author: DAVIS, Chief Justice.

text:
    Devon Matthew BROWN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    S-18-0112
    Supreme Court of Wyoming.
    April 18, 2019
    Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Desiree Wilson, Senior Assistant Appellate Counsel. Argument by Ms. Wilson.
    Representing Appellee: Peter K. Michael, Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Darrell D. Jackson, Faculty Director, Catherine M. Mercer, Student Director, Lucas Plumb, Student Intern, of the Prosecution Assistance Program. Argument by Mr. Plumb.
    Before DAVIS, C.J., FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
   DAVIS, Chief Justice.

[¶1] Devon Matthew Brown entered a conditional guilty plea to felony possession of a controlled substance (marijuana) with intent to deliver, reserving his right to appeal the district court's denial of his motion to suppress evidence. On appeal, Mr. Brown contends that law enforcement unlawfully detained him to conduct a canine sniff after completing a traffic stop. We reverse.

ISSUES

[¶2] Mr. Brown presents two issues for review:

I. Whether the district court's finding that Mr. Brown's demeanor changed when he revoked consent was clearly erroneous?
II. Whether Mr. Brown was subjected to an unreasonable search and seizure in violation of the Fourth Amendment to the United States Constitution?

The State raises a third issue: Whether Mr. Brown waived his right to assert that the traffic stop concluded earlier than Mr. Brown argued during the suppression hearing?

FACTS

[¶3] On August 31, 2016, Corporal Gary Spears of the Campbell County Sheriff's Department observed Mr. Brown's red utility vehicle traveling at a high rate of speed in Gillette, Wyoming. Corporal Spears turned around to catch up to the vehicle and observed Mr. Brown swerving within his lane of travel, crossing the center line, and clocked him going 53 miles per hour in a 45 mile per hour zone. As Corporal Spears neared Mr. Brown's vehicle, Mr. Brown quickly entered a turn lane, hit his brakes, and entered a dead-end street.

[¶4] Corporal Spears initiated a traffic stop and approached Mr. Brown. When asked about his travel plans, he stated he was headed to his home, which was not located on the dead-end street, after traveling to Gillette from Torrington. He informed Corporal Spears that he had received a speeding ticket earlier that day on the interstate near Wheatland and that he was tired from his long drive.

[¶5] Corporal Spears initially suspected that Mr. Brown might be intoxicated because of his driving and bloodshot eyes. However, he did not appear to be intoxicated during questioning, which led Corporal Spears to believe his driving, including his abrupt turn, "could be from trying to conceal something." Corporal Spears obtained Mr. Brown's identification and returned to his patrol vehicle where he learned from his dispatcher that Mr. Brown was on unsupervised probation for possession of marijuana.

[¶6] Corporal Spears decided not to issue a traffic citation. He went back to Mr. Brown's vehicle and returned his identification. When asked, Mr. Brown confirmed he was on probation and volunteered, "You may sobriety test me, you may look, do whatever you like, the other cop did as well." During this conversation, Corporal Spears thought he smelled a faint odor of marijuana, but due to the wind, it was difficult to be sure. He decided to accept Mr. Brown's unsolicited offer to search and requested Mr. Brown exit the vehicle so he could run his drug dog through it.

[¶7] Mr. Brown hesitated at that point, and he told Corporal Spears that he wanted to make a call to his friend or his mother because it wasn't his vehicle. Corporal Spears explained that he could consent even if he did not own the car, but Mr. Brown remained hesitant. He asked if he could go, but Corporal Spears insisted that he exit the vehicle and stated, "First of all, [you're] totally cooperative, I said ok, you're balking now, so minimum intrusion, I'm gonna run the dog around your car." Mr. Brown complied, and Corporal Spears retrieved his drug dog, who alerted to the exterior of the vehicle in less than a minute.

[¶8] Corporal Spears searched the interior of the vehicle and found a jar containing marijuana and another package with three sealed baggies of marijuana. The State charged Mr. Brown with felony possession of a controlled substance with intent to deliver.

[¶9] Mr. Brown filed a motion to suppress, arguing that Corporal Spears lacked reasonable articulable suspicion to expand the scope of the stop and to conduct a canine sniff. The district court denied Mr. Brown's motion after an evidentiary hearing. It found that several factors supported a finding of reasonable suspicion to extend the stop, and that the length of the detention, ten minutes and thirty-seven seconds, was not unreasonable. After the district court denied his motion, Mr. Brown entered a conditional plea of guilty, preserving his right to appeal the adverse decision on his suppression motion. The district court sentenced Mr. Brown to three to five years of imprisonment, with credit for 54 days served, and suspended the sentence subject to four years of supervised probation. Mr. Brown timely appealed after entry of the Sentence and Probation Order.

STANDARD OF REVIEW

[¶10] In reviewing a denial of a motion to suppress evidence, we adopt the district court's factual findings unless those findings are clearly erroneous. Rodriguez v. State , 2018 WY 134, ¶ 15, 430 P.3d 766, 770 (Wyo. 2018) (citing Jennings v. State , 2016 WY 69, ¶ 8, 375 P.3d 788, 790 (Wyo. 2016) ). We view the evidence in the light most favorable to the district court's decision because the court conducted the hearing and had the opportunity to "assess the witnesses' credibility, weigh the evidence and make the necessary inferences, deductions and conclusions." Kunselman v. State , 2008 WY 85, ¶ 9, 188 P.3d 567, 569 (Wyo. 2008) (quoting Hembree v. State , 2006 WY 127 ¶ 7, 143 P.3d 905, 907 (Wyo. 2006) ). "On those issues where the district court has not made specific findings of fact, this Court will uphold the general ruling of the court below if supported by any reasonable view of the evidence." Feeney v. State , 2009 WY 67, ¶ 9, 208 P.3d 50, 53 (Wyo. 2009) (citing Neilson v. State , 599 P.2d 1326, 1330 (Wyo. 1979) ). "The ultimate question of whether the search or seizure was legally justified, however, is a question of law we review de novo." Rodriguez , ¶ 15, 430 P.3d at 770.

DISCUSSION

[¶11] Mr. Brown challenges the denial of his motion to suppress, claiming that Corporal Spears unlawfully detained him after returning his identification approximately seven minutes and forty seconds into the stop, or alternatively, approximately nine minutes and fourteen seconds into the stop when Mr. Brown revoked his consent to search and asked if he could leave. In response, the State contends that Mr. Brown waived any claim that he was unlawfully detained on return of his identification, but regardless, that Corporal Spears had reasonable, articulable suspicion to detain him to conduct a canine sniff after completing the traffic stop. We first address the State's contention that Mr. Brown failed to preserve any claim that he was unlawfully detained on return of his identification.

I. Waiver

[¶12] The State correctly notes that a guilty plea waives appellate review of all non-jurisdictional claims, including claims of unlawfully obtained evidence. See , e.g., Kunselman , ¶ 11, 188 P.3d at 569. W.R.Cr.P. 11(a)(2) provides the sole exception to the waiver rule and "allows a defendant to plead guilty while reserving the right to seek review on appeal of any specified pretrial motion." Kunselman, ¶ 11, 188 P.3d at 569. We have cautioned that although a conditional guilty plea provides a mechanism for appellate review, it does not provide carte blanche permission to present any and all arguments on appeal. Id. ¶ 11, 188 P.3d at 570. Rather, an appellant's argument is limited to those issues clearly brought to the district court's attention. Id.

[¶13] In determining the scope of an issue brought to the district court's attention, we will read any ambiguity in the conditional plea agreement "against the Government and in favor of a defendant's appellate rights." United States v. Anderson , 374 F.3d 955, 957 (10th Cir. 2004) (citation omitted); see also Lovato v. State , 901 P.2d 408, 411 (Wyo. 1995) (explaining that " W.R.Cr.P. 11(a)(2) is identical, in all material aspects, to the corresponding federal rule" and consideration of relevant federal precedent is therefore proper). "[T]he text of the plea agreement is our guide." Anderson , 374 F.3d at 957. Applying these standards, we are not persuaded that Mr. Brown waived his right to argue that he was unlawfully detained after Corporal Spears returned his identification.

[¶14] In his plea agreement, Mr. Brown reserved the right to "seek review of the adverse determination of his Motion to Suppress Evidence ." His suppression motion broadly challenged the scope of the stop, contending that Corporal Spears lacked reasonable suspicion:

6. The deputy improperly expanded the scope of the stop without reasonable articulable suspicion of further illegal activity.
7. All evidence obtained in violation of the defendant's Fourth Amendment right against illegal searches and seizures should therefore be suppressed pursuant to both the United States and Wyoming Constitutions.

(Emphasis added.) After the suppression hearing concluded, the district court determined that "there was reasonable cause to detain the young man so as to permit the dog to do a free air sniff, not in the vehicle, but around the vehicle." Nothing in the plea agreement, the suppression motion, or the district court's denial of the suppression motion limited Mr. Brown's Fourth Amendment challenge to precisely nine minutes and fourteen seconds into the stop.

[¶15] We acknowledge that Mr. Brown's argument became more focused at the suppression hearing when his counsel argued during closing remarks that Corporal Spears lacked reasonable suspicion to further detain him after he revoked his consent and asked to leave nine minutes and fourteen seconds into the stop, whereas Mr. Brown now contends that the traffic stop concluded two minutes earlier. However, the district court did not specifically determine when Corporal Spears completed the traffic stop, and Mr. Brown's general allegation that Corporal Spears unlawfully expanded the scope of the stop without reasonable articulable suspicion has not changed.

