State v. Coleman

Decision Date10 January 1992
Docket NumberNo. 90-728,90-728
Citation478 N.W.2d 349,239 Neb. 800
PartiesSTATE of Nebraska, Appellee, v. Anthony W. COLEMAN, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Police Officers and Sheriffs: Arrests: Probable Cause. When a law enforcement officer has knowledge, based on 2. Police Officers and Sheriffs: Arrests: Motor Vehicles: Search and Seizure. When a law enforcement officer has made a lawful custodial arrest of an automobile's occupant, the officer may, as a contemporaneous incident of that arrest, search the automobile's passenger compartment and examine contents of any container, whether open or closed, within the passenger compartment.

information reasonably trustworthy under the circumstances, which justifies a prudent belief that a suspect is committing or has committed a crime, the officer has probable cause to arrest without a warrant.

3. Police Officers and Sheriffs: Motor Vehicles: Search and Seizure. An inventory search of an automobile impounded by police protects the automobile owner's property while in police custody, protects police against claims or disputes over lost or stolen property, and protects police from potential danger; hence, inventories pursuant to standard police procedures are reasonable.

4. Constitutional Law: Search and Seizure: Search Warrants: Evidence. Inventory searches are a well-defined exception to the warrant requirement for a search; therefore, evidence discovered during a proper inventory search is constitutionally admissible.

5. Trial: Evidence: Juries. A motion in limine is a procedural step to prevent prejudicial evidence from reaching the jury.

6. Trial: Evidence: Appeal and Error. Because overruling a motion in limine is not a final ruling on admissibility of evidence and, therefore, does not present a question for appellate review, a question concerning admissibility of evidence which is the subject of a motion in limine is raised and preserved for appellate review by an appropriate objection to the evidence during trial.

7. Trial Evidence: Appeal and Error. An appellant claiming reversible error as the result of admission of evidence must have made a timely objection, stating the specific ground of objection if a specific ground was not apparent from the context.

8. Trial: Evidence. One function of a proper objection is to direct the court's attention to questioned admissibility of particular evidence so that the court may intelligently, quickly, and correctly rule on the reception or exclusion of evidence.

9. Rules of Evidence: Words and Phrases. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

10. Evidence. To be relevant, evidence must be rationally related to an issue by a likelihood, not a mere possibility, of proving or disproving an issue to be decided.

11. Criminal Law: Trial: Juries: Evidence: Appeal and Error. In a jury trial of a criminal case, whether an error in admitting or excluding evidence reaches a constitutional dimension or not, an erroneous evidential ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.

12. Criminal Law: Trial: Evidence: Convictions: Appeal and Error. In the trial of a criminal case, erroneous admission of evidence which is not cumulative may constitute harmless error beyond a reasonable doubt, when a defendant's conviction is supported by overwhelming evidence which has been properly admitted or admitted without objection.

Thomas M. Kenney, Douglas County Public Defender, and Brian S. Munnelly, Omaha, for appellant.

Don Stenberg, Atty. Gen., and Jim Elworth, Lincoln, for appellee.


SHANAHAN, Justice.

As the result of a jury trial, Anthony W. Coleman was convicted of possessing a controlled substance, "crack" cocaine, in violation

of Neb.Rev.Stat. § 28-416(3) (Reissue [239 Neb. 802] 1989). In his pretrial motion to suppress the cocaine as physical evidence, see Neb.Rev.Stat. § 29-822 (Reissue 1989) (suppression of physical evidence obtained by unlawful search and seizure), Coleman claimed that the cocaine evidence was obtained through a warrantless and, contrary to the fourth amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution, an unreasonable search of an automobile in which Coleman was a passenger. After the district court overruled the suppression motion, Coleman objected to the cocaine as evidence at his trial and again raised the question concerning constitutional admissibility of the cocaine. Also, by a motion in limine, which was rejected by the district court, and a subsequent objection overruled during trial, Coleman sought to prevent the State's introducing in its case in chief testimony about Coleman's incarceration shortly before his arrest on the cocaine charge.


The Search.

