[¶1] Appellant Evan Ernest Kennison entered a conditional guilty plea to one count of possession of marijuana, in violation of
ISSUE
[¶2] Mr. Kennison raises one issue on аppeal which we rephrase as follows:
Did the district court err when it determined Trooper Kirlin's extended contact with Mr. Kennison was a consensual encounter and did not violate the Fourth Amendment to the United States Constitution?
FACTS
[¶3] On the morning of April 13, 2016, Trooper Kirlin was on patrol on Interstate 80 west of Laramie, Wyoming. He received a second-hand text mеssage from another trooper stating Trooper Jason Sills with the Utah Highway Patrol had stopped a black Toyota pickup with a bed cover and multiple stickers covering the back window the evening before. Trooper Sills suspected some sort of criminal activity inside the truck, but a canine unit was not readily available and the driver refused tо consent to a search of the truck. Just after 7:00 a.m., Trooper Kirlin observed the truck described by Trooper Sills. Trooper Kirlin began to follow the truck and observed it cross the center and fog lines several times.
[¶4] Trooper Kirlin pulled the truck over and as he approached it he saw both windows were down and the passenger, later identified аs Mr. Kennison, was smoking a freshly lit cigarette. Trooper Kirlin informed the driver, Dorinda Wilder, he had pulled her over for multiple lane violations and he would be issuing her a warning. He requested to see Ms. Wilder's driver's license, registration, and proof of insurance, and asked her to accompany him to his patrol car while he ran her information and prepared the warning. While in the patrol car, Trooper Kirlin asked Ms. Wilder if she would be willing to answer some questions and informed her she did not have to answer any questions if she did not want to. Ms. Wilder agreed, and Trooper Kirlin learned Ms. Wilder and Mr. Kennison were returning to their home in Vermont after a short visit with Mr. Kennison's cousin in Sacramento, California.
[¶5] Trooper Kirlin also learned the truсk was registered to Mr. Kennison. Ms. Wilder remained in the patrol car while Trooper Kirlin returned to the truck to verify Mr. Kennison's ownership. Trooper Kirlin checked Mr. Kennison's identification and asked him about the couple's travel plans. Trooper Kirlin observed Mr. Kennison was still smoking a cigarette and he appeared very nervous and was trembling.
[¶6] Trooper Kirlin returned to his patrol car and finished issuing the warning. He returned Ms. Wilder's documentation and informed her the traffic stop was complete. He asked her if she felt free to leave, to which she responded she did. He then asked if he could ask her some more questions and, again, told her she did not have to answer any questions if she did not want to. Ms. Wilder stated she would аnswer his questions. Trooper Kirlin asked her the name of Mr. Kennison's cousin they had visited and information about their travel plans. He also inquired about the couple's employment and when they needed to return to work.
[¶7] Trooper Kirlin asked Ms. Wilder for permission to speak to Mr. Kennison again, and she agreed. Trooper Kirlin returned to the truck and informed Mr. Kennison the traffic stop was complete. Mr. Kennison asked Trooper Kirlin if he was being detained, and Trooper Kirlin informed him he was not. Trooper Kirlin asked Mr. Kennison if he would answer some more questions, and he agreed to do so. He answered questions about his travel plans and why he had decided to drive to California from Vermont instead of flying. During this time, Troopеr Kirlin smelled a faint odor of raw marijuana. Trooper Kirlin told Mr. Kennison he smelled marijuana and asked how much marijuana was in the truck. Mr. Kennison handed Trooper Kirlin a marijuana grinder that contained marijuana residue.
[¶8] Trooper Kirlin placed Mr. Kennison in the patrol car and then deployed his canine partner, Frosty, to conduct a free-air sniff аround the exterior of the truck. Frosty
[¶9] The State charged Mr. Kennison with one count of possession of marijuana, in violation of § 35-7-1031(c)(i)(A) and (с)(iii), and one count of possession of a controlled substance with the intent to deliver, in violation of § 35-7-1031(a)(ii). Mr. Kennison filed a motion to suppress the marijuana. Although the motion is not entirely clear on the matter, it appears Mr. Kennison argued Trooper Kirlin's actions violated his rights under the United States and Wyoming constitutions. He argued he was unreasonably dеtained by Trooper Kirlin when he and Ms. Wilder were questioned about where they worked and when they needed to return to work. He further argued that a reasonable person in his situation would not have felt free to leave when he was approached by Trooper Kirlin the final time because Ms. Wilder had remained in the patrol car. After receiving а response from the State and holding a hearing on the matter, the district court concluded Trooper Kirlin's contact with Mr. Kennison did not violate either the United States or Wyoming constitution and denied the motion to suppress. The court determined Trooper Kirlin's initial stop of the vehicle was justified and the information he obtained while issuing Ms. Wilder the warning was reаsonably related in scope to the purpose of the stop. The court further determined Trooper Kirlin's contact with Ms. Wilder and Mr. Kennison after the traffic stop ended was a consensual encounter.
[¶10] Thereafter, Mr. Kennison pleaded guilty to possession of marijuana, preserving his right to appeal the district court's decision denying his motion tо suppress. In exchange for his guilty plea, the State dismissed the possession of a controlled substance with the intent to deliver charge. The district court sentenced Mr. Kennison to two to five years in prison, but suspended it in favor of three years of probation. Mr. Kennison filed a timely notice of appeal.
