Kennison v. State

• Decision Date: 04 May 2018
• Docket Number: S-17-0207
• Citation: 417 P.3d 146
• Parties: Evan Ernest KENNISON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

417 P.3d 146

Evan Ernest KENNISON, Appellant (Defendant),

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

S-17-0207

Supreme Court of Wyoming.

May 4, 2018

Representing Appellant: Donna D. Domonkos, Domonkos Law Office, LLC, Cheyenne, Wyoming.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Katherine A. Adams, Assistant Attorney General; Darrell D. Jackson, Faculty Director, Prosecution Assistance Program, Saige N. Smith, Student Director, Brandon J. Rosty, Student Intern. Argument by Mr. Rosty.

Before BURKE, C.J., and HILL^* , DAVIS, FOX, and KAUTZ, JJ.

KAUTZ, Justice.

[¶1] Appellant Evan Ernest Kennison entered a conditional guilty plea to one count of possession of marijuana, in violation of Wyo. Stat. Ann. § 35-7-1031(c)(i)(A) and (c)(iii)(Lexis Nexis 2017). Mr. Kennison appeals the district court’s order denying his motion to suppress the marijuana Trooper Aaron Kirlin discovered in his possession during a traffic stop on Interstate 80. We affirm.

ISSUE

[¶2] Mr. Kennison raises one issue on appeal which we rephrase as follows:

Did the district court err when it determined Trooper Kirlin’s extended contact with Mr. Kennison was a consensual encounter and did not violate the Fourth Amendment to the United States Constitution?

FACTS

[¶3] On the morning of April 13, 2016, Trooper Kirlin was on patrol on Interstate 80 west of Laramie, Wyoming. He received a second-hand text message from another trooper stating Trooper Jason Sills with the Utah Highway Patrol had stopped a black Toyota pickup with a bed cover and multiple stickers covering the back window the evening before. Trooper Sills suspected some sort of criminal activity inside the truck, but a canine unit was not readily available and the driver refused to consent to a search of the truck. Just after 7:00 a.m., Trooper Kirlin observed the truck described by Trooper Sills. Trooper Kirlin began to follow the truck and observed it cross the center and fog lines several times.

[¶4] Trooper Kirlin pulled the truck over and as he approached it he saw both windows were down and the passenger, later identified as Mr. Kennison, was smoking a freshly lit cigarette. Trooper Kirlin informed the driver, Dorinda Wilder, he had pulled her over for multiple lane violations and he would be issuing her a warning. He requested to see Ms. Wilder’s driver’s license, registration, and proof of insurance, and asked her to accompany him to his patrol car while he ran her information and prepared the warning. While in the patrol car, Trooper Kirlin asked Ms. Wilder if she would be willing to answer some questions and informed her she did not have to answer any questions if she did not want to. Ms. Wilder agreed, and Trooper Kirlin learned Ms. Wilder and Mr. Kennison were returning to their home in Vermont after a short visit with Mr. Kennison’s cousin in Sacramento, California.

[¶5] Trooper Kirlin also learned the truck was registered to Mr. Kennison. Ms. Wilder remained in the patrol car while Trooper Kirlin returned to the truck to verify Mr. Kennison’s ownership. Trooper Kirlin checked Mr. Kennison’s identification and asked him about the couple’s travel plans. Trooper Kirlin observed Mr. Kennison was still smoking a cigarette and he appeared very nervous and was trembling.

[¶6] Trooper Kirlin returned to his patrol car and finished issuing the warning. He returned Ms. Wilder’s documentation and informed her the traffic stop was complete. He asked her if she felt free to leave, to which she responded she did. He then asked if he could ask her some more questions and, again, told her she did not have to answer any questions if she did not want to. Ms. Wilder stated she would answer his questions. Trooper Kirlin asked her the name of Mr. Kennison’s cousin they had visited and information about their travel plans. He also inquired about the couple’s employment and when they needed to return to work.

[¶7] Trooper Kirlin asked Ms. Wilder for permission to speak to Mr. Kennison again, and she agreed. Trooper Kirlin returned to the truck and informed Mr. Kennison the traffic stop was complete. Mr. Kennison asked Trooper Kirlin if he was being detained, and Trooper Kirlin informed him he was not. Trooper Kirlin asked Mr. Kennison if he would answer some more questions, and he agreed to do so. He answered questions about his travel plans and why he had decided to drive to California from Vermont instead of flying. During this time, Trooper Kirlin smelled a faint odor of raw marijuana. Trooper Kirlin told Mr. Kennison he smelled marijuana and asked how much marijuana was in the truck. Mr. Kennison handed Trooper Kirlin a marijuana grinder that contained marijuana residue.

