Lemley v. State

• Decision Date: 29 June 2016
• Docket Number: S–15–0225
• Citation: 2016 WY 65,375 P.3d 760
• Parties: Douglas Craig Lemley, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

375 P.3d 760

2016 WY 65

Douglas Craig Lemley, Appellant (Defendant)

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

S–15–0225

Supreme Court of Wyoming.

June 29, 2016

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne Martens, Senior Assistant Attorney General; Benjamin M. Burningham, Assistant Attorney General. Argument by Mr. Burningham.

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

DAVIS

, Justice.

[¶1] Appellant Douglas Lemley was convicted of possessing relatively small amounts of morphine and methamphetamine. Both offenses were felonies due to Lemley's prior controlled substance convictions.¹ We affirm.

ISSUES

[¶2] Lemley asks this Court to consider the following three questions:

1. Was defense counsel ineffective in failing to move for the suppression of evidence found during the warrantless search of Lemley's backpack?

2. Was the State's evidence sufficient to prove that Lemley constructively possessed the drugs found in his backpack?

3. Did the district court's failure to grant Lemley's request for an additional instruction on the topic of constructive possession amount to reversible error?

FACTS

[¶3] At approximately 8:30 a.m. on September 4, 2014, Wyoming Highway Patrol Trooper Daniel Wyrick was driving eastbound toward Shoshoni on Highway 789, when a westbound SUV owned and driven by Michael Keele crossed the centerline into the trooper's lane, nearly causing a head-on collision. It later turned out that Lemley was a passenger in the vehicle.

[¶4] Wyrick turned his cruiser around and pulled Keele's vehicle over. He approached the driver's window, asked for Keele's license and insurance, and asked if he had been drinking or texting at the time he swerved out of his lane. Keele denied drinking and handed the trooper his proof of insurance and a temporary identification card he had been issued pending replacement of his lost driver's license. Wyrick confirmed that Keele had a valid license, and had him exit his vehicle to perform field sobriety tests. He showed no signs of intoxication, so Trooper Wyrick had him return to the SUV while he prepared a citation. In the meantime, the trooper radioed for assistance, and Fremont County Deputy Sheriff Kevin Coulter and Chief of Police Bartlett from Shoshoni came to the scene.

[¶5] When Deputy Coulter arrived, the trooper handed him Keele's identification papers. The deputy then approached the passenger side of the SUV, introduced himself to Lemley, and asked to see some identification. Lemley produced his driver's license, and the deputy had his dispatcher run a warrant check on both him and Keele. When he returned to the vehicle, he asked for and was granted permission by Keele to search it. When he asked for permission to search from the driver's side window, Keele was in the driver's seat and Lemley was seated next to him in the front passenger's seat.

[¶6] Because he intended to employ his drug dog for the search and wanted to avoid any risky interactions between the dog and the two men, Deputy Coulter asked them to step out of the vehicle, directed Keele to take a seat in Trooper Wyrick's cruiser, and sent Lemley to Chief Bartlett's car.² High winds made it impossible to effectively use the dog outside the vehicle, and the deputy decided the animal might be injured if allowed to move around inside because it was filled with clothes, debris, food, and “garage” items. The seats and floor were covered with these items, and the cargo area of the SUV was similarly loaded from half to three quarters of the way to the headliner. Consequently, Deputy Coulter returned the dog to his patrol vehicle and searched Keele's SUV by hand.

[¶7] The deputy began his search with the driver's seat and the floor and area near it. Finding nothing of interest there, he turned his attention to the area around the front passenger seat and again found nothing significant. He proceeded next to that portion of the rear seat and floor immediately behind the front passenger seat, where he found a large plastic tote bag that filled approximately that half of the rear bench seat. It contained a lot of clothing and sundry household items. Next, the deputy examined the rear driver-side seat and floor. On the seat was a blue and black backpack.

[¶8] Coulter first unzipped the middle compartment of the pack and found men's clothes, toiletries, and a wallet.³ In the fully zipped front compartment, he found a small, zippered leather pouch containing small plastic baggies, one containing four purplish pink pills and the other what initially appeared to be a gnawed-upon white pill. The officers on the scene were able to quickly identify the pink pills as morphine

sulphate from markings pressed into them by conducting an internet search on a smartphone.

