Wilson v. State

(Defendant), WILSON, Appellant Wesley (Plaintiff). Wyoming, Appellee

STATE

No. 92-111. Wyoming.

Supreme Court of

April 1994. May 1994.*

Rehearing Denied * question important or matter grant some would overlooked Thomas and Justice Cardine Justice State, necessary ground decision. Elmer Rehearing correct on the the Petition denied, (Wyo.1970), cert. probability 466 P.2d 375 that the Court there is a reasonable at an erroneous conclusion have arrived Munker,

Leonard D. State Public Defend- er, Gallivan, Director, Wyoming M. Gerald Program, Stephanie Bryant, Defender Aid Intern, Casper, Wyoming morning of Phillips, on the June and Aaron Student Student a.m., Intern, 1991. At 12:31 Officer Kamron Ritter appellant. Ritter) (Officer Casper Depart- Police Gen., Meyer, Atty. Sylvia L. Joseph B. “lunging” steps ment watched Wilson’s Gen., Hackl, Deputy Atty. and Barbara L. patrol pulled his car over the sidewalk. Gen., Boyer, Atty. appellee. for Senior Asst. Ritter, believing fight may that a Officer place, okay if have taken asked Wilson was C.J., THOMAS, MACY, and Before happened leg. to his re- and what Wilson TAYLOR, CARDINE, and JJ. GOLDEN at a sponded that he had twisted his ankle breath, TAYLOR, Smelling party. alcohol on Wilson’s Justice. requested Officer Ritter identification which constitutionality police of a officer’s The provided. Officer Ritter radioed for Wilson demanding identification actions in a citizen’s a routine warrants check with the National following an initial offer of assistance are (NCIC) Information Center and local Crime impression challenged in this case of first This initial encounter with Wilson last- files. questioned the court. Also is the before minute and a half. ed about a improper possible “taint” that an seizure subsequently on obtained evi- have created The conversation with Wilson was inter- Determining that a violation of feder- dence. rupted Ritter detected smoke when Officer rights al constitutional occurred when the Street, coming from 12th west of he where officer, policy depart- following the of his time, standing. At the same two motor- was ment, pedestrian complete a seized a reported cyclists stopped and to Officer Rit- outstanding rea- check for warrants without burning building up ter that a fire was suspicion present past criminal sonable leaving on the street. Before to cheek conduct, judgment and sen- we reverse the fire, “stay in Officer Ritter told Wilson to imposed by district court. tence area.” reported po- the fire to the Officer Ritter

I. ISSUES dispatcher. building fire in a lice The was away block from where Officer Appellant presents issues for review: located one two spotted As he waited for Ritter had Wilson. policy Casper Po- I. Whether the responding engines, fire Ritter Officer Department stop persons and ask lice burning building sure the checked to make identification, early morning unoccupied. nearby homes were and other hours, justification any violates the without destroyed deliberately garage- fire set Fourth Amendment of the United States workshop. I, Wyo- § and Article Constitution ming greater It is an Constitution. even eight minutes at the scene of After about an individual until a intrusion to detain fire, on Ritter returned to check Officer run records cheek is to determine whether limped about 40 feet farther Wilson. He had the individual is wanted for some violation. attempting 12th east and was to cross Street. Wesley II. the seizure of Wilson Whether approached, As additional fire trucks Officer permissible the standards for a violated Offi- helped Ritter Wilson cross street. seizure as set forth the Fourth Amend- nearby go to a cer Ritter then told Wilson ment to the United States Constitution and “wait” while the officer returned corner and I[,] Wyoming § 4 Constitu- Article to the fire scene. tion and defined the United States Su- control, provided Ritter traffic As Officer consequently, preme Court and several radioed, a.m., dispatcher at 12:41 by the ille- pieces of evidence are tainted outstanding arrest war- had two Wilson suppressed. gality and should have been Terry Ritter and Officer Van rants. Officer the block to where then walked down Oordt

II. FACTS sitting on a lawn at the corner Wilson (Wilson) ap- watching fire. the officers severely, Wesley When Limping Wilson Wilson, him the they informed proached 12th rapidly walked eastbound on Street (b) 6-3-301(a) (1988). The dis- § him to Stat. and asked outstanding warrants of not Wilson to a term it was diffi- trict court sentenced the officers told stand. Wilson years eight years nor more than injured ankle. The less than six his cult to stand with Penitentiary on each right Wyoming oily patch on the at the State an officers noticed run wearing. were to concur- The sentences count. of the shirt Wilson shoulder rently. stained area touched the Both officers volunteered, oily Wilson substance.

