Lead Opinion
I. INTRODUCTION
Kandie A. Lee was involved in a traffic stop during which sheriff’s deputies became suspicious that Lee was involved in drug activity. After a canine sniff alerted the officers to the presence of illegal drags in Lee’s vehicle, a search warrant was obtained. A search of Lee’s vehicle produced methamphetamine.
Following a hearing, Lee’s motion to suppress was denied. A trial was held in Saline County District Court on stipulated facts, and Lee was convicted of possession of a controlled substance. Lee was sentenced to a term of 20 months’ to 5 years’ imprisonment. This appeal followed. We moved this case to our docket pursuant to our authority to regulate the caseload between this court and the Nebraska Court of Appeals. See Neb. Rev. Stat. § 24-1106(3) (Reissue 1995).
II. FACTUAL BACKGROUND
On November 30, 2000, Sgt. Jeff Mulbery and Deputy Anthony Lytle of the Saline County sheriff’s office were on routine patrol in Saline County. At approximately 9 p.m., the officers conducted a security check of the Walnut Creek Recreation Area, an area owned by the local natural resources district and operated by the Nebraska Game and Parks Commission. Information received by the Saline County sheriff’s office prior to this incident indicated that “drag dealers and users are meeting at this location for drug transactions.”
Upon contacting Lee at approximately 9:03 p.m., Mulbery inquired as to why Lee was present in an area restricted to authorized vehicles. Lee’s initial response was that she was there to meet her boyfriend, Stacy Talbott. According to Mulbery, Lee appeared “really nervous” while being questioned. Lytle, who had accompanied Mulbery to Lee’s vehicle, requested Lee’s operator’s license, after which request both officers returned to the patrol car. Lytle then requested the dispatcher at the sheriff’s office to run a check of Lee’s operator’s license. The chеck disclosed that there were no outstanding warrants and that Lee’s operator’s license was not under suspension. In addition, at approximately the same time, Mulbery contacted Deputy Kenneth Uher, requesting that Uher report to the scene with the county’s drug dog. Shortly thereafter, Mulbery and Lytle received information from Uher that Lee had “prior drug arrests.”
Upon being advised of Lee’s prior drug arrests, Mulbery and Lytle approached Lee a second time and again asked why she was at the recreation area. This time, according to Mulbery, Lee’s story “turned around.” Lee now told the officers she was there to meet her boyfriend, whose name was “Johnson,” and that Talbott, whom Lee had earlier identified as her boyfriend, was in fact Lee’s brother. The officers then asked for consent to search Lee’s vehicle, which Lee refused.
Uher and the county’s drug dog arrived on the scene at 9:21 p.m. After sniffing the vehicle, the dog alerted to the presence of illegal drugs. At that point, Lee was again asked for permission to search the vehicle, and again permission was denied. Lee was then told she was free to leave, but that her vehicle would need to remain at the scene until a search warrant was obtained. After the search warrant was issued, Lee’s vehicle was searched. Methamphetamine was found in Lee’s purse, which was located on the front seat of the vehicle.
Lee assigns, rephrased, that the district court erred in (1) failing to excise from the probable causе affidavit averments regarding a canine sniff which were the product of an illegal detention and seizure, (2) failing to grant her motion to suppress evidence found in the search of her vehicle on the ground that there was no probable cause to issue a search warrant, and (3) finding that the search of her vehicle was justified under the search incident to an arrest exception to the warrant requirement.
IV.STANDARD OF REVIEW
In reviewing a trial court’s ruling on a motion to suppress evidence, ultimate determinations of reasonable suspicion are reviewed de novo by an appellate court, while findings of historical fact are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge. State v. Kelley, ante p. 563,
V.ANALYSIS
Lee’s primary contention is that the officers were not justified in detaining her while awaiting the arrival of the drug dog and that, therefore, “the detention of herself and her vehicle [was] illegal; and, the subsequent warrant issued was the fruit of this illegality.” Brief for appellant at 6. As a result, Lee argues that any averment relating to the canine sniff must be excised from the affidavit in support of the search warrant. Lee contends that once the canine sniff is excised, the remaining averments do not support a finding of probable cause justifying the issuance of the warrant.
