IN THE SUPREME COURT, STATE OF WYOMING

2017 WY 9

OCTOBER TERM, A.D. 2016

February 1, 2017

MICHAEL SCOTT TIBBETTS,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-16-0134

Appeal from the District Court of Campbell County

The Honorable Thomas W. Rumpke, Judge

Representing Appellant:

Nicholas H. Carter and Derek A. Thrall of the Nick Carter Law Firm, P.C., 

Gillette, Wyoming. Argument by Mr. Thrall.

Representing Appellee:

Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy 

Attorney General; Christyne Martens, Senior Assistant Attorney General; Joshua 

C. Eames, Assistant Attorney General. Argument by Mr. Eames.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, 

Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made 

before final publication in the permanent volume.
1

KAUTZ, Justice.

[¶1] The Appellant, Michael Scott Tibbetts, appeals his conviction for possession of 

methamphetamine with the intent to distribute. Mr. Tibbetts’ appeal comes after he 

entered a conditional no contest plea to the charge, reserving the right to challenge the 

district court’s order denying his motion to suppress. We affirm.

ISSUE

[¶2] Mr. Tibbetts raises one issue in this appeal:

Did the district court err in its finding of fact that [Mr. 

Tibbetts] consented to continued detention when law 

enforcement told him “he was free to leave” and law 

enforcement continued to have [its] red and blue emergency 

overhead lights activated?

FACTS

[¶3] On May 3, 2013, Wyoming Highway Patrol dispatch advised Trooper Jon Briggs 

that a newer model black Chevrolet pickup with lifted large tires was traveling through 

Wyoming to North Dakota and was possibly involved in a narcotics transaction. At 

approximately 4:15 p.m., Trooper Briggs observed a black Chevrolet pickup truck 

traveling in excess of the posted speed limit on Highway 59 north of Gillette, Wyoming. 

Trooper Briggs testified he believed the truck was traveling 80 miles per hour in a posted 

65 mile per hour zone, and his radar showed the truck was traveling at 76 miles per hour. 

Trooper Briggs pulled the truck over and identified the driver as Mr. Tibbetts. Mr. 

Tibbetts’ eye contact and body position indicated to Trooper Briggs that he was 

extremely nervous. Mr. Tibbetts provided Trooper Briggs with his driver’s license and 

proof of insurance, Trooper Briggs verified the insurance card matched the truck, and he 

then returned to his patrol car to write a speeding citation. 

[¶4] Trooper Briggs returned to the truck and gave Mr. Tibbetts the citation, his 

driver’s license and insurance card, and told Mr. Tibbetts to “drive safe and have a safe 

day.” Trooper Briggs turned to walk away from the truck, but once he reached the rear 

bumper, he turned around and asked Mr. Tibbetts if he would mind answering a few 

more questions. Mr. Tibbetts advised that he had no issues with answering further 

questions. Trooper Briggs asked Mr. Tibbetts about his travel plans and then asked if he 

had anything in the truck that he should not have. Mr. Tibbetts removed a plastic 

sandwich bag containing Lortab pills from the truck’s console and stated he did not have 

a valid prescription for the pills. Mr. Tibbetts also disclosed that he was currently facing 

charges involving methamphetamine in Texas. 
2

[¶5] Trooper Briggs asked Mr. Tibbetts if he could search the truck and he agreed to 

the request. However, before conducting the search, Trooper Briggs had Mr. Tibbetts 

perform various field sobriety maneuvers. Once Trooper Briggs determined that Mr. 

Tibbetts was not under the influence of drugs or alcohol, he asked again if he could 

search the truck. Mr. Tibbetts responded that he did not want his truck searched, and 

Trooper Briggs stated that he was going to detain Mr. Tibbetts until a drug detection dog 

arrived. At that point in time, Mr. Tibbetts told Trooper Briggs there was 

methamphetamine on the floorboard behind the center console of the truck. When 

Trooper Briggs looked in the described area, he found two glass pipes containing 

methamphetamine and a plastic bag also containing methamphetamine. Trooper Briggs 

arrested Mr. Tibbetts and the State charged him with one count of possession with the 

intent to deliver methamphetamine. 

[¶6] Mr. Tibbetts filed a motion to suppress his statements and the methamphetamine 

on the basis that the search of the truck was the product of an unlawful detention that 

exceeded the scope of Trooper Briggs’ original justification for the traffic stop. Mr. 

Tibbetts argued the original detention never ended because Trooper Briggs did not tell 

Mr. Tibbetts he was “free to leave.” Following a hearing, the district court concluded 

that a reasonable person in Mr. Tibbetts’ circumstances would have felt free to leave after 

Trooper Briggs wished him safe travels and, therefore, Mr. Tibbetts voluntarily consented 

to answering Trooper Briggs’ additional questions. 

