Pier v. State

421 P.3d 565

Joshua Lee PIER, Appellant (Defendant),

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

S-17-0205

Supreme Court of Wyoming.

July 12, 2018

Representing Appellant: Office of the Wyoming State Public Defender: Diane Lozano, Wyoming State Public Defender; Tina N. Olson^* , Chief Appellate Counsel; Christopher G. Humphrey, Assistant Appellate Counsel. Argument by Mr. Humphrey.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne Martens, Deputy Attorney General; Benjamin Fischer, Assistant Attorney General. Argument by Mr. Fischer.

Before DAVIS, C.J., and HILL^† , BURKE^‡ , FOX and KAUTZ, JJ.

KAUTZ, Justice.

[¶1] Joshua Lee Pier pled guilty to felony possession of anabolic steroids found in a search of his vehicle, subject to the right to appeal the denial of his motion to suppress the drugs found in his vehicle. We affirm.

ISSUES

[¶2] Mr. Pier presents four issues on appeal:

I. The peace officer lacked probable cause to stop the Defendant.

II. The peace officer lacked subsequent reasonable suspicion to detain.

III. The canine drug sniff while inside Mr. Pier’s [v]ehicle constituted an illegal search and seizure due to illegal dog sniff.

IV. The peace officer did not have additional probable cause to search absent the illegal dog sniff.

FACTS

A. Traffic Stop and Vehicle Search

[¶3] On September 6, 2016, at around 2:45 p.m., Deputy Derrick Colling of the Albany County Sheriff’s Office was on patrol in Laramie, Wyoming. He was traveling south on 3rd Street when he observed an oncoming truck with a basketball-sized crack in the windshield, covering about a quarter of the passenger side, just to the right of center. Because Deputy Colling believed the crack obstructed the driver’s view and was thus a traffic violation, he made a U-turn with the intention of stopping the truck.

[¶4] Before Deputy Colling activated his overhead lights, the truck turned left at Clark Street and onto a bridge over the railroad tracks. Deputy Colling waited through a red light at the intersection and then turned onto the bridge and saw the truck turn left off Clark Street onto Cedar Street. As Deputy Colling caught up to the truck, it signaled briefly and pulled abruptly to the right curb. Deputy Colling then activated his overhead lights and initiated a traffic stop.

[¶5] Deputy Colling approached the truck and asked for the driver’s identification, and learned that he was Joshua Pier. Deputy Colling described his initial interactions and observations when he spoke to Mr. Pier.

Q. So what did you say to the—to Mr. Pier when you approached his vehicle?

A. Well, first off, before I ever said anything, he looked at me and he said, "What’s going on, man?" very abruptly. After that, I told him the reason for the stop. I told him that I stopped him for—for having the broken windshield and for not signaling for 100 feet before pulling over.

Q. When you first spoke with Mr. Pier, did you notice anything about his demeanor?

A. Yes. He was extremely nervous.

Q. And how could you tell he was extremely nervous?

A. His hands were visibly shaking. He was very, very erratic with his movement. He was very fidgety with his hands, fidgety with his legs. He had his leg kind of propped up, his right leg kind of propped up in a very awkward—in a very awkward manner.

Q. Did you know—did you notice anything behind that leg?

A. Yes, I did.

Q. What was that?

A. I saw a—a black pouch. It was about the size of a fist and it was—it was kind of like a shaving kit looking sort of pouch. And it appeared to me that he was attempting to conceal that pouch behind his right leg.

Q. How did your interaction with Mr. Pier go on after you told him that you had—why you pulled him over?

A. I asked him for his information, for his driver’s license, registration, proof of insurance. He reached into his glove box and pulled out a large stack of papers, set those papers on his lap, and for—for several seconds, he shifted through those papers and I could—I could—I could see his hands shaking while he was sorting through the papers as well.

Q. And what happened after that? Was he able to find all of the documentation?

A. I know that he found his driver’s license. I believe he found [the] registration. I'm not sure about insurance. But he handed me the documents and I went back to my vehicle.

[¶6] When Deputy Colling returned to his vehicle, he conducted a records check and found out Mr. Pier’s license was valid and that he had no outstanding warrants or anything else of note. As he was completing the records check, he recalled information he had learned months earlier about Mr. Pier.

A. Well, after seeing—after seeing his name, I realized that this was an individual that had some previous history and—and I had heard previous—I had heard information about his previous history being drug convictions.

