                IN THE SUPREME COURT, STATE OF WYOMING

                                         2013 WY 30

                                                            OCTOBER TERM, A.D. 2012

                                                                    March 13, 2013

CONNOR TIMOTHY CORRIGAN
PHIPPEN,

Appellant
(Defendant),
                                                     S-12-0157
v.

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                    Appeal from the District Court of Johnson County
                         The Honorable John G. Fenn, Judge

Representing Appellant:
      Christopher M. Wages of Goddard, Wages & Vogel, Buffalo, WY.

Representing Appellee:
      Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Paul
      S. Rehurek, Senior Assistant Attorney General, and Christyne Marie Martens,
      Assistant Attorney General. Argument by Ms. Martens.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, 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] 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

[¶2]   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

[¶3] 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.

[¶4] 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, Lieutenant 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.



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[¶5] 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.

[¶6] 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 Fraley 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.

[¶7] The Johnson County prosecutor charged Phippen with two felonies: possession
with intent to deliver marijuana, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii) and
conspiracy to deliver marijuana, in violation of Wyo. Stat. Ann. §§ 35-7-1031(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.

[¶8] 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 Phippen 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 circumstances analysis, which included the report of marijuana
usage, that Phippen and Rose both admitted to smoking marijuana, that the truck
belonged to Phippen, 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.

[¶9] 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, Phippen 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 recommend 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 dispositive issue for
appeal, and Phippen’s second suppression motion remained unaddressed by the court.


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[¶10] 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 circumstances, 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 [Phippin’s] truck was lawful based on the totality of the
circumstances prior to [Phippin’s] arrest.” This appeal followed.

                               STANDARD OF REVIEW

[¶11] When reviewing a trial court’s ruling on a motion to suppress,

              [W]e 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 144, ¶ 8, 221 P.3d 967, 969 (Wyo. 2009).

                                      DISCUSSION

[¶12] Phippen states his issue on appeal as whether or not the warrantless search of his
vehicle violated the Wyoming Constitution because it was unreasonable under the
circumstances and was not supported by probable cause. However, we view this appeal
somewhat differently, for two reasons. First, the specific issue preserved in the district
court’s order after Phippen’s conditional plea following the suppression hearing is
“whether or not the search of [Phippen’s] truck was lawful based on the totality of
circumstances prior to [Phippen’s] arrest.” “A conditional plea of guilty does not provide
carte blanche permission for [Phippen] to present any and all arguments on appeal.”
Miller v. State, 2009 WY 125, ¶ 32, 217 P.3d 793, 803 (Wyo. 2009). Only the arguments
clearly presented before the district court may be raised on appeal. Id. Second, as
pointed out by the State and according to our review of the record, Phippen did not
adequately raise the Wyoming Constitutional issue separately when presenting his motion


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to suppress to the district court. Furthermore, he failed to present cogent legal analysis to
this Court regarding the same. An appellant does not preserve a Wyoming constitutional
argument for appeal by merely citing to the Wyoming Constitution in his motion to
suppress without independent supporting analysis of why or how that constitution
provides different or more extensive protections. Flood v. State, 2007 WY 167, ¶ 12, 169
P.3d 538, 543 (Wyo. 2007). Although Phippen devotes a portion of his brief to the
matter of “Article I, Section 4 provides greater protection than the Federal Constitution,”
he neglects to articulate exactly how the Wyoming Constitution provides greater
protection.

[¶13] With the foregoing in mind, we proceed to analyze this case under the Fourth
Amendment of the United States Constitution. Under the Fourth Amendment,
warrantless searches and seizures are unreasonable absent a recognized exception to the
warrant requirement. Tucker v. State, 2009 WY 107, ¶ 22, 214 P.3d 236, 243 (Wyo.
2009). Like most jurisdictions, Wyoming has recognized several exceptions to the
warrant requirement, including the automobile exception. McKenney v. State, 2007 WY
129, ¶ 12, 165 P.3d 96, 99 (Wyo. 2007). That exception states that an automobile may be
searched without a warrant when there is probable cause to believe it contains contraband
or evidence of a crime. Id. Probable cause to search an automobile “is established if,
under the totality of the circumstances, there is a fair probability that the car contains
contraband or evidence of a crime.” Id. at ¶ 8, 165 P.3d 98. Those circumstances
supporting a finding of probable cause need not provide proof of guilt or even prima facie
evidence of guilt. Tucker v. State, 2009 WY 107, ¶ 22, 214 P.3d 236, 243 (Wyo. 2009).
The totality of circumstances that qualify for analysis in a particular case are those
circumstances collectively known to law enforcement cooperating in the particular
criminal investigation. Rohda v. State, 2006 WY 120, ¶ 19, 142 P.3d 1155, 1165-66
(Wyo. 2006).

