State v. Ferguson
| Decision Date | 30 November 2018 |
| Docket Number | No. S-17-1197,S-17-1197 |
| Citation | 919 N.W.2d 863,301 Neb. 697 |
| Parties | STATE of Nebraska, Appellee, v. Travis L. FERGUSON, Appellant. |
| Court | Nebraska Supreme Court |
Candice C. Wooster, of Brennan & Nielsen Law Offices, P.C., Lincoln, for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph, Lincoln, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
The defendant appeals his convictions for possession of a controlled substance and child abuse. The defendant was driving a vehicle owned by the defendant’s girlfriend when he was stopped by law enforcement to investigate a citizen report of dangerous driving. The stop occurred at a gas station. The defendant’s two young children were in the back seat of the vehicle. Methamphetamine was found during a search of the vehicle, which was conducted subsequent to a drug detection dog sniff. The dog sniff took place approximately 30 minutes after law enforcement had completed their routine investigation related to the stop and had discovered that the defendant was driving with a suspended license, had given them false information, and had an outstanding civil contempt warrant for his arrest. The principle issue presented is whether continuing the defendant’s detention at the gas station beyond the time reasonably necessary to complete the traffic stop’s mission of investigating the report of dangerous driving constituted an unreasonable seizure when the detention occurred after law enforcement had probable cause to arrest the defendant.
Travis L. Ferguson was charged with one count of possession of a controlled substance in violation of Neb. Rev. Stat. § 28-416(3) (Supp. 2015); one count of false reporting in violation of Neb. Rev. Stat. § 28-907(1) (Reissue 2016); and one count of child abuse in violation of Neb. Rev. Stat. § 28-707(1) and (3) (Reissue 2016)—specifically, that Ferguson, acting negligently, had placed his minor children, ages 8 and 6 at the time of the stop, in a situation that endangered their lives or physical or mental health, or deprived them of necessary food, clothing, shelter, or care. The charges stem from the events of March 9, 2016. Ferguson was driving his girlfriend’s 1998 four-door silver Honda Accord sedan with his children in the back seat. He was stopped by law enforcement after another driver called the 911 emergency dispatch service to report dangerous driving, and methamphetamine was eventually found inside the vehicle.
Before trial, Ferguson moved to suppress any and all evidence and statements obtained by law enforcement on March 9, 2016, for the reason that they were allegedly obtained in violation of Ferguson’s constitutional rights under the 4th, 5th, 6th, and 14th Amendments to the U.S. Constitution and the respective guarantees of the Constitution of the State of Nebraska. The following evidence was adduced at the hearing on the motion.
Around 5 p.m. on March 9, 2016, Bradley Kinzie called 911 to report a vehicle swerving on Highway 77. The vehicle was described as a gray, four-door sedan moving northbound from Roca Road in Lancaster County, Nebraska. Kinzie also reported the vehicle’s license plate number.
Deputy Sheriff Jeremy Schwarz was in his cruiser headed southbound on Highway 77 in the same general vicinity when he received the report of the 911 call. One or two minutes later, Schwarz saw a man in a vehicle headed northbound on Highway 77 behind a white, four-door sedan using hand gestures to emphatically direct Schwarz' attention to the sedan. Schwarz understood, and it was later confirmed, that the man gesturing was the 911 caller and the sedan was the vehicle reported.
Schwarz made a U-turn to pursue the vehicle. The vehicle pulled into a gas station before he could catch up with it. Schwarz pulled up behind the vehicle. Schwarz confirmed that the license plate number was only one digit off from the number reported during the 911 call. Schwarz activated the cruiser’s overhead lights.
At 5:05 p.m., Schwarz exited the cruiser and approached the driver of the vehicle, who was later identified as Ferguson. Schwarz observed two children in the back seat. Ferguson informed Schwarz that he did not have his driver’s license with him. Ferguson acknowledged that he was tired and had been swerving the vehicle.
Ferguson originally identified himself using his brother’s name. In the databases accessed through the mobile data terminal of his cruiser, Schwarz could not find a person with that name who matched the other information given by Ferguson.
