Brown v. State

439 P.3d 726

Devon Matthew BROWN, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-18-0112

Supreme Court of Wyoming.

April 18, 2019

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Desiree Wilson, Senior Assistant Appellate Counsel. Argument by Ms. Wilson.

Representing Appellee: Peter K. Michael, Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Darrell D. Jackson, Faculty Director, Catherine M. Mercer, Student Director, Lucas Plumb, Student Intern, of the Prosecution Assistance Program. Argument by Mr. Plumb.

Before DAVIS, C.J., FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

DAVIS, Chief Justice.

[¶1] Devon Matthew Brown entered a conditional guilty plea to felony possession of a controlled substance (marijuana) with intent to deliver, reserving his right to appeal the district court’s denial of his motion to suppress evidence. On appeal, Mr. Brown contends that law enforcement unlawfully detained him to conduct a canine sniff after completing a traffic stop. We reverse.

ISSUES

[¶2] Mr. Brown presents two issues for review:

I. Whether the district court’s finding that Mr. Brown’s demeanor changed when he revoked consent was clearly erroneous?

II. Whether Mr. Brown was subjected to an unreasonable search and seizure in violation of the Fourth Amendment to the United States Constitution?

The State raises a third issue: Whether Mr. Brown waived his right to assert that the traffic stop concluded earlier than Mr. Brown argued during the suppression hearing?

FACTS

[¶3] On August 31, 2016, Corporal Gary Spears of the Campbell County Sheriff’s Department observed Mr. Brown’s red utility vehicle traveling at a high rate of speed in Gillette, Wyoming. Corporal Spears turned around to catch up to the vehicle and observed Mr. Brown swerving within his lane of travel, crossing the center line, and clocked him going 53 miles per hour in a 45 mile per hour zone. As Corporal Spears neared Mr. Brown’s vehicle, Mr. Brown quickly entered a turn lane, hit his brakes, and entered a dead-end street.

[¶4] Corporal Spears initiated a traffic stop and approached Mr. Brown. When asked about his travel plans, he stated he was headed to his home, which was not located on the dead-end street, after traveling to Gillette from Torrington. He informed Corporal Spears that he had received a speeding ticket earlier that day on the interstate near Wheatland and that he was tired from his long drive.

[¶5] Corporal Spears initially suspected that Mr. Brown might be intoxicated because of his driving and bloodshot eyes. However, he did not appear to be intoxicated during questioning, which led Corporal Spears to believe his driving, including his abrupt turn, "could be from trying to conceal something." Corporal Spears obtained Mr. Brown’s identification and returned to his patrol vehicle where he learned from his dispatcher that Mr. Brown was on unsupervised probation for possession of marijuana.

[¶6] Corporal Spears decided not to issue a traffic citation. He went back to Mr. Brown’s vehicle and returned his identification. When asked, Mr. Brown confirmed he was on probation and volunteered, "You may sobriety test me, you may look, do whatever you like, the other cop did as well." During this conversation, Corporal Spears thought he smelled a faint odor of marijuana, but due to the wind, it was difficult to be sure. He decided to accept Mr. Brown’s unsolicited offer to search and requested Mr. Brown exit the vehicle so he could run his drug dog through it.

[¶7] Mr. Brown hesitated at that point, and he told Corporal Spears that he wanted to make a call to his friend or his mother because it wasn’t his vehicle. Corporal Spears explained that he could consent even if he did not own the car, but Mr. Brown remained hesitant. He asked if he could go, but Corporal Spears insisted that he exit the vehicle and stated, "First of all, [you’re] totally cooperative, I said ok, you’re balking now, so minimum intrusion, I’m gonna run the dog around your car." Mr. Brown complied, and Corporal Spears retrieved his drug dog, who alerted to the exterior of the vehicle in less than a minute.

[¶8] Corporal Spears searched the interior of the vehicle and found a jar containing marijuana and another package with three sealed baggies of marijuana. The State charged Mr. Brown with felony possession of a controlled substance with intent to deliver.

[¶9] Mr. Brown filed a motion to suppress, arguing that Corporal Spears lacked reasonable articulable suspicion to expand the scope of the stop and to conduct a canine sniff. The district court denied Mr. Brown’s motion after an evidentiary hearing. It found that several factors supported a finding of reasonable suspicion to extend the stop, and that the length of the detention, ten minutes and thirty-seven seconds, was not unreasonable. After the district court denied his motion, Mr. Brown entered a conditional plea of guilty, preserving his right to appeal the adverse decision on his suppression motion. The district court sentenced Mr. Brown to three to five years of imprisonment, with credit for 54 days served, and suspended the sentence subject to four years of supervised probation. Mr. Brown timely appealed after entry of the Sentence and Probation Order.