[¶7] Several months later, Mr. Tibbetts filed a motion requesting the district court 

reconsider its ruling on the motion to suppress. Mr. Tibbetts based his motion on a newly 

published case by the United States Supreme Court, Rodriguez v. United States, 575 U.S. 

___, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015), wherein the Court held a traffic stop 

could not be prolonged without reasonable suspicion in order to conduct a canine sniff. 

Mr. Tibbetts specifically argued that Rodriguez required Trooper Briggs to let him leave 

before engaging in any further contact. The district court continued to conclude that Mr. 

Tibbetts consented to the further contact with Trooper Briggs and denied the motion. 

[¶8] Thereafter, Mr. Tibbetts entered a conditional no contest plea under W.R.Cr.P. 

11(a)(2), reserving the right to appeal the district court’s denial of his motion to suppress 

and the motion to reconsider the motion to suppress. The district court sentenced Mr. 

Tibbetts to four to five years of imprisonment, but suspended that sentence in favor of 

five years of probation. Mr. Tibbetts timely filed this appeal. 

STANDARD OF REVIEW

[¶9] When reviewing the denial of a motion to suppress, this Court views “the evidence 

in the light most favorable to the district court’s determination and defers to the district 

court’s factual findings unless they are clearly erroneous.” Jennings v. State, 2016 WY 
3

69, ¶ 8, 375 P.3d 788, 790 (Wyo. 2016). We review the underlying question of law—

whether the search was unreasonable and therefore unconstitutional—de novo. Id.

 

DISCUSSION

[¶10] Mr. Tibbetts claims Trooper Briggs detained him without reasonable suspicion 

when he reinitiated contact after returning his driver’s license, proof of insurance, and 

issuing him a speeding citation. He argues that, because the detention was prolonged 

without reasonable suspicion, Trooper Briggs’ discovery of the methamphetamine was 

the product of an unconstitutional search. Although Mr. Tibbetts relied on additional 

facts at the suppression hearing, he now relies on only two facts in asserting that Trooper 

Briggs continued to detain him: 1) Trooper Briggs took only two to three steps away 

from the driver’s window before returning to the truck and asking Mr. Tibbetts if he 

would be willing to answer further questions; and 2) the emergency overhead lights on 

Trooper Briggs’ patrol car were still flashing. Mr. Tibbetts argues that, under those 

circumstances, a reasonable person would not feel free to leave and the State cannot 

justify the further detention with reasonable suspicion of criminal activity. 

[¶11] Before we analyze the legality of the encounter, we are compelled to note that Mr. 

Tibbetts repeatedly faults the district court for not making findings regarding Trooper 

Briggs’ use of the emergency overhead lights on his patrol car. Mr. Tibbetts describes 

the overhead lights as a “crucial factor” in the motion to reconsider and was an “essential 

factor” to his argument. Despite these assertions, the record is clear that the emergency 

lights were in no way a focus in Mr. Tibbetts’ argument in the district court. In fact, in 

the motion to reconsider and its accompanying argument, Mr. Tibbetts never even 

mentions the use of the overhead lights. Instead, his focus in the district court was that 

Trooper Briggs did not tell him he was free to leave and did not give him the chance to 

leave before re-engaging contact; thus, the original detention never ended and was 

extended without reasonable suspicion of criminal activity. 

[¶12] While Mr. Tibbetts’ challenge to the district court’s order on the motion to 

suppress has been properly preserved, the assault on the district court’s lack of findings 

regarding the overhead lights has not. ‘“A conditional plea of guilty does not provide 

carte blanche permission for the appellant to present any and all arguments on appeal.’ 

An appellant may only raise arguments that were clearly presented to the district court.” 

Miller v. State, 2009 WY 125, ¶ 32, 217 P.3d 793, 803 (Wyo. 2009) (internal citations 

omitted). For this reason, we refuse to consider Mr. Tibbetts’ claim that the district court 

erroneously failed to make findings regarding Trooper Briggs’ use of the overhead lights.

[¶13] However, we must still consider whether Mr. Tibbetts was unlawfully detained by 

Trooper Briggs after he had completed the necessary investigation regarding the speeding 

violation. There are three tiers of interaction between law enforcement officers and 

citizens: consensual encounter, investigatory detention and arrest. Dimino v. State, 2012 
4

WY 131, ¶ 10, 286 P.3d 739, 742 (Wyo. 2012). Here, we must focus on the consensual 

encounter and investigative detention. A consensual encounter exists when a reasonable 

person would feel free “to disregard the police and go about his business.” California v. 

