Bryan Robinson v. The State of Wyoming

                IN THE SUPREME COURT, STATE OF WYOMING

                                        

                                                       OCTOBER TERM, A.D. 2019

                                                                   December 12, 2019



 BRYAN ROBINSON,

 Appellant
 (Defendant),
                                                      S-19-0039
 v.

 THE STATE OF WYOMING,

 Appellee
 (Plaintiff).


                    Appeal from the District Court of Laramie County
                        The Honorable Steven K. Sharpe, Judge

Representing Appellant:
      Mitch Guthrie, Cheyenne, Wyoming.

Representing Appellee:
      Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney
      General; Christyne M. Martens, Senior Assistant Attorney General; Benjamin
      Fischer, Assistant Attorney General.


Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, 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 typographical or other formal errors so correction may be made before final
publication in the permanent volume.
KAUTZ, Justice.

[¶1] Appellant Bryan Robinson pleaded guilty to possession of more than three ounces
of marijuana and verbally reserved the right to appeal the district court’s denial of his
motion to suppress the evidence obtained from the search of his vehicle. Written
conditional plea agreements are typically required; however, under the unique
circumstances of this case, we exercise our discretion to review the verbally-reserved issue.
On the merits, we affirm the district court’s denial of Mr. Robinson’s motion to suppress.

                                          ISSUES

[¶2]   The issues on appeal are:

       1.     Did Mr. Robinson enter a proper conditional guilty plea?

      2.    Did the district court err by denying Mr. Robinson’s motion to suppress
which was based upon his claim the trooper violated his Fourth Amendment rights?

             a.     Did the trooper have reasonable suspicion to stop Mr. Robinson for
following another vehicle too closely?

              b.      Did the trooper have reasonable suspicion that Mr. Robinson was in
possession of illegal controlled substances to justify extending the duration of the stop for
a drug-dog sniff of Mr. Robinson’s car?

                                          FACTS

[¶3] Shortly after 10 a.m. on December 28, 2017, Wyoming Highway Patrol Trooper
Shane Carraher observed Mr. Robinson driving a red Chevrolet Camaro eastbound on
Interstate 80 in Laramie County, Wyoming. Mr. Robinson was driving below the speed
limit; but, when he saw the trooper’s patrol car, he tapped his brakes to slow down further.
Trooper Carraher began following Mr. Robinson and turned on his video recorder as he
approached the car. The trooper noticed the car’s sunroof was open even though the
temperature was around 32 degrees. Mr. Robinson drove up behind a semi-truck, and
Trooper Carraher used a stopwatch to calculate how closely Mr. Robinson was following
the truck. Based upon his measurements, Trooper Carraher stopped Mr. Robinson for
following the truck too closely.

[¶4] Trooper Carraher approached Mr. Robinson’s car and spoke with him through the
passenger-side window. The trooper said he was going to issue Mr. Robinson a warning
for following another vehicle too closely and requested his documentation. Mr. Robinson
said the car was a rental and the rental agreement was on his cell phone. When Mr.
Robinson handed over his driver’s license, Trooper Carraher noticed his hand was shaking.

                                             1
Trooper Carraher also saw snack food, energy drinks, water, trash, and a backpack on the
front passenger floorboard of Mr. Robinson’s car.

[¶5] Trooper Carraher asked Mr. Robinson to accompany him to the patrol car while he
completed the warning. The rental agreement showed Mr. Robinson had rented the car on
December 26, 2017, in Las Vegas, Nevada, and he was supposed to return it there on
December 27, 2017. When the trooper questioned him about his travel plans, Mr. Robinson
explained he was going to Kansas City to participate in a dance competition on December
29, 2017. Mr. Robinson indicated he planned to leave the car in Kansas City, pay the fees
associated with returning the car late and failing to return it to Las Vegas, and fly back to
Las Vegas. Trooper Carraher asked why he did not fly to the competition, and Mr.
Robinson said he decided to go to Kansas City at the last minute and airfare was too
expensive. Mr. Robinson showed Trooper Carraher a flyer for the dance competition
which said it was to be held on December 30, 2017, rather than December 29, 2017.

[¶6] Trooper Carraher asked Mr. Robinson whether he was on probation or parole and
whether he had been arrested or cited for any drug crimes. Mr. Robinson answered, “No,”
to these questions. The trooper obtained Mr. Robinson’s criminal history report from
dispatch, which showed Mr. Robinson had previously been cited for misdemeanor
possession of marijuana. Trooper Carraher suspected Mr. Robinson was transporting
controlled substances and detained him for a drug-dog sniff of the car. The dog alerted on
Mr. Robinson’s car, and a subsequent search yielded approximately ten pounds of
marijuana.

