State v. Draganescu
| Decision Date | 22 August 2008 |
| Docket Number | No. S-07-797.,S-07-797. |
| Citation | 755 N.W.2d 57,276 Neb. 448 |
| Parties | STATE of Nebraska, appellee, v. Ion DRAGANESCU, appellant. |
| Court | Nebraska Supreme Court |
Dennis R. Keefe, Lancaster County Public Defender, Lincoln, and Matthew G. Graff for appellant.
Jon Bruning, Attorney General, and Erin E. Leuenberger, Lincoln, for appellee.
A jury convicted Ion Draganescu of possession of a controlled substance with intent to deliver, a Class III felony. Although this appeal presents numerous issues, we believe there are three primary issues. First, did the Nebraska State Patrol have probable cause to initially stop the vehicle in which Draganescu was a passenger? Second, did the State Patrol have probable cause to search the vehicle? Third, was an airline ticket stub, which the State Patrol took from Draganescu's pocket after his arrest, admissible under the residual hearsay exception?
We spell out our holding with some specificity in the following pages, but briefly stated, it is this: We hold that the State Patrol did have probable cause to stop the vehicle. We further hold that the State Patrol had probable cause to search the van following a canine sniff. Finally, although the district court erred in admitting the airline ticket stub under the residual hearsay exception, we hold that this evidence was admissible as an adopted statement. We affirm.
On March 27, 2006, Nebraska State Trooper Chris Bigsby stopped a van on Interstate 80, just east of Lincoln. He stopped the van because the driver was following a semi-truck too closely. The driver was Herbert Truesdale; Draganescu was the passenger. While conducting an investigation incident to the stop, Bigsby became suspicious of drug activity and requested a canine unit. Following the canine sniff, troopers searched the van and found 275 pounds of marijuana. The State charged Draganescu with possession of a controlled substance with intent to deliver.
Draganescu moved to suppress any evidence obtained from the stop and search of his person and the van. He alleged that state troopers searched the van without probable cause or reasonable suspicion. The district court held two suppression hearings. The first focused on whether Bigsby had probable cause to stop the van; whether Bigsby had reasonable suspicion to order a canine sniff; and whether the length of the detentions was unreasonable. The second suppression hearing concerned the reliability of Duke, the drug dog. Draganescu argued that because Duke was unreliable, the State lacked probable cause to search the van.
At the hearing, the State submitted a videotape from Bigsby's patrol car camera that shows the timeline of events. Bigsby testified that while in a marked patrol car monitoring traffic on Interstate 80 in Lincoln, he noticed the eastbound van in which Draganescu was a passenger. He thought he saw Nevada plates on the van. He testified that the van caught his eye because it
He pulled onto the interstate to observe the van and another vehicle.
Bigsby initially passed the van when he saw that the plates were from Washington instead of Nevada. But as he was passing the semi-truck in front of the van, he saw the van moving closer to the truck. From his rearview mirror, he saw the van was following the truck about one car length behind it and decided to stop the van. At 9:33 a.m., Bigsby stopped the van and asked for a vehicle registration and licenses from Truesdale and Draganescu. He intended to issue a warning ticket and asked Truesdale to sit in the patrol car while he issued the ticket.
Bigsby testified that as he approached the van, he observed fast-food wrappers, trash, and pillows in the van. He described the van as having a "lived-in" look. He stated that while he was in the patrol car, the dispatcher informed him that the computer that runs background checks was down. He asked Truesdale about his travels and his criminal and driving history. Truesdale stated that he had one previous arrest for driving under the influence and another arrest because someone had possessed a gun while in his vehicle. He said that he had flown to Seattle, Washington, around March 2, 2006, and that Draganescu had flown to California. He said that after he rented the van in Washington, he went to Los Angeles, California, for a few days and then met up with Draganescu in Las Vegas, Nevada. He stated that Draganescu had flown to Las Vegas and that they stayed in Las Vegas for a couple of days in a hotel and then left on the previous Thursday or Friday. Truesdale gave Bigsby the rental agreement for the van, which showed that Truesdale was overdue to return the van.