found III. DISCUSSION smell like you doing? I don’t are ‘What to arrest proceeded The officers smoke.” evidentiary rulings of a general, outstanding warrants. on the Wilson appeal are not disturbed on district court custody, made morning, in following is demon a clear abuse of discretion unless impheating himself voluntary statement 1106, State, Armstrong P.2d v. 826 strated. starting the fire. State, 777 P.2d (Wyo.1992); Garcia v. 1111 hearing, Ritter suppression 603, Officer “‘An of discre (Wyo.1989). At a abuse 607 safe- his concerns for Wilson’s an error of law testified about been said to mean tion has and that he ty during by their initial encounter the the court under committed circum ” in suspicions of involvement 1111 Armstrong, had no Wilson’s P.2d at 826 stances.’ State, 831, arresting public him intoxi- of P.2d 838 (quoting the fire or Martinez v. 611 rou- stated he followed (Wyo.1980)). Findings cation. Officer Ritter on factual issues Department procedure to Casper considering Police a mo tine court made the district subjects police come in get appeal of suppress the names are not disturbed on tion to night” Hyde time of and they clearly “contact” with “at that v. are erroneous. unless Rit- “always” State, 376, check. Officer v. (Wyo.1989); run a warrants Roose 769 P.2d 378 until the State, 478, (Wyo.1988). he wanted to wait ter said Wilson 487 See 759 P.2d 1992) 12(f) (effective 24, were received. of the warrants check results March W.R.Cr.P. encounter, 16). when Officer During their second the district (formerly Since W.R.Cr.P. street, the helped cross the hearing Ritter Wilson on the motion to conducts the court suspicion of he still had no opportunity officer testified to: assess suppress and has the witnesses; in potential weight involvement the fire but credibility Wilson’s the of the completion of evidence; necessary to wait for the wanted Wilson and make the given the Casper police conclusions, detec- inferences, check. A the warrants evi deductions and circumstances, light testified about the tive also in the most favorable dence is viewed in warning, involved including a Miranda United district court’s determination. (10th following 1404, his arrest on statement 1406 Werking, Wilson’s 915 F.2d States v. Cir.1990). State, 44, outstanding warrants. 818 P.2d Rands v. See law, (Wyo.1991). The issue of whether 46 Wilson, testify hearing, did not at the who in or occurred unreasonable search seizure illegal argued stop was and rights, constitutional is reviewed violation of gathered stop should be from evidence 682, State, Lopez v. 643 P.2d de novo. See suppressed. also contended that Wilson State, 631 P.2d (Wyo.1982); Cook v. 683-85 regarding smelling like smoke statements (Wyo.1981); v. Walk 7-8 and United States starting fire implicating him in the and (10th Cir.1991), er, cert. 941 F.2d 1090 court suppressed. The district should be — -, denied, 117 U.S. S.Ct. motion, ruling that suppression denied the (1992). L.Ed.2d “entirely rea- Ritter’s actions were Officer whether in his effort to determine sonable presumes statement of the issues Wilson’s situation man was hurt and what his provisions of both appeal is one based on his court found Specifically, the district was.” Wyo- and the Constitution the United States and both of illegality the arrest Wyo. language of ming Constitution. Const, ruled admissible. statements were Wilson’s 1, § 4 somewhat from its art. differs providing: counterpart federal convicted, jury following a tri- destruction, right people to be secure al, Wyo.Stat. felony property houses, B—201(b)(iii) papers and effects (1988), Wyo. persons, burglary, their § and 6— protection against unreasonable searches sei- The of the Fourth Amendment is violated, and no applied process zures shall not be warrant to state action under the due cause, sup- upon probable shall issue but clause of the Fourteenth Amendment. affidavit, Ohio, ported by particularly describing Mapp v. place (1961); Colorado, searched or the L.Ed.2d 1081 v. Wolf thing (1949). to be seized. U.S. 93 L.Ed. 1782 Tribe, See Laurence H. American Constitu- State,

See Goettl v. 842 P.2d 558-75 (2d Law, 1988). § tional 11-2 ed. J., (Wyo.1992), Urbigkit, dissenting (arguing provisions search and seizure of the state The decision of the United States provide stronger protection than constitution Ohio, Terry Court v. n constitution). However, the federal we are 1868, 20 L.Ed.2d 889 marked ini impact unable consider the those differ- recognition by tial the United States Su ences this situation because Wilson has not preme Court some lesser standard than invoking independent pro- succeeded probable upon cause for intrusion constitu Wyoming tection of the Constitution. See tionally guaranteed rights. See Keehn v. State, Shongutsie v. 827 P.2d 366-67 112, 116 Torrington, (Wyo. Town 834 P.2d Richmond, State, (Wyo.1992); and 554 P.2d State, 1992);. Olson 698 P.2d (Wyo.1976). LaFave, (Wyo.1985); Wayne and 3 R. Search any argument Wilson failed to offer Seizure, § Terry, 9.1 at 334 supporting independent an state constitution officer, police observing specific conduct al claim. posi This court refuses to consider training experience taught which his and him unsupported by cogent argument tions or behavior, of was indicative criminal conduct pertinent authority. Wyoming Amrein v. investigate ed a limited seizure to his reason Bd., 769, (Wyo.1993); Livestock 851 P.2d 772 23-24, suspicions. Terry, able 392 U.S. at 88 Co., Triton Coal Inc. v. Mobil Coal Produc S.Ct. at 1881. In the course of such a sei Inc., 505, ing, (Wyo.1990); Kipp 800 P.2d 512 zure, Supreme ap the United States Court Brown, 1338, (Wyo.1988). v. 750 P.2d 1341 proved weapons a limited search for for the present proper The failure to citation of au protection police Terry, of the officer. 392 thority argument supporting “adequate and 27, 88 S.Ct. at 1888. independent grounds,” Michigan and state v. Dombrowski, 433, 441, Cady v. 413 U.S. 1032, 1041, 3469, Long, 463 U.S. 2523, 2528, (1973), 93 37 S.Ct. L.Ed.2d 706 3477, (1983), prevents this recognized the United States Court court, policy, a considering as matter of from officers, responsibility police of local as princi other than the federal constitutional opposed agents, to federal to undertake L.F.P., ples at issue this case. Dworkin v. “community caretaking functions” for ele- Inc., (Wyo.1992); 839 P.2d 909 v. State safety. mental reasons of The Dombrowski Wethered, 110 Wash.2d 755 P.2d approved court of trunk the search a car’s (1988). Kaye, 800-01 A See Judith S. Mid the drunken had after driver been involved point Perspective on Directions in State an accident which left him comatose. The Law, Emerging Constitutional 1 Issues In police local searched the car because the State Constitutional Law 17 off-duty police driver was an officer from The Fourth Amendment to the Unit jurisdiction police another and local reason- grants ed States Constitution ably believed the officer’s service revolver right people [t]he to be secure in would be a if left in trunk of hazard houses, effects, persons, papers, their and Dombrowski, abandoned car. 413 U.S. at against and unreasonable searches sei- 446-47, 93 S.Ct. at 2530. zures, violated, shall not and War- issue, cause, upon probable genesis, general recogni