[¶16] These circumstances are different from those in cases where we determined waiver applied. See, e.g. , Morgan v. State , 2004 WY 95, ¶¶ 22-25, 95 P.3d 802, 808-09 (Wyo. 2004) (appellant waived right to argue a lack of probable cause and failure to establish foundation for reliability of the drug dog where appellant limited the suppression motion to whether an exterior dog sniff constituted a search); Lindsay v. State , 2005 WY 34, ¶¶ 19 n.7, 108 P.3d 852, 857 n.7 (Wyo. 2005) (declining to consider appellant's challenge to the reasonableness of the initial stop where appellant only challenged the reasonableness of the further detention before the district court); Kunselman , ¶¶ 10-12, 188 P.3d at 569-70 (appellant waived right to challenge the legality of the initial stop because her motion to suppress and argument at the suppression hearing focused on the scope and duration of the stop and the subsequent search of her purse); see also Anderson , 374 F.3d at 958 (new theory advanced on appeal fell outside the scope of appellant's reserved appellate rights where the plea agreement preserved only the right to appeal the order denying defendant's motion to suppress and neither the order nor the motion raised the new "improper-patdown argument").

[¶17] Furthermore, this is not a case in which the record is undeveloped, thus precluding our review. See, e.g. , Snell v. State , 2014 WY 46, ¶ 24, 322 P.3d 38, 47 (Wyo. 2014) (declining to review an issue because the facts relevant to a determination were not developed before the district court); cf. Campbell v. State , 2004 WY 106, ¶ 14, 97 P.3d 781, 785 (Wyo. 2004) (finding sufficient evidence to review an issue the district court did not analyze). The evidence at the suppression hearing encompassed the entire stop, and it included Corporal Spears' body camera video.

[¶18] The district court's decision rests largely on its finding that Corporal Spears had reasonable, articulable suspicion prior to Corporal Spears returning Mr. Brown's identification. The district court specifically noted that although Corporal Spears did not issue a citation, "[t]hat doesn't mean he can't take into account [the] myriad of factors" leading up to the return of Mr. Brown's identification, including Mr. Brown's probation status, and the district court analyzed all of those factors to support its reasonable suspicion determination. Consequently, the record makes available those facts relevant to our review of the district court's determination. For these reasons, we consider the full scope of his Fourth Amendment challenge.

II. Scope of the Stop

[¶19] Mr. Brown concedes that the initial traffic stop was justified, but he contends that his continued detention for a canine sniff of his vehicle after Corporal Spears completed the traffic stop violated the Fourth Amendment of the federal constitution. U.S. Const. amend. IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...."). We evaluate the reasonableness of an investigatory stop under the Fourth Amendment by using the two-part inquiry from Terry v. Ohio , 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968) : "(1) whether the initial stop was justified; and (2) whether the officer's actions during the detention were reasonably related in scope to the circumstances that justified the interference in the first instance." Kennison , ¶ 13, 417 P.3d at 150. "An officer's conduct is judged by an objective standard taking into account the totality of the circumstances." Sweets v. State , 2017 WY 22, ¶ 9, 389 P.3d 1214, 1216 (Wyo. 2017) (quoting LaPlant v. State, 2006 WY 154, ¶ 14, 148 P.3d 4, 7 (Wyo. 2006) ). "[W]hile the test is objective, the officer's training, experience, and expertise are to be considered as part of the 'totality of the circumstances.' " Speten v. State , 2008 WY 63, ¶ 4, 185 P.3d 25, 28 (Wyo. 2008) (citing McKenney v. State , 2007 WY 129, ¶ 11, 165 P.3d 96, 98-99 (Wyo. 2007) ).

[¶20] As to the second prong of the Terry test, we note that "[a]n investigative detention 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." Campbell , ¶ 12, 97 P.3d at 784. During a routine traffic stop, an officer may request a driver's license, proof of insurance, and vehicle registration, run a computer check, and issue a citation or warning. Id. ¶ 12, 97 P.3d at 785. The driver and his vehicle may only be detained for the period of time reasonably necessary to complete these routine matters. Id. ; see also Rodriguez v. United States , --- U.S. ----, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015). "Once the initial reason for a stop has been resolved, an officer must have specific, articulable facts and rational inferences giving rise to reasonable suspicion that another crime has been or is being committed to justify a continued detention." Meadows v. State , 2003 WY 37, ¶ 18, 65 P.3d 33, 38 (Wyo. 2003) (citing United States v. McRae, 81 F.3d 1528, 1534 (10th Cir. 1996) ); see also O'Boyle v. State , 2005 WY 83, ¶ 49, 117 P.3d 401, 415 (Wyo. 2005).

A. New Facts Are Not Required to Extend the Initial Stop

[¶21] Mr. Brown contends Corporal Spears completed the initial traffic stop when he returned Mr. Brown's identification without issuing a citation, and he lacked reasonable suspicion of other unlawful activity to further detain Mr. Brown. Mr. Brown argues that the facts developed before Corporal Spears returned his identification (e.g ., his driving, bloodshot eyes, and unusual route home) cannot support reasonable suspicion for further detention and, instead, new facts were required to expand the scope of the stop. Our precedent defeats Mr. Brown's argument.

[¶22] In Dimino v. State , 2012 WY 131, 286 P.3d 739 (Wyo. 2012), we rejected Mr. Dimino's claim that additional facts were necessary to establish reasonable suspicion to conduct a canine sniff after the trooper completed the initial traffic stop and asked Mr. Dimino to voluntarily answer further questions. Id. ¶¶ 12-13, 286 P.3d at 743. Applying Sutton v. State , 2009 WY 148, ¶¶ 18-26, 220 P.3d 784, 790-91 (Wyo. 2009), we held that the district court could properly consider facts developed during the initial stop to determine whether the officer had reasonable articulable suspicion to further detain Mr. Dimino to conduct a drug dog sniff. Dimino , ¶ 15, 286 P.3d at 744. Mr. Brown did not cite Dimino or Sutton , and we find nothing in his argument to distinguish or cause us to question our holdings in either case. Consequently, the district court could properly consider facts obtained during the initial traffic stop to determine whether Corporal Spears had reasonable suspicion of other unlawful activity sufficient to conduct an exterior canine sniff after returning Mr. Brown's identification.

B. Circumstances Establishing Reasonable Suspicion

[¶23] In determining whether Corporal Spears had a reasonable suspicion to further detain Mr. Brown under the Fourth Amendment, we look to the totality of the circumstances and how those circumstances developed during Corporal Spears' encounter with him. Sutton , ¶ 11, 220 P.3d at 788. We do not examine each circumstance individually, but instead "we evaluate how convincingly they fit together into a cohesive, convincing picture of illegal conduct." Id. (quoting Garvin v. State , 2007 WY 190, ¶ 16, 172 P.3d 725, 729 (Wyo. 2007) ). Reasonable suspicion may exist even if "each observation" is "susceptible to an innocent explanation." Id. "In considering the totality of the circumstances, '[c]ommon sense and ordinary human experience are to be employed, and deference is to be accorded a law enforcement officer's ability to distinguish between innocent and suspicious actions.' " Sutton , ¶ 11, 220 P.3d at 788 (quoting Damato v. State , 2003 WY 13, ¶ 16, 64 P.3d 700, 707 (Wyo. 2003) ).

[¶24] At the suppression hearing, Corporal Spears testified that he has been employed by the Campbell County Sheriff's office since 1993, and that he received drug interdiction training and experience throughout his employment. He testified that he became a K-9 handler in 1998, and that he and his K-9 Rocky are currently a certified drug detection team.

[¶25] Corporal Spears also testified about the specific facts of the traffic stop. He explained that he initially thought Mr. Brown might be intoxicated, but other than his bloodshot eyes, Mr. Brown did not appear to be under the influence of alcohol or marijuana. This led Corporal Spears to believe that his driving, including an abrupt turn on a dead-end street after Corporal Spears caught up with him, "could be from trying to conceal something at that time."

[¶26] Corporal Spears testified that he thought Mr. Brown's travel route from Torrington to Gillette and receipt of a ticket on the interstate by Wheatland was "a little odd" because "there's an exit to and from Torrington that's north of Wheatland." Corporal Spears learned from dispatch that Mr. Brown was on unsupervised probation for possession of marijuana, and he testified that when questioning Mr. Brown about his probation status, he thought he smelled marijuana:

A. While I was talking to him, after I went back up and talked to him and asked him about the probation, I thought I could smell a little bit of weed at one time, but the wind was blowing so hard, I kept trying to smell again and again, and I could never smell it a second time, so I didn't smell it again.
Q. But you did smell it one time?
A. Yeah, I believed it was, yes, a faint odor of marijuana, but because of the wind it was really difficult to distinguish.[ ]

[¶27] Even though he thought he smelled marijuana and could conduct a canine free-air sniff on that basis, Corporal Spears testified that Mr. Brown "openly volunteered to give me total consent to search the car without me asking." However, when Corporal Spears asked Mr. Brown to step out of the car so he could run the dog through it, Mr. Brown "balked," stating that he wanted to first call his friend and then his mom because it was not his car. Mr. Brown remained hesitant after Corporal Spears explained he could consent to a search even if he did not own the vehicle.

[¶28] Corporal Spears described this conduct as a "demeanor change." He testified that after Mr. Brown revoked his consent, he could not search the inside of the vehicle, but still believed he could run his K-9 around the outside of it. The district court also received Corporal Spears' body cam video into evidence. The parties presented no other witnesses or evidence.

[¶29] The district court found Corporal Spears' testimony credible, stating that he was very honest, "even-handed," and had many years of experience in his line of work. Relying on Corporal Spears' testimony and the body cam video, the district court concluded that the totality of the circumstances created a reasonable suspicion of criminal behavior sufficient to expand the scope of the stop to conduct a drug dog sniff. In reaching its conclusion, the district court found several circumstances established reasonable suspicion, which we summarize as follows:

(1) Mr. Brown's driving, including his abrupt turn onto a dead-end street, which was an unusual way to go to Mr. Brown's home;
(2) Mr. Brown's unusual travel route from Torrington to Gillette using the interstate instead of Highway 85;
(3) Mr. Brown's bloodshot eyes;
(4) Mr. Brown appearing alert in the body cam video despite reporting that he was tired;
(5) Mr. Brown's unsupervised probation for possession of marijuana;
(6) Mr. Brown's demeanor change when he revoked his consent to search; and
(7) Mr. Brown "furtively" trying to make phone calls.