Bigsby went to the van to get its vehicle identification number and return Draganescu's identification. He asked Draganescu about his travels. Draganescu said that he worked for a transport company in Detroit, Michigan, and had driven a truck to Seattle for them, where he met Truesdale. He said that he and Truesdale had left Seattle a couple of days ago and were driving straight back to Michigan on Interstate 80, without mentioning Las Vegas. He stated that they had been sleeping in the van at truck-stops on their way back. While Bigsby was returning to the patrol car, he called for a canine unit.
At 9:58 a.m., the dispatcher reported that there were no outstanding warrants and that Truesdale's license was valid. The dispatcher also reported that Draganescu had a drug-related criminal history. Bigsby finished writing the warning ticket at 10:01 a.m.
After Bigsby issued the warning ticket, Truesdale started to exit the patrol car. But Bigsby asked him if he could answer a few more questions, and Truesdale agreed. Bigsby testified that he asked Truesdale whether he would allow Bigsby to search the van and whether he would mind waiting for a dog to "come out and run around" the van. Truesdale refused consent. Bigsby then told him that he was being detained. After other troopers arrived, state troopers placed Draganescu in a different patrol car to wait while they conducted a canine sniff.
At 10:16 a.m., the canine unit arrived. At 10:25 a.m., Nebraska State Trooper Jeremy Dugger did a prestimulation ritual with Duke. Dugger then took Duke around the vehicle three times. After this deployment, Dugger took Duke away from the van briefly. At 10:30 a.m., Dugger deployed Duke again. After taking Duke around the van two more times, Duke gave a final indication of drugs. At 10:32 a.m., Bigsby opened the van's hatch and discovered the drugs.
The district court found that there was probable cause to stop the van. It also found a sufficient factual basis to create a reasonable suspicion that Truesdale and Draganescu were involved in a crime that was occurring or about to occur. It further concluded that the detention for the traffic stop and the canine sniff was reasonable in length. The court overruled the motion to suppress.
The second suppression hearing concerned Dugger's handling of Duke during the canine sniff. Draganescu argued that Dugger's mishandling of Duke made Duke's indication of drugs unreliable. Thus, he argued probable cause was lacking to conduct a search. Regarding his qualifications, Dugger testified that he had completed 8 weeks of canine training. He also stated that Duke was one of the Patrol's "most reliable and accurate dogs" and had received very high certification scores in 2005 and 2006.
Dugger explained that he did a prestimulation ritual because Duke was distracted. The ritual involved Dugger's showing Duke a sterile ball, acting suspiciously with the ball alongside the van, and then putting the ball in his pants pocket when Duke was not watching. Without the ball, Dugger then took Duke around the van by his leash as he moved his other hand up and down the van in the places that he wanted Duke to sniff. They went around the van three times in this manner. Dugger stated that even though Duke seemed distracted, he had almost immediately alerted to the rear of the van. He described an "alert" as a change in the dog's body behavior that means the dog has noticed the odor of drugs. In contrast, an "indication" of drugs is the dog's prescribed behavior of barking, whining, or scratching, or a combination of these behaviors, to indicate the strongest source of the odor.
After these three rounds, Dugger told Bigsby that although Duke had alerted, the dog was distracted because of the rain and was not sniffing properly. Dugger took Duke away briefly and had another officer perform a prestimulation ritual with a different sterile toy. At 10:30 a.m., Dugger took Duke around the van two more times. He testified that Duke was sharper during this deployment because he was sniffing nasally with his mouth closed. At the end of the second round, Duke jumped up onto the rear bumper. Dugger testified that Duke scratched at the van, giving a final indication of drugs.
The court also received, over the State's objections, an expert report from a retired Florida police officer, Bobby G. Mutter. Mutter had expertise with drug dogs. In his report, he stated that he had reviewed Dugger's deposition, Duke's training and service records, logs of Duke's history, and two videotape recordings of the stop and search. He concluded that Duke was a well-trained narcotics dog and had alerted to the rear of the van. But he believed...
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§ I-7. Search and Seizure
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Neb. Const. art. I § I-7 Search and Seizure
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§ I-7. Search and Seizure
...dog's positive indication of drugs in a vehicle will give the officer probable cause to search the vehicle. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 Provisions in warrants allowing no-knock search warrants offend neither U.S. Const. amend. IV nor this provision. State v. Eary, 235 N......