### IN THE SUPREME COURT, STATE OF WYOMING

20 2 1 WY 63

APRIL TERM , A.D. 202 1

May 6, 2021

WILLIAM THOMAS MAHAFFY V,

Appellant (Defendant),

v.

THE STATE OF WYOMING,

Appellee (Plaintiff). S

- 20

- 0191

A

ppeal from the D istrict Court of Campbell Co u n t y Th e Ho nora ble John R. Perry , Judge

Representing Appellan t : Office of the Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel

. Argument by Mr. Morgan.

R epre senting App elle e : Bridget L. H ill , Attorney G en eral; Jenny L

. Craig , Dep uty Attorney General;

J

oshua C . Eames , Senior Ass istant Attorney General ; Timothy P. Zintak , Assistant Attorney General. Arg ument by Mr. Zintak.

Befo re DAVI S, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

F

OX , J., delivers the opinion of the Court; BOOMGAARDEN , J., files a dissenting

op inion, in which KAUTZ

, J., joins

.

NOTICE: This opin ion is subject to for mal revi sion before pu blication in Paci fi c Reporter T hi rd. Rea ders

are requested to notify the Clerk of the Sup reme C ou rt, Supreme Court Building, Cheyenne, Wyomin g 82002, of any typographical or other formal errors so that correction may be made befo re f inal pub lication in

th e permanent volum e.1 FOX

, Justice

.

[¶1] William Mahaffy entered a conditional plea to methamphetamine possession and child endangerment after the district court denied his motion to suppress evidence

obtained at the end of a traffic stop. He now appeals, arguing the traffic stop was unlawfully extended before a drug dog alerted . The State contends Mr. M ahaffy has changed horses and therefore waived the “new” argument he makes on appeal. In the alternative, the Stat e argues the stop was not unlawfully extended. We decline the State’s invitation to parse the issue on appeal, we conclude t he stop was unl a wfully extended after its initial purpose had been resolved, and we reverse and remand.

ISSUES

1. Did Mr. Maha ffy waive his right to appeal the district

court’s denial of his motion to suppress when he raised the

issue of the unlawful extension of the stop while emphasizing one portion of the discussion and merely mention ing the portion he relies upon on appe al ?

2. Was the stop unlawfully extended in violation of the

Fourth Amendment when the initial reason for the stop had been resolved by the time t he drug dog alerted?

FACTS

[¶2] Mr. Mahaffy was the passenger in a car driven by his wife when he threw a lit

c igare tte out the car window in front of Campbell County Sheriff ’ s Dep uty Joshua Knittel’s patrol car. Deputy Kni ttel activated his body camera, t urned on his overhead lights

, and pulled the car over. Deput y Kni ttel approached the driver’s side of the car, explained t he reason for the stop, and obtained the car registration, proof of insurance,

and Mr. and Mrs. Mahaffy’s driver’s license s

. Becaus e the driver a ppear ed ve ry nervous, Deputy Knittel called for a drug dog on his w ay back to his car. He then proceeded to

write the citation fo r the burning cigarette. While he was completing the citation, another deputy and a K

- 9 handler arrived.

[¶3] Abo u t twelve minutes into the stop, the other deputy asked Mr. Mahaffy to get out of the car and accompanied him to the front of De puty Knittel’s patrol car. E leven

seconds later

, Deputy Knittel completed the citatio n and aske d Mr. M ahaffy

, “Is there a

reaso n you guys are so nervous while I’m talking to you ?” That discussion lasted approximately thirty seconds. D e puty Knittel then proceeded to explain the citation. At

thirteen minutes, fourteen seconds, the body cam era s hows the dog handler walk behind

Mr. Mahaffy and nod. Deputy Knittel testified:2 Q: [ D ] id you receive the information of the indication while yo u were still explaining the citation to Mr. Mahaffy?

A: Y es. I believe, if I reca ll correctly, I’d look ed at the

P D officer, because he had stopp e d walking around the vehicle, and I believe he nodded in my direction, informing

me there was an indication.

[¶4] Twenty

- three seconds later, Deputy Knittel completed his explanati on and began

to inquire abou t dru gs in the car

. The entire extension of the s top, from the time Deputy Knittel finished writing the citation to the time he began questioning about drugs, took approximately one and a half minutes.

[¶5] The of ficers searched the car a nd found methamphetamine and a pi pe. The State charged Mr. Mahaffy w ith two counts child endangerment (the Mahaffys’ two children

were in the back of the ca r ) and one count methamphetamine possession. He moved to suppress “all evidence collected by law e nforc ement as [ a ] result of [the] traffic stop.”

