Wyoming rejects a search incident as a matter of course for a suspended DL arrest

Wyoming rejects under its state constitution a search incident to an arrest of a vehicle where the defendant was approached for being in a park after hours apparently sleeping in the car, having been kicked out of his abode, and the officer asked for his driver’s license and found it had been suspended. A search incident was just not appropriate under the circumstances. Pierce v. State, 2007 WY 182, 171 P.3d 525 (2007):

[*P14] We cannot say that the search at issue in the instant case was reasonable. The general

rationale for permitting searches incident to arrest is to prevent the arrestee from reaching weapons or concealing or destroying evidence. See [Commonwealth v.] White, [543 Pa. 45,] 669 A.2d [896,] 905 [(1995)]. A search incident to arrest under our state provision for these reasons is reasonable. The inherent mobility of automobiles in combination with officer and public safety concerns created when a driver or a passenger is arrested are exigent circumstances weighing in favor of not restricting the scope, timing, or intensity of such a search.

Vasquez, 990 P.2d at 489. Such evidentiary and safety concerns are not articulable from the totality of the circumstances in the instant case, particularly considering that:

1. The officer testified that he did not observe any signs that the appellant was under the influence of alcohol or drugs.

2. There was no reasonable possibility that evidence of the crimes for which the appellant was arrested remained in the vehicle. There also was no evidence indicating that the appellant had committed any other crime.

3. The officer’s “pat down” search of the appellant’s person did not uncover anything of evidentiary value.

4. The State does not attempt in its appellate brief to justify the search for evidentiary reasons.

5. Our analysis of the circumstances does not reveal any reasonable basis for the officer to believe the appellant was armed or that there were weapons in the vehicle. The appellant was arrested for driving under suspension and failing to maintain liability insurance. The officer’s “pat down” search of the appellant’s person did not uncover any weapons.

6. There were no passengers in the vehicle, two officers were at the scene, and the officers and the appellant had already left the scene by the time the vehicle’s owner retrieved the vehicle.

7. The appellant was handcuffed and placed in a patrol car immediately prior to, and during, the search. Handcuffs are by no means foolproof (see Mackrill v. State, 2004 WY 129, PP19-21, 100 P.3d 361, 368-69 (Wyo. 2004)), but we must view this fact in light of all of the other facts in this case.

8. The appellant did not exhibit any furtive or suspicious activity, particularly with respect to the contents of vehicle.

9. The State does not contend in its appellate brief that considerations such as the time of day, the setting, the temporary registration tag issue, etc. contributed to any kind of safety concern in this case. The officer did not refer to any specific officer safety concerns he had that would have arisen prior to the time he initiated the search.

10. The officer admittedly had no other information about the appellant “as opposed to any other citizen.” By the officer’s own account, he and the appellant engaged in a friendly conversation, the appellant was honest about his suspended license, and the appellant seemingly offered a reasonable explanation for his presence at the park (the vehicle’s contents, to the extent they were visible to the officer, would seem objectively to support the appellant’s explanation).

11. The appellant cooperated with the officer and did not resist arrest or become combative with the officer.

This is not to say, of course, that any of these considerations might not be viewed differently if it were to arise in the context of different facts.

[*P15] It was the State’s burden to prove that the search-incident-to-arrest exception applied, and the applicability of such an exception is “dependent upon all of the facts and circumstances viewed in their entirety.” Moulton, P16, 148 P.3d at 43. The State’s appellate analysis instead focused almost exclusively on the fact that the appellant was arrested and advocates for a bright-line approach similar to the approach that we rejected in Vasquez. Our state constitution requires more in that regard–the search must not only be incident to a lawful arrest, but also reasonable under the circumstances. In other words, we must be able to find a reasonable basis, articulable from the totality of the circumstances in each case, to justify such a search.

Appellant’s 911 call was admissible, and the admissions made in it were separate from any suppressed statements. The police were called and appellant consented to the initial entry, and the police followed up by resorting to a search warrant, which was unnecessary and commendable. Ball v. State, 2007 OK CR 42, 173 P.3d 81 (2007):

[*P23] With respect to Appellant’s objections that the experts considered suppressed information about Appellant’s delay in seeking treatment and his description of how the injuries occurred, such information was also before the jury in Appellant’s 911 call and his statements to emergency responders. Appellant has not shown that the doctors materially relied on the suppressed statements, and to the extent that they might have done so, any taint is dissipated significantly because the same information was admitted from untainted sources. Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) (finding illegally seized evidence admissible where the same evidence was subject to government subpoena); Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (evidence of location of body obtained in illegal interrogation admissible because body would have been discovered inevitably in extensive search). There is no reversible error here.