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One Supreme Court recently articulated the “less stringent” standard for admission of SFST evidence in implied consent hearings as follows:

[I]n the criminal context, a significant number of courts have held that admission of sobriety tests, including the horizontal gaze nystagmus test, is appropriate as long as a proper foundation as to the techniques used and the officer’s training, experience, and ability to administer the test has been laid. [citations omitted]. On this authority, it is reasonable to apply a similar standard in the less stringent evidentiary environment of an administrative hearing. The field sobriety test results are the type of evidence commonly relied upon by reasonably prudent men in the conduct of their serious affairs. Wyoming's Supreme Court concludes that, if the evidence establishes the tests were properly administered by a qualified person, the foundation is sufficient for admission in an administrative hearing.

The Defendant, Mr. Smith, contends police officer is competent to testify as to field sobriety test results only if the tests were conducted with strict observance of the procedures established by the U.S. Department of Transportation, National Highway Traffic Safety Administration, Improved Sobriety Testing manual (the National Highway Traffic Safety Administration manual). [footnote omitted]. Considering that there may be other means of law enforcement training available now and in the future, for the purpose of establishing probable cause, a law enforcement officer may testify to the results of field sobriety tests (including the horizontal gaze nystagmus test) if it is shown that the officer has been adequately trained in the administration and assessment of those field sobriety tests and conducted them in substantial accordance with that training. [citations omitted]. Smith, supra, 11 P.3d at 935 (parentheticals in original).

Although the HGN test may be admissible once a proper foundation is established, “Courts have been deeply divided, however, as to what constitutes the proper foundation for the admissibility of the HGN test results.” State v. Ito, 978 P.2d 191, 199 (Haw. App. 1999). The Smith Court cited in numerous places to National Highway Traffic Safety Administration (NHTSA) standardized training procedures as the appropriate training that an officer must substantially comply with in order for SFST evidence to be admissible under the “less stringent” standard created for implied consent hearings. Smith, 11 P.3d 933, n. 2; 935 & n. 3; 936, n. 5; 937.

The Smith Court cited favorably to State v. Ito, 978 P.2d 191, 201 (Haw. App. 1999), and State v. O’Key, 899 P.2d 663 (Or. 1995), as examples of criminal cases suggesting that SFST evidence is scientific evidence subject to Daubert analysis. Smith, 11 P.3d at 935. In O’Key, the Court stated that:

Although the state and defendant agree that, with the necessary foundation, HGN test evidence is admissible to help establish probable cause to arrest a motorist for DUII, that inquiry differs from the use of HGN test evidence in a prosecution for DUII as evidence of guilt or innocence. O’Key, 899 P.2d at 681 n. 30.

The O’Key Court created the following procedure for admission of HGN evidence.

We now hold that HGN test evidence is admissible in a prosecution for DUII to establish that a person was under the influence of intoxicating liquor, but is not admissible under ORS 813.010(1)(a) to establish a person's BAC, i.e., that a person was driving while having a BAC of .08 percent or more. Admissibility is subject to a foundational showing that the officer who administered the test was properly qualified, that the test was administered properly, and that the test results were recorded accurately. O’Key, 899 P.2d at 670.

This foundational test was restated another way by the Ito Court.

Before HGN test results can be admitted into evidence in a particular case, however, it must be shown that (1) the officer administering the test was duly qualified to conduct the test and grade the test results, Toyomura, 80 Haw. at 26, 904 P.2d at 911; and (2) the test was performed properly in the instant case. Montalbo, 73 Haw. at 140, 828 P.2d at 1281. [citations omitted]. Ito, 978 P.2d at 210; see also, State v. Torres, 976 P.2d 20, 35 (N.M 1999)(applying same two part test for admission of HGN but refusing to take judicial notice of foundational predicate that HGN is reliable).

