Flood v. State

• Decision Date: 23 October 2007
• Docket Number: No. 06-127.,No. 06-126.,06-126.,06-127.
• Citation: 169 P.3d 538,2007 WY 167
• Parties: Aaron FLOOD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

169 P.3d 538

2007 WY 167

Aaron FLOOD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 06-126.

No. 06-127.

Supreme Court of Wyoming.

October 23, 2007.

Representing Appellant: D. Terry Rogers, Interim State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel; Ryan R.

Roden, Senior Assistant Appellate Counsel; Kirk Morgan, Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric A. Johnson, Faculty Director, PAP; Geoff Gunnerson, Student Director, PAP; Scott L. Mullins, Student Intern, PAP. Argument by Mr. Mullins.

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

KITE, Justice.

[¶ 1] After conditionally pleading guilty to two controlled substances offenses, Mr. Flood challenges the district court's denial of his motion to suppress evidence discovered during a search of the vehicle he was driving. He maintains that he was detained in violation of his constitutional rights. Concluding the highway patrol trooper did not exceed the scope of permissible detention while issuing traffic tickets to him and his passenger, who was the owner of the car, and that the officer had reasonable suspicion to justify detaining Mr. Flood after the original purpose of the traffic stop had ended, we affirm.

ISSUE

[¶ 2] Mr. Flood states a single issue on appeal:

Did the state trooper lack reasonable suspicion to detain appellant while he searched the car, without consent, and therefore did the district court err in denying appellant's motion to suppress?

The State phrases the issue as:

Did the district court err in finding that Trooper Chatfield was justified in extending the investigatory stop of appellant's vehicle based on the totality of the circumstances, including: appellant's and his passenger's inconsistent accounts of their travel plans; the strong odor of cologne on them; and their inconsistent accounts involving their relationship to one another and to the young boy in the backseat?

FACTS

[¶ 3] At approximately 1:00 p.m. on June 1, 2005, Mr. Flood was driving a car belonging to one of the passengers, Carroll Janis, east on Interstate 80 outside of Cheyenne, Wyoming. Wyoming Highway Patrol Trooper David Chatfield was patrolling the interstate with his drug detection dog and clocked Mr. Flood's car traveling 78 miles per hour in a 75 mile per hour zone. He activated his lights and stopped Mr. Flood. Trooper Chatfield exited his patrol car and spoke with Mr. Flood through the driver side window, requesting his driver's license, registration and proof of insurance. Mr. Flood provided his driver's license and Mr. Janis stated that the car belonged to him and provided the registration, but stated that the car was not insured. While gathering this information, the trooper noticed a strong smell of cologne or patchouli oil emanating from the car.

[¶ 4] Trooper Chatfield asked Mr. Flood to accompany him back to his patrol car. As he wrote out a warning for speeding, the trooper noted a strong cologne smell coming from Mr. Flood. Trooper Chatfield asked Mr. Flood about his travel plans, and he responded that he, Mr. Janis and a boy who was sitting in the back seat had left Scottsbluff, Nebraska that morning and traveled to Cheyenne to visit one of Mr. Flood's family members. He stated that the family member had to go to work, so they were returning to Scottsbluff. The trooper asked about Mr. Flood's relationship to Mr. Janis and the boy. Mr. Flood stated he was not related to Mr. Janis but they were good friends, and the boy was his twelve year old nephew. The trooper gave Mr. Flood the warning and returned his documentation.

[¶ 5] Trooper Chatfield then approached Mr. Janis and asked him to come back to the patrol car. While preparing a ticket for lack of insurance, he asked Mr. Janis about their trip. Mr. Janis stated that the three occupants of the car had driven to Cheyenne the previous afternoon, spent the night there, and were returning to Scottsbluff. He also stated that he was not related to Mr. Flood, but the boy in the backseat was his grandson. Like Mr. Flood, Mr. Janis smelled strongly of cologne or patchouli oil.

[¶ 6] Trooper Chatfield gave Mr. Janis the citation for lack of insurance, returned the documents he had supplied and told him he was free to leave. As Mr. Janis was walking back to his car, the trooper exited the patrol car and asked if he could ask him some more questions. Mr. Janis agreed, and the trooper inquired whether there was anything illegal, such as guns or drugs, in the car. Mr. Janis denied having any contraband in the car, and the trooper asked if he could search the car. Mr. Janis did not respond verbally to the trooper's request, but leaned into the car and, apparently, told Mr. Flood to open the trunk. The trooper could see a blanket covering a ball-shaped object in the trunk. Trooper Chatfield again asked if he could search the car, to which Mr. Janis responded that they needed to "get going." Taking this as a negative response, Trooper Chatfield stated that he intended to have his drug dog sniff the exterior of the car.

