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McChesney v. State10/20/1999
fficer Will did not observe any erratic driving or any violations of the law.
McChesney parked his vehicle at the front door of the convenience store, and Officer Will parked his vehicle directly behind McChesney=s. When Officer Will approached McChesney, he noticed a green leafy material on his shirt and smelled the odor of marijuana. At the same time, Officer Will requested McChesney=s driver=s license, registration, and proof of insurance. Officer Will asked McChesney if he had been smoking, and McChesney admitted that he had smoked one joint earlier that day. Upon further questioning, McChesney handed Officer Will a baggy of marijuana from the back seat of the vehicle. He was then placed under arrest. Later, additional marijuana was found in a backpack taken from the vehicle.
McChesney was charged with possession of a controlled substance with intent to deliver in violation of Wyo. Stat. Ann. ' 35-7-1031(a)(ii) (Michie 1997). After the district court denied McChesney=s motion to suppress, McChesney entered a conditional guilty plea, reserving the right to appeal the suppression ruling. This timely appeal follows.
STANDARD OF REVIEW
Findings on factual issues made by the district court considering a motion to suppress are not disturbed on appeal unless they are clearly erroneous. Wilson v. State, 874 P.2d 215, 218 (Wyo. 1994). Since the district court conducts the hearing on the motion to suppress and has the opportunity to assess the credibility of the witnesses, weigh the evidence, and make the necessary inferences, deductions, and Conclusions, evidence is viewed in the light most favorable to the district court=s determination. Id. The issue of law, whether an unreasonable search or seizure has occurred in violation of constitutional rights, is reviewed de novo. Id.; Brown v. State, 944 P.2d 1168, 1170-71 (Wyo. 1997).
DISCUSSION
In determining whether encounters between police and citizens are constitutionally valid, we have classified these encounters into three categories or tiers.
The most intrusive encounter, an arrest, requires justification by probable cause to believe that a person has committed or is committing a crime. The investigatory stop represents a seizure which invokes Fourth Amendment safeguards, but, by its less intrusive character, requires only the presence of specific and articulable facts and rational inferences which give rise to a reasonable suspicion that a person has committed or may be committing a crime. The least intrusive police-citizen contact, a consensual encounter, involves no restraint of liberty and elicits the citizen=s voluntary cooperation with non-coercive questioning. Wilson v. State, 874 P.2d at 220 (citations omitted); see also Collins v. State, 854 P.2d 688, 691-92 (Wyo. 1993); Brown v. State, 944 P.2d at 1171.
Although the district court treated the encounter between Officer Will and McChesney as an investigatory stop, our de novo review requires that we first determine whether McChesney was Aseized@ for purposes of the Fourth Amendment. Perhaps recognizing the infirmity of the anonymous tip, the State contends that the encounter between McChesney and Officer Will was a consensual encounter, and the Fourth Amendment is not implicated. See Collins v. State, 854 P.2d at 695. We disagree.
A person has been seized within the meaning of the Fourth Amendment if, Ain view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.@ Wilson v. State, 874 P.2d at 220 (quoting U.S. v. Mendenhall, 446
U.S. 544, 554-55, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)). This test Ais
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