SFST evidence is scientific evidence, because their validity and reliability are based on scientific testing that was done and specific procedures that were created to verify their accuracy to detect alcohol consumption that go beyond the common understanding of a lay person. See, State v. Ito, 978 P.2d 191, 201-202 & n. 7 (Haw. App. 1999); United States v. Horn, 185 F.Supp.2d 530, 558-60 (D. MD 2002); State v. Meador, 674 So.2d 826, 832-33 (Fla.App. 4 Dist. 1996)(noting that the walk-and-turn and one-leg stand maneuvers are no different than other lay observations but further noting that an officer should be prevented from talking about these field sobriety maneuvers in terms of being a “test” or of a “pass[ing]” or “fail[ing]” score or “points”, because these terms tend to enhance the significance of the officer’s testimony and create the possibility of prejudice by encouraging a fact finder to give the testimony too much weight), review denied, Meador v. State, 686 So.2d 580 (Fla. 1996); State v. Klawitter, 518 N.W.2d 577, 585-86 (Minn. 1994)(holding that HGN is admissible upon a proper foundation but further noting that calling an officer an “expert” based on their academy training is potentially prejudicial to the extent that a juror would place undue weight on the testimony and further noting that a cautionary instruction should be given when requested concerning weight to be accorded the HGN test)(citing Stephanie E. Busloff, Can Your Eyes be Used Against You? The Use of the Horizontal Gaze Nystagmus Test in the Courtroom, 84 J.Crim.L. & Criminology 203, 237 (1993) for example of a cautionary HGN instruction); Zimmerman v. State, 693 A.2d 311, 314 (Del. 1997)(recognizing that potential to misdiagnose gaze nystagmus and arresting officer’s potential bias to support his arrest can cause jury to give HGN evidence undue weight if a proper foundation is not established for the officer’s testimony). The concerns of the Zimmerman Court are of particular importance in the present appeal, given Trooper Peech’s testimony that he believes detainees and their attorneys use “excuses” for alleged poor performance on field sobriety maneuvers. [M.H.T. January 3, 2006 at pp. 16, 34].

Simply stated, it was improper for the trial court to allow SFST evidence in without any kind of hearing and leaving it for the jury to place whatever weight they thought the evidence was deserving. Although Ms. Walters claims that she is entitled to a Daubert Hearing, there should be no question that even if this Court were to find that a Daubert hearing is not required, some type of evidentiary hearing must be held to determine if the officer is properly trained and if he complied with his training in the administration and scoring of the SFST evidence. Ms. Walters asserts that at a minimum a trial court must find that the officer is properly trained and performed SFSTs in substantial compliance with that training before such evidence can be presented to a jury for them to weigh the credibility of the officer in his conducting of those maneuvers, as expressed in the cases cited by the Wyoming Supreme Court in Smith. Those cases include: State v. Ito, 90 Hawai‘i 225, 978 P.2d 191, 201 (1999); Ballard v. State, 955 P.2d 931 (Alaska Ct.App.1998); Zimmerman v. State, 693 A.2d 311 (Del.Super.Ct.1997); State v. Taylor, 694 A.2d 907 (Me.1997); Hawkins v. State, 223 Ga.App. 34, 476 S.E.2d 803 (1996); People v. Berger, 217 Mich.App. 213, 551 N.W.2d 421 (1996); Schultz v. State, 106 Md.App. 145, 664 A.2d 60 (1995); Emerson v. State, 880 S.W.2d 759 (Tex.Crim.App.), cert. denied, 513 U.S. 931, 115 S.Ct. 323, 130 L.Ed.2d 284 (1994); People v. Buening, 229 Ill.App.3d 538, 170 Ill.Dec. 542, 592 N.E.2d 1222 (1992), appeal denied, 146 Ill.2d 634, 176 Ill.Dec. 806, 602 N.E.2d 460 (1992); State ex rel. Hamilton v. City Court of City of Mesa, 165 Ariz. 514, 799 P.2d 855 (1990); State v. Murphy, 451 N.W.2d 154 (Iowa 1990); State v. Armstrong, 561 So.2d 883 (La.Ct.App.), writ denied, 568 So.2d 1077 (La.1990); State v. Clark, 234 Mont. 222, 762 P.2d 853 (1988).

