Cook v. State

• Decision Date: 15 July 1981
• Docket Number: No. 5443,5443
• Parties: Thomas COOK, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 5

631 P.2d 5

Thomas COOK, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).

No. 5443.

Supreme Court of Wyoming.

July 15, 1981.

Michael H. Schilling, Appellate Counsel, Wyoming Public Defender Program, Laramie, for appellant.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Samuel A. SoulEe, Senior Asst. Atty. Gen., Cheyenne, for appellee.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

ROSE, Chief Justice.

Appellant, Thomas Cook, was found guilty in Natrona County District Court of armed robbery and sentenced to five to seven years in the Wyoming State Penitentiary. Mr. Cook raises two issues challenging the lower court decision.

The first argument charges that an illegal arrest occurred because the police officers lacked probable cause to stop the vehicle in which appellant was riding. Once having established this position, the appellant would invoke the exclusionary rule through the "fruit of the poisonous tree" doctrine for purposes of suppressing all evidence resulting from this initial illegality, thereby challenging the trial court's denial of the motion to suppress.

The second argument urges that appellant has been denied his constitutional right to a speedy trial because of a District Court Rule 22 violation.

Because we find the stop reasonable in light of all the circumstances, and no reversible error with regard to the speedy trial question, we will affirm.

THE FACTS

Shortly after midnight, on the 24th of January, 1980, the Best Western East Motel in Casper was robbed of $45 and an unspecified amount of change. The robber was an armed youth with shoulder-length hair. Upon his departure, Lavina Sexton, the night clerk at the motel, notified the police that the gunman was headed east on Yellowstone toward the Red and White Cafe. When a police officer arrived on the scene, it became clear that Ms. Sexton had mistakenly stated "east" when she meant "west" on Yellowstone, nonetheless toward the Red and White Cafe. Lieutenant Dorvola left the dispatch room at the Casper Police Department upon hearing the initial report. Enroute to the scene, he heard the corrected version and also received a brief description of the suspect, including race, height, clothing and "shoulder-length brown hair parted in the middle." The lieutenant did not go to the scene of the robbery, but proceeded to a spot about one-fourth mile northwest of the motel, and while there he observed a white van coming from a private area, where such a vehicle should not have been at this time of night and under the circumstances existing at this time and place. As the van passed Lieutenant Dorvola in his car, he observed two people, one of whom was a passenger with shoulder-length hair. Subsequently, the van was stopped by Lieutenant Dorvola and immediately thereafter other officers arrived at the scene. The occupants were asked to remove themselves from the van which they did and after which they were subjected to a patdown search. No weapons were discovered but a large amount of change was felt in the passenger's pocket. It was at this juncture that the officers observed that the defendant passenger matched the description given by the motel night clerk. With his "consent," the passenger (appellant) was taken back to the motel and there identified by Ms. Sexton, the night clerk, as the robber. Appellant was then advised that he was under arrest given his Miranda warnings, and removed to the Casper Hall of Justice where he later gave an incriminating statement of confession.

COURSE OF PROCEEDING

Appellant Cook was charged with aggravated robbery in violation of § 6-4-402, W.S.1977, ¹ on February 6, 1980, following his arrest on January 24, 1980. Appellant was unable to post bond and, pursuant to a request by the county attorney, the trial was set for May 19, 1980. The county attorney thereafter requested a setting of the trial for June 16, 1980. Notice of this setting was issued. A motion to suppress was heard and denied on May 12, 1980. A motion to dismiss for a speedy trial violation was made by appellant on May 21, 1980, which motion was also denied. Mr. Cook was tried before a jury beginning June 16, 1980, as a result of which he was convicted and sentenced.

SUPPRESSION OF THE EVIDENCE

Appellant urges arrest without probable cause and the violation of his Fourth Amendment rights with the result that evidence was obtained illegally under the "fruit of the poisonous tree" doctrine. An analysis of this issue requires that we look at the stop, the arrest, and the voluntariness of appellant's consent. We must decide if any of these steps produced evidence which the law delineates as "fruit of the poisonous tree."

