State v. MagallanesState v. Magallanes
Statutes: Judgments: Appeal and Error. The meaning of a statute is a question of law, on which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. - Motions to Suppress: Investigative Stops: Warrantless Searches: Probable Cause: Judgments: Appeal and Error. A trial court’s ruling on a motion to suppress evidence, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous.
- Investigative Stops: Motor Vehicles: Probable Cause. A traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle.
- Statutes. Statutory language is to be given its plain and ordinary meaning.
- Statutes: Appeal and Error. An appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.
- Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable Cause. An officer’s stop of a vehicle is objectively reasonable when the officer has probable cause to believe that a traffic violation has occurred.
- Search and Seizure. In order for a consent to search to be effective, it must be a free and unconstrained choice and not the product of a will overborne.
- Appeal and Error. Consideration of plain error occurs at the discretion of an appellate court.
- ____. Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process.
- Verdicts: Appeal and Error. Only where evidence lacks sufficient probative value as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.
Appeal from the District Court for Douglas County: GARY B. RANDALL, Judge. Affirmed in part, and in part reversed and remanded with direction.
Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.
WRIGHT, J.
NATURE OF CASE
The appellant, Alberto C. Magallanes, was stopped on Interstate 80 for driving on the shoulder of the highway in violation of
SCOPE OF REVIEW
[1] The meaning of a statute is a question of law, on which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. State v. Garcia, 281 Neb. 1, 792 N.W.2d 882 (2011).
[2] A trial court’s ruling on a motion to suppress evidence, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
TRAFFIC STOP
At approximately 10:30 p.m. on November 30, 2009, Kristopher Peterson, a deputy with the Douglas County sheriff’s office K-9 interdiction unit, was patrolling Interstate 80. He observed a vehicle with Arizona license plates traveling eastbound. He decided to follow the vehicle and observed it temporarily cross outside its lane of travel onto the shoulder of the road for roughly 1 second or approximately 100 feet at two separate locations. Only the width of the right-side tires crossed over the fog line onto the shoulder. Peterson continued to follow the vehicle for about another 1½ miles before he pulled it over for what he believed was a violation of Nebraska law that prohibits driving on the shoulder of a highway.
Peterson approached the driver’s side of the vehicle and told Magallanes that he pulled Magallanes over because he “‘drove on the shoulder a couple times.’” Peterson also asked Magallanes if he was “‘ok to drive.’” Magallanes said he was confused because of the Interstate 680/80 junction, and Peterson responded that confusion at that particular location “‘happens quite a bit.’”
Magallanes was then taken to Peterson’s cruiser and asked additional questions about his travel plans. Peterson separately asked Magallanes’ passenger about their travel plans. During the traffic stop, Deputy Eric Olson arrived at the scene. Peterson wrote Magallanes a warning ticket for driving on the shoulder and then asked if he could search the vehicle. Magallanes consented to the search. Magallanes sat in Peterson’s cruiser while the search occurred, and the passenger was asked to wait in Olson’s cruiser. Peterson informed Magallanes that if, at any time, he wanted to end the search, he could do so by honking the cruiser’s horn. Peterson and Olson then began to search the vehicle.
A search of the passenger compartment and the trunk revealed no contraband. However, Peterson noticed an odor of gasoline in the car and that Magallanes had air fresheners scattered throughout the car. He testified that newer cars, like
PROCEDURAL HISTORY
On September 16, 2010, the State filed an information in Douglas County District Court charging Magallanes with one count of possession with intent to deliver more than 140 grams of methamphetamine, one count of possession with intent to deliver more than 140 grams of cocaine, and two counts of failure to affix a tax stamp. The first two counts were Class IB felonies, and the other two counts were Class IV felonies.
Magallanes filed three separate motions to suppress the evidence in district court. The first was filed on October 19, 2010, and sought to suppress any and all evidence derived from the search of the vehicle because the stop and seizure were conducted in violation of the 4th, 5th, 6th, and 14th Amendments to the
On July 29, 2011, the matter came before the district court for a bench trial. The court found Magallanes guilty on all four counts. On November 23, he was sentenced to 20 to 40 years in prison on counts I and II, and 1 to 2 years in prison on counts III and IV, with all terms running concurrently.
ASSIGNMENTS OF ERROR
Magallanes assigns as error, restated, that the district court erred (1) when it denied Magallanes’ motion to suppress, because Peterson did not have probable cause to stop Magallanes’ vehicle, resulting in an illegal seizure, and (2) when it overruled Magallanes’ motion to suppress, because the evidence obtained by the deputies during the illegal stop and seizure should have been suppressed as fruit of the poisonous tree.