[¶7] The State charged Mr. Robinson with two counts—possession with intent to deliver
marijuana (Count I) and possession of more than three ounces of marijuana (Count II).

(a)(ii) and (c)(iii) (LexisNexis 2019). Mr. Robinson filed a
motion to suppress the evidence seized during the search of his car. After a hearing, the
district court denied the motion to suppress. Mr. Robinson subsequently pleaded guilty to
possession of more than three ounces of marijuana in exchange for the State’s agreement
to dismiss the other count. The district court sentenced him to two to four years in prison,
suspended the sentence, and ordered him to serve three years of supervised probation. This
appeal followed.

                                      DISCUSSION

       1. Conditional Guilty Plea

[¶8] The State and Mr. Robinson executed a written plea agreement, but it did not state
Mr. Robinson’s guilty plea was conditional. The discussion at Mr. Robinson’s change of
plea hearing demonstrated the parties had agreed otherwise.



                                             2
                    THE COURT: . . . I’ve just been handed a copy of the
             plea agreement by [defense counsel]. I would ask [defense
             counsel], if he doesn’t mind, to summarize what the plea
             agreement is in this case.

                    [DEFENSE COUNSEL]: Thank you, Your Honor. In
             exchange for a plea of guilty to Count II of the Information,
             possession of marijuana, a felony, the party will -- the State is
             going to be recommending a two – to four-year sentence in
             favor of a three-year period of supervised probation.
                    ...
                     Count I would be dismissed. Mr. Robinson would have
             the right to appeal the ruling on the suppression of evidence.
             And if he were to prevail on that appeal then . . .

                   THE COURT: So[,] is it a conditional plea you’re
             contemplating?

                    [DEFENSE COUNSEL]: It is. Thank you.

[¶9] After reviewing other provisions of the plea agreement with Mr. Robinson, the
district court stated:

                    THE COURT: [T]he other thing I wanted to talk to you
             about, Mr. Robinson, it is a little bit different, a conditional
             plea. And I’m sure you’ve discussed this with [defense
             counsel]. So[,] we had the suppression hearing in your case
             some time ago. The Court denied the motion to suppress. I
             understand that you are reserving the right to appeal that to the
             appellate court. . . .

                   [I]f my ruling is reversed and the Court decides that the
             evidence should be suppressed, you would be allowed to
             withdraw your plea. Do you understand that?

                    [MR. ROBINSON]: Yes, Your Honor.

[¶10] Mr. Robinson pleaded guilty and provided a factual basis for his plea; the district
court accepted his plea. The court then asked if anything else needed to be addressed at
the hearing, to which the prosecutor responded:

                   [PROSECUTOR]: I’ll say the written language [of the
             plea agreement] doesn’t show that conditional plea, Your

                                            3
              Honor. I was just going to go with [defense counsel], and we’ll
              file an amended plea agreement to reflect that, Your Honor.

                      THE COURT: I think that’s important that you do
              that. It seems like there is an appellate court case that
              addressed that issue. . . . [I]t is probably best if you can get it
              in writing.

                      [PROSECUTOR]: Yes, Your Honor. I just wanted to
              reflect that, according to that case law, both parties have to
              agree to that and so does the Court have to accept a conditional
              plea.

                     THE COURT: I’m certainly willing to accept a
              conditional plea.

                     [PROSECUTOR]: And I, as the State’s representative,
              agree to the conditional plea just for the record, Your Honor.
                     ...
                     [DEFENSE COUNSEL]: So[,] we’ll go ahead and
              follow that up just to make sure that the record is
              perfect. Thank you, everyone, and thank you, [prosecutor], for
              allowing a conditional plea. Really generous. Thank you.

[¶11] The plea agreement was never revised to reflect the conditional plea, and the State
argues on appeal that Mr. Robinson’s conditional plea did not comply with Wyoming Rule
of Criminal Procedure 11(a)(2) because it did not reserve in writing a specific issue for
appeal. Rule 11(a)(2) states:

                     (2) Conditional Pleas. – With the approval of the court
              and the consent of the attorney for the state, a defendant may
              enter a conditional plea of guilty or nolo contendere, reserving
              in writing the right, on appeal from the judgment, to seek
              review of the adverse determination of any specified pretrial
              motion. A defendant who prevails on appeal shall be allowed
              to withdraw the plea.