rants shall but this a From affirmation, supported by par- diversity police-citizen Oath or and tion of the rich ticularly describing place Terry, emerged. to be encounters has See 392 searched, 13-14, persons things and the or to be U.S. at 88 S.Ct. at 1875-76. As this recently acknowledged seized. court Collins v. might that indicate a sei- circumstances (Wyo.1993)(quot State, 691-92 P.2d person zure, did not at- where the Berry, 670 F.2d even v. ing States United leave, threatening (5th Cir.1982)), categories tempt or tiers of would be the three may officers, display and citizens police of several presence interaction between officer, e.g., States by physical See United some weapon be characterized. (7th Cir.1982), citizen, cert. Black, F.2d or the touching denied, language 460 U.S. indicat- or tone of voice use of (1983); Werking, 915 F.2d and L.Ed.2d 945 ing compliance with the officer’s encounter, an intrusive The most at 1407. might compelled. Terry See he arrest, justification probable requires Ohio, 19, n. supra, [88 392 U.S. at person has committed that a cause to believe 16]; Dunaway v. New n. City Rodarte v. committing a crime. or is York, 200, 207, and n. [99 (Wyo.1976). Riverton, P.2d 824]; LaFave, 2248, 2253, 3 W. 60 L.Ed.2d stop represents a seizure investigatory (1978). In 53-55 and Search Seizure safe Fourth Amendment invokes which evidence, otherwise of some such absence character, but, by its less intrusive guards, a member of inoffensive contact between specific and presence of requires cannot, mat- as a public rational inferences articulable facts law, of that amount to seizure ter of suspicion that to a reasonable give rise which person. be commit person has committed 554-55, Mendenhall, 100 S.Ct. at 446 U.S. at 683; P.2d at Werk ting Lopez, 643 a crime. omitted) added). (footnote (emphasis Black, 1407; 675 F.2d at ing, F.2d at police-citizen con intrusive 133. The least opinion of Justice Stew While encounter, tact, no re involves a consensual joined only by Justice art Mendenhall vol liberty and elicits the citizen’s straint of made Rehnquist, subsequent decisions have ques untary cooperation with non-coercive majority of the United States it clear that the Black, 1407; Werking, F.2d at tioning. 915 analysis Supreme accepts the to deter Court at 133. 675 F.2d encounter is trans mine when a consensual determining when a proper The test for justice plu into a seizure. The four formed implicates Fourth police-citizen encounter 491, rality Royer, 460 497- in Florida v. U.S. initially rights as seizure was Amendment 1319, 1324, 98, 75 L.Ed.2d 229 103 S.Ct. Mendenhall, 446 v. outlined United States (1983) standard, as applied the Mendenhall 1870, 544, 64 L.Ed.2d 497 100 S.Ct. U.S. Royer, in dissent. did Justice Blackmun Stewart, writing for a divided Justice J., 1332, Blackmun, at U.S. at 103 S.Ct. court, upon a foundation first stated built majority dissenting. A of the court I.N.S. “Obviously, personal not all inter- Terry. 216-17, 210, 215, Delgado, 466 U.S. and citizens in- policemen course between (1984) 1758, 1762-63, L.Ed.2d 247 S.Ct. persons. Only when the volves ‘seizures’ to hold that seizure used the standard officer, physical force or show of by means of immigration agents conducted occurred when way restrained the authority, has in some factory citizenships. surveys of workers’ See that a liberty citizen we conclude of a Chestemut, Michigan also U.S. Terry, 392 U.S. at has occurred.” ‘seizure’ 1975, 1979, 108 S.Ct. In at 1878 n. 16. Menden- 19 n. 88 S.Ct. D., (1988). Recently, in v. Nodari California hall, found no seizure had Justice Stewart 111 S.Ct. ap- drug agents occurred where federal (1991), the Su L.Ed.2d 690 United States walking through an air- proached a woman under the Men- preme explained that Court requested her identification: port standard, on a show denhall a seizure based person has been conclude that a We subject authority occur unless the does not meaning of the Fourth “seized” within yields authority. to the if, of all of the Amendment view standard, therefore, incident, cre- The Mendenhall surrounding circumstances test, D., objective Hodari 499 U.S. at ates an person have believed would 1551-52, 626-28, makes which Examples of not free to leave. that he was request is known to subjective intent of the officer what official justification conveyed person require no further than that it is to the irrelevant unless detained, Mendenhall, performance was made in the being 446 U.S. at 564 of law 6, 100 enforcement functions. That there n. at 1877n. and like all search us, cases, pressures exist such seems to far inquiry very fact from and seizure being regrettable, necessary 27-31, to be a condi Terry, oriented. 392 U.S. at police’s capacity operate tion of the rea person at 1883-85. The reasonable standard sonably effectively within their limited subjective perceptions also means the grant powers. suspect inquiry. are irrelevant to the court’s 9.2(h) LaFave, Finally, § supra, at 407-08. Mendenhall, the United States person “presupposes the reasonable standard Court, with reference to the Model Code of Bostick, person.” an innocent Florida v. Procedure, Pre-Arraignment specifically -, 2382, 2388, U.S. simply states that a seizure is not established original). (emphasis L.Ed.2d 389 person asking questions because “the So, example, arguments for that a seizure was a law enforcement official.” Menden must have occurred because a reasonable hall, 446 U.S. at 100 S.Ct. at 1877. luggage who knows his contains con posi- The critical distinction between the agree traband would never to a search are by argued by tion advanced Wilson and that rejected. Id. type the State is which of encounter occurred basically in this case. Wilson contends that case,

During argument oral it this suspicion he was seized without reasonable acknowledged analytical difficulty that an im- period when his identification was posed standard lies in the Mendenhall being possible checked for warrants. per- determination of whether a reasonable State asserts that was never seized in son “would have believed that he was not implicate a manner that would' Fourth being questioned by free to leave” when rights, validly Amendment until he was ar- Mendenhall, police officer. outstanding rested on the warrants. Our Lafave, supra, 100 S.Ct. at 1877. See analysis requires a detailed 9.2(h) consideration of § at 408-14. We find useful instruc- voluntary the distinctions between a citizen’s Pre-Arraignment tion in the Model Code of compliance and a seizure. Procedure, § commentary 110.1 at 259-60 (A.L.I.1975) (footnotes omitted): initial encounter between Offi cooperate The motives that lead one to prompted by cer Ritter and Wilson was police put with the are various. To safety officer’s concerns for the of a citizen. case, police may purely extreme in in a The officer conducted himself reasonable precatory language request a to by simply patrol pulling manner his car to give guilty, if information. Even he is flashing the curb to talk No with Wilson. person might request such a accede to the signal lights or siren sounds were used to he has because been trained to submit to community stop. Wilson to The caretaker persons authority, the wishes of in or be- function outlined 413 U.S. at Dombrowski cause he fears that a refusal will focus 441, 2528, permits police 93 S.Ct. at to act suspicion, or because that con- he believes public safety. a manner that enhances State longer possible coop- cealment is no and a Marcello, 157 Vt. 599 A.2d posture tactically psychologically erative or (1991). officer’s observation of preferable. Regardless particular facts, specific lung and articulable Wilson’s motive, cooperation clearly is a re- ing limp, reasonably justi a walk with severe sponse authority police. to the inquiry a into condition and the fied brief his cause, By specifically authorizing possible law enforce such as whether Wilson was a n * * cooperation, portion