The district court made no findings about Corporal Spears possibly smelling marijuana.

[¶30] Mr. Brown argues that the district court erroneously considered circumstances related to Corporal Spears' initial concern that he might be driving impaired, because Corporal Spears dispelled that concern prior to returning Mr. Brown's identification. He also argues that the district court's finding that his demeanor changed when he revoked consent is clearly erroneous. According to Mr. Brown, the only facts available for consideration under a reasonable suspicion analysis were his probation status and his desire to speak with his friend or mother before deciding whether to allow the drug dog in the vehicle, facts which he contends do not establish reasonable suspicion. We acknowledged above that the district court could consider facts obtained and observations made during the initial traffic stop, and consequently we review each of the district court's findings for error.

1. Bloodshot eyes, driving, and alertness

[¶31] Corporal Spears initially thought Mr. Brown's driving (swerving and abrupt turn) and bloodshot eyes could mean Mr. Brown was driving impaired. Corporal Spears testified that upon questioning Mr. Brown, other than his bloodshot eyes he did not notice anything else that might indicate that he was under the influence of alcohol or marijuana. Corporal Spears admitted that Mr. Brown's bloodshot eyes could be the result of the long drive from Torrington. The district court therefore improperly factored Mr. Brown's bloodshot eyes into its reasonable suspicion analysis. Damato , ¶ 16, 64 P.3d at 707 (explaining that "some facts must be outrightly dismissed as so innocent or susceptible to varying interpretations as to be innocuous").

[¶32] Mr. Brown's possible impairment was not Corporal Spears' sole concern. He testified that he was also concerned Mr. Brown was trying to conceal "something" (i.e., illegal activity) based on Mr. Brown's driving, including his abrupt turn onto a dead-end street after Corporal Spears caught up to him:

A. ... And then as I was catching up to [Mr. Brown's vehicle], it made a quick turn into the turning lane and hit its brakes and turned onto Arapaho, and that's where I conducted a traffic stop.
Q. And describe this quick turn. Did the vehicle signal for some distance and have its turn signal on before it made the turn, or --
A. I believe he just went into the turning lane, hit his brakes, and then as he was going in the turning lane, he turned on his signal.
Q. So it was an abrupt turn?
A. Yes. That's why I just -- I remember it as being a quick movement to the turning lane.

Mr. Brown's abrupt turn after Corporal Spears turned around and caught up to him could be viewed as an evasive maneuver raising suspicion of illegal activity. See, e.g. , Sutton , ¶ 24, 220 P.3d at 791 (acting evasive is a proper factor to consider in conducting a reasonable suspicion analysis). Corporal Spears also thought turning onto the dead-end street was inconsistent with Mr. Brown's statement that he was headed to his home:

A. Well, he told me he was just about home. So I asked him where his home was, where his residence was, and he said on Alex Way. I forget the numerics, but he stated on Alex Way, which is -- we were stopped just off of 59 on Arapaho. Alex Way is in Doud subdivision west of Highway 50 off of Force Road, and Arapahoe was a dead[-]end street, it's not a through street; so I thought that was kind of odd that he stopped there or turned on Arapaho.

"We have recognized that unusual or inconsistent travel plans are a proper consideration in a reasonable suspicion analysis." Feeney , ¶ 20, 208 P.3d at 56 (citing Flood v. State , 2007 WY 167, ¶¶ 30, 33, 169 P.3d 538, 547-48 (Wyo. 2007) ). Accordingly, the district court properly included Mr. Brown's abrupt turn onto a dead-end street and his improbable explanation he was on his way home in its reasonable suspicion analysis.

2. Probation status

[¶33] Mr. Brown is correct that his probation status alone does not permit a warrantless search absent reasonable suspicion. See, e.g. , Nixon v. State , 2001 WY 15, ¶ 12, 18 P.3d 631, 636 (Wyo. 2001) ; Jones v. State , 2002 WY 35, ¶ 34, 41 P.3d 1247, 1257 (Wyo. 2002) ; United States v. Moore , 795 F.3d 1224, 1230 (10th Cir. 2015). However,

"[I]n conjunction with other factors, criminal history contributes powerfully to the reasonable suspicion calculus ." [
United States v. ] White , 584 F.3d [935,] 951 [ (10th Cir. 2009) ] (quoting [ United States v. ] Santos , 403 F.3d [1120], 1132 [ (10th Cir. 2005) ] ) (emphasis in original). Although a person with a criminal record could not be pulled over or detained based on the record itself, such a record is one factor that may justify further detention and that may cast a suspicious light on other seemingly innocent behavior. See Santos , 403 F.3d at 1132 ("To be sure, this Court has held that a prior criminal history is by itself insufficient to create reasonable suspicion. People with prior convictions retain Fourth Amendment rights; they are not roving targets for warrantless searches. But in conjunction with other factors, criminal history contributes powerfully to the reasonable suspicion calculus." (internal citations omitted) ).

United States v. Simpson , 609 F.3d 1140, 1147 (10th Cir. 2010) (emphasis in original).

[¶34] In weighing Mr. Brown's probation status, the district court commented:

So the officer goes and does, as the officers usually do, run the license through dispatch, that kind of thing, and he comes up with the young man being on probation for possession of a controlled substance. And in and of itself that amounts to nothing. That does not factor into the analysis, and [the State] conceded that point. But, I do think it's legitimate for the officer to take that into account as he tries to plug in all of these other observations this officer is making.

[¶35] The record demonstrates that the district court did not consider Mr. Brown's probation status in isolation, but, instead, considered it along with other circumstances the district court considered as supportive of Corporal Spears' reasonable suspicion that Mr. Brown was trying to conceal illegal activity. In doing so, the court gave the factor little weight, and we find no error in its evaluation of this point.

3. Demeanor change and request to make phone calls

[¶36] Our precedent firmly holds that "[t]he failure to consent to a search cannot form any part of the basis for reasonable suspicion." Damato , ¶ 19, 64 P.3d at 708 (citation omitted) (emphasis added). This record is clear, and the State does not dispute, that Mr. Brown revoked his consent. Nonetheless, Corporal Spears testified, the State argued, and the district court found, not that the revocation of consent supported reasonable suspicion, but that Mr. Brown exhibited a change in demeanor when he revoked his consent, and that the purported change in demeanor supported Corporal Spears' reasonable suspicion that illegal activity had occurred or was occurring.

[¶37] At the suppression hearing, Corporal Spears testified that he perceived a change in Mr. Brown's demeanor after he accepted Mr. Brown's offer to allow a search:

Q. And he said you could give him a sobriety test and you could search his vehicle. Well, did you end up taking him up on the offer to search his vehicle?
A. I did. When he said -- when he said I could search it I said "Well, if you don't mind, if you'd step out of the car I'll just run the dog through the car. It will only take a couple minutes."
Q. And at that point did his demeanor change?
A. Yes, he said -- he hesitated, and he said he wanted to call somebody. So I asked him why he needed to call somebody and he made a comment, "It's not my car." He says his mom's car, he wanted to call his mom.

On cross-examination, Corporal Spears further explained Mr. Brown's "demeanor change:"

Q. How would you say his demeanor changed?
A. From going eagerly cooperative to uncooperative .
....
I might have used the wrong word by "demeanor." I don't know for sure what your definition is. I just mean from him being openly cooperative and "yes, you can," volunteering the information to now saying, "no, you can't and I want to leave."

(Emphasis added.) Based on Corporal Spears' testimony, the district court found that:

... while failure to consent cannot provide the basis for a reasonable cause, I think the circumstances surrounding a retraction of consent, the demeanor change, can be taken into account. And I for sure noticed the demeanor change. In fact, I can't climb into the mind of this defendant, but it seems as soon as the word "dog" was mentioned, we had a demeanor change fairly quickly .... that can be taken into account in the officer's mind in determining whether or not there is a reasonable cause.

(Emphasis added.)

[¶38] After Corporal Spears requested that Mr. Brown exit the vehicle so that he could run his drug dog through it, the body cam video reflects that Mr. Brown hesitated to exit the vehicle, asked if he was free to leave, and expressed his desire to make a phone call to his friend or his mother concerning the situation. He did nothing more. Contrary to the district court's finding that his demeanor changed, the body cam video does not reflect any behavioral changes such as extreme nervousness or evasive eye contact that might be relevant to the district court's reasonable suspicion analysis. Sutton , ¶ 24, 220 P.3d at 791 (explaining that "factors such as acting evasive or breaking eye contact when asked certain questions can [ ] form the basis for reasonable suspicion"). Rather, the video reflects that Mr. Brown remained polite and respectful, maintained eye contact, and engaged in a dialogue with Corporal Spears in a consistent voice and tone throughout the encounter. Collectively, the evidence establishes nothing more than that Mr. Brown had a change of heart and revoked his consent to a search of the vehicle.

[¶39] Mr. Brown's revocation of consent cannot be recast as a "demeanor change" so as to circumvent the well-established rule prohibiting the use of consent revocation as a basis to establish reasonable suspicion. Damato , ¶ 19, 64 P.3d at 708 ; United States v. Santos , 403 F.3d 1120, 1132 (10th Cir. 2005) (citing Florida v. Bostick , 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ) (explaining that "a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure"); United States v. Freeman , 479 F.3d 743, 749 (10th Cir. 2007) ("Refusal to consent to a search - even agitated refusal - is not grounds for reasonable suspicion."). The district court's finding that Mr. Brown's demeanor changed when he revoked his consent to search is clearly erroneous, see, e.g. , Daniel v. State , 2008 WY 87, ¶ 14, 189 P.3d 859, 864 (Wyo. 2008) ("A finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed."), and cannot support the district court's conclusion that Corporal Spears' had reasonable suspicion to further detain Mr. Brown.

