CHEYENNE — The Wyoming Supreme Court recently ruled that a traffic stop by a Wyoming Highway Patrol trooper was unconstitutional, and that the Laramie County District Court failed to consider the full circumstances when it denied a motion to suppress evidence.
An appeal to the state Supreme Court, filed Sept. 7, argued a WHP trooper conducted an unconstitutional traffic stop, eventually leading to Joshua David Levenson’s conviction for marijuana possession and a prison sentence.
The opinion, penned by Justice John Fenn and filed April 20, ruled the trooper’s stop had violated the Wyoming Constitution and the Fourth Amendment. The trooper had admitted he pulled over the vehicle in which Levenson was a passenger, despite not seeing a traffic violation before using high speeds to catch up to the vehicle.
The opinion said Laramie County District Judge Catherine Rogers made a mistake by denying a motion to suppress evidence. The higher court agreed with the appellant’s argument that the court had failed to consider the full context of the stop, including the trooper’s behavior.
The court did not, however, overturn a prior decision it made in 2006’s Fertig v. State, in which the court said pretextual traffic stops did not violate the Wyoming Constitution. Levenson’s attorney, Devon Petersen, had asked the court to overturn that decision as part of the Levenson case.
“Pretextual stops provide an end run around the Constitution,” Peterson told the Wyoming Tribune Eagle.
A pretextual traffic stop can be characterized as when an officer pulls over a motorist for a traffic or equipment violation with the intent to check for more serious criminal offenses.
“We find no reason to depart from our decision in Fertig and continue to adhere to the principle that ‘an officer’s subjective intent to search for drugs does not invalidate an otherwise lawful traffic stop,’” Fenn wrote. “We do note, though, that regardless of the officer’s subjective intent, there must still be an otherwise lawful traffic stop that is reasonable under all the circumstances.”
The case was appealed from a judgment and sentence issued by Rogers last May.
“In its decision, the Wyoming Supreme Court made clear that an officer’s conduct in the course of a traffic violation may be scrutinized, and that the officer’s conduct may render a traffic stop unreasonable and therefore unconstitutional,” Petersen said in an email to the WTE. “The (Supreme) Court’s decision is an important step in ending arbitrary and needless traffic stops for minor traffic violations, which are so ripe for abuse.
“I am hopeful that one day pretextual traffic stops will no longer be allowed in Wyoming or any other part of the United States,” Petersen continued.
Wyoming Attorney General Bridget Hill, whose office represented the state in the appeal, declined to comment Friday.
WHP Administrator Col. Kebin Haller could not be reached for comment Friday, nor could a WHP spokesperson.
On an August evening in 2018, Trooper Shane Carraher was parked on a paved median near mile marker 357 on Interstate 80. He began following a black Nissan Rogue, despite – by his own admission, according to court documents – not observing a traffic violation.
Carraher drove up to 111 miles per hour in a 75 mph zone to catch up, penning in the Nissan between two semi trucks in a way that would have made a lane change unsafe. The trooper calculated that the Nissan was following the front truck too closely and pulled the vehicle over.
“After carefully reviewing the dash camera footage, we find the traffic stop was unreasonable under all the circumstances,” Fenn wrote. “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, (Section) 4 of the Wyoming Constitution,” as well as the Fourth Amendment to the U.S. Constitution, Fenn continued.
The trooper then issued the driver a warning for following too closely.
After speaking with the driver and with Levenson, who was the passenger, Carraher suspected the two might have been involved in criminal activity: their rental vehicle had been due the previous day, and they were headed away from the location where it was to be returned.
The driver denied Carraher permission to search the vehicle, so the trooper asked for a drug-detection canine from the Cheyenne Police Department. The K-9 alerted to controlled substances, and Carraher found 42 pounds of marijuana.
The driver and Levenson were arrested, with Levenson charged with felony intent to deliver a controlled substance and felony possession of a controlled substance.
In January 2019, Levenson moved to suppress evidence, arguing the stop had been unreasonable.
He argued Carraher’s driving created a safety hazard, and that because the initial stop was pretextual, it was barred by the Wyoming Constitution.
Following a May 2019 hearing, the district court held that the traffic stop was justified based on the trooper’s observation of the Nissan following the semi truck too closely.
In exchange for Levenson’s guilty plea to felony possession of a controlled substance, the charge of felony intent to deliver a controlled substance was dismissed.
Rogers sentenced Levenson to 12 to 15 months in prison, but he was released on bond while his appeal was resolved, according to court documents.
Levenson had entered a conditional guilty plea, reserving his right to appeal the court’s denial of a motion to suppress evidence based on what he said was an illegal pull-over.
Levenson argued the court was required to consider “all the circumstances surrounding the stop, including the officer’s own conduct,” the opinion said.
“We find the district court erred” by failing to do so, Fenn wrote.
Fenn quoted part of the decision in a 2005’s O’Boyle v. State:
“Our location along a nationally recognized drug trafficking corridor likely results in a disproportionately large percentage of Wyoming’s comparatively small population being subjected to what have become routine requests to relinquish their privacy rights by detention, invasive questioning and searches,” the quote reads, “all without reasonable suspicion of criminal activity other than the offense giving rise to the stop.”