State v. Chitty
| Decision Date | 04 February 1997 |
| Docket Number | No. A-96-334,A-96-334 |
| Citation | 5 Neb.App. 412,559 N.W.2d 511 |
| Parties | STATE of Nebraska, Appellee, v. Rodney R. CHITTY, Appellant. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Motions to Suppress: Appeal and Error. A trial court's ruling on a motion to suppress is to be upheld on appeal unless its findings of fact are clearly erroneous.
2. Police Officers and Sheriffs: Probable Cause. Probable cause exists when the facts and circumstances within a police officer's knowledge are sufficient and reasonably trustworthy to warrant a person of reasonable caution in the belief that an offense has been or is being committed.
3. Investigative Stops: Probable Cause. Limited investigative stops are permissible only upon a reasonable suspicion, supported by specific and articulable facts, that the person is, was, or is about to be engaged in criminal activity.
4. Police Officers and Sheriffs: Investigative Stops: Search and Seizure: Weapons. An officer is entitled, for the protection of himself and others in the area, to conduct a carefully limited search of the outer clothing of persons stopped on Terry grounds to discover weapons which might be used to assault the officer.
5. Constitutional Law: Search and Seizure. A pat-down search is a seizure of the citizen for Fourth Amendment purposes.
6. Investigative Stops: Search and Seizure: Weapons: Controlled Substances. A Terry search must be carefully limited to a search for weapons, and a search for both weapons and controlled substances is beyond the scope of a permissible Terry search.
7. Police Officers and Sheriffs: Search and Seizure: Weapons: Controlled Substances. When an officer, in the course of a pat-down search, feels an object which is plainly a weapon or illegal contraband, he does not need to ignore the object under the "plain feel" doctrine.
8. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. A seizure for purposes of article I, § 7, of the Nebraska Constitution requires either a police officer's application of physical force to a suspect or a suspect's submission to an officer's show of authority.
9. Police Officers and Sheriffs: Search and Seizure: Property. When an unseized person throws away his property, that person has no expectation that his property will not be interfered with or seized by the police.
10. Constitutional Law: Police Officers and Sheriffs: Investigative Stops: Search and Seizure. A police officer cannot circumvent the restrictions of the Fourth Amendment by demanding that the suspect perform the physical act of removing for display an object which the officer could not lawfully remove himself during a Terry pat-down search.
Jerry J. Fogarty, Deputy Hall County Public Defender, Grand Island, for Appellant.
Don Stenberg, Attorney General, and Joseph P. Loudon, Lincoln, for Appellee.
Rodney R. Chitty was found guilty of possession of a controlled substance (methamphetamine) under Neb.Rev.Stat. § 28-416(3) (Cum.Supp.1994), a Class IV felony. The issues presented by his appeal concern the lawfulness of the search and seizure which uncovered the methamphetamine leading to his conviction.
On August 14, 1995, at approximately 11:47 a.m., Officer Charles Headley of the Grand Island Police Department was called to 306 North Grace Street to investigate a burglary. The victim of the burglary, Debra Lessig, provided Headley with information which led to what was apparently the nearly instantaneous arrest of one person. That suspect admitted that he had been with another person.
Within an hour after his first contact with Lessig, Headley was called back to her address to respond to her report of a "suspicious person." The description in the record is sparse: a male wearing a jean jacket and blue jeans. At this time, Headley was aware that the person arrested had admitted that he had been with someone else, but Headley did not have a description of that individual from the arrestee. Moreover, whether there was information leading police to believe that this other person was an accomplice is not clear from the record.
After taking the second report from Lessig, Headley saw an individual walking north approximately two blocks from the site of the burglary. After observing him for a block and seeing him turn west on Fifth Street, Headley approached this individual, soon to be identified as Rodney R. Chitty. Headley did not activate his overhead lights or address the individual over his "P.A. system." Rather, he approached him on foot at a normal pace, without any display of force or weapons, and said, " " The officer made inquiry of the person's name and was told "Rodney Chitty," although Chitty said he did not have an identification card or a driver's license. Headley related to Chitty that he was in the area investigating a suspicious person reported by the victim of a home burglary and that Chitty matched the description of the suspicious person given by the victim. Chitty responded to Headley that "he'd heard about it," which Headley considered a surprising response, given the recency of the burglary.