The district court denied the motion after a hearing, and Mr. Mahaffy entered a

con dit ional guilty plea , reserving the right to seek review of the order on his motion t o

suppress.

[¶6] Mr. Mahaffy timely appealed, arguing the duration of the stop was improperly

extended in vi o lation of the Fourth Amendment. The State contends Mr. Mahaffy raises

a new argu ment on appeal that is wai ved because it was not raise d bel ow and, in the alternative, that Deputy Knittel’s questioning did not unreasonably prolong the stop.

DISCUSSION

[¶7] We first address the State’s contention that Mr. Mahaffy waived the argument he

now make s on appeal, and then turn to the constitutionality of the stop’s duration.

I. Mr. Mahaffy Did Not Waive His Right to Appeal the District Cou rt’s Denial of

His Motion t o Suppress When He Raised the Issue of the Unlawful Extensi on of the Stop While Emp hasiz ing One Portion of the Discussion and Merely

Mention ing the Portion He Relie s Upon o n Appeal

A. Standard of Review

[¶8] The record here is clea r a nd the facts giving rise to waiver are undisputed , so we apply a de novo standard of review

. M ills v. State

, 2020 WY 14, ¶ 13, 458 P.3d 1, 7 (Wyo. 2020)

.3 B. Waiver

[¶9] The State contends Mr. Mahaffy waived his argument on appeal because in his motion to sup pre ss , and at the argument on t he motion

, he asserted that the duration of the stop was improperly extend ed because of the time De puty Knittel spent explaining

the citation ; while on appeal

, he a rgues that the questions regarding nervousness caused

the off end ing extension of the stop

. I t urge s this Court to dissect t he arguments below for the precise words that it conten d s are ne cessary to pres erve argument on each s egment of the stop’s extension.

[¶10] A guilty plea “waives appellate review of all non

- jurisd ict ional claims,” except for

t h ose preserved under W.R.Cr.P. 1 1(a)(2), “which ‘allows a defendant to plead guilty

whil e reservi ng the right to seek review on appeal of any specified pretrial motio n.’”

Ward v. State , 2015 WY 10, ¶ 15, 341 P.3d 408, 411 (Wy o. 2015) (citation s omitted)

. “[A]n appellant’s argument is limited to those issu es clearly brought to the district court’s

attention.” Brown v. State , 2019 WY 42, ¶ 12 , 439 P.3d 726, 730

- 31 (Wyo. 2019) (citation omitted)

. In additi on to our specific ru les governing conditional plea s , we adhere to the general rule limiting appellate issues to those rai sed below because “[ i ]t is unfair to reverse a ruling of a trial court for reaso ns that were not presented to it, whether it be legal theories or issues ne ver formally raised in the ple a dings nor a rgued to the trial

court .” Smith v. State , 2021 WY 28, ¶ 4 9, 480 P.3d 532, 543 (Wyo. 2021) (quoting Four B Prop s

., LLC v. N ature Conservan cy , 2020 WY 24, ¶ 69, 458 P.3d 832, 849 (Wyo. 2020)). It is even less fair to deprive an appellant of a l egitimate c onstitutional argument by applying an overly technical waiver analys i s. That is why we give the appellant the

benefit of the d oubt, and “read any ambiguity in the conditional plea agreeme nt ‘against

the Government an d in favor of a defendant’s appellate righ ts.’” Brown , 2019 WY 42, ¶ 13, 439 P.3d at 731 (quoting U. S. v. Anderson , 374 F.3d 955, 957 (10 th Cir. 2004)).

[¶11] Mr. Mahaffy’s motion to suppress is only three pages, but it serves its purpose

— to
advise the State and the district court of t he factual bas is and the law upon which he

relies

. The motion contains the general statement “that law enforcement may not prolong a traffic stop wi th a drug sniffing dog beyond the purposes of the tra ffic sto p absent

reasonable suspicion,” ci ting Mills

, 2020 WY 14, 458 P.3d 1

, and Rodriguez v. U.S. , 575 U.S. 348, 135 S.Ct. 1609, 191 L .Ed.2d 492 (2015); 1 and it states

, “The subsequ ent drug investigation . . . wasn’t lawful once the citation was complete d.” At t he hearing on the motion to suppress, Mr. Ma h affy’s counsel further expanded the scope of the issue :

