State v. Gem M. (In re Interest of Gem M.)

Decision Date14 April 2020
Docket NumberNo. A-19-701.,A-19-701.
PartiesIN RE INTEREST OF GEM M., A CHILD UNDER 18 YEARS OF AGE. STATE OF NEBRASKA, APPELLEE, v. GEM M., APPELLANT.
CourtCourt of Appeals of Nebraska
MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the Separate Juvenile Court of Lancaster County: REGGIE L. RYDER, Judge. Affirmed.

Joe Nigro, Lancaster County Public Defender, and Amy J. Peters for appellant.

Patrick F. Condon, Lancaster County Attorney, and Danielle Kerr for appellee.

PIRTLE, BISHOP, and ARTERBURN, Judges.

PIRTLE, Judge.

INTRODUCTION

Gem M. appeals from an order of adjudication by the Separate Juvenile Court of Lancaster County finding that he was a juvenile as defined by Neb. Rev. Stat. § 43-247(1) (Reissue 2016). Gem argues that the juvenile court erred in overruling his motion to suppress evidence and statements obtained by law enforcement officials on the basis that his Fourth Amendment right against unreasonable searches and seizures and Fifth Amendment privilege against compelled self-incrimination were violated. For the reasons that follow, we affirm.

BACKGROUND

Gem, a juvenile, was adjudicated for possession of drug paraphernalia in violation of Neb. Rev. Stat. § 28-441 (Cum. Supp. 2018). The adjudication was the result of a petition filed by the State, alleging that Gem had violated § 28-441 by possessing, with the intent to use, drug paraphernalia to manufacture, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance.

Prior to the adjudication hearing, Gem filed a motion to suppress evidence and statements obtained as a result of the warrantless stop and search of his person on the date alleged in the State's petition. A hearing was held on Gem's motion to suppress on April 24, 2019.

At the hearing, the State called Officer Shane Alesch with the Lincoln Police Department (LPD). Alesch testified that he regularly receives training on identifying suspects and drugs or drug paraphernalia. Alesch has been a police officer since May 1997, approximately 23 years.

Alesch testified that he was dispatched to 3111 North Hill Road in Lincoln, Nebraska, on October 30, 2018, after receiving a call for a possible burglary in progress. He testified that the call came out at 11:22 a.m. and he arrived on scene within a few minutes. The call stemmed from a report by a resident at the address that they had heard scraping on the door and believed someone was trying to break in. The witness observed the individual take off running to the west. The only description of the suspect provided was that the suspect was wearing a gray hoodie or sweatshirt.

When Alesch arrived on scene, he observed one individual in the area walking to the north. He testified that the individual was approximately 75 yards from the apartment building. At that point, Alesch got out of his cruiser, made contact with the individual, and asked him what he was doing. The individual responded that he was on his way to North Star High School (North Star). At that point, Alesch identified the individual from his student I.D. as Gem.

Alesch testified that after he identified the individual as Gem, he asked Gem if he could pat him down. Gem responded "yes" and Alesch conducted a pat-down search. During the pat-down, Alesch felt a hard object in Gem's left front pocket and, from his training and experience, determined the object to be a narcotics pipe. Alesch asked Gem if the object was a "drug pipe" and Gem responded "yes." Alesch then removed the pipe and Gem stated that it had come from a friend.

Alesch testified that he initially approached Gem because he was the only party within the area after responding to the possible burglary call, and because Gem was wearing a gray sweatshirt or hoodie, matching the reporting party's description of the suspect. Gem denied any involvement in the possible burglary and stated that he was coming from a "Dollar General" store and on his way back to North Star.

Alesch did not recall Gem ever requesting to leave or end the encounter, nor telling Gem that he was not free to leave. Alesch did not read Miranda warnings to Gem due to still being in the early stages of the burglary investigation. He testified that the pat-down was conducted for his safety, to determine whether Gem had any weapons on his person. Alesch did not have reason to believe that Gem did not freely consent to the search, nor that Gem was unwilling to talk to him.

