McGarvey v. State

• Decision Date: 29 January 2009
• Docket Number: No. S-08-0070.,S-08-0070.
• Citation: 2009 WY 8,200 P.3d 785
• Parties: Karen McGARVEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

200 P.3d 785

2009 WY 8

Karen McGARVEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. S-08-0070.

Supreme Court of Wyoming.

January 29, 2009.

Representing Appellant: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; and Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney

General; Jenny L. Craig, Interim Faculty Director, Prosecution Assistance Program; Eric Thompson, Student Director; and Jill Cottle Garrett, Student Intern. Argument by Ms. Garrett.

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

HILL, Justice.

[¶ 1] Appellant, Karen McGarvey (McGarvey), entered conditional pleas of guilty to felony possession of marijuana, and misdemeanor possession of methamphetamines. The condition attached to her plea was that she be permitted to pursue an appeal of the district court's order denying, in part, her motion to suppress the evidence seized by the State at the time she was briefly stopped and then arrested. We will affirm.

ISSUES

[¶ 2] McGarvey raises this issue:

Did the district court err when it denied [McGarvey's] motion to suppress because the initial seizure of Ms. McGarvey was not supported by reasonable suspicion of criminal activity?

The State essentially agrees with that statement of the issue.

FACTS AND PROCEEDINGS

[¶ 3] On June 22, 2007, at approximately 1:20 a.m., Casper Police Officer Derrick Dietz was working with several other officers in search of a fleeing domestic assault suspect who was reported to have jumped into the North Platte River. Dietz was in the area of North Center Street near the Loaf `N Jug, one block east of the river. Dietz observed a 1989 Honda, which McGarvey was driving, pull out of the Loaf `N Jug onto North Center Street, heading southbound. He noticed the vehicle pulling out a little quickly, which caught his attention. He also noted there were two individuals in the vehicle and decided that he needed to conduct further observation. Officer Dietz followed the vehicle down North Center Street, trailing within a block of the vehicle. While he was doing so, McGarvey made a left-hand turn into a parking lot, quickly turned the vehicle around, and returned back onto North Center Street—all without stopping. McGarvey then accelerated quickly until she abruptly turned onto E Street without using a turn signal. Officer Dietz felt McGarvey's driving behavior was suspicious, in that it seemed she was trying to get away from his vehicle, which was a marked Casper City Police car. After turning onto E Street, McGarvey pulled in front of the Parkway Plaza (Parkway), leaving her car in a "no parking" area just north of the Parkway's canopied entrance.

[¶ 4] After the vehicle stopped, McGarvey and her passenger got of out the car and, although not quite running, they quickly began to walk inside the Parkway. Officer Dietz believed they were trying to avoid contact with him. He called in his location to dispatch and pulled his car up next to the Parkway's entrance so he could attempt to speak to the occupants of the vehicle. McGarvey and her male passenger were walking into the Parkway when Officer Dietz asked them to stop. It was conceivable that McGarvey did not hear Dietz, as she had by that time passed through the entrance door. However, the male passenger had not yet gone through the entrance when Dietz called out to them, and he appeared to ignore Officer Dietz's request, continuing into the building behind McGarvey without acknowledging that request.

[¶ 5] Officer Dietz entered the Parkway and noticed that McGarvey and the male passenger had started down a corridor located just past the front desk. He again identified himself and asked them to stop. They complied with this request. Officer Dietz asked McGarvey and the male passenger for their identification. While he was gathering information from the male passenger in the hallway, Dietz noticed that McGarvey appeared very nervous: sweating, stammering, and displaying nervous mannerisms. He also observed that, when McGarvey was giving him her identification information, she appeared to be trying to deceive him about who she was. She told him her name was Kathy Barber, reported a birth date, but stated that she could not recall her Social Security Number. Dietz noted that McGarvey's continued nervousness, twitching, and inability to "stand still and maintain a normal conversational contact position" was indicative of an individual under the influence of some type of controlled substance. Dietz then asked her who owned the vehicle she had been driving, and she informed him that it belonged to a friend whose name she could not remember. He also asked her about the insurance information for the vehicle, to which she responded that she did not know that information.

