Bradley M. Ward , 2015 WY 10 ( 2015 )

IN THE SUPREME COURT, STATE OF WYOMING
2015 WY 10
OCTOBER TERM, A.D. 2014
January 14, 2015
BRADLEY M. WARD,
Appellant
(Defendant),
v. S-14-0104
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Campbell County
The Honorable Thomas W. Rumpke, Judge
Representing Appellant:
Office of the State Public Defender: Diane Lozano, State Public Defender; Tina
N. Olson, Chief Appellate Counsel; and Eric M. Alden, Senior Assistant Appellate
Counsel.
Representing Appellee:
Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Darrell D.
Jackson, Faculty Director, Prosecution Assistance Program; A. Walker Steinhage,
Student Director; and Paul M. Bowron, Student Intern.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, 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.
HILL, Justice.
[¶1] Bradley Ward was charged with felony possession of marijuana based on evidence
found in a search of his vehicle following his involvement in an automobile accident.
Ward moved to suppress the evidence and his statements to law enforcement, arguing
that the investigating officer impermissibly extended the scope of his contact with Ward
by continuing to question him after issuing a citation to and releasing the other driver.
The district court denied Ward’s motion to suppress, and Ward entered a conditional
guilty plea to the felony possession charge, reserving the right to appeal the court’s order
denying the motion to suppress.
[¶2] On appeal, Ward does not challenge the search of his vehicle on the basis that the
investigating officer impermissibly extended the scope of his detention. Ward instead
argues that the State failed to present sufficient evidence at the suppression hearing
concerning the certification of the drug dog used by the investigating officer. Because
we find that Ward did not raise this issue before the district court and did not properly
reserve the question pursuant to his W.R.Cr.P. 11(a)(2) plea, we will not address the
issue, and we affirm the order denying Ward’s motion to suppress.
ISSUE
[¶3] Ward presents a single issue on appeal, stating the issue as:
Did the evidence presented by the State meet the minimum
requirements of Florida v. Harris, 133 S. Ct. 1050 (2013)?
FACTS
[¶4] On June 5, 2013, Ward was involved in a vehicle accident in Gillette, Wyoming.
Officer Steven Dillard of the Gillette Police Department was dispatched to investigate the
accident and had with him his canine partner, Duke. On route to the accident, dispatch
informed Officer Dillard that a witness had reported that he observed Ward, after the
accident, move items from the backseat of his vehicle to the cargo area and then cover
them with a blanket.
[¶5] On arriving at the accident scene, Officer Dillard made contact with Ward and
with the other driver. By the time a second officer arrived on the scene, Officer Dillard
had decided to cite the other driver in relation to the accident, and he directed the second
officer to issue that citation and complete other aspects of the accident investigation.
[¶6] Officer Dillard then contacted the witness who had reported that he observed
Ward moving items in his vehicle after the accident. The witness confirmed his earlier
1
account, and Officer Dillard again approached Ward and asked him why he had moved
the items in his vehicle. Ward initially denied moving any items, but when Officer
Dillard informed him of the witness report, Ward stated he moved the blanket to cover
his dog, which had been frightened by the accident. Officer Dillard did not ask any
further questions and informed Ward that he had his canine partner with him and that he
was going to have the dog perform a free-air sniff of the vehicle.
[¶7] Officer Dillard had the dog perform the free-air sniff, and the dog indicated near
the rear driver’s side door. After returning the dog to his vehicle, Officer Dillard began a
search of Ward’s vehicle. As Officer Dillard was opening the tailgate on Ward’s vehicle,
he heard Ward, who was talking on his cell phone, tell someone that “he was going to
jail.” Officer Dillard asked Ward why he believed he was going to jail, and Ward
responded by telling Officer Dillard that he was a felon and that he had a handgun, weed,
and hash in the vehicle. Officer Dillard proceeded with his search of the vehicle and
found numerous jars containing marijuana “shake” and approximately 14-15 grams of
hash.
