Collins v. State

CONCLUSION granting did err in

The district court

summary judgment appellants’ claims estoppel. The

were barred collateral

district court did not abuse its discretion

denying appellants’ motion to their amend

complaint when the motion was made after

the decision letter had been issued.

Affirmed.

Kelly COLLINS, Appellant J.

(Defendant), (Plaintiff). Wyoming, Appellee

STATE

No. 92-65.

Supreme Court Wyoming.

June 1993.

Rehearing July Denied MACY, C.J., THOMAS, and

Before JJ., GOLDEN, and and CARDINE J., URBIGKIT, Ret.

THOMAS, Justice. to be primary issue resolved

The involving encounter case is whether (Collins) Kelly J. Collins officer Collins, im thus a seizure of amounted to rights under the Fourth plicating his the Unit to the Constitution of Amendment 1, 4 of the Art. Constitu ed States and § Wyoming.1 Collateral tion State searched, provides: persons place U.S. amend. IV to be Const, things be seized. right people to be secure in their provides: Art. 4§ Wyo. Const. houses, effects, papers, persons, against right people be in their secure seizures, unreasonable searches and shall not houses, against persons, papers and effects violated, issue, be no and Warrants shall but and seizures shall not searches unreasonable cause, upon probable supported by Oath or violated, and no warrant shall issue affirmation, particularly describing affidavit, cause, upon supported by probable presented including correctly issues are claims there III. Did the trial court refuse crime support was no factual give basis the lesser included offense in- statute; burglary in the entry? as defined struction on criminal jury improperly give court refused to Did correctly IV. the trial court refuse the of- instruction on lesser included jury to instruct the on a definition of entry; improp- fense of criminal court reasonable doubt? erly jury instruct the a defini- refused to presented V. Was sufficient to evidence doubt; tion of and the evidence reasonable jury to Appellant’s sustain conviction was not to sustain a of sufficient conviction burglary? of addition, burglary. suggests the State Was the jury properly VI. instructed on an issue jury as to whether the instructions the elements of burglary? the crime of correctly stated elements of the crime burglary. every hold that en- We May approximately On 11:20 counter between officers and citizens P.M., wife, citizen and a his at their home person amounts to a of the seizure Cheyenne, telephone in received a call from citizen, implicating thus constitutional neighbor who told he them had seen rights, and we conclude that none prowling someone around their The car. by suggestion Collins claims or the telephoned police, citizen and an officer by the requiring State constitutes error responded to the call. The officer learned judgment reversal. The and sentence neighbor from the citizen that the had de- the trial court is affirmed. clothing having scribed male dark as car,

Collins forth prowling sets these his been observed around the issues Appellant: Brief of and the citizen also advised gone south had on foot from the site of the I. Did the trial court err it failed when reported prowling at Street charge Appellant to 31st and Crib- against dismiss the began because was bon Avenue. The officer there no factual to to look basis and, support while, burglary the crime defined around area in a short ob- by Wyoming 6-3-301(a)? a darkly-clothed figure, Statute served who later § Collins, walking was identified as II. few Did the trial court err when failed blocks south of the suppress citizen’s residence. As Ap- evidence obtained when Collins, pellant approached the officer he was detained without noticed a suspicion? right flashlight pocket. Collins’ back The also ap- officer observed Collins III. Did the court by refusing trial err peared nervous and covered give an instruction on the lesser-in- although temperature night cluded sweat entry? offense criminal 40-degree range. was in lower IV. Did the by refusing trial court err then object officer saw that had an Collins jury to instruct the on the definition of jean concealed in the left sleeve his reasonable doubt? jacket, and the officer could see a handle V. Was presented the evidence suffi- sticking out of the sleeve. The officer was Appellant’s cient to sustain conviction object jacket in the concerned sleeve burglary? weapon. Furthermore, offi- In its Brief Appellee, says the State pock- cer several saw cassettes Collins’ way: issues should be stated in this ets, he did player. not see cassette I. Wyoming statute, Does the burglary 6-3-301(a), make unlawful the unau- talking § the first While officer entry thorized a of vehicle with intent to Collins, arrived, a second officer and both larceny? commit noticed that was pushing officers Collins something II. Did correctly deny pock- the trial court down into his left trousers Appellant’s suppress motion to state- et. Collins what When was asked was in Appellant ments pocket, made tak- he “[njothing.” items his told them en Appellant’s person? from patted then down first officer the outside

particularly describing place thing to be searched or the be seized. no additional officer revealed square- hard and felt a pocket of Collins’ items. remove asked Collins to shaped object. He pro- pocket, his and Collins object from He was then arrested. Collins object different tape, an duced a cassette of, with, jury charged convicted had felt when the one the officer from Wyo.Stat. 6-3- burglary in violation of § pro- pocket. Collins then patted Collins’ conviction, 301(a) (1988).2 Upon Collins and, dispenser at that duced an ammunition to a term of not less than was sentenced prescrip- time, noticed a second officer thirty-six, months eighteen, nor more than jacket pocket. A left tion bottle Collins’ penitentiary. appeal is in the state This prescription bottle inspection of closer judgment im- from the and sentence taken per- male issued to a disclosed it been posed by the trial court. who was not Collins.