Hodari D., 499 U.S. 621, 628, 111 S. Ct. 1547, 1552, 113 L. Ed. 2d 690 (1991); see also

Frazier v. State, 2010 WY 107, ¶ 14, 236 P.3d 295, 299 (Wyo. 2010). Consensual 

encounters do not trigger Fourth Amendment scrutiny and no reasonable suspicion of 

criminal activity is required for the contact to occur. Florida v. Bostick, 501 U.S. 429, 

434, 111 S. Ct. 2382, 2385, 115 L. Ed. 2d 389 (1991). 

[¶14] The investigative detention, also called a Terry stop, is a seizure under the Fourth 

Amendment and requires that an officer have a reasonable suspicion that criminal activity 

has occurred before engaging in the contact. Damato v. State, 2003 WY 13, ¶ 9, 64 P.3d 

700, 704-05 (Wyo. 2003). A traffic stop is an investigatory detention. Dimino, ¶ 10, 286 

P.3d at 742. 

‘An investigative detention must be temporary, lasting no 

longer than necessary to effectuate the purpose of the stop. . . 

.’ O’Boyle [v. State, 2005 WY 83,] ¶ 47, 117 P.3d [401], 414 

[(Wyo. 2015)]. The officer may expand the investigative 

detention beyond the scope of the initial stop only if the 

citizen consents to the expanded detention or if ‘there exists 

an objectively reasonable suspicion that criminal activity has 

occurred or is occurring.’ Id., ¶ 48, 117 P.3d at 414.

 

Id. 

[¶15] Mr. Tibbetts does not dispute that Trooper Briggs had reasonable suspicion to 

initiate the traffic stop and conduct the investigation that led to the speeding citation. 

However, he argues Trooper Briggs unlawfully extended the detention without 

reasonable suspicion of criminal activity after the speeding investigation was completed. 

Despite his assertion, we agree with the district court’s finding that the investigative 

detention ended when Trooper Briggs returned Mr. Tibbetts’ driver’s license and

insurance card, gave the citation, and told Mr. Tibbetts to “drive safe and a safe day.”1 

At that point in time, Mr. Tibbetts was free to leave.

[¶16] We also agree with the district court that Trooper Briggs’ subsequent contact with 

Mr. Tibbetts was consensual in nature. As mentioned above, an encounter is consensual 

 

1

In the district court, Mr. Tibbetts argued that his original encounter with Trooper Briggs never ended 

because Trooper Briggs never informed him that he was “free to leave.” (R., Vol. I, at 132) He appears 

to have abandoned that argument on appeal. However, the United States Supreme Court has stated that 

the Fourth Amendment does not require that a lawfully seized defendant be advised that he is “free to go” 

before his consent to search will be recognized as voluntary. Ohio v. Robinette, 519 U.S. 33, 39-40, 117 

S. Ct. 417, 136 L. Ed. 2d 347 (1996).
5

if “a reasonable person would have felt free to decline the officers’ requests or otherwise 

terminate the encounter.” Frazier, ¶ 14, 236 P.3d at 299. When making this 

determination, “we consider the totality of the circumstances including how law 

enforcement phrased the request, whether the officer told the individual that he could 

refuse the request, and the presence of other coercive factors.” Id. Trooper Briggs’ dashcam video shows that as Trooper Briggs began to walk away from Mr. Tibbetts’ truck, 

Mr. Tibbetts prepared to drive away from the scene as evidenced by a change in the 

truck’s taillights (indicating Mr. Tibbetts stepped on the brakes). Trooper Briggs was 

professional, courteous and polite when he asked Mr. Tibbetts if he would answer some 

further questions. Further, it is evident from the video that Mr. Tibbetts immediately and 

readily provided the bag of Lortab pills after only one question by Trooper Briggs. 

[¶17] Mr. Tibbetts does not argue that Trooper Briggs engaged in any coercive behavior 

that would have elevated the subsequent questioning from a consensual encounter to a 

second investigatory detention. Instead, his focus is solely on the facts that Trooper 

Briggs did not wait until Mr. Tibbetts actually began to leave before initiating the 

subsequent contact and that the emergency overhead lights on Trooper Briggs’ patrol car 

were on the entire time. However, Mr. Tibbetts has not provided any authority for the 

proposition that an investigatory detention continues until the individual actually begins 

to leave, even though the officer earlier indicated the detention had ended. This Court 

has not found any authority supporting such a proposition. Mr. Tibbetts’ choice to not 

drive away does not obviate the fact that he was free to do so. 