[¶8] On June 7, 2013, a felony information was filed against Ward charging him with
possession of a controlled substance. On July 24, 2013, Ward filed a motion to suppress
evidence obtained in the search of his vehicle as well as his statements made to law
enforcement. As the basis for his motion to suppress, Ward stated:
Officer Dillard did not have a reasonable, articulable
suspicion of another crime necessary to justify the continued
detention of the Defendant. His continued detention, and the
subsequent search of his vehicle was done in violation of his
rights under the Fourth Amendment of the United States
Constitution and Article One § Four of the Wyoming
Constitution. As such, all statements made, and all evidence
seized from that point on are fruits of the poisonous tree, and
must be suppressed.
[¶9] On August 28, 2013, the district court held a hearing on Ward’s motion to
suppress, and on September 16, 2013, the court issued an order denying the motion. In
denying the motion to suppress, the court noted, “Defendant did not challenge Dillard’s
canine partner’s certification, the dog’s indication, or any other aspect regarding the use
of the canine. Therefore, the court will not address any issues regarding this aspect of the
search.”
[¶10] On October 11, 2013, Ward filed a motion to reconsider, requesting that the
district court reconsider its decision based on video from Officer Dillard’s vehicle that
had not been available when Ward filed his motion to suppress. On October 25, 2013,
the court held a hearing on Ward’s motion to reconsider. During that hearing, Ward’s
2
counsel argued that the video recording contradicted Officer Dillard’s testimony that
Ward was behaving nervously and supported the motion to suppress because it showed
that the search was not conducted within the scope of Officer Dillard’s accident
investigation. After hearing from Ward and the State, the court denied the motion to
reconsider.
[¶11] On November 1, 2013, Ward entered a conditional plea agreement with the State,
pursuant to W.R.Cr.P. 11(a)(2). In return for Ward’s guilty plea, the State agreed that it
would not pursue any charges relating to Ward’s firearm possession. Pursuant to his
conditional plea, Ward reserved the right to “seek review of the District Court’s denial of
his Motion to Suppress Evidence and Statements.”
[¶12] On November 19, 2013, the district court entered its Judgment Upon Plea of
Guilty, and on January 28, 2014, the court entered an order sentencing Ward to two to
three years in prison. On February 12, 2014, Ward filed a notice of appeal to this Court.
STANDARD OF REVIEW
[¶13] This Court reviews motion to suppress rulings using the following standard of
review:
We review the district court’s factual findings on a
motion to suppress for clear error. We defer to those findings
and view the evidence in the light most favorable to the
prevailing party because the district court is in the best
position to weigh the evidence, assess the credibility of
witnesses, and make the necessary inferences, deductions,
and conclusions. However, “we review the ultimate
determination regarding the constitutionality of a particular
search or seizure de novo.” Sen [v. State], ¶ 25, 301 P.3d
[106] at 117 [(Wyo. 2013)] (citing Owens [v. State], ¶ 8, 269
P.3d [1093] at 1095 [(Wyo. 2012)]). See also Lovato v. State,
2010 WY 38, ¶ 11, 228 P.3d 55, 57–58 (Wyo.2010) (quoting
Yoeuth v. State, 2009 WY 61, ¶ 16, 206 P.3d 1278, 1282
(Wyo. 2009)); Meadows v. State, 2003 WY 37, ¶ 23, 65 P.3d
33, 40 (Wyo. 2003) (quoting Gehnert v. State, 956 P.2d 359,
362 (Wyo. 1998)).
Klomliam v. State, 2014 WY 1, ¶ 15, 315 P.3d 665, 668-69 (Wyo. 2014) (quoting
Hunnicutt–Carter v. State, 2013 WY 103, ¶ 20, 308 P.3d 847, 852 (Wyo. 2013)).
3
DISCUSSION
[¶14] On appeal, Ward has abandoned his argument that the investigating officer
impermissibly extended the scope of his detention. Ward instead argues that the State
failed to meet its burden of showing that the search of his vehicle was reasonable because
it presented insufficient evidence concerning the certification of Officer Dillard’s drug
dog. In support of this argument, Ward cites Florida v. Harris, ___ U.S. ___, 133 S. Ct.