son significant most in this The issue produced loaded ammu- Collins the Once the initial contact with Col case is whether won- dispenser, the second officer nition person implicating a seizure of his lins was pistol go to with dered if he rights the Fourth Amendment to his under That officer then asked the ammunition. the States or the Constitution of United hood empty pockets his onto the Collins to provision Wyo parallel of under produced a num- police car. Collins right The to be free ming Constitution. including cassette of items fourteen ber and seizures is from unreasonable searches bottles, prescription which had tapes, rights provided two most cherished one of the person a female on one bottle the name of and state constitutions. by both the federal pro other than the name of a male constitutional comparison A two bottle; visions, a Marlboro at n. discloses quoted Collins on the second herein flashlight; lighter; identity except an that the Consti stopwatch; a a Bic substantial requires an umbrella; cartridge Wyoming a dial-a-shell .22 caliber tution of the State support the issuance of a war yellow glove; leather and a affidavit to dispenser, a in case is to deter concern of these items later rant. Our man’s wallet. Some right estab the fundamental person as mine whether by were identified the female provisions by constitutional lished these having car which was come from her by the initial contact implicated parked vicinity in the of the citizen’s resi- by police officers. Collins evening question. dence on the discovered an umbrella was citizen also view, the law is this area of In our vehicle, identified missing from his and he by the United persuasively summarized by as his umbrella the one found on Collins Fifth Cir Appeals for the States Court of the two officers. F.2d Berry, 670 cuit United States (5th Cir.1982): 583, 591 acquired asked how he When Collins was therefore, Supreme conclude, that objects, they given he said were We these first out, at least theo- holdings sculpt changed friend. Then he Court to him a en- retically, police-citizen them in an three tiers story explained found police communication between During investigation, began to counters: alley. coercion or de- rain, involving no asked to and citizens and the second officer Collins com- tention without accompany police they him to the station so and therefore Amendment, pass brief agreed the rain. Collins of the Fourth would be out of supported officer, must be agreed and he also “seizures” that go with the full-scale ar- suspicion, and alley him he claimed to show by probable supported pointed items. Collins out rests that must be have found the Setzer, See, States v. eg., the citizen’s cause. United alleyway an a few blocks from Cir.1981); (5th United residence, alley 654 F.2d 354 but a careful search of vehicle, separately 6-3-301(a) (1988) per- occupied Wyo.Stat. provides structure or § thereof, part: occupied portion with in- tinent secured or if, larceny felony or a therein. guilty burglary without tent to commit A is building, authority, he enters or remains in a Elmore, Supreme Although 595 F.2d has ex- States Court tended the doctrine it articulated in Ter- (5th Cir.1979), denied, cert. U.S. ry investigative seizures, it has not 64 L.Ed.2d 861 S.Ct. necessarily concluded that all contact be- analysis Berry, court stated tween citizens and in the course of Ohio, begins with Terry subject is investigation to the Fourth (1968), 20 L.Ed.2d 889 in which rigors. The Amendment’s Court has re- analyzed Supreme Court the reason- peatedly stated that the Fourth Amend- does, should, of an of a seizure individual fol- ableness ment neither nor inhibit voluntary interaction between by pat lowed and held such a down citizens. stop, though short of brief and a full-scale arrest, came within the ambit of the Fourth holding in Berry, ultimate after a plethora confusing of somewhat and incon Terry, Supreme Amendment. In Court discussed, precedents sistent with the govern- then the interest of the balanced factually specific notation that case each against ment the nature of the intrusion perhaps unique, was that the initial that, upon the ruled individual and order stop Berry implicate any did not Fourth accomplish pat followed Amendment concerns. The Fifth Circuit down, suspicion” “reasonable suffi- totality Court ruled additional events in the opinion cient. The Berry court in pres of the circumstances had led to the pointed subsequent cases, out that includ- ence of prior reasonable ing Williams, 143, v. 407 Adams U.S. 92 seizure, developments justified and further 1921, (1972), S.Ct. 32 612 L.Ed.2d and Unit- probable significant cause for an arrest. A 873, Brignoni-Ponce, ed v. 422 States U.S. body of federal law at all levels acknowl 2574, (1975), 95 S.Ct. 45 L.Ed.2d 607 edges and in adopts, ways, different stops extended the doctrine to made Terry philosophy recognized three-tier in Berry3 merely for investigatory purposes. The Similarly, adopted a number of states have 590, said, Berry, court in 670 F.2d also analysis applied this way the same however: as the federal courts.4 — Bostick, -, (D.Colo.1987), F.Supp. v. 3.Florida U.S. 111 S.Ct. 1083 on rev’d 2382, (1991), remand, (10th Cir.1988); grounds, 115 L.Ed.2d on 593 389 860 F.2d 999 United Galindo-Hernandez, (Fla.1992); Rodriguez, F.Supp. So.2d 494 Florida v. v. 469 States 674 979 1, 308, (1984), (E.D.N.Y.1987); Pirelli, U.S. 105 S.Ct. L.Ed.2d 83 165 on United States v. 650 remand, (D.Mass.1986); 1985); F.Supp. (Fla.App. 462 So.2d 1254 69 3 Dist. United States v. 491, 1319, (S.D.Fla.1986); Royer, Zapata, F.Supp. 647 Florida v. 15 460 U.S. 103 S.Ct. 75 United Moore, (W.D.N.C. (1983); F.Supp. States v. 625 Delgado, 229 v. 305 L.Ed.2d 210, I.N.S. 466 U.S. 1985). 1758, (1984); S.Ct. 104 80 L.Ed.2d 247 League United Latin American Coun Citizens Clements, (5th Betterton, cil No. 4434 v. (Ala. 923 F.2d 365 1988); 4.Ex Parte 527 So.2d 747 Cir.1991); Werking, Harris, 384, United v. People States F.2d 915 Cal.Rptr. v. 15 Cal.3d 124 (10th Cir.1990); Tavolacci, 536, (1975), denied, 1404 United States v. 540 P.2d 632 cert. 425 U.S. (D.C.Cir.1990); 934, 1664, 895 F.2d 1423 v. (1976); United States 96 S.Ct. 48 L.Ed.2d 175 (4th Cir.1989); Gray, State, 883 F.2d 320 Wright United States (Fla.App. v. So.2d 418 1087 1 Dist. Hastamorir, (11th Cir.1989); 1982), denied, v. (Fla.1983); 881 F.2d 1551 review 426 So.2d 29 Thame, (3rd State, 462, United States v. 846 F.2d Cir. Aguero Ga.App. 200 v. 169 S.E.2d 313 735 1988), denied, 928, 314, (1984); 382, cert. U.S. 488 People Murray, 109 v. 137 Ill.2d 148 (1988); Camp 7, 102 (1990); State, L.Ed.2d 333 United States v. Ill.Dec. 560 N.E.2d 309 Wold v. bell, (8th Cir.1988); 843 F.2d (Minn.1988); 1089 States Appelgate United 430 N.W.2d 171 v. (1st Cir.1983), Berryman, v. 717 (Minn. F.2d 651 Safety, Comm'r Pub. 402 N.W.2d 106 denied, reh'g, (1st Cir.1983), 1987); 717 F.2d Perkerol, 292, 650 cert. N.C.App. State v. 77 335 1100, 1594, 465 U.S. (1985), denied, 595, 104 S.Ct. 80 L.Ed.2d 125 S.E.2d 60 review N.C. 315 (1984), denied, reh’g 994, (1986); 466 U.S. 104 S.Ct. Watley, 341 S.E.2d 36 619, State v. 109 N.M. (1984); L.Ed.2d denied, 80 848 (App.1989), United States v. cert. 109 Cir.1982), Black, (7th denied, F.2d 675 129 (1990); rt. Lopez, N.M. 787 1246 P.2d State v. ce 103 S.Ct. L.Ed.2d 945 (App.1989); 75 109 N.M. P.2d 783 479 Mitchell (1983); Steele, State, F.Supp. United States v. (1 1301 (Tex.App.-Houston v. 831 S.W.2d 829 (S.D.Ind.1992), judgment aff’d, (7th Dist.) 1992); Chisholm, 989 F.2d 502 Wash.App. v. State Cir.1993); Roser, F.Supp. (1985); United States 696 P.2d 41 Eatherton (E.D.La.1989); States, Floyd remand, (Wyo.1988), appeal United P.2d 91 after for description to afford a sufficient basis approach, one accepting this articu- investigative procedures.” and seizure leading on search texts “selective theory: following P.M.; lates the place was a time was after 11:20 appropriate in this Cheyenne; are needed and Collins What residential street investigative pro- are “selective context by police only person observed was the are made whereby seizures cedures” male, in the area. Collins was officers a “rea- there exists only of those whom old, wearing twenty-nine years and he was being the of their possibility” sonable circumstances, clothing. Under these dark robber. adequate was available then, question, is what The central officers as a sufficient basis facts and circumstances combinations of purposes. investigatory contact Collins to establish this will suffice previously cited demonstrate Authorities paper test is avail- possibility. No litmus appropriate would have been the contact issue, yet it is this able to resolve any description. this instance without identify factors which possible to several taken into account factor in the test is the size appropriately are The second may Generally, it making judgment. prowling the area. The car occurred at may properly consideration be said that Street, and the officers 1222 West 31st (1) particularity of given to: be prowler walked were advised the offender or the vehicle description of Avenue. The officers south on Cribbon fled; (2) of the area the size three and a half encountered Collins some found, as offender in which the alleged burglary. away from the blocks elapsed by such facts as indicated walking away from The fact Collins (3) occurred; time since the crime reported and had the site of the offense area; (4) in that persons about number more than three blocks traveled a little of the probable the known or direction contact to a conclusion the initial leads (5) activity flight; offender’s observed possible range the of occurred within (6) person stopped; and particular the flight. knowledge suspicion that the people in is the number of stopped has been involved A third factor or vehicle presently factor, criminality type of the this the As illustrative of the area. investigation. Juarez, under People 35 Cal. text author cites v. (1973), in 631, Cal.Rptr. App.3d 110 865 Wayne R. 3 LaFave, and SeizuRE SEARCH that it was lawful to the court held 9.3(d) (1987). which 461 at § near stop person walking down the street they analysis An of these factors as burglary when he recently-reported appear in this case illustrates Collins’ con “ vicinity of only pedestrian the ‘was infringed. The rights stitutional were not minutes burglary that had occurred 10 particularity relates to the of first factor ” Wayne R. LaFave, before.’ 3 officer, and Search description given police 9.3(d) only 470.5 was the Collins teenager, § of aver prowler was a Seizure vicinity in the person the officers observed size, male, clothing. age possibly in dark reported prowling. of the car question adequacy The raised is the of this 1991); State, robbery one and a half (Wyo. utes of and within P.2d v. 93 Sanchez blocks, State, midnight “and there was no (Wyo.1988); Cutbirth v. after 1300 1, walking away (Wyo.1983). Md.App. one defendant See Grant v. 55 else around” and Fernandez, robbed); (1983), granted, 466 A.2d 39 State 461 A.2d 524 cert. from store dismissed, (Md.1983), (where (Mo.1985) phone 1 a.m. cert. 299 Md. S.W.2d 267 persons at certain intersec- A.2d 455 call that armed there, tion, police detain those in car could Wayne area); R. 5. See 3 only persons in the Search Seizure they LaFave, [were] 470-71, 9.3(d) n. which also cites the § Maya, N.H. 493 A.2d 1139 State (1985) (officers following cases: description of man without Herron, jewelry burglarized People Ill.App.3d store could See also who had (1980) minutes at 1 a.m. near scene 15 45 Ill.Dec. 412 N.E.2d 1365 defendant later, deserted). (no virtually suspect, stop of within min- as street individual, proba- Upon The contacting fourth factor is known or the officers flight. direction of offender’s ble also with noted his forehead was covered When the officers arrived at the sweat, something and he had in the stuck residence, they citizen’s were informed the left sleeve of his coat. These several fac- gone had on Cribbon Ave- south comprised particular tors objective information, Using nue. basis for the initial contact with Collins as a block and a officers half drove about pursued investigation officers their a half east where south and a block and possible activity. criminal He they encountered Collins. within A strong of authority line in California and a half site of the three blocks supports our resolution of this case. Taking burglary. account of the reported Supreme Court California has stated walking away from the fact he was area of way: their rule in this burglary where the the citizens’ residence It is well established that temporary place together taken with the fact that had justified may detention circum approximately he had covered three blocks falling probable stances short cause supports foot conclusion that suspect. (People arrest a v. Mickelson contact this case occurred within the (1963) Cal.Rptr. Cal.2d range possible flight. 658.) amplification P.2d factor, five, The next number is the ob- principle recently explained, po we “[a] served conduct of the contacted. may stop per lice officer question explained The first officer he Col- * * * streets, public sons on when area; lins because he was in the he was out circumstances indicate to a reasonable that time of the he night; was dressed in man in position a like that such a course clothes; did not anyone dark and he see proper action is called for dis else the area. facts ap- These made it charge of the officer’s duties. [Cita propriate him to contact Collins in the good faith suspicion tions.] investigation report course of his per warrants an officer’s detention of a prowler. car The officer then noticed investigative son for reasons is necessari sweat, Collins’ forehead covered ly of a required lesser standard than that appeared nervous when the officer to effect an arrest. Where [Citation.] observation, to him. Upon called closer there is a rational belief of criminal activ something officer noted Collins stuck ity connected, suspect with which the up jacket “his left sleeve his coat.” This detention investigative for reasonable additional made it information procedures infringes no re constitutional pursue for officer to the encounter with (People straint. v. Flores [Citation.]” questions Collins, though even the sixth (1974) 225, 12 Cal.3d Cal.Rptr. 115 factor, knowledge suspicion or per- that the 228, 353, 358; 524 P.2d People see v. criminality son involved in other on an (1973) 788, 797-798, Gale Cal.3d 9 108 occasion, application earlier has no to this Cal.Rptr. 852, 1204; P.2d v. 511 Irwin case. (1969) Superior 423, 1 426- Court Cal.3d summary, following factors are 427, 484, 12.) 82 Cal.Rptr. 462 P.2d Peo encompassed in the circumstances in this 384, ple Harris, v. 15 Cal.3d 124 Cal. First, P.M.; case. it was after 11:20 sec- Rptr. 536, 538-39, 632, 540 P.2d 634-35 ond, reported burglary of a vehicle had (1975), denied, 96 cert. just place taken reported; third, been (1976). L.Ed.2d 175 48 within three and a half blocks of the scene reported Other burglary, police consistently California cases from officers male, apply observed a in dark clothing, E.g., dressed this articulation rule. walking away People from scene going v. Superior Court Santa Clara fourth, reported; direction County, Cal.App.3d Cal.Rptr. male 85 149 matched a (1978); Allen, furnished People an ob- 349 v. Cal.App.3d 50 fifth, server of the burglary; (1975); Cal.Rptr. Juarez, 123 80 110 only person in the Cal.Rptr. observed area. reasoning 865. This been has accepted conversation, in Minnesota and New Mexico. the answers raised an articu- State, (Minn.1988); N.W.2d Wold ripened lable which soon into Appelgate Safety, v. Comm’r Pub. cause, probable eventually leading to a (Minn.1987); Watley, N.W.2d 106 State warrantless seizure of containing suitcases (App.1989), 109 N.M. 788 P.2d 375 cocaine. The court there said: denied, cert. 109 N.M. The investigative behavior this case was a model thoroughness of both adopt Berry analysis We choose to they restraint. Had done other than and, case, in applying it to the facts of this did, they what police would have hold we officers need neither reason- been derelict scourge upon and the our suspicion, probable cause, able nor to ar- society drug is the traffic would rest in order to make contact with a citizen. gone Grant, on unabated. and, later, The first officer the second offi- A.2d at initially cer contacted Collins in a first tier encounter, These implicate which does not Fourth two cases resemble this and it rights. Amendment The Fourth Amend- is clear the continuum described in Berry implicated ment until reasonable and the other following cases precisely it is suspicion justified Any his seizure. hold- what occurred with Collins. ing contrary require would our Since we hold there was no seizure simply shrug officers to their shoulders of Collins in violation of his constitutional or, and allow crimes to occur in an instance rights, we then turn to the other issues he this, like allow a to flee. That appeal. asserts The first of those is compatible result would not previ- be with his claim that there was no factual basis to court, ous cases from this particularly support the burglary conviction of which is that, those in which we have stated in such coupled with his fifth relating issue to a situations, police may make an investi- claim of insufficient evidence to sustain the gatory stop. See Olson v. burglary conviction. Collins contends the (Wyo.1985). presented evidence support does not a con encounter, After the first tier the reason burglary viction Wyo.Stat. under 6- § suspicion, justified able detaining 3-301(a). argues language He investigation, Collins for developed quickly. requires statute vehicle to be an investigation led promptly rather “occupied vehicle” in order to sub probable cause for his arrest. Those vari ject agree burglary. of a We with the can, stages ous appear and it would often State, however, proper construc do, rapidly. occur example, For we cite Wyoming statutory tion of scheme in Wright State, 418 So.2d (Fla.App. Dist.1982), entry cludes unauthorized into vehicles denied, review 426 So.2d 29 (Fla.1983), larceny felony adopted which the court intent to commit analysis three-tier Berry therein, regard po for initial to whether or not without court, lice encounters with The occupied. citizens. in the vehicle is fact, held it need not confront validity that, argument Collins’ is precisely, More because, view, the initial contact in its present statutory is in the since no comma present the reasonable to following “structure,” language the word Still, stop Wright. it held the initial con intended legislature the word “occu- tact, anonymous tip based on an followed pied” modify to both “structure” and “vehi- by by surveillance of the area a trained argument cle.” Collins’ does not account detective, activity within the first tier. “occupied for the definition structure” State, Similarly, in Md.App. Grant Wyo.Stat. 6-l-104(a)(v) (1988) found § (1983), granted, A.2d 524 cert. added): (emphasis (Md.1983), dismissed, A.2d 39 cert. 299 Md. (1984), “Occupied A.2d 455 structure” means a struc- ap court proved by an initial contact person an officer with ture or vehicle whether or not a is that, the defendant and noted from the actually present: ” beyond Jennings carries a reasonable doubt.’ (A) any person lives or Where State, (Wyo.1991) 806 P.2d calling; or other business State, (quoting 770 P.2d Munson v. pur- (B) for people assemble Where (Wyo.1989)). business, edu- government, poses of pub- State, or cation, (Wyo. religion, entertainment Dreiman v. 1992). transportation; lic overnight accom- (C) Which is used The elements of the crime of bur or persons;