ment officers to seek victim of criminal conduct. Id. This rejects damag notion that a of the initial encounter between Officer Rit- Code ing response police inquiry to an from a ter and Wilson occurred a consensual at ’ * * * “voluntary.” mosphere implicates man can no Fourth never be which Rodriguez, pressures cooperate extra with Amendment interest. Florida v. [T]he 1391, 1401, 648, 663, L.Ed.2d 308, 311, 99 S.Ct. 5-6, 83 U.S. 105 S.Ct. (1979) (holding articulable and (1984). without L.Ed.2d law, stop suspicion of violation of requested Ritter Officer When detaining and the driver ping an automobile and Wilson name and identification Wilson’s registration is unrea check a license remained consensu complied, the encounter Amendment). Fourth under sonable not, by is request A for identification al. assertion, however, simply is bald Wilson’s itself, Delgado, 466 U.S. at a seizure. Ritter, by Officer supported the record. not Black, 1762; F.2d at 136. at counsel defense cross-examination physical Indeed, person in dis a reasonable it hearing, testified that suppression by police a intimidated tress should feel less stop everyone ob procedure to not standard request for iden help and a officer’s offer to night. Casper late at No on streets served stopped at random. tification than someone department policy is documentary exhibit Castellanos, 731 F.2d United States testimony proceeding in this and no of record (D.C.Cir.1984). con supports officers Wilson’s supervisory specific factual made no The district court tention. finding Ritter retained Wil- whether Officer however, testify, Ritter did Officer immediately returned or son’s identification Department policy to Casper Police that it is any testi- does not disclose it and record checks of and local warrants conduct NCIC question. mony regarding this Without night. late at everyone police “contact” 12(f), any finding, deter- specific W.R.Cr.P. meaning of a “contact” was never defined. or did not occur mination that a seizure did However, computer a seizure to conduct requested would the identification when check without reasonable ized identification Royer, 460 speculative. See acknowledge permitted. suspicion is not We (holding at 1326 officers who re- police have been unable to locate that “where and driver’s passenger’s airline ticket tained past in a person suspected of involvement indicating passenger was free license without crime, ability briefly stop person, effectively purposes him depart seized identification in the questions, or check ask Amendment). Fourth promotes the probable cause absence of obtaining identifica After Wilson’s solving crimes strong government interest tion, for the NCIC and Officer Ritter radioed justice.” bringing offenders to United Despite local warrants check. 221, 229, Hensley, 469 U.S. States v. check, the computerized warrants for the (1985). How People v. remained consensual. encounter ever, we do not find the circumstances Ill.App.3d 22 Ill.Dec. Kennedy, 66 justifi Ritter’s encounter with Wilson Officer 910-11, 718-19 Offi 383 N.E.2d Terry stop for the cation for a seizure any imposed Ritter had not restriction on cer Brown, investigating past crime. purpose of as the warrants freedom to leave Wilson’s Hensley, at 2641. In 443 U.S. at check was instituted. Supreme Court directed the United States suspicion, police “if have a reasonable challenges and local that that NCIC Wilson facts, specific policy grounded in and articulable initiated under a warrants check was they involved in Department stop person that a encounter was Casper Police to completed cause, in connection with a purpose of or is wanted anyone, without for Terry stop may made to felony, then a be conducting computerized identification Hensley, investigate suspicion.” stops for that policy If such a of random check. existed, at 680. Officer Ritter at 105 S.Ct. without sufficient basis U.S. identification questioned requested his identifi it unconstitu Wilson we have no doubt that would be solely of the officer’s cation on the basis announced Ko tional under the standards safety. officer Lawson, for a citizen’s concern lender v. 461 U.S. suspicion past crim any reasonable of and Brown v. lacked Therefore, question re Texas, inal conduct. 61 L.Ed.2d Prouse, participated in a con- 440 mains whether Wilson Delaware v. See also (3rd Cir.1993), police or sensual encounter with the whether the court considered seized, point, purpose he was at some for the whether a law enforcement officer’s order to completing impli- cheek possible the identification wait resulted a seizure of a drug Brown, cating rights. During encounter, Fourth Amendment airport dealer. being questioned at at 2640. U.S. S.Ct. individual about his identifi- go cation and tickets asked to leave to to the The initial encounter ended when bathroom. The officer told him to wait and and the Officer Ritter detected smoke two briefly complied. man The court held motorcyclists stopped report a fire. At the order to wait and the man’s submission point, “stay Officer Ritter told Wilson seizure, by sitting back down resulted in a in the area.” Under the Mendenhall stan Id. at 654. dard, such a statement from a law enforce We hold a seizure point occurred at the might regarded ment officer as a show of complied when Wilson with the instruction to authority sufficient to warrant a reasonable given by wait Officer Ritter their second person’s belief that he or she was not free to Coggins, encounter. 986 F.2d at 652. As However, circumstance, leave. in this we traffic, Officer Ritter directed he could see need not consider whether a seizure occurred sitting in Wilson front of a retail store at the point. disregarded at that Either Wilson specific corner the officer had directed. The authority officer’s show of or felt suffi persistence returning of Officer Ritter in because, ciently free to leave when left unat on supplements check Wilson the deter tended, limped away he from the immediate mination that a seizure occurred. See Unit questioning area where the had occurred. Wilson, (4th ed States v. 953 F.2d 116 Cir. no seizure hold occurred when Wilson We 1991) (holding prolonged persis officer’s “stay was told to in the area” since he failed questioning suspect expressed tent after will yield authority to the of the officer. Hod seizure). ingness to leave resulted in a D., 626-28, ari 499 U.S. at at authority by show of Officer Ritter re 1551-52. liberty. Terry, strained Wilson’s 392 U.S. at Officer Ritter left When fire 16; 19 n. at 1878n. A 16. scene and returned to check on for person would have believed he or she was not time, process the second Wilson was in the Mendenhall, free to leave. crossing walking away the street and from 100 S.Ct. at 1877. vicinity of the fire. Concerned about seizure, With his Wilson’s Fourth Amend approaching engines, fire Officer Ritter as right ment to be free of intru unreasonable by grabbing sisted Wilson the street across implicated. Terry, sions was 392 U.S. at 20- supporting him at weight. the elbow and his 22, 88 S.Ct. at 1879-80. The narrow issue physical While Mendenhall refers to touch remaining is whether a brief detention for ing by of the citizen an officer as one exam purpose completing computerized ple might aof circumstance that indicate a warrants check is an unreasonable seizure. Mendenhall, seizure, 554-55, 446 U.S. at Terry presents inquiry evaluating a dual physical touching S.Ct. at in this investigatory stop, the reasonableness of an instance did not effect a seizure. A reason justified “whether the officer’s action was able would not believe that an offi inception, reasonably its and whether it was crossing cer’s assistance street would scope related in to the circumstances which represent person’s a restriction on the free justified place.” the interference the first provid dom to leave. The aid Officer Ritter assessing Id. at 88 S.Ct. at 1879. safety removing ed ensured him Wilson’s action, officer’s the United States path emergency from the vehicles. Dom quality Court “balances the nature and browski, 441, 413 at 93 at U.S. S.Ct. 2528. personal security against intrusion on importance governmental

