Vargas-Rocha v. State, VARGAS-ROCHA

Citation891 P.2d 763
Decision Date08 March 1995
Docket NumberVARGAS-ROCHA,No. 94-104,94-104
PartiesJuan, a/k/a Wienceseloas Martinez, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

Leonard D. Munker, State Public Defender, Deborah Cornia, Appellate Counsel, and David Gosar, Asst. Public Defender, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., and D. Michael Pauling, Sr. Asst. Atty. Gen., for appellee.

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

MACY, Justice.

Appellant Juan Vargas-Rocha appeals from his conviction for possessing cocaine with the intent to deliver.

We affirm.

Issues

Appellant did not include a statement in his brief of the issues which are being presented for our review as is required by W.R.A.P. 7.01(d). He does, however, make seven arguments in his brief:

Argument I

Evidence derived from the illegal stop of the vehicle in which Appellant was a passenger, and the subsequent unconstitutional NCIC computer search of his identification, was "fruit of the poisonous tree" and should have been suppressed[.]

Argument II

Appellant's state and federal constitutional rights against compelled self-incrimination were violated by testimony and comment on Appellant's silence[.]

Argument III

Testimony and comment expressing a belief that the Appellant was guilty of the charged crime was an improper and inadmissible opinion on the ultimate issue[.]

Argument IV

Reversible error occurred when the court failed to give a cautionary instruction requested by defense counsel[.]

Argument V

Reversible error occurred when the trial court failed to instruct the jury that their verdict must be unanimous[.]

Argument VI

The Appellant was deprived of a fair trial by the prosecutor's improper and prejudicial closing argument[.]

Argument VII

Appellant's conviction should be reversed pursuant to the doctrine of cumulative error[.]

Facts

On October 4, 1993, while Stephen Townsend, a Wyoming highway patrolman, was completing a traffic stop south of Cheyenne on Highway 85 near the Colorado-Wyoming state line, a vehicle traveling north passed him. Patrolman Townsend observed that the vehicle had a Colorado license plate on its rear and that it did not have a license plate on its front. He decided to stop the vehicle, intending to issue a warning citation to the driver for improperly displaying license plates.

Patrolman Townsend stopped the vehicle and asked the driver for his driver's license and the vehicle registration. The driver gave the vehicle registration to Patrolman Townsend but not his driver's license, so the patrolman asked the driver for his name and date of birth. 1 The name which the driver gave to Patrolman Townsend was not the same name as was listed on the vehicle registration. In addition to the driver, Appellant and two other passengers occupied the vehicle. Patrolman Townsend asked the three passengers what their names were and asked them if they had any identification. Appellant gave his nonresident alien identification card and his social security card to the patrolman, but none of the other passengers had any identification.

Patrolman Townsend took Appellant's documents and the information which he had obtained from the driver and returned to his patrol car. He radioed the dispatcher, requesting that a computerized search be made of the data base maintained by the National Crime Information Center (NCIC) to determine whether the driver or Appellant had a valid driver's license or any outstanding wants or warrants. 2 The search revealed that a Colorado warrant existed for Appellant's arrest. 3 Patrolman Townsend decided to arrest Appellant pursuant to the Colorado arrest warrant, and he radioed for additional patrolmen to be sent to help him make the arrest.

When the additional patrolmen arrived approximately ten minutes later, Patrolman Townsend returned to the vehicle and asked the occupants to exit one at a time. When Appellant exited, Patrolman Townsend "patted him down" and found a roll of currency which measured approximately one inch to two inches in diameter and which totaled about $750 in Appellant's right front pants pocket. None of the other occupants was carrying any money.

Because none of the occupants had a driver's license, Patrolman Townsend determined that the car would have to be towed, and he began making an inventory search of the car. During the inventory search, he found a clear plastic bag on the floor under the seat located in front of what had been Appellant's seat. The bag contained eighteen one-half gram bindles of cocaine, a small amount of marijuana, and a small rock of cocaine.