modation of glary required jury to find Collins may (D) reasonably that, person proved In which a guilty if the State Laramie present. expected County, to entered the vehicle without be be Collins authority intent to and with commit larce impossible it is argument is that Collins’ ny. primary challenge thrust of the vehicle, occupied. if it is not burglarize a insufficiency of the by Collins is evi completely eliminates the This contention entry dence to establish the element of “occupied struc- thrust of the definition authority. argues that the without Collins vehicle, alluding “whether or ture” as to a proved failed to this element State because person actually present,” is “[i]n testimony only permission trial concerned may reasonably expect- person which a be tapes regard permission take without present.” judgment, Col- ed be our to enter the vehicle. argument requirement fit the lins’ does not quote colloquy We from the record way construed in a statutes are to be prosecutor and one of the vic- between gives meaning language to all of the tims, possession who vehicle and, further, not account for the it does when Collins took certain items from it: very difficulty real one encounter Q. any Okay. anyone permis- Did have entering person actually is vehicle when go sion to into that car and remove these present. legislature are We satisfied tapes from that vehicle? “occupied” did not intend the word to modi- yehicle A. fy appears No. as the statute. The word “vehicle” stands alone. We also vein, prosecutor In the same also asked agree argument with State following of the vehicle the owner routinely legislature does not invoke question: commas between the last two items in a Q. anyone any Did consent to take series, provisions evidenced as anything your from vehicle? Wyoming Code. Further- Criminal A. No. more, that, in Jennings we note jury testimony clearly heard this (Wyo.1991), we affirmed a permis- could infer from it that no one had burglary of two conviction of automobiles. sion to enter the vehicle. We hold the opinion, Consistently, with that we hold jury evidence was sufficient for the to con- burglary defined crime of burglary clude the crime of had been estab- Wyo.Stat. 6-3-301(a) can committed § lished. vehicle, by the entry unauthorized Certainly, question there is no Collins not, whether a present entered the vehicle. That is established larceny the intent to therein. commit possession tapes, his prescrip- of cassette respect challenge With to Collins’ bearing tion bottles the names of the owner sufficiency of the him evidence to convict possession who had burglary, we invoke our standard of vehicle, flashlight, lighter, a Bic and a sufficiency review for of the evidence: stopwatch Marlboro he contacted when was “ whether, court must determine by ‘[T]his night alleged the officers on the of the viewing

