Vassar v. State

99 P.3d 987

2004 WY 125

Peter B. VASSAR, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 03-99.

Supreme Court of Wyoming.

October 29, 2004.

Representing Appellant: Daniel G. Blythe, Cheyenne, Wyoming.

Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Dee Morgan, Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Carisa Acker, Student Intern, Cheyenne, Wyoming.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

VOIGT, Justice.

[¶ 1] The appellant, Peter B. Vassar, appeals from the denial of his suppression motion. The district court found that a law enforcement officer properly seized a wooden "marijuana stash box" from the appellant's automobile pursuant to the "plain view" doctrine. The district court also upheld the officer's search of the wooden stash box (wherein the officer observed marijuana residue and smelled the odor of marijuana) and the subsequent search of the automobile's contents. We affirm.

ISSUES

[¶ 2] The issues presented in this appeal are as follows:

1. Whether a law enforcement officer properly seized a wooden "stash box" from the appellant's automobile pursuant to the "plain view" doctrine?

2. Whether the officer had probable cause to conduct a warrantless search of the wooden stash box?

3. Whether the officer had probable cause to conduct a warrantless search of the automobile's contents?

FACTS

[¶ 3] On April 21, 2002, Wyoming Highway Patrol Trooper Kleif Guenther (Trooper Guenther) responded to a single-vehicle rollover on southbound Interstate 25 in Laramie County. The driver of a Jeep Wrangler (the appellant's vehicle) had apparently lost control of the vehicle, causing it to exit the roadway, travel through a right-of-way fence, across a frontage road and through another fence, where it overturned. According to Trooper Guenther, the weather that day was "very sunny, nice, a few clouds, fairly warm," the road was "[d]ry and clear," and the appellant's vehicle left the roadway for "no apparent reason...."

[¶ 4] When Trooper Guenther arrived at the scene, the appellant (the vehicle's driver and only occupant) remained trapped in the vehicle. Trooper Guenther described the appellant at the scene as follows:

[W]henever law enforcement appeared to exit his vision he would calm down some, and the minute an officer in uniform would re[appear] in his vision ... he would become agitated and aggressive towards EMS personnel and firefighters.

[¶ 5] While standing beside the appellant's vehicle¹ ("maybe two or three feet away from it"), Trooper Guenther observed a wooden box just behind the driver's seat "propped up in the rear area of the vehicle" and in "plain view." A gold-colored image of a leaf, possibly made out of brass, appeared on the wooden box. Based on his knowledge, training and experience, Trooper Guenther testified that the leaf was a "marijuana leaf"² and the wooden box was "what is commonly known as a marijuana stash box...." A "stash box" is, according to Trooper Guenther, "a container to hold ... illegal substance[s]" and a "marijuana leaf on a wooden box is commonly associated with a stash box." Trooper Guenther testified that in his five-year career as a highway patrolman, he had "seen many kinds of stash boxes," and had seized "[m]aybe 50 to 75" stash boxes, approximately a dozen of which boxes were made of wood. According to Trooper Guenther, stash boxes come "in all sizes ... and shapes. Some have associated paraphernalia pictures such as a marijuana leaf on them. I've found some with that before. I've found some with marijuana paraphernalia such as a glass pipe or a bong."

[¶ 6] Trooper Guenther reached into the appellant's vehicle, pulled out the wooden box, and opened the box. He observed marijuana residue in the box and smelled the odor of marijuana in the box. Based on this discovery, and considering that "it was a nice, sunny day, and this vehicle for no apparent reason drove off the road and wrecked" and the appellant's "behavior" at the scene, Trooper Guenther concluded that "something else was going on here other than a standard, unexplained rollover."

[¶ 7] The vehicle's top was "open," and items from inside the vehicle, as well as "pieces of the vehicle," were "scattered" within a fifty to seven-hundred-fifty foot radius of where the vehicle came to rest. Trooper Guenther noticed "some bags [that] appeared to be involved in the crash had been placed in somewhat of a pile which wasn't standard with the rest of the debris that was scattered about the ... crash scene." Civilian passersby likely had placed the luggage in that position sometime after the rollover. Trooper Guenther had no reason to believe that the luggage did not come from the appellant's vehicle or that the luggage belonged to anyone other than the appellant.

