Elmore v. State

• Decision Date: 09 March 2021
• Docket Number: S-20-0172
• Citation: 482 P.3d 358
• Parties: Bradley Michael ELMORE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

482 P.3d 358

Bradley Michael ELMORE, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-20-0172

Supreme Court of Wyoming.

March 9, 2021

Representing Appellant: R. Michael Vang of R. Michael Vang P.C., Laramie, Wyoming

Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Kristen R. Jones, Assistant Attorney General

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

DAVIS, Chief Justice.

[¶1] Bradley Elmore appeals the denial of his motion to suppress evidence below. He claims on appeal that his failure to maintain a single lane of travel on two separate occasions did not create the reasonable suspicion required to justify stopping his vehicle. Marijuana was found in a free-air K-9 sniff during the stop. We affirm.

ISSUES

[¶2] Did the district court err when it denied Mr. Elmore's motion to suppress?

FACTS

[¶3] On July 28, 2019, Wyoming Highway Patrol Trooper Aaron Kirlin was parked on the median near mile post 308 on Interstate 80 monitoring traffic with his drug-detection dog, Frosty. At approximately 8:44 p.m., Trooper Kirlin observed a silver rental vehicle bearing California plates traveling east on Interstate 80 cross roughly two feet over the dotted center white line separating the two lanes of traffic for about an eighth of a mile before correcting itself.

[¶4] Trooper Kirlin followed the vehicle, and approximately two minutes later he observed it cross the center line a second time. After observing the second traffic violation, he activated his flashing lights and initiated a traffic stop. He made contact with the driver of the vehicle, who was later identified as Bradley Elmore. Mr. Elmore informed Trooper Kirlin that the vehicle was a rental and provided him with the rental agreement. The rental agreement listed "John Griffin Delles" as the person who had rented the vehicle. Trooper Kirlin requested a cover unit to assist him, and an officer identified in the record as Deputy Carroll arrived at the scene. While Deputy Carroll called the rental company to inquire about the agreement, Trooper Kirlin deployed his K-9 Frosty, who alerted to the presence of controlled substances in the vehicle. Trooper Kirlin then searched the vehicle and found a small amount of marijuana in the passenger compartment and nine duffel bags containing approximately 127 pounds of marijuana in the trunk.

[¶5] Mr. Elmore was charged with possession of a controlled substance, a felony, in violation of Wyo. Stat. Ann. § 35-7-1031(c)(i)(A), and unlawful possession with intent to deliver a controlled substance in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii), a felony. On September 10, 2019, defense counsel moved to suppress the evidence found in the vehicle. He argued that the two minor deviations from Mr. Elmore's lane of travel did not create the reasonable suspicion required to justify the initial traffic stop.

[¶6] Following an evidentiary hearing, the district court denied the motion to suppress, holding that absent any adverse conditions, the two deviations from a single lane of travel, taken together with the surrounding circumstances, gave rise to reasonable suspicion that a traffic violation had occurred. Accordingly, it found that Trooper Kirlin had reasonable suspicion to stop the vehicle.

[¶7] Mr. Elmore subsequently entered a conditional plea of guilty to possession of a controlled substance. The district court sentenced him to three to five years in prison, suspended in favor of two years of probation, and he timely appealed.

STANDARD OF REVIEW

[¶8] Mr. Elmore challenges the district court's denial of his motion to suppress under the Fourth Amendment to the United States Constitution and Article I, § 4 of the Wyoming Constitution.¹

In reviewing a denial of a motion to suppress evidence, we adopt the district court's factual findings unless those findings are clearly erroneous. Rodriguez v. State , 2018 WY 134, ¶ 15, 430 P.3d 766, 770 (Wyo. 2018) (citing Jennings v. State , 2016 WY 69, ¶ 8, 375 P.3d 788, 790 (Wyo. 2016) ). We view the evidence in the light most favorable to the district court's decision because the court conducted the hearing and had the opportunity to "assess the witnesses’ credibility, weigh the evidence and make the necessary inferences, deductions and conclusions." Kunselman v. State , 2008 WY 85, ¶ 9, 188 P.3d 567, 569 (Wyo. 2008) (quoting Hembree v. State , 2006 WY 127 ¶ 7, 143 P.3d 905, 907 (Wyo. 2006) ). "On those issues where the district court has not made specific findings of fact, this Court will uphold the general ruling of the court below if supported by any reasonable view of the evidence." Feeney v. State , 2009 WY 67, ¶ 9, 208 P.3d 50, 53 (Wyo. 2009) (citing Neilson v. State , 599 P.2d 1326, 1330 (Wyo. 1979) ). "The ultimate question of whether the search or seizure was legally justified, however, is a question of law we review de novo." Rodriguez , ¶ 15, 430 P.3d at 770.