after appropri- evidence and burglary. These were the same items re- light ate in inferences most ported missing favorable from the car the owner prosecution, possession. respect rational trier of and the in With fact could have found the essential ele- larceny to intent to commit the crime of at proven ments of the crime to entry, have been the time of that element not a simply Supreme de- issue at trial. Collins wherein the Court of the United disputed entering rationale States said: the vehicle. The nied controlling in on this Jennings will, course, found is Each of this sort ease of issue: on its have to be decided own facts. We merely today that hold where a peo that recognizes

“A mind reasonable jury prowling, together permission the initial the victims ry. commit tered the vehicle. with intent sion, Collins contends there property hicle within short time after the able thing suspicion deprive for the cal Promptly obtained Collins, session In a second issue related to his required P.2d cumstances. Mirich. dependent ty which not a the shroud ple at 593 at 593. intent tent steal.” direct evidence is not permissible concluding property reported missing analysis suspicion also from building do property and that the jury precise process.” of stolen those we address larceny possession to steal since that had been stolen. It [ Collins was it developed Collins had after the initial contact, during Minch (Wyo.1979) stands for the to enter the vehicle or take it, jury to steal. inference of intent to from a vehicle we upon usually justifies there was of people for a find Collins [or vehicle] to detain him. and the ultimate arrest of darkness with is when he quantum property [v. State] no one had been permitted jury with the resulting the seizure in most usual this issue found We have no of their ]. break into the conclusion of the Collins “[p]roof adopted concerning totality necessary to sufficient The same to infer from which reasonable specific contact, Mirich, of another guilty proposition Jennings, 806 unlawfully en 593 P.2d possession property testimony to draw the from only proof innocent in of intent is intent entering no reason- apprehen- and enter difficulty report intent certainly evidence the offi- light authori the cir steal burgla briefly. the ve identi under given prove ^[590] from is any that pos to is note the that, suspicion to questioned In pockets with the ing, 1982), name support had some observed scription officers observed whom he is presently whole for the must his fies himself of in the reasonable cers circumstances to determine what cause is may In L.Ed.2d 621 sons in an sufficient to allow sis for serves to leads him officer search of the outer of his stopped tez, Lopez determining We although it the area to conduct a investigating when the own we 449 U.S. have a our determination: were must bottle following experience picture, observes suspecting Collins initial protection stop handle of criminal afoot adopted object him, they quickly acquired than suspicion to detain him. dangerous, reasonably dispel other’s stop: attempt inquiries, bulging; look at the dealing may officers as a particular be used to assault him. was a cool and that the his on it. After stages the record person. his left stuck sticking this behavior he identi- his reasonable fear for articulable unusual Collins presence safety, policeman of himself and others that criminal law activity. clothing to discover nervous and P.2d wherein the course 101 S.Ct. to and where following and he had a detaining up of the enforcement offi- particular person pocket conclude carefully evening; Based out; the first officer totality shoving his left sleeve conduct which be armed and of reasonable demonstrates persons objective is entitled of such factors that U.S. v. Cor- and makes Collins his encounter that, upon standard weapons 690, 66 officers nothing activity in light limited Collins of the sweat- jacket (Wyo. some- both per- pre- We ba- to cers reached level of reasonable thing pocket, left trouser into his and the justify followed, Terry accordance with frisk that which was valid under Ohio, 1, 30, Terry because officers then had to some of the elements of suspicion be are identical Collins reasonable (3) armed, greater offense; the items that were there is some disclosed the testified at trial justify seized. The first officer evidence that would conviction the possible that it was offense; (4) proof about his belief the included the lesser object in Collins’ sleeve elements, concealed element, on the or differentiat- weapon. totality of these cir- been a sufficiently in ing the two crimes is dis- supports cumstances pute jury may consistently that the so by the trial court of justifies the denial great- innocent of the find the defendant and to suppress the evidence the motion guilty included er and of the lesser of- suppress Collins’ statements. fense; (5) mutuality that exists such charge the lesser included offense can be issue, In his third Collins claims prosecution either the or demanded part of the trial there was error on the State, the defense. v. 771 P.2d Keller jury the on the refusing court in to instruct (Wyo.1989). 383-84 entry. of criminal lesser included offense (1988) per Wyo.Stat. provides, 6-3-302 § Application of these criteria to the record part: tinent supports holding this case our entry (a) guilty of criminal A is properly give trial court refused to if, knowingly en- authority, he without instruction. structure, occupied vehi- building, ters earlier, As we have noted there trailer, cargo portion a truck or cle or dispute was no factual as to whether Col por- separately occupied or or a secured vehicle, lins entered or with without tion of those enclosures. larceny felony. intent to commit or Collins’ the crime of bur- difference between theory of the case was that he never en glary entry criminal is the and the crime of If tered the vehicle at all. sufficient evi larceny or a specific intent to commit felo- present is dence not from which reason ny, is an element of the crime of juror guilty could find able a defendant burglary. object not to the re- Collins did offense, the lesser included the instruction give request- fusal of the trial court State, given. Carey should not be v. and, ed lesser included offense instruction denied, (Wyo.1986), P.2d 244 cert. U.S. therefore, analyzed this claim must be un- 107 S.Ct. 93 L.Ed.2d 247 plain der the doctrine of error. State, Compare Griego 761 P.2d 973 required for review under The standard (Wyo.1988)(holding under the facts of that plain analysis error is well established: case, distinguished since the element which First, the record must clear as to the crimes, victim, age two alleged incident as error. which is Sec- trial, disputed proper it was for the ond, party claiming the error give jury trial in court to refuse to plain amounted to error must demon- struction on the lesser included offense unequivocal strate that a clear and rule assault), degree fourth sexual and Warren Finally, party of law was violated. 1992) State, (Wyo. (holding 835 P.2d 304 prove right must that a substantial has under since no evi the facts of been denied him and as a result he has prove that a shoe was dence was offered to materially prejudiced. been proper for the deadly weapon, not a it was State, Craney v. trial refuse to offer a lesser includ court to (Wyo.1990) (citations omitted). Farbotnik v. instruction, theory of the case ed offense State, (Wyo.1993); 850 P.2d 594 Derksen v. simple battery). There was instruction on State, (Wyo.1993);Hampton 845 P.2d 1383 jury in this instance. The would no error (Wyo.1977). disregard completely only have had to respect requirement Our rule larceny the intent to commit evidence of for instruction on a lesser included offense possession felony, which was given is that it must be when: property, justify in order to the con stolen (1) proper made; (2) request viction under the claimed lesser included elements of the lesser included offense offense instruction. each of these elements has been re claims error with