1050, 185 L. Ed. 2d 61 (2013). He contends that this ruling requires the State, with or
without a challenge from the defendant, and as part of its burden of establishing the
reasonableness of its search, to present evidence of a dog’s satisfactory performance in a
certification or training program. We conclude that we need not, however, decide the
parameters of the Supreme Court’s decision in Florida v. Harris because Ward did not
preserve this question for our review.
[¶15] This Court has rejected consideration of new issues on appeal following entry of a
conditional plea, explaining:
We have consistently held that a guilty plea or nolo
contendere plea waives appellate review of all non-
jurisdictional claims. Morgan v. State, 2004 WY 95, ¶ 23, 95
P.3d 802, 808 (Wyo. 2004); Bailey v. State, 12 P.3d 173, 177
(Wyo.2000); Smith v. State, 871 P.2d 186, 188 (Wyo. 1994);
Ochoa v. State, 848 P.2d 1359, 1361–62 (Wyo.1993); Davila
v. State, 831 P.2d 204, 205 (Wyo. 1992). Constitutional
challenges to pretrial proceedings, including claims of
unlawfully obtained evidence, as in this case, fall into the
category of non-jurisdictional claims which do not survive a
valid guilty plea or nolo contendere plea. The only exception
to the waiver rule can be found in W.R.Cr.P. 11(a)(2), which
“allows a defendant to plead guilty while reserving the right
to seek review on appeal of any specified pretrial motion.”
Bailey, 12 P.3d at 177. However, we have held that a
conditional plea of guilty or nolo contendere, while providing
a mechanism for appellate review, does not provide carte
blanche permission for an appellant to present any and all
arguments on appeal. Morgan, ¶¶ 24–25, 95 P.3d at 808–09
(citing Bailey, 12 P.3d at 177–78); see also Custer v. State,
2006 WY 72, ¶¶ 10–12, 135 P.3d 620, 623–24 (Wyo. 2006);
Lindsay v. State, 2005 WY 34, ¶¶ 16–17, 19 n.7, 108 P.3d
852, 856–57 n.7 (Wyo. 2005). Instead, an appellant may only
argue those issues which were clearly brought to the attention
of the district court. Morgan, ¶ 24, 95 P.3d at 808–09.
4
Kunselman v. State, 2008 WY 85, ¶ 11, 188 P.3d 567, 569-70 (Wyo. 2008); see also
Tucker v. State, 2009 WY 107, ¶ 30, 214 P.3d 236, 245-46 (Wyo. 2009).
[¶16] During the hearing on Ward’s motion to suppress, the prosecutor elicited the
following testimony from Officer Dillard:
Q. Okay. And is your dog certified as a canine in
the State of Wyoming?
A. Yes, sir. He’s certified through the Wyoming
Police Service Dog Association of Wyoming.
Q. And in regard to that what substances is your
dog certified to detect?
A. Cocaine, heroin, methamphetamine and
marijuana.
[¶17] Ward’s counsel asked no questions concerning the qualifications of Officer
Dillard’s drug dog, and as the district court noted in its order, Ward at no time questioned
or challenged the dog’s qualifications. Moreover, Ward at no time suggested that the
State had not met its burden of showing that the dog was a qualified drug dog. Under
these circumstances, Ward did not preserve for appeal the question of whether the drug
dog was properly qualified or the question of whether the State met its burden of showing
the dog’s qualifications. See Morgan v. State, 2004 WY 95, ¶ 25, 95 P.3d 802 at 809
(Wyo. 2004) (declining to address issues concerning drug dog's reliability and State's
foundation for that reliability on conditional plea appeal where issue was not raised in
motion to suppress). We therefore will not address the issue here.
CONCLUSION
[¶18] In entering his conditional plea pursuant to W.R.Cr.P. 11(a)(2), Ward did not
properly reserve any questions concerning the reliability of the drug dog used to conduct
a free-air sniff outside his vehicle, and we therefore will not address those questions on
appeal. Affirmed.
5