[¶14] A very recent United States Supreme Court decision, Florida v. Harris, 568 U.S.
____, (2013), expounds upon the benefits of a totality of the circumstances approach
within the context of probable cause, and states:

              The test for probable cause is not reducible to “precise
              definition or quantification.” Maryland v. Pringle, 540 U. S.
              366, 371 (2003). “Finely tuned standards such as proof
              beyond a reasonable doubt or by a preponderance of the
              evidence . . . have no place in the [probable-cause] decision.”
              Gates, 462 U. S., at 235. All we have required is the kind of
              “fair probability” on which “reasonable and prudent [people,]
              not legal technicians, act.” Id., at 238, 231 (internal quotation
              marks omitted).




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                      In evaluating whether the State has met this practical
              and common-sensical standard, we have consistently looked
              to the totality of the circumstances. See, e.g., Pringle, 540 U.
              S., at 371; Gates, 462 U.S., at 232; Brinegar v. United States,
              338 U.S. 160, 176 (1949). We have rejected rigid rules,
              bright-line tests, and mechanistic inquiries in favor of a more
              flexible, all-things-considered approach.        In Gates, for
              example, we abandoned our old test for assessing the
              reliability of informants’ tips because it had devolved into a
              “complex superstructure of evidentiary and analytical rules,”
              any one of which, if not complied with, would derail a finding
              of probable cause. 462 U.S., at 235. We lamented the
              development of a list of “inflexible, independent requirements
              applicable in every case.” Id. at 230, n.6. Probable cause, we
              emphasized, is “a fluid concept--turning on the assessment of
              probabilities in particular factual contexts--not readily, or
              even usefully, reduced to a neat set of legal rules.” Id., at
              232.

[¶15] In keeping with Harris, and in applying our oft-repeated standard, this Court has
held that the odor of contraband, standing alone, can supply probable cause. McKenney,
¶¶ 9-10, 165 P.3d 98. Furthermore, a dog sniff is not a search within the meaning of the
Fourth Amendment, and an alert by a reliable drug dog specifically trained to detect the
odor of contraband constitutes probable cause to search an automobile without a warrant.
In this case, however, the district court considered other facts to make its determination
based upon the totality of the circumstances, an approach we find to be sound and based
upon the sum of this case’s parts.

[¶16] Here, Buddy, a trained and reliable drug dog, alerted to Phippen’s truck that was
parked in the Hampton Inn’s parking lot. Testimony elicited at the suppression hearing
showed that Buddy alerted through several behaviors that indicated he detected the odor
of illegal substances. Buddy changed his breathing, he changed his “gear set” and body
posture, and he altered the speed of his search, and bracketed the odor by going back and
forth between the tail gate of the pickup to the front door seam. Buddy was trained to
alert to drug odor through these behaviors, and to pinpoint the source of the odor by
sitting down, explained Officer Tkach. However, although Officer Tkach concluded that
Buddy officially alerted, the officer noted that Buddy never gave his final sit indication.
Even so, the officer in charge of Buddy believed, as a result of the alert by Buddy, that he
had probable cause to search the truck. Furthermore, the officer in charge of Buddy had
been a canine officer for eighteen of his total thirty-five years as a police officer. The
district court was faced with conflicting testimony from Officer Fraley who, by
comparison, had no training regarding drug dogs. In the end, the court made a specific
finding that Buddy alerted to Phippen’s truck, thereby resolving the conflicting


                                              5
testimony. Despite the absence of a specific finding as to Buddy’s training and reliability
as a drug dog, our review of the record indicates more than enough testimony showing
Buddy’s abilities as a certified drug dog. Lieutenant Tkach testified that he and Buddy
worked together for over 11 years, including over 600 hours of post-certification training
and hundreds more hours of informal training. Buddy was certified by the National
Police Canine Association to detect marijuana specifically. Although Buddy had made
false alerts, it happened a total of less than five percent of the time.

[¶17] Buddy’s training as a drug dog is notable and extensive. However, Buddy’s alert
may or may not have been enough to provide probable cause for the search of Phippen’s
truck. We need not make that determination because, although the district court
concluded that Buddy made an “alert of some sort,” the search of the pickup was
affirmed because of the totality of the circumstances. Additional facts beyond the dog
search were used by the district court to determine that probable cause existed. These
facts included that the Hampton Inn staff reported the smell of marijuana in Phippen’s
room, and that both Phippen and Rose admitted to using marijuana in their room. Also,
Rose openly told law enforcement that Phippen supplied her with the marijuana and that
he brought it to their hotel room. From the totality of these circumstances, we conclude
that an officer of reasonable prudence would have been warranted in the belief that
controlled substances would be found in Phippen’s vehicle.

                                    CONCLUSION

[¶18] Having concluded that the search of Phippen’s truck was lawful based upon the
totality of circumstances prior to his arrest, we affirm the district court’s denial of the
Motion to Suppress.




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