[¶ 7] Trooper Chatfield had all three occupants of the car get out and stand in the ditch next to the roadway. He then turned his drug dog loose and the dog alerted, indicating he detected the odor of illegal drugs. Trooper Chatfield searched the car and discovered approximately two pounds of marijuana in the trunk and approximately one ounce of cocaine in the glove box. Mr. Flood was arrested and charged with four felony counts in violation of Wyo. Stat. Ann. §§ 35-7-1031(a)(i), (ii) and (c)(ii), (iii) (LexisNexis 2007): possession of cocaine, possession of cocaine with intent to deliver, possession of marijuana, and possession of marijuana with intent to deliver.

[¶ 8] Mr. Flood filed a motion to suppress the evidence discovered during the search of the car. He claimed that he was detained in violation of the constitutional prohibitions against illegal searches and seizures. After a hearing, the district court denied Mr. Flood's motion to suppress.

[¶ 9] Mr. Flood entered into a plea agreement with the State in which he agreed to plead guilty to the two marijuana charges in exchange for dismissal of the cocaine charges. He reserved the right to appeal the district court's denial of his motion to suppress.

STANDARD OF REVIEW

[¶ 10] We apply the following standard in reviewing a denial of a motion to suppress evidence:

Factual findings made by a trial court considering a motion to suppress will not be disturbed unless the findings are clearly erroneous. Meek v. State, 2002 WY 1, ¶ 8, 37 P.3d 1279, ¶ 8 (Wyo.2002). 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. Id. Whether an unreasonable search or seizure occurred in violation of constitutional rights presents a question of law and is reviewed de novo. Vasquez v. State, 990 P.2d 476, 480 (Wyo.1999).

O'Boyle v. State, 2005 WY 83, ¶ 18, 117 P.3d 401, 407 (Wyo.2005). See also, Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

DISCUSSION

[¶ 11] Mr. Flood asserts Trooper Chatfield detained him in violation of state and federal constitutional guarantees against unreasonable searches and seizures and, consequently, the evidence discovered during the ensuing search should have been suppressed as fruit of the poisonous tree. On appeal, he presents a "combined analysis" under Wyo. Const. art. 1, § 4 and the Fourth Amendment to the United States Constitution.

A. State Constitution

[¶ 12] Although he cited to the Wyoming Constitution in his motion to suppress, Mr. Flood did not present an independent analysis to the district court to establish that the Wyoming Constitution provides different or more extensive protection than the Fourth Amendment in the context of this case.¹ In Custer v. State, 2006 WY 72, ¶¶ 11-12, 135 P.3d 620, 623-24 (Wyo.2006), we stated:

Mr. Custer's only mention of the state constitution in the district court proceedings was a citation to Article 1, § 4 in his motion to suppress and his argument at the suppression hearing focused exclusively on the Fourth Amendment to the United States Constitution. A mere reference to a state constitutional provision in the district court is not adequate to justify our review of the issue on appeal. As we explained in Lindsay v. State, 2005 WY 34, ¶¶ 16-17, 108 P.3d 852, 856 (Wyo.2005), this Court refuses to consider state constitutional issues presented for the first time on appeal. We stated:

[W]hen a defendant fails to assert a cogent independent state constitutional based argument before the district court, a defendant fails to preserve such issues for appellate review.

Lindsay, ¶ 16, 108 P.3d at 856. See also, McChesney v. State, 988 P.2d 1071, 1074, n. 1 (Wyo.1999) (ruling that the defendant's reference to the state constitution, without further discussion of his independent state constitutional claim, was insufficient to justify judicial consideration of the issue).

A corollary rule also applies when a defendant has entered a conditional guilty plea. Lindsay, ¶ 17, 108 P.3d at 856.

In the same vein, upon addressing the fact that W.R.Cr.P. 11(a)(2) allows a defendant to plead guilty or nolo contendere while reserving the right to seek review on appeal of any specified pretrial motion, we set forth in Morgan [v. State, 2004 WY 95], ¶ 24, [95 P.3d 802, 808 (Wyo.2004)]:

In Bailey [v. State, 12 P.3d 173, 177 (Wyo.2000)], we ruled that a conditional plea of guilty does not provide carte blanche permission for the appellant to present any and all arguments on appeal. [Bailey,] 12 P.3d at 177-78. Instead, the appellant may only...