State v. Dallmann, S-99-1411.
| Decision Date | 22 December 2000 |
| Docket Number | No. S-99-1411.,S-99-1411. |
| Citation | 621 N.W.2d 86,260 Neb. 937 |
| Parties | STATE of Nebraska, Appellee, v. Duane D. DALLMANN, Appellant. |
| Court | Nebraska Supreme Court |
Dennis R. Keefe, Lancaster County Public Defender, and Kristi J. Egger Brown, Lincoln, for appellant.
Don Stenberg, Attorney General, and Marilyn B. Hutchinson, Lincoln, for appellee.
The appellant, Duane D. Dallmann, was convicted of possession of a controlled substance. On appeal, Dallmann argues that police officers stopped his vehicle as a pretext to search for drugs, that various searches violated his Fourth Amendment rights, that he was not given Miranda warnings, and that his sentence is excessive.
Although the substantive issues raised on appeal are significant, this appeal also requires us to address whether a poverty affidavit that fails to state the nature of the action and that the appellant is entitled to redress is sufficient under Neb.Rev. Stat. § 25-2301.01 (Cum.Supp.2000) to vest this court with jurisdiction. When Dallmann filed his notice of appeal, he also filed a motion for leave to proceed in forma pauperis. In the poverty affidavit filed in support of the motion, Dallmann stated that he was unable to pay the costs of appeal but did not list the nature of the action or that he believed he was entitled to redress. We determine these requirements are not jurisdictional. We further determine that Dallmann's assignments of error are without merit. Accordingly, we affirm.
Dallmann assigns, rephrased, that the district court erred in (1) overruling his motions to suppress, (2) finding that the evidence was sufficient to find Dallmann guilty beyond a reasonable doubt, and (3) imposing an excessive sentence.
On June 14, 1999, an information was filed charging Dallmann with possession of a controlled substance, a Class IV felony. Dallmann filed motions to suppress evidence and statements he made to various police officers. A hearing was held on the motions, and three police officers testified.
Jeff Bliemeister, a deputy sheriff and narcotics investigator, testified that on May 13, 1999, he and another investigator, Forrest Dean Dalton, Jr., were on their way to conduct surveillance on the residence of Nancy Thurman. Neither investigator was in uniform, and they were driving an unmarked vehicle. On the way to the residence, the investigators saw Thurman in a car leaving the area. The investigators then followed Thurman to a convenience store, where she parked her car. The investigators parked in a church parking lot across the street and observed Thurman. Thurman sat in her car and did not enter the convenience store. A few minutes later, another car pulled into the convenience store parking lot. A man, later identified as Dallmann, got out of the car, put the hood up, and stood there for a couple of seconds. Thurman then got out of her car and met Dallmann in between the two cars. The investigators observed Thurman and Dallmann walk to the passenger side of Dallmann's vehicle and talk. The two talked for less than 5 minutes, then returned to their cars. Dallmann and Thurman remained in their cars for about 30 seconds, then they both got out of the cars again, met briefly, and left. The investigators did not observe any objects change hands between Thurman and Dallmann and did not see anything dropped or picked up by either of them. During the time Dallmann and Thurman were talking, the investigators radioed for a uniformed police unit to come into the area.
Based on the investigators' suspicions that a drug transaction had taken place, they decided to follow Dallmann. In Bliemeister's police report, he wrote that the officers planned to stop Dallmann. As Dallmann pulled out of the convenience store, the investigators observed that he was driving without the headlights of his vehicle on. It was approximately 9 p.m. and completely dark. The investigators informed the uniformed unit that Dallmann was driving without his headlights on. One of the uniformed officers, Danny Reitan, then stopped Dallmann about three blocks away.
Reitan asked Dallmann to step out of the vehicle. After Dallmann had exited the vehicle, Reitan asked him if he had any weapons. Dallmann replied, "No." Reitan asked if he could check, and Dallmann replied, "Yes." At approximately the same time, Bliemeister asked Dallmann if he could search the car for weapons, and Dallmann said, Reitan conducted a pat-down search and did not find any weapons. Reitan next asked Dallmann if he had any narcotics. Dallmann replied, "No." When asked by Reitan if he could search, Dallmann said, "Yes." During the search, Reitan pulled a cigarette package out of Dallmann's pocket. Dallmann stated that he did not know what was in it. When Reitan opened it, he found cigarettes and a small amount of cash. Dallmann then stated, "Oh, that's what's in there."
