                IN THE SUPREME COURT, STATE OF WYOMING

                                         2017 WY 22

                                                            OCTOBER TERM, A.D. 2016

                                                                     March 1, 2017

MICHAEL WAYNE SWEETS,

Appellant
(Defendant),

v.                                                   S-16-0158

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                  Appeal from the District Court of Sweetwater County
                          The Honorable Nena James, Judge

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

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Christyne M. Martens, Senior Assistant Attorney General; and
      Katherine A. Adams, Assistant Attorney General.


Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, 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] Michael Wayne Sweets entered a conditional guilty plea to felony possession of
methamphetamine. Mr. Sweets reserved the right to challenge the denial of his motion to
suppress, hence this appeal. We will affirm.

                                         ISSUE

[¶2]   Mr. Sweets presents one issue:

             The search of Mr. Sweets’ person without a warrant or
             probable cause was a violation of the prohibition of
             unreasonable searches as set out by the Fourth and Fourteenth
             Amendments to the United States Constitution and the trial
             court’s refusal to suppress the fruits of that search constitutes
             reversible error.

                                         FACTS

[¶3] On October 27, 2015, the Rock Springs police department and the Wyoming
Department of Criminal Investigation together executed an arrest warrant on Helen
McCaulley and investigated a tip that Matthew Sweets had bought methamphetamine
within the last 24 hours. Mr. Sweets and Ms. McCaulley are engaged to be married.

[¶4] As law enforcement arrived at Ms. McCaulley’s home to execute the warrant, they
were surprised to find Mr. Sweets leaving. Detective Jason Mower told Mr. Sweets they
needed to talk. Detective Mower told Mr. Sweets he was not under arrest, advised Mr.
Sweets of his rights, and began to tell him about the tip that Mr. Sweets bought drugs the
night before. Mr. Sweets denied any involvement in drug activity. Detective Mower told
Mr. Sweets that he would get a search warrant if he did not cooperate and told Mr.
Sweets to keep his hands out of his pockets. He allowed Mr. Sweets to go in the home to
get a cigarette, which he came back outside to smoke. Another detective stayed with Mr.
Sweets while Detective Mower went to speak to DCI Agent Cody Ruiz, who was
executing the warrant inside the home. During their brief conversation, Agent Ruiz
asked if Detective Mower had done a pat-down search, to which Detective Mower said
“no.” Agent Ruiz question this and asked, “Why not, it’s officer safety isn’t it?”

[¶5] Agent Ruiz then came outside to speak to Mr. Sweets. According to the agent,
Mr. Sweets kept reaching into his front pants pocket, which prompted Agent Ruiz to do a
pat-down of the waist area. Immediately, Agent Ruiz felt a “large bulge on both sides of
[Mr. Sweets’] pockets,” and after asking what it was, Mr. Sweets removed both
methamphetamine and marijuana from his pants pocket.



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[¶6] The next day, Mr. Sweets was charged by criminal information with two crimes:
(1) felony possession of methamphetamine (over 3 grams), and (2) possession of
marijuana (a third offense felony). In February of 2016, Mr. Sweets filed a motion to
suppress, which was denied based on a totality of the circumstances. The court
explained:

                     8. Based on a totality of the circumstances, Special
             Agent Ruiz was justified in conducting a warrantless pat-
             down search of Defendant for officer safety reasons. See
             generally Terry v. Ohio, 392 U.S. 1 (1968); Speten v. State,
             2008 WY 63, 185 P.3d 25 (Wyo. 2008). Ruiz’s interaction
             with Defendant was a rapidly evolving situation. Defendant
             was wearing a baggy sweatshirt and pants and appeared to be
             very nervous. He was making furtive movements and
             repeatedly disregarded commands from both Mower and Ruiz
             to keep his hands away from his waist area and out of his
             pockets. At the time of the pat-down search of Defendant, the
             officers had at least a reasonable suspicion, if not probable
             cause, to believe Defendant was or recently had been
             involved in an illegal drug transaction. Moreover, Special
             Agent Ruiz’s concerns regarding his personal safety, as well
             as the safety of fellow officers, were reasonable under the
             totality of the circumstances.

[¶7] Soon after the court issued its ruling on the motion, the parties reached a plea
agreement wherein Mr. Sweets pleaded guilty to felony possession of methamphetamine
and reserved his right to challenge the denial of the motion to suppress. The marijuana
charge was dismissed. Mr. Sweets was sentenced to 3-4 years with credit for 122 days
served. This appeal followed.

                                    DISCUSSION

[¶8] Mr. Sweets argues that the district court erred when it denied his motion to
suppress because the pat-down search amounted to an illegal warrantless search. While
Mr. Sweets agrees that in certain situations an officer may perform a warrantless pat-
down search, he contends that there were no exigent circumstances in his case to
necessitate such a search.

                  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


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                 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, ¶
                 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).

Engdahl v. State, 2014 WY 76, ¶ 9, 327 P.3d 114, 117 (Wyo. 2014).

