                IN THE SUPREME COURT, STATE OF WYOMING

                                         2014 WY 76

                                                              APRIL TERM, A.D. 2014

                                                                     June 13, 2014

TINA D. ENGDAHL,

Appellant
(Defendant),

v.                                                   S-13-0201

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                   Appeal from the District Court of Campbell County
                      The Honorable Michael N. Deegan, Judge

Representing Appellant:
      Office of the State Public Defender: Diane Lozano, State Public Defender; Tina
      Olson, Chief Appellate Counsel; and David E. Westling, Senior Assistant
      Appellate Counsel. Argument presented by Mr. Westling.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jenny L. Craig, Senior Assistant Attorney General; and Caitlin
      Young, Assistant Attorney General. Argument by Ms. Young.

Before KITE, C.J., and HILL, BURKE, 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] Tina Engdahl entered a conditional Alford plea to one count of possession of a
controlled substance in violation of Wyo. Stat. Ann. § 35-7-1031(c)(ii) conditioned upon
her right to appeal the district court’s previous denial of her motion to suppress evidence.
On appeal, Engdahl contends that she should have been permitted to leave the scene of a
traffic stop when she asked to do so. She also argues that the deputy lacked reasonable
suspicion to detain her and that she should have been read Miranda rights. We will
affirm the district court.

                                          ISSUE

[¶2]   Engdahl presents one issue for our review:

              The trial court erred in denying Engdahl’s motion to suppress
              evidence, as law enforcement had no reasonable, articulable
              suspicion on which to detain her.

                                         FACTS

[¶3] On June 14, 2012, Deputy Ryan Undeberg stopped a pickup truck because it did
not have license plates. The driver of the truck was unable to provide his license,
registration, or proof of insurance. The driver and passenger identified themselves as
Ron Harris and Tina Engdahl, respectively. After they identified themselves, the deputy
radioed for more information on both individuals and learned that each had a prior drug
history and that Harris’s driver’s license was suspended at that time.

[¶4] The deputy then informed Harris that he would receive a citation for driving on a
suspended license. The deputy asked more questions regarding the truck at which point
Engdahl asked if she could leave the scene and walk to a friend’s house. The deputy told
her to “hang out for just a sec” as he was still determining the ownership of the truck. At
that time Deputy Undeberg obtained the truck’s vehicle identification number [VIN] to
confirm ownership. Another officer, Corporal Randy Parker, arrived on scene and the
two officers discussed the events up to that point. Deputy Undeberg asked Corporal
Parker to have his drug dog sniff around the exterior of the truck while Deputy Undeberg
talked to Harris. The drug dog indicated there were drugs in the vehicle. Corporal Parker
then asked Engdahl if she “had any drug paraphernalia on her.” She admitted that she did
and handed Corporal Parker a methamphetamine pipe.

[¶5] After handing over her methamphetamine pipe, Engdahl also placed two baggies
on the hood of the car at the request of Deputy Undeberg. The deputy then asked
Engdahl to remove her coat, which he searched and in which he found a large chunk of



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suspected methamphetamine. A subsequent pat down search of Engdahl occurred and
she was then placed under arrest.

[¶6] On June 14, 2012, Engdahl was formally charged with one felony count of
possession of a controlled substance in an amount greater than three grams. Defense
counsel filed a motion to suppress evidence on behalf of Engdahl, arguing that because
Deputy Undeberg did not allow her to leave when she asked permission to do so, a Terry
stop was transformed into a custodial interrogation which should have required the
deputy to inform Engdahl of her Miranda rights before asking any more questions.
Because Deputy Undeberg did not allow her to leave, nor did he inform her of her
Miranda rights, Engdahl argued in her motion that her Wyoming and United States
constitutional rights were violated and that the court should suppress all evidence
obtained after the deputy told her to remain at the scene.

[¶7] The district court held a hearing on Engdahl’s motion. After hearing testimony
from both officers involved and listening to a recording from Deputy Undeberg’s
dashboard camera the district court denied the motion to suppress. Under the two-part
Terry analysis the court concluded the initial stop was justified and that Deputy
Undeberg’s actions were reasonably related in scope to the circumstances that justified
the stop in the first place. According to the district court, Engdahl was not in custody or
subject to custodial interrogation when the drugs and paraphernalia were found but was
being subject to general on-scene questioning that did not require Miranda warnings.

[¶8] Seven months after the denial of the motion to suppress Engdahl entered a
conditional Alford plea and reserved her right to appeal the district court’s denial of her
motion to suppress. The court sentenced her to serve no less than two nor more than four
years in prison, suspended in favor of supervised probation. This appeal followed.

