State Of Neb. v. Smith
| Decision Date | 28 May 2010 |
| Docket Number | No. S-09-375.,S-09-375. |
| Citation | 782 N.W.2d 913,279 Neb. 918 |
| Parties | STATE of Nebraska, appellee,v.William E. SMITH, appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error, but whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.
2. Constitutional Law: Search and Seizure. To determine whether an individual has an interest protected by the Fourth Amendment to the U.S. Constitution and Neb. Const. art. 1, § 7, one must determine whether the individual has a legitimate or justifiable expectation of privacy in the invaded place. Ordinarily, two inquiries are required. First, the individual must have exhibited an actual (subjective) expectation of privacy, and second, the expectation must be one that society is prepared to recognize as reasonable.
3. Constitutional Law: Search and Seizure. An expectation of privacy is reasonable if it has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.
4. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution protect individuals against unreasonable searches and seizures by the government.
5. Constitutional Law: Search and Seizure. The constitutional protection against an unreasonable search and seizure proscribes only governmental action and is inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with the participation or knowledge of any governmental official.
6. Constitutional Law: Search and Seizure. A search is subject to the constitutional safeguard against an unreasonable search if the search is a joint endeavor involving a private person and a state or government official.
7. Search and Seizure. In determining what is a joint endeavor between a private person and a government official, it is not essential that the government official be involved in the endeavor at the very outset.
8. Search and Seizure. The question whether a search is a private search or a government search is one that must be answered taking into consideration the totality of the circumstances.
9. Police Officers and Sheriffs: Public Health and Welfare. A police officer on “off-duty” status is obligated to preserve the public peace and to protect the lives and property of the public in general, as police officers are considered to be under a duty to respond as police officers 24 hours a day.
10. Police Officers and Sheriffs. A police officer may provide security to a commercial establishment while off duty and make arrests or take other authoritative action in connection therewith.
11. Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions, which must be strictly confined by their justifications. The warrantless search exceptions include searches undertaken with consent, searches justified by probable cause, searches under exigent circumstances, inventory searches, searches of evidence in plain view, and searches incident to a valid arrest.
12. Warrantless Searches: Search and Seizure: Proof. In the case of a search and seizure conducted without a warrant, the State has the burden of showing the applicability of one or more of the exceptions to the warrant requirement.
13. Probable Cause: Words and Phrases. Probable cause escapes precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.
14. Probable Cause: Words and Phrases. Probable cause is a flexible, commonsense standard. It merely requires that the facts available to the officer would warrant a person of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.
15. Probable Cause: Appeal and Error. Appellate courts determine probable cause by an objective standard of reasonableness, given the known facts and circumstances.
16. Police Officers and Sheriffs: Search and Seizure: Warrantless Searches. Under the “plain feel” doctrine, a law enforcement officer may make a warrantless seizure of contraband detected during a lawful pat-down search.
17. Probable Cause. Probable cause to search requires that the known facts and circumstances are sufficient to warrant a person of reasonable prudence in the belief that contraband or evidence of a crime will be found.
18. Search and Seizure. The legality of a seizure under the “plain feel” doctrine depends upon the incriminating character of an object being immediately apparent.
19. Search and Seizure: Probable Cause. A search or seizure of a person must be supported by probable cause particularized to that person.
20. Search and Seizure: Probable Cause. The fact that a person belongs to a class which contains some members who violate the law does not create probable cause to search that person.
21. Search and Seizure. Once given, consent to search may be withdrawn. Withdrawal of consent need not be effectuated through particular “magic words,” but an intent to withdraw consent must be made by unequivocal act or statement.
22. Police Officers and Sheriffs: Search and Seizure. If equivocal, a defendant's attempt to withdraw consent is ineffective and police may reasonably continue their search pursuant to the initial grant of authority.
23. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of “objective” reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect?
24. Police Officers and Sheriffs: Search and Seizure. Conduct withdrawing consent must be an act clearly inconsistent with the apparent consent to search, an unambiguous statement challenging the officer's authority to conduct the search, or some combination of both.
25. Search and Seizure. A consensual search is circumscribed by the extent of the permission given, as determined by the totality of the circumstances.
26. Police Officers and Sheriffs: Search and Seizure. An officer conducting a consensual search has no authority to command the person being searched to stop interfering with the search.
Kevin J. Oursland, Lincoln, for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
William E. Smith appeals his conviction for possession of a controlled substance with intent to deliver. Smith argues that the district court erred in denying his motion to suppress evidence of illegal drugs that was discovered in his pocket during a pat-down search outside a nightclub. There are two issues presented in this appeal: whether the evidence obtained was the product of a search within the meaning of the Fourth Amendment and, if so, whether the search was reasonable under the Fourth Amendment.
We have examined the record and find no clear error in the historical factual findings of the district court,1 nor does either party take issue with the court's factual findings. The pertinent historical facts are as follows.
Force Protection Services, a private security company owned and operated by Joseph South, provided security outside the Manhattan Club (the Club), a dance club in Omaha, Nebraska. Pursuant to a contract with the Club, Force Protection Services was to conduct a pat-down search of every patron for narcotics or weapons before they entered the Club. At the entrance of the Club is a sign stating that patrons are subject to a pat down and search. It is not uncommon for people in line, who observe the pat down, to get out of line and go back to their car. In addition to Force Protection Services, supplemental police officers are present, pursuant to an agreement with the Club.
On the night of the arrest, the Club was featuring the performance of a local diskjockey, and South and Calvin Harper, a uniformed and armed off-duty police officer, were providing security outside the Club. Smith and his cousin walked up to the Club's entrance. After Smith's cousin was patted down and permitted entry, he turned to Smith and said, “[S]orry, I forgot they pat down.” South started to pat down Smith and felt a bulge in Smith's left front pocket.
South started to place his hand toward Smith's pocket and asked Smith twice what was in his front pocket, but Smith did not answer. Smith grabbed South's wrist to prevent South from reaching into his pocket. South instructed Smith to keep his hands in the air. South reached for Smith's pocket again, and again, Smith pushed South's hand away. Harper intervened at that point and told Smith to keep his hands in the air. Harper placed his arm under Smith's wrist, and South reached into Smith's pocket. South pulled out three cellophane bags containing pills that appeared to be “MDMA,” also known as Ecstasy, a Schedule I controlled substance.2 South handed the bags to Harper, who completed the search and arrested Smith.
The State filed an information charging Smith with possession of a controlled substance with intent to deliver.3 Smith filed a motion to suppress alleging that he...
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