THE STOP

Appellant contends that when Lieutenant Dorvola stopped the van and asked When appellant Cook was stopped, the following factors made up the circumstantial situation: (1) it was just after 1:00 a. m.; (2) an armed robbery had just taken place; (3) within one-half mile of the scene of the robbery, a police officer observed a vehicle coming from a somewhat private area an area where the vehicle had no business being; and (4) in the vehicle, the officer observed a passenger, whose hair length at least matched the description of the robber. These four factors are the "specific and articulable facts" required for a "Terry"-type stop. The facts alone do not complete the picture. Reasonable inferences can be drawn from these facts. The inferences are those formed by an experienced police officer. Terry v. Ohio, supra.

the occupants to step out, an arrest in fact occurred even though the officer has no probable cause therefor. While in most cases probable cause is necessary for an arrest with or without a warrant, Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), something less than probable cause is required for an investigatory or "Terry"-type stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Parkhurst v. State, Wyo., 628 P.2d 1369 (1981); Rodarte v. City of Riverton, Wyo., 552 P.2d 1245 (1976). The United States Supreme Court has recently recognized the different attempts to define the notion of "less than those constituting probable cause" which justifies an investigatory stop. United States v. Cortez, --- U.S. ----, 101 S.Ct. 690, 697, 66 L.Ed.2d 621 (1981). The court concluded that no matter what the term, the totality of the circumstances is what must be considered. These circumstances must lead to a "particularized and objective basis for suspecting the particular person stopped of criminal activity." Cortez, supra, 101 S.Ct. at 695.

" * * * (W)hen used by trained law enforcement officers, objective facts, meaningless to the untrained, can be combined with permissible deductions from such facts to form a legitimate basis for suspicion of a particular person and for action on that suspicion. * * * " Cortez, supra, 101 S.Ct. at 695.

The circumstances present in this case, along with reasonable inferences by an experienced police officer, furnished ample grounds for finding a reasonable and objective basis for an investigatory stop of the van.

Once stopped, the fact that the officers asked the occupants to step out of the vehicle does not necessarily imply that they were under arrest. Under Terry, police officers are authorized to conduct such a "pat-down" as is necessary for their own safety. Since the police had reason to believe the suspect was armed, it was not unreasonable to ask the occupants to remove themselves from the van so that a pat-down for weapons could be conducted and for the further purpose of providing a better opportunity for observation by the officers. Parkhurst, supra, 628 P.2d at 1376.

THE ARREST

Once the vehicle was stopped and the passengers observed and frisked, arguably probable cause for arrest then existed. The fact that the police officers contend appellant was not under arrest until he was identified back at the motel is of little significance. Rodarte, supra. When appellant was stopped and it was requested that he remove himself from the van, the police officers could then see that he matched the description of the robber given by Ms. Sexton. This factor coupled with appellant's presence near the scene of the robbery at an early hour of the morning was sufficient to " 'warrant a man of reasonable caution in the belief that' an offense has been * * * committed (by the person to be arrested). Carroll v. United States, 267 U.S. 132, 162 (45 S.Ct. 280, 288, 69 L.Ed. 543)." Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302 (1311) 93 L.Ed. 1879 (1949).

Having arrested appellant, the police then possessed the authority to transport him back to the motel for purposes of further identification. Even though Miranda warnings were not given at that time To take it a step further, even if we assume that the arrest did not occur until after the identification, there was nothing that took place prior to that time which violated appellant's rights. The stop was reasonable as an investigatory measure, and there is every indication that appellant voluntarily returned to the motel. Even if the return to the motel could be termed a "seizure," it was valid pursuant to appellant's consent. In a Fourth Amendment seizure situation, defendant's knowledge of the right to refuse to consent does not have to be shown. The voluntariness is decided in light of all the surrounding circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). There is no indication from the record that appellant was in any way threatened or forced into consenting. There was no show of force and no apparent hesitation on the part of the appellant. Admittedly, the presence of police officers represented some display of authority, but the totality of the situation leaves little question that...