State v. Drake
| Decision Date | 25 March 2022 |
| Docket Number | S-21-179. |
| Citation | 311 Neb. 219,971 N.W.2d 759 |
| Parties | STATE of Nebraska, Appellee, v. John A. DRAKE, Appellant. |
| Court | Nebraska Supreme Court |
Jerry D. Clinch and Steven B. Fillman, of Fillman Law Offices, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
John A. Drake was arrested in December 2018 in York County, Nebraska, after methamphetamine and drug paraphernalia were found in his vehicle and on his person. Drake's motion to suppress evidence seized during his arrest was denied. After a stipulated bench trial, the district court found Drake guilty of possession of a controlled substance and found him to be a habitual criminal under Neb. Rev. Stat. § 29-2221 (Reissue 2016). Due to his enhanced sentence, the court sentenced Drake to a term of 10 to 12 years’ incarceration. Drake appealed, challenging the denial of his motion to suppress, challenging the enhancement of his sentence, and alleging ineffective assistance of trial counsel. We affirm.
As noted above, Drake was arrested by a York County sheriff's deputy, Korey Goplin, on December 28, 2018, after methamphetamine and drug paraphernalia were found in his vehicle and on his person. In March 2019, the York County Attorney's office charged Drake with possession of a controlled substance with intent to distribute methamphetamine, possession of a controlled substance, and being a habitual criminal under § 29-2221. The York County public defender was thereafter appointed as counsel for Drake. Drake waived his right to speedy trial and the matter was set for a jury trial to commence on August 20, 2019, in the district court for York County.
On August 14, 2019, Drake moved to suppress evidence obtained as a result of the traffic stop. Drake's counsel attached an affidavit to the motion, stating that he was aware the motion to suppress was not filed more than 10 days prior to trial as required by law, unless permitted by the court for good cause shown. Counsel requested the court find good cause, stating that he had previously given verbal notice to the court and to the State on August 6 and that the failure to timely file the motion to suppress was exclusively counsel's responsibility due to an "inability to adjust [to] an unusually heavy workload." The district court granted such leave and scheduled a hearing on the motion to suppress to be held on August 22, with a jury trial to immediately follow.
At the suppression hearing, the State called Goplin, who testified that on December 28, 2018, he came upon a green Buick traveling northbound on Road E, south of Interstate 80 between York and Henderson, Nebraska, at very slow speeds. Goplin followed the Buick for a short time and "ran its license plate" to check whether the it was stolen. During this time, the Buick turned southbound down a dead-end road which led to a residence. Goplin testified that there had recently been multiple thefts in the county, so he became suspicious of the Buick when it stopped in a residential driveway late at night, yet no one exited the vehicle.
Goplin returned to the intersection of Road E and Road 8, keeping the Buick in his sight. The Buick left the residence and returned to the intersection of Road E and Road 8, turning southbound on Road E. Goplin again followed the Buick for a short period of time, when suddenly the Buick stopped in the middle of Road E. Goplin parked his cruiser behind the Buick to make contact with the driver, Drake.
Upon contact, Goplin asked Drake "what he was doing back at the residence because [Goplin] didn't see anybody get out of the vehicle." Drake informed Goplin that he "just dropped off a friend named Candace Powers." Goplin was familiar with Candace Powers and knew she did not live at that residence. During this conversation, Drake stated, seemingly unprompted, that "it's been a long time since [I've] been in trouble with law enforcement." Goplin returned to his cruiser to check the status of Drake's driver's license, which indicated that Drake had a valid driver's license and no arrest warrants, but had a history of drug possession. Goplin then activated his cruiser's emergency lights before returning to the Buick, stating that he did so due to road conditions and the position of the vehicles in the middle of the roadway.
Upon returning to Drake's vehicle, Goplin reiterated to Drake that he was not stopped and that Drake had stopped on his own. Goplin continued to question Drake about his activities that night, asking individual questions regarding whether Drake had any weapons, drugs, or weapons of mass destruction in the vehicle. According to Goplin, when Drake was specifically asked about drugs, Drake broke eye contact and looked down, which indicated to Goplin that Drake may be engaged in criminal drug activity.
