IN THE SUPREME COURT, STATE OF WYOMING

2020 WY 60

 APRIL TERM, A.D. 2020

May 14, 2020

SHAWN MICHAEL KERN,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-19-0242

Appeal from the District Court of Campbell County

The Honorable Thomas W. Rumpke, Judge

Representing Appellant:

Office of the Public Defender: Diane M. Lozano, State Public Defender; Kirk A. 

Morgan, Chief Appellate Counsel.

Representing Appellee:

Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; 

Joshua C. Eames, Senior Assistant Attorney General; Kelly D. Mullen, Assistant 

Attorney General.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, 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 any typographical or other formal errors so that correction may be made before final publication in

the permanent volume.
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. 

ISSUE

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

FACTS

[¶3] On a snowy night in Gillette, Wyoming, Officer Andy Lucus noticed a blue

vehicle, later identified as belonging to Mr. Kern, that matched the description of a car 

that had been involved in potential drug transactions. Officer Lucus followed the vehicle 

which, due to snowy conditions, left its lane of travel several times and slid through a red 

light. Officer Lucus followed the car on an unusual and meandering route to the 

Sundance Lounge. 

[¶4] Mr. Kern eventually parked his car in the lot behind the Sundance Lounge and was 

on his 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 

reported 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 safest way for the road conditions. Officer Lucus told Mr. Kern he was not stopping 

him or issuing a citation for the driving infractions he witnessed because he recognized 

the conditions were challenging. While they 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 proof 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 write the citation, and Officer Johnson retrieved 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

methamphetamine. 

[¶5] The State charged Mr. Kern with possession with intent to deliver a controlled 

substance under Wyo. Stat. Ann. § 35-7-1031(a)(i) (LexisNexis 2019). Mr. Kern filed a 

1 While “[o]ur state constitution provides protection of individual rights separate and independent from 

the protection afforded by the U.S. Constitution” and “[t]he Wyoming Supreme Court continues to be 

willing to independently interpret the provisions of the Wyoming Constitution,” Mr. Kern did not raise an 

independent state constitutional claim, therefore we limit our review to the alleged Fourth Amendment 

violation. Sheesley v. State, 2019 WY 32, ¶ 14, 437 P.3d 830, 836 (Wyo. 2019).
2

motion to suppress evidence, arguing that the methamphetamine was found as a result of 

an illegal detention. The district court found that the encounter was consensual until 

Officer Lucus decided to write Mr. Kern a citation for not having insurance, after which

the detention lasted, at most, one minute and fifty seconds. It held that Officer Lucus’ 

brief detention of Mr. Kern was reasonable under the totality of the circumstances.

STANDARD OF REVIEW

[¶6] When we review a district court’s denial 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 (Wyo. 2019) (citing Rodriguez v. State, 2018 WY 134, ¶ 15, 

430 P.3d 766, 770 (Wyo. 2018)); see also 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 conducted the hearing and had the opportunity to 

‘assess 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 WY 85, ¶ 9, 188 P.3d 567, 569 (Wyo. 2008)). Where the 

district court did not make specific findings of 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. Brown, 2019 WY 42, ¶ 10, 439 P.3d at 730 (citing Feeney v. State, 2009 

WY 67, ¶ 9, 208 P.3d 50, 53 (Wyo. 2009)). “The ultimate question of whether the search 

or seizure was legally justified, however, is a question of law we review de novo.” 

Brown, 2019 WY 42, ¶ 10, 439 P.3d at 730 (quoting Rodriguez, 2018 WY 134, ¶ 15, 430 

P.3d at 770). 

DISCUSSION

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

The least intrusive contact between a citizen and police is the 

consensual encounter which “involves no restraint of liberty

and elicits the citizen’s voluntary cooperation with noncoercive questioning.” Wilson [v. State], 874 P.2d [215,] 220 

[(Wyo. 1994)]. The consensual encounter is not a seizure and 

does not engage the Fourth Amendment. The second tier is 

the investigatory [detention] or Terry stop, named after the 

seminal case of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 

L.Ed.2d 889 (1968). An investigatory detention involves a 

seizure and, consequently, the protections of the Fourth 

Amendment are implicated. Wilson, 874 P.2d at 220. 

However, because of its limited nature, a law enforcement 

officer must show only “the presence of specific and 

articulable facts and rational inferences which give rise to a 
3

reasonable suspicion that a person has committed or may be 

committing a crime” in order to justify the detention. Id. The 

most intrusive encounter between police and a citizen is, of 

course, an arrest. An arrest “requires justification by probable 

cause to believe that a person has committed or is committing 

a crime.” Id. 

Custer v. State of Wyoming, 2006 WY 72, ¶ 13, 135 P.3d 620, 624-25 (Wyo. 2006). 

