State v. Coleman

• Decision Date: 10 July 2001
• Docket Number: No. A-00-511.,A-00-511.
• Citation: 10 Neb. App. 337,630 N.W.2d 686
• Parties: STATE of Nebraska, Appellee, v. Robert E. COLEMAN, Jr., Appellant.
• Court: Nebraska Court of Appeals

630 N.W.2d 686

10 Neb. App. 337

STATE of Nebraska, Appellee, v. Robert E. COLEMAN, Jr., Appellant.

No. A-00-511.

Court of Appeals of Nebraska.

July 10, 2001.

George B. Achola, of Walentine, O'Toole, McQuillan & Gordon, for appellant.

Don Stenberg, Attorney General, and Marilyn B. Hutchinson for appellee.

IRWIN, Chief Judge, and SIEVERS and CARLSON, JJ.

SIEVERS, Judge.

The issue in this appeal is whether a warning from a dispatcher to a police officer making a traffic stop that the driver is "a 2CX," which the officer testified means a "convicted felon that should be considered extremely dangerous," justifies a pat-down search of the suspect. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The pat down turned up illegal drugs, and in the course of the pat down, the driver bit the officer several times. We hold that such "2CX" designation, standing alone, does not furnish a reasonable suspicion that the driver is armed and may be patted down.

PROCEDURAL BACKGROUND

After the traffic stop and pat-down search, Robert E. Coleman, Jr., was arrested for biting Officer David G. Rieck and possessing narcotics. Coleman was charged with third degree assault on an officer and possession of a controlled substance. Coleman moved to suppress the evidence obtained after the pat-down search. At the hearing on Coleman's motion to suppress, the State's evidence consisted exclusively of Rieck's testimony and a videotape of the entire stop. The district court for Douglas County overruled Coleman's motion to suppress, and the case went to trial. During trial, Coleman renewed his motion to suppress and objected to all evidence adduced from the allegedly unconstitutional search and seizure. The court overruled the renewed motion and granted Coleman a continuing objection to evidence obtained as a result of the pat-down search. A jury convicted Coleman of assaulting an officer and possessing a controlled substance. After an enhancement hearing, Coleman was sentenced to a minimum of 10 years' imprisonment for both counts, to be served concurrently. He appeals the overruling of his motion to suppress and claims he had ineffective assistance of trial counsel.

FACTUAL BACKGROUND

At 11:37 p.m. on March 30, 1999, Rieck stopped Coleman for failing to signal a turn. Upon request, Coleman gave his driver's license and registration to Rieck, who was in uniform and driving a marked police car at the time. Rieck testified that he did not see any weapons in Coleman's car, that Coleman complied with Rieck's initial requests, and that Coleman was not belligerent or out of control.

As he stood at Coleman's car door, Rieck performed a data check on Coleman's license. According to Rieck, a data check involves an officer's request via the police department's radio system to the dispatcher to find out whether a person has outstanding warrants, a criminal history, or a suspended license. Rieck testified that the data check revealed that Coleman's driver's license had not been suspended and that there were no outstanding warrants for his arrest. Rieck stated that dispatch informed him that Coleman "was a 2CX," meaning a "convicted felon that should be considered extremely dangerous." Rieck testified that the Omaha Police Department was the source of the 2CX rating and that 2CX has a standard meaning to all police officers who hear it. Rieck testified that he customarily conducts pat-down searches on those with 2CX status, because "knowing that he's an extremely dangerous person and I have to turn my back on him to get back to my cruiser, I want to make sure he doesn't have any weapons on him." Rieck admitted that other than the 2CX rating, he had no other evidence that Coleman was dangerous before conducting the pat down, that the 2CX rating did not indicate which felonies are involved in the conviction, and that some felony convictions can be classified as nondangerous. The videotape of the stop from Rieck's cruiser confirms that Rieck informed Coleman that his status was 2CX and that therefore Rieck was going to pat him down. The videotape shows that Rieck opened Coleman's car door after this brief discussion and directed Coleman to place his hands on the roof of the car. After some verbal disagreement, Coleman got out of the car and placed his hands on the roof as Rieck patted him down.

