State v. Holmberg, 39930

• Decision Date: 17 July 1975
• Docket Number: No. 39930,39930
• Parties: STATE of Nebraska, Appellee, v. Gary M. HOLMBERG, Appellant.
• Court: Nebraska Supreme Court

Page 672

231 N.W.2d 672

194 Neb. 337

STATE of Nebraska, Appellee, v. Gary M. HOLMBERG, Appellant.

No. 39930.

Supreme Court of Nebraska.

July 17, 1975.

Syllabus by the Court

1. Section 60--435, R.R.S.1943, is intended to give the officers mentioned therein the power to enforce laws regulating the operation of vehicles or the use of the highway. The licensing laws are safety measures applicable to the use of all roads or highways within the state.

2. The only practical method of enforcing the licensing laws involved in section 60--435, R.R.S.1943, is by stopping the vehicle. The inconvenience experienced by the individual motorist is relatively slight compared to the benefits to be derived from strict enforcement of the licensing laws.

3. Due regard for the practical necessities of effective driver and vehicular licensing enforcement requires a brief stop or detention for checking purposes. It is a matter of balancing between the governmental interest in the safety of users of the highways and the individual's right to freedom and privacy. The momentary stopping of a citizen for this purpose does not violate constitutional rights.

4. A routine license check and its concomitant temporary delay of a driver does not constitute an arrest in a legal sense where there is nothing arbitrary or harassing present.

5. When the driver has produced his licenses and they are in proper form, he must be promptly allowed to continue on his way. It is only when the officer become aware of a reasonable probability of a law violation that the driver may be detained for further questioning.

John Q. Sennett, McGinley, Lane, Mueller, Shanahan, McQuillan & Gale, Ogallala, for appellant.

Paul L. Douglas, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

SPENCER, Justice.

Defendant appeals his convictions for possession of marijuana with the intent to distribute, deliver, or dispense; for the possession of amphetamines; and for the possession of cocaine. While the defendant sets out five assignments of error, they may be categorized as embraced within the ambit of the overruling of defendant's motion to suppress for an alleged unreasonable search and seizure. The issue in this case was previously decided adverse to the defendant in an opinion by a single member of this court. We affirm.

Defendant was operating a motor vehicle, a camper on a pickup, in the early morning hours of Saturday, November 24, 1973. He was proceeding in an easterly direction on Interstate 80 in Keith County, Nebraska. Trooper Hollis Compton of the Nebraska Safety Patrol, while in his official uniform, stopped defendant's vehicle for the purpose of checking his operator's license, the vehicle registration, and the vehicle identification number. There was no other reason for the stop. Reliance to make the stop is based solely upon section 60--435, R.R.S.1943, which provides in part as follows: '* * * all members of the Nebraska State Patrol * * * shall have the power * * * (4) when in uniform, to require the driver thereof to stop and exhibit his operator's license and registration card issued for the vehicle and submit to an inspection of such vehicle, the registration plates and registration card(s) thereon * * *.'

While checking the license and registration, the officer smelled a distinctive marijuana odor and observed what he believed to be marijuana seeds on the floor of the vehicle. Incense was burning in the vehicle. He asked the defendant if he had any marijuana and the defendant said 'No.' Defendant then told the officer he had been smoking his last marijuana cigarette. The trooper asked permission to look into the camper. The defendant gave consent, obtained the key, and unlocked the camper. When the door was opened there was a very strong odor which the trooper associated with the smell of raw marijuana. In inspecting the camper, he noticed the floor had built-up sides and that there was a box on the side. The built-up portion on the sides of the box contained some screws. The trooper asked defendant what the sides contained and defendant said all he knew was insulation. The trooper asked defendant if he could look in those portions of the box. Defendant did not reply. The trooper obtained a screwdriver and while the defendant held the trooper's flashlight the trooper unscrewed the screws on the box. When the trooper pulled the sides open, he could see green plastic bags. Each bag was approximately 2 and 1/2 inches thick, approximately 6 to 8 inches wide, and approximately 14 to 16 inches long. There were 42 packages of marijuana in the green bags; each weighed 2 pounds apiece, for a total weight of 84 pounds. When the trooper saw the green bags, he placed defendant under arrest and read him the Miranda warnings. He then took defendant into Ogallala where he conducted a strip search and put defendant in jail. The strip search disclosed a substance containing dielamphetamine and substances containing cocaine.

