Frederick C., In re

• Decision Date: 20 April 1999
• Docket Number: No. A-98-725,A-98-725
• Citation: 8 Neb.App. 343,594 N.W.2d 294
• Parties: In re Interest of FREDERICK C., a child under 18 years of age. State of Nebraska, Appellee, v. Frederick C., a minor child, Appellant.
• Court: Nebraska Court of Appeals

Page 294

594 N.W.2d 294

8 Neb.App. 343

In re Interest of FREDERICK C., a child under 18 years of age.

State of Nebraska, Appellee, v. Frederick C., a minor child, Appellant.

No. A-98-725.

Court of Appeals of Nebraska.

April 20, 1999.

Syllabus by the Court

1. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable Cause: Appeal and Error. A trial court's ruling on a motion to suppress, 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. In making this determination, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses.

2. Juvenile Courts: Criminal Law. An adjudication under Neb.Rev.Stat. § 43-247(2) (Supp.1997) is not a criminal proceeding.

3. Criminal Law: Investigative Stops: Police Officers and Sheriffs: Probable Cause. The test to determine if an investigative stop was justified is whether the police officer had a reasonable suspicion, based on articulable facts, which indicated that a crime had occurred, was occurring, or was about to occur and that the suspect might be involved.

4. Motor Vehicles: Investigative Stops: Police Officers and Sheriffs: Probable Cause. When a police officer observes a traffic offense, regardless of how minor, the officer has probable cause to stop the driver of the vehicle.

5. Convictions: Sentences: Ordinances: Judicial Notice: Appeal and Error. When a defendant appeals a conviction and sentence under a municipal ordinance, claiming insufficiency of the evidence and excessiveness of the sentence, an appellate court's consideration of the assignments of error requires examination of the specific ordinance involved, and an appellate court will not take judicial notice of an ordinance not in the record but assumes that a valid ordinance creating the offense charged exists, that the evidence sustains the findings of the trial court, and that the sentence is within the limits set by the ordinance.

6. Police Officers and Sheriffs: Ordinances: Convictions: Judicial Notice Appeal and Error. When police contact with an accused is precipitated by the accused's alleged violation of a municipal ordinance which contact, in turn, leads to the accused's conviction on unrelated criminal charges, an appellate court will not take judicial notice of the ordinance not in the record, but assumes that a valid ordinance creating the offense triggering the contact with law enforcement exists and that the evidence offered by the State is sufficient to support the officer's contact with the accused.

7. Constitutional Law: Search and Seizure. The Fourth Amendment test for a valid consent to search is that the consent be voluntary.

8. Police Officers and Sheriffs: Search and Seizure. Whether a consent to search is voluntary is a question of fact to be determined from the totality of the circumstances surrounding the consent to search. Likewise, a court's determination as to whether the compliance with an officer's request is voluntary is a question of fact.

9. Appeal and Error. An appellate court reviews questions of fact under the clearly erroneous standard.

10. Constitutional Law: Criminal Law: Miranda Rights: Self-Incrimination: Waiver. The Fifth Amendment protection of the privilege against self-incrimination requires that individuals be given certain warnings regarding their rights and that a voluntary, knowing, and intelligent waiver of those rights must be made before incriminating responses to custodial interrogation can be admissible in a criminal proceeding.

11. Miranda Rights: Right to Counsel: Police Officers and Sheriffs. Invocation of the Miranda right to counsel requires that a suspect unambiguously request counsel. This means that the suspect must articulate in a sufficiently clear manner his or her desire to have counsel present so that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.

12. Miranda Rights: Self-Incrimination: Police Officers and Sheriffs. The clear articulation rule as held in Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), is applicable to invocations of the Miranda right to remain silent. A suspect must articulate h is or her desire to cut off questioning with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be an assertion of the right to remain silent. If the accused's statement is ambiguous or unequivocal, the police officer has no duty to clarify the suspect's intent, and the officer may proceed with the interrogation.

Thomas C. Riley, Douglas County Public Defender, and Margaret M. Maloney, Omaha, for appellant.

James S. Jansen, Douglas County Attorney, and Robert A. Mooney, for appellee.

BEFORE: MUES, INBODY, and CARLSON, Judges.

I. INTRODUCTION

INBODY, J.

