Morgan v. State
| Decision Date | 13 August 2004 |
| Docket Number | No. 02-263.,02-263. |
| Parties | James Allen MORGAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Ken M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Senior Assistant Appellate Counsel. Argument by Mr. Roden.
Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Daniel M. Fetsco, Assistant Attorney General. Argument by Mr. Fetsco.
Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
[¶ 1] Appellant James Allen Morgan entered a conditional plea of guilty to two counts of possession of marijuana. He reserved his right to appeal the district court's denial of his motion to suppress the evidence seized during, and as the result of, the search of his disabled vehicle. Specifically, Morgan complains that a drug dog sniff of the exterior of the vehicle was an illegal search under the Fourth Amendment to the United States Constitution and Article 1, Section 4 of the Wyoming Constitution. He also claims the State failed to establish the reliability of the canine. This Court concludes that the canine sniff was not a search under the Fourth Amendment to the United States Constitution and that Morgan did not present a sufficient state constitutional analysis. We further hold that Morgan did not properly preserve his right to contest the State's failure to establish the reliability of the drug dog. Consequently, we affirm.
[¶ 2] Morgan articulates two issues on appeal:
Appellee State of Wyoming phrases the issues a little differently:
[¶ 3] On November 18, 2001, Morgan and Daniel Fisher were traveling northbound on Interstate 25 in Laramie County. Their vehicle experienced mechanical difficulties, and they pulled to the side of the road. Highway Patrolman Benjamin Peech proceeded to the scene after receiving a call concerning the disabled vehicle. Morgan and Fisher identified themselves to the patrolman and asked him to take them to a nearby truck stop.
[¶ 4] Patrolman Peech thought he recalled Morgan's name from a prior drug intelligence report. Consequently, after he left the men at the truck stop, he asked dispatch to run criminal history checks on them. The criminal history checks revealed that Morgan had a prior drug conviction. Patrolman Peech requested that a canine unit from the Laramie County Sheriff's Department meet him at the disabled vehicle. Deputy Sheriff Rivers commanded his drug dog to sniff around the exterior of the vehicle, and the drug dog alerted.
[¶ 5] Patrolman Peech returned to the truck stop to visit with Morgan and Fisher, while Deputy River and the dog remained with the vehicle. A third officer, Deputy Camery, joined Patrolman Peech at the truck stop. The officers located Morgan and Fisher in the coffee shop, and Patrolman Peech asked Morgan to accompany him outside. The patrolman informed Morgan that he thought he recalled his name from a drug intelligence report and that the drug dog had alerted to the vehicle. Morgan denied that there were any controlled substances in the vehicle. Patrolman Peech then spoke with Fisher. Fisher admitted that there was a small amount of marijuana and a marijuana pipe in the vehicle. He also consented to a search of his person, during which Patrolman Peech discovered a small amount of methamphetamine in his wallet.
[¶ 6] Morgan and Fisher agreed to accompany the officers back to the disabled vehicle. Morgan rode with Deputy Camery, and Fisher rode with Patrolman Peech. During the trip, Fisher again admitted that there were drug paraphernalia and small amounts of controlled substances in the vehicle. When they arrived at the vehicle, Patrolman Peech asked Morgan for the keys, and he complied. Patrolman Peech unlocked the doors, and Deputy Rivers directed the dog to enter the vehicle. The dog alerted to a red and black duffle bag which belonged to Morgan. The patrolman searched the bag and discovered a plastic bag containing eight ounces of marijuana.
[¶ 7] The State charged Morgan with one count of possession of marijuana with intent to deliver, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii), and one count of possession of more than three ounces of marijuana, in violation of § 35-7-1031(c)(iii). Morgan filed a motion to suppress the evidence gathered during the search of his person, the vehicle, and his luggage. He argued that the canine sniff of the exterior of his vehicle amounted to a search, which was not justified by probable cause or a reasonable articulable suspicion of criminal conduct. The district court held a hearing and denied Morgan's motion to suppress.
[¶ 8] Morgan and the State entered into a plea agreement in which Morgan conditionally pled guilty to the felony charge of possession of more than three ounces of marijuana and a misdemeanor charge of possession of marijuana. Morgan reserved his right to appeal the district court's denial of his motion to suppress. The district court sentenced Morgan to serve a suspended sentence of three to five years in prison for the felony and sixty days in county jail for the misdemeanor. Morgan filed a timely notice of appeal.
[¶ 9] Our standard for reviewing a district court's decision on a motion to suppress has been stated as follows:
¶ 7 (Wyo.2003); Meadows v. State, 2003 WY 37, ¶ 14, 65 P.3d 33, ¶ 14 (Wyo.2003).
[¶ 10] Morgan argues that the canine's sniff of the exterior of his vehicle amounted to a search under the Fourth Amendment to the United States Constitution. He claims, therefore, that the officer should have had probable cause or, at least, a reasonable articulable suspicion of criminal conduct before he ordered the canine sniff. The State maintains that the canine sniff was not a search entitled to Fourth Amendment protection.
[¶ 11] Although this Court has earlier decided cases involving canine sniffs, see e.g., Damato; Putnam v. State, 995 P.2d 632 (Wyo.2000)
; State v. Welch, 873 P.2d 601 (Wyo.1994), this is the first case which squarely presents the issue whether or not a canine sniff of the exterior of a vehicle amounts to a search. In Damato and Welch, the appellants complained that they had been illegally seized after traffic stops when the authorities made them wait for a dog to conduct a sniff test of their automobiles. Damato, ¶ 15; Welch, 873 P.2d at 605. There was no discussion, in either case, of whether or not a canine sniff amounts to a search. Id. In Putnam, we rhetorically broached the issue of the propriety of a dog sniff, but ultimately concluded that the appellant did not have standing to contest the search of the vehicle. 995 P.2d at 639. In the case at bar, Morgan was not detained while the canine sniff took place, and he has standing to contest the search of the vehicle. Consequently, the question of whether or not a canine sniff around the exterior of a vehicle amounts to a constitutionally protected search is directly at issue in this case.
[¶ 12] The Fourth Amendment to the United States Constitution protects "[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. The beginning point for our analysis of an issue involving the Fourth Amendment to the United States Constitution is, of course, the United States Supreme Court. In United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), Place argued that he was subjected to an illegal search and seizure under the Fourth Amendment when law enforcement authorities detained his luggage for ninety minutes in a public airport. During the detention of his luggage, the authorities had a trained narcotics dog sniff the luggage. Id. at 699, 103 S.Ct. at 2640. The Court ruled that the authorities' seizure of Place's luggage violated the Fourth Amendment. Id. at 710, 103 S.Ct. at 2646. Nevertheless, in the course of reaching that decision, the United States Supreme Court opined that a canine sniff of luggage in an airport was not a search within the meaning of the Fourth Amendment. Id. at 706-07, 103 S.Ct. at 2644-45. The High Court reasoned:
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