874 P.2d 215 (1994)

Wesley WILSON, Appellant (Defendant),
v.
STATE of Wyoming, Appellee (Plaintiff).

No. 92-111.

Supreme Court of Wyoming.

April 18, 1994. Rehearing Denied May 16, 1994.^[*]

*216 Leonard D. Munker, State Public Defender, Gerald M. Gallivan, Director, Wyoming Defender Aid Program, Stephanie Bryant, *217 Student Intern, and Aaron Phillips, Student Intern, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., and Barbara L. Boyer, Senior Asst. Atty. Gen., for appellee.

Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.

TAYLOR, Justice.

The constitutionality of a police officer's actions in demanding a citizen's identification following an initial offer of assistance are challenged in this case of first impression before the court. Also questioned is the possible "taint" that an improper seizure may have created on subsequently obtained evidence. Determining that a violation of federal constitutional rights occurred when the officer, following the policy of his department, seized a pedestrian to complete a check for outstanding warrants without reasonable suspicion of present or past criminal conduct, we reverse the judgment and sentence imposed by the district court.

I. ISSUES

Appellant presents two issues for review:

I. Whether the policy of the Casper Police Department to stop and ask persons for identification, in the early morning hours, without any justification violates the Fourth Amendment of the United States Constitution and Article I, § 4 of the Wyoming Constitution. It is an even greater intrusion to detain an individual until a records check is run to determine whether the individual is wanted for some violation.

II. Whether the seizure of Wesley Wilson violated the standards for a permissible seizure as set forth in the Fourth Amendment to the United States Constitution and Article I[,] § 4 of the Wyoming Constitution and defined by the United States Supreme Court and consequently, several pieces of evidence are tainted by the illegality and should have been suppressed.

II. FACTS

Limping severely, Wesley Wilson (Wilson) walked rapidly eastbound on 12th Street in Casper, Wyoming on the morning of June 21, 1991. At 12:31 a.m., Officer Kamron Ritter (Officer Ritter) of the Casper Police Department watched Wilson's "lunging" steps and pulled his patrol car over to the sidewalk. Officer Ritter, believing that a fight may have taken place, asked if Wilson was okay and what happened to his leg. Wilson responded that he had twisted his ankle at a party. Smelling alcohol on Wilson's breath, Officer Ritter requested identification which Wilson provided. Officer Ritter radioed for a routine warrants check with the National Crime Information Center (NCIC) and local files. This initial encounter with Wilson lasted about a minute and a half.

The conversation with Wilson was interrupted when Officer Ritter detected smoke coming from 12th Street, west of where he was standing. At the same time, two motorcyclists stopped and reported to Officer Ritter that a fire was burning in a building up the street. Before leaving to check on the fire, Officer Ritter told Wilson to "stay in the area."

Officer Ritter reported the fire to the police dispatcher. The fire was in a building located one block away from where Officer Ritter had spotted Wilson. As he waited for the responding fire engines, Officer Ritter checked to make sure the burning building and other nearby homes were unoccupied. The deliberately set fire destroyed a garage-workshop.

After about eight minutes at the scene of the fire, Officer Ritter returned to check on Wilson. He had limped about 40 feet farther east and was attempting to cross 12th Street. As additional fire trucks approached, Officer Ritter helped Wilson cross the street. Officer Ritter then told Wilson to go to a nearby corner and "wait" while the officer returned to the fire scene.

As Officer Ritter provided traffic control, the police dispatcher radioed, at 12:41 a.m., that Wilson had two outstanding arrest warrants. Officer Ritter and Officer Terry Van Oordt then walked down the block to where Wilson was sitting on a lawn at the corner watching the fire. When the officers approached Wilson, they informed him of the *218 outstanding warrants and asked him to stand. Wilson told the officers it was difficult to stand with his injured ankle. The officers noticed an oily patch on the right shoulder of the shirt Wilson was wearing. Both officers touched the stained area and found an oily substance. Wilson volunteered, "What are you doing? I don't smell like smoke." The officers proceeded to arrest Wilson on the outstanding warrants. The following morning, in custody, Wilson made a voluntary statement implicating himself in starting the fire.

