Damato v. State

• Decision Date: 29 January 2003
• Docket Number: No. 01-88.,01-88.
• Parties: Nicholas DAMATO, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

64 P.3d 700

2003 WY 13

Nicholas DAMATO, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 01-88.

Supreme Court of Wyoming.

January 29, 2003.

Representing Appellant: Daniel G. Blythe, Cheyenne, Wyoming.

Representing Appellee: Hoke MacMillan, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director, and Michael J. Crosson, Student Intern, of the Prosecution Assistance Program. Argument by Mr. Crosson.

Before HILL, C.J., and GOLDEN, LEHMAN¹, KITE, and VOIGT, JJ.

GOLDEN, Justice.

[¶ 1] Appellant Nicholas Damato's stop for a traffic violation led to the discovery of more than 300 pounds of marijuana in the trunk of his car. After charges were filed, the district court granted his motion to suppress this evidence; however, upon the State's motion for reconsideration, the trial court reversed its ruling. In its second ruling, the district court denied the motion to suppress the evidence upon finding that the marijuana would inevitably have been discovered by a canine drug sniff. Damato entered a conditional plea of guilty, preserving his right to appeal the evidentiary ruling, and now appeals this denial.

[¶ 2] We reverse and remand.

ISSUES

[¶ 3] Damato states the issues as:

1. Whether the continued detention of Mr. Damato was justified by a reasonable and articulable suspicion of illegal activity.

2. Whether the district court erred in ruling that the drugs found in the trunk of Mr. Damato's vehicle would have been inevitably discovered by a canine drug unit.

The State believes the issues are:

I. Did the district court err in holding that Trooper Bauer had reasonable articulable suspicion to detain appellant for a reasonable period of time awaiting the arrival of the drug detection dog?

II. Did the district court err in holding that the marijuana in the trunk of appellant's vehicle would have been inevitably discovered by the drug detection dog?

III. Did Trooper Bauer have independent lawful cause to search the trunk of appellant's vehicle, either as an inventory search following appellant's arrest for possession of marijuana, or based upon appellant's admission that there was marijuana in the trunk?

FACTS

[¶ 4] The parties do not dispute the following findings of fact made by the district court:

On April 16, 2000, at approximately 3:30 p.m., Patrolman David Rettinger stopped Defendant Nicholas Damato for speeding on [east]bound Interstate 80 in Albany County, Wyoming. Defendant was traveling 82 in a 75 mile per hour zone. During the stop Patrolman Rettinger became suspicious of Defendant because he appeared unusually nervous, his luggage was in the back seat instead of the trunk, and there was an unusual quantity of fast food wrappers on the passenger floorboard of the vehicle. Patrolman Rettinger also noticed discrepancies in Damato's answers to where he had rented the car and where he was headed to. Damato told Patrolman Rettinger that he had rented the car in San Francisco and that he was returning to his home in Illinois, when the rental agreement showed that the car was rented in San Diego and was to be dropped off in Omaha. All of these observations led Patrolman Rettinger to be suspicious of Mr. Damato. Patrolman Rettinger then requested to search the vehicle and Damato refused. Patrolman Rettinger, believing he could not detain Damato any longer, allowed him to leave without issuing a citation for speeding.

Patrolman Rettinger then radioed the highway patrol dispatch to inform other officers of his observations and to ask other officers to look for the vehicle. He told Patrolman Bauer that the driver did not consent to a search, which inferred the officer was looking for drugs. Patrolman John Bauer was one of the officers who received the call. He proceeded to head eastbound on I-80, trying to "get probable cause to stop him," when he identified a vehicle he believed to be Defendant's . . . . Patrolman Bauer, in an effort to look like he was ignoring Damato, went on past the car before he turned around. Patrolman Bauer then followed the vehicle, looking for probable cause, until he was able to lock Damato's vehicle in on radar traveling 77 in a 75 mile per hour zone. Patrolman Bauer then closed in on Damato, who moved right to get out of the patrol car's way, and Patrolman Bauer turned on his lights. Patrolman Bauer noted that at this point, Damato had also not used his turn signal for 100 feet prior to changing lanes. Patrolman Bauer then stopped the vehicle.