[¶ 6] Dietz then asked McGarvey and the male passenger if they would walk over to the main lobby area with him, as he wanted to stand where he could be seen by an incoming back-up officer. Both McGarvey and the male passenger went back to the main lobby with Officer Dietz. As they arrived in the main lobby, McGarvey repeatedly attempted to put her hands into her pockets, and Officer Dietz asked her to stop two or three times. However, she did not stop putting her hands in her pockets but, rather, put her left hand into her left front pants pocket. He continued to ask her several times to stop and, when she did not stop, he reached down, stopped her hand, and did a cursory feel of the pocket for possible weapons. Officer Dietz felt what he thought was a cigarette lighter and a soft package. He then saw a glass vial inside a black baggie that was protruding from McGarvey's upper left shirt pocket. Officer Dietz recognized the glass vial as a "meth smoking pipe." McGarvey tried to put her right hand into her right front pocket, whereupon Dietz grabbed that hand after telling her that she needed to stop or she would be handcuffed for his safety. When she continued to put her hand in her pocket, the officer began to handcuff her and a struggle ensued. Dietz put her in an arm bar and took her to the floor so he could continue to put handcuffs on her, but she continued to struggle, apparently trying to take something out of her pocket and stuff it up through the leg of her shorts into the crotch area. As the struggle continued, the glass pipe and case in her shirt pocket fell to the floor. Dietz also observed a small bindle in McGarvey's shirt pocket which he believed to contain a controlled substance. The bindle later field tested positive for methamphetamine.

[¶ 7] After the struggle, Officer Dietz and McGarvey stood up, and another glass pipe fell out of her pant-leg and onto the floor. McGarvey told Dietz that this was what she had been trying to hide during their struggle.

[¶ 8] Officer Dietz then spoke with the Parkway desk clerk, David Garner, who told the officer that he recognized McGarvey as a former employee at the Parkway and "that she had been trespassed from the Parkway Plaza." A backup policeman, Officer Schulte, soon arrived, and he noticed several things on the ground where the struggle between Officer Dietz and McGarvey had taken place: car keys, cigarettes, and a little bindled baggie. Schulte pointed out these items to Officer Dietz, who seized the little bindled baggie. Dietz observed that the little bindled baggie contained what appeared to be marijuana, and such was later confirmed by a field test.

[¶ 9] McGarvey was then placed under arrest for the possession of controlled substances. Pursuant to a search incident to that arrest, Dietz found a small cylinder-shaped container on McGarvey's person which appeared to contain residue from a controlled substance. He took McGarvey outside and observed that she was walking with an unusual gait, apparently trying to hold her legs together as she walked. Dietz believed that she still had something in the crotch area of her pants that she was trying to hide. He placed her in the back of his patrol car and activated its audio and video recording devices. At about this same time, Dietz was notified by dispatch that the owner of the car he had followed was Karen McGarvey, who had an active warrant for a parole violation and a suspended driver's license. McGarvey heard this notification and, when asked her name by Officer Dietz, admitted that she indeed was Karen McGarvey and that she was on parole. Dietz then gave her the Miranda warnings, after which she again confirmed her name and parole violation. She also admitted to being in possession of methamphetamine but denied the possession of marijuana.

[¶ 10] Based upon the confirmation that the vehicle belonged to McGarvey, Dietz conducted a further investigation of the vehicle. Through the window of the vehicle, he observed a digital scale, which he recognized as the type of item commonly used for both using and/or selling controlled substances. He also observed that the scale had residue on it, which appeared consistent with a controlled substance. During this time, Officer Dietz observed McGarvey moving around in the back of the patrol car. Consequently, he spoke with her and she complained of pain in her upper back. Dietz removed her from the patrol car to extend the handcuffs and make them more comfortable for her. As Officer Dietz was placing her back into the patrol car, he noticed her make a small kicking motion. When he closed the door and stepped back from the vehicle, he noticed a little blue container on the ground which had not been there before. That item seemed consistent with the soft packet he had felt in McGarvey's left pants pocket during the initial frisk. Inside the blue container were three additional bindles.

[¶ 11] Officer Dietz then searched McGarvey's vehicle and found...