1. Initial Stop
We determine that the initial traffic stop was valid. It is well established that a traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle. State v. Dallmann,
At the time Lee was initially stopped, the officers were entitled to conduct an investigation “‘“reasonably related in scope to the circumstances that justified the intеrference in the first place.” ’ ” State v. Anderson,
We must therefore initially determine the point at whiсh the “ ‘ “circumstances that justified the interference in the first place” ’ ” ceased and continued detention began. See State v. Anderson,
2. Point at Which Continued Detention Began
The record shows that Lee was not given a citation as a result of her vehicle’s being found in an unauthorized location within the recreation area. As such, the event which frequently determines the point after which reasonable suspicion must be found is not present. See, e.g., State v. Anderson, supra; State v. Gutierrez, 9 Neb. App. 325,
We further determine it was at this point that the reasonable scope of the initial traffic stop ended. Once Lee denied permission to search, she had a right to proceed, unless during the period of lawful detention, Mulbery аnd Lytle developed a reasonable, articulable suspicion that Lee was involved in illegal activity beyond that which justified the interference in the first place. See, State v. Anderson, supra; State v. McGinnis, supra. See, also, Terry v. Ohio, supra.
3. Reasonable, Articulable Suspicion
Reasonable suspicion entails some minimal level of objective justification for detention, something more than an inchoate and unparticularized suspicion or “hunch,” but less than the level of suspicion required for probable cause. State v. Anderson,
4. Totality of Circumstances
The State contends that the “totality of the circumstances” which justify a rеasonable suspicion to continue Lee’s detention includes: (a) information previously received that the recreation area had been used for drug transactions, (b) Lee’s prior drug arrest history, (c) Lee’s extreme nervousness, (d) Lee’s divergent stories of whom she was meeting, and (e) Lee’s operation of her vehicle in a restricted area at an unusual time.
The evidence pertaining to the use of this area for drug transactions comes from paragraph 8 of the affidavit in support of the search warrant, which was received into evidence at the suppression hearing. Paragraph 8 states: “The Saline County Sheriff’s Office has received information prior to this incident that drug dealers and users are meeting at this location for drug transactions.” This averment, the State contends, provides an appropriate circumstance for consideration in evaluating reasonable suspicion to detain. Lee’s motion to suppress challenges the basis of such averment, contending that “[s]aid warrant contains information from unnamed sources whose reliability has not been demonstrated or otherwise appropriately qualified.” The difficulty in evaluating the parties’ respective arguments, however, is that one cannot tell from the district court’s order whether it made a factual determination that the recreation area was being used for drug transactions and, if so, whether Mulbery and Lytle had knowledge of such information when they detained Lee.
While determinations of reasonable suspicion are made de novo, findings of historical fact to support reasonable suspicion are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial court. State v. Kelley, ante p. 563,
We acknowledge that the averment in paragraph 8 of the affidavit in support of the search warrant may infer that Mulbery and Lytle were in possession of information that the recreation area in question had been used for drug transactions prior to Lee’s continued dеtention. However, the evidence in this record amounts to little more than conclusory assertions by the State that drug transactions had occurred at the recreation area. Nothing in the record indicates where this information came from, why the source of the information was reliable, or whether the officers had the information when they detained Lee. Thus, even assuming that the trial court did find that the
(b) Prior Drag Arrest History
The State further relies upon information obtained from the Saline County sheriff’s office dispatchеr and from the Crete Police Department regarding Lee’s drug arrest history to support the conclusion that Mulbery and Lytle had reasonable suspicion to detain Lee. Testimony was presented at the motion to suppress hearing that Mulbery and Lytle were aware of Lee’s drug arrest history when they detained her while awaiting the arrival of Uher and the drag dog. Mulbery testified that while Uher was en route to the recreation area with the drag dog, Uher informed Mulbery and Lytle that Lee “had prior drag arrests.”
An individual’s criminal history may be a relevant factor when determining whether an officer has reasonable suspicion to detain an individual. U.S. v. Sandoval,
(c) Lee’s Nervousness
In further support of the district court’s finding of reasonable suspicion, the State argues in its brief that “[w]hen Lee was contacted by the officers, she was found to be extremely nervous.” Brief for appellee at 10.