[¶12] Under Rule 11(a)(2), reservation of the right to appeal a specific issue must be in
writing, the State must consent to the plea, the district court must approve the plea, and the
issue reserved must be dispositive. Matthews v. State, 

, 

 (Wyo. 2014). Although the rule requires the reservation be in writing, we recognized
in Walters v. State, 

, 

 (Wyo. 2008):


                                              4
              While strict conformance with the writing requirement is the
              best practice, some federal courts have determined that it is not
              mandatory. E.g., United States v. Yasak, 

              (7th Cir.1989); United States v. Bell, 

 (5th
              Cir.1992). Without a writing, those courts require that the
              record sufficiently demonstrate that the defendant intended to
              preserve the right to appeal a specific issue or issues. See, e.g.,
              United States v. Mastromatteo, 

 (6th
              Cir.2008); Yasak, 

.

[¶13] In Yasak, 

, the Seventh Circuit explained the purpose of the writing
requirement in the comparable Federal Rule of Criminal Procedure 11(a)(2):

              [The purpose of requiring a written] reservation of the right to
              appeal from [an adverse determination of] a specified . . .
              pretrial motion is to ensure that careful attention will be paid
              to any conditional plea. Fed.R.Crim.P. 11, Notes of Advisory
              Committee on Rules, 1983 Amendment. It also identifies
              precisely what pretrial issues have been preserved for appellate
              review. 

 And the added step will further prevent entry of a
              conditional plea “without the considered acquiescence of the
              government.” 

 . . . Finally, the rule ensures that conditional
              pleas will be allowed only when the appellate court’s decision
              will completely dispose of the case. Notes of Advisory
              Committee, 1983 Amendment; see also United States v. Wong
              Ching Hing, 

 (2d Cir.1989).

[¶14] The writing requirement is not jurisdictional, and other evidence in the record can
fulfill the intent and purposes of the Rule 11(a)(2) requirements. Id. at 999-1000; United
States v. Markling, 

 (7th Cir. 1993). In Yasek, 

, the
transcript took the place of a written agreement, and in Markling, 

, a letter
from the prosecutor setting out the terms of the conditional plea satisfied the requirements
of Federal Rule of Criminal Procedure 11(a)(2). See also, 9 Fed. Proc. L. Ed. § 22:940
(2019) (a conditional guilty plea may be valid under Fed. R. Crim. P. 11(a)(2) absent a
writing if the record reveals the plea was conditioned on the right to appeal a specific issue,
the government and trial court approved the conditional plea, and the appellate issue is
dispositive).

[¶15] Consistent with the federal authority discussed in Walters, this Court has not strictly
enforced the writing requirement. In Faubion v. State, 

, 

 (Wyo. 2010), we exercised our discretion to address an issue reserved in a conditional
plea even though it was not in writing and “other requirements of [Rule 11(a)(2)] were not
precisely followed” because the record was clear that the district court and the parties

                                              5
agreed to a conditional plea and understood the issue reserved for appeal. See also, Rule
11(h) (“Any variance from the procedures required by this rule which does not affect
substantial rights shall be disregarded.”); United States v. Bell, 

 (5th Cir.
1992) (under Fed. R. Crim. P. 11(h), an appellate court can excuse strict compliance with
the Rule 11(a)(2) requirements if the error is harmless).

[¶16] Sutton v. State, 

, ¶ 8 n.2, 

, 787 n.2 (Wyo. 2009), is another
case where we reviewed the issue reserved in a conditional guilty plea even though the
requirements of Rule 11(a)(2) were not met. The written plea agreement did not state Mr.
Sutton was reserving his right to appeal the denial of his suppression motion and there was
no indication the State expressly agreed to the conditional plea. 

 Nevertheless, we
exercised our discretion to consider Mr. Sutton’s appeal because the record was clear he
reserved the right to appeal the denial of his motion to suppress, the parties did not
challenge the conditional nature of the plea, and the reserved issue was dispositive. 

[¶17] The State seems to argue that a written plea agreement is crucial in this case to
identify the issue(s) Mr. Robinson reserved for appeal. The transcript of the change of plea
hearing plainly shows Mr. Robinson reserved his right to appeal the district court’s denial
of his motion to suppress. We have considered conditional pleas which simply reserved
the right to appeal the denial of a motion to suppress on a number of occasions. See 

See also, Gibson v. State, 

, ¶¶ 6-7, 

 (Wyo. 2019);
Rodriguez v. State, 

, ¶ 14, 

 (Wyo. 2018); Maestas v. State,

, ¶ 5, 

 (Wyo. 2018). The transcript also clearly shows the
State and the district court understood and agreed Mr. Robinson was entering a conditional
plea reserving the right to appeal from the denial of his motion to suppress. In fact, the
prosecutor committed to work with defense counsel to provide a written plea agreement
reflecting the conditional plea. Finally, there is no dispute that a reversal of the district
court’s decision on the suppression motion would be dispositive. Although a written plea
agreement including an express reservation of the right to appeal a particular issue is
always preferable, the requirements of Rule 11(a)(2) are satisfied under the unique
circumstances of this case by the transcript, and we exercise our discretion to address Mr.
Robinson’s appeal.

