State v. Anderson

• Decision Date: 21 January 2000
• Docket Number: No. S-99-259.,S-99-259.
• Citation: 605 N.W.2d 124,258 Neb. 627
• Parties: STATE of Nebraska, appellee, v. Christopher D. ANDERSON, appellant.
• Court: Nebraska Supreme Court

605 N.W.2d 124

258 Neb. 627

STATE of Nebraska, appellee, v. Christopher D. ANDERSON, appellant.

No. S-99-259.

Supreme Court of Nebraska.

January 21, 2000.

Michael J. Hansen, of Berry, Kelley & Hansen, Lincoln, for appellant.

Don Stenberg, Attorney General, and Mark D. Raffety for appellee.

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

McCORMACK, J.

NATURE OF CASE

Appellant Christopher D. Anderson was convicted of possession of a controlled substance, i.e., marijuana, with intent to distribute, pursuant to Neb.Rev.Stat. § 28-416(1)(a) (Reissue 1995). Prior to trial, Anderson filed a motion to suppress the marijuana seized from his vehicle at the time of his arrest, alleging his rights were violated because he was unreasonably detained. The district court for Hamilton County, Nebraska, overruled Anderson's motion to suppress, from which he now appeals. On our own motion, we removed the matter to this court under our authority to regulate the caseloads of this court and the Nebraska Court of Appeals. We reverse the judgment and remand the cause for a new trial.

BACKGROUND

On August 27, 1997, Anderson was driving a white Dodge Intrepid eastbound on Interstate 80, near the Giltner interchange in Hamilton County, Nebraska. Anderson was stopped by Trooper Christopher M. Kolb of the Nebraska State Patrol and issued a violation card for failing to display a front and rear license plate on the vehicle he was driving. Anderson was then asked if he had any drugs or guns in the vehicle, and he responded that he did not. Kolb then asked Anderson for consent to search the vehicle, and Anderson refused. Anderson was then detained, and his vehicle was reviewed by a canine unit of the State Patrol. Upon the canine's alerting to the presence of drugs, Anderson's vehicle was searched and 2291/2 pounds of marijuana were found in the trunk. Anderson was arrested.

Anderson was charged with possession of a controlled substance, i.e., marijuana, with intent to deliver, pursuant to § 28-416(1)(a), and possession of marijuana without a tax stamp, pursuant to Neb. Rev.Stat. § 77-4309 (Reissue 1996). Prior to trial, Anderson filed a motion seeking to suppress at the trial any and all items of evidence seized from his person and from his vehicle at the time of his arrest. Anderson's motion to suppress alleged that the stop, detention, seizure, and search of his vehicle, and the subsequent arrest of Anderson violated his right to be free from unreasonable searches and seizures as guaranteed to him by the 4th and 14th Amendments to the U.S. Constitution and by article I, § 7, of the Nebraska Constitution.

On June 11, 1998, a suppression hearing was held. The State first called Kolb. Kolb testified that he is employed as a sergeant assigned to road operations with the State Patrol, has been employed with the State Patrol for over 15 years, and has been a sergeant since November 1992. On the date Anderson was stopped, Kolb was working traffic patrol on Interstate 80.

Kolb testified that just before stopping Anderson, Kolb's vehicle was east of the Giltner interchange on Interstate 80, sitting on the median as Kolb observed traffic. Kolb saw a white car traveling eastbound on the Interstate and noticed that the car did not have a front license plate. When the car went by Kolb's location, Kolb thought he saw an Ohio license plate on the rear of the car. Kolb pulled into traffic and proceeded east on the Interstate to catch up with the car and confirm that the car had an Ohio license plate. Once Kolb confirmed that the car did have an Ohio license plate, he stopped the car for failing to display two license plates. Kolb testified he was familiar with the fact that Ohio requires two license plates to be displayed, one on the front and one on the rear of the car.

Once the car pulled over, Kolb contacted the driver, who was Anderson, and asked him for his driver's license and vehicle registration. Kolb testified that he initially noted that he could see Anderson's carotid artery pulse beating through the skin of his neck. Kolb testified that he could not recall ever before seeing someone's pulse beating in their neck to the degree Anderson's was. In response to Kolb's request for Anderson's driver's license and registration, Anderson first produced a driver's license from Ohio. As Anderson searched for the vehicle registration, Kolb testified that Anderson's hands were visibly shaking and that initially an insurance card was produced by Anderson and handed to Kolb. Kolb testified that he had seen Anderson thumb past the registration initially while Anderson was looking through several papers. Kolb gave the insurance card back to Anderson and again requested the vehicle registration. Anderson went through the papers that he had in his hands again. Anderson again passed over the registration while looking through the papers. Kolb testified that Anderson's hands were still visibly shaking and that eventually Kolb pointed out the registration to Anderson.

