State v. Allen

• Decision Date: 07 January 2005
• Docket Number: No. S-04-379.,S-04-379.
• Parties: STATE of Nebraska, appellee, v. Frederick ALLEN, appellant.
• Court: Nebraska Supreme Court

690 N.W.2d 582

269 Neb. 69

STATE of Nebraska, appellee, v. Frederick ALLEN, appellant.

No. S-04-379.

Supreme Court of Nebraska.

January 7, 2005.

Thomas C. Riley, Douglas County Public Defender, and Scott C. Sladek, for appellant.

Jon Bruning, Attorney General, and Jeffrey J. Lux, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

The issue presented in this appeal is whether evidence obtained as a result of a warrantless investigative traffic stop, conducted solely on the basis of inaccurate vehicle registration information transmitted to police by their dispatcher, should have been suppressed as the fruit of an unreasonable seizure which violated the Fourth Amendment.

BACKGROUND

During the early morning hours of May 23, 2003, Omaha police officers Jodi Sautter and Aaron Von Behren were patrolling the area of 33d Street and Creighton Boulevard in Omaha, Nebraska, in a marked cruiser. Sautter decided to request a registration check on a maroon minivan she was following. Using her radio, she contacted the dispatcher and "called out the numerics on the plate," stating "Nora, Henry, Nora 861" to designate Nebraska license plate No. NHN 861 displayed on the rear of the minivan. The dispatcher did not repeat the number to Sautter before responding that the plates were registered to a white Honda Accord. Upon hearing the dispatcher's report, the source of which is described in the record as a "computer system at the dispatcher station," Sautter stopped the minivan for the sole reason that "the plates didn't match the vehicle."

Approaching the minivan on foot, Sautter observed two occupants, a male driver later identified as Frederick Allen and a female passenger. Sautter informed Allen that she stopped him because the license plates did not match the vehicle he was operating and requested that he produce his operator's license, registration, and proof of insurance. Allen replied that the vehicle was owned by his girl friend and that he was unable to find the registration certificate in the vehicle. At that point, Sautter observed a beer container on the console of the minivan and detected the odor of alcohol. The officers asked Allen to exit the vehicle, and Von Behren administered field sobriety tests. Based upon the test results, the officers decided to transport Allen to police headquarters for processing on a driving under the influence charge. They conducted a pat-down search before placing Allen in the police vehicle and found a 4-inch blade in his trouser pocket. A backup officer who had arrived on the scene during the detention remained with the minivan to await the tow vehicle.

When Sautter arrived at police headquarters, she received a call from the backup officer advising her that the minivan's vehicle identification number matched the license plate numbers displayed on the vehicle. Sautter then contacted the dispatcher and advised her of the information received from the backup officer. The dispatcher determined that she had mistakenly run a check on plate No. NHN 864 instead of NHN 861, as Sautter had requested. Sautter reported the dispatcher's error to a police sergeant and noted it on her official report. While at the police station, Sautter ran an additional check on Allen's identification which disclosed that his operator's license was under suspension.

Allen was charged by information with operating a motor vehicle while his operator's license had been suspended or revoked in violation of Neb.Rev.Stat. § 60-6,196(6) (Cum. Supp. 2002), a Class IV felony. He filed a motion to suppress all evidence obtained as a result of the traffic stop on grounds that police "lacked sufficient probable cause to stop [his] vehicle and such detention was improper." The district court conducted a hearing on the motion, at which hearing Sautter testified to the facts summarized above.