At a suppression hearing, Officer Ritter testified about his concerns for Wilson's safety during their initial encounter and that he had no suspicions of Wilson's involvement in the fire or of arresting him for public intoxication. Officer Ritter stated he followed routine Casper Police Department procedure to get the names of subjects police come in "contact" with "at that time of night" and "always" run a warrants check. Officer Ritter said he wanted Wilson to wait until the results of the warrants check were received. During their second encounter, when Officer Ritter helped Wilson cross the street, the officer testified he still had no suspicion of Wilson's potential involvement in the fire but wanted Wilson to wait for the completion of the warrants check. A Casper police detective also testified about the circumstances, including a Miranda warning, involved in Wilson's statement following his arrest on the outstanding warrants.

Wilson, who did not testify at the hearing, argued that the stop was illegal and the evidence gathered from the stop should be suppressed. Wilson also contended that the statements regarding smelling like smoke and implicating him in the starting of the fire should be suppressed. The district court denied the suppression motion, ruling that Officer Ritter's actions were "entirely reasonable in his effort to determine whether the man was hurt and what his situation was." Specifically, the district court found no illegality during the arrest and both of Wilson's statements were ruled admissible.

Wilson was convicted, following a jury trial, of felony property destruction, Wyo.Stat. § 6-3-201(b)(iii) (1988), and burglary, Wyo. Stat. § 6-3-301(a) and (b) (1988). The district court sentenced Wilson to a term of not less than six years nor more than eight years at the Wyoming State Penitentiary on each count. The sentences were to run concurrently.

III. DISCUSSION

In general, evidentiary rulings of a district court are not disturbed on appeal unless a clear abuse of discretion is demonstrated. Armstrong v. State, 826 P.2d 1106, 1111 (Wyo.1992); Garcia v. State, 777 P.2d 603, 607 (Wyo.1989). "`An abuse of discretion has been said to mean an error of law committed by the court under the circumstances.'" Armstrong, 826 P.2d at 1111 (quoting Martinez v. State, 611 P.2d 831, 838 (Wyo.1980)). Findings on factual issues made by the district court considering a motion to suppress are not disturbed on appeal unless they are clearly erroneous. Hyde v. State, 769 P.2d 376, 378 (Wyo.1989); Roose v. State, 759 P.2d 478, 487 (Wyo.1988). See W.R.Cr.P. 12(f) (effective March 24, 1992) (formerly W.R.Cr.P. 16). Since the district court conducts the hearing on the motion to suppress and has the opportunity to: assess the credibility of the witnesses; the weight given the evidence; and make the necessary inferences, deductions and conclusions, evidence is viewed in the light most favorable to the district court's determination. United States v. Werking, 915 F.2d 1404, 1406 (10th Cir.1990). See Rands v. State, 818 P.2d 44, 46 (Wyo.1991). The issue of law, whether an unreasonable search or seizure occurred in violation of constitutional rights, is reviewed de novo. See Lopez v. State, 643 P.2d 682, 683-85 (Wyo.1982); Cook v. State, 631 P.2d 5, 7-8 (Wyo.1981); and United States v. Walker, 941 F.2d 1086, 1090 (10th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992).

Wilson's statement of the issues presumes his appeal is one based on provisions of both the United States Constitution and the Wyoming Constitution. The language of Wyo. Const. art. 1, § 4 differs somewhat from its federal counterpart in providing:

The right of the people to be secure in their persons, houses, papers and effects *219 against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by affidavit, particularly describing the place to be searched or the person or thing to be seized.

See Goettl v. State, 842 P.2d 549, 558-75 (Wyo.1992), Urbigkit, J., dissenting (arguing search and seizure provisions of the state constitution provide stronger protection than the federal constitution). However, we are unable to consider the impact of those differences in this situation because Wilson has not succeeded in invoking the independent protection of the Wyoming Constitution. See Shongutsie v. State, 827 P.2d 361, 366-67 (Wyo.1992); and Richmond v. State, 554 P.2d 1217, 1223 (Wyo.1976).

