State v. Harris
| Decision Date | 01 October 1993 |
| Docket Number | No. S-92-789,S-92-789 |
| Citation | 505 N.W.2d 724,244 Neb. 289 |
| Parties | STATE of Nebraska, Appellee, v. Virgil S. HARRIS, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Motions to Suppress: Appeal and Error. When examining the correctness of a trial court's ruling on a motion to suppress, an appellate court will uphold the trial court's findings of fact unless those findings are clearly erroneous.
2. Motions to Suppress: Appeal and Error. In deciding whether the trial court's findings on a motion to suppress are clearly erroneous, the reviewing court recognizes the trial court as the trier of fact and takes into consideration that the trial court has observed the witnesses testifying regarding the motion.
3. Search and Seizure: Standing. One has a reasonable or legitimate expectation of privacy in his or her body and has standing to contest the search of his or her person.
4. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S. Constitution does not prohibit all intrusive body searches, only those that are unjustified or performed in an improper manner.
5. Search and Seizure. Factors to be considered in deciding whether an intrusive body search is permissible are (1) the government or police must have a clear indication 6. Police Officers and Sheriffs. Whether police action is reasonable must be determined under the totality of the circumstances.
that, in fact, incriminating evidence will be found; (2) the police must obtain a warrant or, in the alternative, exigent circumstances must exist, such as the imminent destruction of evidence; and (3) the police must extract the evidence using a reasonable method and a reasonable manner.
7. Search and Seizure. The reasonableness of a search is a substantive determination to be made by the trial court from the facts and circumstances of the case.
Thomas M. Kenney, Douglas County Public Defender, and Kelly S. Breen, Omaha, for appellant.
Don Stenberg, Atty. Gen., and James A. Elworth, Lincoln, for appellee.
Claiming the trial court erred in receiving into evidence crack cocaine that police officers forced him to expel from his mouth and throat, Virgil S. Harris appeals his conviction for unlawful possession of a controlled substance with intent to deliver.
Harris claims police officers obtained the crack cocaine as a result of an illegal search and, therefore, the district court for Douglas County should have sustained his motion to suppress that evidence. We disagree and affirm Harris' conviction.
When examining the correctness of a trial court's ruling on a motion to suppress, this court will uphold a trial court's findings of fact unless those findings are clearly erroneous. State v. Martin, 243 Neb. 368, 500 N.W.2d 512 (1993); State v. Pope, 239 Neb. 1009, 480 N.W.2d 169 (1992); State v. Masat, 239 Neb. 849, 479 N.W.2d 131 (1992). In deciding whether the trial court's findings on a motion to suppress are clearly erroneous, the reviewing court recognizes the trial court as the trier of fact and takes into consideration that the trial court has observed the witnesses testifying regarding the motion. Martin, supra; State v. Melton, 239 Neb. 790, 478 N.W.2d 341 (1992).
At a pretrial suppression hearing, Sgt. Mark Sundermeier of the Omaha Police Division testified that at about 10 p.m. on November 25, 1991, in the vicinity of 30th and Spencer Streets in Omaha, he observed a brown 1975 Chevrolet Malibu sedan back out of a liquor store parking lot, proceed north on 30th Street a short distance, and then pull up to a pay telephone in the same parking lot. It appeared to the officer that the driver of the Malibu was attempting to avoid him, which the officer thought was suspicious. By radio, Sundermeier ran a license-plate check with police headquarters and was advised the license plate on the Malibu, although expired, was registered to a white Datsun 280ZX.
At the pay telephone, Sundermeier contacted the driver of the Chevrolet, the defendant, Harris. A radio check on Harris revealed that he had "sort of dangerous tendencies." In talking with Harris, the officer found that Harris possessed papers indicating that he owned the Malibu. The officer issued Harris citations for expired "in transit" and fictitious license plates.