Several courts are now requiring either a Daubert or Frye hearing prior to admission of SFSTs. Those cases include: People v. McKown, 226 Ill.2d 245, 875 N.E.2d 1029, 1037-42 (Ill. 2007)(requiring Frye hearing for admission of HGN), United States v. Horn, 185 F.Supp.2d 530, 558-60 (D. MD 2002); State v. Witte, 836 P.2d 1110 (Kan 1992); Malone v. City of Silverhill, 575 So.2d 106 (Ala. 1990); State v. Superior Court (Blake), 718 P.2d 171, 181 (Ariz. 1986) (seminal case on the admissibility of HGN); State v. Russo, 773 A. 2d 965 (Conn. App. Ct. 2001)(establishing proper foundation must be established in accordance with Daubert prior to the introduction of HGN test results). Young v. City of Brookhaven, 693 So.2d 1355, 1360-61 (Miss. 1997); State v. Torres, 976 P.2d 20 (N.M. 1999); State v. Lasworth, 42 P.3d 844 (Ct. App. N M. 2001); State v. Helms, 504 S.E.2d 293 (N.C. 1998); Commonwealth v. Moore, 635 A.2d 625, 629 (Pa. Super. Ct. 1993); State v. Murphy, 953 S.W.2d 200 (Tenn. 1997).

As the above cases show, even those Courts that do not require a Daubert or Frye hearing, still require the making of findings of fact and conclusions of law that the officer is properly trained and that he performed the maneuvers in conformance with his training. Where the trial court makes no such findings and simply leaves it for the jury to weigh, the trial court has committed error that is difficult to quantify. However, allowing an officer to indicate that in his opinion the person was intoxicated because they “miserably failed” field sobriety maneuvers, is the same as allowing an expert to testify about an ultimate issue of fact for the jury to resolve. The impact is obviously devastating and was part of the justification for requiring such hearings in United States v. Horn, 185 F.Supp.2d 530, 558-60 (D. MD 2002)(citing to numerous state court cases including Eugene Smith III v. State ex rel. Wyoming Department of Transportation, 11 P.3d 931 (Wyo. 2000); State v. Meador, 674 So.2d 826, 832-33 (Fla.App. 4 Dist. 1996) review denied, Meador v. State, 686 So.2d 580 (Fla. 1996).

ARGUMENT II
The Trial Court improperly admitted the Alco-Sensor Result.
SUMMARY OF ARGUMENT TWO
On the day of the jury trial, the trial court reversed itself and ruled that it would allow the admission of Ms. Walters’ Alco-Sensor result. The result was not admissible under Wyoming Statute § 31-6-105(a), because it was not a certified breath testing instrument. The only thing the Alco-Sensor can be used for is to show presence of alcohol and it is not reliable to quantify a BAC. Because Ms. Walters was accused of having a BAC above the legal limit and the Alco-Sensor result was above the legal limit, it was improper for the trial court to allow this evidence to be presented to the jury. As will be noted, where the trial court also allows inadmissible SFST into evidence and allows an officer to testify that the accused allegedly “miserably failed” those SFSTs, it is not harmless error to admit a PBT result.

STANDARD OF REVIEW FOR ARGUMENT II
There can be no question that the Alco-Sensor is scientific evidence. The United States Eighth Circuit Court of Appeals applied the following standard of review to determine whether portable breath test (PBT), like the Alco-Sensor, is admissible.

In United States v. Black Cloud, 101 F.3d 1258 (8th Cir.1996), this court set forth a two part test to determine when scientific testimony is admissible. First, the district court must “determine whether the testimony is based on reliable scientific technique, and whether it will assist the jury.” Black Cloud, 101 F.3d at 1261 (citation omitted). In its determination, the district court should consider the following factors when assessing the reliability of a scientific technique: “(1) whether the technique can be and has been tested; (2) whether the technique has been subjected to peer review and publication; (3) the known or potential rate of error for the technique and the existence and maintenance of standards for controlling the technique's operation; and (4) whether the technique is generally accepted in the scientific community.” Id. (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-95, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). Second, even if the district court concludes that the expert testimony is admissible, it “may exclude the testimony if the testimony has an unfairly prejudicial effect that substantially outweighs its probative value.” Id. (citations omitted).