Wilson failed to offer any argument supporting an independent state constitutional claim. This court refuses to consider positions unsupported by cogent argument or pertinent authority. Amrein v. Wyoming Livestock Bd., 851 P.2d 769, 772 (Wyo.1993); Triton Coal Co., Inc. v. Mobil Coal Producing, Inc., 800 P.2d 505, 512 (Wyo.1990); Kipp v. Brown, 750 P.2d 1338, 1341 (Wyo.1988). The failure to present proper citation of authority and argument supporting "adequate and independent state grounds," Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 3477, 77 L.Ed.2d 1201 (1983), prevents this court, as a matter of policy, from considering other than the federal constitutional principles at issue in this case. Dworkin v. L.F.P., Inc., 839 P.2d 903, 909 (Wyo.1992); State v. Wethered, 110 Wash.2d 466, 755 P.2d 797, 800-01 (1988). See Judith S. Kaye, A Mid-point Perspective on Directions in State Constitutional Law, 1 Emerging Issues In State Constitutional Law 17 (1988).

The Fourth Amendment to the United States Constitution grants

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The protection of the Fourth Amendment is applied to state action under the due process clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949). See Laurence H. Tribe, American Constitutional Law, § 11-2 (2d ed. 1988).

The decision of the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) marked the initial recognition by the United States Supreme Court of some lesser standard than probable cause for intrusion upon constitutionally guaranteed rights. See Keehn v. Town of Torrington, 834 P.2d 112, 116 (Wyo. 1992); Olson v. State, 698 P.2d 107, 109 (Wyo.1985); and 3 Wayne R. LaFave, Search and Seizure, § 9.1 at 334 (1987). In Terry, a police officer, observing specific conduct which his training and experience taught him was indicative of criminal behavior, conducted a limited seizure to investigate his reasonable suspicions. Terry, 392 U.S. at 23-24, 88 S.Ct. at 1881. In the course of such a seizure, the United States Supreme Court approved a limited search for weapons for the protection of the police officer. Terry, 392 U.S. at 27, 88 S.Ct. at 1888.

In Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973), the United States Supreme Court recognized the responsibility of local police officers, as opposed to federal agents, to undertake "community caretaking functions" for elemental reasons of safety. The Dombrowski court approved the search of a car's trunk after the drunken driver had been involved in an accident which left him comatose. The local police searched the car because the driver was an off-duty police officer from another jurisdiction and local police reasonably believed the officer's service revolver would be a hazard if left in the trunk of the abandoned car. Dombrowski, 413 U.S. at 446-47, 93 S.Ct. at 2530.

From this genesis, a general recognition of the rich diversity of police-citizen encounters has emerged. See Terry, 392 U.S. at 13-14, 88 S.Ct. at 1875-76. As this court recently acknowledged in Collins v. *220 State, 854 P.2d 688, 691-92 (Wyo.1993) (quoting United States v. Berry, 670 F.2d 583, 591 (5th Cir.1982)), three categories or tiers of interaction between police and citizens may be characterized. See e.g., United States v. Black, 675 F.2d 129, 133 (7th Cir.1982), cert. denied, 460 U.S. 1068, 103 S.Ct. 1520, 75 L.Ed.2d 945 (1983); and Werking, 915 F.2d at 1407. The most intrusive encounter, an arrest, requires justification by probable cause to believe that a person has committed or is committing a crime. Rodarte v. City of Riverton, 552 P.2d 1245, 1255 (Wyo.1976). The investigatory stop represents a seizure which invokes Fourth Amendment safeguards, but, by its less intrusive character, requires only the presence of specific and articulable facts and rational inferences which give rise to a reasonable suspicion that a person has committed or may be committing a crime. Lopez, 643 P.2d at 683; Werking, 915 F.2d at 1407; Black, 675 F.2d at 133. The least intrusive police-citizen contact, a consensual encounter, involves no restraint of liberty and elicits the citizen's voluntary cooperation with non-coercive questioning. Werking, 915 F.2d at 1407; Black, 675 F.2d at 133.

