State v. Howell
| Decision Date | 26 October 2012 |
| Docket Number | No. S–12–115.,S–12–115. |
| Citation | 822 N.W.2d 391,284 Neb. 559 |
| Parties | STATE of Nebraska, appellee, v. Justin D. HOWELL, appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
[284 Neb. 559]1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, the appellate court reviews the trial court's findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that the appellate court reviews independently of the trial court's determination.
2. 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. 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.
[284 Neb. 560]3. Constitutional Law: Search and Seizure: Police Officers and Sheriffs. The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of objective reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?
4. Search and Seizure: Police Officers and Sheriffs: Intent. The permissible scope of a search is not to be determined on the basis of the subjective intentions of the consenting party or the subjective interpretation of the searching officer.
5. Search and Seizure. Consensual searches generally cannot be destructive.
6. Search and Seizure: Police Officers and Sheriffs: Evidence. Before an officer may actually destroy or render completely useless a container which would otherwise be within the scope of a permissive search, the officer must obtain explicit authorization, or have some other, lawful, basis upon which to proceed.
7. Search and Seizure. The scope of a search is generally defined by its expressed object.
8. Search and Seizure: Motor Vehicles: Police Officers and Sheriffs. The general rule is that when a suspect does not limit the scope of a search, and does not object when the search exceeds what he later claims was a more limited consent, an officer is justified in searching the entire vehicle.
9. Appeal and Error. Consideration of plain error occurs at the discretion of an appellate court.
10. Appeal and Error. Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant's substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process.
11. Verdicts: Appeal and Error. Only where evidence lacks sufficient probative value as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.
Mark Porto, of Shamberg, Wolf, McDermott & Depue, Grand Island, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.
The principal issue in this appeal is whether a reasonable person would understand that a general consent to search a vehicle for illegal drugs authorized the opening of a gift-wrapped box in the vehicle's storage area. Because (1) the object of the search was clearly disclosed, (2) the container was not equivalent to a locked container and was not destroyed, and (3) the consent was not withdrawn after the officer's interest in the container was communicated to its owner, the search did not exceed the scope of the consent. Thus, we affirm the conviction for possession of a controlled substance with intent to distribute. However, because the record contains no evidence of the absence of a drug tax stamp, we find plain error and reverse the judgment of conviction for that offense.
The State charged Justin D. Howell with possession of a controlled substance with intent to distribute and no drug tax stamp. Howell moved to suppress the evidence obtained from within a gift-wrapped box because he did not specifically consent to its search.
Trooper Russell Lewis provided the sole testimony at the hearing on the motion to suppress. He stopped Howell's vehicle for speeding and had Howell sit in the patrol car while he completed a warning ticket.
Lewis asked Howell if there were drugs or weapons in the vehicle, and Howell answered, “No.” Lewis then obtained Howell's consent to search the vehicle. Lewis moved to the rear cargo area of the vehicle and observed luggage and a gift-wrapped box. Lewis asked Howell, who remained in the patrol car, about the ownership of the gift-wrapped box. Howell stated that his aunt had given it to him to give to his brother as a birthday gift.
Lewis decided to search the box, but he did not ask for specific authorization to do so. At the suppression hearing, he agreed that Howell would not have been able to see what he was doing inside of the vehicle as he opened the box. Lewis used a knife to cut the tape on the wrapping paper and unwrapped one side of the box. The box tore as he opened it to look inside. Lewis observed two packages of marijuana. In response to Lewis' question about the ownership of the box, Howell stated that it was his. Howell told Lewis that the box contained approximately 2 pounds of marijuana and that he sold the drug in addition to personally using it.
The district court overruled Howell's motion to suppress. The court determined that Howell gave Lewis general consent to search, that Howell did not limit or revoke his consent or say that Lewis could not search the box, and that Howell did not object to the search of the box. The court further reasoned that a person “could reasonably expect illegal substances to be transported in such packaging” and that “[c]utting the package did not destroy the contents and caused only minimal damage to a cardboard box of nominal value.”
At a trial to the bench, the only evidence offered was a six-page exhibit consisting of the “police report from the officer” and a “copy of the lab [oratory] report for the marijuana that was seized by the officer.” The police report synopsis states that Howell “was arrested and charged with Possession of Marijuana with Intent and No Drug Tax Stamp.” However, neither the police report narrative nor the laboratory report contains any fact regarding the absence of a drug tax stamp. There were no verbal or written stipulations that would otherwise expand the evidence. The court was not asked to take judicial notice of the evidence adduced at the suppression hearing. After the trial, the district court found Howell guilty of possession of a controlled substance with intent to distribute and no drug tax stamp. The court subsequently sentenced Howell.
Howell timely appealed, and we moved the case to our docket under our statutory authority to regulate the caseloads of the appellate courts of this state.1
Howell assigns that the court erred in (1) denying his motion to suppress after determining that his general consent to the search of his vehicle authorized the cutting open of the gift-wrapped box located inside the vehicle and (2) finding him guilty of possession of a controlled substance with intent to distribute and no drug tax stamp.
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. Regarding historical facts, we review the trial court's findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that we review independently of the trial court's determination.2
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. 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.3
The issue in this case is narrow: Did Howell's general consent to search his vehicle authorize Lewis to open the gift-wrapped box? At oral argument, the State conceded that the validity of the search depended solely upon Howell's consent.
The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of objective reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect? 4 The permissible scope of a search “is not to be determined on the basis of the subjective intentions of the consenting party or the subjective interpretation of the searching officer.” 5
We begin our analysis with the seminal case of Florida v. Jimeno.6 In that case, the officer informed the defendant that he believed the defendant was carrying narcotics in the car and asked for permission to search the car. After receiving consent to search, the officer saw a folded, brown paper bag on the car's floorboard. The officer opened the bag and found cocaine. The U.S. Supreme Court upheld the search, stating that it was objectively reasonable for the officer to conclude that the general consent to search the car included consent to...
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