U.S. v. Iron Cloud, 171 F.3d 587, 590 (8th Cir. 1999).

ARGUMENT II
As noted in the course of proceedings above, on the day of the jury trial, the trial court notified the parties at a pretrial motion hearing that it was reversing itself and denying the Motion to Suppress Alco-Sensor Result. [M.H.T., February 28, 2006, pp. 5-6].

In Allen v. State, 2002 WY 48, ¶¶ 21-25, 43 P.3d 551, 560-62 (Wyo. 2002), the Wyoming Supreme Court reaffirmed that the implied consent statutes are the sole means of requiring chemical tests under Wyoming Statute § 31-5-233, unless the State can show that the injuries are of such a nature that there is a potential for a vehicular homicide charge. Wyoming Statute 31-5-233(k) provides that “Chemical analysis of a person’s blood, breath or urine to determine alcohol concentration or controlled substance content shall be performed in accordance with W.S. 31-6-105(a).” Wyoming Statute § 31-6-105(a) provides that:

Chemical analysis of a person’s blood, breath or urine to be considered valid under this section, shall be performed according to methods approved by the department of health and by an individual possessing a valid permit to conduct the analysis. Permits shall be issued by the department of health for this purpose. The Department of Health may promulgate and approve satisfactory methods in order to ascertain the qualifications of individuals permitted to conduct the analysis and shall issue to qualified individuals permits which are subject to termination or revocation by the Department of Health.

In accordance with Wyoming Statute § 31-6-105(a), the Department of Health has created rules and regulations for the admission of chemical test results for use in DWUI cases.

In Jones v. State ex rel. Wyoming Department of Transportation, 991 P.2d 1251, 1255 (Wyo. 1999), the Wyoming Supreme Court cited favorably to the case of State v. McCaslin, 894 S.W.2d 310, 311-12 (Tenn. App. 1994), concerning the issue of proper foundation for introduction of a breath test result. When the State of Wyoming attempts to admit chemical test evidence under Wyoming Statute § 31-6-105(a), introduction of such evidence is referred to as admission under a “statutory predicate” versus following a more strenuous “traditional predicate” for admission of test results under general rules of evidence. State v. Deloit, 964 S.W.2d 909, 911-15 (Tenn.Crim.App. 1997); See also Mayo v. City of Madison, 652 So.2d 201, 207-09 (Ala. 1994); State v. Baue, 607 N.W.2d 191, 198-199 (Neb. 2000) (State’s inability to establish statutory predicate for admission of chemical test required reversal of conviction). As a result of Wyoming’s regulatory framework, the State must prove that they have complied with the chemical testing Rules before Ms. Walters’ chemical test results can be admitted into evidence. Polk v. Dept. of Public Safety, 927 P.2d 55, 56-7 (Okl.App. 1996) (testimony of witness concerning compliance with statutory procedure of admitting chemical test result requires witness to go through actual copy of procedure to prove that the witness complied with the procedures); McDaniel v. State, 706 So.2d 1305, 1307 (Ala.Crim.App. 1997) (state must strictly comply with rules and regulations concerning admission of chemical tests under statutory predicate); People v. Morris, 703 N.E.2d 923, 925-26 (Ill.App. 5 Dist. 1998) (provision of rules and regulations concerning admission of chemical test in DWUI cases are mandatory and failure to comply with the rules requires suppression of test result); State v. Bosio, 27 P.3d 636, 638-39 (Wash.App. Div. 3 2001) (Failure to strictly comply with regulations concerning preservation of blood test required suppression); State v. Garrett, 910 P.2d 552, 553-54 (Wash. App. Div. 3 1996). One Court has required suppression of a chemical test that was taken one month outside of the statutory requirement for calibrating a chemical test. State v. Frickey, 136 P.2d 558, 562 (Mont. 2006).