Headley inquired about what Chitty was doing and was first told Chitty was visiting a girl friend, but Chitty could not provide her name. Headley asked for the girl friend's address, and Chitty then stated he was coming from a friend's house. Headley was uncertain whether Chitty said he had been visiting "Larry," "Jerry," or "Larry and Jerry," but, in any event, Chitty did not have their address or their last names. When asked where they lived, he pointed west down Fifth Street, the direction in which he was headed rather than from which he had come, another fact which aroused Headley's suspicions. Headley described Chitty as "[n]ervous" and "a little jumpy."
Two other officers arrived on the scene. Headley told Chitty he was going to speak further with Lessig. There was no response from Chitty, and Chitty simply sat down on the sidewalk. He was not told he had to stay or that he was under arrest. When Headley returned, he explained to Chitty that he fit the description of the individual who had been reported as suspicious by the victim and that due to inconsistencies in Chitty's story, Headley would like to speak with Chitty's friend or friends. Chitty replied he had no problem with that. Since it was raining, Headley asked Chitty if they could get into the cruiser and make a "quick trip of it" and speak with Larry and/or Jerry.
Headley asked Chitty if he had weapons and received a negative reply. Headley informed Chitty that it was department policy that anyone who enters a patrol car must be patted down for weapons for the officer's safety. Chitty responded that "this was bullshit," but a pat-down search was begun, initially without incident. Headley stood behind Chitty and patted him down along his legs and around his waistband, his arms and chest, and his back. He reached inside of Chitty's jean jacket and patted the outside of his shirt, feeling a soft pack of cigarettes in Chitty's shirt pocket. Headley testified that he felt something under the pack of cigarettes but could not tell what it was. When Headley told Chitty there was something else in the pocket, Chitty said it was only cigarettes. Headley asked Chitty again what it was and then told Chitty to " '[s]how me what's in the pocket.' " Chitty responded with profane language, threw the cigarettes to the ground, tossed the other item in his pocket into the air, and walked away. Headley picked up the item which had been thrown, finding it to be a cellophane bag containing a strawlike tool and a powdery substance. The substance was later tested and determined to be methamphetamine. The strawlike tool was a modified Bic pen. Chitty was then arrested on the charge involved in this appeal.
Chitty filed motions to suppress on the grounds that the search and seizure were made in the absence of probable cause and that there was not reasonable and articulable suspicion that Chitty was involved in criminal activity. A suppression hearing was held at which Chitty briefly testified to establish standing to challenge the search. Then Headley testified to the facts we have related above.
The trial court overruled the motions to suppress. The matter then proceeded to a trial upon mostly stipulated evidence and testimony from the suppression hearing. Chitty preserved his motion to suppress and objected to the introduction into evidence of the methamphetamine. The trial court stood by its ruling on the motion to suppress and found Chitty guilty.
Chitty assigns error in the overruling of his motions to suppress and in the admission into evidence of the methamphetamine recovered by Headley.
A trial court's ruling on a motion to suppress traditionally has been upheld on appeal unless its findings of fact are clearly erroneous. State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996). However, a new standard of review has emerged in cases such as this involving the legality of stops and subsequent searches. We quote from the Nebraska Supreme Court's recent decision in State v. Konfrst, 251 Neb. 214, 222-23, 556 N.W.2d 250, 258 (1996):
In light of the U.S. Supreme Court's decision in Ornelas v. U.S., --- U.S. ----, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), the traditional clearly erroneous standard of review of a district court's determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search is no longer applicable. The clearly erroneous standard has now been supplanted by a two-stage standard in which the ultimate determinations of reasonable suspicion and probable cause 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. Id.
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State v. Chitty
...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 A trial court's ruling on a motion to suppress, apart from determinations of reasonable suspicion to conduct ......
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