1 Rod riguez is the semin al c ase that establishes “ A seizure justif ied only by a police

- observed traffic

v iolation, therefore, ‘ b ecome[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission ’ of issuing a ti cket for the viola tion.” 575 U.S. at 350

- 51, 135 S. Ct. at 1612 (alterations in original) (citation omitted).4 The issue h ere today would be the mission of the

traffic stop in this case, and I would submit to the Court that,

per the testimon y of De puty Knitt [el]

, the traffic stop ’ s mission was to rectify a n d determine why this lit substance, cigarette was thrown out the windo w and to properly address

that issue, and he had explained to you that there was some general nervousness exhibited by the dri ver of the vehi cle [.]

Counsel c oncluded:

And I would subm i t to the Court that there is no suspicion

related to the search in thi s particular case as to my clie nt and,

theref ore, it was

. . . an unlawful extension of the traffic stop

b

y using a dru g dog s niff to extend it in order to ac complish a further investig a tion that, under the terms of these two cases, is unlawful on the part of the Campbell County

Sheriff ’ s Office.

(Emphasis added .)

[¶12] In its decision letter denying the motion to suppre ss, the d istrict c ou rt recognized

“ During his initial contact with the v e hicle occupants, Deputy Knittel observed that the driver, Raina Mahaffy, appe ared very nervous with shaking hands.” The court began its discussion by f raming the issue: “In Defe ndant’s Motion to Suppress Evidence , he argues the purpose of the traffic sto p was concluded once Deputy Knittel had finished prep aring the citation for throwing a burning sub stance fro m a vehicle.” It went on to discuss the

ti me required to expla in the citation , in light of our decision in Mills , 2020 WY 14, 458 P.3d 1, and the t i me spent on the explanation is certainly the primary aspect of the court’s

discussion as well as Mr . Mahaffy’s. But the decision letter goes on to re cognize :

He [Deputy Knittel] also asked Defendant why Defendant

and his wife were so nervous. Mr. Mahaf f y stated he and his wife had had an argument about driving shortly before t he

traffic sto p. This c onversation between Deputy Knittel and

Mr. Ma haffy took approximately o ne and a half m inutes, and

the canine free

- air sniff required only a fraction of that time.

The district court was refe rring to the conversatio n after Deputy Knittel f inished preparing the citation, including bot h the nervousness question s and the citat ion explanation. The one

- and

- a

- half

- minute extension of the stop after Deputy Knitte l had finished writing the cit ation is the issue that was cle arly brought t o the cour t’s attention,

and the issue the court addres sed in its decision letter

.5 [¶13] This is not a case like Workman v. State , 2019 WY 128, 454 P.3d 162 (Wyo. 2019)

. T here

, we held th a t a conditional plea, which p reserved a motion to suppress t hat challenged a warrantless search, did not preserve an entirely new issue that t he appellant attempted t o raise on appe al, the alleged misrepresent ations in the affidavit for the search

warrant. Id. at ¶ ¶ 13, 19, 454 P.3d at 166

- 67. In Kunselman v. State , 2008 WY 85, ¶ 12,

188 P.3d 567, 570 (Wyo. 2008 ), we held that the appellant could not argue on appeal that the stop w as not justified at its ince ption because she had only “ focused on the scope and

dura t ion of the stop and the subse quent search of her purse” in h er motion to s uppress and the suppression hearing. In Lindsay v. Sta te , 20 05 WY 34, ¶ 19 n.7, 108 P.3d 852, 8 57 n.7 (Wyo. 2005)

, we declined to consider appellant’s challenge to the reasonablene s s of the initial stop when ap pellant only challenged the rea sonableness of the further detention

before the district court. See also R obinson v. S tate , 20 19 WY 125, ¶¶ 1 8, 19, 454 P.3d 149, 156 (Wyo. 2019) (appellant raised the absence of reasonable susp i cion and the

extension of the duration of the stop in his mo tion to suppre ss; Court declined to consider his argument on appeal c hallen ging the ini tial pur suit) ; 3 Wayne R. LaFave et al.

, Crim inal Proc edure § 10.1(b)

, at n.20, Form of the motion (4th ed.)

, Westlaw (dat abase updated De c. 2020) . We have generally re jected argumen ts on appeal that present issues

or theories not raised below, but we reject atte mpts to dissect the issue in an analytical

exe rcise that does not advance fairness to the district c o urt or to the appellant.