During the pat down, the extent or technique of which Coleman does not contest, Rieck felt what he thought was a small piece of a television antenna in Coleman's front left pocket. Rieck testified that based on his experience, he thought the small tube was used as a crack cocaine pipe. Rieck stated (and the videotape shows) that he asked Coleman to remove the object from his pocket, whereupon Coleman took out a lighter and at some point furtively put something into his mouth. Rieck repeatedly shouted at Coleman to spit out the object, and a struggle ensued between the two, during which Coleman bit Rieck several times. With the help of six other officers, Rieck was eventually able to handcuff Coleman, and retrieve a crack cocaine pipe. At some point during the struggle, Coleman spit out the object, which was seized and later identified as crack cocaine.

ASSIGNMENTS OF ERROR

Coleman's two assignments of error are (1) that the district court erred in overruling his motion to suppress because his stop, search, and arrest were not based on reasonable suspicion and (2) that Coleman was denied effective representation due to his lawyer's performance at trial.

STANDARD OF REVIEW

A trial court's ultimate determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search are reviewed de novo. State v. Scovill, 9 Neb.App. 118, 608 N.W.2d 623 (2000). 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. Id.

In reviewing rulings on a motion to suppress evidence, an appellate court considers all the evidence at trial, as well as at the hearing on the motion. State v. Tierney, 7 Neb.App. 469, 584 N.W.2d 461 (1998).

ANALYSIS

Both the Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution protect against unreasonable searches and seizures by the government. State v. Kinney, 6 Neb.App. 102, 572 N.W.2d 383 (1997). Under both Constitutions, limited investigatory 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. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Chronister, 3 Neb.App. 281, 526 N.W.2d 98 (1995). In addition to an investigatory stop, an officer is entitled, for the protection of himself or herself 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. Terry, supra; State v. Gutierrez, 9 Neb.App. 325, 611 N.W.2d 853 (2000). The sole justification for a pat-down search for weapons is the protection of the officer and other persons nearby. Terry, supra; Tierney, supra.

In determining whether an officer acted reasonably, it is not the officer's inchoate or unparticularized suspicion or hunch that is given due weight, but the specific reasonable inferences which the officer is entitled to draw from the facts in light of his or her experience. State v. Ellington, 242 Neb. 554, 495 N.W.2d 915 (1993). Whether a police officer has a reasonable suspicion based on sufficient articulable facts requires taking into account the totality of the circumstances. Id. Moreover, an investigative stop, like probable cause, is to be evaluated by the collective information of the police engaged in a common investigation. Id. When the collective knowledge of the law enforcement agency for which an officer acts provides the basis for a search and seizure, some communication of that knowledge to the officer conducting the search and seizure is required. State v. Hicks, 241 Neb. 357, 488 N.W.2d 359 (1992). In a "collective knowledge" case, the totality of the circumstances includes the observations, knowledge, and inferences drawn by each officer working on that case. State v. Pillard, 235 Neb. 642, 456 N.W.2d 755 (1990). The collective knowledge doctrine is significant here because Rieck searched Coleman based on information, of which he had no personal knowledge, given to him by a police dispatcher.

Coleman does not contest the lawfulness of the traffic stop for failing to signal a turn, nor does he contend that the license check was illegal. His argument is that Rieck did not have reasonable suspicion to pat him down after learning the results of the license check. There is no question that Coleman was searched. See State v. Caples, 236 Neb. 563, 462 N.W.2d 428 (1990) (search of person's outer clothing in attempt to find weapons is "search" under Fourth Amendment). In its order denying Coleman's motion to suppress, the district court framed the issue as whether the search of Coleman "went beyond the permissible Terry patdown." However, we frame the issue as whether the pat down was permissible under Terry, not whether the scope of the pat down exceeded that allowed by Terry. There is agreement that Coleman was searched solely because of his 2CX status. It is also undisputed that some felonies are not considered dangerous and that Rieck did not know, nor was he informed by the dispatcher, of the specific convictions responsible for Coleman's 2CX rating. Coleman admitted at trial to three prior felony convictions, but no details thereof are in the record. The 2CX rating is the only basis for the search of Coleman and upon which a finding of reasonable suspicion for a pat down can rest. Thus,...