C. Totality of Circumstances

[¶40] In its analysis, the district court did not discuss Corporal Spears' testimony that he thought he could smell a faint odor of marijuana. This is apparently because it found the reported scent should be afforded no weight, and if so we agree with that determination. Corporal Spears testified that he believed he smelled "a faint odor of marijuana, but because of the wind it was really difficult to distinguish." He further testified, "It might have been just a fraction of a second. And for me to say I would have P.C. off a plain smell from just that, was that what I smelled or not, I wouldn't go that far." Given Corporal Spears' candid unwillingness to commit to having smelled marijuana, the district court was correct in not relying on that testimony in its analysis.

[¶41] After we exclude from consideration the factors that the district court improperly included in its analysis, and the possible smell of marijuana it properly omitted from its analysis, we are left with only three factors to support the continued detention of Mr. Brown: his abrupt turn on a dead-end street, travel inconsistent with his stated destination, and his probation status for possession of marijuana. Under our precedent, these circumstances, even considered in their totality, do not support a reasonable suspicion of illegal activity sufficient to extend the traffic stop.

[¶42] In Damato , the district court found reasonable suspicion of illegal activity in the following circumstances:

1) Damato seemed unusually nervous for a routine traffic stop;
2) Damato told the patrolman that the car was rented from San Francisco instead of San Diego, which is a known drug hub;
3) Damato said that he was taking the car home to Illinois when it was to be dropped off in Omaha;
4) Damato's luggage was in the back seat instead of the trunk;
5) many fast food wrappers on the passenger floorboard suggested Damato was on a "hard run"; and
6) Damato did not consent to the search which caused Patrolman Rettinger to suspect drugs.

Damato , ¶ 19, 64 P.3d at 708.

[¶43] As in the present case, we did not consider the defendant's refusal to consent to a search in the reasonable suspicion analysis. Id . Having done so, we concluded that the remaining factors were insufficient to constitute reasonable suspicion of illegal activity. Id. ¶ 26, 64 P.3d at 710. The circumstances here are no more compelling or supportive of reasonable suspicion. See also Barch v. State , 2004 WY 79, ¶ 11, 92 P.3d 828, 833 (Wyo. 2004) (no reasonable suspicion of illegal activity where defendant was unable to identify specific destination in city to which he was traveling, was carrying larger quantity of food than necessary for travel plans, was nervous and hurried, was unemployed making claimed vacation unlikely, and was from known drug hub). Indeed, even where we have upheld a finding of reasonable suspicion under circumstances that better supported the suspicion, it was a close case.

Although we acknowledge the evidence here is not overwhelming, the factors, including: the strong odor of a potential masking agent; the nervousness of the travelers; the inconsistency in the travelers' accounts of their trip and their relationship to one another and the boy; and the short turnaround time suggested nefarious, rather than innocent, conduct. We conclude, therefore, the totality of the circumstances established a reasonable suspicion to support further detention of Mr. Flood.

Flood , ¶ 35, 169 P.3d at 548.

[¶44] The district court's reasonable cause analysis centered on Mr. Brown changing his mind about consenting to a search, and an ephemeral and unquantifiable "change in demeanor." Once these are excluded from consideration, as they must be, the remaining circumstances offer weaker support than those in Damato , Barch , and Flood , and they do not add up to reasonable suspicion. Mr. Brown was therefore improperly detained for the dog sniff, and the resulting search violated his Fourth Amendment rights.

[¶45] Reversed and remanded for further proceedings consistent with this opinion.

BOOMGAARDEN, Justice, dissenting, in which KAUTZ, Justice, joins.

[¶46] Rather than use the lack of any specific finding about whether Corporal Spears smelled marijuana to support the reversal of Mr. Brown's conviction, we should uphold the general ruling of the district court "if supported by any reasonable view of the evidence." Feeney v. State , 2009 WY 67, ¶ 9, 208 P.3d 50, 53 (Wyo. 2009) (citation omitted). Corporal Spears testified that he believed he caught a whiff of something he thought smelled like marijuana. He stated he "thought [he] could smell a little bit of weed at one time, but the wind was blowing so hard, [he] kept trying to smell again and again, and [he] could never smell it a second time." Corporal Spears nevertheless was confident enough in his olfactory observation he believed that, together with other facts he gathered during the stop, the smell provided him with reasonable, articulable suspicion to conduct a canine sniff outside the car. On re-direct, Corporal Spears explained that had Mr. Brown not consented to a search of the car's interior, he intended to use Rocky to sniff around the outside of Mr. Brown's car.

[¶47] This is not a case in which we must determine whether the smell of marijuana, alone, provided probable cause to search. I found no precedent to suggest an officer must confirm he smelled marijuana, whether windy or not, before he can consider even a fleeting, faint smell as one factor that, when coupled with others, establishes reasonable suspicion to prolong a stop to conduct a canine sniff. To the contrary, we have previously considered the credible, unrefuted testimony of an officer who "thought" he smelled the odor of marijuana, albeit "briefly," when applying the totality of the circumstances test. Dimino v. State , 2012 WY 131, ¶¶ 17-22, 286 P.3d 739, 744-45 (Wyo. 2012) (finding the odor of marijuana alone to be sufficient to justify a prolonged detention but analyzing additional circumstances to conclude that all of the factors, together, justified the officer's reasonable suspicion). The law further instructs us to consider Corporal Spears' training, experience, and expertise (Corporal Spears and Rocky are a certified drug detection team) as part of the totality of the circumstances, Speten v. State , 2008 WY 63, ¶ 4, 185 P.3d 25, 28 (Wyo. 2008) (citations omitted), and to give appropriate deference to Corporal Spears' ability to distinguish between innocent and suspicious actions. Sutton v. State , 2009 WY 148, ¶ 11, 220 P.3d 784, 788 (Wyo. 2009) (citations omitted). Applying these standards, I would factor Corporal Spears' testimony concerning the faint smell of marijuana into the totality of the circumstances and affirm Mr. Brown's conviction.

      Mr. Brown cited both the federal and state constitutions in his motion to suppress, but he did not provide a separate analysis of his rights under the Wyoming Constitution. We therefore limit our review to his federal constitutional claim. Kennison v. State , 2018 WY 46, ¶ 12 n.1, 417 P.3d 146, 149 n.1 (Wyo. 2018) (citation omitted).

      On cross-examination, Corporal Spears testified:
      Q. Now, on direct you stated that you believed that at one point in time you smelled marijuana, but it was really difficult?
      A. It might have been just a fraction of a second. And for me to say I would have P.C. [probable cause] off a plain smell from just that, was that what I smelled or not, I wouldn't go that far.
      On redirect, Corporal Spears further explained:
      Q. At that point in time when you smelled marijuana, and the other factors that you took into account during the course of your encounter up to that point, did you believe that you had reasonable, articulable suspicion to go and obtain your dog to do a brief outside of the vehicle search?
      A. Yes.
      Q. And if your dog did not indicate on the vehicle, were you planning on searching, based upon your smell of the marijuana?
      A. No, I would not have.
      Q. Were you going to use the dog as a tool?
      A. Yes.
      Q. And the tool would be potential indication of controlled substances?
      A. Yes. I figured if I caught just a whiff of something that I thought smelled like marijuana, the dog would hit it easy.

      The district court found it unusual that Mr. Brown used the interstate to travel from Torrington to Gillette instead of using Highway 85. Corporal Spears did not ask Mr. Brown the reasons for his chosen route, and there may be innocent explanations for traveling the interstate instead of the highway. This circumstance is therefore innocuous. See, e.g. , Damato , ¶ 16, 64 P.3d at 707. The district court also considered the fact that Mr. Brown appeared alert despite his claimed fatigue. Because Corporal Spears did not cite that circumstance as contributing to his suspicion, we afford it no weight. Klomliam v. State , 2014 WY 1, ¶ 28 n.2, 315 P.3d 665, 673 n.2 (Wyo. 2014).

      Mr. Brown's desire to call his friend or his mother was not "furtive" and cannot be excised from the overall conduct evidencing his revocation of consent. Accordingly, the district court improperly considered Mr. Brown's request to make phone calls as a separate circumstance indicative of reasonable suspicion.

      The audio portion of Corporal Spears' body cam video confirms a stiff wind was blowing while Corporal Spears was talking with Mr. Brown.


source: Caselaw Access Project

author: FOX, Justice.

license: Public Domain

text:
    Joshua C. OSBAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    S-18-0137
    Supreme Court of Wyoming.
    April 19, 2019
    Representing Appellant: Mitch Guthrie, Attorney at Law, Cheyenne, Wyoming.
    Representing Appellee: Peter K. Michael, Attorney General; Christyne Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Russell Farr, Senior Assistant Attorney General. Argument by Mr. Farr.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
   FOX, Justice.

[¶1] A jury convicted Joshua C. Osban of possession of methamphetamine. Mr. Osban appeals his conviction, arguing the State failed to bring him to trial within 180 days following his arraignment as required by Wyoming Rule of Criminal Procedure 48. He also claims the district court should have suppressed the methamphetamine found in a container inside his truck because the search of the container was unreasonable. We reverse.

ISSUES

[¶2] Mr. Osban raises two issues:

I. Whether Mr. Osban's right to a speedy trial under W.R.Cr.P. 48 was violated when his trial commenced 194 days after his arraignment.
II. Whether the district court erred when it denied Mr. Osban's motion to suppress the methamphetamine officers discovered in his truck.