In the second paragraph of Ms. Walters’ Motion to Suppress Alco-Sensor Result [R.O.A. at p. 20 (which was attached as Exhibit 3 to Ms. Walters’ Petition for Writ of Review)], Ms. Walters’ counsel noted to the trial court that:

The alco-censor test used in this case has not been approved by the Department of Health for chemical testing purposes pursuant to Wyoming Statute § 31-6-105(a) and therefore is not an admissible chemical test. “[T]he overwhelming weight of authority is that the PBT is not reliable as anything more than a screen test to be used for probable cause.” United States v. Winkle, 2002 U.S. Dist. LEXIS 23643 [* 3] (D. Kan 2002)(citing United States v. Iron Cloud, 171 F.3d 587, 590-91 n. 5 (8th Cir. 1999)).

When Trooper Peech was specifically asked if the Alco-Sensor he used to test Ms. Walters’ breath was a certified test that would be admissible for the actual alcohol level, he replied: “No. It’s a preliminary test that we use on the side of the road. Absolutely not, no.” [M.H.T. January 3, 2006, at p. 36].

Because the chemical test in the current case was not admissible, Ms. Walters should be granted the right to a new trial with instruction that the Alco-Sensor test cannot be used to show Ms. Walters’ BAC level and that it can only be used for establishing presence of alcohol for a probable cause hearing. As will be noted in the final argument below, where an officer relies on an inadmissible portable breath test and also on SFST’s that lack guarantees of scientific reliability, it is proper for a trial court to determine that there was no probable cause for a DWUI arrest. York v. Director of Revenue, 186 S.W.3d 267 (Mo. 2006)(En Banc)(finding that it was proper to dismiss case for lack of probable cause, where officer relied upon a PBT and SFSTs that were not performed correctly and where the only other evidence to support a DWUI was an admission of drinking and glassy blood shot eyes).

Furthermore, as noted above, the SFSTs should not have been admitted without proof that the arresting officer is qualified to do these maneuvers and that he did them in compliance with his training. The trial court did not make any determination of whether the officer was properly trained to perform SFSTs or whether the officer substantially complied with his training. Because there wasn’t an evidentiary hearing to create findings of facts and conclusions of law to support the arresting officers right to testify that in his opinion Ms. Walters was drunk as a result of her alleged “miserable” performance on SFSTs, this ruling by the Circuit Court is particularly troublesome for Ms. Walters, given the District Court’s application of the “harmless error” rule to the admission of Ms. Walters’ PBT result. In State v. Helms, 504 S.E.2d 293 (N.C. 1998), the North Carolina Supreme Court found that it was not harmless error to admit PBT and SFST evidence. “[I]n light of [the evidence presented] and the heightened credence juries tend to give scientific evidence, there is a reasonable possibility that had evidence of the HGN test results not been erroneously admitted a different outcome would have been reached at trial.” Helms, 504 S.E.2d at 296.

ARGUMENT III
Ms. Walters was illegally detained and arrested in violation of her state and federal rights to be free from unreasonable searches and seizures requiring dismissal of her DWUI Charge.
SUMMARY OF ARGUMENT III
Ms. Walters contends that it does not matter whether the fact finder believes that Trooper Peech believed he saw Ms. Walters driving a vehicle with no front plate prior to stopping her. Although this would allow him to initiate the traffic stop, because traffic stops are non-consensual investigatory detentions that must be justified at their inception and limited in scope and duration to the basis for the stop, Ms. Walters contends that Trooper Peech had an affirmative duty to take what would amount to about five seconds to look at the front of Ms. Walters’ vehicle immediately before telling Ms. Walters the basis for the stop. Furthermore, where the officer relied on inadmissible SFST and Alco-Sensor evidence as his probable cause to arrest, this probable cause finding is suspect, and the matter should be remanded for a new hearing relying only on admissible evidence.

