Fertig v. State

• Decision Date: 17 November 2006
• Docket Number: No. 04-56.,04-56.
• Citation: 146 P.3d 492,2006 WY 148
• Parties: Landy Lee FERTIG, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

146 P.3d 492

2006 WY 148

Landy Lee FERTIG, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 04-56.

Supreme Court of Wyoming.

November 17, 2006.

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

Representing Appellee: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General (counsel); D. Michael Pauling, Senior Assistant Attorney General.

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

BURKE, Justice.

[¶ 1] Landy Lee Fertig appeals from a judgment and conviction following his entry of a conditional guilty plea to one count of felony possession of a controlled substance, methamphetamine. Mr. Fertig entered his conditional plea following the district court's denial of his motion to suppress evidence obtained after Mr. Fertig had been stopped for speeding by Wheatland police. Mr. Fertig does not dispute that the traffic violation was observed by the law enforcement officer who initiated the stop. He contends, however, that the stop was pretextual in nature and violated Article 1, Section 4 of the Wyoming Constitution because the primary motivation of the officer was to conduct a search for evidence of illegal drug activity. We find no error in the district court's denial of the motion to suppress and affirm the conviction.

ISSUE

[¶ 2] Does a traffic stop initiated by law enforcement after observing a traffic offense violate Article 1, Section 4 of the Wyoming Constitution when the primary purpose of the stop is to conduct a search for evidence of illegal drug activity?

FACTS

[¶ 3] On the evening of April 19, 2003, Officer Brian McPhillips received information from a confidential informant indicating that illegal drug activities were taking place at a specific residence in Wheatland. At the time, Officer McPhillips was a member of the Southeast Task Force of the Division of Criminal Investigation on assignment with the Wheatland Police Department. He was advised that Mr. Fertig was at the residence and that Mr. Fertig "possibly" would be in possession of drugs.

[¶ 4] Officer McPhillips established surveillance of the residence and observed Mr. Fertig's vehicle at the residence. Officer McPhillips contacted Officer Willadsen of the Wheatland Police Department and advised Officer Willadsen and another Wheatland police officer of the situation and requested that they position their vehicles along the two most likely routes of travel between the residence and Mr. Fertig's house. He asked the officers to keep a watch for the Fertig vehicle and requested that they stop the vehicle if they observed a traffic violation. Officer McPhillips hoped that the traffic stop would provide an opportunity to search for evidence of illegal drug activity.

[¶ 5] At approximately 2:40 a.m., Officer McPhillips observed Mr. Fertig leave the residence. He notified the officers and provided a description of Mr. Fertig's vehicle. Officer Willadsen spotted the vehicle and, using his radar, recorded the speed of the vehicle at 38 mph. Mr. Fertig was traveling in a 30 mph zone at the time. Officer Willadsen initiated a traffic stop of the Fertig vehicle and notified dispatch of the stop and his location. He then proceeded to the vehicle and requested that Mr. Fertig produce his driver's license, registration, and proof of insurance. Mr. Fertig provided his driver's license, but was unable to immediately locate the other documents.

[¶ 6] Officer Willadsen returned to his vehicle. In the meantime, Officer McPhillips arrived on the scene and positioned himself by the front passenger door of the Fertig vehicle. While in that position, he observed Mr. Fertig searching his glove box for the documents. Officer McPhillips observed a kitchen spoon with white crystalline rings on its surface in the glove box. He recognized the spoon as a device used to heat powdered methamphetamine into a liquid for intravenous injection. He concluded that he had probable cause to search the vehicle for illegal controlled substances and asked Mr. Fertig to exit the vehicle. Mr. Fertig complied. After exiting the vehicle, Mr. Fertig was placed in handcuffs and arrested for possession of drug paraphernalia in violation of a Wheatland ordinance. Officer McPhillips retrieved a bag containing approximately ten grams of methamphetamine from Mr. Fertig's shirt pocket.

