Perry v. State

• Decision Date: 15 November 1996
• Docket Number: No. 95-158,95-158
• Parties: Robert Lee PERRY, Sr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1158

927 P.2d 1158

Robert Lee PERRY, Sr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 95-158.

Supreme Court of Wyoming.

Nov. 15, 1996.

Sylvia Lee Hackl, State Public Defender; Deborah Cornia, Assistant Public Defender; Gerald M. Gallivan, Director, Wyoming Defender Aid Program; Jason Bachlet and Barb Parnell, Student Interns, for Appellant.

William U. Hill, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Assistant Attorney General; Prosecution Assistance Program, Theodore E. Lauer, Director, and David C. Holtz, Student Intern, for Appellee.

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN, ^* and LEHMAN, JJ.

THOMAS, Justice.

The issues in this case evolve from a pat-down search of Robert L. Perry, Sr. (Perry) on the occasion of the arrest of his son, Robert L. Perry, Jr. (Perry, Jr.), for driving with a suspended driver's license. The pat-down search resulted in the seizure of three hypodermic needles and Perry's arrest for possession of drug paraphernalia. After he was arrested, the vehicle he had been driving was impounded, and an inventory search of the vehicle was conducted. In the course of this search, a fanny pack was discovered, and further examination of the fanny pack disclosed a ziplock bag containing three or four ounces of marijuana. Perry was charged with the felony of possession of marijuana with intent to deliver, and he challenged the searches by a motion to suppress the evidence. When the district court ruled against him, Perry entered a conditional plea of guilty, reserving the right to challenge the court's ruling on his motion to suppress the evidence. Perry claims the initial pat-down search was unlawful, thus, tainting all evidence discovered following that search, and he also contends the inventory search of the vehicle was unlawful for reasons independent of the pat-down search. We hold the challenged searches were lawful, specifically adopting the "automatic companion" rule as justifying the initial pat-down search. The decision of the trial court denying Perry's motion to suppress the evidence is affirmed in all respects, and the Judgment and Sentence is affirmed.

In his Brief of Appellant, Perry lists a statement of the issues as:

Argument I:

I. Whether Officer Kirby had a reasonable suspicion Mr. Perry was involved in criminal activity prior to initiating the Terry stop?

II. Whether Officer Kirby had a reasonable suspicion Mr. Perry was armed and dangerous prior to conducting a frisk for weapons?

III. Whether Officer Kirby reasonably believed the object felt during the pat down could be a weapon threatening officers at the scene of the detention?

IV. Whether the contraband nature of the object felt during the pat down for weapons was immediately apparent to Officer Kirby and therefore falls within the plain feel exception to the warrant requirement?

Argument II:

I. Whether the inventory search conducted by the police officers in this case was reasonable under the Fourth Amendment of the United States Constitution and Article I, § 4 of the Wyoming State Constitution.

In the State of Wyoming's Brief of Appellee, the issues are stated as:

I. Was Officer Kirby's pat-down weapons search of Appellant justified pursuant to the right of a police officer to search the outer clothing of a companion of a person subjected to a lawful arrest?

II. Was the inventory search in this case reasonable under the Fourth Amendment of the United States Constitution or Article I, Section 4 of the Wyoming State Constitution?

When Officer Kirby started the midnight shift on October 24, 1994, he was advised by officers from the afternoon shift, who were going off duty, to be on the lookout for a vehicle possibly driven by Perry, Jr. Officer Kirby was told, if Perry, Jr. was driving the vehicle, he was driving it illegally because his driver's license had been suspended.

Around midnight, Officer Jones radioed Officer Kirby and advised him he was heading east on the interstate following a car he suspected Perry, Jr. of driving. Officer Jones wanted to be certain Perry, Jr. was the driver and, after the vehicles had turned off the interstate, Officer Kirby drove past the vehicle. At that time, the car was following another vehicle driven by Perry.

Officer Kirby saw a younger person driving the second car, but he was not able to identify him as Perry, Jr. He did, however, identify the passenger as Paul Eddie (Eddie), a man whom he knew had a felony warrant for kidnapping outstanding against him in the state of Washington. Officer Kirby also knew Eddie allegedly had been involved in a shooting incident some six weeks previously.

