*1
appellee,
Nebraska,
State
appellant.
Michele S.
White, C.J., Caporale, Wright, Connolly, Gerrard, Stephan, McCormack, JJ.
Wright, J.
The State of Nebraska has petitioned further review of a Nebraska Court of Appeals opinion that reversed a conviction for criminal unlawful attempt possession controlled substance.
SCOPE OF REVIEW A trial ruling court’s on a motion to suppress, from apart determinations of reasonable conduct investigatory searches, tois cause warrantless stops perform probable erro- are clearly fact findings be on unless its upheld appeal determination, not court does making appellate neous. In but, evidence, evidence or conflicts reweigh the resolve rather, takes finder fact and the trial court as the recognizes *2 the State into that it observed witnesses. consideration State v. (1997); N.W.2d 789 251 Neb. 560 McCleery, 250 556 N.W.2d Konfrst,
FACTS 19,1995, Peters Lloyd State Patrol Sgt. On Nebraska August the intersection Highway was on U.S. at driving southbound a westbound Chevrolet of Rock Creek Road. He observed on, with its signal at the left turn intersection Impala stopped in the same direction going proceed that it was indicating However, left and did not turn traveling. Impala Peters was the Peters, but, instead, the intersection and through follow drove Peters, who had 15 years patrol experi- continued westward. ence, He turned his suspicious. believed that this was activity and the He found it Impala. stopped car around followed patrol Highway at the Creek Road and U.S. intersection Rock Peters where he it make left turn without signaling. saw a S. driven Michele being which was Impala, license, driver’s registration, and obtained of insurance. proof contact, in the car initial Peters noticed a cooler
During then had Ready accompany and a odor of alcohol. Peters slight field him car for the of administering to his patrol the horizontal test Ready nystagmus tests. sobriety passed her a Peters issued of the test. thereafter alphabet recitation and returned her documents signal for failure a turn warning to her. however, car, her if asked left Peters Ready patrol
Before or in the car. anything she or any weapons drugs had then to each Peters Ready question. responded negative recall the asked if he could search her car. Peters did not Ready that exact with which but he recalled Ready responded, words she have to the search. any objection did not search, he Peters told beginning Ready
Prior to the trunk then to the Ready wanted to search first. proceeded front of the car to obtain from the Peters was keys ignition. seat, able to see on the front and he Ready’s purse sitting watched around” in her Ready “fiddling for a purse nearly minute. He her the keys observed take out of the ignition, pick shoulder, over her up purse, put purse strap and clutch the purse tightly. Peters testified that Ready’s handling of her aroused concerns and purse his mind. suspicions Peters then proceeded rear of the he where search, searched the trunk. he Following consent to search the she purse was holding. Ready took the off her shoulder and purse handed it to Peters. Upon searching Peters found what purse, was later determined to be methamphetamine. originally with unlawful charged possession substance,
controlled in violation of 28-416(3) Neb. Rev. Stat. § (Cum. 1994). She filed a Supp. motion to evi- suppress physical dence, which was later amended to include a request suppress statements she made to Peters following arrest. Following oral argument on the motion to suppress, the district court sup- pressed statements but overruled the portion of the motion *3 seeking the evidence suppress seized from Ready’s The purse. State then dropped unlawful possession and charge filed an amended information charging Ready with criminal attempt of substance, unlawful possession of a controlled in violation of Neb. 28-201(l)(b) Rev. Stat. (4)(d) (Reissue and 1995). §
Trial was held without a and jury, Ready reasserted her objection to the admission of physical evidence seized from her purse following a traffic The district stop. court convicted and Ready sentenced her to 18 months’ probation.
On appeal, Court of reversed Appeals Ready’s convic- tion, that her consent finding to the search was given during and, therefore, illegal detention was not The voluntary. court held that her consent was insufficient to purge taint of the that, illegal therefore, detention and the contraband subse- found in quently Ready’s purse was the product of an illegal search and seizure. See State v. 143, 5 Ready, Neb. App. 556 (1996). N.W.2d 264 The State petitioned review, for further we granted petition. OF ERROR
ASSIGNMENT review, the State that the alleges In its for further petition the detention of a citi- finding Court of erred Appeals briefly, zen for no matter how questioning, unreasonable a traffic has been is an seizure accomplished a the 4th and 14th Amendments to U.S. violation of Constitution.