After Officer Ritter interests al street, leged justify Hensley, crossed the the officer instructed Wil the intrusion.” 469 go 228, 105 680; specific Terry, son to to a street corner and at at wait. U.S. S.Ct. 392 U.S. 651, 20-21, Coggins, assessing In v. United States 986 F.2d at 88 S.Ct. at 1879. In 224 United States intrusion, suspicion of criminal conduct. the United States scope of the Cir.1987), (10th Corral, 1389, 1393 F.2d police v. 823 “whether Supreme examines Court 1054, denied, 486 U.S. S.Ct. rt. investigation diligently pursued a means ce (1988); United States 100 L.Ed.2d dispel their or likely to confirm

that was (10th 543, 547-48 Cir. Lopez, 777 F.2d v. during time it was which suspicions quickly, 1985). of Rhode Island Court United necessary the defendant.” to detain DeMasi, 448 v. 675, 686, 105 considered the issue State Sharpe, 470 U.S. v. States denied, (R.I.1982), cert. 1213-14 A.2d 84 L.Ed.2d 1052, 103 1500, 75 L.Ed.2d 931 460 U.S. body of law has been A substantial a that because and determined computerized propriety of developed on the suspicion, a brief de had reasonable officer dealing primarily checks and warrant NCIC check a NCIC warrant tention to conduct is accepted standard stops. The with traffic a heavi permitted. The officer observed stop may making traffic a that an officer manner in ly traveling in an elusive laden car registration, license and request a driver’s pas prior to dawn with a an industrial area if computer to determine cheek run a NCIC moni senger continued to turn around who valid, is and the license vehicle is stolen toring police cruiser. Id. States Walk and issue a citation. United Luckett, 484 F.2d States v. United (10th Cir.1991), er, cert. 988 F.2d (9th Cir.1973), city police officers two — -, denied, 112 S.Ct. Gardena, a man cross California observed (1992); v. Guz United States L.Ed.2d a.m., street, against light. a traffic at 12:30 Cir.1988). (10th man, 864 F.2d stopped question the man The officers however, satisfied, conditions are After these possible jaywalking violation and re- about a suspicion a reasonable officer must have pro- The man quested his identification. activity justify temporary illegal further pieces of identification and duced five questioning. United States detention for citation, issued a but detained officers (10th Cir.1990), Pena, 920 F.2d complete a warrants check for the man to denied, 501 U.S. cert. not that a driver’s license was sole reason (1991) (involving Wyoming provid- man included in the identification the stop). traffic check revealed ed. Id. When the warrants check in the predicate for the NCIC warrant, outstanding traffic the officers stop usually provided of a traffic case package man and discovered a arrested the laws, motor vehicle most violation of some money pocket. orders his of counterfeit commonly The officer’s observa- speeding. officers court determined that the Id. The provides the articulable tion of the violation stopped jaywalking could detain a man suspicion sufficient facts and reasonable necessary to obtain suffi- for the time See, e.g., Walk- permit the limited intrusion. a citation. Id. cient identification issue er, 933 F.2d at 815. check for a warrants Continued detention authority permits an no that There is the officers lacked improper because person, stopped for officer to hold a suspect a warrant grounds to reasonable traffic viola- a minor tha[n] other reason outstanding. at 91. might be Id. tion, period of time for an extended in his testi Ritter admitted Officer an arrest investigate whether order to mony no time the first or that at for the motorist has been issued warrant any articu- possess did he second encounters suspicion articulable without to create a reasonable lable facts sufficient any past is wanted for past present criminal conduct. suspicion crime. Terry, 1879. See Doe, 1562, 1579 F.Supp. States v. United function, community caretaker Acting (E.D.Tex.1992). inquire stopped Wilson to Officer Ritter safety. A and ensure his of law is about his condition no observed violation When completing a purpose required to run a seizure for intrusion present, imper- cheek was and local warrants requires reasonable NCIC check NCIC or warrants

