State v. Welch

Decision Date27 April 1994
Docket Number92-192,Nos. 92-191,s. 92-191
Citation873 P.2d 601
PartiesThe STATE of Wyoming, Petitioner, v. William WELCH, Respondent. The STATE of Wyoming, Petitioner, v. Joseph MICHENER, Jr., Respondent.
CourtWyoming Supreme Court

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Barbara L. Boyer, Senior Asst. Atty. Gen., Cal Rerucha, Albany County Atty., Kenneth T. Brown, Albany County Chief Deputy, and Robert A. Willis, Albany County Deputy, for petitioner.

Ronald G. Pretty, Cheyenne, for respondent Welch.

Glenn A. Duncan, Laramie, for respondent Michener.

Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.

MACY, Chief Justice.

This Court granted a petition for a writ of certiorari and stayed the proceedings in the district court to review that court's pretrial ruling that evidence of contraband which was seized during a routine traffic stop must be suppressed because the contraband was seized unreasonably under the standards enunciated in the Wyoming Constitution and the United States Constitution.

We reverse and remand.

The State of Wyoming states this issue:

Whether the district court erred in suppressing evidence which was the result of a "canine sniff" of Respondents' vehicle and subsequent search based on probable cause, because the initial stop of Respondents' vehicle was proper and was followed by a minimally intrusive detention of Respondents' vehicle for a reasonable period of time.

At about seven o'clock in the morning of May 25, 1992, Dan Dyer, a patrolman with the Wyoming Highway Patrol, was traveling westbound on Interstate 80 near Laramie, Wyoming, when he noticed two cars traveling in the eastbound lane. The two cars, a cream-colored car without license plates and a pickup which was closely following it, appeared to be traveling together. Patrolman Dyer turned his vehicle around in the median and began following the two vehicles in the eastbound lane. The pickup had a topper on it, and it also had nylon webbing where the tailgate would have been. The back end of the pickup was completely open: the topper did not have a door, and the pickup did not have a tailgate. Patrolman Dyer testified that he had never seen both a topper with no door and nylon webbing for a tailgate used as a combination on the same vehicle and that it struck him as being unusual. He reasoned that, generally, when a tailgate has been removed, it has been done to facilitate better gas mileage but that this vehicle had a topper, which would negate that normal purpose for removing the tailgate.

The cream-colored car had a temporary sticker in the back window, so Patrolman Dyer desisted from his concern that it did not have any license plates. The pickup passed a semi-truck and failed to properly signal the lane change as is required by WYO.STAT. § 31-5-217 (1989). 1 The patrolman stopped the pickup because of the violation at 7:13 a.m. at a point about six miles east of Laramie. He radioed the stop to his dispatch office along with the license plate number of the pickup. As he walked up to the vehicle, he noticed: "[T]here appeared to be someone sleeping in the back there, at least I saw some feet, I assumed they were sleeping rather than dead." He also observed:

[T]here was a liner, a plastic liner in there, and it was quite clean. There was no old junky tin cans, pop cans, beer cans, or pieces of wood you might use to block up a vehicle if you have to change a flat tire, in fact there was no spare tire in there either. All I saw in there was one, or two, or possibly three small duffle bags, and one person in there. I thought that was quite strange.

When Patrolman Dyer got to the front of the vehicle, he saw a fist-size clove of garlic, a radar detector, and a sticker on the window from Miramar Naval Station. The sticker seemed odd to him because the driver did not look like the "military type." He also noticed, through the window of the topper, that the ceiling inside the topper sagged down an inch or two in the center.

Patrolman Dyer informed the driver that he had made an illegal lane change. He asked who owned the pickup, and the driver replied that it belonged to his friend, "Soso." The registration listed the owner as being "Suaso." Since the patrolman spoke Spanish and recognized the name as being "an Hispanic name," he believed that the driver had mispronounced the name. Patrolman Dyer later found a ticket folded inside the registration which had been issued to the driver by the California Highway Patrol on April 6, 1992, indicating that the driver had driven The patrolman asked the driver for his driver's license and the vehicle registration. He told the driver that he was going to write a warning ticket for the illegal lane change and that the respondents could then be on their way. The vehicle registration reflected that the registered owner was from San Diego. The patrolman testified that the fact that the owner was from San Diego made him suspicious because San Diego "or practically anywhere in Southern California is a major drug source for narcotics coming into our country." When he reached his patrol car, he decided that he would detain the respondents. Approximately six minutes after he had made the initial stop, Patrolman Dyer requested that the dispatcher send the canine drug detection team.

the vehicle for quite sometime but still did not know how to correctly pronounce the registered owner's name. In response to Patrolman Dyer's question as to where he was going, the driver indicated that he had traveled from San Diego to San Francisco and was headed to the Boston area to see his sick father who was going to have surgery.