ANALYSIS
VALIDITY OF STOP
[3] A traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle. State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012), cert. denied ___ U.S. ___, 133 S. Ct. 158, 184 L. Ed. 2d 78. Peterson believed that Magallanes had committed a violation of
No person shall drive on the shoulders of highways, except that:
(1) Vehicles may be driven on the shoulders of highways (a) by federal mail carriers while delivering the United States mail or (b) to safely remove a vehicle from a roadway;
(2) Implements of husbandry may be driven on the shoulders of highways; and
(3) Bicycles and electric personal assistive mobility devices may be operated on paved shoulders of highways included in the state highway system other than Nebraska segments of the National System of Interstate and Defense Highways.
Magallanes argues that momentarily crossing the fog line does not constitute a violation of
[4,5] Statutory language is to be given its plain and ordinary meaning. State v. Halverstadt, 282 Neb. 736, 809 N.W.2d 480 (2011). An appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. Id. Neither party argues that
Although we find
Most recently, a single judge of the Court of Appeals determined in a memorandum opinion that any crossing of the fog line constituted “driving” on the shoulder in violation of the statute. See State v. Medina, No. A-11-377, 2011 WL 2577268 (Neb. App. June 28, 2011) (selected for posting to court Web site). The judge concluded that “[t]o reach the conclusion that [the defendant] was not driving, one must add words to the statute that simply are not there.” Id. at *3. The judge found that
We also point out that the U.S. District Court for the District of Nebraska has concluded that momentarily and inadvertently crossing the fog line is sufficient for probable cause to initiate a traffic stop. Most recently, the district court concluded that although there were no definitive interpretations of
The reasoning used in the above cases is sound. By applying the plain and ordinary meaning of the words in the statute, any crossing of the fog line onto the shoulder constitutes driving on the shoulder and is a violation of
[6] At a prior hearing, Peterson indicated that Magallanes crossed the fog line twice while Peterson followed his vehicle. Peterson pulled the vehicle over for a violation of
Magallanes crossed the fog line onto the shoulder while driving on Interstate 80, and he does not fall within one of the exceptions stated in
EVIDENCE OBTAINED WAS NOT FRUIT OF POISONOUS TREE
After Peterson concluded the traffic stop, he asked to search Magallanes’ car. Magallanes consented to the search, and drugs were eventually found. Magallanes’ argument rests on the premise that the drugs were found after an unlawful stop.
[7] In order for a consent to search to be effective, it must be a free and unconstrained choice and not the product of a will overborne. State v. Dallmann, 260 Neb. 937, 621 N.W.2d 86 (2000). Because Peterson’s stop was lawful under
NO EVIDENCE OF TAX STAMP ON DRUGS
Magallanes was charged with and convicted of two counts of failure to affix a tax stamp. However, our review of the record reveals no evidence regarding the absence of a tax stamp. This issue was not raised by either party on appeal, and therefore, we analyze the issue for plain error.
[8-10] Consideration of plain error occurs at the discretion of an appellate court. State v. Howell, ante p. 559, 822 N.W.2d 391 (2012). Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process. Id. Only where
We found plain error related to a conviction for failure to affix a tax stamp in Howell. There was no evidence in the record to show the absence of a tax stamp, even though the State argued that pictures not received into evidence at trial clearly showed there was no tax stamp. Because no evidence was offered on the matter at trial, the State was not able to meet its burden and the conviction was overturned.
This case is similar to Howell because nothing in the record proves that no tax stamps were affixed to the drugs recovered from Magallanes’ car. The State carries the burden to prove all elements of the crimes charged. Here, the State presented no evidence relating to the existence or absence of tax stamps. Because there was no evidence in the record on the issue, Magallanes’ convictions for failure to affix a tax stamp cannot stand.
CONCLUSION
Peterson properly stopped Magallanes for violating
Because the record contained no evidence regarding the absence of drug tax stamps, we reverse the judgments of conviction and sentences on those counts and remand the cause with direction to dismiss the charges for failure to affix a tax stamp.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED WITH DIRECTION.
CONNOLLY, J., concurring.
I concur in the judgment, but write separately to express my disagreement with the majority’s rationale.
So I conclude that Peterson did not have probable cause to stop Magallanes. But I do not address whether Peterson otherwise had reasonable suspicion for the stop (as the district court determined) because I conclude that sufficient attenuation existed between the stop and the consent to search. The exclusionary rule is therefore inapplicable, and so I agree that the district court properly denied Magallanes’ motion to suppress.