                              STANDARD OF REVIEW

[¶9]   We review a district court’s denial of a motion to suppress as follows:

                           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, ¶ 25, 301 P.3d at 117 (citing Owens, ¶ 8, 269
                   P.3d at 1095). See also Lovato v. State, 2010 WY 38,


                                             2
                       ¶ 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)).

                 Hunnicutt-Carter v. State, 2013 WY 103, ¶ 20, 308 P.3d 847,
                 852 (Wyo. 2013); see also Phelps v. State, 2012 WY 87, ¶ 19,
                 278 P.3d 1148, 1153 (Wyo. 2012).

Klomliam v. State, 2014 WY 1, ¶ 14, 315 P.3d 665, 668-669 (Wyo. 2014).

                                            DISCUSSION

[¶10] In her only issue on appeal, Engdahl claims that the trial court erred in denying her
motion to suppress evidence because law enforcement had no reasonable, articulable
suspicion on which to detain her. She also claims that because she was illegally detained,
she should have received Miranda warnings.

[¶11] Our case law on search and seizure law is well settled:

                        The Fourth Amendment protects individuals from
                 unreasonable searches and seizures. U.S. Const. amend IV.
                 A routine traffic stop constitutes a seizure within the meaning
                 of the Fourth Amendment “even though the purpose of the
                 stop is limited and the resulting detention quite brief.”
                 Damato v. State, 2003 WY 13, ¶ 9, 64 P.3d 700, 704 (Wyo.
                 2003) (quoting Delaware v. Prouse, 440 U.S. 648, 653, 99
                 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979)). Because a traffic
                 stop is more analogous to an investigative detention than a
                 custodial arrest, the reasonableness of such stops are analyzed
                 under the two-part test articulated in Terry v. Ohio, 392 U.S.
                 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968): (1)
                 whether the initial stop was justified; and (2) whether the
                 officer’s actions during the detention were “reasonably
                 related in scope to the circumstances that justified the
                 interference in the first instance.” Damato, ¶ 9, 64 P.3d at
                 705; see also Campbell, ¶ 11, 97 P.3d at 784; Barch v. State,
                 2004 WY 79, ¶ 8, 92 P.3d 828, 832 (Wyo. 2004).

Garvin v. State, 2007 WY 190, ¶ 13, 172 P.3d 725, 728-29, (Wyo. 2007).1

1
    Engdahl also argues that art. 1, sec. 4, of the Wyoming Constitution provides greater protection than


                                                    3
[¶12] Engdahl does not challenge the appropriateness of the initial stop.2 Thus, our
analysis focuses on the second prong of the Terry analysis − the reasonableness of the
detention as it relates to the initial stop. Again Garvin is instructive here:

                During a routine traffic stop, a law enforcement officer may
                request a driver’s license, proof of insurance and vehicle
                registration, run a computer check, and issue a citation.
                Campbell, ¶ 12, 97 P.3d at 785; Damato, ¶ 13, 64 P.3d at 706
                (citing Burgos-Seberos v. State, 969 P.2d 1131, 1133 (Wyo.
                1998); United States v. Elliott, 107 F.3d 810, 813 (10th Cir.
                1997)). Generally, the driver must be allowed to proceed on
                his way without further delay once the officer determines the
                driver has a valid driver’s license and is entitled to operate the
                vehicle. Damato, ¶ 13, 64 P.3d at 706; see also United States
                v. Wood, 106 F.3d 942, 945 (10th Cir. 1997); Barch, ¶ 9, 92
                P.3d at 832. In the absence of consent, an officer may expand
                the investigative detention beyond the purpose of the initial
                stop only if there exists an “‘objectively reasonable and
                articulable suspicion’ that criminal activity has occurred or is
                occurring.” Damato, ¶ 13, 64 P.3d at 706 (quoting United
                States v. Williams, 271 F.3d 1262, 1267 (10th Cir. 2001)).
                The existence of objectively reasonable suspicion of criminal
                activity is determined by evaluating the totality of the

the federal constitution. As we stated in Klomliam v. State, 2014 WY 1, ¶ 17, n.1, 315 P.3d 665, 669
(Wyo. 2014):

        [This Court has] observed, however, that in assessing the reasonableness of a
        traffic stop and detention, there is not a significant difference between our federal
        and state analysis, given that under either analysis we are considering the
        reasonableness of the government intrusion in light of all the circumstances.
        Fertig v. State, 2006 WY 148, ¶¶ 18-19, 146 P.3d 492, 497-98 (Wyo. 2006); see
        also Yoeuth v. State, 2009 WY 61, ¶ 24, 206 P.3d 1278, 1284 (Wyo. 2009);
        O’Boyle v. State, 2005 WY 83, ¶ 50, 117 P.3d 401, 415 (Wyo. 2005). We
        therefore employ these same considerations under a state constitutional analysis.

