[¶ 1] Keith Vogt was stopped for failing to use his turn signal and subsequently arrested for driving while under the influence of a controlled substance (DUI) in violation of Wyo. Stat. Ann. § 31-5-233(b) (LexisNexis 2009). He refused to submit to chemical testing. The Wyoming Department of Transportation (the State) notified him that his driver's license would be suspended for six months. Mr. Vogt requested a hearing. After the hearing, the Office of Administrative Hearings (OAH) found there was probable cause for the arrest and upheld the suspension. Mr. Vogt appealed the ruling to the district court, which affirmed the OAH decision. He then appealed to this Court, claiming reasonable suspicion did not exist for detaining him beyond the scope of the initial traffic stop and the OAH ruling that probable cause existed to arrest him for DUI is contrary to the overwhelming weight of the evidence. We conclude probable cause did not exist to arrest Mr. Vogt for DUI and reverse the OAH order upholding the driver's license suspension.
[¶ 2] The issues for this Court's determination are:
[¶ 3] On July 8, 2010, at 10:17 p.m., Officer T.J. Whitaker of the Cheyenne Police Department observed a vehicle enter an intersection and make a wide right-hand turn without signaling, continue on to a stop sign and make a second turn without signaling.
[¶ 4] Officer Whitaker asked him where he was coming from and Mr. Vogt responded that he was looking at some apartments in the area. Upon further questioning Mr. Vogt stated he was looking at apartments on Campbell Avenue and provided his home address. According to Officer Whitaker, Mr. Vogt's hands shook, his voice trembled and he mumbled.
[¶ 5] Officer Whitaker instructed Mr. Vogt to wait and returned to his patrol car where he called for assistance. Officer Lisa Koeppel
[¶ 6] Officer Whitaker then asked Mr. Vogt to perform the horizontal gaze nystagmus (HGN) test.
[¶ 7] At that point, twenty minutes into the stop, Officer Whitaker asked Mr. Vogt if there was anything in his car and if he could take a look. Mr. Vogt said there was nothing in the car and refused permission to search his vehicle. Officer Whitaker called for a drug dog and a portable breath test (PBT). Twenty-two minutes into the stop, while waiting for the drug dog and PBT, Officer Whitaker advised Officer Koeppel within Mr. Vogt's hearing that he had stopped Mr. Vogt for failing to signal, making a wide turn into the center of the street and then failing to signal again at the next turn. He also advised Officer Koeppel there was no indication Mr. Vogt was under the influence of alcohol. He then questioned Mr. Vogt again, asking the name of the friend he was looking at apartments for (Mr. Vogt responded "Rene"); why he was looking this late at night (Mr. Vogt said he wanted to see what the neighborhood was like late at night); whether the apartment was on this or that side of Lincolnway (Mr. Vogt provided the address of the apartment and said it was on that side); and why he was making a right turn on 14th Street (Mr. Vogt described turning right onto Campbell and right onto 14th Street heading west). Officer Whitaker asked Officer Koeppel what she thought and she motioned toward her mouth. Officer Whitaker asked Mr. Vogt to stick out his tongue and used a flashlight to look in his mouth again.
[¶ 8] Officer Whitaker returned to his patrol car and began writing a ticket for the traffic violation. Officer Pat Johnston arrived and Officer Whitaker administered the PBT, which showed negative results for alcohol. Officer Johnston had the dog perform an exterior sniff of the vehicle and the dog alerted on the driver's side. The officer let the dog inside the vehicle; it did not alert again. Officers Johnston and Koeppel searched the vehicle and found nothing illegal.
[¶ 9] Meanwhile, Officer Whitaker had Mr. Vogt stand up against his patrol car while he conducted a more thorough search. He found a receipt in Mr. Vogt's pant pocket. As he unfolded it, he thought he saw something
[¶ 10] The State notified Mr. Vogt that as a result of his arrest and refusal to submit to chemical testing his driver's license would be suspended for six months. Mr. Vogt requested a hearing. A hearing was convened. The State did not appear but submitted the certified record which included among other items Officer Whitaker's signed statement and booking sheet. Mr. Vogt appeared with counsel and testified. Mr. Vogt's case before the agency focused on whether probable cause existed to arrest him for DUI. He did not argue that Officer Whitaker lacked reasonable suspicion to detain him after the traffic stop for the purpose of conducting field sobriety tests. Mr. Vogt testified in some detail about what happened during the stop. He testified that he had consumed no alcohol or controlled substances on the night he was arrested. He testified he had taken Prozac which was prescribed for an anxiety disorder. He further testified that he was nervous and anxious during the traffic stop because he had never before been in a situation like it. After the hearing, the OAH issued an order finding that probable cause existed for the arrest and upholding the suspension of Mr. Vogt's driver's license.