Mr. Kern concedes that the encounter with Officer Lucus began as consensual but asserts 

that it changed to an unlawful investigatory detention when Officer Lucus requested 

proof of insurance. The State argues that the encounter was consensual until Officer 

Lucus decided to write Mr. Kern a citation for not having car insurance or, in the 

alternative, that the exclusionary rule should not apply because law enforcement could 

have conducted a free-air sniff of the car even if Officer Lucus illegally detained 

Mr. Kern. 

[¶8] Citizens are entitled to Fourth Amendment protections when “the officer, by 

means of physical force or show of authority, has in some way restrained the liberty of 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 interactions with law enforcement implicate the Fourth 

Amendment must determine whether a reasonable person would feel free to leave the 

encounter. Wilson, 874 P.2d at 221. Below, the district court analyzed the encounter 

between Officer Lucus and Mr. Kern and determined when it ceased to be consensual and 

became an investigatory detention.

2 We need not decide whether the encounter between 

Mr. Kern and Officer Lucus was consensual or an investigatory detention because, under 

these circumstances, that distinction would not affect our conclusion that Lord’s free-air 

sniff was lawful. 

[¶9] This case is unlike traffic stop cases where a suspect is detained at the scene until a 

dog arrives to sniff a vehicle or container, because Mr. Kern had left his vehicle and was

walking to the Sundance Lounge. Generally, in traffic stop cases, we examine whether

the dog sniff extends the duration or scope of the seizure. See, e.g., Brown, 2019 WY 42,

¶¶ 6-7, 439 P.3d at 729-30 (finding that the police officer lacked reasonable suspicion to 

further detain the suspect for a dog sniff after returning his identification and completing 

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 States Supreme Court set forth a list of factors that may indicate a seizure under the Fourth 

Amendment, including, “the threatening presence of several officers, the display of a weapon by an 

officer, some physical touching of the person of the citizen, or the use of language or tone of voice 

indicating that compliance with the officer’s request might be compelled.” United States v. Mendenhall, 

446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980); Wilson, 874 P.2d at 220. The district 

court considered these factors in reaching its decision. 
4

2009 WY 152, ¶¶ 4-5, 221 P.3d 967, 968-69 (Wyo. 2009); see also Illinois v. Caballes, 

543 U.S. 405, 409, 125 S.Ct. 834, 838, 160 L.Ed.2d 842 (2005). Here, there was no 

traffic stop. The nature of the encounter between Officer Lucus and Mr. Kern was 

unrelated to the presence of the car in the public parking lot. Mr. Kern was not trying to 

reach his car to leave, and law enforcement was free to conduct a free-air sniff of the 

vehicle. Similarly, whether the encounter between Officer Lucus and Mr. Kern remained 

consensual, or had shifted to an investigatory detention, is irrelevant under these 

circumstances because the free-air sniff was lawful whether Mr. Kern was free to leave or 

not.

[¶10] “A ‘canine sniff’ by a well-trained narcotics detection dog, [does] not constitute a 

‘search’ within the meaning of the Fourth Amendment.” U.S. v. Place, 462 U.S. 696, 

707, 103 S.Ct. 2637, 2644-45, 77 L.Ed.2d 110 (1983); Pier, 2019 WY 3, ¶ 31, 432 P.3d 

at 899 (“A dog sniff of the exterior of a vehicle 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 subjected to a search protected by the Fourth Amendment when [law 

enforcement] ordered the canine sniff of his vehicle.”). Because it is not a search, law 

enforcement does not need probable cause, reasonable suspicion, or consent to run a 

trained drug dog around 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 public street or alley 

does not amount to a search under the Fourth 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 random, suspicionless dog sniffs of vehicles 

in a motel parking lot did not constitute 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 two people suspected of selling drugs to a 

restaurant and deployed drug dog to sniff their vehicle when they parked and went 

inside); State v. Garcia, 535 N.W.2d 124 (Wis. 1995) (finding that a dog sniff of the 

exterior of a car parked in a motel parking lot did not constitute a search under the Fourth 

Amendment 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 courts have concluded that a 

trained and reliable drug detection dog’s alert during an exterior sniff of an automobile

provides probable cause to search the automobile when the automobile is parked or 

stopped in a place where the drug detection dog’s law enforcement officer has a right to 

be.”). 

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

team. The Sundance Lounge is a business with a parking lot that is open to the public. 

Mr. Kern’s vehicle was parked in the Sundance Lounge parking lot when Lord conducted 

his free-air sniff. “Under the United States Constitution, when a trained and reliable drug 

dog alerts during an exterior sniff of a vehicle, there is probable cause to search that 

vehicle.” Pier, 2019 WY 3, ¶ 32, 432 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] Affirmed.