Around 9 p.m. on November 29, 1989, Officers Mark Lang and James Morgan of the Omaha Police Division were on a routine cruiser patrol northbound on 34th Avenue in Omaha when they observed a Buick Regal make an erratic turn from an east-west street onto 34th Avenue, cross the centerline of 34th Avenue, proceed astraddle the centerline toward the officers' cruiser in the northbound lane, and then continue southbound away from the cruiser. When the Buick crossed the centerline, "nearly colliding" with the cruiser, Officer Lang, who was driving the cruiser, had to "swerve to the right hand of the roadway to avoid collision with the [Buick]." Officer Lang turned the cruiser around, activated the cruiser's "overhead lights," and followed the Buick a short distance until the Buick pulled to the curb and the officers made a "traffic stop." There were three occupants in the Buick.

Officer Lang went to the driver's side of the Buick, where he contacted the driver, later identified as Ronald Branch. Officer Morgan was standing at the Buick's right rear quarter panel. Lang asked Branch "for his operator's license and the paper work for the vehicle." At that point, Lang smelled a "strong odor of marijuana smoke" coming from inside the Buick and noticed that Branch "seemed a little bit hesitant and nervous at the time." When Branch was unable to produce an operator's license, he stated that his license might have been suspended.

After Lang smelled marijuana smoke and as a result of Branch's inability to produce an operator's license, Lang asked Branch to get out of the vehicle and performed a pat-down search of Branch for weapons. During Lang's inquiry concerning the marijuana odor, Branch stated that there was a "marijuana joint" in the car's ashtray and then pointed out the ashtray and joint to Lang.

During Lang's exchange with Branch, Officer Morgan asked that the passenger in the right front seat, subsequently identified as Jack Coleman, get out of the car, and conducted a pat-down search for weapons "for our own safety, beings that we were somewhat outnumbered." After searching Jack Coleman, Morgan asked the passenger seated in the right rear seat and thereafter identified as Anthony Coleman to step out of the car and contemporaneously instructed Jack Coleman to get into the back seat. Jack Coleman refused to enter the Buick and explained that his refusal was based on the fact that the police had not yet searched the area of the Buick's back seat.

As the result of a records check while at the scene, the officers learned that there was an active misdemeanor warrant for Branch's arrest and that his driver's license was under suspension. The officers then arrested Branch and, pursuant to that arrest, searched the Buick's back seat in conjunction with a standard "inventory search" of the Buick impounded on account of Branch's arrest. During the search of the Buick's rear seat area and immediately in front of the back seat which had been previously occupied by Anthony Coleman As a result of the search, the officers also arrested Jack Coleman and Anthony Coleman, who were transported to police headquarters with Branch.

                Lang looked into "the rear ashtray that's mounted on the back of the front passenger's seat" and discovered a clear plastic baggie which contained "rocks of crack cocaine."   Later, laboratory analysis verified that the contents of the baggie were "pieces of rock compound ... identified as cocaine ... the base form of cocaine, which is referred to as crack."   In crack cocaine, "the hydrochloride portion of the [cocaine] molecule has been stripped away," leaving "close to 100 percent" purity of the [239 Neb. 804] cocaine residue

At Police Headquarters.

As reflected in Lang's testimony at the suppression hearing, preparatory to interrogation at police headquarters, Lang administered the Miranda warning or admonition to Anthony Coleman. Lang then asked Coleman if he had any knowledge concerning the crack cocaine found in the Buick driven by Branch. At first, Coleman denied any knowledge of the cocaine. However, about 10 minutes into the interrogation, when Lang asked whether it was possible that either Branch or Jack Coleman placed the crack cocaine in the Buick's rear ashtray, Coleman, referring to the cocaine, said, "[I]t's mine," and further stated that he was "not going to play no games, you know, I'm an user, so you can go tell those other guys I fessed up." According to Lang, Coleman also stated that

he [Coleman] had purchased the crack cocaine. He stated that his intentions were to use it, not to sell it, that he had just gotten out of the penitentiary ... on the 19th of September [1989], and that he had heard that crack cocaine was a new thing and that it was a new thing to do.

He stated that he had become scared during the traffic stop and had placed the crack cocaine in the ashtray, and the...

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