State v. Kinney

• Decision Date: 14 October 1997
• Docket Number: No. A-96-1080,A-96-1080
• Citation: 572 N.W.2d 383,6 Neb. App. 102
• Parties: STATE of Nebraska, Appellee, v. Jerry E. KINNEY, Appellant.
• Court: Nebraska Court of Appeals

Page 383

572 N.W.2d 383

6 Neb.App. 102

STATE of Nebraska, Appellee, v.Jerry E. KINNEY, Appellant.

No. A-96-1080.

Court of Appeals of Nebraska.

Oct. 14, 1997.

Syllabus by the Court

1.Motions to Suppress: Probable Cause: Appeal and Error.In reviewing a trial court's ruling on a motion to suppress, an appellate court reviews the ultimate determination of probable cause de novo and reviews the findings of fact made by the trial court for clear error, giving due weight to the inferences drawn from those facts by the trial court.

2.Constitutional Law: Search and Seizure.Both the Fourth Amendment to the U.S. Constitutionandarticle I, § 7, of the Nebraska Constitution protect against unreasonable searches and seizures by the government.

3.Constitutional Law: Search and Seizure.Searches conducted outside the judicial process, without prior approval by the judge or magistrate, are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions.

4.Police Officers and Sheriffs: Search and Seizure: Probable Cause: Motor Vehicles: Weapons.Inasmuch as roadside encounters between police and suspects present especially dangerous situations, on the reasonable belief that a suspect is dangerous and may gain access to a weapon, the police may search those parts of the passenger compartment of a vehicle they have properly stopped where a weapon may be hidden.

5.Police Officers and Sheriffs: Search and Seizure: Probable Cause: Motor Vehicles.When an officer has probable cause to stop a vehicle and has a reasonable, articulable belief that his safety may be in danger, the fact that the officer searches the vehicle subsequent to issuing the ticket rather that prior to issuing the ticket does not necessarily render the search invalid.

6.Constitutional Law: Search and Seizure.The Fourth Amendment to the U.S. Constitutionandarticle I, § 7, of the Nebraska Constitution prohibit only unreasonable searches and seizures.

7.Police Officers and Sheriffs: Search and Seizure: Probable Cause: Motor Vehicles: Controlled Substances.The finding of a quantity of suspected illicit drugs by an officer making a legitimate search of an automobile may serve to substantiate that officer's suspicions and furnish additional probable cause for him to make to complete search of the vehicle.

8.Police Officers and Sheriffs: Search and Seizure: Probable Cause: Motor Vehicles.When the police have probable cause prior to instituting any search, they may search the entire vehicle (interior compartments and trunk), including any package, luggage, or container that might reasonably hold the item for which they had probable cause to search.

David L. Kimble, Seward County Public Defender, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

MILLER-LERMAN, C.J., and SIEVERS and MUES, JJ.

MUES, Judge.

INTRODUCTION

Jerry E. Kinney was convicted in a bench trial of possession of methamphetamine, possession of alprazolam, possession of marijuana, possession of drug paraphernalia, possession of illegal fireworks, and failure to signal.Kinney now appeals those convictions.The only issue presented by this appeal is whether the trial court erred in denying Kinney's motion to suppress evidence the police obtained from his automobile.

FACTS

Kinney was charged with one count of possession of methamphetamine and one count of possession of alprazolam, Class IV felonies under Neb.Rev.Stat. § 28-416(3)(Cum.[6 Neb.App. 104] Supp.1994); possession of marijuana, an infraction under § 28-416(11)(a); possession of drug paraphernalia, an infraction under Neb.Rev.Stat. § 28-441(Reissue 1995); possession of illegal fireworks, a Class III misdemeanor under Neb.Rev.Stat. §§ 28-1244and28-1250(Reissue 1995); and failure to signal, a traffic infraction under Neb.Rev.Stat. § 60-6,161(Reissue 1993).Prior to trial, Kinney filed a motion to suppress all evidence seized from his person and his motor vehicle.At the hearing on the motion to suppress, the following facts were introduced:

On August 5, 1994, Nebraska State Patrol TrooperRussell Stanczyk had just completed a traffic stop and was merging onto Interstate 80 when he noticed Kinney's vehicle change lanes without signaling.Stanczyk activated his patrol car's overhead lights, and Kinney pulled off to the side of the road.Stanczyk then proceeded to the driver's side of the car and asked Kinney for his driver's license and vehicle registration.While requesting these documents, Stanczyk observed a gold-colored badge on the console of Kinney's car, a police scanner which was plugged into the cigarette lighter, a pair of binoculars, and a beer can inside of a "coozy."