In State v. Anderson,
Although nervousness is an appropriate factor for consideration within the “totality of the circumstances,” its presence is of limited significance generally. U.S. v. McRae,
(d) Lee’s Divergent Stories
The State argues that the “divergent stories as to who[m] [Lee] was meeting and who her boyfriend was” is another appropriate factor for consideration within the “totality of the circumstances” supporting the trial court’s determination of reasonable suspicion. Brief for appellee at 13. Specifically, the State points to the testimony of Mulbery to the effect that Lee’s story “turned around” the second time Lee was asked her reasons for being in an unauthorized location in the recreation area. According to Mulbery, the first time Lee was asked why she was in the recreation area, her response was that she was there to meet her boyfriend, Talbott. The second time Lee was asked, however, she told Mulbery she was there to meet her boyfriend, “Johnson,” and that Talbott was in fact her brother.
An individual’s inconsistent explanation of the reason for being at a particular location is a factor which may be considered within the “totality of the circumstances” in evaluating the existence of reasonable suspicion. See U.S. v. Johnson,
As its final factor supporting Lee’s continued detention, the State argues that Lee’s operation of a vehicle in an unauthorized area at 9 p.m. in late November when no other activities were being conducted in the vicinity is an appropriate circumstance for consideration in a determination of reasonable suspicion.
Lee’s presence in the recreation area at 9 p.m. in late November in a location where vehicles were not authorized and when no other activities were being conducted in the vicinity does not amount to reasonable suspicion. However, it is a factor which can be considered in determining reasonable suspicion for continued detention. See U.S. v. Dawdy,
5. Evaluation of Totality of Circumstances
Based upon this record, the factors which we have concludеd are appropriately within the “totality of the circumstances” for consideration in our de novo determination of reasonable suspicion are as follows: (1) Lee’s drug arrest history, (2) Lee’s nervousness, (3) Lee’s divergent stories, and (4) Lee’s presence in an unauthorized location within the recreation area at 9 p.m. in late November when no other activities were being conducted in the vicinity.
A determination of reasonable suspicion is based on the totality of the circumstances. State v. Anderson,
When Lee was initially stopped, she was operating her vehicle in an unauthorized location within a recreation area at approximately 9 p.m. in late November when no other activities were
Having so determined, we need also consider whether the detention of Lee and her vehicle was reasonable in the context of an investigative stop. In doing so, we are guided by several considerations:
We consider both the length of the detention and the efforts of police to conduct their investigation quickly and unintrusively in determining whether a detention is reasonable in the context of an investigative stop: “[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.”
U.S. v. Bloomfield,
First, we consider the length of Lee’s detention. In U.S. v. Hardy,
Second, we must consider whether the “investigative methods employed [were] the least intrusive means reasonably available to verify or dispel the officer’s suspicion.” See U.S. v. Bloomfield,
[A] canine sniff does not require the opening of luggage and does not reveal intimate but noncontraband items to public view. “[T]he manner in which information is obtained through this investigative technique is much less intrusive than a typical search.” [United States v. Place,462 U.S. 696 , 707,103 S. Ct. 2637 ,77 L. Ed. 2d 110 (1983).] Nor does a canine sniff involve the time-consuming disassembly of luggage or an automobile frequently required in a thorough search for contraband.
U.S. v. Hardy,
Finally, we acknowledge that Mulbery called Uher, requesting the drug dog’s presence, prior to Mulbery and Lytle’s completiоn of their initial investigation. However, we find this irrelevant in our ultimate determination of reasonable suspicion. In our review of the record, it is clear that the drug dog did not arrive until after such time as the officers had reasonable suspicion to continue to detain Lee.