When Officer Kirby passed them, both of the Perry vehicles turned into a Texaco station, and Officer Jones followed them into the parking lot. Officer Kirby turned his vehicle around and returned to the Texaco parking lot, arriving as Officer Jones got out of his car to speak with the occupants of the car driven by Perry, Jr. Perry, Jr. got out of the driver's side of his vehicle and went to the rear of the passenger side, where he met Officer Jones. The passenger, Eddie, got out of the right side of the vehicle and stood by the car door. Perry also got out of his vehicle and walked to the front passenger side of Perry, Jr.'s vehicle.

Officer Kirby heard Officer Jones ask Perry, Jr. for his driver's license, and he also heard Officer Jones tell Perry, Jr. that he was aware his driver's license had been suspended. Upon questioning, Perry, Jr. furnished Officer Jones an alias, stating his name was not Robert Perry, Jr. At this juncture, Officer Kirby approached Perry and asked him who he was. Perry furnished his correct name, Robert Perry, Sr., but, when asked, he said that Perry, Jr. was not his son. Officer Kirby then invited Perry to walk around the corner with him where Kirby said to Perry: "He has a suspended license. If you don't want to say anything to me don't say anything to me but don't lie about it." Perry's general response was that he did not want to get his son into any trouble.

When Perry and Officer Kirby returned to the car where the others were, Officer Smith also had arrived and was out of his car. Perry, Jr. was not cooperating with Officer Jones, and it appeared he was under the influence of alcohol. Officer Kirby surmised Officer Jones was about to place Perry, Jr. under arrest, so he started to assist Jones. As Kirby walked along the driver's side of Perry, Jr.'s car, he shined his flashlight in the car's window and observed a gun protruding from under the driver's seat. He informed the other two officers there was a gun in the car and, at approximately the same time, Officer Jones told Perry, Jr. he was going to jail for driving while his license was suspended.

Concerned for his safety and that of the other officers, Officer Kirby then patted down Perry's outer clothing to determine whether he had any weapons, while Officer Smith did the same to Eddie. Kirby's concern for safety was prompted by his knowledge of warrants issued in Utah for the arrest of Perry, Jr. for the manufacture or delivery of a controlled substance; prior anonymous tips that Perry, Jr. and Perry were involved in drug trafficking; a general observation that drug dealers often carry weapons; Eddie's alleged involvement in shooting and kidnapping incidents; and the discovery of the gun under the driver's seat in Perry, Jr.'s car. During the pat-down of Eddie, a knife was discovered, and controlled substances were found on both Eddie and Perry, Jr. Kirby wanted to be certain none of the three had any other weapons besides the gun in Perry, Jr.'s car.

In the course of Perry's pat-down search, Officer Kirby felt a hard item in Perry's front pocket. It was approximately five inches long and three-quarters of an inch wide. Kirby asked Perry what was in the pocket, and Perry replied it was an item he had just found. Kirby reached into Perry's pocket and pulled out three hypodermic needles. Perry was arrested for possession of drug paraphernalia. Officer Kirby took the gun from Perry, Jr.'s car, emptied out the shells, and placed the gun in his patrol car. In a search conducted incidental to Perry's arrest, Kirby also found a vial of amphetamines on Perry's person.

When Officer Kirby arrested Perry, he asked what Perry wanted to do with his vehicle. Perry stated the car belonged to someone else, and that person would need to make the decision regarding the vehicle because Perry did not want to make that decision. Officer Kirby conferred with another officer and learned the license plates on the vehicle Perry had been driving were Perry's, but the plates did not belong on the car. Kirby also discovered the vehicle was not properly registered and was not insured. When a check of the vehicle identification number was accomplished, the owner of the car was determined to be a woman from either Hunter or Huntington, Utah.

Following this investigation, Officer Kirby decided to impound Perry's car. His decision was based upon a number of factors: it was after midnight; Perry had been arrested for possession of drug paraphernalia; the car did not have proper registration or insurance; even if the owner of the vehicle could be located, she could not legally drive the car away; Perry had been warned two weeks previously that he should remedy the registration and insurance problems; and the owners of the parking lot preferred the car not be left in their lot overnight.

At the suppression hearing, the administrative sergeant for the police department, Sergeant Williams, summarized the standard, though unwritten, policy used to impound a vehicle. He testified:

Those factors that Officer Kirby related very articulately are taken into consideration concerning the vehicle, whether it can be safely moved from the premises; if it is on a street; if it's in a private...