State v. Bowman
| Decision Date | 16 December 2014 |
| Docket Number | No. A-14-029.,A-14-029. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. SAMUEL D. BOWMAN, APPELLANT. |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Dawson County: JAMES E. DOYLE IV, Judge. Affirmed.
Chad J. Wythers, of Berry Law Firm, for appellant.
Jon Bruning, Attorney General, and Melissa R. Vincent for appellee.
Following a traffic stop, Nebraska State Trooper Bethany Bauer seized two packages of cocaine contained inside a spare tire located underneath a rental minivan that Samuel D. Bowman was driving eastbound on Interstate 80. Bowman filed several pretrial motions to suppress the evidence of the seized cocaine, which were overruled by the district court for Dawson County. Following a jury trial, Bowman was convicted of possession with intent to distribute a controlled substance (cocaine), weighing 140 grams or more, and was sentenced to a minimum and maximum of 20 years' imprisonment. On appeal, Bowman argues evidence of the cocaine should have been suppressed for a variety of deficiencies in the search and seizure leading to the discovery of the cocaine. Bowman also argues there were deficiencies during trial, namely, that the State's chemist did not provide adequate foundation that the scale she used to weigh the seized cocaine was calibrated and that during closing arguments, the State improperly referred to Bowman's silence and request for an attorney as evidence of his guilt. For the following reasons, we affirm.
On November 28, 2011, Bauer initiated a traffic stop of a silver minivan traveling eastbound on I-80. As Bauer approached the passenger side of the minivan, she observed that all of the back passenger seats were gone except for one and that there was a "doughnut" spare tire (doughnut tire) in the back cargo area, which she testified was "odd" because it was not where a spare tire would be in that type of minivan. Bauer also observed duffelbags and a milk crate with mechanical supplies, including gas or antifreeze, inside the minivan.
Bauer made contact with the occupants of the vehicle. Bowman was driving the minivan, and Donzell Williams was in the front passenger seat. Bauer advised Bowman that she stopped him for driving in excess of the posted speed limit, and she asked Bowman for his driver's license, registration, and proof of insurance. Bowman informed Bauer that the minivan was a rental vehicle and provided her with a rental agreement and his Nevada driver's license. The rental agreement reflected the minivan was rented in Las Vegas, Nevada, on November 26, 2011, and was due back in Las Vegas on November 28, by 10 p.m. (within a few hours of the traffic stop). Bauer found this significant because at the time she stopped the minivan, it was still traveling eastbound. Bauer collected Bowman's driver's license and the rental agreement, and she asked him to come to her patrol car. Bowman complied.
Bauer began entering Bowman's information into the patrol car's ticket writing system to give him a warning for speeding. Bowman was seated in the front passenger seat of Bauer's patrol car. As Bauer was writing the warning, she began asking Bowman questions about his trip. Bowman first told Bauer that he and Williams, who he called his brother, were traveling to Chicago, Illinois, to pick up Williams' children, but later he told Bauer they were traveling to Chicago for a birthday party for one of Williams' children who was turning 5 years old. Bauer requested that dispatch check the status of Bowman's driver's license and run a check of his criminal history. Bauer was advised that Bowman had a valid driver's license, but that he had a positive criminal history for drug offenses.
Bauer testified that she could not complete the warning without entering all of the minivan's information into the system, so she returned to the minivan to locate its registration. Bauer made contact with Williams, who was still seated in the minivan's front passenger seat, and asked him where they were going. Williams replied they were going to Chicago to see family and that one of his children was turning 6 years old. Williams also spontaneously stated that his mother was a "cop" with the Chicago Police Department and that he and Bowman were brothers.
Bauer returned to her patrol car to check for warrants and criminal history for Williams. Bauer had noticed some discrepancies between Bowman's and Williams' statements, so she tried to clarify with Bowman. Bauer asked Bowman what his mother did for work, and he replied the family they were visiting did not have jobs, which conflicted with Williams' statement that their mother was a "cop." Bowman then clarified that he and Williams were not actually brothers, but called one another brothers because they have known each other for a long time.