[¶ 8] Trooper Guenther opened one of these bags and discovered the "hardware" or equipment for a clandestine methamphetamine lab. A Wyoming Division of Criminal Investigation (DCI) agent responded to the scene to investigate and process the suspected methamphetamine lab. At the scene, the DCI agent observed a black folder containing what appeared to be an "elaborate" recipe for manufacturing methamphetamine (including a price list for items and where the items could be purchased),³ a quantity of suspected ephedrine, blenders, Pyrex bowls, a "heating type source," tubing, hot plates, tube cutters, and filters. These items were, in the DCI agent's experience, "common items that we find at methamphetamine labs." The equipment, according to the DCI agent, would probably produce a "use" amount of methamphetamine under the circumstances, but the equipment itself could be used "over and over."

[¶ 9] After discovering the clandestine lab equipment, Trooper Guenther went to the hospital to verify the appellant's condition, continue the investigation, and arrest the appellant for "driving under the influence of a controlled substance and also with possession of clandestine lab material."⁴ During a search of the appellant's belongings at the hospital, Trooper Guenther found a list of chemicals commonly used in manufacturing methamphetamine written on a matchbook.

[¶ 10] The appellant was charged with possessing laboratory equipment or supplies with intent to engage in a clandestine laboratory operation in violation of Wyo. Stat. Ann. § 35-7-1059(a)(ii) and (b) (LexisNexis 2003), a felony. In June 2002, the appellant filed a motion to suppress the evidence seized from his automobile and his belongings (at the hospital), which motion the district court denied. In denying the motion, the district court made the following findings relevant to the issues on appeal:

1. The district court did not attach any particular significance to the evidence that the appellant "was involved in a one-car accident on dry pavement during sunny weather" or that the appellant appeared agitated at the scene.

2. The district court found that while

investigating the accident patrolman Guenther observed a small wooden box inside the jeep behind the front seats. A likeness of a leaf is imposed on the lid of the box. Patrolman Guenther immediately recognized the leaf as a marihuana leaf and concluded that the wooden box was a "stash box." (According to patrolman Guenther, a "stash box" is a container used to store controlled substances and related paraphernalia.) He seized it and discovered that it smelled like marihuana. He also noticed a substance in the box that he recognized as marihuana residue.

3. The district court found that the wooden box's "incriminating character was immediately apparent" to the officer, as based

upon both his previous experience with stash boxes and the unique style of the wooden box in question, patrolman Guenther concluded that it was a "stash box." Since a "stash box" is a product used for illegally storing controlled substances it is "drug paraphernalia." ... The Court finds patrolman Guenther's testimony credible and it finds that due to his experience and training he immediately recognized the wooden box as a "stash box" and hence of an incriminating character.

...

... The marihuana leaf gives the box distinctive characteristics that would reasonably lead someone to believe it contained contraband.

4. The district court concluded that the wooden box was properly seized pursuant to the plain view doctrine, and that the surrounding circumstances further gave the officer "reason to believe that contraband would be found within the jeep and its contents." According to the district court, a

reasonable and likely inference to draw from the evidence of marihuana within the box is that associated drug paraphernalia would be located within the vicinity of the "stash box." In this case that would be within the contents of the jeep. Therefore patrolman Guenther's search of the bags that fell out of the jeep was appropriate.

Pursuant to a plea agreement, the appellant later conditionally pled guilty to the amended charge of conspiring with another to engage in a clandestine laboratory operation in violation of Wyo. Stat. Ann. § 35-7-1059(a)(iv), also a felony, and the prosecution agreed to "cap" its sentencing recommendation at imprisonment for four to eight years. In so pleading, the appellant preserved his right to appeal the district court's denial of the suppression motion. The district court ultimately sentenced the appellant to imprisonment at the Wyoming State Penitentiary for twenty-two to twenty-eight months and to pay a $10,000.00 fine. The district court stayed the imposition of the sentence pending this appeal and the appellant was released on an appeal bond.

STANDARD OF REVIEW

[¶ 12] Our standard of review is as follows:

Findings on factual issues made by the district court considering a motion to suppress are not disturbed on appeal

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