In an order overruling the motion to suppress, the district court found that the traffic stop "was premised only upon the information provided by the dispatcher, which if true, constituted a traffic violation." The court determined that the actions of Sautter in stopping Allen's vehicle were "objectively reasonable and in good faith" and specifically declined to impute the dispatcher's error to Sautter because "[t]here was no evidence that the dispatcher had the powers of a law enforcement officer." The court reasoned that the purpose of the exclusionary rule would not be served by exclusion of the evidence obtained because there was no indication that Sautter was not acting reasonably in relying upon the information which she initially received from the dispatcher. In addition, the court found that after the vehicle had been stopped, Allen's failure to produce a registration and the evidence of alcohol use justified the officers' decision in detaining Allen further for field sobriety testing. The court found that Allen's performance on the field sobriety test and the discovery of the knife during the pat-down search furnished probable cause for his arrest.

At a stipulated bench trial, Allen preserved his objection to evidence obtained as a result of the traffic stop and renewed his motion to suppress, both of which were overruled. The district court found Allen guilty beyond a reasonable doubt and sentenced him to intensive supervised probation for a period of 2 years. Allen perfected this timely appeal, which we moved to our docket on our own motion pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state. See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995).

ASSIGNMENT OF ERROR

Allen assigns that the district court erred in overruling his motion to suppress.

STANDARD OF REVIEW

A trial court's ruling on a motion to suppress based on the Fourth Amendment, apart from determinations of reasonable suspicion to conduct investigative stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. The ultimate determinations of reasonable suspicion to conduct an investigative stop and probable cause to perform a warrantless search are reviewed de novo and findings of fact are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge. State v. Burdette, 259 Neb. 679, 611 N.W.2d 615 (2000).

ANALYSIS

We begin by noting that Sautter's radio request for a registration check does not present a constitutional issue. The provisions of both the Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution protect against unreasonable seizures. State v. Burdette, supra.

If there is no detention or seizure, these constitutional safeguards do not arise. See State v. Soukharith, 253 Neb. 310, 570 N.W.2d 344 (1997). No reasonable suspicion or probable cause was necessary for Sautter to request the registration check because the check itself did not require or involve a detention or seizure. See id.

However, a seizure occurred when Sautter stopped the vehicle operated by Allen and requested that he produce the registration. See State v. Burdette, supra.

Sautter acted without a search warrant. 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 the exigencies which justify their initiation. State v. Roberts, 261 Neb. 403, 623 N.W.2d 298 (2001). Acting without a warrant, police can constitutionally stop and briefly detain a person for investigative purposes if the police have a reasonable suspicion, supported by articulable facts, that criminal activity exists, even if probable cause is lacking under the Fourth Amendment. State v. Burdette, supra; State v. Anderson, 258 Neb. 627, 605 N.W.2d 124 (2000). An investigative stop of this nature is the least intrusive type of police-citizen encounter subjected to Fourth Amendment protection. Id. When further questions are created in an officer's mind, an investigative stop may be prolonged and the scope enlarged as circumstances require. State v. Soukharith, supra.

In this case, Allen argues that the investigative stop violated his Fourth Amendment rights because it was based entirely upon inaccurate information regarding the registration of the vehicle he was operating and that all evidence derived from the stop should therefore have been suppressed under the Fourth Amendment exclusionary rule. The State concedes that Sautter relied upon inaccurate information in stopping Allen, but argues that there was no police misconduct which would trigger application of the exclusionary rule. The State also argues that Sautter's actions were objectively reasonable and therefore within the good faith exception to the exclusionary rule first recognized in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Neither party disputes that had it been accurate, the information transmitted to Sautter by the dispatcher would have justified an investigative stop. See State v. Bowers, 250 Neb. 151, 548 N.W.2d 725 (1996) (police officer's observation of vehicle without license plates or in-transit tags is legitimate basis for reasonable, articulable suspicion justifying brief investigative stop).

The U.S. Supreme Court has held that the "wrong condemned by the [Fourth] Amendment is `fully accomplished' by the unlawful search or seizure itself." United States v. Leon, 468 U.S. at 906, 104 S.Ct. 3405, quoting United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). Inasmuch as "the Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands," the exclusionary rule "operates as a judicially created remedy designed to safeguard against future violations of Fourth Amendment rights through the rule's general deterrent effect."...