6. Probable Cause for Issuance of Warrant
Having determined that the officers had reasonable suspicion to continue Lee’s detention, we further determine that the canine
In evaluating the validity of a search warrant, we consider familiar principles:
A search warrant, to be valid, must be supported by an affidavit which establishes probable cause. State v. Johnson[,256 Neb. 133 ,589 N.W.2d 108 (1999)]. “Probable cause” sufficient to justify issuance of a search warrant means a fair probability that contraband or evidence of a crime will be found. State v. Craven,253 Neb. 601 ,571 N.W.2d 612 (1997). Proof of probable cause justifying issuance of a search warrant generally must consist of facts so closely related to the time of issuance of the warrant as to justify a finding of probable cause at that time. State v. Johnson, supra. Probable cause to search is determined by a standard of objectivе reasonableness, that is, whether known facts and circumstances are sufficient to warrant a person of reasonable prudence in a belief that contraband or evidence of a crime will be found. State v. Craven, supra.
In reviewing the strength of an affidavit submitted as a basis for finding probable cause to issue a search warrant, an appellate court applies a “totality of the circumstances” rule whereby the question is whether, under the totality of the circumstances illustrated by the affidavit, the issuing magistrate had a substantial basis for finding that the affidavit established probable cause. State v. Detweiler,249 Neb. 485 ,544 N.W.2d 83 (1996). As a general rule, an appellate court is restricted to consideration of the information and circumstances found within the four comers of the affidavit. State v. Johnson, supra. . . .
When a search warrant is obtained on the strength of information received from an informant, the affidavit in*677 support of the issuance of the warrant must set forth facts demonstrating the basis of the informant’s knowledge of criminal activity. The affidavit must also either establish the informant’s credibility or set forth a police officer’s independent investigation of the information supplied by the informant. [Citations omitted.] This is so because without information regarding the informant’s credibility, “‘[t]he magistrate would have no way of ascertaining whether this tip was rumor, speculation, vendetta, reprisal, or gossip.’ ” State v. Lytle,255 Neb. at 749 ,587 N.W.2d 672 , quoting with approval State v. Valley, 252 Mont. 489,830 P.2d 1255 (1992). If an affidavit does not establish that an informant is reliable, a search warrant issued solely upon the information supplied by the informant is invalid. State v. Lytle, supra.
State v. Ortiz,
With respect to the information that the area wаs used for drug transactions, the record does not disclose the source of that information. We simply do not know whether the source was a citizen informant or an informant who has given reliable information in the past. See, State v. Peters,
When reviewing an issuing magistrate’s decision with respect to the establishment of probable cause, we traditionally apply a standard of review which gives a magistrate’s determination great deference. See State v. Detweiler,
The remaining circumstances as set forth in the affidavit in support of the search warrant show that Lee had prior drug arrests,
When these factors are considered collectively, we determine upon our de novo review, based upon a standard of objective reasonableness, that the totality of the above circumstances is sufficient “to warrant a person of reasonable prudence in the belief that contraband or evidence of a crime” would be found in Lee’s vehicle. See State v. Craven,
7. Remaining Assignments of Error
Having concluded that the officers had reasonable suspicion to detain Lee following the conclusion of the initial traffic stop and further that probable cause existed for the issuance of a search warrant for her vehicle, it is unnecessary for us to consider whether the district court erred in its “alternative” finding that the search of Lee’s vehicle was justified as a search incident to arrest. An appellate court is not obligated to engage in an analysis which is not needed to adjudicate the case and controversy before it. State v. Burdette,
VI. CONCLUSION
The officers who approached Lee for operating her vehicle in an unauthorized area had reasonable suspicion to continue to detain her after the initial traffic stop was complete. Thus, Lee’s continued detention was not an unreasonable seizure for Fourth Amendment purposes. As such, the relevant averments contained in the affidavit in support of the search warrant were sufficient for
Affirmed.
Dissenting Opinion
dissenting.
I respectfully dissent. In my view, Sgt. Jeff Mulbery and Deputy Anthony Lytle did not have reasonable suspicion to continue Kandie A. Lee’s detention after complеting their initial investigation. As such, the positive canine sniff resulting from Lee’s continued detention should be excised from the affidavit for search warrant. See State v. Ortiz,
I concur with the majority’s conclusion that insofar as the trial court made a factual finding that Mulbery and Lytle possessed information prior to Lee’s continued detention that the recreation area in question had been used for drug transactions, such finding was clearly erroneous. I agree, therefore, that such factor should not be considered within the totality of the circumstances in evaluating whether the officers had reasonable suspicion to continue Lee’s detention.
