Wyo Supreme Court Holds that Police Conduct May Negate Justification for Traffic Stops

Source: dwightsghost, CC BY 2.0 https://creativecommons.org/licenses/by/2.0, via Wikimedia Commons

On April 20, 2022, the Wyoming Supreme Court published an opinion in Levenson v. State of Wyoming, S-21-0176, 2022 WY 51, wherein it held that trial courts must consider the driving behavior and actions of a law enforcement officer when evaluating whether a traffic stop violates the constitutional protections against unreasonable searches and seizures provided by both the Wyoming and United States Constitutions. The full opinion can be read here:

In Levenson, the officer was parked on the median of Interstate 80 near mile post 357. He observed a Nissan Rogue pass by traveling eastbound among several semi-trucks. The officer did visually estimate that the Nissan Rogue was speeding, nor did he observe any traffic violations or clues of criminal activity surrounding the Nissan, yet he decided to catch up to it and follow it. To catch up to the Nissan Rogue, the officer reached speeds of 111 miles per hour.

When the officer finally caught up to the Nissan Rogue, he was directly to the left of the vehicle which was located between two semi-trucks. Because of the officer’s positioning, the Wyoming Supreme Court noted, “it would have been unsafe for the Nissan Rogue to move into the left lane.” See Levenson, at ¶ 5.

Ultimately, using a stopwatch, the officer calculated that the Nissan Rogue was traveling about 1.2 seconds behind the semi-truck in front of it and initiated a traffic stop for following to closely. This stop led to a drug detection dog’s alerting on the Nissan Rogue and the subsequent discovery of 42 pounds of marijuana.

The trial court concluded that the officer’s conduct was objectively reasonable and justified. Thus, it denied a motion to suppress the evidence obtained.

On appeal, the Wyoming Supreme Court concluded the trial court erred by not considering the law enforcement officer’s conduct to determine whether the traffic stop was “reasonable under all the circumstances.” See Levenson, at ¶ 22. It held that “we find an officer’s own conduct may negate the objective justification necessary for an initial traffic stop and cause a traffic stop to be unreasonable when all the circumstances are considered. There is no bright-line rule, and the officer’s conduct is only one of the circumstances we must consider when examining whether the initial stop was reasonable.” Id. at ¶ 27.

We find an officer’s own conduct may negate the objective justification necessary for an initial traffic stop and cause a traffic stop to be unreasonable when all the circumstances are considered.

Levenson v. State, 2022 WY 51, ¶ 27.

In this specific case, the Wyoming Supreme Court applied these rules as follows:

Turning to the circumstances of this case, after carefully reviewing the dash camera footage, we find the traffic stop was unreasonable under all the circumstances. As Trooper Carraher testified, he was parked in the median and noticed the Nissan Rogue and several semi-trucks pass him. Without personally observing any traffic violation, Trooper Carraher decided to follow the Nissan Rogue. As the video depicts, and Trooper Carraher readily admitted, he reached a speed of 111 miles per hour to catch up to the Nissan Rogue. Arguably, Trooper Carraher violated the law by speeding to catch up to the Nissan Rogue without ever witnessing a traffic violation.

Observing Trooper Carraher’s rapid approach, Ms. Busch moved into the right lane between two semi-trucks. Trooper Carraher then slowed down significantly and positioned himself in the left lane behind the Nissan Rogue so he could travel behind the vehicle at a similar rate of speed. The Trooper’s conduct congested traffic and required the Nissan Rogue to remain in the right lane between the two semi-trucks, all of which were approaching a busy interchange with the lead semi-truck slowing down to exit onto Southbound I-25. Accordingly, under all the circumstances of this case, we find the Trooper’s objective justification for a traffic violation was negated, and the initial traffic stop was unreasonable under Article 1, § 4 of the Wyoming Constitution.

Levenson v. State, 2022 WY 51, ¶¶ 28-29.

The Wyoming Supreme Court refused to revisit or overrule it prior precedents concerning pretextual stops. A pretextual stop “occurs when the police use a legal justification to make the stop in order to search a person or place, or to interrogate a person, for an unrelated crime for which they did not have the reasonable suspicion necessary to support a stop.” Fertig v. State, 2006 WY 148, ¶ 9, 146 P.3d 492, 495 (Wyo. 2006). The Wyoming Supreme Court has held that, where an officer observes a traffic violation, he may initiate a traffic stop and that stop will be valid no matter what the officer’s “primary motivation” for the stop was. In short, pretext stops are not unconstitutional.

Still, Levenson puts all Wyoming law enforcement officers on notice: your driving conduct and other behaviors at the beginning of a traffic encounter may undermine the stop no matter what evidence that stop produces.

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