Lindsay v. State
| Decision Date | 28 March 2005 |
| Docket Number | No. 04-52.,04-52. |
| Parties | Anthony J. LINDSAY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Marion Yoder, Senior Assistant Public Defender.
Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Georgia L. Tibbetts, Senior Assistant Attorney General.
Before HILL, C.J., and GOLDEN, KITE, VOIGT, JJ., and STEBNER, D.J., Retired.
[¶ 1] Appellant, Anthony J. Lindsay, entered a conditional plea of nolo contendere to possession of methamphetamine in violation of Wyo. Stat. Ann. § 35-7-1031(c) (LexisNexis 2003). On appeal, Lindsay asserts that evidence obtained from the search of his person upon his arrest, after a traffic stop, should have been suppressed. Finding that the search of Lindsay's person was proper, we affirm.
[¶ 2] On July 2, 2003, at 3:28 p.m., Trooper Mrnsy pulled over the vehicle that Lindsay was driving because he witnessed that vehicle following another automobile too closely when apparently attempting to pass in a "no-pass" zone.2 During Trooper Mrnsy's initial inquiries, he learned that the vehicle Lindsay was driving was a rental car that was to be driven solely in California and only by Paula Griego, who Lindsay asserted was his mother, who was not in the vehicle. Trooper Mrnsy also obtained the driver's license of both Lindsay and a male passenger riding in the vehicle.3
[¶ 3] Based on the rental car situation and Lindsay's responses to questions involving his travel plans, Trooper Mrnsy asked if he could search the vehicle. Lindsay refused this request. Subsequently, Trooper Mrnsy asked dispatch to check on the status of the drivers' licenses of Lindsay and the male passenger in the vehicle and requested that a drug dog be sent to the scene. At 3:36 p.m., it was learned that the driver's license of Lindsay was suspended. However, dispatch could not advise Trooper Mrnsy of the exact reason for suspension. A minute later, Trooper Mrnsy found it necessary to waive away an automobile, from the traffic stop scene, that had been traveling with the vehicle driven by Lindsay.
[¶ 4] Trooper Mrnsy again asked Lindsay if he could search the vehicle and Lindsay again refused. Trooper Mrnsy then asked Lindsay to accompany him to his patrol vehicle to which Lindsay complied. Lindsay further advised Trooper Mrnsy that he did not have any weapons or drugs in his possession.
[¶ 5] Twelve minutes after the stop, Trooper Mrnsy asked if Lindsay was financially able to pay a $410.00 bond on a citation for driving while his license was under suspension. Over the next several minutes, Trooper Mrnsy and Lindsay discussed how Lindsay might pay the bond amount and the rental car situation. Lindsay also provided Trooper Mrnsy with information necessary to issue Lindsay a citation for driving while under suspension. At 3:54 p.m., dispatch informed Trooper Mrnsy that the driver's license of Lindsay was suspended for insurance reasons. Ultimately, Trooper Mrnsy reduced the citation for driving under suspension by $10.00 indicating that Lindsay was wearing his seat belt, although Lindsay was not wearing his seat belt when pulled over. Lindsay signed the driving under suspension citation and Trooper Mrnsy collected the necessary bond from Lindsay.
[¶ 6] At 4:02 p.m., Trooper Mrnsy spoke with his supervisor via cellular telephone for five minutes. Trooper Mrnsy stated that he telephoned his supervisor to obtain advice on how to handle the situation. During the conversation, Trooper Mrnsy's supervisor apparently suggested that Trooper Mrnsy consider whether Lindsay had violated Wyoming's unauthorized use of a vehicle statute and further assisted Trooper Mrnsy with respect to other issues surrounding the traffic stop. Trooper Mrnsy indicated during his testimony at the suppression motion hearing that he had never before charged a person with the unauthorized use of a vehicle.
[¶ 7] After this telephone conversation, Trooper Mrnsy asked to review the rental car agreement again. Trooper Mrnsy then began to prepare the warning citation for following too closely. Forty-eight minutes into the traffic stop, the warning citation was issued to Lindsay.