[¶14] I n Brown , th e appellant had filed a motion to sup press that alleged the scope of the stop was imprope rly extended without reasonab le suspicion

. Brown , 2019 WY 42, ¶ 14,

439 P.3d at 731 . On appeal, Mr. Brown argued the scope o f the stop was unreasonably

ex tended both at approximately the s even

- minute ma rk, when the deputy returned his identification, and at approximately the nine

- mi nute mark, w hen Mr. Brown revoked his

conse nt and asked to leave. Id. at ¶ 15, 439 P.3d at 731

. We acknowledged that the focu s of the arg ument at the suppressi on hearing was on the extension beyond nine minutes, but we reject ed the State’s contention tha t the argume nt arising at seven minutes was waived. We said the district court did not specifica l ly determine when the traffic stop was

co mpleted

, and we conclu ded

, “Mr. Brown ’s general allegation that [the officer] unlawfully expanded the scope of the sto p without re asonable articulable suspicion h as not changed.” Id. The same rationale applies to Mr. Mahaffy’s case. The issue he raised

b elow was the extension of the stop a fter Deputy Knittel had completed the citation. Hi s counsel may have emphasized the argument on the explanation of the citat ion, but the nervousness questions were raised at th e suppression hearing, they wer e addressed by the court, and, jus t as in Brown

, they fall under the general allegation that the sc ope of the stop was unlawfully extended. Further, as in Brown , “this is n ot a case in which the record is undeveloped, thus p r ecluding our review.” Id. at ¶ 17, 439 P. 3d at 731 (citations omitted) . The eviden ce at the hear ing, including Deputy Knittel’s body camera video, encompassed the entire stop.

[¶15] In Rodrigu ez v. State , 2019 WY 25, ¶ 37, 43 5 P.3d 399, 410 (Wyo. 2019), w e embraced the rule that “ failure to file a W.R.Cr.P . 12(b)(3)

- r equired motion bars6 ap pellate review of . . . suppression questions

, ” absent a showing of good cause

. In Rodriguez

, however, the defendant did not file a motion to s uppress. Id. at ¶ 23 , 435 P .3d

at 405

. Now

, t he State would have us tak e waiver into a new realm by barring , not just appellate argument on a n issue never raised , but also argument on sp ecific facts within an

issue. We decline to do so because the job of the judiciary is to apply the rule of law to dispense justice, not to seek w ays to bar the door to the cour ts. Wyo. Const. a rt. 1, § 8.

II. The S to

p was U nlawfully E xtended in V iolation of the Fourth Amendment

W hen the I nitial R e ason for the S top H ad B een R esolved by th e T ime the D rug
D og A lerted

A. S tandard of R eview

[¶16] We adopt a district court’s factual finding s on a motion to suppress unless they ar e clearly erroneous. Kern v. State , 20 20 WY 60, ¶ 6, 463 P.3d 158, 160 (Wyo. 2020 )

. “The ultimate q uestion of whether the searc h or s eizure was legally justified, however, is a question of law we review de novo.” Id. ( quoting Brown , 2019 W Y 42, ¶ 10, 43 9 P.3d

at 730 )

.

B. Extension of the S to p

[¶17] The Fourth Amendment to the United State s Constitution proh ibits “un reasonable

searches and s eizures.” U.S. Const. amend. IV. Because “[a] traffic stop for a suspected

viol ation of law is a ‘seizure ’ of the occup ants of the vehicle[,]” a law enforceme nt
officer must conduct it “in accordance w ith the Fourth Amen dment.” Pier v. State , 2019

WY 3

, ¶ 16, 432 P.3d 890, 896 (Wyo. 2019) (citation s omitted).

[¶18] W e apply the two

- part inquiry from Terry v. Ohio , 392 U.S. 1, 19

- 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968) t o determine whether a traffic s top and resulting

s eizure wa s reasonable : “(1) wheth e r the initial stop was justified; and (2) whether the officer’s actions during th e detention were reasonabl y related in s cope to the circumstances that justifie d t he interference in the first instance.” Pier , 2019 WY 3, ¶ 17, 432 P.3d at 896 ( citation s o m itted). Mr. Mahaffy does not dispute the initial traffic stop was justified; he focuse s on the second part of the Terry test.

[¶19] “The second part of the Terry inquiry i s the reasonableness o f the detention.”

Pier , 2019 WY 3, ¶ 19, 432 P.3d at 897 (citat i on omitted). The “investiga tive detention

must be tem porary, lastin g no longer than necessary to effectuat e the purpose of the stop,

an d the scope of the detention must be carefully tailored to its under lying justification.”