[¶18] As to the State’s concern about what arguments Mr. Robinson may make on appeal,
our precedent is well-established that only arguments made to the district court may be
presented on appeal. “A conditional plea of guilty does not provide carte blanche
permission for the appellant to present any and all arguments on appeal. An appellant may
only raise arguments that were clearly presented to the district court.” Tibbetts v. State,

, ¶ 12, 

 (Wyo. 2017) (internal citations and quotation
marks omitted).

[¶19] Mr. Robinson presents three arguments on appeal in support of his claim the district
court erred by denying his motion to suppress: 1) Trooper Carraher’s pursuit of him on I-

                                              6
80 violated the Fourth Amendment; 2) Trooper Carraher did not have reasonable suspicion
to stop him for following the semi-truck too closely; and 3) Trooper Carraher improperly
extended the duration of the stop for the drug-dog sniff. Mr. Robinson did not raise the
first argument in his motion to suppress. The district court considered only the second and
third assertions. We follow suit and refuse to consider Mr. Robinson’s argument that
Trooper Carraher violated his Fourth Amendment rights by following him. Our analysis
will, therefore, focus on whether the trooper’s actions during the initial stop and in
extending the detention for the drug-dog sniff violated Mr. Robinson’s rights under the
Fourth Amendment.

       2. Motion to Suppress for Violation of Fourth Amendment Rights

[¶20] Mr. Robinson claims the district court erred by denying his motion to suppress the
evidence discovered during the search of his car. When reviewing the district court’s denial
of a motion to suppress, this Court views “the evidence in the light most favorable to the
district court’s determination and defer[s] to the district court’s factual findings unless they
are clearly erroneous.” Jennings v. State, 

, 

 (Wyo.
2016). We defer to the district court’s findings because it has “the opportunity to hear the
evidence, assess witness credibility, and draw the necessary inferences, deductions, and
conclusions[.]” Flood v. State, 

, 

 (Wyo. 2007)
(quoting O’Boyle v. State, 

, 

 (Wyo. 2005)). The
underlying question of law—whether the search was unreasonable and therefore
unconstitutional—is reviewed de novo. Jennings, ¶ 8, 

.

              a. Initial Stop

[¶21] The Fourth Amendment to the United States Constitution protects citizens from
unreasonable searches and seizures. Fourth Amendment jurisprudence recognizes three
tiers of interaction between law enforcement and citizens: consensual encounter,
investigatory detention and arrest. Tibbetts, ¶ 13, 

 (citing Dimino v. State,

, 

 (Wyo. 2012)). See also, Flood, ¶ 14, 

. The interaction between Mr. Robinson and Trooper Carraher began as a traffic
stop, which is an investigatory detention. Flood, ¶¶ 14-15, 

. Because
the occupants of a vehicle are “seized” during a traffic stop, the trooper’s actions must be
reasonable under the Fourth Amendment. Kennison v. State, 

, ¶¶ 13-14, 

 (Wyo. 2018); Allgier v. State, 

, 

(Wyo. 2015).

[¶22] To justify a traffic stop, the trooper must have “reasonable suspicion—that is, a
particularized and objective basis” to suspect the motorist is violating the law. Allgier, ¶
14, 

 (quoting Heien v. North Carolina, 

, 60, 

, 

 (2014)) (internal quotation marks and other citations omitted). The
trooper’s conduct is judged by “‘an objective standard which takes into account the totality

                                               7
of the circumstances.’” Meadows v. State, 

, 

 (Wyo. 2003)
(quoting Putnam v. State, 

 (Wyo. 2000)). “[W]hile the test
is objective, the [trooper]’s training, experience, and expertise are to be considered as part
of the totality of the circumstances.” Maestas, ¶ 13, 

 (quoting Speten v.
State, 

, 

 (Wyo. 2008)) (emphasis, internal quotation marks,
and other citations omitted).

[¶23] The district court concluded the stop was proper because Trooper Carraher had
reasonable suspicion Mr. Robinson was following another vehicle too closely, in violation
of 

(a) (LexisNexis 2019). Section 31-5-210(a) states: “The
driver of a vehicle shall not follow another vehicle more closely than is reasonable and
prudent, having due regard for the speed of the vehicles and the traffic upon and the
condition of the highway.”