As Kinney turned his body to reach for the requested documents, Stanczyk observed what he believed to be a semiautomatic pistol in a shoulder holster underneath Kinney's left arm.Prior to the time Kinney turned his body, the pistol was concealed from Stanczyk's view, and Kinney did not inform Stanczyk that he had a weapon.Kinney then pulled out his wallet, which contained another gold-colored badge and Kinney's driver's license.Stanczyk informed Kinney why he was being stopped and asked Kinney to remove the shoulder holster and step back into the patrol car.Stanczyk's patrol car did not have a protective screen to separate him from Kinney, so he conducted a pat-down search before Kinney was seated in the passenger's seat of the patrol car.No additional weapons were found on Kinney's person.

Stanczyk testified that the gold-colored badges had the word "Ombudsman" on them.When he recognized this fact, Stanczyk remembered an earlier incident he had heard about involving Kinney.In September 1993, Kinney was working for the state ombudsman's office and had gone to the Nebraska State Fair and used his badge and identification card to gain access to a Garth Brooks concert.Kinney was accompanied by a female, and in gaining access, he stated that "he and this female needed to check out the--the way that the security was handled by the State Patrol and UNL police....[B]ecause he was working in his official capacity, [he][n]eeded to check out these items."

Kinney was allowed into the concert; however, the State Patrol was subsequently informed that Kinney was not performing any official duties and had actually brought his wife to the concert.An intelligence report was then issued so that other troopers would be aware of this for the remainder of the State Fair.Stanczyk was also informed that the ombudsman's office does not issue badges and that Kinney had had the "Ombudsman" badges made up.

Kinney disputes these reports.He testified that he had received an anonymous tip from a state employee "complaining about the nature and the coordination of the security and the safety of the crowds in Devaney Sports Center between the State Patrol and the University of Nebraska Police Department."There were two concerts coming up, the Garth Brooks concert and one that "was more geared for the teenager population," so Kinney decided to attend the Garth Brooks concert as opposed to the other.Kinney testified that his wife did attend the concert, but she paid $50 for tickets and attended the concert with two friends.Kinney also testified that the badges that he carries were issued by the deputy director of the ombudsman's office.

While seated in the patrol car, Stanczyk informed Kinney that he was going to write him a warning ticket.Stanczyk testified that Kinney informed him that he was headed out to do an investigation and "was just driving with his head up his ass."While talking with Kinney, Stanczyk noticed a slight odor of alcohol on Kinney's breath but did not believe Kinney was impaired.

Stanczyk called in Kinney's license for a routine check for suspensions or warrants and was informed by dispatch that Kinney was entered into the State Patrol's "10-38" file.Stanczyk explained that the State Patrol has several codes to warn officers of potentially dangerous situations.A "10-50" file means use caution when encountering this person.A 10-38 file is the next step above 10-50 and means that the person is potentially dangerous.

Trooper Glen Elwell was working near the area where Stanczyk had stopped Kinney and was monitoring the radio traffic.When dispatch informed Stanczyk that Kinney was entered into the State Patrol's 10-38 file, Elwell recognized the name and radioed Stanczyk 10-78 (for your information), 10-50 (use caution).Stanczyk testified that this communication implied to him that Elwell had personal knowledge of this individual and that he should use caution.Stanczyk testified that he was "suspicious enough of the situation that [he] want[ed] to run a check on the gun that was located on Mr. Kinney's person, run a check on it and make sure it's not stolen," so he requested that Elwell assist him.

While waiting for Elwell to arrive, Stanczyk finished writing out the warning for the traffic infraction and returned Kinney's documents to him.Stanczyk testified that he informed Kinney that he was going to call another officer to come and assist him because he wanted to check Kinney's gun to make sure it was not loaded or stolen.Stanczyk also informed Kinney that he felt he had the authority to search within the reach, grasp, or lunge area of Kinney's driver's seat for any additional weapons that might be concealed.Stanczyk testified that Kinney understood this.When asked whether Kinney offered any resistance, Stanczyk replied, "No, he just responded in an affirmative response."Stanczyk further testified that while waiting for Elwell, Kinney informed him that Kinney was a federally licensed firearms dealer.

Within about 2 minutes, Elwell arrived to assist Stanczyk.While Elwell was watching Kinney, Stanczyk proceeded to Kinney's vehicle.Through his hand-held radio, Stanczyk ran the serial number on the gun...