Because we reverse on the speedy trial issue, we do not address the motion to suppress.

FACTS

[¶3] Cheyenne Police Officer Jonathan Smith responded to a report that a man had fired a gun at a party. When he arrived at the scene, the homeowner told Officer Smith that her ex-husband, Mr. Osban, had come to the house and argued with her boyfriend, Christopher Cash. She said the argument ended when Mr. Osban shot a gun at Mr. Cash and then drove away. Another witness told Officer Smith that she saw some mud splatter beside Mr. Cash's leg after the shot was fired. Officers found a .22 Super X casing in the area where witnesses indicated Mr. Osban had fired the shot.

[¶4] Mr. Osban was later apprehended at his home, and a search revealed a .22 caliber pistol, cartridges, and methamphetamine. The State charged Mr. Osban with one count of aggravated assault and battery, in violation of Wyo. Stat. Ann. § 6-2-502(a)(i) (LexisNexis 2017), and one count of possession of methamphetamine, in violation of Wyo. Stat. Ann. § 35-7-1031(c)(ii) (LexisNexis 2017). Mr. Osban filed a demand for speedy trial, and he pleaded not guilty to both charges at his arraignment on May 5, 2017. In its criminal case management order, the district court acknowledged that Mr. Osban's 180-day trial deadline under Rule 48 would run on November 1, 2017, and it set Mr. Osban's trial for August 14, 2017. The district court later reset the trial for October 16, 2017.

[¶5] On October 2, 2017, the State filed a petition to revoke Mr. Osban's bond after he tested positive for methamphetamine and alcohol. On October 5, 2017, the district court ordered the clerk of court to issue a bench warrant, which it did the next day. Defense counsel met with Mr. Osban and informed him it was important he turn himself in to law enforcement in order to maintain the October 16, 2017 trial date. On October 12, 2017, Mr. Osban surrendered himself at the Laramie County Detention Center, where he was served with the warrant. The next day, Mr. Osban's counsel filed a notice that the bench warrant had been executed and Mr. Osban was in custody. Later that day, counsel was informed by district court staff that Mr. Osban's October 16, 2017 trial date had been vacated. Written notice of the vacated trial setting was not filed until October 25, 2017, when an order on scheduling conference and an order resetting the jury trial were filed. The latter order stated the October 16, 2017 trial had been vacated because Mr. Osban had "absconded in violation of his bond," and both orders reset the trial for November 13, 2017. On November 6, 2017, Mr. Osban filed a motion to dismiss the charges against him because his trial had not taken place on or before November 1, 2017-his Rule 48 deadline. On November 9, 2017, the district court held a hearing on the matter and denied the motion. The district court determined it had not violated Rule 48(b) because when a warrant is issued, the "defendant is unavailable" for trial. It also mentioned that the trial stack required the continuance in the due administration of justice.

[¶6] After being reset one last time, Mr. Osban's trial commenced on November 15, 2017. The jury convicted him of possessing methamphetamine but acquitted him of the aggravated assault and battery charge. The district court sentenced Mr. Osban to two to five years of imprisonment but suspended the sentence in favor of three years of supervised probation. Mr. Osban filed a timely notice of appeal.

DISCUSSION

W.R.Cr.P. 48 Speedy Trial

[¶7] Mr. Osban claims his right to a speedy trial was violated when the district court sua sponte vacated the October 16, 2017 trial setting without giving him an opportunity to object, resulting in his trial taking place after the 180-day deadline required by W.R.Cr.P. 48(b). Mr. Osban filed a motion to dismiss on this basis, and the district court denied the motion. We review speedy trial claims under Rule 48 de novo. Castellanos v. State , 2016 WY 11, ¶ 48, 366 P.3d 1279, 1294 (Wyo. 2016).

[¶8] The constitutional right to a speedy trial has amorphous contours. Barker v. Wingo , 407 U.S. 514, 522, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101 (1972). The purpose of W.R.Cr.P. 48, and similar rules across the country, is to provide structure to that right. See Castellanos , 2016 WY 11, ¶ 49, 366 P.3d at 1294. The rule's provisions "are mandatory." Rodiack v. State , 2002 WY 137, ¶ 9, 55 P.3d 1, 3 (Wyo. 2002) (citations omitted). The rule provides for trial within 180 days of arraignment, with certain exceptions. Mr. Osban was arraigned on May 5, 2017, and the district court acknowledged that Mr. Osban's trial must be held on or before November 1, 2017, to comply with the rule. Continuances beyond the 180 days are excusable in certain situations:

(b)(4) Continuances exceeding 180 days from the date of arraignment may be granted by the trial court as follows:
(A) On motion of defendant supported by affidavit; or
(B) On motion of the attorney for the state or the court if:
(i) The defendant expressly consents;
(ii) The state's evidence is unavailable and the prosecution has exercised due diligence; or
(iii) Required in the due administration of justice and the defendant will not be substantially prejudiced; and
(C) If a continuance is proposed by the state or the court, the defendant shall be notified. If the defendant objects, the defendant must show in writing how the delay may prejudice the defense.

W.R.Cr.P. 48(b)(4). Despite its mandatory nature, neither the rule nor this Court imposes a "set of specific procedural requirements to which a court must adhere in re-setting a trial date[.]" Castellanos , 2016 WY 11, ¶ 63, 366 P.3d at 1298.

[¶9] The district court continued the trial because it believed that Mr. Osban had "absconded in violation of his bond," making him unavailable for the proceedings under Rule 48(b)(6). We cannot agree with the district court's conclusion. The arrest warrant was not issued because Mr. Osban had absconded or failed to appear for testing or other proceedings; instead, the State alleged he violated his bond because he had tested positive for alcohol and methamphetamine. We do not believe the rule's phrase "unavailable for any proceeding" is so broad as to encompass an outstanding arrest warrant for a bond violation unrelated to the location of a defendant, particularly when the defendant has not actually missed any proceedings. The district court's statement that Mr. Osban was unavailable under Rule 48(b)(6) is not supported by any facts in the record.

[¶10] We turn to the State's argument that the due administration of justice under (b)(4)(B)(iii) required the continuance, and perhaps it might have. We appreciate that the district court was aware of the speedy trial deadline in Mr. Osban's case, and specifically left his case on the October 16, 2017 trial stack despite defense counsel's suggestion that "I'm not in a rush to try it on the 16th of October." As the trial date approached, the court had to account for the "17 or 18" other cases on the October 16, 2017 trial stack in conjunction with the fact that there was an unexecuted warrant for Mr. Osban's arrest. Rule 48(b)(4)(B)(iii) recognizes that continuances beyond the 180-day threshold are appropriate when "[r]equired in the due administration of justice," and the district court's ability to manage a crowded docket can fall into this category. Germany v. State , 999 P.2d 63, 66 (Wyo. 2000).

[¶11] Here, however, the district court ignored the procedures required when a continuance is proposed "in the due administration of justice" under (b)(4)(B)(iii), and instead found retroactively that its crowded docket compelled the continuance. Most district courts have very crowded dockets. If they are permitted to ignore the speedy trial rule and retroactively justify the delay, Rule 48 's speedy trial requirement is rendered meaningless. Further, the language of the rule does not permit the lack of formality that occurred here.

[¶12] Rule 48(b)(4)(C) requires that the court provide the defendant notice of a proposed continuance and an opportunity to object and establish how the delay "may prejudice the defense."

(C) If a continuance is proposed by the state or the court, the defendant shall be notified. If the defendant objects, the defendant must show in writing how the delay may prejudice the defense.

[¶13] The district court did not comply with this requirement. On October 13, 2017, court staff informed Mr. Osban's attorney, not that the court proposed moving his trial date, but that the court had already vacated the original setting. There is no indication in the record that the court informed Mr. Osban's attorney at that time that the court had reset the trial, only that it had vacated the original setting. It was not until almost two weeks later that the court reset Mr. Osban's trial beyond the required 180 days; again, after it had already vacated the original setting without allowing Mr. Osban the chance to object or otherwise respond to a proposed continuance. This procedure violated the notice and opportunity to be heard purpose of subsection (b)(4)(C).

[¶14] The State cites Vlahos v. State , 2003 WY 103, 75 P.3d 628 (Wyo. 2003), in support of its argument that Mr. Osban was required to show prejudice by the delay. But in Vlahos , unlike here, the court had put the defendant on notice that his case might be continued and that he should bring speedy trial concerns to the court's attention. Id. at ¶¶ 14-15, 75 P.3d at 633. Without such notice, it was not Mr. Osban's burden to establish prejudice under (b)(4)(C).

[¶15] A court must comply with (b)(4)(C) before it continues a trial. See Taylor v. State , 2001 WY 13, ¶ 12, 17 P.3d 715, 720 (Wyo. 2001) ("As Germany [v. State , 999 P.2d 63 (Wyo. 2000) ] decided, both the Court and the State made the efforts required by W.R.Cr.P. 48(b) to notify Germany that its crowded docket required a continuance, and he had the opportunity to object and show prejudice. Taylor asserts that did not happen in this case, and our review reveals nothing in the record to contradict his assertion.") (internal citation omitted); Sides v. State , 963 P.2d 227, 230 (Wyo. 1998) ("The district judge heard appellant's objections, then continued the trial for the valid reasons set forth above.") (emphasis added); Springfield v. State , 860 P.2d 435, 452 (Wyo. 1993) ; Whiteplume v. State , 841 P.2d 1332, 1336 (Wyo. 1992) ("From the trial court's description of its considerations for continuing the [ ] trial date, as contained in its order, it is clear the trial court continued the trial date in the interests of the due administration of justice and after hearing from appellant's lawyer that he favored a continuance.") (emphasis added).

