State v. Craven

• Decision Date: 19 December 1997
• Docket Number: No. S-96-598,S-96-598
• Citation: 571 N.W.2d 612,253 Neb. 601
• Parties: STATE of Nebraska, Appellee, v. Thomas E. CRAVEN, Appellant.
• Court: Nebraska Supreme Court

Page 612

571 N.W.2d 612

253 Neb. 601

STATE of Nebraska, Appellee, v. Thomas E. CRAVEN, Appellant.

No. S-96-598.

Supreme Court of Nebraska.

Dec. 19, 1997.

Syllabus by the Court

1. Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress evidence obtained through a warrantless search, an appellate court conducts a de novo review of determinations of reasonable suspicion and probable cause. Once this has been done, the appellate court reviews the trial court's findings of fact, giving due weight to the inferences drawn from those facts by the trial judge. In making this determination, the appellate court does not reweigh the evidence or resolve conflicts in the evidence, but recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses.

2. Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions which must be jealously and carefully drawn and applied only where there is a showing that the exigencies of the situation made that course imperative.

3. Warrantless Searches: Search and Seizure: Proof. In the case of a search and seizure conducted without a warrant, the State has the burden of showing the applicability of one or more of the exceptions to the warrant requirement.

4. Criminal Law: Police Officers and Sheriffs: Investigative Stops: Search and Seizure: Weapons. Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot, the officer may briefly stop the suspicious person and make reasonable inquiries aimed at dispelling his suspicions. If, after identifying himself and making initial inquiries which do not dispel his reasonable suspicions, the officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, the officer may conduct a pat-down search to determine whether the person is in fact carrying a weapon.

5. Search and Seizure. If a pat-down search goes beyond what is necessary to determine if a suspect is armed, it is no longer valid and its fruits will be suppressed.

6. Search and Seizure. An officer may make a warrantless seizure of nonthreatening contraband detected during a pat-down search permitted by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), so long as the search stays within the bounds marked by Terry.

7. Search and Seizure: Police Officers and Sheriffs. If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.

8. Probable Cause: Words and Phrases. Probable cause means a fair probability that contraband or evidence of a crime will be found.

9. Probable Cause. Probable cause is determined by a standard of objective reasonableness, i.e., whether the known facts and circumstances are sufficient to warrant a person of reasonable prudence in the belief that contraband or evidence of crime will be found.

Thomas M. Kenney, Douglas County Public Defender, and Scott C. Sladek, Omaha, for appellant.

Don Stenberg, Attorney General, and Jennifer S. Liliedahl for appellee.

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

PER CURIAM.

Thomas E. Craven seeks further review of a decision of the Nebraska Court of Appeals affirming his conviction for possession of a controlled substance. See State v. Craven, 5 Neb.App. 590, 560 N.W.2d 512 (1997). We find no reversible error and therefore affirm the judgment of the Court of Appeals.

FACTS

At 10:25 a.m. on August 27, 1995, two Omaha police officers patrolling an Omaha neighborhood observed a motorcyclist drive into the parking lot of a bar. The officers observed that the motorcycle did not have a license plate and that the operator was not wearing a helmet. Based upon these observed violations of the traffic code, the officers initiated a traffic stop. After obtaining the motorcyclist's operator's license, the officers identified him as Craven.

One of the officers advised Craven that he would conduct a pat-down search for weapons and proceeded to do so. The officer did not feel anything which he perceived to be a weapon. However, when he placed his hand on the outside of a front pocket of Craven's jeans, the officer felt something which he believed to be a pipe used to smoke marijuana, possession of which is unlawful in Nebraska. See Neb.Rev.Stat. §§ 28-439 through 28-444 (Reissue 1995).

The officer testified that

the most prevalent [type of marijuana pipe] that [he had] seen is something that is homemade or home fashioned, and it consists of brass or metal pipe fittings that are screwed together, so the diameter of the pipe varies somewhat from the end He testified that based upon this experience, he immediately perceived the object in Craven's pocket to be a marijuana pipe as he slid his hand over the pocket during the pat down, and that he did not manipulate the object in order to identify it.

which is the bowl, to the actual portion that you put in your mouth.

Because the object which he believed to be a marijuana pipe was at the bottom of Craven's pocket, the officer had to remove other items from the pocket in order to gain access to it. He initially removed what he had perceived during the pat down to be, and what turned out to be, two disposable lighters which were on top of the suspected pipe. As he did so, an object which appeared to be, and was later confirmed to be, crack cocaine came out of Craven's pocket with the lighters. The item the officer believed to be a marijuana pipe was, in fact, a spark plug. Following the discovery and seizure of the crack cocaine, the officers arrested Craven.

On September 18, 1995, the State charged Craven by information filed in the district court for Douglas County with the crime of possession of a controlled substance other than marijuana, to wit, cocaine. See Neb.Rev.Stat. § 28-416(3) (Reissue 1995). Craven filed a motion to suppress the physical evidence obtained as a result of the pat-down search. At the hearing on that motion, the officer who conducted the search testified regarding the traffic stop, the pat-down search, and the search of Craven's pocket during which the cocaine was discovered and seized. He stated that the purpose of the pat down was to detect weapons, which were not found, and that prior to beginning the pat down, he had no reason to believe that Craven was in possession of drugs or drug paraphernalia.

The district court found that the officers had a legitimate reason to stop and detain Craven based upon their observations that he was operating a motorcycle without a license plate and was not wearing a helmet. The district court also found that because the officer had received a "caution indicator" from the police dispatcher, he had a reason to believe that Craven was dangerous and was therefore justified in conducting the pat-down search. The district court then concluded:

And the fact that this item that he thought was a--I think a marijuana pipe--turned out to be something else, a spark plug, I don't think that is relevant. It appears that the police officer used--certainly acted appropriately and had reason to believe that it was a marijuana pipe. It isn't a case where he felt around and twisted and moved it and everything else to determine exactly what it may be.

Based on these findings, the district court overruled Craven's motion to suppress the physical evidence discovered during the pat-down search. Following a bench trial on stipulated facts, during which Craven preserved his objection to the evidence obtained as a result of the pat-down search, he was convicted of possession of cocaine and sentenced to a term of incarceration of not less than 3 nor more than 4 years at hard labor. Craven perfected a timely appeal to the Court of Appeals, assigning as error the overruling of his motion to suppress.

The Court of Appeals found that the case presented an issue of first impression in this state, i.e., the application of the "plain-feel" doctrine announced by the U.S. Supreme Court in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). See State v. Craven, 5 Neb.App. 590, 560 N.W.2d 512 (1997). After concluding that the plain-feel doctrine represented a legal extension of principles announced in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the Court of Appeals determined that because the officer concluded immediately, without manipulation or examination, that the object he felt during the pat-down search was contraband, the seizure of objects including crack cocaine from inside the pocket was constitutionally permissible despite the officer's mistaken tactile identification of the object which proved to be a spark plug.

We granted Craven's petition for further review.

ASSIGNMENT OF ERROR

Craven contends that the Court of Appeals erred in determining that the district court properly overruled his motion to suppress the crack cocaine discovered and seized by police as they attempted to gain access to the object which they mistakenly suspected to be a marijuana pipe.

STANDARD OF REVIEW

In reviewing a trial court's ruling on a motion to suppress evidence obtained through a warrantless search, an appellate court conducts a de novo review of determinations of reasonable...