State v. Chitty, S-96-334

• Decision Date: 16 January 1998
• Docket Number: No. S-96-334,S-96-334
• Citation: 253 Neb. 753,571 N.W.2d 794
• Parties: STATE of Nebraska, Appellee, v. Rodney R. CHITTY, Appellant.
• Court: Nebraska Supreme Court

Page 794

571 N.W.2d 794

253 Neb. 753

STATE of Nebraska, Appellee, v. Rodney R. CHITTY, Appellant.

No. S-96-334.

Supreme Court of Nebraska.

Jan. 16, 1998.

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. Motions to Suppress: Probable Cause: Appeal and Error. In ruling on a motion to suppress, once the determinations of reasonable suspicion and probable cause have been reviewed de novo, an appellate court reviews the trial court's findings of fact, giving due weight to the inferences drawn from those facts by the trial judge.

3. Constitutional Law: Search and Seizure. The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and voluntariness is a question of fact to be determined from all the circumstances.

4. Police Officers and Sheriffs. A court's determination as to whether compliance with an officer's request is voluntary is a question of fact.

5. Search and Seizure: Duress. To be effective, a consent to search must be a free and unconstrained choice and not the product of a will overborne. The consent must be given voluntarily and not as a result of duress or coercion, whether express, implied, physical, or psychological.

Jerry J. Fogarty, Deputy Hall County Public Defender, for appellant.

Don Stenberg, Attorney General, and Joseph P. Loudon, Lincoln, for appellee.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

WRIGHT, Justice.

The State of Nebraska petitions for further review of a Nebraska Court of Appeals decision which reversed a district court's conviction of Rodney R. Chitty for possession of a controlled substance (methamphetamine). See State v. Chitty, 5 Neb.App. 412, 559 N.W.2d 511 (1997).

STANDARD OF REVIEW

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. State v. Ready, 252 Neb. 816, 565 N.W.2d 728 (1997); State v. McCleery, 251 Neb. 940, 560 N.W.2d 789 (1997); State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996).

FACTS

On August 14, 1995, Officer Charles Headley of the Grand Island Police Department was called to investigate a burglary. Based upon the victim's complaint, one individual was later arrested in connection with the incident. The individual arrested admitted that he was with another person. Following his first contact with the victim, Headley was called back to the victim's residence in response to the victim's report of a suspicious person in the area. The description from the record indicated a male wearing a jean jacket and blue jeans. A full description of the alleged coperpetrator had not been provided by the person arrested.

Between 12:47 and 12:50 p.m., Headley saw a person later determined to be Chitty walking north two blocks from the site of the occurrence of the burglary. Before making contact, Headley observed Chitty from Headley's patrol car for one block. As Chitty turned west, Headley approached from behind. Headley pulled his vehicle alongside Chitty without activating the vehicle's overhead lights or addressing Chitty over the vehicle's "P.A. system."

Headley exited the patrol car and approached Chitty at a normal pace. Headley did not display a weapon or baton. As he came up to Chitty, who was still walking, Headley said, " 'Excuse me, sir. Do you have a minute?' " Headley then asked Chitty his name, and he responded, "Rodney Chitty." Chitty said that he did not have an identification card or driver's license.

Headley told Chitty that he was investigating a suspicious person who had burglarized a home in the area and that Chitty matched the description of the suspicious person given by the victim. Chitty responded that "he'd heard about it." Headley stated that he considered this a surprising response, given the recency of the burglary.

Headley testified at the suppression hearing that when he asked Chitty what he was doing, Chitty said he was visiting a girl friend. When asked the woman's name and address, Chitty "changed his story," saying he was coming from a friend's house. It was unclear whether Chitty said he was visiting "Larry" or "Jerry" or "Larry and Jerry," but the record does indicate that he did not have the friend's or friends' address and that he did not know the person's or persons' last names. When asked where Larry and/or Jerry lived, Chitty pointed west down the street, which was the direction he was headed and not the direction from which he had come. Headley stated that during the conversation, Chitty seemed "[n]ervous, a little jumpy."