This case involves the appeal of an adjudication of Frederick C. pursuant to Neb.Rev.Stat. § 43-247(2) (Supp.1997) for possession of a controlled substance, to wit, crack cocaine. For the reasons set forth herein, we affirm.

II. STATEMENT OF FACTS

On February 17, 1998, at approximately 6:45 p.m., Omaha police officers Joseph B. Baudler and Steve Jennum conducted a traffic stop of a vehicle near 30th and Lake Streets in Omaha, Douglas County, Nebraska. The reason for the stop was that the front passenger portion of the vehicle's windshield was shattered, which caused Officer Baudler to believe that the vehicle was in violation of either a state traffic code or an Omaha municipal ordinance due to the driver's vision being obstructed. There were three people inside the vehicle: the driver; a front seat passenger, Stephen C.; and Frederick, who was a back seat passenger.

As the officers approached the vehicle, Officer Baudler observed Stephen, the front seat passenger, smoking a cigarette. Officer Baudler determined that Stephen was a minor and ordered him to step out of the vehicle. After Stephen exited the vehicle, Officer Baudler observed a torn plastic baggie, which he believed to contain marijuana residue, on the front passenger seat. For the officer's safety, Officer Baudler conducted a pat-down search of Stephen, which revealed no weapons. Officer Baudler then ordered Frederick out of the vehicle and conducted a pat-down search of his person, again finding no weapons. Officer Baudler then began talking to Frederick, who was mumbling his answers. Officer Baudler believed that Frederick was hiding something in his mouth, which Baudler suspected was drugs. Officer Baudler asked Frederick to open his mouth. When Frederick complied, Officer Baudler observed a plastic baggie protruding from the sides of Frederick's tongue. Officer Baudler grabbed Frederick and "told" or "asked" him to spit the item out of his mouth. Frederick complied, spitting out a plastic baggie containing crack cocaine. Frederick was then placed under arrest and transported to the Omaha Police Division where he was advised of his Miranda rights, which he waived.

During the interview, Frederick initially sat quietly and did not respond to Officer Baudler's questions. However, later in the 5- to 10-minute interview, Frederick stated that he did not use cocaine, but that he had been selling cocaine for approximately 2 months. Further, he stated that he had found the crack cocaine that he had on him lying on the ground and that the money that he had with him had been attained from selling drugs. At no time during the interview did Frederick give any indication that he did not wish to speak to Officer Baudler, nor did Frederick request counsel.

On February 20, 1998, an adjudication petition was filed alleging that Frederick was a child within the meaning of § 43-247(2) because he had committed the criminal offense of possession of a controlled substance, to wit, crack cocaine, in violation of Neb.Rev.Stat. § 28-416(3) (Reissue 1995). On March 2, the juvenile court entered a plea of denial on Frederick's behalf.

On May 26, 1998, Frederick filed a motion to suppress the physical evidence and his statement allegedly obtained in violation of his constitutional rights. A hearing was held on May 29, and facts as previously set forth were presented to the court. From the bench, the court denied Frederick's suppression motion, finding that the initial stop of the vehicle was reasonable because Officer Baudler stopped the vehicle for having a partially shattered windshield which obstructed the driver's vision. Further, once the vehicle was stopped, Officer Baudler observed a minor smoking a cigarette in violation of the law, which led him to ask the minor to exit the vehicle. When the minor exited the vehicle, Officer Baudler observed, in plain view, a baggie containing marijuana residue, causing Officer Baudler to have a suspicion about other drugs being present in the vehicle. Further, the court found that Frederick voluntarily opened his mouth when asked to do so by Officer Baudler and that that is when Officer Baudler viewed the plastic baggie under the sides of Frederick's tongue.

Finally, with regard to Frederick's initial silence during the interrogation, the juvenile court found that the fact that the interrogation lasted only 5 to 10 minutes was important because "[i]t would not surprise me that upon silence the officer would ask a few times, would he [Frederick] talk to me [Officer Baudler]." An order denying Frederick's motion to suppress, not including any factual findings was filed with the clerk of the district court on June 1.

A hearing on the State's adjudication petition was held on June 12, 1998. Frederick renewed his motion to suppress, which was again denied by the juvenile court. The State then provided a factual basis,...