Collins also doubt, then proved beyond trial court to reasonable failure of the spect to the guilty. of rea find the defendant jury you on the definition should instruct the held: doubt. We have sonable necessary omitted the ele- This instruction that it is not early said as as 1913 We part intent as a of the instruction ment of in- give a definition to refuse to error of therefor the actual theft and substituted (Alcala struction, as 1971 and as late incorrect, is property. This instruction case) well ad- that trial courts would be discussion, though even import its merits to avoid such an instruction. vised this error. Collins did not assert Collins self-explan- is phrase “reasonable doubt” in- No. 10 does not concedes Instruction clarify do not its atory and definitions of intent for the crime of clude the element to confuse meaning but rather tend error, plain burglary. He contends it was are unnec- defining it jury. Instructions prejudiced materially and he viola- Bentley given. not be essary and should right to a fair tion of his constitutional (Wyo.1972). P.2d If the had not raised this mat- trial. State pre- more proposition even We made briefing, likely would ter in its it is Collins we re- years two later when cise some it. We commend the not have asserted confusing relating to a a conviction versed bringing the matter to the atten- State for defining doubt. We reasonable instruction justice; tion of the court in the interests of then said: however, plain error. we do not find disposition this case should of Our argues any potential error is The State hereafter our court make it clear that necessary elements were cured because give a error to will consider reversible Instruction in Instruction No. 9. set forth confusing defining instruction reasonable all the essen- No. 9 indeed does set forth State, 521 P.2d doubt. Cosco v. burglary the crime of tial elements of (Wyo.1974). estab- prosecution requirement gave faced if it The trial court reversal allegations of the of the material lish all light on the of Cos- instruction definition a reasonable doubt. beyond Information the decision to withhold that co. We hold cau- position, but we accept the State’s We erroneous, not but was instruction was our trial of the bar as well as tion members upon ruling by the trial court correct based as this is a an instruction such courts that Wyoming precedent. and, if of the law Collins misstatement a collateral issue The State raises trial, re- might have been objected at we import. elements in significant irregularity Since this quired to reverse. struction, Jury Instruction No. did not trial, nor noted, objected nor was not correctly elements the offense: state the essentially appeal, it on briefed Collins error waived, plain apply 1. The crime occurred within Coun- we in this ty present of Laramie on or the date of about error is to hold no doctrine 11, 1991; May case. intentionally en- 2. That the defendant that, in addition regard, we note In this tered; No. 9 that instruction requirement vehicle; A3. unlawfully and felo- prove Collins State and; authority, 4. Without Mercury Capri with- niously entered a 1984 intent to commit flashlight, lighter, a Bic authority 5. Did steal a out and with tapes. beyond a reason- felony and cassette larceny watch therein forth doubt, 12 sets No. able Instruction your consideration of you If find from intent: specific definition these the evidence that all of beyond a proved not case is a charged elements has been in this The crime doubt, you should find requires proof then serious crime which guilty. Kelly the defendant can be specific Collins intent before intent, the term hand, Specific If, find from convicted. you the other general implies, more than the the evidence means your consideration of all of property.” preju- His claim of act. To establish owner of his intent to commit the ring. regard has a hollow Col- prove dice in this the state must specific intent object to this instruction at lins did not knowingly did an act the defendant trial, plain not demonstrated and he has forbids, specifically intend- which the law Wyo. former error in accordance with may intent ing to the law. Such violate 49(b) (now 52(b), Wyo.R.Crim.P. R.Crim.P. all the facts and determined from be 1992). effective March See Cutbirth v. surrounding the case. circumstances State, (Wyo.1983). 663 P.2d 888 “knowing- failure to act is An act or a done, voluntarily and inten- ly” if done judgment and Collins’ conviction and the of mistake or tionally, respects. and not because sentence are affirmed all innocent reason. accident or other GOLDEN, Justice, dissenting, in which relating general principles Our URBIGKIT, (Retired), joins. J. jury instructions is to the construction majority’s I dissent from the conclusion duty has a to well known. The trial court appellant mere that the initial is a general principles jury instruct on the “first tier encounter” or “contact” with the case. Evans v. applicable of law to police. By categorizing police action in this State, (Wyo.1982). P.2d 1214 Instruc manner, majority recognize fails to whole, a and tions must be considered as protections Fourth Amendment inherent them, instructions, parts or individual Terry stop conducted without reasonable singled out and considered should be suspicion. articulable State, 665 P.2d 471 isolation. Ostrowski v. State, 11, 1991, night May approxi- P.2d (Wyo.1983);Scheikofsky v. On the Furthermore, mately p.m., Floyd Esquibel phoned (Wyo.1981). before a 11:20 report prowler. Cheyenne conviction be reversed because of an will instruction, Esquibel personally Mr. did not observe the prejudice to the de incorrect neigh- prowler but had been notified fendant must shown to have occurred. prowling someone had been State, 1202; bor Craney Ballinger 798 P.2d According night. around his car that State, In (Wyo.1968). 437 P.2d 305 addi Esquibel, neighbor Mr. described the tion, Wyoming, an instruction which is size, teenager, average as a law of the erroneous becomes the case ar- possibly a male. When Officer Lusher plain unless a or fundamental error can be scene, Esquibel gave a rived on the Mr. State, demonstrated. Sanchez description prowler to which (Wyo.1988), followed Eatherton v. officer testified as follows: (Wyo.1988),appeal 761 P.2d 91 after Q. remand, Esquibel give you And did Mr. (Wyo.1991). prowler? of the car When Instructions are read thought he male A. Other than he was together, they convey jury require- dark, clothing. it. dark That was ment that Collins must have had the intent description. any real He didn’t have larceny felony to commit or at the time he Q. he certain whether But he wasn’t persuaded entered the vehicle. We are not or whether the was was male jury misled in this case was female, male is that correct? or experi- erroneous instruction or that Collins it was that he men- My memory A. any prejudice. enced He did not raise the male, just tioned that it was part element of intent at trial as of his anything dark to see didn’t—it was too defense, nothing in and there is the record that, basically. other than suggest he entered the vehicle without Q. words, you In he didn’t tell larceny. closing intent to commit prowler wearing, what— stated, what the was argument, “I counsel for Collins tall, short, medium, whether he was prove would submit State has failed hair, curly hair, straight whether he had beyond this case a reasonable doubt that or— unlawfully Mr. Collins entered this vehicle deprive vehicle with an intent to A. No.