Pryce v. State , 2020 WY 151, ¶ 16, 477 P.3d 90, 94-95 (Wyo. 2020) (quoting Brown v. State , 2019 WY 42, ¶ 10, 439 P.3d 726, 730 (Wyo. 2019) ).

DISCUSSION

[¶9] The Fourth Amendment to the United States Constitution protects against "unreasonable searches and seizures." U.S. Const. amend. IV. Under the Fourth Amendment, there are "three tiers of interaction between law enforcement and citizens: consensual encounters, investigatory detentions and arrests." Simmons v. State , 2020 WY 132, ¶ 11, 473 P.3d 1259, 1262 (Wyo. 2020) (citation omitted). Mr. Elmore's interaction with law enforcement began as a traffic stop, which is an investigatory detention.

[¶10] Mr. Elmore's sole claim is that Trooper Kirlin did not have reasonable suspicion to justify the initial traffic stop. Because it is an investigatory detention, a traffic stop must comply with the Fourth Amendment. Kennison v. State , 2018 WY 46, ¶ 13, 417 P.3d 146, 149 (Wyo. 2018) ("A traffic stop for a suspected violation of law is a ‘seizure’ of the occupants of the vehicle and therefore must be conducted in accordance with the Fourth Amendment.") (quoting Allgier v. State , 2015 WY 137, ¶ 14, 358 P.3d 1271, 1276 (Wyo. 2015) ).

To justify a traffic stop, the trooper must have "reasonable suspicion—that is, a particularized and objective basis" to suspect the motorist is violating the law. The trooper's conduct is judged by " ‘an objective standard which takes into account the totality of the circumstances.’ " "[W]hile the test is objective, the [trooper]’s training, experience, and expertise are to be considered as part of the totality of the circumstances."

Simmons , ¶ 12, 473 P.3d at 1262 (quoting Robinson v. State , 2019 WY 125, ¶ 22, 454 P.3d 149, 156 (Wyo. 2019) ).

[¶11] Wyo. Stat. Ann. § 31-5-209(a)(i) (LexisNexis 2019) specifies that when a roadway is divided into two or more clearly marked lanes "[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety." As previously noted, Trooper Kirlin observed Mr. Elmore's vehicle cross roughly two feet over the center line for about an eighth of a mile twice.

[¶12] Mr. Elmore first challenges the veracity of Trooper Kirlin's observations and claims that the dash camera video contradicts his version of events. Alternatively, he claims that his lane deviations do not give rise to reasonable suspicion that he violated § 31-5-209(a)(i). He contends his action in the first deviation could not support a reasonable suspicion because it could be explained—he was preparing to pass a semi-truck and crossed the center line to avoid Trooper Kirlin's parked patrol vehicle by a wider margin. He further contends that neither deviation could arouse reasonable suspicion because he was not required to maintain a "perfect vector," and that his deviations were minor and did not endanger others.

[¶13] The district court found as follows (footnotes omitted):

1. While on patrol at approximately 8:44 p.m. on July 28, 2018, Trooper Aaron Kirlin, of the ... Wyoming Highway Patrol, was parked on [the] median of the highway, approximately six-to-eight feet onto the median from the passing lane, when he observed a silver rental vehicle bearing California plates traveling eastbound on Interstate-80. The weather was clear and the roads dry, though the sun was setting.

2. Near mile marker 308, Trooper Kirlin observed the silver rental vehicle cross roughly two feet over the dotted center white line for about an eighth of a mile before correcting itself. After Trooper Kirlin began to follow the vehicle, he observed the vehicle cross the center white-dotted line for a second time, for about the same distance and to about the same degree. Trooper Kirlin's testimony at the hearing is corroborated by the dash camera DVD footage from Trooper Kirlin's patrol vehicle which, while somewhat difficult to discern on the DVD, does depict the vehicle crossing the dotted lane line twice, consistent with the trooper's testimony. Additionally, Trooper Kirlin can be overheard in the video noting aloud each time he observed the vehicle depart from its lane of travel.

* * *

21. Mr. Elmore asserts that his driving actions were not particularly egregious and were justified in that he "only drove over the dotted white passing line for a short distance, which was justified under the facts and circumstances of his case to make room for Trooper Kirlin's parked vehicle, as Mr. Elmore was getting ready to pass a semi-truck." ....

22. Having reviewed the dash camera video from Trooper Kirlin's patrol vehicle and based on the testimony provided at the suppression hearing, this Court disagrees. Mr. Elmore points to no adverse conditions (such as high winds, sharp curves, or damaged pavement) to justify the departure from his lane of travel, nor can this Court locate any such conditions on the DVD. See Dods [v. State,

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