State v. Hedgcock
| Decision Date | 22 May 2009 |
| Docket Number | No. S-07-617.,S-07-617. |
| Citation | 277 Neb. 805,765 N.W.2d 469 |
| Parties | STATE of Nebraska, appellee, v. Parry HEDGCOCK, appellant. |
| Court | Nebraska Supreme Court |
Brent M. Bloom, Omaha, for appellant.
Jon Bruning, Attorney General, and George R. Love, for appellee.
Parry Hedgcock pulled his vehicle into the Platte River rest area immediately after seeing checkpoint signs. These signs were "ruse checkpoint" signs indicating that a drug checkpoint was set up farther down the road when, in reality, there was no checkpoint. At the rest area, Hedgcock was approached by an officer who was wearing plain street clothes and was not displaying his weapon. The officer informed Hedgcock that he was not in any trouble or under arrest. He then asked Hedgcock to answer a few questions, and Hedgcock agreed. After a few minutes of talking with the officer, Hedgcock consented to a search of his vehicle, resulting in the officer's finding marijuana.
As a result of this encounter, Hedgcock was charged with possession of marijuana weighing more than 1 pound and with intent to distribute. The district court denied his motion to suppress certain statements and physical evidence obtained by officers, and Hedgcock was found guilty. He appeals his convictions, alleging that the use of the ruse checkpoint was unconstitutional.
On February 22, 2006, the Nebraska State Patrol strategically placed signs along Interstate 80, eastbound, indicating that there was a drug checkpoint farther down the road. The checkpoint signs were posted along the shoulder and the median of Interstate 80 near the Platte River rest area in Cass County. The checkpoint signs read "`Nebraska State Patrol Check Point Ahead'" and "`Drug Dog in Use.'" The signs alternated prior to the exit for the rest area, and a couple of signs were placed after the rest area. However, there was no drug enforcement checkpoint on Interstate 80. The checkpoint signs were placed near the Platte River rest area exit to induce motorists engaged in drug-related activity to take the exit in order to avoid the drug checkpoint.
Five officers, including Officers Alan Eberle, Richard Lutter, and Jason Scott, waited in the rest area either on foot or in unmarked vehicles, with their weapons concealed, wearing plain street clothes. The officers at the rest area observed individuals' behaviors for any indicators or circumstances that would alert them to possible drug activity. In his deposition, Scott testified that some of the indicators the officers looked for included the motorists' reactions to the signs, such as braking rapidly to enter the rest area, how fast the vehicle pulled into the rest area, where the vehicle parked in the rest area, and the passengers' behaviors once the vehicle is parked. If the officers observed any suspicious indicators or circumstances, then they would make contact.
Another officer waited in an unmarked car, in the middle of Interstate 80, observing motorists' reactions to the checkpoint signs. The officer specifically watched for motorists who made a "rapid departure" into the rest area, as such activity was indicative of someone attempting to avoid the checkpoint. The officer was to alert the other officers waiting at the rest area of any motorists' reactions that were suspicious.
At approximately 10:30 a.m., an officer informed Eberle that the driver of a white Chevrolet Blazer, with Utah plates, rapidly applied the brakes and changed lanes to enter the rest area after seeing the checkpoint signs. Eberle testified that after he received that information, he, along with Lutter and Scott, observed the Blazer enter the rest area. Even though there were empty stalls in front of the building, the Blazer parked away from the rest area building.
After the Blazer parked, the occupants, Hedgcock and Anthony Womack, sat inside the vehicle for approximately 2 minutes. Eventually, Womack (the passenger) and Hedgcock (the driver) got out of the vehicle. Womack walked to the restrooms, but Hedgcock stayed close to the Blazer.
This behavior made the officers at the rest area suspicious. Eberle testified that in his experience, when individuals are transporting narcotics, one person always stays close to the vehicle to make sure that it is never left unattended. Scott testified that he was suspicious because Hedgcock parked the Blazer away from the rest area building, Hedgcock and Womack stayed in the Blazer for awhile, and Hedgcock stayed with the vehicle while Womack went to the restroom. Lutter testified that he, too, was suspicious because Womack and Hedgcock stayed in the vehicle for so long after parking and then proceeded to stand near the vehicle for a time "as if they were still trying to determine what they were going to do." Lutter testified that this behavior was inconsistent with regular use of the rest area.
