### IN THE SUPREME COURT, STATE OF WYOMING

20 20 WY 60

APRIL TERM, A.D. 20 20

May 14, 2020

SHAWN MICHAEL KERN

,
Appellant (Defendant),

v.

THE STATE OF WYOMING,

Appellee (Plaintiff). S

- 19

- 0242

A

ppeal from the District Court of Cam pbell C ounty The Ho norable T homas W. R u mp ke , Judge

Representing Appellant:

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

.

Repre senting Appellee:

Bridget L. H i ll, Atto rney General; Jenn y L. Crai g

, Deputy At torney General ; J

oshua C. Eames, Senior Assist ant Attorney Gener al; Kelly D. Mullen, A ssistant Attorney Genera l.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

NOTICE: This opinion is subject to formal revi sion before publica tion in Paci fic Reporter T hird. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final pub lication in the per manent volum e.1 FOX , Justice

.

[¶1] A jury convicted Shawn Kern of possession with intent to deliver a controlled substance. On appeal, Mr. Kern argues that the district court erred by denying his motion to suppress evidence. We affirm.

I SSUE

[¶2] Did the dis trict court err in denying Mr. Kern ’ s motion to suppress? 1

FACTS

[¶3] On a snowy night in Gillette, Wyoming

, Officer Andy Lucus notic e d a blue

v ehicle , later identified as belonging to Mr. Kern

, that match e d the description of a car that had been involved in potential drug trans actions. Officer Lucus followed the vehicle which, due to snowy conditi ons, left i ts lane of travel several times and slid through a red light. Officer Lucus followed the car o n a n unusual and meandering route to the Sundance Lounge.

[¶4] Mr. Kern event ually parke d his car in the lot behind the Sundance Lounge an d was on hi s way into the bar when Officer Lucus approached him and asked if they could talk

. Mr. Kern agreed

, and Officer Lucus requested his driver ’s license

. Officer Lucus

r eport e d to dispatch that he was talking to Mr. Kern outside the Sundance Lounge and then questioned Mr. Kern about his route. Mr. Kern explained he had been trying to go the s afest way for the road conditions. Officer Lucus told Mr. Kern he was not stopp ing him or issuing a citation for the driving infractions he witnessed because he recognized the conditions were chal lenging. While t hey were talking, two other officers , Officer Johnson and Sergeant Brothers, arrived on the scene. Officer Lucus returned Mr. Kern’s license and asked if he had proo f of insurance. Mr. Kern could not locate his proof of insurance and Officer Lucus decided to write a “no insurance” citation. Officer Lucus

went to his patrol car to wri te the citation, and Officer Johnson ret rieved his K

- 9

, a German Shepherd named Lord, to perform a free

- air sniff of Mr. Kern’s vehicle. Lord alerted to the smell of drugs. Officer Lucus searched the vehicle and found

m ethamphetamine.

[¶5] The State charged Mr. Kern with possession with intent t o deliver a controlled substance under Wyo. Stat. Ann. § 35

- 7

- 1031(a)(i) (LexisNexis 2 0 19)

. Mr . Kern filed a

1 While “[o]ur state constitution provides protection of individual rights se parate and indepe ndent from the protectio n afforded by the U.S. Constitution” and “[t]he Wyoming Supreme Court continues to be willing to ind ependently interpret the provisions of the Wyo ming C onstitution,” Mr. Kern did not raise an independent state co nst itutional claim, therefore we limit our r eview to the alleged Fourth Amendment violation. Shees ley v. State , 2019 WY 32, ¶ 14, 437 P.3 d 830, 836 (Wyo. 2019)

.2 m otion to s uppress e vidence

, arguing t h at the methamph etamine was found as a result of an illegal detention. The district court found that the en counter was consensual until Officer Lucus decided to write Mr. Kern a citation for not h aving insurance

, af ter which the detention lasted , at mo st, one minute and fifty seconds. It held that Officer Lucus’ brief detention of Mr. Kern was reasonable under the totality of the circumstances

.