[¶16] Although we have said that we do not "impose a set of specific procedural requirements to which a court must adhere in re-setting a trial date," Castellanos , 2016 WY 11, ¶ 63, 366 P.3d at 1298, the requirement that a court wait for the defendant's response before ordering a continuance in the "due administration of justice" is critical to the effectiveness of the speedy trial rule, and should have been observed here. The district court should have described the facts related to its docket, made an appropriate finding that a continuance was proposed in the due administration of justice, and immediately notified Mr. Osban so he could object and present evidence of any prejudice he may suffer. Because that is not what happened, Mr. Osban's right to speedy trial was violated.

[¶17] Mr. Osban's conviction and sentence are reversed and remanded to the district court.

KAUTZ, J., dissenting, in which BOOMGAARDEN, J., joins.

[¶18] I respectfully dissent. The district court adequately complied with W.R.Cr.P. 48.

[¶19] Rule 48(b)(4)(B)(iii) permits continuances exceeding 180 days after arraignment if (1) required in the due administration of justice, and (2) the defendant will not be substantially prejudiced. The record in this case unequivocally demonstrates that each of these requirements was satisfied in Mr. Osban's case. The rule creates some procedural requirements for trial continuances exceeding 180 days from arraignment, when, as here, the continuance is "proposed" by the court. In such a circumstance, the defendant (1) must be notified, and (2) given the opportunity to object. Rule 48(b)(4)(C). The record indicates that each of these requirements was met in Mr. Osban's case.

Required in the Due Administration of Justice

[¶20] Some district courts have heavy criminal dockets and must "stack" criminal trial settings. Reality dictates that only one case set for trial on the stacked date can actually go to trial, and the others must either be resolved without a trial or be continued to a later trial date. When such a continuance is necessary beyond the 180-day limit of Rule 48, we have recognized those continuances as "required in the due administration of justice." See, e.g. , Germany v. State, 999 P.2d 63 (Wyo. 2000), Taylor v. State, 2001 WY 13, 17 P.3d 715 (Wyo. 2001). Considering the district courts' caseloads, it is appropriate that Rule 48 provide an exception for such continuances.

[¶21] Here, the district court issued a Criminal Case Management Order on May 8, 2017, which stated that the case was on a trial stack and required counsel to confer and advise the court about prioritization of stacked cases for trial. Initially, Mr. Osban's case was one of 23 cases set for trial on August 14, 2017. After a scheduling conference on July 7, 2017, the district court reset 13 of those cases, including Mr. Osban's, for trial on September 11, 2017. By August 7, 2017, 24 other cases (the original 13 plus 11 others) were set for trial on September 11, 2017. The district court again held a scheduling conference for all of those cases and reset 11 cases for trial on October 16, 2017. Mr. Osban's case, however, was scheduled with nine others for a second scheduling conference held on September 1, 2017. Following that meeting with counsel, the district court added six of those nine cases, including Mr. Osban's, to the October 16, 2017 setting. Although cases were dropping off the trial stack, new cases were added, so by mid-September there were 24 cases scheduled to go to trial on October 16, 2017. On September 22, 2017, the district court held another scheduling conference and reset many of those cases for later trial dates. However, it noted that the next available trial date would go beyond the Rule 48 time and kept Mr. Osban's case and ten others set for October 16, 2017.

[¶22] On October 2, 2017, the State requested witness subpoenas for Mr. Osban's trial. (Presumably, it also requested subpoenas for the other ten cases also set for trial on October 16, 2017). That same day, the State requested a bench warrant for Mr. Osban because it claimed he had violated conditions of his bond. The court issued that warrant on October 5, 2017, and the clerk of court provided a copy of the warrant to Mr. Osban's counsel on October 6, 2017. Although Mr. Osban's counsel advised him to turn himself in, Mr. Osban did not do so until October 12, 2017. During that time, counsel and the district court had to evaluate which of 11 cases would go to trial on October 16, 2017, and which would have to be continued so that proper preparation occurred for trial, and so that witnesses for other cases could be notified.

[¶23] Mr. Osban's counsel advised the district court that his client was in jail on Friday, October 13, 2017. Court staff told counsel that the Monday, October 16, 2017 trial setting for Mr. Osban had been vacated the previous day. One of the other cases set for October 16, 2017 went to trial. The district court held another scheduling conference on October 20, 2017, at which it re-set Mr. Osban's trial for November 13, 2017. Mr. Osban's attorney participated in that hearing. The district court issued a written order reciting the decisions made at the scheduling conference on October 25, 2017.

[¶24] These facts make it clear that continuance of Mr. Osban's trial past November 1, 2017, "was required in the due administration of justice." The district court faced a nearly impossible task of getting defendants to trial, particularly in light of its other obligations. The court conducted five scheduling conferences for Mr. Osban and others in an effort to get cases to trial timely. There were 11 cases scheduled for trial before a single judge, in a single courtroom, on October 16, 2017. The due administration of justice required the district court to continue ten of the cases set for that date.

No Substantial Prejudice to Mr. Osban

[¶25] Nothing in the record indicates that on October 12, 2017, or on October 20, 2017, a continuance to November 13, 2017 would result in any substantial prejudice to Mr. Osban. In fact, Mr. Osban cannot point to any prejudice resulting from the delay, even when the continuance is viewed in hindsight.

[¶26] Mr. Osban argues that he was prejudiced by the anxiety he suffered in not knowing when his trial would occur. The only time he would have been uncertain about a trial date was from October 13 to October 20, 2017. The stress or anxiety about a trial setting for a week cannot constitute "substantial prejudice." This is especially true where, as here, the court had evidenced its awareness of the Rule 48 deadline. He also complains that he lost his liberty and some property due to his various bond violations and revocations. Of course, those are consequences of his bond violations, and are not prejudice suffered as a result of his trial date.

[¶27] The record shows that Mr. Osban was not prejudiced by any continuance. He has not pointed to any part of his defense which was affected in any manner by moving his trial to a date two weeks beyond the Rule 48 time. To the contrary, three weeks before the continuance Mr. Osban's counsel stated, "I'm not in a rush to try it on the 16th of October," making a tacit acknowledgment that no prejudice would result from resetting the trial.

Notice to Mr. Osban

[¶28] Rule 48(b)(4)(C) requires that when a continuance beyond 180 days after arraignment is proposed by the court, "the defendant shall be notified." There is no doubt that the defendant was notified here. At a hearing on September 22, 2017, the district court told Mr. Osban's counsel that any continuance past October 16, 2017 would result in a trial beyond the Rule 48 time. The district court's staff then notified counsel on October 12, 2017 that the continuance had occurred. Mr. Osban's attorney participated in a scheduling conference on October 20, 2017 when the trial was reset for November 13, 2017. Finally, the court provided counsel with a written order moving the trial to November 13, 2017.

Opportunity to Object

[¶29] Rule 48 implies that a defendant be given the opportunity to object to a continuance beyond 180 days after arraignment. Logically, the opportunity must exist before the 180 days has passed, so the trial court can consider the objection with any prejudice claimed by the defendant in time to provide a trial within 180 days. Mr. Osban had the opportunity to object well before the Rule 48 time expired. His counsel knew of the continuance 18 days before that, on October 13, 2017. He participated in a scheduling conference on October 20, 2017 and received a written order on October 25, 2017. However, Mr. Osban's attorney did not object before the time expired. Rule 48 requires objections to include a written showing of "how the delay may prejudice the defense." Mr. Osban had two and one-half weeks to do so, but did not.

[¶30] An objection would have given the district court the opportunity to consider the prejudice alleged by Mr. Osban and determine whether a continuance under Rule 48(b)(4)(B)(iii) was appropriate. Mr. Osban instead waited until the speedy trial deadline passed and then filed a motion to dismiss. See Vlahos v. State , 2003 WY 103, ¶ 19, 75 P.3d 628, 634 (Wyo. 2003) (trial court did not err in continuing trial when defendant had the opportunity to object and demonstrate prejudice under Rule 48(b)(4)(C) but did not do so, even when the notice resetting trial was filed over a month after the original trial date had passed and three weeks after the Rule 48(b) deadline had passed). Rule 48(b)(1) specifies that "it is the responsibility of the court, counsel and the defendant to insure that the defendant is timely tried." (emphasis added). Mr. Osban had the opportunity to timely object but did not do so.

[¶31] The majority opinion relies heavily on the following language in Rule 48(b)(4)(C) : "if a continuance is proposed by the state or the court, the defendant shall be notified." (emphasis added). It interprets the term "is proposed" as requiring a specific procedure whereby the court first informs a defendant that a continuance beyond the 180 days "is proposed," the defendant has some unspecified time to respond, and the court later enters an order continuing the trial beyond the Rule 48 deadline. This interpretation goes beyond the language of the rule. Rule 48 does not mandate "a set of specific procedural requirements to which a court must adhere in re-setting a trial date." Castellanos , ¶ 63, 366 P.3d at 1298.

[¶32] The multi-step process envisioned by the majority requires that the trial court "wait for the defendant's response before ordering a continuance." That process would complicate the court's management of its stacked settings, add to the workload of the trial court, require consideration of continuances earlier, and, in total, make the process inefficient.

[¶33] Until the 180-day limit expired on November 1, 2017, the district court's trial settings were always subject to review and resetting. They were "proposed" continuances beyond the deadline and could have been adjusted if appropriate. The trial judge did not create an unchangeable trial setting, but by ordering a continuance, "proposed" a setting that went beyond the Rule 48 time.

Unavailability Order

[¶34] The district court held a scheduling conference on October 20, 2017, and at that conference set Mr. Osban's trial for November 13, 2017. It issued a written order from that hearing on October 25, 2017. The written order addresses numerous cases on the court's trial stack and indicates an obvious effort to manage the docket in the due administration of justice. Also on October 25, 2017, however, the district court issued a separate order addressing only Mr. Osban's case. That order states that it was necessary to schedule a new trial date for Mr. Osban because he "absconded in violation of his bond " but then set the trial for November 13, 2017, just as the prior order had.