Eberle followed Womack to the restroom and waited out-side for him to come out. After Womack came out of the restroom, Eberle approached him, and they talked for awhile. While Eberle was talking with Womack over by the restrooms Lutter walked over to the Blazer to talk with Hedgcock. Lutter approached Hedgcock and presented his badge, identifying himself as a law enforcement officer. He then advised Hedgcock that he was not under arrest and that he was not in any kind of trouble. According to Lutter, he asked Hedgcock, in a conversational, nondirective tone, to talk for a minute, and Hedgcock said, "Okay."
Lutter asked Hedgcock for identification, and Hedgcock gave him his Utah driver's license. Hedgcock informed Lutter that he was coming from Utah to Chicago to visit a friend, but Hedgcock could not provide any other details about the trip. Lutter then explained to Hedgcock that he was watching for people that may be transporting illegal items such as guns, drugs, and explosive devices. He then asked Hedgcock whether he had any such items with him or in his vehicle, to which Hedgcock stated he did not. During their conversation, Lutter observed that Hedgcock continued to look away from him as if he was searching for his companion and that Hedgcock appeared to be nervous.
Eventually, Lutter asked Hedgcock for consent to search the Blazer, and Hedgcock responded, "[g]o ahead," and stepped away from the Blazer. Lutter testified that as soon as he opened the passenger-side door to search the Blazer, he smelled burned marijuana. After examining the front compartment, Lutter asked Hedgcock and Womack whether there was marijuana in the vehicle, to which Hedgcock stated that "there might be some in the ash tray." The officers found a marijuana cigarette in the ashtray and continued their search of the vehicle.
Eberle testified that after the marijuana cigarette was found, neither Womack nor Hedgcock was free to leave, because the officers intended to issue a citation. However, the record reveals that neither officer indicated in any way that Womack and Hedgcock were not free to leave. Both officers testified that before the marijuana cigarette was found, Hedgcock and Womack were free to leave at any time.
As the search continued, Eberle asked Hedgcock whether he could search inside the luggage compartment on the top of the Blazer. Hedgcock indicated that a set of keys in the driver's door would open the luggage compartment; however, none of the keys fit the lock. Eberle asked Hedgcock again about how to open the luggage compartment, and Hedgcock told him that he left the key at home. Hedgcock consented to a search of his person, and after searching, Eberle found a single key in Hedgcock's pocket that fit the luggage compartment lock. After finding the key, Eberle asked Hedgcock what was in the luggage compartment that he did not want the officers to find, and Hedgcock stated: "`I'm transporting marijuana.'"
Based on this confession, Eberle arrested Hedgcock. The officers opened the luggage compartment and found three black garbage bags full of marijuana, approximately 50 pounds. Eberle then read Hedgcock his Miranda rights, and Hedgcock agreed to talk.
Eberle asked Hedgcock some questions about where the marijuana was going, but Hedgcock would not give him any details. Hedgcock told Eberle that he was responsible for the marijuana and then requested an attorney. At that point, Eberle stopped questioning him. However, on the way to the police station, Hedgcock made a comment regarding his thoughts on legalizing marijuana.
The district court overruled Hedgcock's motion to suppress as to the physical evidence and the statements he made before asking for an attorney, but granted the motion as to the statements Hedgcock made on the way to the police station. The court concluded that the encounter between Hedgcock and the officers was a tier-one encounter, because Hedgcock voluntarily agreed to talk to the officers and because the evidence did not show circumstances indicative of a seizure. Thus, the encounter did not rise to the level of a seizure and was therefore outside the realm of Fourth Amendment protection. The court also noted that Hedgcock was not stopped at a checkpoint, because he stopped at the rest area on his own volition. The court stated: "The fact that [Hedgcock's] consent to talk to the officer(s) and his consent to the search worked to his detriment does not give rise to an illegal search or seizure." Hedgcock was convicted and sentenced. He now appeals.
Hedgcock claims, restated, that the district court erred in overruling his motion to suppress, because (1) the Platte River rest area was in fact an unconstitutional drug checkpoint and (2) the encounter between himself and the officers constituted an unconstitutional seizure.
In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, we apply a two-part standard of review....
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