The next day, Sunday, a specialized criminal investigator for the Patrol visited with the defendant. After the defendant signed a 'right's waiver' form the investigator questioned him. Defendant told this investigator he did not have a prescription for the amphetamines. He had obtained them from a girl who did, and had obtained them for the purpose of staying awake on the trip. Defendant said the white powder in the yellow plastic vial found in his possession was an amphetamine he had been 'snorting.' He also admitted that the cigarette and the other marijuana had been in his possession.

The problem presented is whether or not the evidence obtained by the search at the scene and later at the station should be suppressed because the initial stop to check the operator's license and vehicle registration constituted an unreasonable seizure within the ambit of the Fourth Amendment. We hold it should not. The stop made was a lawful one under section 60--435, R.R.S.1943.

It is defendant's contention that even the momentary stopping of a motorist for an inspection constitutes an arrest and requires probable cause. He argues his freedom of movement should be immune from state interference unless there is some indication of a law violation. What we said in State v. Carpenter (1967), 181 Neb. 639, 150 N.W.2d 129, is pertinent herein: 'Defendant is laboring under the misapprehension that the same rule on probable cause applies when a person is merely stopped and questioned as when he is arrested. Defendant's approach presents a clash of interest between the protection of the public and right of an individual. His premise is false and would cripple law enforcement. * * * Individual rights on occasion must give way to the rights of society. This is the very purpose of law--to restrict the rights of the individual to provide protection for society.'

Defendant argues that section 60--435 R.R.S.1943, would be unconstitutional unless we can read into it a requirement of some reasonable cause otherwise for stopping a motor vehicle. We do not construe the statute that narrowly. This statute is intended to give the officers mentioned therein the power to enforce laws regulating the operation of vehicles or the use of the highways. The licensing laws are safety measures applicable to the use of all roads or highways within the state. It would be most unusual to have an observable indication of a licensing violation of a moving vehicle. Stopping the vehicles for inspection is the only practical method of enforcement of section 60--435, R.R.S.1943.

Defendant is relying on Commonwealth v. Swanger, a 1973 Pennsylvania case, 220 Pa.Super. 720, 300 A.2d 66, rehearing at 453 Pa. 107, 307 A.2d 875, which held an investigatory stop was unreasonable and arbitrary. It held the Pennsylvania statute constitutional, but determined that the officer only had authority to stop a vehicle to check a registration and license when he had probable cause based on specific facts which indicated to him either the vehicle or the driver was in violation of the code. To so hold would emasculate the intent and purpose of the statute.

There are cases in some jurisdictions which hold that because of the number of automobiles on the highways and their extensive use by our population, any stop to spot-check license and registration is manifestly unjust and unfair unless all automobiles using the highways at that place and time are likewise checked. While the record herein would indicate that the defendant and the trooper were apparently the only two persons using the highway at that early hour of the morning, we do not accept the rationale of these cases. We are in agreement with the many decisions in other jurisdictions which hold otherwise.

The only practical method of enforcing the licensing laws involved is by stopping the vehicle. The inconvenience experienced by the individual motorist is relatively slight compared to the benefits to be derived from strict enforcement of our licensing laws. Whether this should be accomplished by spot checks or road blocks is a question that has been raised. Certainly there is less inconvenience to the motoring public by using spot checks. Spot checks also have the advantage of always being unexpectedly possible. We believe occasional spot checks are not only more practical but can have a salutary effect in the enforcement of our traffic laws and serve to promote the safety of the traveling public. Excessive spot checks can be unduly burdensome to traffic and commerce. The line of demarcation between the two is not easily drawn. However, due regard for the practical necessities of effective driver and vehicle licensing enforcement requires a brief stop or detention for checking purposes. It is a matter of balancing between the governmental interest in the safety of users of the highways and the individual's right to freedom...