Q. What race he was? A. walking No. He was down the street, stopped I him. figure just A. The described male added). (Emphasis basically figure. a dark appellant Officer Lusher testified that added). (Emphasis We note that at the that he was the incident, appellant twenty- time of this prowler. The officer made this determina- Further, years nine old. there is no evi- by considering following tion the factors: dence the record to indicate whether Mr. The fact I anybody that didn’t see else in Esquibel’s neighbor, eyewitness, was area, the fact flashlight that he had a questioned by police. ever pocket, in his back was dressed in dark clothing, he was out at that time of present, While Officer Lusher was Mr. night. Esquibel checked his car and “couldn’t de- anything missing.” termine if Officer Only appel- after Officer Lusher called to scene, Raybuck, who came later on the stop lant to appellant’s did he notice that sweat, “forehead was anything ap- testified that when asked whether covered peared nervous.” Officer Lusher also tes- car, missing Esquibel from his Mr. tified that any weapons he did not observe knowledge, stated to “the best of his no.” appellant stop only before the but that Esquibel Mr. indicated to Officer Lusher stop after the appellant did he notice that suspect gone had south from the “something up stuck his left sleeve Esquibel location of the residence on 31st jacket coat, type of his he had some Street and Cribbon. Officer Lusher then Raybuck handle on it.” Officer arrived in Esquibel left the ap- residence and drove patrol car in less than five minutes. proximately a block and a half to two There testimony is no in the record to indi- blocks south and then a block and a half police, cate whether officers were upon east before he appellant. came Offi- armed. cer Lusher pulled up testified that he be- stop appellant The initial before the appellant

hind in his vehicle and called to presents search question: the threshold him, his being get appellant intention to suspicion” stop Was there “reasonable to stop. Officer Lusher’s observations of appellant, description given based on the appellant stopping before him were as fol- patrolling officer that the lows: teenager, average size, was a possibly clothing? a male in dark

Q. you When first saw the defendant you car, while your were still in what did scope permissible investigative The of a you notice about him? and frisk was first discussed Supreme Terry United States Court in A. That he was clothing dressed dark Ohio, 1, 1868, S.Ct. U.S. L.Ed.2d Terry, officer with Q. you Could clothing? describe his observed, thirty-nine experience years of got closer, A. IAs a little I hours, could see it during daylight suspects two jean jacket, jeans. they was a walking blue took turns back and forth in front roughly of a store front window Q. you anything Did notice else about times, twenty-four pausing to stare into the him at this you your time while were together window and then converse on the car? 23, street Terry, 392 U.S. at corner. car, A. I my While was in I noticed that S.Ct. at 20 L.Ed.2d at 907. he had mag a—one of those black metal casing officer the men deduced that were lights sticking right pocket. out of his robbery the store for an eventual men, frisking * * * weap- * * * them for analyzed ons. The Court reasonable- Q. He trying you wasn’t to avoid or by balancing gov- ness of the seizure anything nature, of that he? justifying ernmental interest intrusion with Examples of circumstances “constitutionally protected interests Terry, seizure, 392 U.S. at private citizen.” indicate a even where the 20 L.Ed.2d at 905. leave,

88 S.Ct. at attempt did not would be “must able stated that the officer Court officers, threatening presence of several point specific and articulable facts officer, weapon by display of a which, rational infer- together taken with physical touching some facts, reasonably warrant ences from those citizen, language or use Id. The Court concluded that intrusion.” indicating compliance tone of voice specificity in the demand for “[t]his request might the officer’s be com- upon police action is information Mendenhall, United States pelled. teaching of this predicated is the central 544, 553, 554, jurisprudence.” Fourth Amendment Court’s (1980) (footnote 64 L.Ed.2d Id. omitted). and citations “if reaffirmed that The Court has case, In a recent the Court clarified the suspicion, grounded have a reasonable facts, in Menden person that a specific “only language employed and if” articulable they involved or is want necessary, hall by encounter was noting it to be “a but * * * felony, completed ed in connection with not a for seizure condition sufficient ” Terry stop may made then a to investi authority.’ through effected a ‘show of States v. United gate suspicion.” Hodari, D., 499 U.S. -, California 221, 229, 675, Hensley, 469 105 S.Ct. U.S. -, 1547, 1551, 690, 111 113 L.Ed.2d S.Ct. (1985). 680, 604, 83 L.Ed.2d 612 It is clear (1991). say: 698 The Court went on to opinions following Terry that the from the Mendenhall establishes that the test for Supreme has not varied from this Court authority” existence of a “show of is an Place, United States requirement. basic objective one: not whether the citizen 696, 700-01, 2637, 2641, 103 462 U.S. S.Ct. being perceived that he was ordered Roy Florida v. 110, (1983); 77 L.Ed.2d 116 movement, restrict his but whether er, 1319, 1324, 103 460 U.S. S.Ct. actions officer’s words and would 229, (1983); Michigan 75 L.Ed.2d 236-37 conveyed person. á reasonable Summers, 452 U.S. 692, 7, 699 and n. 101 2587, 7, 340, n. S.Ct. 2592 and 69 L.Ed.2d Hodari, at-, 111 S.Ct. at (1981). 347 and n. 7 “policemen And since 113 L.Ed.2d at 698. determining In what constitutes a “sei- ‘Stop!’ expecting do not command to be implicates zure” and thus Fourth Amend- comply ignored,” the citizen must with this Supreme rights, ment Court has stated “stop” carrying the Men- order before a when, person only by is “seized” means denhall indicia will be considered a seizure. physical authority, force or a show of Hodari, at-, 111 at 499 U.S. his freedom of movement is restrained. 113 L.Ed.2d at 698. * * * purpose of the Fourth Amend- is not to eliminate all contact ment be- Wyoming Cases: citizenry, tween the and the but prevent arbitrary oppressive sufficiency probable in- cause for a

“to by enforcement terference officials this court search was first discussed personal security privacy of indi- Kelly, State v. Wyo. 268 P. 571 viduals.” for of an automobile The search upheld, ini-

intoxicating liquor based tially Springs County tip on a from a Hot conclude that a has been We gave physical deputy de- sheriff which meaning “seized” within fat, (a scription passengers of the vehicle’s if, only of all Fourth Amendment view man) and heavy-set man and a small surrounding inci- the circumstances Kelly, dent, partial description of the vehicle. a reasonable would have Wyo. description P. at 571. The believed that he was not free to leave. suspicions concerning passengers appellants.” and vehicle was con- their sheriff, Parkhurst, County 628 P.2d at firmed a Washakie men along with his observations (Wyo.1981), Cook v. agitated and the rear of the appeared to be stopped under follow- kegs. Kelly, contained small vehicle ing scenario: it was after 1:00 a.m. and an P. at 571. Wyo. at Chief Justice robbery just place; armed taken a van for the court: Blume stated carrying the defendant was within might not have been satisfied in We robbery one-half mile of the as it was com- court, uphold if instant case to the trial ing private from a area where it had no solely rested probable cause had being; business and the passenger van’s Depu- upon given by the the information length matching was noted to have hair ty to the Sheriff Sheriff given by eye- of the robber an strengthened by information robbery. witness to the “specific These suspicious the other circum- reason of coupled articulable facts” with “rea- case, warranting the stances in the sonable experienced police inferences an court, think, holding. Kelly, we in its officer, ample grounds furnished for find- (emphasis atWyo. 268 P. at 572 ing objective basis for an added). Cook, investigatory stop of the van.” P.2d at 8. arrest, involving improper In a case noting “[temporary Terry, we cited Lopez State, In (Wyo. investigatory pur- detention for limited 1982), this court reiterated the test devel arrest,