Brown

, 2019 WY 42, ¶ 20, 439 P.3d at 732 (citation omitte d). “During a routine tra ffic
stop, an officer may request a driver’s license, proof of insurance, and vehicle registra ti on, run a computer check, and issue a citation or warning.” Id. ( citation omitted). The driver and vehi c le may only be detained for the “time reasonably7 neces sary to comple te these routine matters.” Id. (citati on s omitted). When “the initial

reason fo r [the] stop has bee n resolved,” the officer needs “specific, articu lable facts and rational inferences gi v ing rise to reasonable suspi cion that another crime ha s been or is

b eing committed to justify a continued d etention.” Id. (citations omitted). Mr. M ahaffy

concedes the Fourth Amendment does not prohibit use of a dr ug dog so long as it does

not extend th e duration of the stop, citin g Wallace v. State , 2009 W Y 152, ¶ 15, 2 21 P.3d 967, 971 (Wyo. 2009), and Illin ois v. Caballes , 543 U.S. 405, 409, 125 S. C t. 834, 838,

160 L. Ed.2d 842 (2005). The State does not contend Deputy Knitt el had reasonabl e suspicio n p rior to learning the do g had alerted. Th us, the question for our resolution is

whether the one

- and

- a

- half minute discu ssion

, after he completed the citation

, was an unconstitutional extension of the stop.

[¶20] On appeal, Mr . Mahaffy discusses only t he cons t itutio nality o f Deputy Knitt el ’s questions re garding nervousness, omitting any mention of Mills and the exp lanation of

the citation. We therefore confine our discussion to that portion of the extension as well.

Mr. Mahaf fy relies on Campbell v. State , 2 0 04 WY 106, 97 P.3d 781 (Wyo. 2004), in

which we held tha t a trooper’s questi on about drugs during a routine traffic stop “wa s unrelated to the purpose of the initial stop

— a possible expired r egistration

— and,

therefor e, was proper only if the trooper had a reasonable art iculable suspicion that Campbell was engag ed in illegal activi ty.” Id. at ¶ 13, 97 P.3d at 785. Because the

trooper had neither reasonable articulable suspicion n or consent , w e reversed the district

c ourt’s denial of Mr. Campbell’ s motion t o suppress. I d. at ¶ 23, 97 P.3d at 787. In

response, the State argues Cam pbell has been superseded by the United States Supreme

Court’s decision s in Arizona v. Johnson , 555 U.S. 323 , 129 S

. C t. 781, 172 L.Ed.2d 694 (2009), and M uehler v. Mena , 544 U.S. 9 3 , 125 S.Ct. 1 465, 161 L.Ed.2d 299 (2005)

, which, the St ate contends, have c larified that “suppression is only warranted where unrelated inquiries measurably extended the stop’s duration.” The State correctly summarizes the holdings in th ose cases, see A r izona

, 555 U.S. at 333, 1 29 S

. Ct. at 788 ( citing Muehler

, 544 U.S. at 100

- 01, 125 S.Ct. at 1471 ) (“ An officer ’ s inquiries into matters unrelated to the justification for the traffic stop, this Cou rt has made plain, d o not
convert the encount er into someth ing other than a lawful seizure, so long as thos e inquir i es do not measurably exte nd the duration of t he stop.”)

. H owever, it too, misses

the mark. We are conce rned here with inquiries that did exten d the duratio n of the stop because they occurred after D e puty Knittel had complete d the citation

, and the initial reason for the stop had been resolved. The Supr eme Court directly and clearly addressed this question in Rodriguez , 575 U.S. at 350

- 51, 135 S

. Ct. at 1612 , where it held

, “ A

seizure j ustified only b y a police

- observed traffic violation, therefor e, ‘ become[ s] unlawful if it is prolonged beyond the time reasonably required to complete th[e]

mission ’ of issuing a ticket for the violati on.” (alterati ons in original) ( quo ting Ca balles

, 543 U.S. at 407, 12 5 S.Ct. at 837 ).

[¶21] The district court apparently based its ruling on its f inding that the extension of the

stop was de mi nimis , when it held the “ conversation b etween Deputy Knittel and8 Mr. Mahaffy to ok approximately one and a half minutes , a nd the canine free

- a ir sniff

requ ired only a fraction of that time.” But t he United States Supreme Court sound ly rejected the argument that a de mini mis extension of a stop is acceptable in Rodriguez

, 575 U.S. at 350

- 53, 135 S.C t. at 1612

- 13

. Deputy Knittel unl awfull y extended the

duration of the tra ffic stop af ter he had completed the citation b y asking unr elate d questions about nervous ness.