[¶24] Trooper Carraher testified that he determined Mr. Robinson was following the semi-
truck too closely using the two-second rule. The two-second rule generally requires that a
driver stay far enough behind the vehicle he is following so at least two seconds elapse
between the times the vehicles pass a fixed point. See generally, United States v. White,

 (10th Cir. 2009) (quoting a trooper’s explanation of the two-second rule
as:     “When        you’re     following      another    vehicle,   you     should      be
approximately two seconds behind [it] and - in other words, once car A hits a certain point,
car B should hit . . . that same point in about two seconds.”).

[¶25] Trooper Carraher testified he used a stopwatch to measure the time between when
the semi-truck passed a mark on the road and when Mr. Robinson’s car passed the same
mark. He performed the measurement twice, and each time the result was less than two
seconds—1.1 seconds and 0.89 seconds, respectively. Trooper Carraher stated he was
trained to use the two-second rule by the Wyoming Highway Patrol. He explained: “I was
trained that the average natural perception and reaction time, so the time that someone can
perceive and react, is 1.5 seconds. So[,] they gave an additional half second and say a safe
distance was two seconds.” Trooper Carraher testified he believes the two-second rule is
more accurate than other methods of calculating following distances.

[¶26] The district court found Trooper Carraher’s testimony credible, and Mr. Robinson
does not dispute the district court’s credibility determination. Instead, he claims the two-
second rule is not appropriate in this case because, taking into account the specific stopping
distances of the Camaro and the semi-truck,1 he had ample time to stop even if his car and
the semi-truck were less than two seconds apart.


1
  Mr. Robinson cites two websites as evidence of the stopping distances of the semi-truck and his car. We
need not delve into whether this evidence was proper because the trooper used the two-second rule which
is an appropriate means of measuring Mr. Robinson’s following distance.
                                                   8
[¶27] This Court discussed the two-second rule in Allgier, ¶ 18 n.2, 

 n.2.
Relying on United States v. Hunter, 

 (10th Cir. 2011), we stated
“the two second rule of thumb is . . . an appropriate method for determining whether a
vehicle is following at a reasonable distance.” See also, United States v. Nichols, 

 (10th Cir. 2004), cert. granted and opinion vacated to allow resentencing under
United States v. Booker, 

, 

, 

 (2005); opinion
reinstated, 

 (10th Cir. 2005) (discussing the use of the two-second rule to
establish reasonable suspicion for a traffic stop for following too closely). One of the
benefits of the two-second rule is that it provides a simple method for calculating following
distances without having to account for other factors, such as the speed of the vehicles or
the estimated number of car lengths between the vehicles. Allgier, ¶ 18 n.2, 

 n.2. Mr. Robinson’s attempt to show he was not following the semi-truck too closely
by using the specific stopping distances of the semi-truck and his car is far more
complicated than the two-second rule. Mr. Robinson’s method would require the trooper
to determine the make, model and year of the vehicles and then research the stopping
distances of those vehicles. It is clear from Allgier, Hunter and Nichols that an officer can
develop reasonable suspicion that a driver is following another vehicle too closely without
resorting to such a complex method.

[¶28] Mr. Robinson also asserts Phelps v. State, 

, 

 (Wyo. 2012),
and Yoeuth v. State, 

, 

 (Wyo. 2009), set out the proper standard
for reasonable suspicion to stop a driver for following too closely. He claims those cases
require a showing that the distance between the two vehicles was one car length or less,
there was no apparent reason for the driver to follow the other vehicle so closely, there was
ample room to pass, and the officer observed the infraction for an extended period of time.

[¶29] In Phelps, ¶ 21, 

, we held the trooper was justified in stopping the
car Mr. Phelps was riding in because it followed two semi-trucks by less than one car length
for approximately a quarter of a mile. In its decision letter, the district court also remarked
the car could have passed and there was no apparent reason for it to follow the trucks so
closely, id., ¶ 20, 

, but we did not mention those factors in our discussion
of the evidence. Id., ¶ 21, 

. We concluded, in Yoeuth, the trooper was
justified in initiating a stop because Ms. Yoeuth’s vehicle was following another vehicle
by less than one car length for approximately one-half mile. Id., ¶¶ 5, 19, 

. Phelps and Yoeuth do not establish the quintessential test for determining a trooper
has reasonable suspicion2 of a violation of § 31-5-210(a). Instead, those cases and Allgier
demonstrate there are various ways a law enforcement officer can develop reasonable
suspicion that a vehicle is following too closely. See Hunter, 

 (noting
2
 We determined in Phelps and Yoeuth that the troopers had probable cause to make the stops, which is a
higher standard than reasonable suspicion. Phelps, ¶ 23, 

; Yoeuth, ¶ 20, 

. Since then, we have recognized that, under Heien, 574 U.S. at 60, 

, a traffic stop
need only be supported by reasonable suspicion to satisfy the requirements of the Fourth Amendment.
Allgier, ¶ 14, 

.
                                                   9
different ways of establishing a vehicle is following too closely). The two-second rule is
one of those ways. Id.; Allgier, ¶ 18 n.2, 

 n.2.