The proper test for determining when a police-citizen encounter implicates Fourth Amendment rights as a seizure was initially outlined in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Justice Stewart, writing for a divided court, built upon a foundation first stated in Terry. "Obviously, not all personal intercourse between policemen and citizens involves `seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1878 n. 16. In Mendenhall, Justice Stewart found no seizure had occurred where federal drug agents approached a woman walking through an airport and requested her identification:

We conclude that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. See Terry v. Ohio, supra, 392 U.S. at 19, n. 16, [88 S.Ct. at 1878, n. 16]; Dunaway v. New York, 442 U.S. 200, 207, and n. 6, [99 S.Ct. 2248, 2253, 60 L.Ed.2d 824]; 3 W. LaFave, Search and Seizure 53-55 (1978). In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

Mendenhall, 446 U.S. at 554-55, 100 S.Ct. at 1877 (footnote omitted) (emphasis added).

While the opinion of Justice Stewart in Mendenhall was joined only by Justice Rehnquist, subsequent decisions have made it clear that the majority of the United States Supreme Court accepts the analysis to determine when a consensual encounter is transformed into a seizure. The four justice plurality in Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) applied the Mendenhall standard, as did Justice Blackmun in dissent. Royer, 460 U.S. at 514, 103 S.Ct. at 1332, Blackmun, J., dissenting. A majority of the court in I.N.S. v. Delgado, 466 U.S. 210, 215, 216-17, 104 S.Ct. 1758, 1762-63, 80 L.Ed.2d 247 (1984) used the standard to hold that no seizure occurred when immigration agents conducted surveys of factory workers' citizenships. See also Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988). Recently, in California v. Hodari D., 499 U.S. 621, 624, 111 S.Ct. 1547, 1550, 113 L.Ed.2d 690 (1991), the United States Supreme Court explained that under the Mendenhall standard, a seizure based on a show of authority does not occur unless the subject yields to the authority.

The Mendenhall standard, therefore, creates an objective test, Hodari D., 499 U.S. at 626-28, 111 S.Ct. at 1551-52, which makes *221 the subjective intent of the police officer irrelevant unless it is conveyed to the person being detained, Mendenhall, 446 U.S. at 554 n. 6, 100 S.Ct. at 1877 n. 6, and like all search and seizure cases, the inquiry is very fact oriented. Terry, 392 U.S. at 27-31, 88 S.Ct. at 1883-85. The reasonable person standard also means the subjective perceptions of the suspect are irrelevant to the court's inquiry. LaFave, supra, § 9.2(h) at 407-08. Finally, the reasonable person standard "presupposes an innocent person." Florida v. Bostick, 501 U.S. 429, ___, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 389 (1991) (emphasis in original). So, for example, arguments that a seizure must have occurred because a reasonable person who knows his luggage contains contraband would never agree to a search are rejected. Id.

During oral argument for this case, it was acknowledged that an analytical difficulty imposed by the Mendenhall standard lies in the determination of whether a reasonable person "would have believed that he was not free to leave" when being questioned by a police officer. Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877. See Lafave, supra, § 9.2(h) at 408-14. We find useful instruction in the Model Code of Pre-Arraignment Procedure, § 110.1 commentary at 259-60 (A.L.I.1975) (footnotes omitted):

The motives that lead one to cooperate with the police are various. To put an extreme case, the police may in purely precatory language request a person to give information. Even if he is guilty, such a person might accede to the request because he has been trained to submit to the wishes of persons in authority, or because he fears that a refusal will focus suspicion, or because he believes that concealment is no longer possible and a cooperative posture tactically or psychologically preferable. Regardless of the particular motive, the cooperation is clearly a response to the authority of the police.

By specifically authorizing law enforcement officers * * * to seek cooperation, the Code rejects the notion that a damaging response to an inquiry from a policeman can never be "voluntary." * * * [T]he extra pressures to cooperate with what is known to be an official request require no further justification than that the request was made in the performance of law enforcement functions. That there exist such pressures seems to us, far from being regrettable, to be a necessary condition of the police's capacity to operate reasonably effectively within their limited grant of powers.

In Mendenhall, the United States Supreme Court, with reference to the Model Code of Pre-Arraignment Procedure, specifically states that a seizure is not established simply because "the person asking the questions was a law enforcement official." Mendenhall, 446 U.S. at 555, 100 S.Ct. at 1877.