poses, a is as well as full blown oped in United States v. Cortez: protected by the Fourth Amendment” and The idea that an assessment of the whole any governmental inferred that “test of picture yield particularized suspi- must a personal security invasion of a citizen’s is elements, cion contains two each of light in its reasonableness of all the present stop which must be before a surrounding circumstances.” Rodarte v. First, permissible. the assessment must Riverton, 1245, 1251, City n. upon all of the be based circumstances. (Wyo.1976). analysis proceeds objec- various with permissible This court first discussed a observations, po- tive information from ** stop State, in frisk Parkhurst v. reports, lice if such are available *. denied, (Wyo.1981), P.2d 1369 cert. data, From these a trained officer draws U.S. S.Ct. 70 L.Ed.2d 216. In and makes deductions—infer- inferences suspects stopped two were ences and deductions that well shortly their vehicle after a murder had person. elude an untrained place. taken At the stop, time of the hard cer- process does not deal with police identity knew the of the assailants tainties, Long probabilities. be- but with victim, from the of the sus probabilities fore the was articu- law car, pects’ and the direction they and road such, practical people formulated lated as travelling. were The vehicle was described conclusions certain common sense about green Fairlane, as a 1968 blue or Ford behavior; jurors as factfinders human stopped police car was a mid- permitted are to do same—and so are Dodge. 60’s blue The driver was asked to Finally, officers. law enforcement produce his license which identified him thus collected must be seen and evidence one of the assailants and was then asked to weighed library analysis not in terms of car, step out of the as was his brother who scholars, but as understood those was also identified. The court concluded versed the field of law enforcement. that “the officers’ conduct in making investigative an detention was reasonable The second element contained in the idea ample grounds since the record discloses picture that assessment of the whole 1992), defendant, wearing suspicion is who was yield particularized must process just de concept that apparel, stopped frisked gang suspicion must raise scribed company gang of a while known being stopped is en particular individual and narcotics distributor member Lopez, 643 P.2d wrongdoing. gaged in gang activity. The court area known for Cortez, (quoting 449 U.S. at 683-84 mannerisms, held that absent furtive 66 L.Ed.2d 101 S.Ct. dress, gait or there were no articulable 923, 102 denied, (1981), cert. apart that set defendant from inno- facts 464). 1281, 71 L.Ed.2d gang cent in that location and the members need cause probable said that This court action was found be unwarranted. stop is investigatory not exist before an Maryland recently A court found a totality of upon the made but that based circumstances, detaining permissible stop officer search incident to be “the basis particular objective must have a invalid of crim- absent reasonable particular suspecting for activity. inal In Derricott v. activity.” Lopez, 643 stopped of criminal (1992), Md. the defendant 611 A.2d 592 omitted). (citation Lopez, P.2d at 683 speeding and then based small, thin suspect as “a was described upon young the facts that he was a black orange T-shirt wearing an Mexican male wearing gold driving sports jewelry, male the T- design on and some sort of wishbone carrying papers beeper car with a driving shirt” and towards Sheridan them, telephone numbers written car, license older with no “tannish-colored subjected pat-down to a and search of his Casper tag on the rear plates and a dealer's car, revealing drugs. The held that court P.2d at 683. The court Lopez, end.” may though even the defendant upheld Lopez based on “drug profile” matched a courier this was particularized description of the vehicle and eyewitness. enough from an a search or seizure to warrant more, “[wjithout and that the attributes involving stop suspected of a a case suspicious claims about that the State were driver, opinions drunk this court discussed appearance simply are not Derricott’s jurisdictions reports that held from requisite level of enough to establish presumptively reli- citizen informants as suspicion that Derricott was en- they enough objective if “also contain able Derricott, activity.” gaged in criminal justify pursuit detention.” facts to Ol- (Wyo.1985). son v. engaged not at 598. Derricott had A.2d court, however, This determined that any suspicious or acted an un- behavior need not reach the issue of whether the usual manner. reports truck drunk drivers’ of the driver’s po- In a recent Massachusetts driving erratic was sufficient in itself be- police police then radio cause the officer who followed lice received a bulletin over speed suspect observed him exceed the informing stabbing had taken them that limit, hug ramp. slightly weave the exit place describing suspect as “a Olson, 698 P.2d at 111. goose length black black ¾ male with a group.” Angelo of the Humboldt

known as Other Jurisdictions: Cheek, 413 Mass. Commonwealth Defendant N.E.2d jurisdictions Recent from other cases wearing length goose a ¾ was applied specific suspi- articulable “ jacket proximity’ down ‘in to where the suspect cion standard to instances where a occurred,” high stabbing known to be a exhibits certain known manner of behav- Cheek, crime 597 N.E.2d at 1031. In area. “profile.” ior or dress known as a In State Jones, (App. determining wrong- N.M. that the defendant was fully stopped, investigative stop the court found that the ra- suspect. of the court reasoned that: “single dio was not sufficient to An tip possesses informant’s sufficient any him out from other black male reliability” (1) “indicia of where the in- area,” fleeing defendant had not been (2) is reliable and the infor- formant scene and evidence did not exist to show he tip mant’s enough objective contains engaged any suspicious or was criminal justify pursuit facts to and detention Cheek, activity. 597 N.E.2d at suspect of the or noninnocuous de- investiga- “permit police court held that to tip tails of the have been corroborated stops present in sparse tive under the facts suggesting thus that the infor- unduly encourage this case would mation was obtained in a reliable fashion. Cheek, police practices.” intrusive Hart, (citations omitted). 830 P.2d at 700 N.E.2d at 1032. The court determined the informant was reliable in that he being himself was de- recently The Tenth Circuit has held tained for a traffic violation and not was suspect’s where the nervousness was anonymous, prong thus the first of the test factor, only suspicious such nervousness was met. In analyzing the first alternative degree suspicion only raised the mini- test, prong second the court mally. Hall, United States v. 978 F.2d concluded tip that the informant’s lackéd any (10th Cir.1992). objective justify facts to As defendant’s detention. This determination was made from the fol- apparent only being nervousness was after lowing facts: the informant had no basis officers, by police confronted held the court for assuming suspect that the selling significance it to be of little because the drugs, only that the looking informant was prior officers had “no contact with the [de- purchase drugs and told compare fendant with which to her behav- area; suspect inwas the informant did ior, thereby making defendant’s nervous suspect know where the lived appearance merely to the officers approached by never been suspect Hall, hunch.” 978 F.2d at 621. The court purchase drugs. reasoned, The court recognized that it knowledge is “common facts, any objective based on this lack of * * * that most citizens whether innocent officer could not evaluate wheth- selling drugs er the indeed or guilty, when confronted a law en- whether the informant had “misconstrued forcement officer potential- who asks them Hart, innocent conduct.” 830 P.2d at 701. ly incriminating questions likely are ex- Finally, the officer did not observe signs Hall, hibit some of nervousness.” n. “ ‘noninnocuous’ conduct which tended to 4. demonstrate that the informant’s informa- tion was obtained a reliable fashion.” A Washington state appeals court of re- suspect’s presence Id. Nor did the in a involving viewed a case stop of a sus- drug “by give known traffic area itself rise pect selling drugs believed to be based on a suspicion to a reasonable that he was en- tip juvenile from a that the individual was gaged Moreover, activity.” in criminal Id. * * * “dressed black and riding was suspect officer’s observations motorcycle.” Hart, State v. Wash.App. the informant’s de- conformed to The informant scription provide did not corroboration un- pointed then ap- as he prong. der the second proached police officer, and told the In a recent situation where defendant Hart, “That’s him.” 830 P.2d at 698. That uniformed, night, by at two followed applied court a two-prong test reformulat- policemen “stop, armed and ordered to halt Sieler, ed in State v. 95 Wash.2d 621 right apart- there” a dark as he entered (1980) P.2d 1272 to determine whether rea- go else, ment building and could nowhere sonable support existed to Hodari, applied stating Court in a marked car its person” would blocks with red when a “reasonable even not “free to light flashing. that he was at Morgan, have believed F.2d injunction an pursuant leave” to officer’s apparent authority suffi- This show rely may not on such stop, to a defendant implicate Terry stop. cient to authority” to exclude evi- “show Applying guidelines, Mendenhall the offi- dence if he failed submit Supreme Connecticut Court a recent de- Thus, pur- authority. cer’s assertion appellant, cision determined who was judgment Hodari suant to the Court’s companion at 1:00 a.m. with D., (1) must determine whether we [the persons an armed officer where no other authority” to a “show of used officer] present, purposes were to be seized for (2) appellant and whether seize the the Fourth Amendment. Connecticut appellant to the assertion submitted Oquendo, 223 613 A.2d 1300 authority. Conn. (1992). The court determined that a rea- Wood, 981 F.2d States v. United person sonable would not have believed he (D.C.Cir.1992). The test to determine was free to leave. authority” was made is whether a “show of totality of the “objective, and looks at the Lusher, In the instant Officer while including, among the other circumstances” car, driving patrol appellant approached consideration, Mendenhall factors night stop. late him and called to Wood, encounter. place time and Appellant stopped at the officer’s com- 981 F.2d at 539. vicinity mand. No one else was in the officer, ear, patrol a second in a also ar- Finally, has the Tenth Circuit stated: following rived in less than five minutes particular Whether a encounter consti- appellant. Lusher’s Wheth- Officer tutes consensual encounter or an inves- er armed is not the officers were or not involving tigative detention fourth However, a rea- known from the record. protections depends amendment sonable could deduce that he was whether a reasonable under the and, to leave that situation free circumstances would she believe was not such, appellant “seized.” disregard free to leave and/or the offi- request cial’s for information. United Wyoming Previous cases can be distin- Werking, 915 F.2d States presented guished from the facts here. (10th Cir.1990) (citations omitted). Beginning Kelly, this court has re- supported

