Connor Timothy Corrigan Phippen v. The State of Wyoming

2013 WY 30, 297 P.3d 104, 2013 WL 951129, 2013 Wyo. LEXIS 34
CourtWyoming Supreme Court
DecidedMarch 13, 2013
DocketS-12-0157
StatusPublished
Cited by9 cases

This text of 2013 WY 30 (Connor Timothy Corrigan Phippen v. The State of Wyoming) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Connor Timothy Corrigan Phippen v. The State of Wyoming, 2013 WY 30, 297 P.3d 104, 2013 WL 951129, 2013 Wyo. LEXIS 34 (Wyo. 2013).

Opinion

HILL, Justice.

[11] After conditionally pleading guilty to possession with intent to deliver marijuana, Connor Timothy Corrigan Phippen challenges the district court's denial of his motion to suppress evidence discovered during a search of his vehicle. He contends that the drug dog sniff was inconclusive and that the subsequent search of his vehicle was illegal. We affirm, based upon our conclusion that the totality of the circumstances was sufficient to find probable cause.

ISSUE

[12] Phippen presents one issue:

Whether or not the warrantless search of Mr. Phippen's vehicle violated Article I, Section 4 of the Wyoming Constitution because it was unreasonable under the circumstances and was not supported by probable cause.

FACTS

[13] In March of 2011, a staff member from the Hampton Inn in Buffalo, Wyoming, reported to the Buffalo Police Department the smell of marijuana emanating from a hotel room. Three officers responded to the report. One of them, Sergeant Dan Fraley, spoke with hotel staff that identified a man checking out at the front desk and a woman seated in the lobby as the alleged pot smokers. Sergeant Fraley approached the man, identified himself, and informed the man of the allegation. Connor Phippen and Dana Rose both admitted that the allegation was true, and Rose added that Phippen gave her the marijuana and that Phippen brought the drug into their hotel room where they both smoked the marijuana.

[14] Phippen and Rose told officers they had driven from Denver to Buffalo in a pickup truck, which was parked outside the Hampton Inn. When Sergeant Fraley asked for permission to search the truck, Phippen told him a dog could walk around the truck. Sergeant Fraley radioed his colleague, Lieu tenant Andy Tkach, a canine officer who was already in the parking lot with his dog Buddy. Lieutenant Tkach had gone to the Hampton Inn after hearing on his radio that Sergeant Fraley was dispatched there for a complaint involving marijuana. He parked in the parking lot and after learning that the suspects' truck had Minnesota license plates, he identified the only pickup with Minnesota plates and had Buddy walk around the vehicle. Buddy alerted that marijuana was inside the vehicle. However, he did not give his final "sit" which tells his handler that he has pinpointed the source of the odor. His alert, however, told Lieutenant Tkach that the odor of illegal drugs was coming from the pickup.

[15] After Buddy had alerted, Lieutenant Tkach asked Phippen for permission to search the truck, and Phippen responded the same way he had to Sergeant Fraley-that the dog could walk around the vehicle, Although Phippen did not know Buddy had already alerted to the vehicle, Phippen also told Lieutenant Tkach that he could search the vehicle if the dog hit on it. At that point, the officers placed Phippen under arrest. On his person at the time of arrest, Phippen was carrying candy and juice both containing THC, as well as over $4,000.00 in cash, most of which was comprised of $100 dollar bills and $50 dollar bills.

[16] After the arrest, Sergeant Fraley began an inventory of the vehicle, during which a grocery bag was found containing items Sergeant Fraley suspected to be illegal drugs. Upon that discovery, Sergeant Fra-ley stopped the inventory and instructed another officer to apply for a search warrant, which was acquired. Indeed, as suspected the grocery bag contained marijuana. Officers also found a duffle bag with approximately six pounds of marijuana.

*107 [T7] The Johnson County prosecutor charged Phippen with two felonies: possession with intent to deliver marijuana, in violation of Wyo. Stat. Ann. § 85-7-1031(a)(ii) and conspiracy to deliver marijuana, in violation of Wyo. Stat. Ann. §§ 85-7-1031(a)(ii) and 35-7-1042. The second charge was dismissed at the preliminary hearing, but arraignment proceeded on the first charge, to which Phippen pled not guilty.

[T8] As to the first charge, Phippen filed a motion to suppress, alleging the search of his vehicle was unlawful under both the federal and state constitutions. A hearing was held on September 12, 2011. Although Phip-pen tried to additionally challenge the legality of his arrest, the State objected and the district court limited the hearing to the legality of the search of Phippen's truck. The district court sustained the search, reasoning that the automobile exception justified the search of Phippen's pickup. Applying a totality of the cireumstances analysis, which included the report of marijuana usage, that Phippen and Rose both admitted to smoking marijuana, that the truck belonged to Phip-pen, and that the drug dog alerted, the court concluded that there was probable cause to search the truck and denied Phippen's motion. The court made no further ruling and did not consider incriminating items and contraband on Phippen's person when arrested, as they were outside the scope of the hearing.

[T9] Phippen filed a second motion to suppress specifically challenging the legality of his arrest. However, a plea agreement was reached subsequent to the motion but before a hearing. In the agreement, Phip-pen agreed to enter a guilty plea conditioned upon his right to appeal the district court's first suppression ruling from September 12, 2011. In exchange, the State agreed to ree-ommend a sentence of three to five years, suspended in favor of a split sentence of 45 days in jail followed by three years of probation. The plea agreement filed on October 7, 2011, did not specifically set forth a disposi-tive issue for appeal, and Phippen's second suppression motion remained unaddressed by the court.

[110] After a status conference prompted a setting for the second suppression motion, a hearing was held January 17, 2012. The parties relied on transcripts from the first hearing and no additional evidence was offered. The district court determined that Phippen's arrest was unlawful. After resolving the issue of the arrest, defense counsel then stated, "... as far as the conditional plea, I think that now we are in a position if the dog search fails, the whole thing is suppressed and its dispositive, If the dog search is upheld, then we lose." The court clarified that the totality of the cireum-stances, in addition to the dog's alert, needed to be considered. The court then accepted Phippen's conditional plea, accepted the plea agreement, and sentenced Phippen according to the plea agreement. The court's order stated that the specific issue preserved for appeal was "whether or not the search of [Phippen's] truck was lawful based on the totality of the cireumstances prior to [Phip-pen's] arrest." This appeal followed.

STANDARD OF REVIEW

[Til] When reviewing a trial court's ruling on a motion to suppress,

[Wle do not interfere with the trial court's findings of fact unless the findings are clearly erroneous. We view the evidence in the light most favorable to the trial court's determination because the trial court has an opportunity at the evidentiary hearing to assess the credibility of the witnesses, weigh the evidence, and make the necessary inferences, deductions, and conclusions. The constitutionality of a particular search is a question of law that we review de novo.

Wallace v. State, 2009 WY 152, ¶ 8, 221 P.3d 967, 969 (Wyo.2009).

DISCUSSION

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Cite This Page — Counsel Stack

Bluebook (online)
2013 WY 30, 297 P.3d 104, 2013 WL 951129, 2013 Wyo. LEXIS 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/connor-timothy-corrigan-phippen-v-the-state-of-wyoming-wyo-2013.