Ray v. State

432 P.3d 872

Andre Tremel RAY, Appellant (Defendant),

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

S-18-0058

Supreme Court of Wyoming.

December 31, 2018

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; James M. Causey, Senior Assistant Appellate Counsel.

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, Prosecution Assistance Program; Catherine M. Mercer, Student Director.

Before DAVIS, C.J., and BURKE^* , FOX, KAUTZ, and BOOMGAARDEN, JJ.

BOOMGAARDEN, Justice.

[¶1] Andre Tremel Ray entered a conditional "no contest" plea to felony possession of a controlled substance, reserving his right to appeal the district court’s denial of his motion to suppress evidence. Finding no error, we affirm.

ISSUE

[¶2] Mr. Ray presents one issue for our review: "Did the district court err in denying [the] motion to suppress evidence obtained during an unreasonable search?"

FACTS

[¶3] During his patrol of I-80 near Green River, Wyoming, on May 4, 2017, Captain Brett Stokes of the Sweetwater County Sheriff’s Department received a REDDI (Report Every Drunk Driver Immediately) report of a silver Dodge Charger exceeding the speed limit and passing vehicles on the far-right shoulder. Captain Stokes located the vehicle and paced it going ten mph above the posted speed limit. Deputy Chris Sutton was also in the area and stopped Mr. Ray for speeding after learning about the traffic violation his captain observed. Deputy Sutton approached Mr. Ray’s vehicle from the passenger side and informed him of the reason for the stop. Deputy Sutton questioned Mr. Ray about his travel plans and driving pattern based on the REDDI report. Mr. Ray stated he was traveling from Colorado to Utah for a wedding and that he rented the car in Colorado because his was "in the shop" due to vandalism. Mr. Ray denied speeding and driving erratically. Deputy Sutton took Mr. Ray’s driver’s license and rental car paperwork and walked over to the passenger side of his patrol vehicle where he met with his captain. Deputy Sutton relayed the information provided by Mr. Ray and told Captain Stokes that Mr. Ray had gold teeth, a "wad of cash," a Wyoming driver’s license, and a Colorado rental car. Deputy Sutton noted that Mr. Ray had no visible luggage in the back seat despite traveling to Utah for a wedding, although he acknowledged the luggage could be in the trunk. Deputy Sutton informed Captain Stokes that he didn’t "smell anything" while speaking with Mr. Ray and the two discussed that a drug detection dog was too far away to get to the scene in a reasonable time.

[¶4] Meanwhile, Wyoming Highway Trooper Joseph Minick overheard a radio conversation about the stop and arrived on scene to assist out of "curiosity." Trooper Minick discussed the stop with Captain Stokes while Deputy Sutton entered his vehicle to run Mr. Ray’s driver’s license and issue a citation. Trooper Minick then briefly discussed the stop with Deputy Sutton through the passenger window of the patrol vehicle. Deputy Sutton informed Trooper Minick of the cash he observed, clarified the money was in Mr. Ray’s wallet and that he did not see the denomination of the bills, and handed Trooper Minick Mr. Ray’s driver’s license for his review. On Trooper Minick’s request, Deputy Sutton and Captain Stokes permitted him to question Mr. Ray while Deputy Sutton continued with the citation paperwork.

[¶5] Trooper Minick approached Mr. Ray’s vehicle on the passenger side, introduced himself, and informed Mr. Ray that he did not have to answer any questions. Trooper Minick inquired about Mr. Ray’s travel plans and received the same information provided to Deputy Sutton. Due to traffic noise, Trooper Minick could not hear Mr. Ray’s responses and requested that he close the driver’s side window. Trooper Minick inquired further about the rental car because Mr. Ray was smoking a cigarette, which Trooper Minick believed to be prohibited by the rental agreement. While talking to Mr. Ray about the rental car, Trooper Minick leaned his head into the vehicle, told Mr. Ray he smelled marijuana, and asked him to exit the vehicle. Mr. Ray complied and Trooper Minick stated he smelled the odor of burnt marijuana. Mr. Ray stated he smoked some marijuana the previous night while in Colorado, and that there might be evidence of the same in an ash tray in the vehicle.

[¶6] Trooper Minick placed Mr. Ray in the back of Deputy Sutton’s patrol vehicle and informed him he was in investigative detention. Deputy Sutton searched Mr. Ray’s vehicle and found an ash tray with a lid. Deputy Sutton observed traces of burnt marijuana under the lid and on the inside of the ash tray, which tested presumptive positive for marijuana. Mr. Ray was placed under arrest, and, after a further search, officers discovered marijuana and cocaine in a suitcase in the trunk.