STAN DARD OF RE VIEW

[¶6] When we revie w a district court’s de n ial of a motion to suppress evidence, we adopt its factual findings

, unless they are clearly erroneous. Brown v. State , 2019 WY 42, ¶ 10 , 439 P.3d 726, 730 (Wy o. 2019) ( ci ting Rodriguez v. State , 2018 WY 134

, ¶ 1 5, 430 P.3d 766, 770 (Wyo. 2018)); see al s o Jennings v. State , 2016 WY 69, ¶ 8, 375 P.3d 788, 790 (Wyo. 2016). “We view the evidence in the light most favorable to the district court’s decision because the court conduct ed the hearing and had th e opportuni ty to

‘ asse ss the witnesses’ credibility, weigh the evidence and make the necessary inferences, deductions and conclusions.’” Brown , 2019 WY 42, ¶ 10, 439 P.3d at 730 (quoting Kunselman v. State , 2008 W Y 85, ¶ 9, 188 P. 3d 567, 569 (Wyo. 2008)). Where the district c ourt did not make specific fin d ings o f fact on issues before it, this Court will uphold the general ruling of the district court if it is supported by any reasonable view of the evidence. Bro wn , 2019 WY 42, ¶ 10, 439 P.3d at 730 ( cit ing Feeney v. State , 2 009 WY 67, ¶ 9, 208 P.3d 50, 5 3 (Wyo. 2009)). “The ultimate questi on of w hether the search or seizure was legally justified, however, is a question of law we review de novo.”
Brown , 2019 WY 42, ¶ 10, 439 P.3 d at 730 (quoting Rodrigu ez , 2018 WY 134

, ¶ 15, 430 P.3d at 770).

DISCUSSIO N

[¶7] There are three tiers of interactions between citizens and law enforcement:

T he lea st intrusive contact between a citizen and police is the consensual encount er which “ involve s no restraint of liberty and elicits the citiz en’s voluntary cooperation wit h non

coercive questioning. ” Wilson [ v. State ], 874 P.2d [215,] 220 [(Wyo. 1994)]

. The consensual encounter is not a seizure and does not engage the Fourth Amen dment. The secon d tier is the investigato ry [detention] or Terr y stop, named after the semina l case of Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968). An inv estiga tory detention involves a seizure and, consequently

, the protections of th e Fourth Amendmen t are implicated. Wilson , 874 P.2d at 220.
Ho wever , because of its limited n ature, a law enforcement officer must show only “ the presence of specific and articulable facts and rational infer ences which give rise to a3 reasonable suspicion that a person ha s committed or may be

com mitting a crime ” in or der to justify the detention. Id. The most intrusive encounter between police and a citizen is, of course, an arrest. An arrest “ require s just ification by probable cause to believe that a person has commit ted or is committing

a cr ime.” Id.

Custer v

. State of Wyoming , 2006 WY 72, ¶ 13, 1 3 5 P.3d 620, 624

- 25 (Wyo. 2006).
Mr. Kern concedes that the encounter with Officer Lucus began as consensual but as serts that it changed to an unlawful investigatory detention wh en Officer Lucus requeste d proof of in surance. The S t ate argues that the encounter was consensual until Officer Lucus decided to write Mr. Kern a citation for no t having car insurance or , in the alternative, that the exclusionary r ule should not a pply beca use law enfor cement could have conducted a free

- air s niff of the car even if Officer Lucus illegally detained
Mr. Kern.

[¶8] Ci tizens are entitled to Fourth Amendment pr otections when “ the officer, by means of ph ysical for ce or sho w of authori ty, has in some way restrained the liberty o f a citizen. ” Wilson , 874 P.2d at 220 (quoting Terry , 392 U.S. at 19 n. 16, 88 S.Ct. at 1879

n. 16). Courts evaluating whether interactio ns with law enforcement im plicate the Fo urth Amendment m ust det ermine whether a reasonable person would feel free to le ave the

encounter. Wilson , 874 P.2d at 221. Below , the district court analyzed the encounter between Off icer Lucus and Mr. Kern and determined when it ceased to be consensual and became an investigat ory detention

. 2 We need not de cid e whether the encounter between Mr. Kern and Officer Lucus w as consensual or an investigatory detention because, under these circumstances, tha t distinction would not affect our conclusion that L ord ’ s free

- air sniff was la wful.

[¶9] This case is unlike tra ffi c stop ca ses where a suspect is detained at the scene until a dog ar rives to sniff a vehicle or container

, because Mr. Kern had left his vehicle and was walking to the Sundance Lounge. Generally, i n traffic st op cases, we examine whethe r the dog sni ff extends the duration or scope of the seizure

. See

, e.g. , Brown , 2019 WY 42

, ¶¶ 6

- 7, 439 P.3d at 7 29

- 30 ( finding that the police officer lacked reasonable suspicion to fu rther detain the suspect for a dog sniff af ter returnin g his identific a tion and com pleting the traffic stop ) ; Pier v. State , 2019 WY 3

, ¶¶ 9

- 10, 432 P.3d 890, 895 ( Wyo. 2019) ; Engdahl v. State , 2014 WY 76 , ¶ 14, 327 P.3d 114, 118 (Wyo. 2014); Wallace v. State