quired that a search be “oth- suspicious er circumstances” addition ANALYSIS descriptive given by an in- information analyze appellant’s To whether Fourth lacking Such circumstances are formant. rights Amendment have been violated Parkhurst, in this case. frisk, impermissible stop we must identity of the assailants from knew the appellant first consider whether was victim, identity while this case the the stopped or “seized.” a crime had been prowler the whether Cook, In was not known. an committed Writing the Tenth Circuit Court of robbery gave physical a eyewitness to the Appeals, Judge Brorby the found defen- including description suspect, of the his dant to be “seized” for Fourth Amendment length, and the van when hair purposes yielded momentarily he when to a private where it had no leaving a area police request uniformed officer’s to “hold being, indicating furtive behavior. business up.” Morgan, United States v. F.2d eyewitness gave specific (10th Cir.1991). Lopez, In an previ- The officer had ously description suspect of the and his physical followed the defendant for several Lopez, only vehicle. Unlike the neighbor phoned Cook stated that his him saying eyewitness prowling to the incident could prowling someone was around his car and give only vague, general description of he did not recall if she said that someone suspect apparently spoke never had been in the car or Esquibel not. Mr. police. appre- At the time Collins was personally did not suspect, see the but re- hended, place whether a crime had taken description members the suspect giv- of the verified, could not by supposed even by neighbor en his teenager, as a possibly a victim, Esquibel. Mr. male; he did not specifically remember only authority The from court this cited description gave what officers; he by majority is Olson. In that and Officer Lusher Esquibel testified that though by reports initiated from citizen suspect told him the was a male with dark informants, personally officer ob- clothing. Esquibel Mr. could not deter- driving permit served erratic sufficient to mine, notice, anything or did not if stop driving. for drunken The majority missing from his car and did not tell the opinion support “investiga- cites this officers that the umbrella missing. However, tory stop.” in our discussion quote Olson we from Cortez: Considering first the reliability of the investigatory stop An justified must be informant, appears it never objective some manifestation eyewitness, talked to the Esquibel’s Mr. person stopped is, be, or is about to * * 11 neighbor. There conflicting testimony engaged activity. in criminal [T]he what the officers remember descrip- as the totality of the circumstances—the whole given by Esquibel tion Mr. and what he picture be taken into account. —must neighbor telling remembers his him. Un- upon picture Based that whole the de taining der the particular prong Hart, officers must first have a test it is objective ized and suspecting basis for questionable as Esquibel to whether Mr. particular person stopped of criminal can informant; be considered a reliable activity. eyewitness was not an and could never Olson, 698 (quoting Cortez, P.2d at 110 449 confirm anything had been taken from U.S. at 101 S.Ct. at 66 L.Ed.2d at his vehicle. suspect, The 628) added). (emphasis Determining that clothing either a male in dark or a male the officer had “reasonable and articulate size, teenager average provide did not suspicion upon based totality of the cir- specific information identify which to stop vehicle, cumstances” to the Olson suspect, appellant at the time was independent court noted the corroboration teenager, twenty-nine years not a old. illegal activity from the officer’s obser- plus description, the lack of evidence to vations as well as “generally noncon- theft, support provide “objective does not clusory” factual observations the in- justify pursuit facts and detention of Olson, formers. 698 P.2d at 111. Hart, suspect.” 830 P.2d at 700. Offi- analyzing cases from jurisdic- cer Lusher did not observe “noninnocu- tions, appears descriptive certain appellant ous stop behavior” before the profiles gang members or drug couriers to corroborate the tip. informant’s are not justify sufficient to without apparent nervousness appel- exhibited suspect exhibiting furtive behavior. lant being stopped Jones and cannot Derricott. be consid- And even if the de- after scription specific, is more if it cannot distin- in evaluating ered specific whether articu- guish area, from others lable stop, existed before enough. it is not Cheek. using appellant’s support nervousness to the seizure must

Applying the test in be treated with caution. Hart to the facts in present Esquibel we note Mr. Hall. Majority with a citizen. surrounding ter” or “contact” Wood, specifics As in Disregarding the Fourth opinion at 695. comprise ele- do not stop appellant unjusti- rights infringed by an Amendment encoun- “benign police/citizen ments of a to en- stop, majority is content fiable night, a uni- late at know that ter.” We semantics, really calling what is gage in car, or- driving police policeman, formed an “encounter” or or “seizure” “detention” stop. Soon after appellant to dered make if that somehow “contact” as would officer, also uniformed seizure a second rights of these constitutional the erosion There car, the scene. appeared on palatable. more prongs of the that both question is no may majority terms the con Despite the appellant did not met: test were Hodari detention, appellant’s justify coct to the officers’ resist but rather submitted appellant stopped reality was remains authority. show of anything to arouse he “did not because stopped by Kelly he was Collins was but because individualized * * Rideau, there *.” United States v. teenag- description that only on the based (5th Cir.1992) (Smith, 1572, 1580 969 F.2d clothing in dark possibly a male er Politz, J., Goldberg, dissenting, in which possible sighted in connection with been Wiener, JJ., Duhe, joined). oc What to see how It is difficult car break-in. general is “akin to a appellant curred to particu- determined can be Rideau, 969 F.2d at 1580. warrant.” previ- under this court’s lar and articulable majority relatively finds it sim Though the Ap- application Terry and Cortez. ous cognizant that ple ignore, I am behavior, pellant not furtive his and seizures con- indiscriminate searches give existed to information no additional authority “general ducted under the engaged rise to belief the immediate evils that warrants” were until activity. It was not criminal after framing adoption motivated the officer not- appellant Payton Amendment. v. New the Fourth sweating and nervous and ed Collins was York, sticking out his handle saw umbrella (1980)(footnote 1378, 63 L.Ed.2d coat sleeve. omitted). stopped in of his Appellant was violation respectfully I dissent. rights against unwarranted constitutional and the evidence ac- search and seizure should have

quired as a result of majority today suppressed. The

been eyes to the line of cases

elects to close its requiring court “reasonable” and

from this by choosing to call suspicion”

“articulable investigatory stop, a “first tier encoun-

Case Details

Case Name: Collins v. State

Court Name: Wyoming Supreme Court

Date Published: Jun 11, 1993

Citation: 854 P.2d 688

Docket Number: 92-65

Court Abbreviation: Wyo.