In any case, Engdahl fails to provide a “precise, analytically sound approach when advancing an argument
to independently interpret the state constitution.” Vasquez v. State, 990 P.2d 476, 484 (Wyo. 1999).
2
  Though Engdahl does not challenge the appropriateness of the initial stop, we nevertheless note that the
United States Supreme Court has held that the first Terry requirement is “met whenever it is lawful for
police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police
need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity.”
Lovato v. State, 2012 WY 10, ¶ 10, 269 P.3d 426, 429 (citing Arizona v. Johnson, 555 U.S. 323, 327
(2009)) (emphasis added).


                                                      4
              circumstances. Damato, ¶ 16, 64 P.3d at 707. The “whole
              picture” must be considered, “[c]ommon sense and ordinary
              human experience are to be employed, and deference is to be
              accorded a law enforcement officer’s ability to distinguish
              between innocent and suspicious actions.” Id. (citing Wood,
              106 F.3d at 946).

Garvin, ¶ 14, 172 P.3d at 729.

[¶13] Here, the officer became focused on whether or not the vehicle was stolen. After
all, the original basis for the stop was the pickup truck’s missing license plates and while
Engdahl was able to show identification, the driver failed to produce identification,
registration, or proof of ownership. Engdahl’s request to walk to a friend’s house came
as the deputy approached the truck to inform the driver that he had a suspended license
and would therefore be receiving a ticket. Engdahl argues here that the deputy only
continued to detain her “because of her prior drug history” and until the canine sniff.
However, our review of the record and specifically the DVD of the stop, shows that up to
that point Engdahl had actively participated in answering the deputy’s questions
regarding the truck and its ownership. At the time she requested to leave and walk to a
friend’s house, the deputy had not yet confirmed the VIN number and was still in the
process of confirming whether or not the truck was stolen. His actions and his denial of
Engdahl’s request to leave were entirely related to the scope of the stop.

[¶14] Engdahl also argues that the deputy continued to detain her until the canine sniff
could occur. According to the United States Supreme Court, the Fourth Amendment
does not prohibit police from using a narcotics-detection dog during a lawful traffic stop
even in the complete absence of reasonable suspicion so long as the canine sweep does
not extend the length of the traffic stop. Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834,
160 L.Ed.2d 842 (2005) (see Wallace v. State, 2009 WY 144, ¶ 10, 221 P.3d 967, 969
(Wyo. 2009)). Here, Corporal Parker arrived at the scene as a cover unit while patrolling
the area and was not called for the purpose of utilizing his drug dog. He was not
requested by Deputy Undeberg – Corporal Parker drove to the location of his own
volition. Nevertheless, Magnum the dog sniffed around the truck during the traffic stop.
Qualifying as a free air sniff and because it did not extend the length or scope of the
traffic stop, the dog sniff was constitutionally permissible.

Miranda Warnings

[¶15] In a peripheral argument to her single issue, Engdahl argues that she should have
been given Miranda warnings during the course of the stop because she was effectively
in custody. With regard to when a suspect is subject to custodial interrogation, thus
requiring Miranda warnings, we have said the following:



                                              5
             Custodial interrogation means questioning initiated by law
             enforcement officers after a person has been taken into
             custody or otherwise deprived of his freedom of action in any
             significant way. Jelle v. State, 2005 WY 111, ¶ 14, 119 P.3d
             403, 408 (Wyo. 2005). In resolving the custodial status of a
             suspect we consider “whether a reasonable man in [the
             suspect’s] position would have considered himself to be in
             police custody.” Gompf v. State, 2005 WY 112, ¶ 31, 120
             P.3d 980, 988 (Wyo. 2005). General on-the-scene questioning
             as to facts surrounding a crime is not “custodial interrogation,”
             nor are statements volunteered freely without compelling
             influences. Id. We consider the totality of the circumstances
             when determining whether a suspect was in custody when
             questioned. Id.       Several factors are relevant to the
             determination:

                  Among these are: (1) whether a suspect is questioned in
                  familiar or neutral surroundings; (2) the number of police
                  officers present; (3) the degree of physical restraint and
                  whether it is comparable to those associated with a
                  formal arrest; and (4) the duration and character of the
                  interrogation. See 2 Wayne R. LaFave, Jerold H. Israel
                  and Nancy J. King, Criminal Procedure § 6.6(c) at 527
                  (2nd ed. 1999); see also Wunder [v. State], 705 P.2d
                  [333,] 335 [(Wyo. 1985)].

             Jelle, ¶ 14, 119 P.3d at 408.

Nava v. State 2010 WY 46, ¶ 10, 228 P.3d 1311, 1314 (Wyo. 2010) (citing Barnes v.
State, 2008 WY 6, ¶ 14, 174 P.3d 732, 736-37 (Wyo. 2008)).

