State v. Rocha, S-16-009.
| Decision Date | 03 February 2017 |
| Docket Number | No. S-16-009.,S-16-009. |
| Citation | 890 N.W.2d 178,295 Neb. 716 |
| Parties | STATE of Nebraska, appellee, v. Eric O. ROCHA, Sr., appellant. |
| Court | Nebraska Supreme Court |
Todd W. Lancaster, of Nebraska Commission on Public Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.
Wright, Miller–Lerman, Cassel, Stacy, Kelch, and Funke, JJ.
Eric O. Rocha, Sr., appeals his convictions of possession of a controlled substance, methamphetamine, and of driving under suspension. We conclude that there was insufficient evidence for his conviction of driving under suspension and vacate that conviction. Because we find all of his other assignments of error to be either without merit or harmless error, we affirm the judgment of the district court in all other respects.
On January 17, 2015, a Scottsbluff Police Department officer, William Howton, was dispatched on a call of suspicious activity. The caller reported that a male individual kept coming up to the door and asking for the caller's son, who was not at home. The individual's vehicle was parked in the alleyway.
Howton drove toward the scene. About a block from the house, he observed a vehicle matching the description given to Howton, traveling in the opposite direction. He turned around, and before he reached the vehicle, it had pulled over and parked. The driver, Rocha, and his passenger, Constance Trejo, exited the vehicle. Howton pulled up behind the parked vehicle. He approached Rocha and instructed Trejo to step back by his police car.
Howton noticed that Rocha appeared to be "really nervous" and was putting his hands in his pockets, trying to text on his cell phone. Howton asked for and obtained Rocha's consent to search his person and conducted a search. In Rocha's front sweatshirt pocket, he found residue of some green leafy substance that appeared to be marijuana. Howton checked to see if there were any warrants for Rocha's arrest or a suspended license. He was told that Rocha's license was suspended and arrested Rocha for driving under suspension. Rocha was handcuffed and placed in the back of a police car.
Another police officer who had arrived on the scene questioned Trejo. The officer obtained consent to search Trejo's person and purse and conducted the search. A capsule containing what appeared to be marijuana, a glass smoking device with what appeared to be burnt marijuana, and a black digital scale with white crystal-like residue were found in the purse. According to the officer, the white residue on the scale appeared to be methamphetamine. Trejo was arrested and placed in the back of a police car.
After Rocha's arrest, Howton searched the vehicle. He did not request consent from Rocha for the search of the vehicle. Howton's basis for the search was the "narcotics that were located on [Rocha] and the search of ... Trejo." Howton planned on impounding the vehicle after Rocha's arrest, but conceded that the search was not an inventory search.
Between the vehicle's center console and driver's seat, Howton found a small canister with a cover design like a Wyoming license plate and the word "GANGSTA" on it. In the canister were found two glass vials and two small plastic bags containing a crystal-like substance later confirmed to be methamphetamine. Between the center console and the driver's seat was a plastic bag containing what appeared to be marijuana and a glass pipe with what appeared to be burnt marijuana on it.
A shaving-kit-style bag was found in the center console of the vehicle. Inside the bag was a clear glass pipe, the type often used for smoking methamphetamine or other narcotics. Also inside the bag were two digital scales, a blue pouch with two plastic bags containing what appeared to be marijuana, rolling papers, and a red plastic container with what appeared to be marijuana.
Howton also found a vehicle registration from Wyoming in the name of an individual who was neither Rocha nor Trejo. It was reported that Rocha may have had the vehicle because the registration's owner had been arrested in Wyoming.
After his arrest, Rocha was taken to the Scottsbluff Police Department for an interview, which was videotaped. Before the interview, Howton advised Rocha of his Miranda1 rights, which he waived in writing.
Rocha initially denied knowing about the canister found in the vehicle. He later told Howton in the following exchange that he had loaned his cousin $700 and that she gave him "some stuff" as collateral:
At trial, Rocha's attorney argued that while he may have received the Wyoming canister as collateral, he did not know that it contained methamphetamine.
During the interview, Howton made several statements to Rocha that the methamphetamine found in the vehicle belonged to Rocha, that Howton could prove it belonged to Rocha, and that Rocha was not being honest with Howton. In Rocha's amended motion in limine, he objected to the admission of several portions of the interview recording on the basis that it constituted impermissible opinion testimony as to whether the methamphetamine belonged to Rocha and whether Rocha was being honest. He also objected on the basis of rule 403.2 While the court sustained other portions of the motion in limine based on other grounds, the motion was denied with regard to the portions of the interview in which Howton made these statements about Rocha's ownership of the drugs and his honesty. Howton's statements and Rocha's responses include the following:
In its order denying these portions of the motion in limine, the court explained that "[t]his is an interview technique best explained by Howton at trial." Before the above portions of the interview were admitted at trial and before the video was played to the jurors, the court gave the following limiting instruction:
You are about to see and hear a recording of an interview with ... Rocha ... and ... Howton. I have ordered parts of the recording to be deleted for efficiency purposes and because the deleted portions are not relevant for purposes of this trial. You are not to concern yourself concerning the contents of the deleted portions, consider them at all in your deliberations, or speculate as to their content. During the interview you will hear assertions by ... Howton that he knows the alleged controlled substance[ ] belongs to ... Rocha ... and that he does not believe ... Rocha ... is being honest with him. These statements are part of interview techniques and should not be considered as substantive evidence in any way in determining if ... Rocha [was in] possession of the alleged controlled substance, nor should they be given any weight when considering the truthfulness of any statements made by ... Rocha....
At trial, Rocha objected to the playing of the video, which objection was overruled. And an instruction substantially similar to the one given before the playing of the video was included in the jury instructions at the end of the trial.
Before trial, Rocha moved to suppress any evidence referring to the search of the vehicle and any evidence found or statements made as a result thereof. The court denied Rocha's motion. The court found that the initial encounter between Howton and Rocha was not a Fourth Amendment seizure because Rocha had already parked the vehicle and begun exiting with Trejo before Howton pulled up behind them. The court said it was a "First–Tier Police–Citizen Encounter."
The court concluded that the police had probable cause to believe that contraband could be located in the vehicle based on the suspected drugs and drug paraphernalia found on Rocha and Trejo. The court agreed with Rocha's argument that under Arizona v. Gant ,3 the search was not permissible as a search incident to lawful arrest because Rocha was arrested for driving under suspension. But the court concluded that the search was permissible as a search under the " 'automobile exception' " to the warrant requirement because there was probable cause to search the vehicle and the vehicle was readily mobile. The court denied Rocha's ...
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