[¶30] In this case, the district court correctly ruled Trooper Carraher developed reasonable
suspicion, i.e., “a particularized and objective basis for suspecting,” that Mr. Robinson was
following the semi-truck too closely by using the two-second rule to measure the distance
between the two vehicles multiple times. Allgier, ¶ 14, 

 (internal quotation
marks and citation omitted); Nichols, 

. Consequently, Mr. Robinson was
not seized in violation of the Fourth Amendment when Trooper Carraher stopped him for
following another vehicle too closely under § 31-5-210(a).

              b. Detention

[¶31] Detention during a traffic stop “must be temporary, lasting no longer than necessary
to effectuate the purpose of the stop, and the scope of the detention must be carefully
tailored to its underlying justification.” Flood, ¶ 16, 

 (citation omitted).
The law enforcement officer “may request a driver’s license, proof of insurance and vehicle
registration, run a computer check, and issue a citation.’” Gibson, ¶ 10, 

(quoting Harris v. State, 

, 

 (Wyo. 2018) (other
citations omitted)). We have indicated the “computer check” can include a criminal history
check. See Gibson, ¶¶ 4, 10, 

. See also, United States v. Lyons, 

 (10th Cir. 2007) (after a proper traffic stop, the officer may request the
driver’s license and vehicle registration, run a criminal history check, and issue a warning
or citation). The officer may also inquire into the motorist’s travel plans to put the traffic
violation in context. Ray v. State, 

, ¶ 19, 

 (Wyo. 2018)
(citing O’Boyle, ¶ 48, 

).

[¶32] Once the tasks associated with the original traffic stop “are completed, a driver must
be allowed to proceed on his way unless reasonable suspicion exists that the driver is
engaged in [other] criminal activity or the driver consents to additional questioning.”
United States v. Guerrero-Espinoza, 

 (10th Cir. 2006) (citation
omitted). See also, Gibson, ¶ 10, 

 (stating “[g]enerally, the driver must be
allowed to proceed on his way without further delay once the officer determines the driver
has a valid driver’s license and is entitled to operate the vehicle”) (citation omitted);
Dimino,¶ 10, 

 (A law enforcement officer may extend the duration of an
investigatory detention only if the individual “consents to the expanded detention or if there
exists an objectively reasonable suspicion that [other] criminal activity has occurred or is
occurring.”) (internal quotation marks and citation omitted).

[¶33] Mr. Robinson asserts Trooper Carraher improperly detained him after the original




                                             10
purpose of the stop had concluded to allow for a drug-dog sniff.3 In determining whether
an officer had reasonable suspicion to extend the detention, we consider “the totality of the
circumstances and how those circumstances developed during the officer’s encounter” with
the motorist. Flood, ¶ 22, 

 (citing Custer v. State, 

, 

 (Wyo. 2006)).

[¶34] The district court addressed the expanded detention, as follows:

                The question is whether the facts and circumstances that
                Trooper Carraher learned during this time gave rise to separate
                reasonable suspicion that Mr. Robinson was engaged in further
                criminal activity. The court concludes that [they] did.

                        When Trooper Carraher first observed Mr. Robinson’s
                car, he noted that Mr. Robinson engaged the brakes even
                though he was ostensibly driving under the speed limit. Then,
                Trooper Carraher noticed the sun roof was [open] despite the
                30-degree weather. Once Trooper Carraher pulled over Mr.
                Robinson, he observed evidence of “hard travel,” which this
                court understood to mean that Trooper Carraher believed Mr.
                Robinson had been in the car for an extended period with little
                rest or stopping.

                       Once in the patrol car, Trooper Carraher learned that
                Mr. Robinson’s car was a rental that he rented in Las Vegas
                and that it was overdue. But, not only was it overdue, the rental
                agreement showed that Mr. Robinson was required to return
                the car in Las Vegas the day after he had rented it. Yet, Mr.
                Robinson [said he] had rented the car on December 26, 2017,
                to drive to a dance competition in Kansas City that he claimed
                was scheduled for December 29, 2017, but was actually on
                December 30, 2017. Moreover, despite the rental agreement’s
                terms, Mr. Robinson planned to return the car in Kansas City
                and fly back to Las Vegas to save some money on airfare,
                notwithstanding the extra fee he would have to pay to drop it
                off in Kansas City. During the stop, Trooper Carraher noticed
                that Mr. Robinson had “labored breathing.”