[¶22] For these reasons , we conclude Mr. Mahaffy di d not waive his argument th at the
stop was unlawfully extended , and his Fourth A mendment rights we re violated . We reverse and remand for further proceedings consistent with thi s opinion.9 BOOMGAARDEN, Justice, dissenting , in which KAUTZ, Justice, joins

.

[¶ 23 ] “ We have cautioned that although a conditional guilty plea provides a me chanism for appellate review, it does not provide carte blanche permission to present any and all arguments on appeal. ” Brown v. State , 2019 WY 42, ¶ 12, 439 P.3d 726, 730 (Wyo. 2019) (citation omitted). “ Rather, an appellant’s argument is limited to tho se issues clearly brought to the district court’s attention. ” Id. ¶ 12, 439 P.3d at 730

– 31 (citat ion omitted). I respectfully dissent, as I believe the majority opinion undercuts this longstanding rule. It further attributes a ruling to the district cou rt which the court never made when it denied Mr. Mahaffy’s motion to suppress

— that Mr. Mahaffy was not entitled to suppression of the evidence seize d because the extension of the stop was de

minimis

— and which the record simply does not support. By my read ing, the record and existing law command but one conclusion

— Mr. Mahaffy waived the argument he brings forth on appeal by not clearly bringing the issue to the district court’s attention.

[¶ 24 ] Applying the majority opinion ’s analysis, so long as a defenda nt asserts that law enforcement unlawfully , or unreasonably, extended the traffic stop, by, for example, citing to Rodriguez v. United States , 575 U.S. 348, 350

– 51

, 135 S.Ct. 1609, 1612, 191 L.Ed.2d 492 (2015 ) ( “ A seizure justified only by a police

- observe d traffic violation

. . . ‘become [s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the vi o lation .” (citation omitted) ) , he need not clearly identify for the district court the unlawful or unreasonable action(s) or case ( s ) on which

he relies

. In stead

, the “ mere mention ” of law enforcement’s actions during the stop , in

any context, will suffice to preserve his right to argue on appeal that his stop was unreasonably prolonged based on differ ent actions under a different legal analysis than he presented to the district court. For reasons I explain below, this is a n unfortunate departure from our precedent.

[¶ 25 ] The purpose of our longstanding rule as set forth above in Brown is , as the majo rity opinion state s , “ to advise the State and the district court of the factual basis and the law upon which [ the defendant ] relies ” for his motion. Specifying the particular grounds for suppression is a matter of notice to the district court and the pros ecution. See

Brown , ¶ 12, 439 P.3d at 730

- 31 (notice to the court ); Bittleston v. State , 2019 WY 64, ¶ 37 n.9, 442 P.3d 1287, 1296 n.9 (Wyo. 2019) (“[I]t is unfair to the State to rule on a suppression claim first raised on appeal, at a point when the Sta te has no opportunity t o make a record to defend against the claim.” (citation omitted) ) ; 6 Wayne R. LaFave,

Search and Seizure § 11.2(a) ( 6th ed.), Westlaw (database updated Sept. 2020) (“[I]t is commonly required that the motion ‘ must specify with partic ularity the grounds upon

which the motion is based. ’ This burden of raising an issue exists even if, once raised, the burden of proof will be on ‘ the prosecution to disprove the defendant’s contenti ons, ’ and whether defendant’s motion is sufficiently spec ific ‘ d oes not depend on the allocation of the burden of proof. ’” (footnotes omitted) )

. After comparing the argument Mr. Mahaffy presents to us with th e argument he presented to the district court, I must10 disagree with the majority opinion ’s conclusion th at Mr. Maha ffy’s motion serves this

purpose.

[¶ 26 ] In his appellate brief, Mr. Mahaffy asserts :

Deputy Knittel prolonged the stop as he engaged in a colloquy which was devoted to inquir i es having nothing to do

with the issuance of a citation for throw ing a lit cigarette out of the passenger window. Deputy Knittel began a line of questioning pertaining to why Mr. Mahaffy’s wife appeared nervous, and what the two were in an argument over. After this short conversation, the officer then returned to issu ing the citation, and reviewed the options as to how and in what manner Mr. Mahaffy might dispose of the citation. Although

the break in the issuance of the citation and the line of questioning might not have been lengthy, it is unarguable that

it occurre d, that it occurred during the crucial point in the investigation, and that it prolonged the issuance of the citation long enough for Officer Luc [ a ] s to perform the free air [sniff]

.