[¶18] The law does not support Mr. Tibbetts’ assertion that he remained under detention 

simply because the overhead lights on the patrol car remained on. Mr. Tibbetts relies 

exclusively on McChesney v. State, 988 P.2d 1071 (Wyo. 1999) as the basis for his 

position. While McChesney recognizes that emergency lights are strongly indicative of a 

seizure, it is simply one factor that is viewed under the totality of the circumstances 

surrounding the contact. Id. at 1074-75. In McChesney, the officer was attempting to 

effectuate a traffic stop and not only turned on his overhead patrol lights, but also blocked 

McChesney’s vehicle by parking directly behind it. Id. at 1075. All of these facts 

together demonstrated that McChesney had been seized. Id. 

[¶19] In other circumstances, however, the use of overhead lights may not be as 

significant of a factor. In Marinaro v. State, 2007 WY 123, 163 P.3d 833 (Wyo. 2007), 

we considered a similar situation as we are faced with here. A trooper issued a warning 

ticket, returned Marinaro’s driver’s license and rental agreement, and told Marinaro to 

“have a safe trip.” Id., ¶ 4, 163 P.3d at 835. The trooper then re-approached Marinaro 

and asked if he would answer further questions, to which Marinaro answered in the 

affirmative. Id. Marinaro then consented to the trooper searching the car and the trooper 

found two boxes of marijuana. Id., ¶ 5, 163 P.3d at 834. This Court concluded that the 

only “coercive factors” presented were the same coercive factors present in every traffic 
6

stop: an armed and uniformed officer and flashing lights on the patrol car. Id., ¶ 11, 163 

P.3d at 836. 

If these factors were sufficient to invalidate the voluntariness 

of a consent, no consent would ever be voluntary. Neither 

can these factors, alone, be seen as proving that the person 

stopped did not feel that he was free to go. In the present 

case, for instance, the appellant knew that he was free to go 

because the trooper had told him he could go. His departure 

was not stopped by the uniform, gun, or flashing lights. It 

was stopped only by his consent to a non-demanding, 

relatively cordial request by the trooper to ask more 

questions. A reasonable person in the appellant’s position at 

that time would have felt that he could have said “no” and 

proceeded on his way.

Id., ¶ 11, 163 P.3d at 836. 

[¶20] Additionally, other jurisdictions have specifically found that the overhead 

emergency lights are but one factor courts consider in the totality of the circumstances. 

See Hudson v. State, 247 S.W.3d 780, 785 (Tex. Crim. App. 785) (“Activation of 

overhead lights on a police vehicle does not necessarily make an encounter nonconsensual”); Commonwealth v. Johonoson, 844 A.2d 556, 562 (Pa. Super. 2004) (“We 

recognize that flashing overhead lights, when used to pull a vehicle over, are a strong 

signal that a police officer is stopping a vehicle and that the driver is not free to terminate 

this encounter. The same is not necessarily true under the factual circumstances 

presented here.”). In State v. Roark, 103 P.3d 481 (Idaho Ct. App. 2004), the Idaho Court 

of Appeals was faced with an argument very similar to the one made by Mr. Tibbetts. In 

Roark, an officer returned the defendant’s driver’s license and documents and told the 

defendant twice that he was free to leave. Id. at 484. The officer then asked if the 

defendant could answer some more questions. Id. On appeal, the defendant argued that 

the continued operation of the patrol car’s emergency lights were indicative of a 

continued detention. The court disagreed: 

Although the activation of the emergency lights is a 

command for motorists to stop, [under Idaho law], the fact 

that the emergency lights had not yet been turned off did not 

constitute a continued show of authority detaining Roark in 

the face of at least two notifications from the officer that he 

was free to go. 

Id. The court concluded:
7

It is not practical nor necessary that an officer turn off his 

emergency lights before he may effectively instruct an 

individual who has been stopped that he may leave. No 

reasonable person who has been unequivocally told that he 

may go, as Roark was, would believe that he should disregard 

the statement merely because the patrol car’s overhead lights 

are still flashing.

Id. 

[¶21] Under the totality of the circumstances here, a reasonable person in Mr. Tibbetts’ 

position would have felt free to decline Trooper Briggs’ request. Trooper Briggs had 

returned Mr. Tibbetts’ driver’s license and documents, had issued the citation, told him to 

“drive safe and have a safe day,” and walked away. Although the overhead lights of the 

patrol car were still on, Trooper Briggs had completed his investigation and had indicated 

Mr. Tibbetts was free to leave. Trooper Briggs was not coercive in any fashion when he 

asked Mr. Tibbetts if he would answer some further questions. Therefore, at that point in 

time, the contact between Trooper Briggs and Mr. Tibbetts was consensual. The district 

court properly denied Mr. Tibbetts’ motion to suppress. 

[¶22] Affirmed.