3
 Mr. Robinson broadly declares that the length of time Trooper Carraher detained him to issue the warning
was “objectively unreasonable” and a “ruse” to continue questioning him and allow the K-9 officer to arrive.
He does not, however, support his argument with cogent argument or citations to pertinent authority or the
record. Wright v. State, 

, ¶¶ 8-9, 

 (Wyo. 2019). Therefore, we will not
further discuss this argument.
                                                    11
                       Adding to these facts, Trooper Carraher, on two
                occasions, asked Mr. Robinson if he had ever been arrested or
                cited for anything. Mr. Robinson denied that he had. Once
                Trooper Carraher received Mr. Robinson’s criminal history
                from his dispatch, however, he discovered that Mr. Robinson
                had been arrested for misdemeanor possession of marijuana
                three years earlier. Trooper Carraher combined the evidence
                of “hard travel,” the oddities concerning the rental car, the date
                of the dance competition, and Mr. Robinson’s decision to lie
                about his criminal history to conclude that Mr. Robinson was
                engaged in further criminal activity.

After considering the totality of the circumstances, the district court concluded Trooper
Carraher had reasonable suspicion Mr. Robinson was involved in further criminal activity
which justified detaining him for a drug-dog sniff of his vehicle.

[¶35] The record supports the district court’s factual findings. Indeed, Mr. Robinson does
not claim the findings are clearly erroneous. He argues, instead, that each circumstance
was innocent and, together, they do not create reasonable suspicion he was committing
other crimes. We explained in Garvin v. State, 

, 

(Wyo. 2007):

                       The Supreme Court has instructed that we not examine
                each factor adding up to reasonable suspicion individually, but
                that we evaluate how convincingly they fit together into a
                cohesive, convincing picture of illegal conduct. In [United
                States v.] Arvizu, [

, 

, 

 (2002) ], the Court rejected what is called a “divide-and-
                conquer analysis,” noting that reasonable suspicion may exist
                even if “each observation” is “susceptible to an innocent
                explanation.” Arvizu, 

, 

.

(other citation omitted). We will, therefore, consider how the factors relied upon by the
district court fit together to determine if they established reasonable suspicion.

[¶36] Some of the factors mentioned by the district court have no significance. The
district court found that Mr. Robinson had “labored breathing.” Trooper Carraher indicated
Mr. Robinson seemed nervous because his hand shook slightly when he handed over his
driver’s license and because his breathing was labored while he was in the patrol vehicle.4
4
  The trooper also testified he could “see a visible pulse on [Mr. Robinson’s] stomach.” He did not explain
that observation in detail and, having watched the video of the traffic stop, we cannot understand how the
trooper could have observed a pulse in Mr. Robinson’s stomach given he was fully clothed during the
encounter.
                                                    12
Generic nervousness is to be expected when a person is stopped by law enforcement and,
therefore, has little weight in the reasonable suspicion analysis. Flood, ¶ 27, 

. However, numerous signs of significant anxiety which do not dissipate during the
stop or increased nervousness when discussing certain matters with the trooper will be
given some weight in determining if reasonable suspicion supports continued detention of
a motorist. See, e.g., Dimino, ¶¶ 20-21, 

 (many signs of anxiety,
including sweating and asking to roll down the windows on a cold day, hesitating before
answering questions, touching the face which is a sign of deceit, a pulsing carotid artery,
and tears in the eyes consistent with an adrenaline dump, were significant enough to
warrant some weight in the reasonable suspicion analysis); Garvin, ¶ 17, 

(signs of nervousness and evasion when the officer asked questions about controlled
substances were pertinent to the reasonable suspicion analysis). Although the district court
mentioned Mr. Robinson’s labored breathing, it does not appear the court gave much, if
any, weight to Mr. Robinson’s nervousness in its reasonable suspicion analysis. We,
likewise, do not assign any weight to the limited signs that Mr. Robinson was nervous.

[¶37] The district court also mentioned Mr. Robinson was driving with the sunroof open.
The trooper testified he found the open sunroof unusual because of the cold temperature,
but he did not explain how that factored into his suspicion that Mr. Robinson had controlled
substances in the car. Therefore, we do not assign any weight to that finding.

[¶38] Trooper Carraher testified he saw snacks, energy drinks, water, trash, and a
backpack on the front passenger-side floorboard of Mr. Robinson’s car, which he
considered evidence of “hard travel.” The district court interpreted that to mean Mr.
Robinson had driven for an extended period with little rest or stopping. In general, the
presence of food, trash or luggage in a vehicle adds little to the reasonable suspicion
analysis. Damato v. State, 

, 

 (Wyo. 2003) (citing United
States v. Wood, 

 (10th Cir. 1997)). However, the evidence in this case
went beyond Trooper Carraher’s observation of those items in the car. Mr. Robinson
actually told Trooper Carraher that, since leaving Las Vegas, he had only stopped for a
short time in Utah to sleep in his car. Evidence that a motorist has driven a long distance
in a short amount of time can contribute to an officer’s reasonable suspicion of a controlled
substance violation. Flood, ¶¶ 33-35, 

-48.