ANALYSIS
whether
The fundamental
case is
present
issue
of her vehicle and
was vol-
purse
search
free from an unreasonable
right
The
to be
untarily given.
seizure,
4th and 14th
search and
as
guaranteed by
7,
I,
article
by
Amendments to the U.S. Constitution and
§
Constitution,
be waived
the consent of
may
Nebraska
Prahin,
to be it must be a free and unconstrained Prahin, choice and not the of a will overborne. State v. product The consent must be and not as the supra. given voluntarily coercion, result of duress or whether express, implied, physi- cal, or Id. psychological.
It is that the initial was The undisputed stop Ready proper. Court of determined that when Peters finished Appeals process- the violation for which he ing initially legit- imate At that the Court of was stop Ready complete. point, reasoned, there a unless was reasonable further activity, other criminal Ready engaged question- result, amounted to an detention. As ing the existence of questioned Ready regarding because Peters in her vehicle to her leaving contraband prior patrol without basis for the the time dur- any independent questioning, which Peters asked about contraband amounted to án ing illegal detention.
The Court of held that consent to Appeals Ready’s Peters’ to conduct a search was so tainted deten- request by illegal tion the consent was not The Court of voluntary. to the detention with illegal respect of significance the
stressed consent. Ready’s of the voluntariness the analysis in this case Terry ... violation Most importantly we can to that point There is no evidence flagrant. was to continue right questioning could have Peters given signaling. her a for issuing warning improper after cause to be gave words nor deeds Peters Ready’s Neither he Peters testified that reasonably suspicious. items, or not illegal
whether she had any drugs, weapons, but, rather, he had reasonable because suspicion, because such routinely questions stopping people he asks traffic violations. This court does not of such a approve Absent cause or reasonable probable practice. Ohio, 20 L. Ed. under 392 U.S. Terry (1968), 2d we hold that the detention of a citizen for matter after the briefly, no how questioning, has been is an unreasonable traffic stop accomplished Thus, 14th we seizure a violation Amendment. find consent was insufficient to purge taint of what we consider be an detention. illegal Accordingly, the contraband found Ready’s purse of an search and seizure .... product 143, 152, 556 264, 270 State v. N.W.2d App. Prahin, to our in which a holding contrary analysis This is state officer a driver for and asked the patrol speeding driver to him to while car the officer accompany patrol checked on the The driver vehicle. went back ownership car and entered the side of the car. The patrol passenger officer issued the driver a ticket for and a eventually speeding violation card for failure to have a driver’s license and returned the driver’s identification card and registration. However, before the driver exited the the officer patrol “ ‘ me,
asked,
“Excuse
would it be
way,
all right [for me]
narcotics,
take a look inside
vehicle for
your
drugs,
’ ” Prahin,
large amounts of
weapons
235 Neb. at
[or]
cash[?]”
411,
On the driver that his appeal, argued consent search vehicle his was not We voluntarily given. disagreed. Although we that driver granted still have been in when may custody vehicle, the officer asked him for to search the permission fact that he inwas did not render his custody involuntary. Instead, we held that in order to determine whether a person’s consent to search was a court review voluntarily given, must of the We totality circumstances. concluded from the totality the circumstances that the driver’s consent was voluntary.
The circumstances immediately prior Peters’ request to search vehicle permission are identical to essentially cases, in In circumstances Prahin. both the officer had issued ticket or warning and had returned the driver’s cases, license and other In documents. both the officer then asked the driver about contraband and for to search. permission However, Prahin, in we did not characterize the officer’s ques- tioning the driver following of the completion as Amendment, in “illegal detention” violation of the Fourth nor did we find that the driver’s consent was so tainted con- tinued detention that his consent to the search could not be vol- We held order to untary. determine whether the consent was voluntary, it was necessary consider the of the totality circumstances surrounding the consent. This analysis is also necessary case. present Robinette, the U.S.
Recently,
Court in Ohio v.