[¶35] Nothing in the record indicates Mr. Osban "absconded in violation of his bond." It is unknown why the second order issued on October 25, 2017 included such a statement, and it is unknown why the order was entered at all. Mr. Osban's November 13, 2017 trial date already was set. Although the trial judge mistakenly thought a defendant was "unavailable" for trial when a warrant is outstanding, the facts here clearly show a continuance was required in the due administration of justice. "This Court will affirm the district court's decision on any legal ground appearing in the record." Short v. State , 2009 WY 52, ¶ 9, 205 P.3d 195, 198 (Wyo. 2009). The record establishes that the district court complied with Rule 48. I would affirm.

      By the time Mr. Osban's appeal matured before this Court, the district court had revoked Mr. Osban's probation and imposed the underlying sentence, which it had reduced to 18 to 36 months.

      Defendants also have the right to a speedy trial under the Sixth Amendment to the United States Constitution. The constitutional analysis is separate from the analysis we use to consider a speedy trial claim under Rule 48(b). See Castellanos v. State , 2016 WY 11, ¶¶ 49-51, 69, 366 P.3d 1279, 1294-95, 1299 (Wyo. 2016) ; Rhodes v. State , 2015 WY 60, ¶¶ 10, 17, 348 P.3d 404, 407-08, 410-11 (Wyo. 2015). Mr. Osban mentions his constitutional right to a speedy trial in his appellate brief but does not provide the relevant standard or an analysis of that standard. Therefore, we limit Mr. Osban's claim to Rule 48(b). See Sonnett v. First American Title Ins. Co. , 2013 WY 106, ¶ 26, 309 P.3d 799, 808 (Wyo. 2013) (quoting Elder v. Jones , 608 P.2d 654, 660 (Wyo. 1980) ) ("An appellant is required to present this court with relevant authority and cogent argument. It is not enough to identify a potential issue with the expectation that this court will flesh out the matter from there. The appellant, at a minimum, must attempt to relate the rule of law he depends upon to the facts of his case.").

      The State does not argue that this statement amounted to a motion by defense counsel to continue the October 16, 2017 trial setting. Nor could it. To continue a trial based on the defendant's motion, that motion must be supported by an affidavit. W.R.Cr.P. 48(b)(4)(A).

      Cf. Webb v. State , 2017 WY 108, ¶ 50, 401 P.3d 914, 929-30 (Wyo. 2017) (Fox, J. & Burke, C.J., concurring in part and dissenting in part) ("[T]he State's repeated circumvention of the speedy trial rule by dismissing and refiling [an Information] to start the [speedy trial] clock anew has the effect of eviscerating W.R.Cr.P. 48.") (footnote omitted).

      On April 11, 2017, Mr. Osban's attorney filed a written demand for speedy trial. Under Rule 48(b)(7), a dismissal for violating Rule 48 precludes re-prosecution.

      The circumstances here beg the question of how a single district judge can provide speedy trial to all criminal defendants, while also handling juvenile cases (which have a higher scheduling priority by law), domestic cases, and civil cases. The Court's weighted caseload statistics indicate that in FY2018 the First Judicial District needed 4.59 district judges to handle the number of cases in that district but had only three judges. In FY2018 (including the time frame relevant to this case), those three district judges were assigned 320 civil cases, 75 adoptions, 541 divorces, 747 other domestic relations cases, 284 juvenile cases, 36 appeals and 25 termination of parental rights cases in addition to 499 felony cases.


author: KAUTZ, Justice.

text:
    Christopher M. REQUEJO, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    S-18-0186
    Supreme Court of Wyoming.
    April 19, 2019
    Representing Appellant: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.
    Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Darrell Duane Jackson, Faculty Director, PAP; Catherine M. Mercer, Student Director, PAP; Jenna N. Niehl, Student Intern. Argument by Ms. Niehl.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN and GRAY, JJ.
   KAUTZ, Justice.

[¶1] A jury convicted Christopher Michael Requejo of two counts of aggravated assault and battery with a deadly weapon. Four and one-half months before his trial, Mr. Requejo demanded disclosure by the State of any recorded statements he or any witnesses had made. Although the State had access to such statements before Mr. Requejo's demand, it did not disclose them until three working days prior to trial. Mr. Requejo moved for dismissal of the charges as a sanction for the late discovery and now appeals the district court's denial of that motion. We find that the district court properly exercised its discretion by imposing other sanctions against the State and affirm the court's order denying Mr. Requejo's motion to dismiss.

ISSUE

[¶2] Mr. Requejo presents the following issue on appeal:

Whether the district court abused its discretion in not dismissing with prejudice the charges against Mr. Requejo as a sanction for the State's violation of Wyoming Rule of Criminal Procedure 16.

FACTS

[¶3] On July 20, 2017, the State charged Mr. Requejo with two counts of aggravated assault and battery with a deadly weapon in violation of Wyo. Stat. Ann. § 6-2-502(a)(ii) and (b) (Lexis Nexis 2017). The charges stemmed from an incident where he attempted to forcibly enter the residence of his girlfriend's sister while swinging a machete at a window and yelling threats at the two occupants inside. Mr. Requejo pleaded not guilty at his arraignment on August 10, 2017, and the case was set for trial. On September 11, 2017, he served discovery demands on the State. Under W.R.Cr.P. 16, he demanded, among other discovery, any recorded statements he had made. Under W.R.Cr.P. 26.2 he requested "any and all statements which Rule 26.2 required be turned over." The district court did not enter an order requiring any discovery.

[¶4] While the State timely responded to most of Mr. Requejo's discovery requests, it failed to produce two items until January 24, 2018-three working days, or five days total before trial. These items were a recording of a 911 call made by the victim on the night of the incident and a statement made by Mr. Requejo to the police on the night of his arrest. Based on the late disclosure, Mr. Requejo filed a Motion to Dismiss Case with Prejudice on January 25, 2018.

[¶5] The district court held a hearing on the motion on January 29, 2018. The State denied any bad faith and asserted a lack of diligence and a glitch in their records acquisition process as the reason for the late disclosure. This glitch kept the State from discovering the records until several days before trial, after which they promptly disclosed them to Mr. Requejo. Acknowledging their violation of discovery rules, the State voluntarily stipulated to suppression of the late disclosed evidence and listed several remedial mechanisms it had implemented to avoid any future mistakes. It argued this stipulation materially weakened its case since the evidence in question was only inculpatory and thus damaging to Mr. Requejo's case, not helpful. Mr. Requejo agreed the State probably did not act in bad faith but stated that the late disclosure should not have occurred in any event. In addition, he argued that the late disclosure caused him to suffer prejudice due to its effect on plea negotiations and his inability to pursue a voluntary intoxication defense. The court offered Mr. Requejo a one-week continuance to consider a voluntary intoxication defense based on the late discovery materials, but he declined this offer. He declined two further offers of continuances made by the judge later in the proceedings, as well. The court issued its Order Denying Defendant's Motion to Dismiss on February 2, 2018, finding that Mr. Requejo agreed the State did not act in bad faith when it violated the discovery rules, that Mr. Requejo was not prejudiced by the error, that he declined the offer of a continuance for trial preparation, and that he requested the trial proceed as scheduled.

[¶6] On January 30, 2018, a jury convicted Mr. Requejo of both counts. The court sentenced him to concurrent six to ten-year periods of incarceration in a Wyoming State Penal Institution, with credit for 287 days of presentence confinement. Mr. Requejo subsequently filed a timely notice of appeal.

STANDARD OF REVIEW

[¶7] "A trial court has discretion in determining the proper sanction for a party's violation of its discovery responsibilities." Lawson v. State, 994 P.2d 943, 946 (Wyo. 2000) ; Lindsey v. State, 725 P.2d 649, 655 (Wyo.1986). State v. Naple , 2006 WY 125, ¶ 8, 143 P.3d 358, 360-61 (Wyo. 2006). The decision of a trial court in addressing a violation of required discovery will be set aside only for an abuse of discretion. Naple, ¶ 8, 143 P.3d at 361. We will find an abuse of discretion only if the trial court could not reasonably conclude as it did, and we will not reverse its decision if there is a legitimate basis for its ruling. Lawson , 994 P.2d at 947. The party challenging the trial court's decision has the burden of showing an abuse of discretion. Anderson v. State , 2014 WY 13, ¶ 11, 317 P.3d 1108, 1113 (Wyo. 2014).

DISCUSSION

[¶8] Our analysis begins with the Wyoming Rules of Criminal Procedure. Mr. Requejo served the State with a written demand for discovery materials on September 11, 2017. Wyoming Rule of Criminal Procedure 16(a)(1)(A)(i)(1) mandates the production of any "relevant written or recorded statements made by the defendant" that the State controls or should know about after acting in due diligence, upon request by the defendant. In addition, W.R.Cr.P. 26.2(a) mandates, upon order by the court, the production of any written or recorded witness statements relating to that witness's past or future testimony that the State possesses or can reasonably obtain. This may include the late-disclosed 911 recording made by the victim to police the night Mr. Requejo attacked her at her house.

[¶9] Neither Rule 16 nor Rule 26.2 indicates a specific time frame for disclosure of demanded discovery materials. The advisory committee notes to F.R.Cr.P. 16, from which our rule is derived, state that "although no specific timing requirements are included, it is expected that the parties will make their requests and disclosures in a timely fashion." The purpose of the discovery rules "logically means that such disclosures must occur prior to the start of trial, if not earlier." United States v. Slough, 61 F.Supp.3d 103, 108 (D.D.C. 2014). Rule 26.2 only requires production of statements of witnesses "upon order of the court." Here, Mr. Requejo did not file any motions requesting the district court order the State to disclose any discovery materials, and the court did not issue a discovery order.