[¶9] The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures[.]” U.S.
Const. amend. IV. We have explained:

             An investigatory stop represents a seizure which implicates
             the Fourth Amendment and, therefore, requires the presence
             of specific, articulable facts which, taken together with
             rational inferences, give rise to a reasonable suspicion that a
             person has committed or may be committing a criminal
             offense. Putnam v. State, 995 P.2d 632, 637 (Wyo.
             2000) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868,
             1880, 20 L. Ed. 2d 889 (1968); Wilson v. State, 874 P.2d 215,
             219-20 (Wyo. 1994)). A dual inquiry exists for evaluating the
             reasonableness of an investigatory stop: (1) whether the
             officer’s actions were justified at the inception; and (2)
             whether it was reasonably related in scope to the
             circumstances that justified the interference in the first
             instance. Putnam, 995 P.2d at 637 (citing United States v.
             Hensley, 469 U.S. 221, 228, 105 S.Ct. 675, 680, 83 L.Ed.2d
             604 (1985); Terry, 392 U.S. at 20-21, 88 S.Ct. at 1879;
             Wilson, 874 P.2d at 223). An officer’s conduct is judged by


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             an objective standard taking into account the totality of the
             circumstances. Putnam, 995 P.2d at 637 (citing Terry, 392
             U.S. at 21-22, 88 S. Ct. at 1879-81; United States v. Lang, 81
             F.3d 955, 965 (10th Cir. 1996)); see also Martindale v. State,
             2001 WY 52, ¶ 11, 24 P.3d 1138, 1141 (Wyo. 2001).

LaPlant v. State, 2006 WY 154, ¶ 14, 148 P.3d 4, 7 (Wyo. 2006). In this case, Mr.
Sweets does not dispute that he was seized, but rather his dispute centers on whether or
not Agent Ruiz’s pat-down search was a pretext to search him for drugs. The legitimacy
of a pat-down search or a frisk for weapons is guided by the same inquiry dictated by the
standards set forth for determining the validity of a detention stop. Terry v. Ohio, 392
U.S. 1, 19-20, 88 S. Ct. 1878-79 (1968). The Supreme Court said in Terry:

             The officer need not be absolutely certain that the individual
             is armed; the issue is whether a reasonably prudent man in the
             circumstances would be warranted in the belief that his safety
             or that of others was in danger. [Citations and footnote
             omitted] And in determining whether the officer acted
             reasonably in such circumstances, due weight must be given,
             not to his inchoate and unparticularized suspicion or “hunch,”
             but to the specific reasonable inferences which he is entitled
             to draw from the facts in light of his experience. [Citation
             omitted]

Putnam v. State, 995 P.2d 632 at 637 (Wyo. 2000) (citing Terry, 392 U.S. at 27, 88 S. Ct.
at 1883).

[¶10] Mr. Sweets argues that there were no exigent circumstances present to excuse a
warrantless search on his person. He points to Detective Mower’s initial decision to not
pat him down before going into the house to speak with Agent Ruiz, and questions
whether officer safety was an issue in the detective’s mind. Indeed, the detective asked
Mr. Sweets to keep his hands out of his pockets and away from his waistband. Mr.
Sweets complied with that request. “And in determining whether the officer acted
reasonably in such circumstances, due weight must be given, not to his inchoate and
unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he
is entitled to draw from the facts in light of his experience.” Terry, 392 U.S. at 27, 88
S.Ct. at 1883.

[¶11] As the district court recognized, the investigation was evolving from the time
Detective Mower spoke with Mr. Sweets all the way through Agent Ruiz’s contact with
him. The differences between Mr. Sweets’ interactions with the two officers were quite
different – while he complied with Detective Mower’s requests to keep his hands away
from his pockets/waistband, he did not comply with Agent Ruiz’s similar requests.


                                            4
Detective Mower testified about his decision to not pat-down Mr. Sweets. He said that in
his position as a drug investigator, he “… ha[s] to be able to speak with people in ways
that other officers on their investigations don’t have to.” He testified that his
“… overriding goal was to solicit information …” from Mr. Sweets, and that although he
is “fearful” [for his safety] during drug investigations, he explained that not patting down
Mr. Sweets “… was a risk that I perhaps mistakenly let slip by in order to further my
investigation.”

[¶12] For his part, Agent Ruiz testified that Mr. Sweets continued to reach for that area,
and that Agent Ruiz was concerned about the safety of everyone present. When he
learned that Detective Mower had not conducted a pat-down search, he went outside to
talk with Mr. Sweets and immediately observed Mr. Sweets making movements toward
his pants and waistband. He also noted Mr. Sweets’ nervous behavior. According to
Agent Ruiz, he decided to conduct a pat-down search to “… make sure there was no
identifiable weapon on his person or being concealed.”

[¶13] Based upon the testimony at trial, and the evidence presented, the district court
properly concluded that Agent Ruiz was justified in conducting a warrantless pat-down
search for officer safety reasons based upon the totality of the circumstances. Agent
Ruiz’s decision to conduct a pat-down search of Mr. Sweets was not unreasonable and
was properly confined to what was minimally necessary to learn whether or not Mr.
Sweets was armed by only quickly patting down Mr. Sweets’ outer clothing, backing up,
and asking Mr. Sweets what he had in his pockets. (“The pat-down search itself,
however, must ‘be confined in scope to an intrusion reasonably designed to discover
guns, knives, clubs, or other hidden instruments for the assault of the police officer.’”
Fender v. State, 2003 WY 96, ¶ 22, 74 P.3d 1220, 1229 (Wyo. 2003), quoting Perry v.
State, 927 P.2d 1158, 1164-65 (Wyo. 1996) (quoting Terry, 392 U.S. at 29, 88 S. Ct. at
1884)).

                                     CONCLUSION

[¶14] The denial of Mr. Sweets’ Motion to Suppress Evidence is affirmed.




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