Patrolman Bauer called for the canine unit and then proceeded to the vehicle. Patrolman Bauer then asked to see Defendant's license, registration, and proof of insurance. Defendant questioned why he had been stopped saying he did not believe he was speeding and that he had been careful since he had just been pulled over by Patrolman Rettinger. As Defendant reached for the glove box to retrieve the documents, he said something about them being in the "trunk" and then corrected himself. At this point, Patrolman Bauer noticed the wrappers on the floor and luggage in the backseat, while also observing the Defendant was unusually nervous. Additionally Patrolman Bauer noticed Visine on the console and that Defendant appeared to have pink "dope" eyes.

Patrolman Bauer then directed Damato to get out of the car to come look at the radar.² The officer testified that Mr. Damato was not free to leave at this time as the patrolman still had possession of his license and other documents. As Damato reached the back of the vehicle, Patrolman Bauer did a pat-down search. Patrolman Bauer justified this action by saying it was for his own safety since Damato was going to be getting into the front seat of the patrol car. The pat-down revealed two small, ordinary pocket knives, and Patrolman Bauer felt what he believed to be marijuana in a cellophane bag in Defendant's right, back pocket. Patrolman Bauer then asked Damato what was in his pocket, and after fumbling around, and being asked again, Defendant pulled a cellophane bag with approximately 3 grams of marijuana in it out of his pocket.

Defendant was then arrested and the canine units were called again, along with DCI. Patrolman Bauer then read Defendant his Miranda warnings. Defendant did not appear to orally or otherwise agree to answer questions, but he acknowledged that he understood his rights and later answered questions from Patrolman Bauer. Patrolman Bauer told Defendant repeatedly that Defendant could help himself now by telling Patrolman Bauer what was in the car, and that he would find out anyway when he did an inventory of the car. After repeated questions and repeated denials, Defendant told Patrolman Bauer first that there was a marijuana cigarette in the console of the vehicle, and later that the trunk was full of marijuana. Defendant was subsequently arrested for possession of marijuana with intent to deliver. No citations were issued for the traffic violations or the misdemeanor possession of marijuana.

After making these findings of fact, the district court determined that

Standing alone, the Visine, the litter on the floor, the suitcase in the rear seat do not give rise to the level of conduct which would justify a finding of articulable suspicion. However, when the false information about the point of origin and destination is added to the mix, the facts support a suspicion that the defendant is transporting something that may be evidence of criminal activity.

When the trooper ordered the drug sniffing dogs he would have been justified in detaining the defendant until the dogs arrived. However, he did not wait for the dogs, instead he directed Damato to exit the vehicle, and to proceed to the patrol car to view the radar . . . .

[¶ 5] The district court determined that the trooper improperly ordered Damato from the car and the subsequent pat-down required that the motion to suppress be granted. The State filed for reconsideration, contending that the inevitable discovery doctrine applied because the marijuana in the trunk would have been discovered by the canine sniff that had been ordered. Following a hearing that established the reliability of the particular dog, the district court denied the motion to suppress.

[¶ 6] Damato entered a conditional plea of guilty and was sentenced to four and one-half to nine years and fined $10,000.00. This appeal followed.

DISCUSSION

[¶ 7] Our standard of review was stated in McChesney v. State, 988 P.2d 1071, 1074 (Wyo.1999):

Findings on factual issues made by the district court considering a motion to suppress are not disturbed on appeal unless they are clearly erroneous. Wilson v. State, 874 P.2d 215, 218 (Wyo.1994). Since the district court conducts the hearing on the motion to suppress and has the opportunity to assess the credibility of the witnesses, weigh the evidence, and make the necessary inferences, deductions, and conclusions, evidence is viewed in the light most favorable to the district court's determination. Id. The issue of law, whether an unreasonable search or seizure has occurred in violation of constitutional rights, is reviewed de novo. Id.; Brown v. State, 944 P.2d 1168, 1170-71 (Wyo.1997).

[¶ 8] A state constitutional analysis is required unless a party desires to have an issue decided solely under the Federal Constitution. Vasquez v. State, 990 P.2d 476, 485 (Wyo.1999). Damato limits his analysis to the Fourth Amendment of the Federal Constitution. That amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV.

The touchstone of our analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security. Reasonableness, of course, depends on a balance between the public interest and the

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