Patrolman Townsend held up the bag and asked the occupants who owned it. No one said anything. Since the bag contained what appeared to be controlled substances, Patrolman Townsend called the Division of Criminal Investigation (DCI), and two DCI special agents were dispatched to the scene. One of the DCI agents advised Appellant of his Miranda rights and questioned him in the agents' vehicle. Appellant denied that he knew anything about the bag of drugs, and he claimed that he was carrying the currency because he planned to buy a car in Cheyenne.

The DCI agents transported Appellant to their office in Cheyenne and resumed their questioning after they again advised Appellant of his Miranda rights. Appellant admitted that the drugs were his, but he claimed that they were for his personal use.

Appellant was charged with possessing cocaine with the intent to deliver in violation of WYO.STAT. §§ 35-7-1031(a)(i) and 35-7-1016(b)(iv) (1994). A jury found him guilty, and the district court sentenced him to serve a term of not less than five years nor more than seven years in the Wyoming State Penitentiary. Appellant appealed to this Court.

Standard of Review

Appellant bases only two of his claims on appeal upon contemporaneous objections which were made by defense counsel. The remaining issues are, therefore, subject to our plain error standard of review. See Christian v. State, 883 P.2d 376, 380 (Wyo.1994). We conclude, however, that it is not necessary for us to apply our plain error standard of review in this case because we do not discern any error which occurred in the proceedings below. See Smith v. State, 880 P.2d 573, 574 (Wyo.1994).

Motion to Suppress

Appellant contends that the traffic stop was illegal and violated his state and federal constitutional rights and that the evidence derived from the traffic stop should have been suppressed because it was the "fruit of the poisonous tree." Specifically, he claims that the patrolman had no authority to stop the vehicle for a violation of Colorado law and that, therefore, the initial traffic stop was illegal. He further claims that all the evidence derived from the stop of the vehicle should have been suppressed because the patrolman did not have a reasonable suspicion that Appellant was engaged in, or about to become engaged in, criminal activity when he requested that a search of the NCIC data base be made and because the search of the NCIC data base was a "prohibited pretext search."

Patrolman Townsend had authority to make the initial traffic stop. His authority originated in two statutes. First, WYO.STAT. § 24-12-102 (1993) states in pertinent part: "The state highway patrol ... shall enforce all the motor vehicle laws of this state." Second, WYO.STAT. § 31-2-201 (1994) requires owners of vehicles which are being driven in Wyoming to apply for Wyoming registrations if their vehicles do not display license plates in accordance with the laws of another state. Section 31-2-201(a), (d)(vi), (d)(vii).

The car in this case had a Colorado license plate on its rear but did not have any license plate on its front. The Colorado statutes require that a vehicle have a license plate on both its rear and its front. COLO.REV.STAT. § 42-3-113(1) (1993) (amended 1994). Since the car's license plates were not displayed in accordance with Colorado law, Patrolman Townsend had a reason to suspect that the driver was violating Wyoming law, and he had authority to stop the car.

Appellant claims that the district court should have suppressed the roll of currency, the bag of drugs, and the statements which Appellant made to the investigating officers. We do not agree. Patrolman Townsend testified that he had decided the car would have to be towed because none of the occupants had a driver's license and that he, therefore, performed an inventory search to document the items which were left in the car. While he was performing the valid inventory search, Patrolman Townsend found the bag of drugs on the floor under the seat which was in front of where Appellant had been sitting.

An inventory search of an impounded automobile is not unreasonable under the Fourth Amendment when it is conducted pursuant to a standardized police procedure. South Dakota v. Opperman, 428 U.S. 364, 376, 96 S.Ct. 3092, 3100, 49 L.Ed.2d 1000 (1976); see also Williams v. State, 557 P.2d 135, 139 (Wyo.1976). " '[I]nventory procedures serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger.' " Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990) (quoting Colorado v. Bertine, 479 U.S. 367, 372, 107 S.Ct. 738, 741, 93 L.Ed.2d 739 (1987)).

The evidence derived from the traffic stop was admissible because the officers would have discovered all the evidence which they discovered in this case through the valid inventory search whether or not the search of the NCIC data base had been made.

Exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial....

....

... [W]hen ... the evidence in question would inevitably have been discovered without reference to the police error or misconduct,...

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