McChesney v. State

• Citation: 988 P.2d 1071
• Decision Date: 20 October 1999
• Docket Number: No. 97-63.,97-63.
• Parties: Benjamin Q. McCHESNEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

988 P.2d 1071

Benjamin Q. McCHESNEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 97-63.

Supreme Court of Wyoming.

October 20, 1999.

Representing Appellant: Sylvia Lee Hackl, State Public Defender; Donna D. Domonkos, Assistant Appellate Counsel; and Jennifer Stone, Student Intern. Argument presented by Ms. Stone.

Representing Appellee: William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Robin

Sessions Cooley, Assistant Attorney General. Argument presented by Ms. Cooley.

Before LEHMAN, C.J., and THOMAS, GOLDEN, and TAYLOR¹, JJ., and KALOKATHIS, D.J.

LEHMAN, Chief Justice.

Benjamin McChesney entered a conditional plea of guilty to a charge of possession of marijuana with intent to deliver, reserving the right to appeal the denial of his motion to suppress evidence. McChesney argues that the police officer who stopped his car in response to an anonymous tip of erratic driving did not have a reasonable suspicion necessary to support an investigatory stop. We agree and now reverse.

ISSUES

McChesney presents one issue for our review:

Whether the district court erred by denying appellant's motion to suppress all evidence obtained after his arrest because there was no reasonable articulable suspicion to justify an investigatory stop.

The State of Wyoming, as appellee, states the issue in this manner:

The district court properly denied appellant's motion to suppress based on the information provided by the citizen-witness caller and based on the officer's independent corroboration of the call and his observations of the vehicle's occupants[.]

FACTS

Because the arresting officer, Gillette Police Officer Eric Will, was the only witness to testify at the suppression hearing, the events leading to the stop of McChesney's vehicle are essentially undisputed. Around 10:20 a.m. on July 12, 1996, Officer Will heard a dispatch broadcast over mutual aid radio. A highway patrol dispatcher was relaying an anonymous REDDI (Report Every Drunk Driver Immediately) report of erratic driving. The dispatch indicated that a red Mercury with temporary plates was weaving between lanes, passing cars, and slowing down in order to pass them again. The red Mercury, later determined to be driven by McChesney, was traveling east on Interstate 90 twenty-five miles west of Gillette. Will positioned himself to intercept the vehicle as it approached Gillette; he parked his vehicle in the I-90 median and waited. When asked why he waited for the vehicle, Officer Will testified:

Q. [BY PROSECUTOR] Okay. And why were you waiting for the vehicle to come by?

A. So that I could observe its driving and verify the information that I'd received over the radio.

Q. And what were you going to do if you saw this car, as far as verifying?

A. I was going to make sure—I was going to make sure that the vehicle did, in fact, match what—what I had heard over the radio and then follow the vehicle to see if any violations did, in fact, occur, and to possibly speak with the driver.

Q. Based on the broadcast, what kind of violations were you looking for, Officer?

A. Reckless driving, such as weaving. Increase, decrease in speed.

Officer Will waited seven to ten minutes before McChesney approached. As the McChesney vehicle passed by, all three of its occupants turned their heads in Officer Will's direction. The officer followed as McChesney exited I-90, turned left on Skyline Drive, and drove north to the Highway 14/16 intersection. During this time, Officer Will noticed the passengers looking in his direction. He also noticed the driver looking into his side and rearview mirrors. At the intersection of Highway 14/16, McChesney turned left and traveled north on Highway 14/16. As McChesney made a left turn into a convenience store parking lot, Officer Will, who was one car length behind McChesney, activated his red and blue overhead lights in order to effectuate a stop. During the time that he followed McChesney, Officer Will did not observe any erratic driving or any violations of the law. McChesney parked his vehicle at the front door of the convenience store, and Officer Will parked his vehicle directly behind McChesney's. When Officer Will approached McChesney, he noticed a green leafy material on his shirt and smelled the odor of marijuana. At the same time, Officer Will requested McChesney's driver's license, registration, and proof of insurance. Officer Will asked McChesney if he had been smoking, and McChesney admitted that he had smoked one joint earlier that day. Upon further questioning, McChesney handed Officer Will a baggy of marijuana from the back seat of the vehicle. He was then placed under arrest. Later, additional marijuana was found in a backpack taken from the vehicle.