[¶ 11] Mr. Vogt petitioned for review in the district court. Again, he argued the officer did not have probable cause to arrest him for DUI. The district court affirmed the OAH. Mr. Vogt timely appealed to this Court, claiming for the first time that reasonable suspicion did not exist to detain him for field sobriety tests.
[¶ 12] We review administrative rulings in accordance with the following standards:
In reviewing an agency's factual findings:
A traffic stop is a limited investigatory detention and implicates constitutional protections. Batten v. Wyo. Dep't of Transp.
Tiernan v. State, Dep't of Transp., 2011 WY 143, ¶ 9, 262 P.3d 561, 564 (Wyo.2011).
Vasco v. State, Dep't of Transp., 2011 WY 100, ¶ 9, 253 P.3d 515, 517 (Wyo.2011).
[¶ 13] Mr. Vogt challenges the OAH decision on two bases. First, he argues Officer Whitaker did not have reasonable suspicion to detain him beyond the scope of the traffic stop in order to administer field sobriety tests. Second, he claims the officer did not have probable cause to arrest him for DUI. If either of these arguments is correct, then his arrest was unlawful and the provisions of the implied consent law do not apply to support suspension of his driver's license. Batten v. Wyo. Dep't of Transp. Drivers' License Div'n, 2007 WY 173, ¶ 8, 170 P.3d 1236, 1240 (Wyo.2007). This is so because in addition to proving that probable cause existed to arrest Mr. Vogt for DUI as provided in Wyo. Stat. Ann. § 31-6-103 (LexisNexis 2013), the State was required to show the arrest was lawful under § 31-6-102(a)(i)(A) (LexisNexis 2013). Batten, citing Marshall v. State, 941 P.2d 42, 44 (Wyo.1997). See also Colyer v. State, 2009 WY 43, ¶ 10 n. 2, 203 P.3d 1104, 1111 n. 2 (Wyo.2009). Section 31-6-102 provides in relevant part:
(Emphasis added.) Section 31-6-103 provides:
(Emphasis added.)
[¶ 14] Mr. Vogt presents his claim that reasonable suspicion did not exist to detain him after the initial stop for the first time on appeal to this Court.
[¶ 15] We customarily will not consider issues presented for the first time on appeal. The only exceptions to the rule are when an issue is one of jurisdiction or involves a fundamental right. Schlesinger v. Woodcock, 2001 WY 120, ¶ 18, 35 P.3d 1232, 1239 (Wyo.2001). This Court has recognized that the right to be free from unreasonable searches and seizures is one of the most cherished rights provided by both the federal and state constitutions. Collins v. State, 854 P.2d 688, 691 (Wyo.1993). We, therefore, proceed to address the issue raised.
[¶ 16] We have said:
Lovato v. State, 2010 WY 38, ¶ 12, 228 P.3d 55, 58 (Wyo.2010), citing Garvin v. State, 2007 WY 190, ¶ 13, 172 P.3d 725, 728-29 (Wyo.2007).
[¶ 17] Mr. Vogt does not challenge the initial traffic stop. Indeed, Wyoming law is clear that "a law enforcement official's personal observation of a traffic law violation provides probable cause to initiate a traffic stop." Tiernan, ¶ 12, 262 P.3d at 565. Here, Officer Whitaker stopped Mr. Vogt after observing his vehicle turn without signaling in violation of Wyoming law.
[¶ 18] We turn to the question whether after stopping Mr. Vogt for failing to signal Officer Whitaker had reasonable suspicion to detain him further for the purpose of conducting field sobriety tests. This is a separate issue from probable cause and its resolution depends upon the totality of the circumstances and how those circumstances developed during the encounter. Id.; Dimino v. State, 2012 WY 131, ¶ 16, 286 P.3d 739, 744 (Wyo.2012). A law enforcement official must be able to point to specific, articulable facts that, taken together with rational inferences, give rise to an objectively reasonable suspicion that the suspect had committed or was committing a crime. Tiernan, ¶ 12, 262 P.3d at 565. In reviewing the totality of the circumstances, we consider common sense and ordinary human experience and defer to a law enforcement officer's ability to distinguish between innocent and suspicious actions. Dimino, ¶ 16, 286 P.3d at 744, citing Damato v. State, 2003 WY 13, ¶ 16, 64 P.3d 700, 707 (Wyo.2003).