Supreme
_ U.S. _,
(1996),
that?’” which the deputy questions, “no” to each of these the car. The defendant con- if he could search the defendant search, the found mari- During subsequent deputy sented. arrested and The defendant was juana methamphetamine. controlled substance. with charged possession motion to The trial court overruled the defendant’s suppress The defendant no contest and drugs. the evidence of the pled found On the Ohio Court of guilty. appeal, *6 that the search of holding reversed the trial court’s judgment, vehicle was the result of an unlawful detention. the defendant’s The Ohio Court affirmed the of the Ohio Supreme judgment Court of that when the motivation of the Appeals, explaining officer’s continued detention is not related to the police original and the detention is not based on articulable facts stop any giv- rise to a of some the con- ing suspicion separate illegal activity, tinued detention constitutes an The Ohio illegal seizure. Court established a line for con- Supreme “bright prerequisite” sensual such that citizens for traffic interrogation offenses must be informed the officer when clearly by detaining are “free to a valid they legally go” after detention before officer to engage any interrogation. consensual attempts
The U.S. Court line Supreme rejected bright prerequi- site, however, and the Ohio Court’s vacation Supreme reversed of the defendant’s conviction. The Court that whether explained illegally has been seized for of the Fourth person purposes Amendment whether the actions of the officer depends upon during the encounter with the are “reasonable.” The person Court noted that the intent of the officer has no role subjective cause Fourth Amendment ordinary probable analysis. 806, States, 1769, Whren v. United 517 U.S. Citing (1996), L. 2d 89 the Court noted that the subjective Ed. make the continued detention of intentions of officer do not Rather, the Fourth Amendment. the defendant under Amendment for a valid consent Court stated that the Fourth test be and that voluntariness voluntary to search is that consent the cir- of fact to be determined from the totality is a question se rejected The Court use explicitly per cumstances. rale such the Ohio Court to Supreme as implemented the defendant was unreasonable whether detention of gauge and, therefore, illegal. bar, the facts the case at the Court of considered and concluded that Peters detained improperly this case The Court warning was issued. of Appeals that it was clear that Peters was
opined
attempting
exploit
the fact that it
was alone
nighttime, Ready
situation. Given
road,
and the
occurred off a dirt
consent
stop
the taint what the
was insufficient to
court considered
purge
The
illegal detention.
court held that absent
cause
probable
Ohio,
or reasonable
under
392 U.S.
88 S.
suspicion
Terry
(1968),
Ct.
As we described
Court affir
Robinette
Rather,
matively rejects this
se”
“per
understanding
Terry.
the determination of whether a
voluntarily
search is
is a
of fact
given
question
to be determined from the
totality
the circumstances
surrounding
of consent. Ohio v.
giving
Robinette, _ U.S.
_,
117 Ct.
Ed.
S.
136 L.
2d 347
end,
(1996) . To this
a trial
ruling
court’s
on a motion to sup
from determinations of reasonable
con
press, apart
duct
investigatory
cause to
warrant-
stops
probable
perform
*7
searches,
less
is to be
on
upheld
appeal unless its
findings
determination,
fact are
In
clearly
making
erroneous.
this
court does not
the evidence or
appellate
reweigh
resolve con
evidence, but, rather,
flicts in the
the trial court as
recognizes
the finder of fact and takes into consideration that it observed
940,
v.
251 Neb.
McCleery,
witnesses. State
“[D]o each of the negative questions. answered in to he if it would all with her if right Peters then asked be Ready trial, recall the searched her car. At Peters could not words with he she did have which but testified that not Ready responded, he Peters testified that searching Peters car. any objection Ready he would search the trunk first and that told like to Ready keys ignition. Ready went to out of retrieved get clutching from and returned to the trunk while keys ignition her purse. trunk, he he
Peters testified that after finished searching if Ready he could search her Peters could not purse. if he that Ready remember but recalled responded verbally, then handed him did Ready purse. Peters indicated that he not take the from but purse that she it to simply handed him without stated resistance. Peters that after Ready consented of her search car and she never attempted to revoke purse, her or consent asked that Peters search. sum,
In
the evidence
that
he
shows
Peters asked
if
Ready
could
her
search
vehicle and that
agreed to let Peters
Ready
search the vehicle. When
if
Peters asked
he
Ready
could search
her
she handed the
purse,
purse
him. There is no evidence
overtly
Peters
or
coerced
or
subtly
any
offered her
Prahin,
inducements to submit to the search. Cf. State v.
Prahin,
Neb.
Reversed remanded with directions. *8 White, C.J., dissenting. had
The for the detention this case expired. justification and tainted the pur- The continued detention was clearly consent for the search of the vehicle. ported I with the of the Court of agree opinion Appeals.
Mary Catering Management, Inc., Sheridan, appellee, H.
doing Grill, business as 1st Avenue Bar & appellants. Company, Milwaukee Insurance N.W.2d 110 11, 1997. July
Filed No. S-96-399.