STANDARD OF REVIEW
[¶11] When reviewing a district court's decision denying a motion to suppress, we defer to the court's findings of fact unless they are clearly erroneous. Jennings v. State ,
DISCUSSION
[¶12] Mr. Kennison contends Trooper Kirlin unlawfully detained him beyond the original purpose of the traffic stop in violation of his Fourth Amendment rights under the United States Constitution.
[¶13] The Fourth Amendment to the United States Constitution protects individuals from unreasonable sеarches and seizures. Jennings , ¶ 9,
[¶14] To justify a traffic stop, an officer must have reasonable suspicion a person has committed or may be committing a crime. Venegas v. State ,
[¶15] If a traffic stop is justified, thе resulting detention must last "no longer than necessary to effectuate the purpose of the stop, and the scope of the detention must be carefully tailored to its underlying justification." Hembree , ¶ 13,
[¶16] Mr. Kennison acknowledges Trooper Kirlin did, in fact, observe Ms. Wilder drive the truck over the center and fogs lines, thereby justifying the traffic stop.
[¶17] Consent, whether it be to a search or seizure, must be voluntary to be effective. Nava v. State ,
[¶18] The record is clear Trooper Kirlin's сontact with Ms. Wilder and Mr. Kennison extended beyond the conclusion of the traffic stop. However, the record is equally clear that Ms. Wilder consented to further questioning. Trooper Kirlin's testimony and the video of the stop establish that when Trooper Kirlin returned Ms. Wilder's documents, he informed her the traffic stop was complete. He asked her if she felt free to leave, and she stated she did. He then asked if she would be willing to answer more questions, and she agreed. He further informed her she did not have to answer any questions that she did not want to answer. When Trooper Kirlin asked Ms. Wilder if he could speak again with Mr. Kennison, she exhibited no hesitation in granting that request. Trooper Kirlin was professional and courteous during his interаction with Ms. Wilder, and he did not exert any pressure on Ms. Wilder to comply with his requests. See Hembree , ¶ 21,
[¶19] Mr. Kennison argues that, despite Ms. Wilder's actions in the patrol car, he was not free to leave because Ms. Wilder remained in the patrol car when Trоoper Kirlin re-approached the truck. For this reason, Mr. Kennison argues he was unlawfully detained. Courts have concluded a passenger may be unlawfully detained during a traffic stop despite the driver's consent to prolong the detention. In State v. Cleverly ,
The driver's waiver of his own Fourth Amendment rights by consenting to a voluntary encounter and consensual vehicle search cannot, as a matter of law, be deemed a waiver of the passenger's personal Fourth Amendment rights. If Cleverly's [the passenger] continued presence at the scene of the investigatory detention had transformed into a voluntary encounter, the change must have been based on Cleverly's own individual acts and personal circumstanсes.
Id . at 607,
[¶20] In United States v. Guerrero-Espinoza ,
[¶21] The court explained that, while the driver may have felt free to leave, there was no evidence a reasonable person in the passenger's position would have felt free to leave. Id . at 1309. Specifically, there was no
[¶22] Here, there are several key facts that differentiate Mr. Kennison's contact with Trooper Kirlin from that in Guerrero-Espinoza . When Trooper Kirlin returned to the vehicle to speak with Mr. Kennison, he greeted him and then immediately informed him the traffic stop was complete. Mr. Kennison asked if he and Ms. Wilder were being detained, and Trooper Kirlin told him they were not. When Trooper Kirlin asked Mr. Kennison if he would be willing to answer more questions, he also clearly informed Mr. Kеnnison he did not have to answer any questions if he did not want to. Therefore, unlike in Guererro-Espinoza , Mr. Kennison was aware the traffic stop had ended, he was not being detained, and he did not have to answer Trooper Kirlin's questions.
[¶23] The fact that Ms. Wilder, who was driving the vehicle, stayed in the patrol car is certainly a factor that should be considered in determining whether Mr. Kennison felt free to leave. See Guerrero-Espinoza ,
[¶24] Affirmed.
Notes
Mr. Kennison references art. 1, § 4 of the Wyoming Constitution in his argument. However, he has not provided a sepаrate analysis of his rights under the state constitution. Therefore, we limit our analysis to the United States Constitution. Jennings , ¶ 9,
Although Mr. Kennison does not challenge the justification for the stop, he does suggest we should assign some sort of ill motive to Trooper Kirlin's investigation because the traffic stop was "obviously" a pretextual stop based upon the text message received from Trooper Sills. Mr. Kennison does not provide any analysis on how the officer's subjective intent may affect the reasonableness of the traffic stop; therefore, we will not address the issue further. However, we will point out this Court and the United States Supreme Court have both clearly stated a traffic stop that is supported by the requisite reаsonable suspicion will not be invalidated simply because the officer had a different primary motivation. Whren v. United States ,
The State argues in the alternative that Trooper Kirlin's continued detention of Ms. Wilder and Mr. Kennison was supported by reasonable suspicion. Because we find the consent issue dispositive, we will not consider whether reasonable suspicion was present.