While he was waiting for the dog to arrive, the patrolman filled out the warning citation. A second officer arrived on the scene, after which Patrolman Dyer approached the pickup and asked the driver to drive the pickup ahead to the pull-out area. Patrolman Dyer again approached the pickup in the pull-out area and asked the driver how well he knew the owner of the pickup and why he had gone through San Francisco if he was in a hurry to get to Boston. The driver indicated that the passenger who was in the back knew Suaso. The patrolman asked the passenger about Suaso and asked him for identification.

Patrolman Dyer went back to the cab area and asked the driver if he had any weapons in the cab and whether he minded if the patrolman took a look. The driver stated that he did not mind if the patrolman looked for weapons in the cab. Patrolman Dyer testified that the driver was nervous and became more and more nervous during the stop. The patrolman also thought that the passenger exhibited unusual behavior because he remained asleep so long in the pickup bed: "Usually when you make a traffic stop the people wake up that are sleeping no matter where they were, whether in the pickup bed, they look up and around. This was unusual to have someone still motionless in the back."

The narcotics dog was located twenty-five miles west of Laramie at the home of Robert DeBree, an investigator for the Albany County Sheriff's Office. Investigator DeBree, who was in Laramie at the time, received the request for the narcotics dog at about 7:21 a.m. He telephoned his wife at home and instructed her to immediately fetch the dog and meet him between their home and Laramie so as to expedite the dog's arrival. Investigator DeBree and the dog arrived at the traffic stop scene at approximately 7:55 a.m. The patrolman approached the driver and the passenger, who were both standing, and said: " 'I think you have dope in here, that's why the dog. You can tell us where it is, might look a little more cooperative. Do you mind if we go ahead and have the dog walk around the vehicle or in it.' " The driver responded: " 'Go ahead.' "

The investigator led the dog around the pickup a couple of times, and the dog alerted to the left front of the topper. After confirming that the dog had alerted, Patrolman Dyer got into the bed of the pickup, pulled back the liner, and found a rectangular-shaped block wrapped in clear plastic and containing marijuana. The respondents were arrested for narcotics trafficking. Eventually, the pickup was fully searched and approximately 347 pounds of marijuana, $21,600 (including $1,700 taken from the passenger) in one-hundred-dollar bills, and a tool used to take out the rivets in the topper were found.

On May 26, 1992, the respondents, William Welch and Joseph Michener, Jr., were charged with intent to deliver a controlled substance in violation of WYO.STAT. § 35-7-1031(a)(ii) (1988). The marijuana which had been found in their pickup when they were routinely stopped for the traffic violation was the principal evidence against them. The respondents filed motions to suppress that evidence, and, after holding a hearing, the district court issued an order on October 15 1) Highway Patrolman Dyer effected a lawful stop on Defendants' vehicle for an improper lane change, being a misdemeanor violation occurring in the patrolman's presence. This court concludes that the initial stop of Defendants' vehicle was lawful and not pretextual even though the patrolman may have had underlying motives relative to drug suspicion at the time of the stop.

                1992, suppressing the "evidence derived from the seizure of the Defendants and the search of the vehicle they were driving" because the marijuana and cash were confiscated in violation of the Fourth Amendment to the United States Constitution 2 and Article 1, Section 4 of the Wyoming Constitution. 3  The district court found
                

2) After the patrolman effectuated his initial stop and determined that a warning ticket should be issued the patrolman should have returned Defendant Michener's drivers license and registration to attempt to obtain a voluntary consent from Defendants for a search of the vehicle.

3) By a preponderance of the evidence the court finds that the patrolman testified...

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