[¶ 19] In the instant case, at the time Officer Whitaker detained Mr. Vogt for reasons beyond the scope of the traffic violation, he had seen Mr. Vogt fail to use his turn signal, make a wide turn into the center of the street and then fail to use his turn signal again after stopping at a stop sign. When asked to produce his driver's license and proof of insurance, Mr. Vogt fumbled with and handed Officer Whitaker insurance cards that had expired or were for another vehicle before finding the current one for the vehicle he was driving. Upon questioning Mr. Vogt, Officer Whitaker observed that he mumbled; he was shaky; he could not give clear or concise answers to questions; he had a difficult time focusing; and his voice trembled. On the basis of these observations and conclusions, Officer Whitaker suspected Mr. Vogt was under the influence of alcohol or a
[¶ 20] In Batten, ¶ 13, 170 P.3d at 1241, we held that a state trooper had reasonable suspicion justifying extending a traffic stop where the driver smelled moderately of alcohol, admitted he had just left a bar where he had consumed one drink, could not locate the proof of insurance for the vehicle when the trooper requested it, and was driving a vehicle late at night with knowledge that it had a broken headlight. The present case differs from Batten in that no evidence exists that Mr. Vogt smelled of alcohol and Officer Whitaker did not ask him whether he had been drinking before deciding to conduct field sobriety tests. Nevertheless, from the totality of the circumstances, we conclude sufficient specific, articulable facts, taken together with rational inferences, gave rise to an objectively reasonable suspicion that Mr. Vogt was under the influence of alcohol or a controlled substance.
[¶ 21] The video confirms that Mr. Vogt failed to signal two turns at night on dark city streets. On the first turn he swung into the center of the street. When asked to produce proof of insurance for the vehicle he was driving, he fumbled with insurance cards and produced an expired insurance card and a card for a different vehicle apparently without knowing it until the officer pointed it out. According to the officer, his speech was mumbled, his voice trembled, he was shaky, he could not give clear or concise answers to questions, and he had a difficult time focusing on what he was being asked and requested to do. Considering common sense and ordinary human experience and deferring to Officer Whitaker's ability to distinguish between innocent and suspicious actions, we conclude reasonable suspicion existed to detain Mr. Vogt beyond the scope of the traffic stop for the purpose of conducting field sobriety tests.
[¶ 22] The OAH's conclusion that probable cause existed to arrest Mr. Vogt for DUI was based on the following factual findings: Officer Whitaker had observed Mr. Vogt's vehicle make two turns without properly signaling; Mr. Vogt appeared to have trouble focusing on simple questions; Mr. Vogt's hands shook, his voice trembled and his speech was mumbled; Mr. Vogt changed his story about where he had been and could not provide the name of the street where the apartments he was looking at were located; Mr. Vogt's eyes jerked on the HGN test; Mr. Vogt could not adequately perform the walk and turn, one leg stand or Romberg test; Mr. Vogt exhibited tremors; a portable breath test showed negative results for alcohol; and the drug dog alerted to Mr. Vogt's vehicle although no drugs were found. While noting that one or two of these findings could be explained by other reasons, the OAH concluded together they provided probable cause to believe Mr. Vogt was driving while under the influence of an illegal substance.
[¶ 23] Mr. Vogt asserts the OAH conclusion is contrary to the overwhelming weight of the evidence. He argues his failure to use a turn signal gave the officer probable cause to stop him for a traffic violation but was not evidence of DUI. He claims the video tape recording does not substantiate the finding that he had difficulty focusing on questions or that his speech was mumbled, his voice trembled and his hands shook. He asserts the video demonstrates that he did not change his story and did provide the name of the street where the apartments were located. He contends the results of the HGN test did not indicate intoxication because, as reflected in the officer's signed statement, "his eyes pursu[ed] smoothly at times" and "he did not have distinct and sustained nystagmus at max[imum] deviation and no onset prior to 45 degrees." He disputes that he failed to adequately perform the other tests, and asserts that to the extent he was off balance when performing them it was because the sidewalk was slanted, he was anxious and Officer Whitaker's instructions were less than clear. He contends the video does not show that he had tremors and, to the extent he may have been shakey, it was due to his anxiety. He argues the drug dog's alert is evidence of nothing given that no drugs were found. He also points out that
[¶ 24] "Probable cause for a warrantless arrest exists when, under the totality of the circumstances, a prudent, reasonable, and cautious peace officer would be led to believe that a crime has been or is being committed and that the individual arrested is the perpetrator." Batten, ¶ 16, 170 P.3d at 1242, quoting Keehn v. Town of Torrington, 834 P.2d 112, 116 (Wyo.1992). The totality of the circumstances in this case showed that Mr. Vogt:
Absent from the totality of the circumstances is any evidence that Mr. Vogt's pupils were dilated, his face was flushed or pale, he was perspiring, his breathing or pulse was abnormally fast or slow or other indicators of alcohol or controlled substances use.
[¶ 25] The totality of the circumstances simply does not support the OAH's conclusion that probable cause existed to arrest Mr. Vogt for driving while under the influence of alcohol or controlled substances. Particularly in light of the fact that the PBT was negative for alcohol and searches of Mr. Vogt's vehicle and his person prior to his arrest produced no evidence of controlled substances, we conclude a prudent, reasonable and cautious police officer would not have arrested him for DUI. The OAH's conclusion that probable cause existed to arrest Mr. Vogt for DUI was clearly contrary to the overwhelming weight of the evidence.
[¶ 26] We reverse and remand to the district court with directions to remand to the OAH for entry of an order reversing the driver's license suspension.