[¶8] Trooper Kirlin placed Mr. Kennison in the patrol car and then deployed his canine partner, Frosty, to conduct a free-air sniff around the exterior of the truck. Frosty alerted at the tailgate. Based on Frosty’s alert, Trooper Kirlin searched the vehicle and found a small bag of marijuana in a piece of luggage and an additional seven pounds of marijuana in a duffel bag.

[¶9] The State charged Mr. Kennison with one count of possession of marijuana, in violation of § 35-7-1031(c)(i)(A) and (c)(iii), and one count of possession of a controlled substance with the intent to deliver, in violation of § 35-7-1031(a)(ii). Mr. Kennison filed a motion to suppress the marijuana. Although the motion is not entirely clear on the matter, it appears Mr. Kennison argued Trooper Kirlin’s actions violated his rights under the United States and Wyoming constitutions. He argued he was unreasonably detained by Trooper Kirlin when he and Ms. Wilder were questioned about where they worked and when they needed to return to work. He further argued that a reasonable person in his situation would not have felt free to leave when he was approached by Trooper Kirlin the final time because Ms. Wilder had remained in the patrol car. After receiving a response from the State and holding a hearing on the matter, the district court concluded Trooper Kirlin’s contact with Mr. Kennison did not violate either the United States or Wyoming constitution and denied the motion to suppress. The court determined Trooper Kirlin’s initial stop of the vehicle was justified and the information he obtained while issuing Ms. Wilder the warning was reasonably related in scope to the purpose of the stop. The court further determined Trooper Kirlin’s contact with Ms. Wilder and Mr. Kennison after the traffic stop ended was a consensual encounter.

[¶10] Thereafter, Mr. Kennison pleaded guilty to possession of marijuana, preserving his right to appeal the district court’s decision denying his motion to suppress. In exchange for his guilty plea, the State dismissed the possession of a controlled substance with the intent to deliver charge. The district court sentenced Mr. Kennison to two to five years in prison, but suspended it in favor of three years of probation. Mr. Kennison filed a timely notice of appeal.

STANDARD OF REVIEW

[¶11] When reviewing a district court’s decision denying a motion to suppress, we defer to the court’s findings of fact unless they are clearly erroneous. Jennings v. State , 2016 WY 69, ¶ 8, 375 P.3d 788, 790 (Wyo. 2016). We consider the evidence in the light most favorable to the district court’s decision because the court had the opportunity to assess the credibility of the witnesses and hear the evidence in the first instance. Owens v. State , 2012 WY 14, ¶ 8, 269 P.3d 1093, 1095 (Wyo. 2012). The underlying legal issue—whether a search or seizure was unreasonable and in violation of the defendant’s constitutional rights—is reviewed de novo . Jennings , ¶ 8, 375 P.3d at 790.

DISCUSSION

[¶12] Mr. Kennison contends Trooper Kirlin unlawfully detained him beyond the original purpose of the traffic stop in violation of his Fourth Amendment rights under the United States Constitution.¹ He argues that, even though Trooper Kirlin had completed the traffic stop with Ms. Wilder, Mr. Kennison was not free to leave when re-approached by Trooper Kirlin because Ms. Wilder was still in the patrol car. He claims, therefore, his consent to further contact with Trooper Kirlin was involuntary, and Trooper Kirlin’s discovery of the marijuana was unreasonable.

[¶13] The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. Jennings , ¶ 9, 375 P.3d at 790. "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." Allgier v. State , 2015 WY 137, ¶ 14, 358 P.3d 1271, 1276 (Wyo. 2015) (quoting Heien v. North Carolina , ––– U.S. ––––, 135 S.Ct. 530, 536, 190 L.Ed.2d 475 (2014) ). Any passengers in the vehicle are also "seized." Brendlin v. California , 551 U.S. 249, 255-59, 127 S.Ct. 2400, 2406-08, 168 L.Ed.2d 132 (2007). To determine whether a traffic stop and resulting seizure was reasonable under the Fourth Amendment, we use the two-part inquiry from Terry v. Ohio , 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968) : (1) whether the initial stop was justified; and (2) whether the officer’s actions during the detention were reasonably related in scope to the circumstances that justified the interference in the first instance. Hembree v. State , 2006 WY 127, ¶ 12, 143 P.3d 905, 908 (Wyo. 2006).

[¶14] To justify a traffic stop, an officer must have reasonable suspicion a person has committed or may be committing a crime. Venegas v. State , 2012 WY 136, ¶ 9, 287 P.3d 746, 749 (Wyo. 2012). "Reasonable suspicion entails some minimal level of objective justification for making a stop—that is, something more than an inchoate and unparticularized suspicion or hunch, but less than the level of suspicion required for probable cause." Jennings , ¶ 9, 375 P.3d at 791. Further, reasonable suspicion...