225 Luckett, suspicion a matter of 484 justify missible as law. of criminal conduct to 91; Doe, F.Supp. seizure of F.2d at 801 at 1579. With Wilson. requisite justification out the for the seizure society crime, In protec- a burdened inception, at its Wilson’s Fourth and Four requires tion of individual liberties difficult rights teenth Amendment were violated. See choices. All of us freely want to be able to Illinois, 85, 92-93, 96, 100 Ybarra v. U.S. walk the streets of our cities and towns. (1979). 338, 343, 345, S.Ct. 62 L.Ed.2d 238 While we cannot and should not tolerate lawlessness, crime and equally we cannot Hypothetically, police officer could have abrogation tolerate the of basic liberties. possessed suspicions reasonable at the time seizure, Permitting a without reasonable sus- point, Wilson was seized. At that an officer picion behavior, complete of criminal burning would have known that a fire was computerized police identification check of a the area. The of location the fire was represents “contact” an unreasonable intru- one block from where Wilson had been ob- sion on basic liberties. traveling served. The direction Wilson was purpose exclusionary “The rule is to away from the location of the fire. The police deter Michigan unlawful action.” reported shortly fire was after Wilson would DeFillippo, 443 U.S. 38 n. have been near the scene. Initial observa- (1979). 2633 n. suggested deliberately tions of the fire it was applied rule has been to invalid seizures for difficulty experienced set. The walk- police warrants checks. When a officer ing suggests a rational inference that he stopped young standing two men on a side any could significant not have traveled dis- any suspicion, walk without other than their injuring tance after himself. A brief investi- behavior, State, nervous the court in Hill v. gatory upon detention based these reason- Ga.App. 230 S.E.2d suspicions may able permissible. have been improper determined an seizure occurred during the time the men were detained for a However, guar Fourth Amendment result, NCIC check. As a evidence obtained require police possess antees a reason seizure, confession, including from the suspicion possible able criminal behavior suppressed. ordered Id. at 338-39. In permitted. a limited Terry, seizure is before Luckett, required 484 F.2d at the court 392 U.S. at at 1883. Reasonable suppression money of the counterfeit orders suspicion requires presence specific following improper seized detention for a and articulable facts and rational inferences Appeals warrants check. The Court of part on the conducting of the officer State, Maryland in Ott v. 325 Md. Werking, seizure. F.2d 1407. The — 111, 119-22, denied, U.S.-, A.2d cert. court, permit Constitution does not this (1992), L.Ed.2d 219 deter court, any justifica to construct after the fact seizure, illegal mined that an after a war police tions of conduct. The reason is sound. results, produced rants check invalid re guarantees Our constitutional would mean quired suppression of contraband found in a any if produced little search or seizure which search incident to the arrest. justified evidence of criminal conduct was post guarantee Wilson, hoe. The basic illegal complete constitutional seizure of check, of freedom from unreasonable searches and the NCIC and warrants from “bar[s] operates simple seizures premise. physical, tangible from a trial materials obtained ei- warrant, police Prior to the issuance of a ther or as a direct result anof unlaw- States, probable Similarly, must demonstrate Wong cause. ful invasion.” Sun United prior conducting investigatory 471, 485, 407, 416, stop, 371 U.S. possess retrial, must suspicions reasonable of L.Ed.2d 441 On the district words, criminal behavior. other the offi court consider whether the doctrine of “justified incep discovery may cer’s action must be apply portions at its inevitable evidence; Terry, tion.” specifically, oily U.S. 88 S.Ct. at 1879. the tainted testimony simply Officer Ritter’s fails to dis shirt or stained the burned shoe discovered Williams, any close that he had formulated on Wilson. Nix v. 467 law, clearly (1984), it is as a matter but 2501, cert. conclusion L.Ed.2d 377 104 S.Ct. finding of fact. The reaching a different denied, 105 S.Ct. 471 U.S. justify applied to this resolu- (1985). pertinent cases L.Ed.2d distinguishable, and the result are tion those cases would lead from what different IV. CONCLUSION expect. to one Casper in accord with Ritter acted Officer running policy in a NCIC Department Police proper the majority opinion sets forth subject he check on a local warrants determining police-citizen a when test for early during the in “contact” with came the Fourth a seizure under encounter is However, in this applied as morning hours. which is: Amendment case, impermissible in an policy the resulted person that a has been We conclude rights of a on the constitutional intrusion meaning of the Fourth within the “seized” for the sole occurred citizen when a seizure if, in all of the view of Amendment cheek. completing the warrants purpose of incident, surrounding the circumstances and the not free to leave The citizen was have believed person would reasonable any suspicion of lacked reasonable officer Examples of he not free to leave. that was justify past criminal conduct to present or might indicate a sei- circumstances that to com- The seizure of Wilson the detention. zure, person not at- the did even where illegal; check was there- plete the warrants leave, threatening tempt to would be the fore, finding of the district court that officers, display of presence of several clearly erroneous. illegality occurred officer, physical weapon by an some deny to of the district court The decision citizen, or the touching person case is re- suppression is reversed and this indicating language tone of voice use of without the tainted evi- manded for retrial compliance with the officer’s dence. Ohio, compelled. Terry v. might be See S.Ct., U.S.,] 16[, at supra, n. [392 CARDINE, JJ., filed THOMAS York, 16]; Dunaway v. New n. dissenting opinions. 6[, 200, 207, and n. 824]; LaFave, 60 L.Ed.2d W. THOMAS, Justice, dissenting. (1978). In the 53-55 Search and Seizure majority opinion I must dissent from evidence, otherwise absence of some such light In of our recent decision this case. a member of inoffensive contact between State, (Wyo.1993), 854 P.2d 688 Collins cannot, public as a mat- and the precedent from the Court and the law, to a seizure of that ter of amount appli- and other courts of the United States person. area, I the offi- in this must conclude cable Mendenhall, 446 U.S. United States respect conduct with cer’s 1870, 1877, 554-55, 64 L.Ed.2d circumstances, and there these denied, 908, 100 reh’g 448 U.S. would invoke Fourth was no seizure which (footnote omitted). L.Ed.2d 1138 concerns. Amendment examples recited in Menden- None of the question in this case is whether 554-55, hall, 100 S.Ct. at question of fact 446 U.S. That is a seizure occurred. fact, a careful notes, emerge from this record. majority and the decision of the as majority reading relies appeal of other cases to be disturbed on trial court is not Furthermore, conclusion that upon leads to an ineluctable clearly unless it is erroneous. correctly decided the issue. the trial court majority recognizes our commitment guidance with re- also furnish viewed These cases that the evidence is the view objective espoused spect to the standard district court’s light most favorable Supreme Court of the United States. Contrary to the determina- determination. D., court, however, majority v. Hodari tion of the trial California Nothing occur in this case. It finds a seizure did to demonstrate justify can be found this record majority endeavors to its appears the anyhow, any illegality ever occurred. But I find no on the seizure of Wilson’s part of I the arrest and don’t think he was The contact between the officer and Wilson under arrest at the time the statements beyond the elicitation of never went Wilson’s I were taken and don’t think it un- was voluntary cooperation so as to become a sei- reasonable. by any objectivity. zure if measured sort of fact, stops As a matter of he him and upon majori- in Two of the cases relied away then notices the fire and walks leav- way objective ty opinion point to an ing him unattended. of whether a seizure has occurred resolution I nothing wrong deny find I’ll with it. circumstances, case,