Bauer completed the warning, printed it off, and handed it to Bowman. Bauer also returned to Bowman the minivan's paperwork and Bowman's and Williams' driver's licenses. Bauer explained to Bowman that he did not have to do anything further for the warning. Bauertestified that as Bowman grabbed the patrol car's door handle to open the door, she asked him if she could ask him a few more questions, if he had time. According to Bauer, Bowman pulled the door shut and continued to speak with her.
Bauer began asking Bowman a series of questions regarding whether he had guns, weapons, or large amounts of cash. Bauer testified that Bowman's demeanor changed when she began asking about drugs and that he turned away from her and stopped looking her in the eye. Bauer then asked Bowman if he would consent to a search of the minivan and its contents. According to Bauer, Bowman verbally replied yes. Bauer then produced a written voluntary search consent form, which Bauer testified Bowman signed.
Bauer told Bowman that he could stay in the front seat of her patrol car during the search because it was a cold and windy day and that he could honk the horn to get her attention if he wished to discontinue the search. Bauer tucked the written consent form in the visor on the driver's side of the patrol car. Bauer called for assistance and returned to the minivan. Bauer told Williams that Bowman had given her consent to search the vehicle and its contents. Williams was cooperative and gave permission to search his bag. Bauer instructed Williams to take a seat ahead of the minivan in the "road ditch" during the search.
Investigator Mike Dowling arrived to assist Bauer. During the search, Dowling stood at the passenger-side door of Bauer's patrol car to observe Bowman. Nebraska State Trooper Ken Moody arrived shortly thereafter and assisted Bauer with the search. Bauer testified she observed a doughnut tire laying in the back of the minivan, without being in a container or tire compartment. Moody also testified that it was "very odd" that there was a doughnut tire laying in the cargo area of the minivan. Moody knew someone who had the same type of minivan and knew the spare tire carrier was underneath the vehicle. Bauer looked underneath the vehicle and saw there was another tire inside the spare tire carrier.
Bauer observed that the tire inside the carrier was a standard-sized tire, not a doughnut tire. Moody observed that the tire did not seem to fit or belong in the carrier. Both troopers observed that the tire appeared to be older because the tread was thin. Bauer observed that there was a chunk of tread missing and that the tire had chalk writing on it. Neither Bauer nor Moody believed the tire was roadworthy. Bauer asked Bowman why he had two spare tires, and he replied he asked the rental company to provide him with another tire for the trip because he did not feel a doughnut tire was sufficient for travel. Bauer testified the information given to her by Bowman seemed suspicious given the condition of the tire.
Moody testified that when he bounced the tire, he felt a "second bounce" or the vibration of something else inside the tire.
Bauer retrieved a stethoscope and mallet from her patrol car to perform an "echo" or "ping" test on the tire, which test she had learned during a drug interdiction course. Bauer testified the echo test was the most telling thing for her that there was possibly contraband inside the tire and that she then determined the tire needed further inspection. The troopers had no means of separating the tire from the rim on I-80, so Bauer transported Bowman and the tire to a local auto dealership in Lexington, Nebraska, approximately 3 miles away from the location where Bowman was initially stopped. Moody stayed at the scene with Williams.
The tire was taken apart at the tireshop, and inside the wheel were two black plastic wrapped items. Inside the black plastic packages were four bags with white powdery substancesinside, which Bauer believed was cocaine. Bauer then advised Bowman he was under arrest, advised him of his Miranda rights, and asked if he wished to make any statements. Bowman shook his head no. Bauer transported Bowman to the jail. During the booking process as Bauer went through Bowman's property, Bauer discovered the written consent form, crumpled and torn, inside the minivan's rental papers.
Bauer testified that although her patrol car is equipped with a video and audio recording device that is automatically activated when the emergency light bar is activated, there was no audio recording of the traffic stop from her vehicle. Bauer's video recording device did record the entire stop, and Moody's audio and video recording device recorded the stop after he arrived at the scene. Bauer testified that she must have accidentally turned off her audio earlier in the day. Bauer testified that the rental minivan and spare tire were released...
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