Dettloff v. State

• Decision Date: 16 February 2007
• Docket Number: No. 05-217.,05-217.
• Parties: Robert DETTLOFF, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

152 P.3d 376

2007 WY 29

Robert DETTLOFF, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 05-217.

Supreme Court of Wyoming.

February 16, 2007.

Representing Appellant: Ken Koski, State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Appellate Counsel. Argument by Ms. Kerin.

Representing Appellee: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; James Michael Causey, Assistant Attorney General. Argument by Mr. Causey.

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

KITE, Justice.

[¶ 1] Robert Dettloff was convicted by a jury of possession with intent to deliver methamphetamine, possession of methamphetamine, possession of marijuana and possession of oxycodone.¹ He appeals claiming defense counsel rendered ineffective assistance in representing him on his motion to suppress and the trial court erred in denying the motion; insufficient evidence was presented to support his convictions; and the district court erred in admitting uncharged misconduct evidence. We find no error and affirm the convictions.

ISSUES

[¶ 2] Mr. Dettloff presents the following issues for this Court's consideration:

I. Was defense counsel ineffective in representing appellant with regard to the motion to suppress evidence and did the trial court err in denying the motion?

II. Was there insufficient evidence to support appellant's convictions, and appellant denied his right to a unanimous jury verdict thereby?

III. Did the trial court err in admission of uncharged misconduct evidence and argument concerning same?

The State phrases the issues substantially as Mr. Dettloff presented them.

FACTS

[¶ 3] On August 30, 2004, at approximately 9:45 p.m. Dan Slattery and Justin Lindberg, patrolmen for the Town of Mills, Wyoming, observed two vehicles at a stop sign on Boles Road in Mills. One of the vehicles, a grey Mercedes, turned north onto Chamberlin Road. The other vehicle, a brown Lincoln, followed the Mercedes through the stop sign without stopping and turned north on Chamberlin Road as well. The patrolmen followed the vehicles and observed that they appeared to be swerving.

[¶ 4] The vehicles pulled into a Subway restaurant parking lot. The patrolmen drove beyond the Subway, turned and came back. The Mercedes and the Lincoln were parked in the lot and Mr. Dettloff was inside the Subway watching the patrol car. Patrolman Lindberg got out of the patrol car. As he did so, Mr. Dettloff moved toward the back of the store where he appeared to try the office and bathroom doors and then turned toward the rear exit. Patrolman Slattery drove around to the back of the building. Mr. Dettloff was just coming out the door. When he saw the patrol car, he turned and went back inside.

[¶ 5] Patrolman Lindberg walked back around to the front and entered the building. Mr. Dettloff was standing at the counter next to a young woman. Patrolman Lindberg asked the woman if she was with Mr. Dettloff. She responded negatively and stepped away. Mr. Dettloff acted nervous and agitated, and kept putting his hands in and out of his pockets. As he was speaking with Mr. Dettloff, Patrolman Lindberg noticed a clip knife sticking out of one of Mr. Dettloff's pockets. The patrolman reached over and took it and discovered it was a switch blade. He informed Mr. Dettloff it was a violation of a town ordinance to carry a concealed weapon.

[¶ 6] Patrolman Slattery asked Mr. Dettloff his name. Mr. Dettloff responded that he did not want to tell them his name. The patrolmen advised him if he did not tell them his name they would arrest him for interfering with a peace officer. Patrolman Lindberg reached over in an attempt to handcuff Mr. Dettloff. He pulled away and ran toward the door. The patrolmen went after him, grabbed him, took him to the ground and placed him under arrest. Patrolman Slattery searched Mr. Dettloff and found $549 in cash and a cigarette lighter.

[¶ 7] Mr. Dettloff told the patrolmen he had been driving the Mercedes. His companions were identified as Sterling Freeman, the driver of the Lincoln, and D.S., a fifteen year old minor. They confirmed Mr. Dettloff had been driving the Mercedes. The patrolmen searched the Mercedes and found a pencil case containing three packages of methamphetamine in quantities of 7 grams, 1 gram and .2 grams; a package containing 3.1 grams of marijuana; an oxycodone capsule; and drug paraphernalia.

[¶ 8] The patrolmen ascertained the Mercedes belonged to Penny Strickland. After searching the vehicle, they contacted Ms. Strickland and notified her that the car was in the Subway parking lot. She stated the car had been in storage for two years and she had asked D.S. and Mr. Freeman to get it out of storage and bring it to her. The patrolmen asked Ms. Strickland if the methamphetamine found in the Mercedes was hers and she said it was not. The patrolmen left the vehicle in the parking lot for Ms. Strickland to retrieve.