[¶7] The State charged Mr. Ray with two counts: possession of cocaine (a felony) and possession of marijuana (a misdemeanor). Mr. Ray moved to suppress evidence, arguing the officers lacked probable cause to search his vehicle because Captain Stokes did not observe any erratic driving, only speeding; that it is not unlawful to have a wad of cash or gold teeth; and, the color of Mr. Ray’s skin did not provide probable cause to search his vehicle. Mr. Ray also challenged Trooper Minick’s claim he smelled burnt marijuana because Deputy Sutton did not smell it and Trooper Minick did not observe anything else, such as a roach or ash, to support his suspicion Mr. Ray smoked marijuana in the rental car.

[¶8] During the suppression hearing, the State presented the testimony of Trooper Minick and Deputy Sutton, along with photographs of Mr. Ray’s ash tray. On Mr. Ray’s request, the district court also received into evidence the recordings from Deputy Sutton’s body cam and Trooper Minick’s dash cam. In closing argument, Mr. Ray’s counsel expressed his concern that Trooper Minick claimed to smell marijuana only after learning Deputy Sutton did not smell anything and learning that the drug detection dog could not arrive within a reasonable time. For these reasons, Mr. Ray argued the search was pretextual and urged the court to suppress the evidence.

[¶9] The district court found the officers’ testimony credible and denied the motion to suppress. The district court explained:

10. Based on the totality of the circumstances, Trooper Minnick’s interaction with Defendant was not pre-textual. It occurred during the time period of the initial traffic stop while Deputy Sutton was running a check on Defendant’s license and registration, and filling out a speeding citation. Defendant voluntarily answered the Trooper’s questions and the scope of the questions was reasonably confined to the purpose of the initial traffic stop.

11. Although Deputy Sutton didn’t smell burnt marijuana while Trooper Minnick did smell burnt marijuana, this alone does not provide a basis for suppression of the subsequent search or Defendant’s subsequent statements. There are many possible explanations for this discrepancy, including differences in sensitivity to smells between individuals, changes in wind direction, the fact that Defendant’s window was closed for some of Minnick’s questions or the possibility that Deputy Sutton didn’t lean in as far as Trooper Minnick did when questioning Defendant.

12. Moreover, Deputy Sutton’s statements to Captain Stokes, or the fact that Trooper Minnick spoke with Captain Stokes and Deputy Sutton prior to speaking with Defendant, do not provide a basis for a finding that the subsequent interaction between Trooper Minnick and Defendant was pretextual, or provide a basis for suppression of the evidence or Defendant’s statements. It is common practice for investigating officers to share information and for more than one officer to interact with a suspect during a traffic stop.

13. Once Trooper Minnick smelled the odor of marijuana there was reasonable articulable suspicion of suspected criminal activity to expand the scope of the stop. Thereafter, when burnt marijuana was discovered, there was sufficient probable cause to place Defendant under arrest and search the vehicle.

[¶10] Mr. Ray entered a conditional "no contest" plea to felony possession of cocaine and the State dismissed the marijuana charge pursuant to the parties’ plea agreement. The district court sentenced Mr. Ray to 20 to 50 months of incarceration with three days credit for presentence confinement and suspended the incarceration in favor of two years supervised probation. This appeal followed.

STANDARD OF REVIEW

[¶11] When reviewing a denial of a motion to suppress evidence, we do not disturb the factual findings of the district court unless those findings are clearly erroneous. Kunselman v. State , 2008 WY 85, ¶ 9, 188 P.3d 567, 569 (Wyo. 2008) (citations omitted). 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." Id. (citations omitted). Whether the search or seizure was constitutional is a question of law we review de novo. Id. (citations omitted).

DISCUSSION

[¶12] Mr. Ray contends that the drugs found during his traffic stop were discovered due to an unconstitutional search. Specifically, Mr. Ray asserts the presence of three law enforcement officers, combined with Deputy Sutton’s commentary regarding his teeth, the amount of cash he carried, the deputy’s concern about waiting for a drug detection dog, and the lack of corroborating evidence to support Trooper Minick’s alleged smell of burnt marijuana, demonstrate improper pretextual motives, which were all unrelated to the purpose of the initial stop for...