistance Program, Theodore E. Lauer, Director, and Marci M. Hoff, Student Intern, for appellee.

Before MACY, C.J., and THOMAS, CARDINE and GOLDEN, JJ., and URBIGKIT, J., Ret.

THOMAS, Justice.

The primary issue to be resolved in this case is whether an encounter involving a police officer and Kelly J. Collins (Collins) amounted to a seizure of Collins, thus implicating his rights under the Fourth Amendment to the Constitution of the United States and Art. 1, § 4 of the Constitution of the State of Wyoming. ¹ Collateral Collins sets forth these issues in his Brief of Appellant:

issues are presented including claims there was no factual basis to support the crime of burglary as defined in the statute; the court improperly refused to give the jury an instruction on the lesser included offense of criminal entry; the court improperly refused to instruct the jury on a definition of reasonable doubt; and the evidence was not sufficient to sustain a conviction of burglary. In addition, the State suggests an issue as to whether the jury instructions correctly stated the elements of the crime of burglary. We hold that not every encounter between police officers and citizens amounts to a seizure of the person of the citizen, thus implicating constitutional rights, and we conclude that none of the other claims by Collins or the suggestion by the State constitutes error requiring reversal. The judgment and sentence of the trial court is affirmed.

I. Did the trial court err when it failed to dismiss the charge against Appellant because there was no factual basis to support the crime of burglary as defined by Wyoming Statute § 6-3-301(a)?

II. Did the trial court err when it failed to suppress evidence obtained when Appellant was detained without reasonable suspicion?

III. Did the trial court err by refusing to give an instruction on the lesser-included offense of criminal entry?

IV. Did the trial court err by refusing to instruct the jury on the definition of reasonable doubt?

V. Was the evidence presented sufficient to sustain Appellant's conviction of burglary?

In its Brief of Appellee, the State says the issues should be stated in this way:

I. Does the Wyoming burglary statute, § 6-3-301(a), make unlawful the unauthorized entry of a vehicle with intent to commit larceny?

II. Did the trial court correctly deny Appellant's motion to suppress statements made by Appellant and items taken from Appellant's person?

III. Did the trial court correctly refuse to give the lesser included offense instruction on criminal entry?

IV. Did the trial court correctly refuse to instruct the jury on a definition of reasonable doubt?

V. Was sufficient evidence presented to the jury to sustain Appellant's conviction of burglary?

VI. Was the jury properly instructed on the elements of the crime of burglary?

On May 11, 1991, at approximately 11:20 P.M., a citizen and his wife, at their home in Cheyenne, received a telephone call from a neighbor who told them he had seen someone prowling around their car. The citizen telephoned the police, and an officer responded to the call. The officer learned from the citizen that the neighbor had described a male in dark clothing as having been observed prowling around the car, and the citizen also advised that this person had gone south on foot from the site of the reported prowling at 31st Street and Cribbon Avenue. The officer began to look around the area and, in a short while, observed a darkly-clothed figure, who later was identified as Collins, walking a few blocks south of the citizen's residence. As the officer approached Collins, he noticed a flashlight in Collins' right back pocket. The officer also observed that Collins appeared nervous and was covered with sweat although the temperature that night was in the lower 40-degree range. The officer then saw that Collins had an object concealed in the left sleeve of his jean jacket, and the officer could see a handle sticking out of the sleeve. The officer was concerned the object in the jacket sleeve might be a weapon. Furthermore, the officer saw several cassettes in Collins' pockets, but he did not see a cassette player.

While the first officer was talking to Collins, a second officer arrived, and both officers noticed that Collins was pushing something down into his left trousers pocket. When Collins was asked what was in his pocket, he told them "[n]othing." The first officer then patted down the outside Once Collins produced the loaded ammunition dispenser, the second officer wondered if he might have a pistol to go with the ammunition. That officer then asked Collins to empty his pockets onto the hood of the police car. Collins produced a number of items including fourteen cassette tapes, two prescription bottles, which had the name of a female person on one bottle and the name of a male person other than Collins on the second bottle; a Marlboro stopwatch; a flashlight; a Bic lighter; an umbrella; a dial-a-shell .22 caliber cartridge dispenser, a yellow leather glove; and a man's wallet. Some of these items later were identified by the female person as having come from her car which was parked in the vicinity of the citizen's residence on the evening in question. The citizen also discovered an umbrella was missing from his vehicle, and he identified as his umbrella the one found on Collins by the two officers.

of Collins' pocket and felt a hard square-shaped object. He asked Collins to remove the object from his pocket, and Collins produced a cassette tape, an object different from the one the officer had felt when he patted Collins' pocket. Collins then produced an ammunition dispenser and, at that time, the second officer noticed a prescription bottle in Collins' left jacket pocket. A closer inspection of the prescription bottle disclosed it had been issued to a male person who was not Collins.

When Collins was asked how he acquired these objects, he first said they were given to him by a friend. Then he changed that story and explained he found them in an alley. During the investigation, it began to rain, and the second officer asked Collins to accompany him to the police station so they would be out of the rain. Collins agreed to go with the officer, and he also agreed to show him the alley in which he claimed to have found the items. Collins pointed out an alleyway a few blocks from the citizen's residence, but a careful search of the alley by the police officer revealed no additional items.

Collins then was arrested. He was charged with, and convicted by a jury of, burglary in violation of Wyo.Stat. § 6-3-301(a) (1988). ² Upon conviction, Collins was sentenced to a term of not less than eighteen, nor more than thirty-six, months in the state penitentiary. This appeal is taken from the judgment and sentence imposed by the trial court.

The most significant issue in this case is whether the initial contact with Collins was a seizure of his person implicating his rights under the Fourth Amendment to the Constitution of the United States or under the parallel provision of the Wyoming Constitution. The right to be free from unreasonable searches and seizures is one of the most cherished rights provided by both the federal and state constitutions. A comparison of the two constitutional provisions, quoted herein at n. 1, discloses substantial identity except that the Constitution of the State of Wyoming requires an affidavit to support the issuance of a warrant. Our concern in this case is to determine whether the fundamental right established by these constitutional provisions was implicated by the initial contact of Collins by the police officers.

In our view, this area of the law is persuasively summarized by the United States Court of Appeals for the Fifth Circuit in United States v. Berry, 670 F.2d 583, 591 (5th Cir.1982):

We conclude, therefore, that Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, brief "seizures" that must be supported by reasonable suspicion, and full-scale arrests that must be supported by probable cause. See, eg., United States v. Setzer, 654 F.2d 354 (5th Cir.1981); United In Berry, the court stated that the analysis begins with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in which the Supreme Court analyzed the reasonableness of a seizure of an individual followed by a pat down and held that such a stop, though brief and short of a full-scale arrest, came within the ambit of the Fourth Amendment. In Terry, the Supreme Court then balanced the interest of the government against the nature of the intrusion upon the individual and ruled that, in order to accomplish a stop followed by the pat down, "reasonable suspicion" was sufficient. The opinion of the court in Berry pointed out that subsequent cases, including Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), and United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), have extended the Terry doctrine to stops made merely for investigatory purposes. The court in Berry, 670 F.2d at 590, also said, however:

States v. Elmore, 595 F.2d 1036, 1041 (5th Cir.1979), cert. denied, 447 U.S. 910, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980).

Although the Supreme Court has extended the doctrine it articulated in Terry to investigative...