when the as in this re- suppress. the motion to equivocal light main of the Mendenhall objective, If the test is indeed then this Coggins, standard. In both United States invoking any court should refrain from sub- (3rd Cir.1993), 986 F.2d 651 and United jective If objective factors. we maintain an (4th Wilson, Cir.1991), 953 F.2d 116 States however, posture, qualita- this contact cannot subject request made to leave and tively distinguished from what occurred contact. discontinue the Such to Collins, adopted Collins. we the three- objective an leave serves as manifestation approach police-citizen tier to encounters. longer that the contact no is consensual. (5th Berry, See United States v. 670 F.2d 583 respect any This record is with to silent such Cir.1982). The first tier is communication majority request Wilson. The finds the police between and citizens that involves no events, encounter is divisible into two and the and, thus, coercion or detention does not lead Wilson, initial encounter ended because when any implication to of Fourth Amendment unattended, left felt free to It leave. even case, protection. In this advice of outstand- “[ejither notes, disregarded Wilson ing Up warrants came within ten minutes. authority sufficiently officer’s show of or felt time, until that there was no unlawful seizure because, unattended, to free leave when left implicating of Wilson Fourth Amendment limped away he from the immediate area encounter, rights. clearly This is a first-tier questioning Op. where the had occurred.” concedes, majority as the in a caretaker func- apparent, 223. It is because of the interven- tion which is valid under Collins. The officer situation, ing emergency the entire encounter asked for Wilson’s name and identification event, nothing present was one is in the which Wilson furnished. Then the officer record to demonstrate Wilson did not feel requested an NCIC and local warrants check equally free to leave at all times on Wilson. until encounter he was arrested on the out- time, smoke, standing warrants. At that the officer smelled motorcycles stopped and two individuals on In this case the factual resolution of the report to a fire. The officer went to check experienced judge able and trial is correct the fire asked Wilson to remain in the judge and sustainable. The said: and, later, area. Wilson wandered around going deny ap- I’m the motion. It the officer returned to check on him. After pears entirely to me that the officer was street, helping him across the the officer told his effort to determine Wilson to wait on the street comer. The fact whether the man hurt was and what his complied coop- Wilson does not eliminate his situation was. Nothing eration. indicates he did not still problem

I no see with the arrest or the feel free to if leave he chose. feeling of the substance. Until the officer received advice of the Carolina,