At 5:16 p.m., Ferguson was asked to sit in the cruiser while Schwarz further investigated Ferguson’s identity. During the pat-down search conducted before entering the cruiser, Schwarz found Ferguson’s electronic benefit transfer card which included his real name. By 5:22 p.m., Schwarz was able to confirm Ferguson’s identity through the databases, which revealed that Ferguson had a suspended driver’s license and an outstanding warrant for civil contempt related to unpaid child support. At approximately that same time, Schwarz learned the identity of the children’s mother.
Schwarz described that he had probable cause to arrest Ferguson both for driving with a suspended license and on the child support warrant.
Ferguson’s criminal history also caused Schwarz to suspect that there might be narcotics in the sedan. Ferguson denied consent to search the vehicle.
Schwarz did not transport Ferguson immediately to the police station, because he was trying to make arrangements for the children to be picked up by their mother and for Lindsey Koch, the owner of the vehicle, to pick it up. Schwarz contacted the children’s mother, who agreed to pick up the children, but she lived 30 to 45 minutes away. Two officers who had arrived at the scene took the children out of the vehicle and into the convenience store for snacks while they waited.
At 5:25 p.m., approximately the same time that Schwarz contacted the children’s mother, he decided to call in a canine unit to conduct a dog sniff of the vehicle. Schwarz asked Koch for her consent to the search, explaining that the canine unit was on its way, but she refused. Koch agreed to pick up her vehicle at the gas station. The canine unit arrived approximately 30 minutes after Schwarz called it in. When the canine unit arrived, neither Koch nor the children’s mother had yet arrived.
The dog sniff was conducted around the exterior of the sedan, and the dog alerted to the odor of narcotics. After that, the officers searched the sedan and found a plastic bag of what appeared to be methamphetamine on the driver’s side floorboard between the center console and the driver’s seat. At trial, the parties stipulated that the bag found in the sedan contained approximately 1.6 grams of methamphetamine.
Approximately 15 minutes after the search of the sedan had been completed, Koch arrived and removed the vehicle from the premises. Five minutes later, the children’s mother arrived and the children were turned over to her. Ferguson was then taken to jail.
In support of the motion to suppress, defense counsel argued that prolonging the stop while waiting for Koch and the canine unit to arrive was unreasonable, because the officers were no longer handling the matter for which the stop was initially made. Defense counsel also argued that the search was not incident to arrest. Without addressing Ferguson’s suspended license, defense counsel argued that if Ferguson would have been taken to jail sooner, he could have purged himself sooner of the civil contempt warrant. Defense counsel explained that the delay at the gas station unreasonably denied Ferguson the "opportunity to go and bond himself out or purge himself of that warrant." The State responded that the continued detention was a "non-issue," because at that point, there was probable cause for Ferguson’s arrest.
The court denied the motion to suppress. The court granted defense counsel’s request for a continuing objection to evidence of the methamphetamine found in the sedan, and the case proceeded to trial.
At trial, Kinzie testified that while driving along Highway 77 on March 9, 2016, he spotted in his rearview mirror a gray, four-door Toyota or Mazda sedan behind him. He saw the sedan going from one side of the road to the other. He slowed down, and the sedan passed him. While passing him, the sedan encroached into Kinzie’s lane so much that he had to drive on the curb in order to avoid a collision.
Kinzie watched as the sedan, driving at that point in front of him, veered past the white line of the right-hand lane and back into the left-hand lane. The sedan then proceeded to encroach into the right-hand lane again, even though there was another vehicle in its path. The sedan pushed that vehicle off the road and into a ditch.
After ensuring that the people in the vehicle that went off the road were "okay," Kinzie called 911. Kinzie described seeing a police cruiser soon thereafter and pointing out the sedan to the law enforcement officer. While stopped at a red light, Kinzie witnessed the cruiser follow the sedan to a nearby gas station and park behind it.
The speed limit in that area of Highway 77 was 65 miles per hour. It was rush-hour traffic. Kinzie testified that both he and the driver of the other vehicle were forced to take evasive action to avoid colliding with the sedan, stating,
At trial, Schwarz reiterated much of his testimony given at the hearing on the motion to suppress. Schwarz also described that when he approached the sedan, the children in the back seat were moving around and not completely buckled in. Schwarz testified that the children had access to the area by the...
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