STANDARD OF REVIEW FOR ARGUMENT III
A District Court is bound by the same Rules of Appellate Procedure as the Wyoming Supreme Court, when it uses its powers of appellate review over the decisions from lower courts of limited jurisdiction. Hysong v. City of Laramie, 808 P.2d 199, 202 (Wyo. 1991). When reviewing a trial court’s rulings on evidentiary matters, the District Court will not disturb them unless the Trial court clearly abused its discretion. Brown v. State, 944 P.2d 1168, 1170 (Wyo. 1997). Findings of fact, such as credibility of witnesses, are accorded deference unless clearly erroneous. Id. However, where issues of law are involved concerning general interpretation and application of the Wyoming and United States Constitution, these questions are reviewed de novo. O’Boyle v. State, 2005 WY 83, ¶ 18, 117 P.3d 401, 407 (Wyo. 2005); Buckles v. State, 998 P.2d 927, 929 (Wyo. 2000); Gehnert v. State, 956 P.2d 359, 361 (Wyo. 1998); Sidwell v. State, 964 P.2d 416, 418 (Wyo. 1997). The Wyoming Supreme Court has recognized that, “[W]e have always held that ultimately whether an unreasonable search or seizure occurred in violation of constitutional rights presents a question of law and is reviewed de novo.” Cordova v. State, 2001 WY 96, ¶ 10, 33 P.3d 142, 148 (Wyo. 2001); see also O’Boyle, supra. With these standards in mind, Ms. Walters presents the following argument in support of her claim that she was illegally seized.

ARGUMENT III
The first place to start a review of Ms. Walters’ claim that she was illegally seized in violation of the Fourth Amendment of the United States Constitution and Article 1, § 4 of the Wyoming Constitution is with the case of Keehn v. Town of Torrington, 834 P.2d 112 (Wyo. 1992). In that case, the Wyoming Supreme Court recognized three legal realities of application of the Fourth Amendment with DWUI investigations: (1) warrantless detentions are per se unreasonable; (2) temporary detentions require articulable suspicion and must be limited in scope and duration “[e]mploy[ing] ‘the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time;” and, (3) it is legal to drink and drive, as long as the person is not above the legal limit and is capable of safely driving, so the odor of alcohol alone does not create probable cause for an arrest. Keehn, 834 P.2d at 116. As Ms. Walters will argue further below, the least intrusive means of verify the officer’s belief that Ms. Walters was driving without a front license plate was to actually check the plate at the time he initiated contact with Ms. Walters. If Ms. Walters’ vehicle did not have a front plate, then he could proceed with investigating that equipment violation. If it had a front plate, he would have had to let her go.

The reasoning of Keehn was later followed in Allen v. State, 2002 WY 48 ¶ 22, 43 P.3d 551, 559 (Wyo. 2002)(citing Olson v. State, 698 P.2d 107, 113 (Wyo. 1985) & Chastain v. State, 594 P.2d 458, 461 (Wyo. 1979)), where the Court recognized that the implied consent statute provides the exclusive means for obtaining a chemical test in DWUI cases and that the Fourth Amendment prevents intrusive searches and seizures that lack probable cause for an arrest or articulable suspicion of a crime for a detention.

Where, as here, the officer initiates a traffic stop, the Wyoming Supreme Court has also consistently reiterated the fact that traffic stops are investigatory detentions and an officer must prove that the detention was (1) justified at its inception; and (2) the officer’s actions during the detention were reasonably related in scope and duration to the circumstances that justified the detention in the first instance. O’Boyle v. State , 2005 WY 83, ¶ 46, 117 P.3d 401, 414 (Wyo. 2005)(finding that Article 1, § 4 of Wyoming Constitution provided greater protections against unreasonable searches and seizures than the federal constitution and leaving the door open to apply the new standard to pretext stops); Campbell v. State, 2004 WY 106, ¶11, 97 P.3d 781, 784 (Wyo. 2004); Barch v. State, 2004 WY 79, ¶¶ 8-9, 92 P.3d 828, 832 (Wyo. 2004). Furthermore, in its discussion of what an officer may do during a Terry type stop, the Wyoming Supreme Court consistently recognizes that officers are limited in the questions they may ask a detainee. See generally, O’Boyle v. State, 2005 WY 83, ¶49, 117 P.3d 401, 405 (Wyo. 2005) (“Absent valid consent, a reasonable suspicion of other unlawful activity or reasonable suspicion that a detainee is armed, an officer may not expand an investigative detention beyond the scope of the stop, ask questions unrelated to the stop or ‘embark on a fishing expedition in the hope that something will turn up.’” ); Campbell v. State, 2004 WY 106, ¶12, 97 P.3d 781, 785 (Wyo. 2004) (recognizing that officer generally can’t ask questions unrelated to the stop without reasonable suspicion of other criminal activity).