[¶ 7] Mr. Fertig was charged with felony possession of methamphetamine. Prior to trial, he filed a motion to suppress evidence on the basis that the traffic stop was pretextual and violated Article 1, Section 4 of the Wyoming Constitution. A hearing on the motion was held. During the hearing, both officers testified that the primary purpose for the stop was to conduct a search for drugs. The district court denied the motion stating:

Under the U.S. Constitution an officer's subjective intent i[s] unimportant to the validity of an arrest or detention. If an officer validly stops a defendant for a traffic violation, the U.S. Constitution does not render that detention unreasonable simply because the officer thought or hoped the stop would render evidence of other criminal activity. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 13[5] L.Ed.2d 89 (1996); Arkansas v. Sullivan, 532 U.S. 769, 121 S.Ct. 1876, 149 L.Ed.2d 994 (2001). In those holdings the U.S. Supreme Court said state constitutions may limit evidence obtained in such traffic stops even if the U.S. Constitution does not.

The Defendant claims that the Wyoming Constitution restricts officers who make traffic stops more than the U.S. Constitution does. In support of this argument the Defendant points out that Article I, § 4 of the Wyoming Constitution requires affidavits in support of search warrants, whereas the 4th Amendment of the U.S. Constitution requires only an "oath or affirmation." The Court finds nothing in Defendant's argument, or in the Wyoming Constitution, to support his position. Further, the Court finds nothing unreasonable about the detention of the Defendant in this case. To the contrary, the officers acted very reasonably in stopping the Defendant. He violated a speeding ordinance and should have been stopped.

The Defendant's position, taken to its logical (and absurd) conclusion, is that police officers either should not make traffic stops of individuals suspected of other crimes, or, if they do make traffic stops, they should not observe evidence in plain view.

Mr. Fertig subsequently entered a conditional guilty plea to the charges, reserving his right to challenge the denial of his motion to suppress. He was sentenced to a term of 48-84 months in the Wyoming State Penitentiary. The sentence was suspended and he was placed on probation for seven years. This appeal followed.

STANDARD OF REVIEW

[¶ 8] We will not disturb the factual findings of a district court in determining a motion to suppress unless the findings are clearly erroneous. O'Boyle v. State, 2005 WY 83, ¶ 18, 117 P.3d 401, 407 (Wyo.2005). Whether an unreasonable search or seizure occurred in violation of constitutional rights presents a question of law which we review de novo. Id.

DISCUSSION

[¶ 9] The sole issue presented for our resolution is whether a pretextual traffic stop violates Article 1, Section 4 of the Wyoming State Constitution. A pretextual stop occurs when the police use a legal justification to make the stop in order to search a person or place, or to interrogate a person, for an unrelated crime for which they did not have the reasonable suspicion necessary to support a stop. United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir.1995) (en banc).

[¶ 10] Mr. Fertig does not dispute that he was speeding or was clocked traveling 38 mph in a 30 mph zone. He admits that Officer Willadsen had probable cause to initiate a traffic stop based upon personal observation of the speeding violation. He asserts, however, that he was stopped for the infraction only because of the underlying motive of the officers to search for narcotics. The underlying motive, according to Mr. Fertig, renders the stop unconstitutional at its inception.

[¶ 11] The State concedes that the stop of Mr. Fertig's vehicle was pretextual. The primary purpose of the stop was to obtain evidence of illegal drug activity.¹ The State contends, however, that the subjective intent of the officers for making the stop is irrelevant in determining whether the stop satisfies the requirements of Article 1, Section 4 of the Wyoming Constitution. According to the State, because Officer Willadsen personally observed a traffic violation, he had probable cause to initiate the traffic stop. The State succinctly sums up its position as follows: "While the officers involved acknowledged that they were hoping to stop [Mr. Fertig] for a traffic violation as a pretext to look for any drugs that might be in plain view, [Mr. Fertig] obliged them on both counts. The stop of [Mr. Fertig's] vehicle was initiated because he was speeding, and [Mr. Fertig] was sufficiently careless to expose drug evidence to the officers' plain view. As such, the encounter was constitutionally reasonable under Article 1, § 4...."

[¶ 12] Mr. Fertig concedes that "pretextual stops" are permissible under the federal constitution. In Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996), the United States Supreme Court determined that a pretextual traffic stop did not violate the search and seizure protections afforded by the Fourth Amendment to the United States Constitution. In Whren, the officers personally observed the traffic violation and had probable cause to initiate the stop. The Court recognized that "[a]s a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Id., 517 U.S. at 810, 116 S.Ct. at 1772. Mr. Fertig contends, however,...