During this time, Drake stated he was lost and trying to get home. Goplin thought this was suspicious because Drake had also said he dropped a friend, Powers, off at her home, whom Goplin knew did not live at the home Drake had just visited. Drake also said that he had previously driven from his home in Aurora, Nebraska, to Powers’ actual house multiple times, and he even described the directions from Aurora to Powers’ house. Goplin thought "it was odd that Drake would be lost if he knew the route."
Goplin asked Drake to exit the vehicle and come to his cruiser due to the cold temperature outside. Drake then grabbed his jacket in a way which appeared to Goplin "as if he was trying not to disturb the contents within it, instead of just jumping out and picking it up." Goplin asked if he could search Drake's person, which Drake refused.
Drake got into the front passenger seat of Goplin's cruiser, at which time Goplin asked Drake about whether drugs were in the Buick. Drake would not answer directly, and instead, he stated that the vehicle belonged to his boss. Drake refused consent to search the vehicle upon that basis. Goplin informed Drake that because he was in control of the vehicle, he could give consent to search the vehicle, but Drake refused. Goplin asked if Drake would be willing to wait for a "drug dog" to do a "sniff of the vehicle," and Drake agreed.
While waiting for the drug dog to arrive, Goplin did not affirmatively tell Drake that he was free to go, but also did not inform Drake that he could not leave. Goplin recalled that Drake did not ask whether he was being detained and did not revoke consent to the search of the vehicle.
Thirty-nine minutes later, another York County sheriff's deputy, Robert Penner, arrived with the drug dog, which alerted that drugs were located in the vehicle. Goplin searched the vehicle and found multiple small baggies consistent with the distribution of controlled substances. Goplin then searched Drake's person. Inside Drake's jacket, Goplin found a sunglasses case with 5 grams of suspected methamphetamine, a pipe, and a straw. Goplin arrested Drake. Testing later confirmed that the substance was methamphetamine.
On cross-examination, Goplin indicated that detained motorists typically wait an average of 20 minutes for "arrival of [a] drug dog for a sniff search." Goplin also stated that although the road conditions were hazardous and there was 1 to 2 inches of snow on the ground, the road was not completely snow covered so it was suspicious that Drake was traveling only about 25 miles per hour. Goplin testified that during the 39 minutes he and Drake waited for the drug dog to arrive, they had short conversations about Drake's job, why he was driving his boss’ vehicle, and what had happened to his vehicle. Penner testified after Goplin, providing a similar account of events.
Drake then took the stand to testify. Drake stated that he was lost when he turned down the driveway and that there had been no signs indicating that it was a driveway or a dead end. He had seen Goplin following him before turning down the dead-end road, and upon returning to the main road, he saw that Goplin was following him for a second time, so Drake decided to stop "to let him know what was going on." After Drake gave his driver's license to Goplin, Goplin turned on his cruiser's emergency lights. Drake stated that Goplin returned and told Drake "everything was fine there and he just wanted to ask [Drake] some questions." However, Drake testified that after Goplin had turned his cruiser's emergency lights on and asked Drake to "join him in his vehicle," Drake believed he was being detained. Drake stated that he did ask if he was free to go, to which Goplin "would not reply but changed subjects."
The court overruled Drake's motion to suppress after making specific findings on the record as follows:
That it was a voluntary stop by [Drake]; that [Drake] then violated the law by stopping his vehicle in the middle of the road, impeding traffic, a violation of Nebraska law. The community caretaker provision with [Drake's] stopping late at night in cold weather is also applicable. [Drake's] behavior by driving slow late at night, driving into a dead end and not being a local vehicle was suspicious. The contact initially was voluntary. [Drake] when meeting with [the] officer gave suspicious answers. The [o]fficer knew the residence of Candace Powers, knew that it was not Candace Powers’ residence and that he did know Candace Powers and that [Drake] had said that he had been to Candace Powers’ many times but yet that he was lost. Those [are] suspicious answers. [Drake] indicated that [the Buick] was not his vehicle. There was no evidence of permission for him to drive the vehicle, therefore he had no standing to object to the search. [Drake] agreed to wait for the drug dog. He was never arrested, not cuffed and never detained. He did consent to wait for the drug dog. That consent was never withdrawn. The dog was deployed, did alert and indicate, and at...
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