“Generally, the driver must be allowed to proceed without further delay once the officer determines that the driver has a valid license and is entitled to operate the vehicle.” Burgos-Seperos v. State, 969 P.2d 1131, 1133 (Wyo. 1998)(citing United States v. Elliott, 107 F.3d 810, 813 (10th Cir 1997)); see also, Damato v. State, 2003 WY 13 ¶ 13, 64 P.3d 700, 705 (Wyo. 2003). The Tenth Circuit has created a bright line rule, which recognizes that an investigatory detention does not end or turn consensual until such time as a detainee has been given his driver’s license back. U.S. v. Mendez, 118 F.3d 1426, 1430 (10th Cir. 1997)(“an officer must return a driver’s documentation before the detention can end.”); U.S. v. Elliot, 107 F.3d 810, 814 (10th Cir. 1997)(“Since Werking, we have consistently concluded that an officer must return a driver’s documentation before a detention can end.”); U.S. v. Gregory, 79 F.3d 973, 979 (10th Cir. 1996) (for encounter to become consensual with traffic stop, officer needs to return license and registration and inform person that they are free to go); U.S. v. Lambert, 46 F.3d 1064, 1068-1069 (10th Cir. 1995)(retention of driver’s license during questioning renders encounter non-consensual).

Besides the case of Keehn, supra, the following cases have also determined that the odor of alcohol alone does not create probable cause for a DUI arrest. State v. Gray, 267 Ga. App. 753, 755 600 S.E.2d 626, 628 (2004)(“[p]resence of alcohol alone in a defendant’s body, does not support an inference of impaired driving.”)(quoting Baird v. State, 260 Ga. App. 661, 663 (1) (580 S.E.2d 650)(2003)); Saucier v. State, 1994 Ak. 24, 869 P.2d 483, 486 (1994)(citing State v. Taylor, 444 N.E.2d 481, 482 (Ohio App, 1981); People v. Roybal, 655 P. 2d 410, 413 (Colo. 1982); City of Hutchinson v. Davenport, 54 P.3d 532, 535 (Kan.App.,2002); Federoff v. Rutledge, 332 S.E.2d 855, 859, n. 1 (W.Va.,1985). York v. Director of Revenue, 186 S.W.3d 267 (Mo. 2006)(En Banc)(where officer does not administer PBT and SFSTs correctly, court could properly dismiss the case for lack of probable cause where the only other evidence is admission of drinking and glassy blood shot eyes).