[¶16] We have also pointed out the following considerations as relevant in some cases:

                  The nature of the interrogator, the nature of the suspect,
                  the time and place of the interrogation, the progress of the
                  investigation at the time of the interrogation, whether the
                  suspect is informed that his detention would not be
                  temporary, and the elapsed amount of time between
                  questioning and the arrest may be important factors as
                  well.

             Jelle v. State, 2005 WY 111, ¶ 14, 119 P.3d 403, 408 (Wyo.
             2005).


                                             6
Nava, ¶ 10, 228 P.3d 1314.

[¶17] Engdahl directs this Court to United States v. Perdue, 8 F.3d 1455, 1463-64 (10th
Cir. 1993), where the Tenth Circuit recognized a limited exception to the general rule that
traffic stops do not usually implicate Miranda concerns because of their noncoercive and
nonthreatening nature. Id., 8 F.3d at 1462. The Perdue court held that police officers
must advise suspects of their constitutional rights even in the context of a Terry stop, “if
they … take highly intrusive steps to protect themselves from danger.” Id., 8 F.3d at
1465. The exception applied in Perdue because, as the court explained, the police forced
the defendant out of his car and onto the ground at gunpoint, then questioned him with
their guns drawn on him and his pregnant fiancée as police helicopters hovered above. Id,
8 F.3d at 1464. Under those circumstances the court held Perdue was in police custody
because any person in his position would have felt completely at the mercy of the police.
Id., 8 F.3d at 1465.

[¶18] While Engdahl does not compare the factual situation here to Perdue, she
nevertheless argues that Corporal Parker’s questions about drug paraphernalia were
effectively “interrogation” and likely to elicit an incriminating response. Engdahl does
not explain or analyze this statement any further. Accordingly, we will address her
statement through our own evaluation.

[¶19] We stated in Nava the following:

              [W]e evaluate the nature of police interrogation using
              an objective “reasonable man” standard. See supra
              ¶ 10. Thus, the subjective beliefs or feelings of neither
              the trooper nor the appellant are relevant to the
              question of whether particular interrogation was
              custodial. We have said “[t]he Court has been
              unwilling to entertain Fourth Amendment challenges
              based on the actual motivations of individual officers
              and has held unanimously that ‘[s]ubjective intentions
              play no role in ordinary, probable-cause Fourth
              Amendment analysis.’” Damato v. State, 2003 WY
              13, ¶ 10, 64 P.3d 700, 705 (Wyo. 2003) (quoting
              Whren v. United States, 517 U.S. 806, 813, 116 S.Ct.
              1769, 1774, 135 L.Ed.2d 89 (1996)); see also
              Marinaro v. State, 2007 WY 123, ¶ 11 n.3, 163 P.3d
              833, 836 n.3 (Wyo. 2007).

Id., ¶ 11, 228 P.3d at 1314-1315. We also noted in Nava that our own precedent is
instructive in showing what type of questioning is, or is not, custodial in nature, taking


                                              7
into consideration the factors we mentioned above. See Jelle, supra. Keeping all of that
in mind and applying it to the facts in this case we cannot conclude that Engdahl was in
custody for Miranda purposes.

[¶20] Engdahl was originally and lawfully detained due to a valid traffic stop. Corporal
Randy Parker asked Engdahl only one direct question during a completely legitimate
traffic stop and the question only came after the drug dog had already alerted. She was
not restrained physically and was told simply to “hang out for just a sec” after she asked to
walk to a friend’s house. Unlike in Damato v. State, 2003 WY 13, 64 P.3d 700 (Wyo.
2003) where the deputy retained Mr. Damato’s license and registration, there were no
documents retained by the deputy (because there were none produced by Engdahl or the
driver). Id., ¶ 9, 64 P.3d 704-05. Deputy Undeberg was attempting to verify the VIN on
the vehicle to ensure it was not stolen given that it lacked license plates and its driver had
no identification, registration, proof of insurance, or a bill of sale. The duration of the
detention was relatively short, coming in at approximately nine minutes, and the officers’
questions were strictly related to the purpose of the stop. Neither officer brandished their
weapon. They were only two – there was no mass police presence. Finally, although the
officer had not yet stated that Engdahl was “free to leave” and had asked her to “hang out
for a sec” in response to her asking if she could walk to a friend’s house, the officer’s
investigation was not completed. She knew he was trying to determine to whom the
vehicle belonged and he was doing so in an expedient manner. Although she was
officially seized as the passenger of the pickup truck during the traffic stop, Engdahl was
not in custody such that she was subject to a custodial interrogation.

[¶21] Considering the totality of the circumstances in this instance, Engdahl was not
entitled to receive Miranda rights.

                                     CONCLUSION

[¶22] We affirm the district court’s order denying Engdahl’s motion to suppress the
evidence produced during the stop.




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