State v. Howard
| Decision Date | 23 September 2011 |
| Docket Number | No. S–10–660.,S–10–660. |
| Citation | 282 Neb. 352,803 N.W.2d 450 |
| Parties | STATE of Nebraska, appellee,v.Stuart D. HOWARD, appellant.State of Nebraska, appellee,v.Anthony M. Laws, appellant. |
| Court | Nebraska Supreme Court |
1. Investigative Stops: Warrantless Searches: Probable Cause: Appeal and Error. When reviewing a district court's determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search, ultimate determinations of reasonable suspicion and probable cause are reviewed de novo. But findings of historical fact to support that determination are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial court.
2. Investigative Stops: Motor Vehicles: Probable Cause. A traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle.
3. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs. Once a vehicle is lawfully stopped, a law enforcement officer may conduct an investigation reasonably related in scope to the circumstances that justified the traffic stop. This investigation may include asking the driver for an operator's license and registration, requesting that the driver sit in the patrol car, and asking the driver about the purpose and destination of his or her travel. Also, the officer may run a computer check to determine whether the vehicle involved in the stop has been stolen and whether there are outstanding warrants for any of its occupants.
4. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable Cause. In order to expand the scope of a traffic stop and continue to detain the motorist for the time necessary to deploy a drug detection dog, an officer must have a reasonable, articulable suspicion that a person in the vehicle is involved in criminal activity beyond that which initially justified the interference.
5. Probable Cause: Words and Phrases. Reasonable suspicion entails some minimal level of objective justification for detention, something more than an inchoate and unparticularized hunch, but less than the level of suspicion required for probable cause.
6. Police Officers and Sheriffs: Probable Cause. Whether a police officer has a reasonable suspicion based on sufficient articulable facts depends on the totality of the circumstances.
7. Probable Cause. Reasonable suspicion must be determined on a case-by-case basis.
8. Investigative Stops: Motor Vehicles: Probable Cause. When a determination is made to detain a person during a traffic stop, even where each factor considered independently is consistent with innocent activities, those same factors may amount to reasonable suspicion when considered collectively.
9. Investigative Stops: Police Officers and Sheriffs: Probable Cause. If reasonable suspicion exists for a continued detention, the court must consider whether the detention was reasonable in the context of an investigative stop, considering both the length of the continued detention and the investigative methods employed.
10. Probable Cause. Probable cause to search requires that the known facts and circumstances are sufficient to warrant a person of reasonable prudence in the belief that contraband or evidence of a crime will be found.
11. Probable Cause: Words and Phrases. Probable cause is a flexible, commonsense standard. It merely requires that the facts available to the officer would warrant a person of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.
12. Probable Cause: Appeal and Error. Appellate courts determine probable cause by an objective standard of reasonableness, given the known facts and circumstances.
13. Investigative Stops: Motor Vehicles: Probable Cause: Records. Evidence of a drug detection dog's search records may be considered in the totality of the circumstances when determining whether a canine alert, combined with reasonable suspicion factors, amounts to probable cause to search a vehicle.
14. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
15. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact.
16. Controlled Substances. A person possesses a controlled substance when he or she knows of the nature or character of the substance and of its presence and has dominion or control over it.
17. Controlled Substances: Evidence: Circumstantial Evidence: Proof. Possession can be either actual or constructive, and constructive possession of an illegal substance may be proved by direct or circumstantial evidence.
18. Controlled Substances: Circumstantial Evidence: Intent. Circumstantial evidence may support a finding that a defendant intended to distribute, deliver, or dispense a controlled substance in the defendant's possession.
19. Controlled Substances: Circumstantial Evidence: Intent. Circumstantial evidence sufficient to establish possession of a controlled substance with intent to deliver may consist of evidence of the quantity of the substance, equipment and supplies found with the substance, the place where the substance was found, the manner of packaging, and the testimony of witnesses experienced and knowledgeable in the field.
20. Controlled Substances. Mere presence at a place where a controlled substance is found is not sufficient to show constructive possession.
21. Investigative Stops: Motor Vehicles: Controlled Substances. Possession of a controlled substance can be inferred if the vehicle's occupant acts oddly during a traffic stop, gives explanations that are inconsistent with the explanations of other vehicle occupants, or generally gives an implausible explanation for the travels.
22. Stipulations: Pleas: Evidence. A stipulation entered by a defendant can be tantamount to a guilty plea. But this is true only when the defendant stipulates either to his or her guilt or to the sufficiency of the evidence.
23. Effectiveness of Counsel: Proof. In order to prevail on a claim for ineffective assistance of counsel, a defendant must show that his or her counsel's performance was deficient and that he or she was prejudiced by such deficiency.
24. Effectiveness of Counsel: Presumptions. Under certain limited circumstances, prejudice to the accused is to be assumed (1) where the accused is completely denied counsel at a critical stage of the proceedings, (2) where counsel fails to subject the prosecution's case to meaningful adversarial testing, and (3) where the surrounding circumstances may justify a presumption of ineffectiveness without inquiry into counsel's actual performance at trial.
25. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion.
26. Sentences. When imposing a sentence, a sentencing judge should consider the defendant's age, mentality, education and experience, social and cultural background, past criminal record, and motivation for the offense, as well as the nature of the offense and the violence involved in the commission of the crime.
27. Sentences. In imposing a sentence, the sentencing court is not limited to any mathematically applied set of factors. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.
Korey Reiman, Lincoln, for appellant Stuart D. Howard.Matthew K. Kosmicki, of Brennan & Nielsen Law Offices, P.C., for appellant Anthony M. Laws.Jon Bruning, Attorney General, and Nathan A. Liss for appellee.WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.STEPHAN, J.
A vehicle driven by Anthony M. Laws in which Stuart D. Howard was a passenger was stopped for speeding by a Nebraska State Patrol officer. When consent to search was denied, a trained drug detection canine unit was brought to the scene. The canine alerted, and a search disclosed over 700 pounds of marijuana. Laws and Howard were both charged with possession of a controlled substance with intent to deliver. Each filed a motion to suppress the evidence obtained as a result of the traffic stop and canine alert. After a combined hearing, the motions to suppress were denied, and Laws and Howard were both subsequently convicted of the charge. Both filed notices of appeal, assigning separate but related errors. We have consolidated their appeals for purposes of this opinion.
On June 1, 2009, at 12:50 p.m., Laws was driving a sports utility vehicle (SUV) towing a popup camper eastbound on Interstate 80 in Lancaster County, Nebraska. Nebraska State Patrol officer Robert Pelster's stationary radar showed the SUV was traveling 63 m.p.h. in a 55–m.p.h. construction zone. Pelster initiated a traffic stop.
During the stop, Pelster noted that Laws was driving the vehicle and that there was a female passenger, Sarah R. McGee, in the front seat and a male passenger, Howard, in the rear seat. Pelster thought Laws seemed very nervous and noticed that his hands were shaking. Laws provided documentation showing that both the SUV and the popup camper had been rented near Detroit, Michigan. The...
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