[¶39] The rental agreement and Mr. Robinson’s travel plans played a significant role in
the district court’s analysis. Mr. Robinson rented the car for one day in Las Vegas on
December 26, 2017, and it was supposed to be returned in Las Vegas on December 27,
2017. Nevertheless, Mr. Robinson was driving the car in Wyoming on December 28, 2017.
Mr. Robinson said he intended to talk to the rental company about his change of plans, but
had not yet done so. Mr. Robinson also told the trooper he planned to drop the car off in
Kansas City, pay the extra fees, and fly back to Las Vegas. When Trooper Carraher asked
why he did not fly to Kansas City, Mr. Robinson explained that driving was “simpler” and


                                             13
less expensive since he had decided at the last minute to go to Kansas City for the dance
competition.

[¶40] “[A] rental agreement that contradicts or is somehow inconsistent with the
traveler’s plans is an appropriate consideration in a reasonable suspicion analysis.” Sutton,
¶ 18, 

 (citing Feeney v. State, 

, 

 (Wyo.
2009), and Garvin, ¶¶ 15-17, 

). The obvious contradictions between the
rental agreement and Mr. Robinson’s travel plans contribute to the reasonable suspicion in
this case. Additionally, Mr. Robinson’s change of plans would result in him renting the
car for a one-way trip. We have recognized that one-way rental vehicles are often used to
transport illegal drugs. See Feeney, ¶ 21, 

. Mr. Robinson’s statement
that his plan to rent a car, pay additional fees for not complying with the rental agreement,
and purchase a one-way ticket to Las Vegas was less expensive than flying round-trip to
Kansas City was also suspicious.

[¶41] Furthermore, Mr. Robinson told Trooper Carraher multiple times that the dance
competition was on Friday, December 29, 2017, but the flyer for the competition which
Mr. Robinson showed to the trooper stated it was on December 30, 2017. Trooper Carraher
and the district court found Mr. Robinson’s story about his travel plans suspicious, and so
do we. In general, “‘unusual or inconsistent travel plans are a proper consideration in a
reasonable suspicion analysis.’” Frazier v. State, 

, 

(Wyo. 2010) (quoting Sutton, ¶ 19, 

). It was not unreasonable for Trooper
Carraher to suspect Mr. Robinson rented the car to transport controlled substances to
Kansas City and then planned to fly back to Las Vegas after the delivery.

[¶42] The district court also found Mr. Robinson’s criminal history and his lack of
truthfulness about it contributed to Trooper Carraher’s reasonable suspicion that Mr.
Robinson was engaged in further criminal activity. The trooper asked Mr. Robinson
whether he was on probation or parole or had ever been arrested, and he said, “No,” to each
question. Mr. Robinson’s criminal history showed a prior misdemeanor citation for
possession of controlled substances, so Trooper Carraher asked Mr. Robinson if he had
ever been cited for any drug offenses. Mr. Robinson again said, “No.” This exchange was
important for two reasons. First, “[a]lthough a suspect’s criminal history cannot, by itself,
establish reasonable suspicion, it is one factor that may justify further detention.” Pier v.
State, 

, ¶ 30, 

 (Wyo. 2019) (citing United States v. Simpson,

 (10th Cir. 2010)). Additionally, Mr. Robinson lied about his criminal
history. A false answer to an officer’s question can contribute to an officer’s reasonable
suspicion that “criminal activity [is] afoot.” Id., ¶ 27, 432 P.3d at 898; Negrette v. State,

, 

 (Wyo. 2007).

[¶43] Any one of these circumstances, alone, may be consistent with innocent conduct.
However, when considered together and in relation to one another, Mr. Robinson’s limited
stops while driving from Las Vegas to Kansas City, the overdue rental agreement, his intent

                                             14
to use the rental car to travel one-way to Kansas City, his inconsistent travel plans, his
criminal history, and his deceit about his criminal history are sufficient to show Trooper
Carraher had reasonable suspicion Mr. Robinson was committing a crime involving
controlled substances. The district court properly denied the motion to suppress because
Trooper Carraher did not violate Mr. Robinson’s Fourth Amendment rights by detaining
him for a drug-dog sniff of his vehicle.

[¶44] Affirmed.




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