[¶10] The State did not argue that the timing of its disclosure of the recorded items complied with Rule 16. Although the district court did not enter an order for discovery, the State did not argue that disclosure of witness statements was not required under Rule 26.2. The State also did not contend that the 911 recording was not a witness "statement" under Rule 26.2. See Jones v. State, 568 P.2d 837 (Wyo. 1977). Consequently, for purposes of this opinion, we will assume that the timing of the State's disclosure of both recordings three working days before trial constituted a failure to comply with its duty to disclose under Rules 16 and 26.2. Rule 16(d)(2) provides direction in the event the State fails to comply with mandated discovery under that rule:

If at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances.

[¶11] The court may dismiss with prejudice if it finds the sanction to be just under the circumstances. Naple , ¶ 11, 143 P.3d at 361. When evaluating whether a sanction is just under the circumstances, courts consider the following three factors:

(1) the reasons the State delayed producing the requested materials, including whether or not the prosecutor acted in bad faith when it failed to comply with the discovery order; (2) the extent of prejudice to the defendant as a result of the delay; and (3) the feasibility of curing the prejudice with a continuance.

Id. , ¶ 24, 143 P.3d at 365. Additionally, the court must impose the least severe sanction that will effectively ensure the State's future compliance with discovery responsibilities. Id . In Naple , the Court approved of a quote from 21 Am.Jur.2d. Criminal Law § 784 (2006) detailing the "exceptional circumstances" when dismissal is an appropriate remedy for a discovery violation.

A court's dismissal of a criminal case is a remedy of last resort, and a trial judge abuses his or her discretion by ignoring intermediate remedial steps. Such dismissal is reserved for severe situations because dismissal of a charging instrument frustrates the public interest in the prosecution of crimes.

Id. , ¶ 13, 143 P.3d at 362-63.

[¶12] Further elaborating on this principle, the Court in Naple quoted the Tenth Circuit, which stated that, "instances where an appellate court has upheld a district court's dismissal of an indictment because of alleged prosecutorial misconduct are 'few and far between.' " Id., ¶ 12, 143 P.3d at 362, citing United States v. Anderson, 778 F.2d 602, 606 (10th Cir. 1985). In short, while dismissal with prejudice can be "just under the circumstances" in addressing a violation of discovery rules, it is a remedy of last resort reserved for extreme cases. Analysis of the three Naple factors is required first, and dismissal should only be applied when no other sanction will incentivize compliance with discovery rules in the future.

Reasons for Delay

[¶13] Considering the first factor of the Naple test, the State asserts a glitch in its record acquisition process was the reason for its delay. Apparently, while the State had access to the Goshen County Sheriff's Office records, it did not have that same access to the Torrington Police Department's records due to an oversight. Upon discovering these recorded materials several months after being served with Mr. Requejo's discovery request, the State promptly delivered them to him. While this was an oversight, the record shows no evidence of bad faith on the part of the State. Bad faith is a notoriously nebulous concept, but there are several helpful definitions. According to Black's Law Dictionary 166 (10th ed. 2014), "bad faith" is described as "Dishonesty of belief or purpose." We used this definition in our own precedent when describing bad faith refusal to pay insurance claims, " 'Bad faith' by definition cannot be unintentional. 'Bad faith' is defined as 'Deceit; duplicity; insincerity.' " Hatch v. State Farm Fire and Cas. Co. , 842 P.2d 1089, 1092 (Wyo. 1992). Although Hatch deals with bad faith in a tort context, we find its definition of bad faith to be applicable here.

[¶14] The State did not disclose recordings of the victim's 911 call and Mr. Requejo's post arrest statement with the police until three days before trial. We find no evidence anywhere in the record indicating the State willfully withheld these recordings from Mr. Requejo. In fact, during the motion hearing, defense counsel stated, "as I said the last time we discussed this issue, I don't believe that the State acted in bad faith. I believe that there was perhaps some diligence that was not done, but I don't think it was not (sic) done in bad faith." The State, for its part, admitted it made a mistake and had no intention to willfully withhold the discovery information from Mr. Requejo. During the same motion hearing, the prosecutor said, "There is certainly an issue with the way that the State receives and handles information, but certainly nothing that approaches willful or intentional." The State also stipulated to suppression of the evidence and adopted several remedial mechanisms designed to prevent this from happening again in the future. The office now has access to the police department's records, it uses a pre-trial checklist to keep staff prepared, and it has implemented other internal review procedures to ensure there are "two eyeballs on everything." It is reasonable to conclude the late disclosure was nothing more than an inadvertent mistake and not willfully dishonest, a mistake which the State should diligently seek to avoid in the future.

Prejudice

[¶15] Looking at the second factor of the Naple test, the record does not demonstrate Mr. Requejo suffered any prejudice. He identified only two possible areas of prejudice at the motion hearing. First, he suggested that earlier disclosure of the evidence could have provided the basis for a voluntary intoxication defense, and second, he surmised that earlier disclosure could have "changed the landscape of plea negotiations." However, when offered a one-week continuance to prepare a voluntary intoxication defense, Mr. Requejo stated it was not necessary since he did not plan to pursue that defense. In fact, the district court offered him a continuance three separate times during the motion hearing, offers he expressly declined.

[¶16] Mr. Requejo's assertion that his plea negotiations may have proceeded differently is not a claim of prejudice. No evidence supports a claim of any lost opportunities or intentions to plead differently and obtain a more favorable result. In the present case, Mr. Requejo pleaded not guilty to aggravated assault, and there is no evidence he contemplated pleading otherwise. There also is no evidence the prosecution considered offering him a plea bargain, much less one more beneficial than his ultimate sentence. A decision to go to trial, as opposed to pleading guilty, cannot be grounds for a claim of prejudice. Trial provides the possibility of a favorable verdict while a guilty plea does not, and speculative claims about plea negotiations will not change that.

[¶17] Both parties stipulated to suppression of the evidence at issue, a decision the State asserts "materially weakened" its case. According to the State, both the 911 recording and the post-arrest interview contained only inculpatory evidence against Mr. Requejo, evidence more beneficial to the prosecution's case than his. Mr. Requejo's counsel stated as much during the motion hearing:

Although it [the 911 recording] does contain some evidence that may be favorable to my client, on the whole neither of those [recordings] do I believe help our case and Mr. Requejo I believe agrees with me -- he's nodding his head in the affirmative -- and so we have decided not to use that evidence.

Even with the late disclosure, the suppression of the recordings only served to help Mr. Requejo's case by keeping inculpatory evidence out of the record. In any event, the jury never heard either of the recordings. We cannot conceive of any possibility where the lack of availability of this evidence had any effect on the jury verdict, much less a prejudicial one.

Continuance or Other Cures for Prejudice

[¶18] Finally, under the third factor we must consider the feasibility of curing the alleged prejudice with a continuance. First and foremost, there is no need to cure non-existent prejudice, and here there is none. As discussed above, Mr. Requejo suffered no prejudice from the State's late disclosure because the evidence was harmful to him, because the evidence was voluntarily suppressed, and because the trial court offered additional time to prepare his case. There is no doubt Mr. Requejo was prepared for trial, even with the last-minute development of the late-disclosed evidence. When asked at the motion hearing what other prejudice Mr. Requejo would suffer if the trial proceeded as planned the next day, his counsel stated, "There would be no prejudice, your honor. We are ready to go to trial." The cure for a violation of discovery rules must be in proportion to the prejudice, and where there is no prejudice, there is no need for a cure.

Least Severe Sanction

[¶19] As part of the three-factor Naple test, courts also must impose the least severe sanction necessary to ensure the State's future compliance with discovery responsibilities. Naple , ¶ 12, 143 P.3d at 362. The primary goals of this requirement are to remedy the issue at hand and avoid prejudice. Courts prefer to decide criminal matters on their substance as opposed to their form, and such is the case here. A continuance would have adequately addressed any possibility of prejudice in this case, but Mr. Requejo refused it as unnecessary. We find dismissal of this case was unnecessary as well.

[¶20] Mr. Requejo's argument draws significantly from Black v. State , 2017 WY 135, 405 P.3d 1045 (Wyo. 2017) and it is necessary to distinguish that case from our holding here. First and foremost, the facts of Black are substantially different from the facts in this case. Black dealt with the failure of the State to request electronic evidence from Facebook and Verizon after being ordered to do so by the district court. Id., ¶ 25, 405 P.3d at 1054. Both companies deleted the information before anyone could use it, so the court did not know if it was inculpatory or exculpatory. Id. , ¶ 28, 405 P.3d at 1055. In contrast, here the State did not disobey a discovery order. It did produce the evidence promptly upon discovery (though admittedly late). The trial court and the parties knew exactly what the late-disclosed evidence was, and it was not helpful to Mr. Requejo. Second, the Court in Black found the State acted in bad faith by disobeying the lower court's order to retrieve the information stating, "In this case, however, we find the court's decision was based on the unsupportable premise that the State acted in good faith when it failed to comply with the discovery order." Id. , ¶ 24, 405 P.3d at 1054. As analyzed above, no indication of bad faith exists in this case. The State voluntarily stipulated to suppression of the evidence, promptly disclosed the recordings, implemented several internal remedial procedures, and remedied the defect in their discovery process. Defense counsel even admitted that the incident was probably due to a lack of diligence more than an act of bad faith. As such, we find the result in Black distinguishable from our holding here.

[¶21] We find that no abuse of discretion exists in the district court's decision to deny Mr. Requejo's motion to dismiss. There is ample evidence in the record supporting the district court's legal conclusions. The court's decision to offer a one-week continuance as a remedy for the violation of discovery rules under W.R.Cr.P. 16, along with the stipulated exclusion of evidence, was a just and appropriate remedy under the circumstances.

[¶22] We affirm.