On cross-examination, Alesch estimated that three other officers responded to the scene where he had stopped Gem. He testified that all of the officers were identifiable as law enforcementand arrived in marked police cruisers. He further testified that he believed Gem was wearing a backpack at the time, but had no visible weapons or burglary tools. He also conceded that he had not witnessed Gem commit any crime.

Alesch indicated that, upon arriving at the scene, he parked his police cruiser approximately 20 yards in front of Gem. Alesch testified that Gem cooperated by waiting for him while he spoke to other officers arriving at the scene. Alesch was unable to say for certain whether he had asked Gem to identify himself and explain what he was doing in the area before or after the other officers had arrived. He did not recall Gem indicating that he was attempting to catch a bus at North Star when he was stopped. He also could not say with certainty whether the pat-down of Gem occurred prior to the other officers leaving the scene.

Alesch testified that he did not specifically advise Gem that he did not have to agree to the pat-down. No weapons were discovered on Gem during the pat-down. Alesch further testified that he did not advise Gem of his Miranda rights prior to asking whether the object in his pocket was a "smoking" or "drug" pipe.

The juvenile parent notification and referral form indicated that Alesch made phone contact with Gem's mother at 11:58 a.m. He recalled making the phone call while still at the scene, or shortly thereafter. He testified that the entire encounter with Gem lasted "very close to a half hour."

Alesch testified that the initial dispatch call was made at 11:22 a.m. His report indicated 11:41 a.m. as the approximate time of the incident. Alesch acknowledged that Officer Denny, the primary responding officer on the burglary call, did not mention the paraphernalia in his incident report. Alesch testified that he located the pipe "fairly into the process" of his contact with Gem. Alesch testified that he reported 11:42 a.m. as the time Gem was ultimately cited.

On redirect examination, Alesch testified that it is standard practice to conduct a search for officer safety to determine whether an individual is possessing weapons or other objects of that nature that are not visible. He indicated that, due to the safety concerns, the pat-down would have occurred within the first few minutes of his contact with Gem.

After the conclusion of Alesch's testimony, the State rested its presentation of evidence on the motion to suppress. Gem took the stand in his own defense.

Gem testified that he recalled three officers, including Alesch, being present on the October 30 incident where he was stopped. He testified that Alesch pulled up and parked his police cruiser approximately 15 yards directly in front of him, blocking the path he had been walking. Gem recalled Alesch asking him to remain where he was, which he did. Gem testified that after asking him to stay put, Alesch went and spoke with another officer at the scene before returning to speak with him.

Once Alesch returned, he asked Gem about his identity and what he was doing in the area. Gem explained that he was on his way back to North Star from a nearby Dollar General in order to catch a bus to his class at Southeast Community College (SCC). Gem testified that he told Alesch "multiple times" that he was trying to catch the bus. Gem also indicated that he told Alesch that he was running late, but nevertheless stayed put and cooperated.

Gem estimated he had been at the scene for "a good 30 to 40 minutes" before he was searched. He expressly disputed Alesch's testimony that the search had taken place immediately upon contact. According to Gem, the search did not take place until after the other law enforcementhad already completely left the area near the apartment complex. Gem also testified that he asked whether he could leave three or four times but was told to wait until the officers could "figure out what [was] going on with the situation." Gem testified that each time he asked whether he could leave he explained that he was running late to catch the bus. Gem noted that he did not feel as though he was free to leave at any point before or during the search.

Gem testified that after the other two officers left he believed he was cleared of any suspicion regarding the burglary. Gem again asked Alesch if he was free to leave, but again was told to stay put while Alesch "figure[d] things out."

Gem testified that when Alesch asked him whether he would permit him to conduct a search of his person Gem responded that he was busy and had to go. Gem specifically denied consenting or agreeing to the search. Instead, Gem recalled Alesch stating that he was cleared of any suspicion regarding the burglary case, but nonetheless was asked by Alesch to submit to a search.

After Alesch conducted the pat-down, he asked Gem whether the object in his pocket was a "smoking pipe." Gem testified that Alesch never informed him that he did not have to speak to him, nor that he did not have to agree to the search. Gem once again denied giving permission to Alesch to conduct the search.

Gem testified that after the search, and upon leaving the scene, he immediately made a phone call to his mother. Gem testified that his mother had already been informed of the incident by the...

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