[¶9] Deputy Coulter separately asked first Keele⁴ and then Lemley who owned the backpack.⁵ Keele said it belonged to Lemley, who had brought it with him when he got in the SUV. Lemley confirmed that the pack was his. When confronted with the leather pouch and its contents, however, Lemley denied it was his.⁶

[¶10] The deputy arrested Lemley for possession of the suspected morphine

. Later laboratory testing established that the pills were indeed morphine, and also that what appeared to be a gnawed-on pill was in fact part of a cotton ball containing methamphetamine.

[¶11] Lemley eventually went to trial on charges of possessing both substances. On March 4, 2015, the jury returned a guilty verdict on both counts, and the district court later sentenced him to concurrent sentences of two to five years in prison. Lemley then timely perfected this appeal.

DISCUSSION

Ineffective Assistance

[¶12] Lemley contends that his trial attorney was ineffective in not moving to suppress the drugs found in his backpack. More pointedly, he asserts that Trooper Wyrick and Deputy Coulter could not reasonably rely on Keele's apparent authority to consent to a search through the interior and contents of Keele's SUV to justify a search of Lemley's pack. He concludes that the search of the pack was unlawful under the Fourth Amendment to the United States Constitution because Lemley did not consent to it, and that the evidence would have been suppressed if the proper motion had been made.

[¶13] This Court reviews ineffective assistance claims de novo . Mersereau v. State , 2012 WY 125, ¶ 68, 286 P.3d 97, 122 (Wyo.2012)

. To succeed on such a claim, an appellant must demonstrate that counsel's acts or omissions were outside the wide range of professionally competent assistance. We strongly presume that counsel rendered adequate assistance and made all significant decisions in the exercise of professional judgment. If an appellant can clear this high barrier of ineffectiveness, he must also establish that he was thereby prejudiced because if his counsel had performed competently, there is a reasonable probability his trial would have yielded a decision more favorable to him. Grissom v. State , 2005 WY 132, ¶¶ 11–12, 121 P.3d 127, 132 (Wyo.2005). This Court may dispose of an ineffectiveness claim solely on the basis that the appellant has not made an adequate showing of prejudice. Id. , ¶ 13, 121 P.3d at 133.

[¶14] Where a claim of ineffectiveness rests on counsel's failure to file a suppression motion, prejudice can be shown only by demonstrating that the motion would have been granted, thereby leaving the prosecution with little unsuppressed evidence to support a conviction. Id. , ¶ 12, 121 P.3d at 132–33

. Stated another way, if the motion would have been denied, a defendant cannot have been prejudiced by counsel's failure to bring the motion. Mersereau , ¶ 69, 286 P.3d at 122 ; Carter v. State , 2010 WY 136, ¶ 15, 241 P.3d 476, 484 (Wyo.2010).⁷

[¶15] It has been well established since Illinois v. Rodriguez , 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)

, that no Fourth Amendment violation occurs when police reasonably believe that a person who consents to a warrantless search has authority over the place or thing to be searched.

4 Wayne R. LaFave, Search and Seizure § 8.3(g) (5th ed. database updated Oct. 2015)

. Apparent authority does not exist when the police clearly know that the consenting party has no such authority. Id.

[¶16] However, there is apparent authority to give a valid consent if the facts available to an officer at the time of the search permit an objectively reasonable, even if perhaps erroneous, belief that the consenting party has sufficient interest in or power over the thing to be searched to grant such consent. United States v. Benoit , 713 F.3d 1, 8 (10th Cir.2013)

; Smallfoot v. State , 2012 WY 39, ¶ 14, 272 P.3d 314, 318 (Wyo.2012) ; Baker v. State , 2010 WY 6, ¶ 12, 223 P.3d 542, 547–48 (Wyo.2010).

[¶17] Although it has been said that officers presented with ambiguous facts may have a duty to investigate further before relying on a person's consent, facts reasonably indicating the person has the authority to consent do not become ambiguous, or give rise to a duty of further inquiry, simply because one can imagine additional facts that might alter one's analysis. United States v. Romero , 749 F.3d 900, 907 (10th Cir.2014)

. Moreover, there is no duty to inquire further, and an officer acts reasonably in relying on the apparent authority of the consenting person, if a second person who could be expected to object and correct any misperception as to authority to authorize a search is present when consent is requested and he remains silent. 4 LaFave, supra , § 8.3(g); William E. Ringel, Searches and Seizures, Arrests and Confessions § 9:22 (2d ed. March 2016 update).

[¶18] This point is illustrated by United States v. Langston , 970 F.2d 692 (10th Cir.1992)

. In the presence of the passenger, the driver of a vehicle consented to a...