A growing number of courts are requiring the arresting officer to actually articulate the specific facts justifying the violation. For example, Rowe v. State, 769 A.2d 879, 886-89 (Md. App. 2001). The Court cited to numerous cases for the proposition that crossing a fog or center line at a time there is no danger to other traffic does not create articulable facts sufficient to justify an investigatory detention. Other Courts are also finding that the facts presented by the prosecution were not sufficient to prove a violation of a traffic ordinance. See generally, State v. Milotte, 897 A.2d 683 (Conn.App. 2006)(claim by officer that defendant trying to avoid him, did not create articulable suspicion to stop and DUI charge had to be dismissed); Keeling v. State, 929 So.2d 1169 (Fla. App., 2 Dist. 2006)(Officer could not make contact with person that he did not see commit crime based on allegation person was involved in an altercation. DUI dismissed under fruit of poisonous tree doctrine); United States v. Billups, 442 F.Supp.2d 697 (D.Minn. 2006)(weaving within lane on windy day does not create articulable suspicion to stop); United States v. Gregory, 79 F.3d 973, 978 (10th Cir 1996)(single incident of cross highway dividing line did not violate law and did not create articulable suspicion of crime); State v. Livingston, 75 P.3d 1103, 1106-07 (Ariz App. Div. 2 2003)(recognizing that terms “nearly as practicable” expressed legislative attempt to prevent penalizing people for minor deviations outside marked lines of travel and citing to numerous cases in support of proposition), review denied, State v. Livingston, 2004 Ariz. Lexis 46 (Ariz. Ap. 19, 2004); State v. Lafferty, 967 P.2d 363, 365-66 (Mont. 1998)(no specific facts to support officer’s claim that he had observed a traffic violation where all he saw was person cross over fog line twice and onto it once and person was not a danger to other traffic at the time) Grindeland v. State, 32 P.3d 767 (Mont. 2001)(no specific facts to support officer’s claim that he had observed a traffic violation); State v. Huddleston, 164 S.W.3d 711, 715-16 (Tex App. Austin 2005)(Officer lacked probable cause to stop vehicle where all he observed was a vehicle cross fog line several times and the vehicle was not a danger to other traffic) Bellard v. State, 101 S.W.3d 594, 600 (Tex.App. Waco 2003)(weaving outside of lane is only illegal where it causes other traffic to take evasive action to miss vehicle); State v. Tarvin, 972 S.W.2d 910, 911 (Tex.App. Waco 1998)(recognizing that driving a car, by its very nature, is controlled weaving and such weaving onto the marking lines of a road only becomes illegal if a person poses a danger to traffic.); State v. Kaufman, 59 P.3d 1166 (Mont. 2002)(person must actually violate wording of traffic statute before officer has articulable suspicion to stop); State v. Lacasella, 60 P.3d 975 (Mont. 2002)(facts did not support violation of traffic law so evidence had to be suppressed and case dismissed); State v. Fisher, 60 P.3d 1004 (Mont. 2002)(police did not have articulable suspicion sufficient to stop vehicle, where he only thought tags might be expired but was not sure).

As Ms. Walters stated to the trial court, she believes the analysis in State v. Lacasella, 60 P.3d 975 (Mont. 2002) provides the proper mechanism for reviewing the particular statute in this case, as it dealt with the exact same issue of the conspicuousness of a front plate as a basis to stop someone under the Fourth Amendment. Wyoming Statute § 31-5-205 covers the requirement to have a front license plate.

Finally, an Officer is not allowed to attempt to boot strap articulable suspicion with evidence acquired after an arrest. See generally, Campbell, 2004 WY 106, ¶14, 97 P.3d at 785; Mickelson v. State, 906 P.2d 1020, 1023-24 (Wyo. 1995)(consent cannot be based on post hoc colloquy with defendant where stop is not justified at its inception)(citing Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); Mickelson v. State, 886 P.2d 247, 250 (Wyo. 1994) (post hoc rationalizations cannot justify stop where officer lacks suspicion of illegal activity prior to detaining and questioning a defendant); Buffkins v. City of Omaha, Neb., 922 F.2d 465, 469 (8th Cir. 1990)(“Reasonable suspicion must be formed before the seizure occurs.”). The Wyoming Supreme Court has recognized that protection of individual liberties can require difficult choices.

In a society burdened by crime, the protection of individual liberties requires difficult choices. All of us want to be able to freely walk the streets of our cities and towns. While we cannot and should not tolerate crime and lawlessness, we equally cannot tolerate the abrogation of basic liberties. Permitting a seizure, without reasonable suspicion of criminal behavior, to complete a computerized identification check of a police “contact” represents an unreasonable intrusion on basic liberties. Wilson v. State, 874 P.2d 215, 225 (Wyo. 1994)(emphasis added).

The Wilson Court expressly cautioned against the use of after the fact rationalizations to support an illegal detention:

Reasonable suspicion requires the presence of specific and articulable facts and rational inferences on the part of the officer conducting the seizure. (Citations omitted). The Constitution does not permit this court, or any court, to construct after the fact justification of police conduct. The reason is sound. Our constitutional guarantees would mean little if any search or seizure which produced evidence of criminal conduct was justified post hoc. The basic constitutional guarantee of freedom from unreasonable searches and seizures operates from a simple premise. Prior to the issuance of a warrant, the police must demonstrate probable cause. Similarly, prior to conducting an investigatory stop, the police must possess reasonable suspicions of criminal behavior. In other words, the officer’s action must be ‘justified at its inception.’ (Citations omitted).” Wilson, 874 P.2d at 225 (emphasis added).