McChesney was charged with possession of a controlled substance with intent to deliver in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii) (Michie 1997). After the district court denied McChesney's motion to suppress, McChesney entered a conditional guilty plea, reserving the right to appeal the suppression ruling. This timely appeal follows.

STANDARD OF REVIEW

Findings on factual issues made by the district court considering a motion to suppress are not disturbed on appeal unless they are clearly erroneous. Wilson v. State, 874 P.2d 215, 218 (Wyo.1994). Since the district court conducts the hearing on the motion to suppress and has the opportunity to assess the credibility of the witnesses, weigh the evidence, and make the necessary inferences, deductions, and conclusions, evidence is viewed in the light most favorable to the district court's determination. Id. The issue of law, whether an unreasonable search or seizure has occurred in violation of constitutional rights, is reviewed de novo. Id.; Brown v. State, 944 P.2d 1168, 1170-71 (Wyo. 1997).

DISCUSSION

In determining whether encounters between police and citizens are constitutionally valid, we have classified these encounters into three categories or tiers.

[1] The most intrusive encounter, an arrest, requires justification by probable cause to believe that a person has committed or is committing a crime. [2] The investigatory stop represents a seizure which invokes Fourth Amendment safeguards, but, by its less intrusive character, requires only the presence of specific and articulable facts and rational inferences which give rise to a reasonable suspicion that a person has committed or may be committing a crime. [3] The least intrusive police-citizen contact, a consensual encounter, involves no restraint of liberty and elicits the citizen's voluntary cooperation with non-coercive questioning.

Wilson v. State, 874 P.2d at 220 (citations omitted); see also Collins v. State, 854 P.2d 688, 691-92 (Wyo.1993); Brown v. State, 944 P.2d at 1171.

Although the district court treated the encounter between Officer Will and McChesney as an investigatory stop, our de novo review requires that we first determine whether McChesney was "seized" for purposes of the Fourth Amendment.² Perhaps recognizing the infirmity of the anonymous tip, the State contends that the encounter between McChesney and Officer Will was a consensual encounter, and the Fourth Amendment is not implicated. See Collins v. State, 854 P.2d at 695. We disagree.

A person has been seized within the meaning of the Fourth Amendment if, "in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Wilson v. State, 874 P.2d at 220 (quoting U.S. v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)). This test "is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a reasonable person." California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991). In the vehicle context, there is no question that the stopping of a vehicle and the detention of its occupants is a seizure. Whren v. United States, 517 U.S. 806, 809, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996); Colorado v. Bannister, 449 U.S. 1, 4 n. 3, 101 S.Ct 42, 43-44 n. 3, 66 L.Ed.2d 1 (1980); Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). The question thus becomes whether, under the circumstances presented here, a reasonable person in McChesney's position would have believed that he was not free to leave.

Here, as McChesney turned into the convenience store parking lot, Officer Will, who was following one car length behind, activated his red and blue overhead lights and followed McChesney into the parking lot. At this point, had McChesney attempted to drive off or otherwise flee the scene, he could have been charged with a misdemeanor for attempting to elude a police vehicle after being "given visual or audible signal to bring the vehicle to a stop...." Wyo. Stat. Ann. § 31-5-225(a) (Lexis 1999). Certainly, if McChesney could have been charged with a misdemeanor at this point, he was not free to leave in the eyes of the law. In similar situations, numerous courts have found that when an officer activates a police vehicle's emergency lights he has initiated a stop. Garza v. State, 771 S.W.2d 549, 557-58 (Tex.Crim.App.1989); State v. Walp, 65 Or.App. 781, 672 P.2d 374, 375 n. 1 (1983); State v. Stroud, 30 Wash.App. 392, 634 P.2d 316, 318-19 (1981); Hammons v. State, 327 Ark. 520, 940 S.W.2d 424, 428 (1997); State v. Burgess, 163 Vt. 259, 657 A.2d 202, 203 (1995); State v. Pulley, 863 S.W.2d 29, 30 (Tenn.1993); see 4 Wayne R. LaFave, Search and Seizure § 9.3(a), at 108-110, n. 99-100 (3d ed.1996).

However, there is even more in this case. Officer Will parked his vehicle directly behind McChesney's, which was parked at the convenience store's front doors. McChesney's vehicle was thus blocked in, and he could not have...