[¶ 27 ] I n contrast, i n his motion to suppress and at the h e aring on his moti on Mr. Mahaffy quite specifically, albeit erroneously, relied on Mills v. State , 2020 WY 14, 458 P.3d 1 (Wyo. 2020) 2 to argue to the district court that :

According to the recent Mills v. State decision, the traffic stop

should have concluded once Deputy K nittel had completed his traffic citation for littering the cigarette butt.

. . . .

The mission of Deputy Knittel’s traffic stop in this case was the investigation for littering a cigarette butt. His

2 In Mills “[w]e decline[d] to hold that Deputy Borgialli’s purported desire to ‘explain’ the warning citation [to Mr. Mills] after he completed it was related to the p urpose of the traffic stop in these circumstances.” ¶ 28, 458 P.3d at 11. We concluded that unless the deputy had reasonable suspicion of other criminal activity

— an issue we addressed later in the decision

— “the Fourth Amendment obligated Deputy Borgiall i to return Mr. Mills’ documents promptly and allow him to continue on his way.” Id.

Mills did not set a bright

- line rule that a law enforcement officer may never explain a citation to its recipient unless he has reasonable suspicion of other criminal ac t ivity. See id. ¶¶ 21

– 28, 458 P.3d at

9

– 11. We expressly limited our holding to the facts and circumstances presented. See id. ¶ 28, 458 P.3d

at 11.11 investigation into that violation was completed once Mahaffy admitted to the littering, Deputy Knittel received clear returns, and he issue d the written citation. The only reason the stop lasted any longer was that Knittel was arranging to have Dep. Stearns escort Mahaffy out of the car for the purposes of a rather extensive explanation [] on the citation. The subsequent drug investigation of four officers and a K

- 9 wasn’t lawful once the citation was completed. Like in Mills

, in the absence of reasonable [suspicion], the Fourth Amendment obliged Deputy Kn ittel to return Mr. Mahaffy’s documents, including the citation to him and the mother and allowed them to continue on their way. The subsequent dog sniff and subsequent search revealing contraband was an

unlawful extension of the duration of the traffic s top and a violation of [Mahaffy’s] rights.

[¶ 28 ] At the suppression hearing, defense counsel opened by arguing the motion

“ addresses an important issue as to whether an officer can depart from the mission of a traffic stop and engage in

. . . a [free air] sniff of a drug dog[.]” She then cited Rodriguez

v. United States and Mills v. State

. During the hearing neither counsel asked any witness to identify exactly when the dog alerted. No one asked Deputy Knittel why he inquired

about the driver’s hands sh aking or the argument between the Mahaffys

. Accordingly, no

record exists and the dis trict court made no findings on those matters.

[¶ 29 ] In closing, defense counsel argued the officer improperly extended the traffic stop by explaining the citation, whic h required reversal under her reading of Mills

. Counsel appeared to further claim that the drug dog should not have been called because it was the

driver , Mrs. Mahaffy, who was nervous, not Mr. Mahaffy, and that somehow the free air sniff prolonged the st op. Counsel mentioned the driver’s nervousness twice in closing, pointing out only that Mr. Mahaffy was not the one with nervousness. Counsel never

mentioned the nervousness questions and never identified when the purpose of the stop

ended or when the dr ug d og alerted relat ive to those questions

. Those issues were n ever addressed in the suppression hearing. Accordingly, neither Mr. Mahaffy’s motion to suppress nor his argument put the district court or the State on notice that he also relied on Deputy K nittel’s nervousness questions as the reason the traffic stop was unlawfully

extended

.

[¶ 30 ] The district court’s decision letter underpins that Mr. Mahaffy did not put the court

on notice it should rule on whether the nervousnes s questions were improper and thus unreasonably prolonged the stop. See Brown , ¶ 12, 439 P.3d at 730

– 31. Summarizing Mr. Mahaffy’s suppression argument, the court noted he (1) argued the traffic stop’s purpose concluded when Deputy Knittel finished writi ng the citation; (2) argue d the dog sniff and vehicle search were thus “illegal due to the impermissible extension of the12 stop”; and (3) relied on Mills to support his position. T he court therefore discussed Mills

, but found nothing improper about Deputy Knittel explaining the cit ation to Mr. Mahaffy under the circumstances. The decision letter mentioned the deputy’s questions about Mrs. Mahaffy’s nervousness

, as well as Mr. Mahaffy’s response about the couple’s

argument

, only in passing

— nowhere did the district court conclude or even suggest that the extension of the stop was de minimis , as the majority opinion states

.