STANDARD OF REVIEW

[¶10] In reviewing a denial of a motion to suppress evidence, we adopt the district court’s factual findings unless those findings are clearly erroneous. Rodriguez v. State , 2018 WY 134, ¶ 15, 430 P.3d 766, 770 (Wyo. 2018) (citing Jennings v. State , 2016 WY 69, ¶ 8, 375 P.3d 788, 790 (Wyo. 2016) ). We view the evidence in the light most favorable to the district court’s decision because the court conducted the hearing and had the opportunity to "assess the witnesses’ credibility, weigh the evidence and make the necessary inferences, deductions and conclusions." Kunselman v. State , 2008 WY 85, ¶ 9, 188 P.3d 567, 569 (Wyo. 2008) (quoting Hembree v. State , 2006 WY 127 ¶ 7, 143 P.3d 905, 907 (Wyo. 2006) ). "On those issues where the district court has not made specific findings of fact, this Court will uphold the general ruling of the court below if supported by any reasonable view of the evidence." Feeney v. State , 2009 WY 67, ¶ 9, 208 P.3d 50, 53 (Wyo. 2009) (citing Neilson v. State , 599 P.2d 1326, 1330 (Wyo. 1979) ). "The ultimate question of whether the search or seizure was legally justified, however, is a question of law we review de novo." Rodriguez , ¶ 15, 430 P.3d at 770.

DISCUSSION

[¶11] Mr. Brown challenges the denial of his motion to suppress, claiming that Corporal Spears unlawfully detained him after returning his identification approximately seven minutes and forty seconds into the stop, or alternatively, approximately nine minutes and fourteen seconds into the stop when Mr. Brown revoked his consent to search and asked if he could leave. In response, the State contends that Mr. Brown waived any claim that he was unlawfully detained on return of his identification, but regardless, that Corporal Spears had reasonable, articulable suspicion to detain him to conduct a canine sniff after completing the traffic stop. We first address the State’s contention that Mr. Brown failed to preserve any claim that he was unlawfully detained on return of his identification.

I. Waiver

[¶12] The State correctly notes that a guilty plea waives appellate review of all non-jurisdictional claims, including claims of unlawfully obtained evidence. See , e.g., Kunselman , ¶ 11, 188 P.3d at 569. W.R.Cr.P. 11(a)(2) provides the sole exception to the waiver rule and "allows a defendant to plead guilty while reserving the right to seek review on appeal of any specified pretrial motion." Kunselman, ¶ 11, 188 P.3d at 569. We have cautioned that although a conditional guilty plea provides a mechanism for appellate review, it does not provide carte blanche permission to present any and all arguments on appeal. Id. ¶ 11, 188 P.3d at 570. Rather, an appellant’s argument is limited to those issues clearly brought to the district court’s attention. Id.

[¶13] In determining the scope of an issue brought to the district court’s attention, we will read any ambiguity in the conditional plea agreement "against the Government and in favor of a defendant’s appellate rights." United States v. Anderson , 374 F.3d 955, 957 (10th Cir. 2004) (citation omitted); see also Lovato v. State , 901 P.2d 408, 411 (Wyo. 1995) (explaining that " W.R.Cr.P. 11(a)(2) is identical, in all material aspects, to the corresponding federal rule" and consideration of relevant federal precedent is therefore proper). "[T]he text of the plea agreement is our guide." Anderson , 374 F.3d at 957. Applying these standards, we are not persuaded that Mr. Brown waived his right to argue that he was unlawfully detained after Corporal Spears returned his identification.

[¶14] In his plea agreement, Mr. Brown reserved the right to "seek review of the adverse determination of his Motion to Suppress Evidence ." His suppression motion broadly challenged the scope of the stop, contending that Corporal Spears lacked reasonable suspicion:

6. The deputy improperly expanded the scope of the stop without reasonable articulable suspicion of further illegal activity.

7. All evidence obtained in violation of the defendant’s Fourth Amendment right against illegal searches and seizures should therefore be suppressed pursuant to both the United States and Wyoming Constitutions.

(Emphasis added.) After the suppression hearing concluded, the district court determined that "there was reasonable cause to detain the young man so as to permit the dog to do a free air sniff, not in the vehicle, but around the vehicle." Nothing in the plea agreement, the suppression motion, or the district court’s denial of the suppression motion limited Mr. Brown’s Fourth Amendment challenge to...