Reitan began to search Dallmann's pockets and pant cuffs and then asked if he could search Dallmann's shoes. Dallmann replied, "Yes." Dallmann was wearing leather moccasin-type shoes and was able to simply lift his feet out of them. As Dallmann lifted his left foot out of the shoe, he tried to kick it under the car and then, using his foot, pulled it back toward Reitan. Reitan then observed a white napkin in the bottom of the shoe. Reitan asked Dallmann what was in the shoe, and Dallmann replied, "That just fell out of the tire." Dalton then came over and removed the napkin from the shoe. Inside the napkin was a clear plastic baggie containing an off-white substance. Believing the substance to be methamphetamine, Reitan placed Dallmann under arrest and led him back to the police cruiser. After the drugs were found, Bliemeister expanded the scope of his search of the car for not only weapons, but contraband and drugs. No drugs were found in the car, but an address book was found containing several names and telephone numbers of people Bliemeister and Dalton had arrested in the past on narcotics-related charges or who were currently being investigated. The address book was found in the pocket of a denim jacket in the backseat.
After learning that drugs had likely been found, Bliemeister attempted to talk to Dallmann. Dallmann, however, refused to talk to Bliemeister and stated that he wanted an attorney. Bliemeister stopped questioning Dallmann at that point. Bliemeister testified that he did not read Dallmann Miranda warnings because Dallmann had invoked his right to counsel. The record also indicates that none of the investigating officers advised Dallmann of his Miranda rights at any time. The substance that was found was then pretested, and a positive result was obtained. After the substance tested positive, Dallmann was handcuffed and placed in the back of Reitan's cruiser. As Bliemeister was writing a citation for Dallmann to sign, he told Dallmann that the charge was for possession of methamphetamine. Dallmann then stated that the methamphetamine was not for him, that the officers could "piss test" him, and that he was just going to sell the drugs to make a little extra money. Bliemeister testified that Dallmann's statements were unsolicited.
Dallmann was charged by information with possession of a controlled substance pursuant to Neb.Rev.Stat. § 28-416(3) (Cum.Supp .1998). Dallmann filed a motion to suppress statements because he had not been advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Dallmann also filed a motion to suppress evidence on the bases that the investigators did not have probable cause to stop his vehicle and conduct searches, that the searches were not incident to a lawful arrest, and that there was no valid consent to search. A hearing was held, and the motions were overruled. In overruling the motions, the district court found that Dallmann's consents to search were made freely and voluntarily. The court further found that any expansion of the search of the vehicle was a search incident to arrest. The court found that Dallmann was not in custody when he made statements about the napkin in his shoe and the contents of his package of cigarettes. The court determined that Dallmann was in custody when he made the statement that he had planned to sell the drugs. However, the court determined that the statement was not the product of any police interrogation, but, instead, was volunteered.
After a stipulated trial consisting of the suppression hearing testimony and a laboratory report, at which Dallmann preserved his objections to the evidence, Dallmann was convicted. The district court sentenced Dallmann to not less than 18 months' nor more than 36 months' incarceration, with credit given for 209 days already served. The sentence was to run consecutively to any other sentence that Dallmann was already serving.
Dallmann appealed. Along with his notice of appeal, Dallmann also filed a motion for leave to proceed in forma pauperis and an affidavit in support of the motion. The affidavit stated that Dallmann was unable to pay the costs of appeal but did not state the nature of the action or state that Dallmann believed he was entitled to relief. The record contains an order of the district court sustaining Dallmann's motion to proceed in forma pauperis. The State filed a motion for summary dismissal because the affidavit failed to include statements required by § 25-2301.01.
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. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000).
In reviewing a motion to suppress statements to determine whether an individual was in custody for purposes...
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