Q. Where did you hear about this information?

A. From other deputies in the sheriff’s office.

Q. When were you talking to the other deputies about Mr. Pier?

A. It was a few months prior.

Q. What did you learn specifically about Mr. Pier?

A. Specifically, I learned that he had prior drug convictions for distributing methamphetamine. I learned that he had served time in the Wyoming state prison and was a very prolific gang member in the prison. I also learned that he was out of prison and was suspected of currently selling drugs.

Q. And to be clear, those were just suspicions?

A. That’s correct.

Q. Did you personally do any investigating of Mr. Pier prior to this day?

A. I had a citizen source that I spoke with a few months prior to the stop as well, and this person told me that Mr. Pier was also actively selling drugs in Albany County.

[¶7] Deputy Colling began preparing a citation for the cracked windshield, and because he needed Mr. Pier’s contact information to complete it, he returned to Mr. Pier’s vehicle. On his return, Deputy Colling saw that the black pouch that had been behind Mr. Pier’s right leg was no longer there, which further raised his suspicions.

Q. What was suspicious to you about this black bag?

A. Well, I've been in this line of work for 12 years and I've seen thousands of drug cases. It’s very common that people who carry drugs, use drugs, sell drugs, possess drugs in sort of fashion use a small—a small kind of pouch, and it’s their—it’s their drug kit, so to speak.

Q. Was that your suspicion on that day?

A. Yes, it was.

Q. Okay. Was it buoyed by the fact of your prior knowledge of Mr. Pier’s past?

A. Yes.

[¶8] Deputy Colling proceeded to ask Mr. Pier for his contact information so he could complete the citation. He "really stuttered over his words" when he gave Deputy Colling his address and then inverted the numbers when he repeated his address. He did the same thing with his telephone number, which caused Deputy Colling to believe that he was trying to conceal where he lived. Deputy Colling then asked Mr. Pier where he was coming from and where he was headed. His responses caught Deputy Colling’s attention because his destination was a mile or more away from where he pulled over. Deputy Colling then asked Mr. Pier why he had pulled over on Cedar Street. He stated that he stopped in front of the house to see a friend or someone who lived there, but when Deputy Colling asked who lived in the house, he could not provide a name and just stated, "I don't know." Deputy Colling then asked Mr. Pier if he had any weapons in the vehicle, to which he responded that he had some knives.

[¶9] After this second contact, Deputy Colling decided to detain Mr. Pier and request that a K-9 unit be dispatched to his location. He explained his decision:

Q. And why did you have Mr. Pier step out of the vehicle?

A. Well, it was really the totality of the circumstances. He—he pulled over very abruptly without being signaled. His intent look into the mirror. His—without me even talking to him, he asked me what was going on and continually asked me what was going on during the stop. He was very paranoid, very fidgety with his hands, shaking like a leaf, so to speak. It appeared he was trying to conceal that black bag initially with his leg, and then the second time I approached him, the black bag was gone. He had prior convictions for—for drug—for drugs, and I had prior information that he was actively selling drugs. It was just a very, very, very strange situation. He had lied about his—about his address, about his phone number, and didn't really have a legitimate reason for stopping where he was. So it was just a very strange thing. I thought there was some kind of crime afoot.

[¶10] When Mr. Pier exited his vehicle, he left his door open and Deputy Colling was able to see that the black pouch had been tucked underneath the truck’s center console. Deputy Colling directed Mr. Pier toward the front of his patrol vehicle, conducted a pat-down of his person, and then called for a K-9 unit. Deputy Colling described what occurred during the time they waited for the K-9 unit.

Q. * * * Particularly what happened while you were waiting with Mr. Pier for the K9 unit to get there?

A. When Mr. Pier opened his door, when I asked him to exit the vehicle, he left his door open. And that would be the driver side door of his [pickup] truck. I directed him back to the front of my vehicle and again, like I said, conducted the pat down. During those several minutes that we were waiting for the—for the dog to come, Mr. Pier became very angry that his door was open and he ordered me to shut his door. I told him that I was not going to shut his door.

I also walked towards his vehicle and Mr. Pier again became very angry. He told me that I didn't have permission to search his vehicle, and I told him I wasn't going to search his vehicle, and Mr. Pier started walking towards me, just kind of bowing out his arms, puffing out his chest, like he wanted to fight and again ordered me to shut the door. I told him I wasn't going to shut the door and I wasn't going to let him anywhere near the vehicle. Based on his actions and the fact that there

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