The critical distinction between the position advanced by Wilson and that argued by the State is which type of encounter occurred in this case. Wilson basically contends that he was seized without reasonable suspicion during the period when his identification was being checked for possible warrants. The State asserts that Wilson was never seized in a manner that would implicate Fourth Amendment rights, until he was validly arrested on the outstanding warrants. Our analysis requires a detailed consideration of the distinctions between a citizen's voluntary compliance and a seizure.

The initial encounter between Officer Ritter and Wilson was prompted by the officer's concerns for the safety of a citizen. The officer conducted himself in a reasonable manner by simply pulling his patrol car to the curb to talk with Wilson. No flashing lights or siren sounds were used to signal Wilson to stop. The community caretaker function outlined in Dombrowski, 413 U.S. at 441, 93 S.Ct. at 2528, permits police to act in a manner that enhances public safety. State v. Marcello, 157 Vt. 657, 599 A.2d 357, 358 (1991). The police officer's observation of specific and articulable facts, Wilson's lunging walk with a severe limp, reasonably justified a brief inquiry into his condition and the possible cause, such as whether Wilson was a victim of criminal conduct. Id. This portion of the initial encounter between Officer Ritter and Wilson occurred in a consensual atmosphere which implicates no Fourth Amendment interest. Florida v. Rodriguez, *222 469 U.S. 1, 5-6, 105 S.Ct. 308, 311, 83 L.Ed.2d 165 (1984).

When Officer Ritter requested Wilson's name and identification and Wilson complied, the encounter remained consensual. A request for identification is not, by itself, a seizure. Delgado, 466 U.S. at 216, 104 S.Ct. at 1762; Black, 675 F.2d at 136. Indeed, a reasonable person in physical distress should feel less intimidated by a police officer's offer to help and a request for identification than someone stopped at random. United States v. Castellanos, 731 F.2d 979, 984 (D.C.Cir.1984).

The district court made no specific factual finding whether Officer Ritter retained Wilson's identification or immediately returned it and the record does not disclose any testimony regarding this question. Without a specific finding, W.R.Cr.P. 12(f), any determination that a seizure did or did not occur when the identification was requested would be speculative. See Royer, 460 U.S. at 501, 103 S.Ct. at 1326 (holding officers who retained passenger's airline ticket and driver's license without indicating passenger was free to depart effectively seized him for purposes of Fourth Amendment).

After obtaining Wilson's identification, Officer Ritter radioed for the NCIC and local warrants check. Despite the request for the computerized warrants check, the encounter remained consensual. People v. Kennedy, 66 Ill.App.3d 267, 22 Ill.Dec. 905, 910-11, 383 N.E.2d 713, 718-19 (1978). Officer Ritter had not imposed any restriction on Wilson's freedom to leave as the warrants check was instituted.

Wilson challenges that the NCIC and local warrants check was initiated under a policy of the Casper Police Department to stop anyone, without cause, for the purpose of conducting a computerized identification check. If such a policy of random stops for identification without sufficient basis existed, we have no doubt that it would be unconstitutional under the standards announced in Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) and Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). See also Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979) (holding without articulable and reasonable suspicion of violation of law, stopping an automobile and detaining the driver to check a license and registration is unreasonable under the Fourth Amendment). Wilson's bald assertion, however, is simply not supported by the record. Officer Ritter, during cross-examination by defense counsel at the suppression hearing, testified that it is not standard procedure to stop everyone observed on Casper streets late at night. No documentary exhibit of department policy is of record in this proceeding and no testimony of supervisory officers supports Wilson's contention.

Officer Ritter did testify, however, that it is Casper Police Department policy to conduct NCIC and local warrants checks of everyone police "contact" late at night. The meaning of a "contact" was never defined. However, a seizure to conduct a computerized identification check without reasonable suspicion is not permitted. We acknowledge that "where police have been unable to locate a person suspected of involvement in a past crime, the ability to briefly stop that person, ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice." United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 680, 83 L.Ed.2d 604 (1985). However, we do not find in the circumstances of Officer Ritter's encounter with Wilson justification for a seizure or Terry stop for the purpose of investigating past crime. Brown, 443 U.S. at 52, 99 S.Ct. at 2641. In