[¶ 9] Mr. Dettloff was charged with felony possession of methamphetamine with intent to deliver in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i) (LexisNexis 2005); felony possession of methamphetamine in a powder or crystalline form exceeding three grams in violation of § 35-7-1031(c)(ii); misdemeanor possession of marijuana in violation of § 35-7-1031(c)(i); and misdemeanor possession of oxycodone in violation of § 35-7-1016(b)(i)(P) (LexisNexis 2005). Prior to trial, defense counsel filed a motion to suppress the evidence seized in the search of the Mercedes. Following a hearing, the district court denied the motion.

[¶ 10] During the trial, the State solicited testimony from Mr. Freeman that he, D.S. and Mr. Dettloff smoked marijuana supplied by Mr. Dettloff earlier in the day Mr. Dettloff was arrested. After a two day trial, the jury returned a verdict of guilty on all four counts. The district court sentenced Mr. Dettloff to concurrent terms of eight to twelve years in the Wyoming State Penitentiary for possession of methamphetamine with intent to deliver; four to six years in the penitentiary for possession of methamphetamine; one year in the Natrona County Detention Center for possession of marijuana; and one year in the detention center for possession of oxycodone.

DISCUSSION

1. Denial of Motion to Suppress

[¶ 11] In his first issue, Mr. Dettloff claims defense counsel ineffectively represented him during the suppression motion proceedings and the district court erred in denying the motion. We address these issues separately, beginning with the claimed error in denial of the suppression motion. The following standards govern our review of alleged error in denying a motion to suppress:

Rulings on the admissibility of evidence are within the sound discretion of the trial court. We will not disturb such rulings absent a clear abuse of discretion. An abuse of discretion occurs when it is shown the trial court reasonably could not have concluded as it did. Factual findings made by a trial court considering a motion to suppress will not be disturbed unless the findings are clearly erroneous. Because the trial court has the opportunity to hear the evidence, assess witness credibility, and draw the necessary inferences, deductions, and conclusions, we view the evidence in the light most favorable to the trial court's determination. Whether an unreasonable search or seizure occurred in violation of constitutional rights presents a question of law and is reviewed de novo.

O'Boyle v. State, 2005 WY 83, ¶ 18, 117 P.3d 401, 407 (Wyo.2005) (citations omitted).

[¶ 12] In its order denying the suppression motion, the district court found: 1) Mr. Dettloff lacked standing to challenge the search of the Mercedes; 2) the search of the Mercedes was incident to a lawful arrest and in accord with Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004); and, 3) the police had probable cause to believe the Mercedes contained evidence of a crime or contraband and to search it without a warrant in accordance with Borgwardt v. State, 946 P.2d 805 (Wyo.1997). Mr. Dettloff asserts each of these conclusions was erroneous.

[¶ 13] With regard to the first issue, Mr. Dettloff contends he had standing to challenge the search because Ms. Strickland authorized him to be in possession of and drive the vehicle, giving him a reasonable expectation of privacy in the vehicle. He further asserts he had standing because he was the subject of the lawful arrest giving rise to the vehicle search. The State contends the district court correctly concluded Mr. Dettloff did not have standing to challenge the search because he did not have a reasonable expectation of privacy in a vehicle owned by someone else and because he disavowed ownership of the pencil box in which the evidence was found.

[¶ 14] We have said:

A defendant may challenge a search as being unconstitutional only if he can demonstrate that he had a reasonable expectation of privacy in the property searched. The defendant must show "both an actual subjective expectation of privacy and a reasonable expectation of privacy that society is prepared to recognize." There are four factors that courts consider to determine whether an individual possesses a reasonable expectation of privacy in the property searched:

(1) the precautions taken in order to maintain one's privacy; (2) the likely intent of the drafters of the United States and Wyoming Constitutions; (3) the property rights a claimant possesses in the invaded area; (4) the legitimacy of the individual's possession of or presence in the property which was searched or seized.

Andrews v. State, 2002 WY 28, ¶ 20, 40 P.3d 708, 712-13 (Wyo.2002) (citations omitted).

[¶ 15] We have applied these principles in other cases with varying results depending upon the particular facts presented. In Parkhurst v. State, 628 P.2d 1369, 1374 (Wyo.1981...