Upon the arrival of two other officers, Headley told Chitty he was going to speak to the victim. As Headley left, Chitty sat on the sidewalk. When Headley returned, he explained to Chitty that he fit the description of the individual who was called in as a suspicious person and that the police had earlier arrested another person who had admitted that he had been with another individual. Due to the inconsistencies in Chitty's story, Headley asked Chitty if they could speak with his friend or friends to confirm that Chitty had visited. Headley did not stop Chitty from leaving and did not tell him he could not leave. Chitty did not ask to leave. Headley asked Chitty if they could get into the patrol car due to the fact that it was raining and make a quick trip and speak with Larry and/or Jerry. Chitty responded that he had no problem with the officer's request.

Prior to getting in the car, Headley informed Chitty that it was departmental policy that anybody who entered a patrol car must be patted down for the officer's safety. Headley then asked Chitty if he had any weapons, and Chitty said no. Headley stated that he still needed to check, to which Chitty said that "this was bullshit." Headley believed that Chitty said this because he was "upset that I didn't believe him, when he said that he had no weapons on him." Chitty never refused the pat-down search.

Headley explained that as he conducted the pat-down search, he had to feel underneath the jean jacket Chitty was wearing because it was fairly thick and that he could not otherwise identify a weapon smaller than a gun. During the pat down of Chitty's shirt, Headley felt a pack of cigarettes in his shirt pocket and testified that he felt something under the pack of cigarettes but could not tell what it was. Upon detecting the object, he asked Chitty what was in his breast pocket. Chitty responded that it was cigarettes, to which Headley said, "Well, I feel the cigarettes, but there is something underneath the cigarettes that I'm feeling." Headley testified during direct examination at the suppression hearing that he then "asked [Chitty] if he could show [him] what was in his pocket where his cigarettes were located." On cross-examination, Headley testified as follows:

A. I told him I was--you know, show me what that item is below his pack of cigarettes; I wanted to see it.

Q. All right. You asked him what's in there; he says "Cigarettes," and you said, "Show me what's in your pockets?"

A. Well, he responded by it was cigarettes, that is correct, but I knew that that item below the cigarettes was not a cigarette.

Q. Okay. Then you said, "Show me what's in the pocket?"

A. Yes, sir.

On redirect examination, Headley testified as follows:

Q. Officer, [Chitty's attorney] had asked you on cross-examination and had alluded that you informed Mr. Chitty you wanted him to show you what he had inside his pocket. Did you demand that or did you ask him what was in the pocket?

A. I just--I had asked him what was in the pocket.

Then, on recross-examination, Headley testified as follows:

Q. And then you said, "Take--take it out?" You wanted--you felt something below the cigarettes and you told him to take that out of his pocket?

A. Yes, sir.

Q. Okay. And he did so?

A. Or asked him to show it to me actually what that was.

During the trial, on direct examination, Headley again testified that he "asked [Chitty] if he could show" him the other object behind the cigarettes. On cross-examination, when asked if he had told Chitty to remove the item from his pocket, Headley responded that no, he had asked Chitty to do so. At that point, Chitty's attorney confronted Headley with his prior testimony on cross-examination at the suppression hearing:

Q. Do you recall making that testimony?

A. Asking him to show me the item.

Q. Do you recall the testimony I just read to you?

A. Yes.

Q. And in that testimony, you didn't say you asked; you said, "Show me what's in the pocket," is that correct?

A. Just show me.

Q. You said, "Show me what's in the pocket?"

A. That is correct.

Q. Okay. Those were your exact words, as you recall them? Those were your exact words, as you recall them?

A. To the best that I can recollect, sure.

Q. "Show me what's in the pocket?"

A. Show.

The district court denied Chitty's motion to suppress. The court's journal entry, filed following its order, stated:

1. The stop of the defendant by Officer Headley was permissible to converse with the...