State v. Konfrst
| Decision Date | 06 December 1996 |
| Docket Number | No. S-95-964,S-95-964 |
| Citation | 251 Neb. 214,556 N.W.2d 250 |
| Parties | STATE of Nebraska, Appellee, v. Wayne L. KONFRST, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Investigative Stops: Warrantless Searches: Probable Cause: Appeal and Error. In light of the U.S. Supreme Court's decision in Ornelas v. U.S., --- U.S. ----, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), the traditional clearly erroneous standard of review of a district court's determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search is no longer applicable. The clearly erroneous standard has now been supplanted by a two-stage standard in which the ultimate determinations of reasonable suspicion and probable cause are reviewed de novo and findings of fact are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge.
2. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable Cause: Appeal and Error. A trial court's ruling on a motion to suppress, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. In making this determination, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses.
3. Constitutional Law: Search and Seizure. Both the Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution protect against unreasonable searches and seizures by the government.
4. Constitutional Law: Search and Seizure: Standing. A "standing" analysis in the context of search and seizure is nothing more than an inquiry into whether the disputed search and seizure has infringed an interest of the defendant in violation of the protection afforded by the Fourth Amendment.
5. Constitutional Law: Search and Seizure. The test used to determine if a defendant has an interest protected by the Fourth Amendment is whether the defendant has a "legitimate expectation of privacy in the premises."
6. Search and Seizure: Waiver. The right to be free from unreasonable searches and seizures may be waived by the consent of the citizen.
7. Warrantless Searches: Proof. When the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that the consent was given by the defendant, but may show that the permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.
8. Warrantless Searches: Police Officers and Sheriffs. A warrantless search is valid when based upon consent of a third party whom the police, at the time of the search, reasonably believed possessed authority to consent to a search of the premises, even if it is later demonstrated that the individual did not possess such authority.
9. Search and Seizure: Proof. The State must prove that the consent to search was freely and voluntarily given.
10. Search and Seizure: Duress. In order for consent to search to be valid, it must be the result of a free and unconstrained choice and not the product of the will overborne. It cannot be the result of duress or coercion, whether express, implied, physical, or psychological.
11. Search and Seizure: Intoxication. The mere fact of intoxication is not conclusive on the issue of voluntariness of a statement or a consent given by a defendant. A defendant must be so intoxicated that he is unable to understand the meaning of his statements.
12. Search and Seizure. Consent may be withdrawn or limited at any time prior to the completion of a search.
13. Constitutional Law: Warrantless Searches: Police Officers and Sheriffs: Probable Cause: Motor Vehicles. A warrantless search of an automobile by police officers with probable cause to believe the vehicle contains contraband is permissible under the Fourth Amendment.
14. Probable Cause: Words and Phrases. Probable cause means a fair probability that contraband or evidence of a crime will be found.
15. Search and Seizure: Police Officers and Sheriffs: 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 a complete search of the vehicle.
16. Search and Seizure: Police Officers and Sheriffs: 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.
17. Controlled Substances: Intent: Circumstantial Evidence: Proof. Circumstantial evidence to establish possession of a controlled substance with intent to deliver may consist of the quantity of the substance, the equipment and supplies found with it, the place it was found, the manner of packaging, and the testimony of witnesses experienced and knowledgeable in the field.
Nile K. Johnson, of Johnson & Mock, Oakland, for appellant.
Don Stenberg, Attorney General, and James A. Elworth, Lincoln, for appellee.
While Wayne L. Konfrst was being taken from the scene for a driving while under the influence of alcohol (DUI) arrest, he advised one of the arresting officers that his passenger, David Uehling, was in charge of the vehicle. Uehling gave consent to search the vehicle. The officers found a wad of money and plastic baggies containing marijuana and methamphetamine. In a further search of a duffelbag in the vehicle, the officers found a scale and empty baggies.
Konfrst was convicted in a bench trial before the district court for Washington County of possession of a controlled substance with intent to deliver, in violation of Neb.Rev.Stat. § 28-416(1)(a) (Cum.Supp.1994). The Nebraska Court of Appeals reversed Konfrst's conviction and remanded the cause with directions to dismiss, concluding that the evidence admitted against Konfrst at trial was seized in violation of his right to be free from unreasonable searches and seizures. State v. Konfrst, 4 Neb.App. 517, 546 N.W.2d 67 (1996). We granted the State's petition for further review.
We conclude that the search of the vehicle was consented to by one who had authority to consent and that the resulting search of the duffelbag was based on probable cause. We therefore reverse the judgment of the Court of Appeals and remand the cause with directions to reinstate the district court's judgment.
At approximately 1:30 a.m. on June 25, 1994, Officer Larry Sanchez of the Blair Police Department was on patrol in downtown Blair, Nebraska. While he was stopped at a flashing red light, his attention was drawn to the loud sound of a motor vehicle starting. He looked in the direction of the sound and saw a gray Chevy Blazer jump the curb in front of Blue Ribbon Bar and drive down the sidewalk in front of four or five business establishments. Sanchez activated his lights and pursued the Blazer, which went down over the curb, onto the street, and turned into an alley behind the bar. The Blazer eventually came to a stop halfway down the alley and parked in a marked stall.
Three occupants were riding in the vehicle: Konfrst, Uehling, and Amy Goldyn. Sanchez approached Konfrst, whom he had observed driving the Blazer; asked for Konfrst's driver's license and registration; smelled alcohol on his breath; and then administered several field sobriety tests. The tests included the walk- and-turn test, the one-legged stand, the finger-to-nose test, and recitation of the alphabet. After Konfrst failed all of these tests, Sanchez arrested him for DUI, placed him in the patrol car, and took him to a law enforcement facility.
Backup officer Jim Murcek arrived at the scene while Sanchez was administering the field sobriety tests to Konfrst. Murcek testified at trial that while standing next to Uehling, approximately 25 feet away from Konfrst, he heard Konfrst say that Konfrst "wanted his vehicle released to Dave Uehling."
Cpl. Joseph Lager arrived at the scene after Murcek, but prior to Sanchez' removal of Konfrst from the scene. At the suppression hearing, Lager testified that he asked Konfrst if the Blazer was his vehicle, and Konfrst stated that "it was his aunt's and his aunt gave control of the vehicle to David Uehling." At trial, Lager testified that he asked Konfrst if he was the person in charge of the vehicle, and Konfrst stated that "he wasn't ... the vehicle was his aunt's and that David Uehling was actually in charge of the vehicle." Lager also testified at both the hearing and trial that he heard Konfrst yell to Uehling to get Konfrst's money out of the Blazer and bail him out of jail.
Sanchez testified on cross-examination at the suppression hearing that Lager asked Konfrst what he wanted to do with the vehicle and that Konfrst responded "the vehicle was in Dave Uehling's possession." However, at trial, during direct examination, Sanchez testified that he did not hear Konfrst say "anything to anybody" prior to leaving the scene. On cross-examination, Sanchez was asked whether Konfrst ever said that he wanted anyone else to have control of the vehicle. Sanchez responded, "Not to me, sir."
Although unknown to the officers at the time, the registered owner of the vehicle, Mary Jo Harris, was in fact the mother, rather than the aunt, of Konfrst. The parties stipulated to the testimony of Harris in an...
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