According to outstanding Lanier v. South warrants for and then Wilson him, clearly [474 U.S. 88 L.Ed.2d arrested con- 23] encounter case, sensual, they say clearly quite authority the 1985 even under the cited arrest, assuming illegal majority opinion. testify even there Wilson did not even stop suppress subjective reason to or to a confession as to his state of mind at the given prop- hearing suppress. that was after the on the motion to erly pursued “Mirandized”. officer testified he would not have oring because he to discover academic technicalities if he had chosen to leave not justify reversing him if Wilson did had no reason detain criminal convictions. While court has sub- majority failing of this majority apology consent. offers an subjective rationale this instance, its own stituted property the victim’s in this protect subjective of either the for the intent case more that a balance is I will feel confident police officer or Wilson. being drawn when academic technicalities invoked in favor of the innocent victim are Collins, from reach a result To different my judg- equally with the In miscreant. factually as perceive must two cases one the ment, protection distinction, invocation of Constitutional distinguishable. Any factual reversing however, justify conviction sim- usurp the Wilson’s present only is when we society, ques- ply demonstrates victimization of our prerogative of the trial court to decide society. has occurred protection of fact. It is obvious that than tions rather of our majority advances its in this instance. The American bench to understand The needs subjective it would have conclusion as to how premise protect- that its invocation of the of officer, the from the understood direction rights reversing in crimi- ing Constitutional objective presented to rather than the facts nal convictions has contributed to the devel- judge when concluded no seizure the trial he society opment of a in which violence stalks occurred. permeates neighbor- and fear our our streets occurring simulta- events were Several Every tightens that the hoods. decision detected, neously. A fire was and the officer cuffs which we shackle our law enforce- with reporting his the had to devote attention to evolution. ment officers contributes to such assisting traffic. fire and with direction of applies must remember rule to serial We this According of the majority to the statement multiple inept rapists killers and as well as to facts, the first at 12:31 a.m. contact occurred prop- firebugs simply who are a nuisance to outstanding advice was The warrants were erty, until someone dies in the fire. The Laying given to the officer 12:41 a.m. Franklin, by Benjamin wisdom reflected with any question the there was aside whether Herbert, acknowledgment to in George the leave, upon an constraint Wilson’s freedom prefixed to Almanac Maxims Poor Richard’s minutes, elapsed period of ten which repeating: bears attention to the fire the officer’s was devoted direction, and traffic is not unreasonable. neglect may A little mischief: for breed reveals, minutes, The record ten Wil- of the lost; a nail want of the shoe was for want presence in son was the of the officer less lost; a shoe the horse for want of a of was three minutes. than the rider horse was lost. majority initial encounter The concedes the my position I cannot better than to state entirely proper and the officer’s quote from earlier dissent: per- for Wilson’s name and identification was majority the officer missible. concedes agree majority ap- I that the While impose any did not restriction on Wilson’s proach application is not an of accurate freedom to leave the warrants check while requirements, I have a constitutional also absolutely being instituted. There is deep philosophical difference with what the distinguish nothing to the further direction My analysis has done. deci- court of this by after helping the officer Wilson across upon premise sion is based that “stay from the first in the street direction application principles of constitutional area,” recognize unless we it have been in not an end itself but a means to an end. keep way important of the of Wilson out Invoking principles as an constitutional responding fire trucks to the fire. purely approach. in is a end itself academic however, principles, Those evolved out of a assuming proper assisting our of in role promote well-being desire to protection rights of the citizens of to secure Wyoming persons fledgling to be and citizens of nation and secure their property, this court not follow the for each of them those ideals articulated should permissive Independence: more lead of tribunals endeav- the Declaration “ * * * [T]hey helpful resolving are endowed their question in this case. Rights, certain question Creator with unalienable in the Tenth Circuit eases was Life, among Liberty these are length the reasonableness of the of the de- pursuit Happiness. That to se- tention after a accomplished. seizure was rights, Here, cure these Governments are in- question is whether there was a Men, just among deriving stituted their seizure. powers gov- from the consent of the persuaded I am no seizure occurred until * * erned, Wilson was arrested because of the outstand- light It inis of these claims that I so, ing warrants. Even Wilson made a vol- Handler, Jurisprudence borrow from untary being statement after incarcerated on Justice, Prudential 16 Seton Hall L.Rev. proper the warrants. He received advice (1986), statement, this somewhat respect rights. with to his constitutional His out of context: implicated statement him in starting “ n * * Indeed, as a constituent and vi and, view, my the fire sufficiently it was part representative tal democratic any possible attenuated from influence from government, judiciary high must be complained the seizure of that Wilson’s state- ly feelings attuned to the needs and clearly ment was admissible at trial. Given citizens; acutely its it should be aware of that, the statement he made to the officer at public’s perception general of its import the scene could not have had much in performance, particular as well as its jury. front of the short, judiciary decisions. In cannot majority opinion The ques- creates more be oblivious to the reactions that its own Nothing tions than it answers. will serve the engendered actions have or the effects judge in determining how he erred or how to adjudications that its have created with decide in similar issues the future. It stands society in the it serves.” adjudication, as an in advising terrorem our State, Harvey v. (Wyo.1989) 774 P.2d they trial bench that must be careful to J., (Thomas, dissenting). accused, protect rights of the but it fails my judgment, question the real to be to offer Consequently, definitive criteria. no addressed in this going case is: What was on advanced, standard is and skillful defense wrong? that was The obvious answer is it always say counsel will be sure to their case wrong for Wilson to set fire to another State, just like Wilson v. 874 P.2d 215 citizen’s garage-workshop. im- Wilson then (Wyo.1994). Unfortunately, they proba- will plicated voluntary in himself a statement bly intimidating judge succeed the trial interrogation following made at an his arrest making unnecessarily into some lenient rul- upon entirely separate warrant for viola- ing. tion. The conclusion conviction Wilson’s Furthermore, guidance is offered with upheld should not be because of an academic respect scope ruling to the’ as to the supposed wrongful fascination with the con- following evidence obtained Wilson’s arrest. duct of the officer does not serve the implicit It seems concerning the evidence interests of the Wyoming citizens of and stain on Wilson’s shirt and the burn marks property rights, their which are not constitu- tainted, on his sneakers is considered even tionally rights subordinated to the of their though the latter information was obtained persons. following a specific ruling lawful arrest. No majority cites several cases from the respect is made with to Wilson’s admission Appeals United States Court of for the Tenth although it was attacked the motion to articulating proposition Circuit that an suppress. When a conviction is reversed and making officer stop traffic remanded, the case trial court is entitled registration, driver’s license and run an guidance proceed. concrete as to how to computer NCIC cheek if to determine valid,

vehicle is stolen and the license is I am this satisfied conviction should be cases, issue a citation. Those which a affirmed. The unreasonable factor implicit stop, seizure was in the initial are not this scenario is the decision court. this I would the order of the district Fourth affirm did not invoke his seizure Wilson’s court. vigorously I most dis- rights. Amendment

sent. Justice,

CARDINE, dissenting. suppress a motion trial court denied testimony of hearing the witnesses

after appellant. presentations State and denying I the trial court’s order would affirm Unlimited, FORD, Fireworks Vince d/b/a the motion. (Defendant), Appellant stop appellant the initial agree that We up asking to the officer and all that occurred FIREWORKS, INC., STARR corner re- him to at a street until he wait (Plaintiff). Appellee appropriate and The ma- turned was lawful. No. 93-124. asking appellant

jority court finds minutes, wait, out to be what turned ten Wyoming. Court seizure violation of consti- an unlawful May 1994. guarantees against searches tutional unlawful and seizures. what

The bare bones of occurred here was appellant limping the officer noticed street, thought he in-

down the had been

jured, help if he could him. He and asked I.D., accepted is an

asked for which standard produced

procedure. Appellant his driver’s The officer called for an NCIC

license.

report awaiting response. and was He was directing

also involved with traffic the area set a fire which had been an arsonist. await I appellant

He asked his return.

cannot see much difference between what accept-

occurred here and the usual course of activity.

ed law enforcement appellant’s that the

It was claimed brief police department practice has

Casper citizens, stops interrogation

random approve prac- I not

investigation. would

tice, not what is in this but that is involved

case. there was real evidence that a crime

Here (arson).

may have been committed The fire

department police had been called to the put

scene. Efforts to out fire and inves-

tigate ongoing. Request the cause were present

identification from those at the scene receive

and brief detention to a further re-

port guar- are not violations of constitutional

antees.

Case Details

Case Name: Wilson v. State

Court Name: Wyoming Supreme Court

Date Published: Apr 18, 1994

Citation: 874 P.2d 215

Docket Number: 92-111

Court Abbreviation: Wyo.