During the traffic stop, police officers Joseph Baudler and Suzanne Caldwell arrived to provide Sundermeier backup assistance. Upon reaching Harris' automobile, while Sundermeier was handing Harris the two traffic citations, Baudler flashed a light inside the car. He saw a package of Zig-Zag cigarette papers lying on the floor. He advised Sundermeier of this fact. Sundermeier then asked Harris and his passenger, "If you have any dope in the car, would you just hand it over?" Harris and his passenger glanced at each other. The passenger gave the officers a baggie of marijuana which he had in his pocket. The passenger was then placed under arrest. A search of the front-seat area of Harris' vehicle produced an additional baggie of marijuana located in a cassette-tape The evidence reflects, and the trial court found, that by an affirmative nod of his head and a sweeping gesture of his hand, Harris voluntarily gave Sundermeier permission to search the trunk of his car. Before the search was made, Harris volunteered, "I've got a gun in there." When Sundermeier asked him whether the gun was registered, Harris shook his head negatively. This question and the response by Harris were suppressed by the trial court. Sundermeier opened the trunk, saw a gun, arrested Harris for a weapon violation, and handcuffed him. Police confiscated a loaded 9-mm pistol and a one-shot .38 derringer from the trunk of Harris' vehicle. It was later determined that the 9-mm pistol had been reported as stolen. The trial court found that whether the pistol was registered or stolen would inevitably have been discovered through data under the control of the Omaha Police Division. See, Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); State v. Houser, 241 Neb. 525, 490 N.W.2d 168 (1992). Harris was taken to central police headquarters and placed in an interview-detention room. Subsequently, he was booked for having an unregistered firearm, possession of crack cocaine with intent to deliver, and theft by receiving stolen property, $200 to $300. Harris was ultimately tried for possession of a controlled substance with intent to deliver and with the use or possession of a firearm during the commission of a felony. He was convicted on the controlled substance charge, and the firearm charge was dismissed by the trial court for insufficient evidence.
case which the passenger claimed was his. Sundermeier testified that an electronic beeper of the type commonly used by drug dealers to keep in touch with one another was also found on the front seat. A battery-powered digital gram scale of a type used in drug dealing was found under the driver's seat, according to Sundermeier. From these events and discoveries, at least one of the officers suspected that somebody was dealing drugs from Harris' vehicle.
In this appeal, Harris does not challenge the trial court's rulings regarding the traffic stop or the searches conducted at the scene of Harris' arrest. The defendant claims only that the trial court erred when it refused to suppress evidence (cocaine) derived from the search and seizure of Harris' person at Central Police Station following his arrest for possession of an unregistered firearm. This search and the seizure of crack cocaine occurred after Harris was placed in an interview-detention room at the police station.
Officer Caldwell testified at the suppression hearing that while she was sitting with Harris in the interview-detention room, she noticed that he was chewing something. She said she asked Harris to open his mouth. He balled up his tongue so she could not see what he had in his mouth. The trial court found that Harris again began chewing. Caldwell testified, and the court found, that the officer grabbed Harris' throat and ordered him to "spit it out." Harris did not heed the order. The record reflects, and the trial court found, that other officers and jail personnel came into the room and that a struggle ensued for approximately 2 minutes. There was evidence that when another officer first joined Caldwell, Harris stood up from where he was seated and "started to try and push us away from him, so we started to struggle with him at that point." The two officers and Harris fell to the floor.
The trial court found that when Harris did not heed Caldwell's order, external pressure was placed on the defendant to eject whatever was in his mouth and throat. There was evidence that Harris sustained a small cut to his mouth and that a small amount of blood was on the floor and on an officer's clothing following the struggle. Harris testified that he spit up blood when he vomited the baggie and that his throat hurt for 3 or 4 days after the struggle. However, there was other testimony that Harris apparently suffered no injuries other than the cut to his mouth. At the time Harris was being booked at the jail, he told the booking officer that he had not swallowed anything and that he was all right. The trial court found that immediately after an ejection from his mouth and throat, a baggie, soggy and wet with saliva, was found in Harris' right hand. The The trial court found that a lateral vascular neck restraint was placed on the defendant to force him to comply with the demand to spit out what was in his mouth and throat and that a Heimlich-type maneuver was also utilized to aid in the ejection of the material. A witness testified that a lateral vascular neck restraint is a self-defense technique used by police officers to gain compliance from suspects. To...
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