Kolb noted that both the license and registration had the name "Christopher Anderson" on them, and Kolb then began to tell Anderson why he had been stopped. During this conversation, Kolb asked Anderson where he was coming from. Kolb testified that Anderson hesitated for several seconds and then said that he had stayed all night in North Platte. Kolb then asked Anderson where he had initiated his trip, not where he had stayed the night before. Anderson responded that he had initiated his trip in Albuquerque, New Mexico. Anderson went on to indicate that he had visited a sister there and had stayed about 2 days. Kolb testified that based on his experience, he found it odd that Anderson hesitated before answering the initial question and found it unusual that Anderson answered the initial question with where he had spent the previous night rather than from where his trip had initiated.

Kolb testified that he next told Anderson to remain seated in his car. Kolb then went back to his patrol car and filled out a violation card and also ran a driver's license status check and a criminal history check. Kolb testified that these were normal activities performed during a traffic stop. The check revealed that the driver's license was valid and that Anderson had no criminal history. Kolb then returned to Anderson's vehicle, gave Anderson back his driver's license and registration, and explained the violation card to him and had him sign it.

Kolb testified that when he returned to Anderson's car, he could still see the pulsing in Anderson's neck. He also observed Anderson's hands continue to shake, and Anderson continued to be nervous, even after it was explained to him that he was being given only a violation card. A violation card carries no penalty, but requires the driver of the vehicle to correct the defect that the trooper has marked on the card. Kolb testified that in his experience, normally when a driver receives a violation card instead of a citation, it usually has a "calming effect" on the driver once the driver understands it is not a citation.

After Anderson signed the violation card, Kolb gave him a copy and told Anderson that he was not under arrest or in custody. Kolb then asked Anderson if he was carrying any illegal drugs or guns, specifically naming off marijuana, cocaine, and methamphetamine. Anderson indicated "no" to each drug that was named by Kolb. Kolb testified that at this point, Anderson would not look at him and stared straight ahead, not making eye contact with Kolb. Before Kolb had mentioned narcotics, Anderson had maintained eye contact with Kolb.

Kolb testified that he next asked Anderson for permission to search his person, his vehicle, and the vehicle's contents. Anderson initially asked whether the search would be limited to the backseat area of the car, and Kolb clarified that he was asking permission to search Anderson's person, as well as the entire vehicle and its contents. Anderson then refused to consent to a search of his vehicle. Kolb testified that during this exchange, Anderson exhibited the same nervous tendencies that Kolb had initially observed.

Kolb informed Anderson that based upon his observations and the conversation the two had had, Kolb was going to call a canine unit to walk around the exterior of Anderson's vehicle. Kolb also told Anderson to remain in his car while Kolb called the canine unit. Anderson remained in his vehicle while waiting for the canine unit to arrive. Trooper Greg Goltz arrived at the location with the narcotics canine within a few minutes of being called. Just before Goltz arrived, Trooper George Scott also arrived at the location.

Goltz also testified at the suppression hearing on behalf of the State. Goltz testified that when he arrived at the location where Kolb had stopped Anderson, he first spoke with Kolb about the situation. Goltz then asked Anderson, who was still seated in his vehicle, to roll up the windows and step out of the vehicle. Goltz testified that he walked the canine around Anderson's vehicle, starting at the front of the vehicle and proceeding around to the driver's side. When Goltz and the canine reached the driver's side back door, the canine started to alert to the odor of a controlled substance, and when the canine got to the trunk of the vehicle, the canine aggressively alerted. Goltz then asked Anderson if he was responsible for everything in the vehicle, and Anderson responded that he was. Goltz then obtained the key to the trunk from Anderson and opened it, finding four duffelbags containing large cellophane-wrapped bundles of marijuana. Goltz testified that Anderson was then placed under arrest.

The trial court overruled Anderson's motion to suppress, finding that in consideration of all the circumstances that had occurred, Kolb had a reasonable and articulable suspicion that Anderson was engaged in criminal behavior.

Anderson waived a jury...