Although the language of
But we give plain language its ordinary meaning,2 rather than any possible meaning.3 The ordinary meaning of a phrase is, basically, the mental picture that the phrase creates in the mind of the reader or listener.4 So what picture does “driv[ing]
So the question is this: Does
I agree with Judge Icenogle that the exceptions listed in
No person shall drive on the shoulders of highways, except that:
(1) Vehicles may be driven on the shoulders of highways (a) by federal mail carriers while delivering the United States mail or (b) to safely remove a vehicle from a roadway;
(2) Implements of husbandry may be driven on the shoulders of highways; and
(3) Bicycles and electric personal assistive mobility devices may be operated on paved shoulders of highways included in the state highway system other than Nebraska segments of the National System of Interstate and Defense Highways.
We give effect to the entire language of a statute, and we reconcile different provisions of the statute so that they are consistent, harmonious, and sensible.10 Here, the Legislature used the same phrasing multiple times within the statute—variations of the verb “to drive” (or its equivalent) combined with “on . . . shoulders of highways.”11 And in each exception, it is clear that the language meant driving on the shoulder as a thoroughfare or primary travel area. Both the legislative history and a commonsense reading of the exceptions support this conclusion.
In passing the bill creating an exception for federal mail carriers to drive on the shoulder, one senator explained the purpose of the mail carrier exception: “In the rural areas, often it is necessary for the mail carriers to drive on the road shoulder from one mailbox to the next. It is believed this is safer than having him pull out into the roadway each time.”12 This explanation illustrates that the Legislature intended for federal mail carriers to use the shoulder as a thoroughfare or primary
Furthermore, in construing a statute, we look to the statutory objective to be accomplished, the evils and mischiefs sought to be remedied, and the purpose to be served by the statute.15 One objective for prohibiting “driv[ing] on” the shoulder, and of passing the Nebraska Rules of the Road in general, was to promote safer travel on our roadways.16
The majority’s interpretation of the statute does not further that purpose because it essentially makes the statute a strict liability crime—no matter the circumstances, any crossing of the fog line violates
In sum, the prohibition in
In this case, Magallanes twice crossed the fog line at two separate locations, but each crossing was momentary and inadvertent. Magallanes did not use the shoulder as a thoroughfare or primary travel area. In my view, he did not violate
But the district court also concluded that based on the totality of the circumstances, Peterson reasonably suspected that Magallanes was driving while impaired and that the stop was justified on that basis. I do not address that issue, however, because I conclude that sufficient attenuation existed between the allegedly illegal stop and the consent to search.
The record shows that following the stop, Peterson handed Magallanes a warning ticket for driving on the shoulder of the highway and then asked Magallanes if he could search his vehicle. Magallanes agreed to that search, which ultimately led to the discovery of methamphetamine and cocaine in the gasoline tank.
When a consensual search is preceded by a Fourth Amendment violation, two things must be proved to avoid the exclusionary rule: (1) that the consent was voluntary and (2) that there was sufficient attenuation, or a break in the causal connection, between the illegal conduct and the consent.18 Only the second requirement is at issue here. The relevant facts for sufficient attenuation will depend upon the facts of a particular case but include (1) the proximity between the illegality and the consent to search, (2) the presence of intervening factors,
On this record, I am convinced that the exclusionary rule does not apply because sufficient attenuation existed between the consent to search and the illegal stop. Although Magallanes gave the consent to search soon after the illegal stop, other circumstances outweigh this temporal proximity. The officer gave Magallanes a warning ticket, which would indicate that the stop was essentially over. This weakens the causal chain between the illegal stop and the consent to search. It also lessens any concern that the consent was simply a resignation or submission to police authority20—Magallanes would have understood that the stop was over before agreeing to the search. Peterson also told Magallanes more than once that he did not have to consent to the search, and Peterson informed Magallanes that if, at any time, he wanted to end the search, he could do so by honking the cruiser’s horn. Finally, the governmental misconduct—the allegedly illegal stop—was slight because it was unclear at the time exactly what constituted “driv[ing] on” the shoulder and the officer believed that Magallanes had committed a traffic infraction. Considering these facts, I conclude that the court properly denied Magallanes’ motion to suppress because sufficient attenuation existed between the allegedly illegal stop and the consent to search. I concur in the judgment.
MCCORMACK, J., joins in this concurrence.