It has been too long since I’ve written here. A recent Wyoming Supreme Court case caught my eye and gave me inspiration to add another post today.
Today, the Wyoming Supreme Court held that the Wyoming Constitution does not require probable cause or a warrant before a law enforcement officer has a drug dog sniff the exterior of a vehicle. The Court’s decision came in Joseph v. State of Wyoming, S-22-0250, and Tarzia v. State of Wyoming, S-22-0282, two appeals the Court addressed in a single opinion, 2023 WY 58. The full decision can be read here:
In each case, the defendants encountered law enforcement albeit in different ways. In Joseph, an officer initiated a traffic stop because the defendant had crossed the centerline four times. In Tarzia, an officer initiated a “consensual encounter” by chewing the fat with the defendant at a gas pump. See California v. Hodari D., 499 U.S. 621, 628 (1991) (A consensual encounter exists when a reasonable person would feel free “to disregard the police and go about his business.”). [Note for another post: “consensual encounters” with law enforcement are not protected by the Fourth Amendment at all. See Florida v. Bostick, 501 U.S. 429, 434 (1991).]
Following these encounters, law enforcement ultimately obtained reasonable suspicion that something fishy was going on and called out a trained canine to sniff around the defendants’ vehicles for the scent of certain illegal drugs. The dogs alerted. Drugs were found. The defendants were charged with crimes and asked the trial court to suppress the dogs’ “alerting.” In each case, the trial court denied the defendants’ requests to suppress the evidence. Later, each defendant was convicted and appealed to the Wyoming Supreme Court.
In the Wyoming Supreme Court, the defendants argued that “exterior canine sniffs of their vehicles were done without probable cause and thus violated the Wyoming Constitution.” See Joseph et al., 2023 WY 58, at ¶ 1. To this end, the defendants conceded that dog sniff tests are not “searches” subject to special requirements under the Fourth Amendment to the U.S. Constitution. Id. at ¶ 18. But remember, there are two “Fourth Amendments”–one federal and one state. So, the defendants contended that “Article 1, Section 4 of the Wyoming Constitution is more protective than the Fourth Amendment [and] should be interpreted to require probable cause to support a canine sniff of a vehicle’s exterior.” Id.
The Wyoming Supreme Court disagreed. It recognized that, in the search and seizure context, the Wyoming Constitution’s protections are sometimes greater than the federal constitution, but the extent of these greater state protections turns on preexisting state law and matters of particular state or local concern. Id. at ¶ 20. Writing for the unanimous court, Chief Justice Fox analyzed these two factors this way:
Preexisting State Law (¶¶ 21-24)
The question here, however, concerns the privacy interest in the public airspace outside a vehicle, and Appellants point to no state precedent recognizing such a privacy interest, particularly considering the minimally intrusive nature of an exterior canine sniff. See Barekman v. State, 2009 WY 13, ¶ 23, 200 P.3d 802, 807 (Wyo. 2009) (“Under Wyoming law, a person alleging an illegal search must demonstrate a legitimate expectation of privacy in the searched property.”) (citing Putnam v. State, 995 P.2d 632, 636 (Wyo. 2000)).
[. . .]
Appellants have not, however, shown how that evolution has enhanced an individual’s privacy right in the airspace outside his or her vehicle; or how, even if an exterior sniff could be considered an intrusion, it would be unreasonable under all the circumstances if not supported by probable cause. Appellant’s reliance on preexisting law therefore does not presently persuade us that the Wyoming Constitution requires probable cause for an exterior canine sniff of a vehicle.
Matters of Particular State or Local Concern (¶¶ 25-31)
As to this factor, Appellants first argue Article 1, Section 4 should afford greater protection from a canine sniff of a vehicle’s exterior because “Wyoming is a particularly freedom-loving state[.]” This type of general characterization, with no citation to authority or relevant examples, is unpersuasive. It does not provide a precise and analytical basis for finding the greater protection Appellants are urging.
The authority Appellants rely on from other states does not persuade us otherwise. First, we have rejected bare reliance on decisions of other states as a basis to find broader protections under the Wyoming Constitution. Morgan v. State, 2004 WY 95, ¶ 21, 95 P.3d 802, 808 (Wyo. 2004). Additionally, aside from the Colorado Supreme Court’s decision in McKnight, which we will discuss below in connection with Appellants’ arguments based on the legalization of hemp, none of the decisions on which Appellants rely required that an exterior vehicle sniff be supported by probable cause. See State v. Carter, 697 N.W.2d 199, 202 (Minn. 2005) (canine sniff of a storage unit’s exterior requires reasonable suspicion); Commonwealth v. Rogers, 849 A.2d 1185, 1191 (Pa. 2004) (canine sniff of vehicle’s exterior requires reasonable suspicion); State v. Tackett, 67 P.3d 295, 302-03 (Mont. 2003) (same); State v. Wiegand, 645 N.W.2d 125, 134 (Minn. 2002) (same); State v. Pellicci, 580 A.2d 710, 717 (N.H. 1990) (same); Commonwealth v. Johnston, 530 A.2d 74, 79 (Pa. 1987) (canine sniff of storage locker’s exterior requires reasonable suspicion); Pooley v. State, 705 P.2d 1293, 1311 (Alaska Ct. App. 1985) (exposure of luggage to exterior canine sniff requires reasonable suspicion).
Appellants next assert that Wyoming’s legalization of hemp is a matter of particular state or local concern that should prompt greater protection from a canine sniff of a vehicle’s exterior under Article 1, Section 4. They contend that a drug-detecting dog cannot differentiate between marijuana, which is illegal in Wyoming, and hemp, which is now legal in Wyoming, and thus the exterior sniff of a vehicle may detect lawful activity. This they argue makes the sniff more intrusive. We disagree.
Neither Ms. Joseph nor Mr. Tarzia established that either canine in this case would have alerted to the presence of hemp. In the case of the canine that performed an exterior sniff of Ms. Joseph’s vehicle, Deputy Lehr, the handler, testified that Zeus has never been exposed to hemp, but he is confident that when Zeus alerts, it is to one of the five illegal substances on which he has been trained. He further agreed in his testimony that Zeus cannot differentiate between high-grade marijuana and “Kansas ditch weed.” A reasonable view of this evidence is that we simply do not know whether Zeus would alert to the presence of hemp during an exterior vehicle sniff.
[. . .]
Appellants’ analysis of matters of particular state or local concern is no more persuasive to us than was their analysis of preexisting state law. They have not shown how the legalization of hemp created a privacy right in the airspace outside a vehicle. Even if an exterior sniff could be considered an intrusion, they have not demonstrated how the legalization of hemp has made the exterior sniff unreasonable under all the circumstances if it is not supported by probable cause.
Several takeaways from this decision.
First, of course, dog sniff tests are legal under the Wyoming Constitution even in the absence of probable case.
Second, if you’re going with the “it’s not weed, it’s hemp” defense in Wyoming, be mindful that you better be ready to prove/make a record that the THC content is less than 0.3%, as we have discussed before. Same goes for complaining that your drug dog’s nose can’t make that distinction–you have to be able make the factual record on that question. Courts will not help you.
Third, weed is legal in many places. Wyoming is not one of those places. Be smart!
Justice for Cowboys 