,

2 The United Sta tes Supreme Court set forth a list of factors th at may indicate a seizure under the Fo urth Amendment, including, “the thre atening presen ce of several officers, the display of a weapon by an of

ficer, some physical touching of the person of the citizen, or t he use of language or tone of voice indicating t hat compliance with the officer’s requ est might be compelled.” United Sta tes v. Mendenh all

, 446 U.S. 544, 554 , 100 S.Ct. 1870, 1877, 64 L .Ed. 2d 497 (1980) ; Wilson , 874 P.2d at 220. The dis trict court considered these factors in reaching its decision.4 2009 WY 152, ¶¶ 4

- 5, 221 P.3d 967, 968

- 69 (Wyo. 20 09); see al so Illinois v. Caballes

, 543 U.S. 405, 4 09, 125 S.Ct. 834, 838, 160 L.Ed.2d 842 ( 200 5 ). Here, there was no traffic stop. The nature of the enco unter between Officer Lucus and Mr. Kern was

unr elated to the p res ence of the car in the public park ing lot. Mr. Ke rn was no t trying to reach his car to leave, and law enforcement was free to conduct a free

- air sniff of the vehicl e

. Similarly, whether th e encounter between Officer Lucus and Mr. Kern remained consensual, or ha d shifted to an investigato ry detention, is irrel evant unde r these circumstances because the free

- air sniff was law ful whether Mr. Kern was free to leave or

not.

[¶10] “A ‘canine sniff’ by a well

- trained narcotic s detection dog, [doe s] not constitute a ‘sea rch’ wit hin the meaning of the Fourth Amendment.” U .S. v. Place , 462 U.S. 696, 707 , 103 S.Ct . 2637, 264 4

- 4 5, 77 L.E d. 2 d 110 (1983); Pier , 2019 WY 3, ¶ 31, 432 P.3d

at 899 (“A dog sniff of the e xterior of a ve hicle is not a search under the Fourth Amendment.”); Morgan v. State , 2004 WY 95, ¶ 18, 95 P.3d 802, 807

- 08 (Wyo. 2004) (“ Morgan was not sub jec ted to a search protected by the Fourth Amendment when [law enforcement] ordered the canine sniff of his vehicle

. ”). Because it is not a sea rch, law enforcement does not need probable ca use, reasonable suspicion, or consent to run a

tr ained drug dog ar oun d vehicles in a public parking lot. E.g.

, U.S. v. Friend , 50 F.3d 548 (8th Cir. 1995) (finding that a dog sniff of a parked car on a p ublic stre et or alley does not amount to a search un der the Fou rth Amendment)

, vacated and remanded on other grounds

, 517 U.S. 1152, 116 S. Ct. 1538 , 134 L.Ed.2d 643 (1996) ; U.S. v. Ludwig

, 10 F.3d 1523 (10th Cir. 1993) (finding that r andom, suspicionless d og sni ffs of vehicl es in a motel parking lot did not con stitute a search under the Fourth Amendment); Dowty v. State

, 210 S.W.3d 850 (Ark. 2005) (finding no search within the meaning of the Fourth Amendment when law enforcement followed tw o pe ople susp ecte d of selling drugs to a restaurant and deployed drug dog to sniff their vehicle when they parked and went inside); Sta te v. Garcia , 535 N.W.2d 124 (Wis. 1995) (finding t hat a dog sniff of the exterior of a car parked in a motel parking lot did not constitu te a search under t he F ourth Ame ndment because there is no legitimate expectation of privacy around air space of a

car in a parking lot); See State v. Williams , 2004 WY 53, ¶ 20, 90 P.3d 85, 90

- 91 (Wyo. 2004) (“ [A ] significant, if not overwhelming, number of cou rts ha ve concluded that a trained and reliable dru g detection dog’s alert during an exterior sniff of an automob ile provides probable cause to search the automobile when the automobile is parked or stopped in a place where the d rug detection dog’s la w enfo rcem en t officer has a right to be.”)

.
[¶11] Lord is a trained narcotics detection dog and he and Officer Johnson ar e a certified

team. The Sundance Lounge is a business with a parking lot tha t is open to the public.
Mr. Kern’s veh icle was parked in the Sundance Lounge parking lot when Lord condu cte d his fr ee

- air sniff. “Under the United States Constitution, when a trained and reliable drug dog ale rt s du ring an exterior sniff of a vehicle, there is probable cause to search that vehicle .” Pier , 2019 WY 3

, ¶ 32, 43 2 P .3d at 899 (quoting Yoeuth v. State , 2009 WY 61,5 ¶ 34, 206 P.3d 1278, 1286 (Wyo. 2009) )

. Therefore, the officers had probable cause to search the vehicle for drugs , and the district court correctly denied Mr. Kern’s motion to

suppress

.
[¶12] A ffirmed.