[¶ 31 ] Mr. Mahaffy’s appellate argument changes the inquiry from whether it was improper for Deputy Knittel to engage in a citation explanation at all under Mills t o whether some of the specific questions Deputy Knittel asked during the explanation were improper because they did not relate to the citation. Mr. Mahaffy has abandoned Mills on appeal and now relies on a completely different case, Campbell v. State , 200 4 WY 106, 97 P.3d 781 (Wyo. 2004). He never cited to or relied on Campbell in the district court.

[¶ 32 ] Moreover, unlike in Brown

, which the majority opinion deems analogous to th is

case, questions of fact and law pertaining to Mr. Mahaffy’s appellate argument were not developed in the district court. For example, had the prosecutor understood he n eeded to develop a record on why Deputy Knittel asked the nervousness questions and precisely how the timing of those questions related to the dog’s alert, a nd had the district court made findings on that issue, we could determine whether the nervousness q uestions were “the type of ‘negligibly burdensome’ inquiries directed at ensuring officer safety” or “were posed as a pretext to ‘facilitate’ a detour into i nvestigating other crimes.” See, e.g.

, United States v. Cortez , 965 F.3d 827, 839

– 40 (10th Cir. 2020)

. Th is Court should not make that determination on an underdeveloped record.

[¶ 33 ] And e ven assuming the nervousness questions were improper, the record is also underdeveloped on precisely when the dog alerted relative to Deputy Knittel asking the nervousness questions. Deputy Knittel testified the dog alerted

— a fact Mr. Mahaffy has never disputed

— but the deputy did not identify precisely when that occurred, and Officer Lucas did not testify at the suppression hearing. The majority opinion suggests the dog

alerted 13 : 14 minutes in to the stop, well after Deputy Knittel asked the first nervousness question

, see supra ¶ 3

. But the record and law present a much closer question

.

[¶ 34 ] Deputy Knittel’s body camera captured some of what Officer Lucas and the dog were doing during the citation explanation from 12:00 to 12:25 minutes into the stop . We

can discern that the dog probably alerted while Officer Luca s walked him along the

passen ger side of the car because, on reaching the front, they veered out and away from the car; Officer Lucas never walked the dog along the driver side of the car. Later in the video, while searching the car, Deputy Knittel and Of ficer Lucas briefly discussed the fact that the dog alerted almost immediately. However, Officer Lucas walked the dog along the passenger side of the car so close in time to when Deputy Knittel asked the first nervousness question approximately 12:20 minu tes into the stop that it is not possible to13 determine with certainty whether the dog alerted before Deputy Knittel began questioning Mr. Mahaffy about nervousness.

[¶ 35 ] The timing of the dog alert leads to more unanswered questions

. For example,

d oes it matter whether Deputy Knittel knew the dog alerted before he asked the first nervousness question? If so, when did Deputy Knittel first know the dog alerted? If he did not know the dog alerted before he asked the first nervousness question, is tha t
d ispositive? Or could Officer Lucas’ knowledge of the dog alert be imputed to Deputy Knittel under the collective knowledge doctrine? See United States v. Shareef , 100 F.3d 1491, 1503

– 04 (10th Cir. 1996) (discussing whether the collective knowledge of off icers applies absent evidence the officers communicated with each other); 2 Wayne R. LaFave,

Search and Seizure § 3.5(c) (6th ed.) , Westlaw (database up dated Sept. 2020) (discussing different approaches to situations where “the arresting or searching of fic er attempts to justify his action on the ground that other officers were in fact in possession of the underlying facts justifying his action” (footnotes omitted) ). From my review of the record, t hese questions remain unanswered because Mr. Mahaffy did not put the timing of the dog alert at issue when he argued that the traffic stop should have ended as soon as Deputy Knittel finished writing the traffic citation. Absent answers to these questions

, we cannot and should not conclude the officers violated Mr . Mahaffy’s Fourth Amendment rights.

[¶ 36 ] For all these reasons, I conclude Mr. Mahaffy waived the suppression argument he brings forth on appeal and I dissent from the majority opinion ’s conclusion his Fourth

Amendment rights were violated.