[¶ 8] Fifty minutes into the traffic stop, Trooper Mrnsy asked dispatch to contact the rental car company to determine how it wanted to deal with the situation. Initially, the rental car company did not want to file charges but simply wanted the car seized. However, the rental car company was informed that the car could not be seized unless the rental car was reported as stolen.4 At approximately 4:45 p.m., the rental car company advised that it was going to report the vehicle as stolen.
[¶ 9] Trooper Mrnsy's supervisor then requested over the radio that Trooper Mrnsy telephone him. Trooper Mrnsy complied and spoke with his supervisor via cellular telephone for a few minutes. Lindsay was then arrested for unlawful use of the vehicle one hour and sixteen minutes into the traffic stop.
[¶ 10] Thereafter, Lindsay advised Trooper Mrnsy that he was carrying a concealed loaded weapon. A loaded and chambered Walther P38 9 mm pistol without the safety engaged was located on Lindsay's person upon a pat-down search. A later more thorough search of Lindsay, after he was arrested but while he was still at the scene of the traffic stop, rendered three glass pipes used to smoke methamphetamine and 12.4 grams of methamphetamine. As a result, Lindsay was charged with the unlawful possession of methamphetamine.
[¶ 11] Lindsay filed a motion to suppress the methamphetamine evidence found in his possession. After hearing, the district court denied the motion. Lindsay later pled nolo contendere to the methamphetamine charge conditioned on his right to appeal. This appeal followed.
[¶ 12] We reiterated in Guzman v. State, 2003 WY 118, ¶ 11, 76 P.3d 825, ¶ 11 (Wyo.2003) (quoting Hughes v. State, 2003 WY 35, ¶ 10, 65 P.3d 378, ¶ 10 (Wyo.2003)):
See also, Campbell v. State, 2004 WY 106, ¶ 9, 97 P.3d 781, ¶ 9 (Wyo.2004).
Waiver Via Entry of Plea.
[¶ 13] The State initially argues that Lindsay waived appellate review of all non-jurisdictional claims when he pled nolo contendere to the charge. We do not find the State's argument to be persuasive. It is true that we have consistently held that a plea of guilty or nolo contendere generally waives appellate review of all non-jurisdictional claims, which may include constitutional challenges to pre-trial proceedings. Morgan v. State, 2004 WY 95, ¶ 23, 95 P.3d 802, ¶ 23 (Wyo.2004); Bailey v. State, 12 P.3d 173, 177 (Wyo.2000); Smith v. State, 871 P.2d 186, 188 (Wyo.1994). However, an exception to this rule is found in W.R.Cr.P. 11(a)(2) which allows a defendant to plead guilty or nolo contendere while reserving the right to seek review on appeal of any specified pretrial motion. Morgan, ¶ 23 (citing Bailey, 12 P.3d at 177); W.R.Cr.P. 11(a)(2).5 See also generally, Gordon v. State, 2004 WY 105, 97 P.3d 64 (Wyo.2004); Goulart v. State, 2003 WY 108, 76 P.3d 1230 (Wyo.2003); Hart v. State, 2002 WY 163, 57 P.3d 348 (Wyo.2002).
[¶ 14] Lindsay expressly conditioned his plea of nolo contendere to the methamphetamine charge upon his ability to bring this appeal. This conditional plea was accepted by the district court with approval by the prosecutor. Thus, Lindsay cannot be said to have waived his right to bring those instant issues before this court through entry of his nolo contendere plea.
State Constitutional Issues.
[¶ 15] Lindsay contends that the methamphetamine evidence found on his person, after his arrest, is a product of an illegal detention unsupported by reasonable articulable suspicion thus, violating his constitutional rights. In making this argument, Lindsay asks this court to review this matter under both the state and federal constitutions. Lindsay concedes that he failed to present an independent state constitutional analysis to the district court regarding his motion to suppress. Nevertheless, Lindsay asks this court to provide a state constitutional ruling with respect to the suppression issues presented, in light of the district court's expressed wish for assistance in the area, and despite the state of the record.6
[¶ 16] Upon our careful review, we decline to rule on the state constitutional issues presented by Lindsay, for the first time, on appeal. We recently held in State v. Williams, 2004 WY 53, ¶ 16, 90 P.3d 85, ¶ 16 (Wyo.2004) () that when a...
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