I disagree with the majority’s determination, however, that the remaining four factors amount to reasonable suspicion. For the reasons discussed below, I believe the record demonstrates that each of the factors is of minimal significance in the ultimate determination of reasonable suspicion.
Lee’s arrest record lacks a “temporal nexus” to the officers’ suspicion that Lee was involved in drug activity. See State v. Johnson, 256 Neb. 133, 144,
I agree with the majority’s conclusion that Lee’s nervousness is “of limited significance” since, as a general matter, most citizens become nervous when confronted by law enforcement officers. However, I believe the significance of Lee’s nervousness is even further diminished by the fact that the record with respect to Lee’s nervousness would appear to consist primarily of the four following words: “she was really nervous.” Nowhere in the record can there be found a description of Lee’s conduct from which Mulbery concluded Lee was “really nervous.” We do not know, inter alia, whether Lee was shaking or had difficulty locating her registration, see State v. Anderson,
With respect to Lee’s “divergent stories,” it is clear from the record that any divergence was, at the very most, minor. At the suppression hearing, Mulbery testified:
Q. What was, what did she say that led to your conclusion that her story was misleading or false?
A. Well, she first said she was out to meet her boyfriend Stacy Talbott. And then she turned around and said that her brother, Stacy Talbott is her brother. And then said that her boyfriend was with Stacy Talbott with the last name of Johnson.
Q. Isn’t it entirely possible that what she was saying was that she was there to see her boyfriend and Stacy Talbott?
A. Could have been.
With respect to Lee’s presence in the unauthorized location within the recreation area at 9 p.m. in late November, I find little indication in the record that such factor was objectively suspicious or indicative of drug activity. Although Lee’s vehicle was in an unauthorized area, the record demonstrates that it was only the presence of Lee’s vehicle that was unauthorized. At all relevant times, the recreation area was open to the public. Had Lee parked her vehicle in an authorized area and walked to the location in question, there would have been no violation and no reason for the officers to stop her. Additionally, since the evidence relating to this area’s being used for “drug transactions” cannot be considered, any link between Lee’s presence in the recreation area and drug activity is further attenuated.
The majority determines that when all four of the above factors are considered collectively, they amount to reasonable suspicion. I disagree. Missing is any nexus between Lee’s presence and drug activity. I find no adequate explanation in the record as to why such seemingly innocent factors, considered collectively, led the officers to suspect that Lee was involved in drug activity. To the contrary, I believe the record demonstrates the officers simply acted out of an inchoate hunch rather than suspicion based on articulable facts. I believe this conclusion is inescapable given that (1) the officers radioed for the drug dog before learning of Lee’s drug arrest history and (2) there is no evidеnce in the record from which to conclude the officers knew that drug activity had occurred previously in the recreation area.
Therefore, I believe there is insufficient evidence in this record from which to conclude that the officers’ suspicion was reasonable under the circumstances. The court is left to simply adopt the State’s characterization of the officers’ conduct. I do not believe this is permissible, since
[i]t is for the courts to determine when an officer’s conduct squares with the Fourth Amendment, giving “due weight,” as the Court put it in Terry [v. Ohio,392 U.S. 1 ,88 S. Ct. 1868 ,20 L. Ed. 2d 889 (1968)], “to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” And, it is for the police to*683 articulate the facts and what their experience reveals as to those facts. Such generalities as “he didn’t look right” will not suffice;... the officer must relate what he has observed, and, when appropriate, indicate why his knowledge of the crime problem and the habits of the residents on his beat or of the practices of those planning or engaging in certain forms of criminal conduct gives special significance to what he observed.
(Emphasis in original.) 4 Wayne R. LaFave, Search and Seizure, a Treatise on the Fourth Amendment § 9.4(a) at 141-42 (3d ed. 1996).
In view of the record, the four factors relied upon by the majority are not, in my opinion, inherently or objectively indicative of dmg activity. Moreover, any inferences of dmg activity the officers were permitted to draw from such factors are simply not adequately set forth or thoroughly explained. Based upon this record, I am unable to conclude that the officers’ suspicion that Lee was involved in dmg activity was reasonable. I would reverse.