State v. Konfrst

• Decision Date: 16 April 1996
• Docket Number: No. A-95-964,A-95-964
• Citation: 546 N.W.2d 67,4 Neb.App. 517
• Parties: STATE of Nebraska, Appellee, v. Wayne L. KONFRST, Appellant.
• Court: Nebraska Court of Appeals

Page 67

546 N.W.2d 67

4 Neb.App. 517

STATE of Nebraska, Appellee, v. Wayne L. KONFRST, Appellant.

No. A-95-964.

Court of Appeals of Nebraska.

April 16, 1996.

Syllabus by the Court

1. Motions to Suppress: Appeal and Error. A trial court's ruling on a motion to suppress is to be upheld on appeal unless its findings of fact are clearly erroneous.

2. Motions to Suppress: Appeal and Error. In determining whether a trial court's

findings on a motion to suppress are clearly erroneous, 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. The Fourth Amendment and the Nebraska Constitution protect people against unreasonable searches and seizures by the government, including police officers.

4. Police Officers and Sheriffs: Search and Seizure: Proof. If police have acted without a search warrant, the State has the burden to prove that the search was conducted under circumstances substantiating the reasonableness of such search or seizure.

5. Police Officers and Sheriffs: Arrests: Search and Seizure: Motor Vehicles. When a police officer has made a lawful custodial arrest of the occupant of an automobile, the officer may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile and containers found within the passenger compartment.

6. Arrests: Search and Seizure: Motor Vehicles. The fact that a defendant has been removed from a vehicle does not prevent the search of the vehicle so long as the search is a contemporaneous incident of that arrest.

7. Police Officers and Sheriffs: Search and Seizure. A warrantless search by law enforcement officers is proper where the officers have obtained the consent of a third party who possesses common authority over the premises.

8. Police Officers and Sheriffs: Search and Seizure. A warrantless search is valid when based upon consent of a third party who the police, at the time of the search, reasonably believed possessed common authority over the premises, but who in fact did not.

9. Constitutional Law: Search and Seizure: Motor Vehicles. The Fourth Amendment assures individuals not that no search of one's vehicle will occur unless one consents, but that no such search will occur that is unreasonable. The reasonableness of the search depends on the surrounding circumstances.

10. Search and Seizure. Even if an individual invites a search, where the surrounding circumstances are such that a reasonable person would objectively doubt the invitation's validity, the invitation should not be acted upon without further inquiry.

11. Search and Seizure. Common authority justifying a valid consent to search rests on mutual use of the property by persons generally having joint access or control for most purposes.

12. Police Officers and Sheriffs: Search and Seizure: Motor Vehicles: Probable Cause. Probable cause to search a vehicle must be based on an officer's reasonable belief based on personal knowledge or other trustworthy information that an offense has been or is being committed.

13. Arrests: Search and Seizure: Motor Vehicles. An inventory search is permissible after an arrest where the search is preceded by lawful custody of the vehicle and the search is conducted pursuant to standardized inventory criteria or established routine.

14. Constitutional Law: Police Officers and Sheriffs: Search and Seizure: Proof. The State bears the burden of proving that a law enforcement agency's search was made pursuant to standardized criteria or established routine as required by the Fourth Amendment. A failure of proof on the State's behalf requires a finding that the search suffered from constitutional infirmities.

Appeal from the District Court for Washington County: DARVID D. QUIST, Judge. Reversed and remanded with directions to dismiss.

Nile K. Johnson, of Johnson & Mock, Blair, for appellant.

Don Stenberg, Attorney General, and James A. Elworth for appellee.

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

MILLER-LERMAN, Chief Judge.

Wayne L. Konfrst was convicted in a bench trial of possession of a controlled substance with intent to deliver, a violation of Neb.Rev.Stat. § 28-416(1)(a) (Cum.Supp.1994). He appeals, claiming that the contraband evidence admitted at trial was seized in violation of his right to be free from unreasonable searches and seizures guaranteed by the 4th and 14th Amendments to the U.S. Constitution and article I, § 7, of the Nebraska Constitution. Because the evidence was seized in violation of Konfrst's constitutional rights, we reverse his conviction and remand the cause with directions to dismiss.

STATEMENT OF FACTS

Following amendment of the original information on June 16, 1995, and dismissal of another charge on July 10, Konfrst was charged with possession of a controlled substance with intent to deliver, the incident alleged to have occurred in Washington County, Nebraska.

Prior to trial, Konfrst filed a motion to suppress any evidence found as a result of the search of his vehicle. The motion was denied. The trial court made no specific findings regarding the basis for its denial. Konfrst properly objected to the admission of the challenged evidence at trial.

Konfrst also filed a motion to exclude testimony regarding statements allegedly made to officers by David Uehling. This motion was denied. The trial court made no specific findings regarding the basis for its denial. Uehling died in an automobile accident a short time after the initial arrest of Konfrst took place.

The record from the suppression hearing of November 4, 1994, and the trial conducted on July 10, 1995, shows the following facts. See State v. Huffman, 181 Neb. 356, 148 N.W.2d 321 (1967), cert. denied 386 U.S. 1024, 87 S.Ct. 1384, 18 L.Ed.2d 466. See, also, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). At about 1:30 a.m. on June 25, 1994, Officer Larry Sanchez of the Blair Police Department was on patrol in downtown Blair. 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 drive up on the sidewalk. Sanchez activated his lights and followed the Blazer for approximately a block, during which time the Blazer turned into an alley behind the Blue Ribbon Bar. The Blazer turned westbound into the alley as Sanchez turned southbound, some distance behind the Blazer.

Sanchez' testimony is in conflict as to what happened next in the alley. At the suppression hearing, he testified that before he approached the Blazer, he observed three people exit it, Konfrst from the driver's side and Amy Goldyn and Uehling from the passenger side. At trial, he testified that all the occupants were inside the Blazer when he first approached it. Nevertheless, Sanchez testified at trial that the Blazer was stopped and parked in a marked parking stall behind the bar and was not on a public roadway blocking traffic in any way.

Sanchez approached Konfrst, whom he had observed driving the Blazer; asked for his driver's license and registration; smelled alcohol on Konfrst's breath; and then administered several field sobriety tests to Konfrst. The tests included the walk-and-turn test, the one-legged stand, the finger-to-nose test, and recitation of the alphabet. At all times that Sanchez had contact with Konfrst, Konfrst was outside the vehicle, and Sanchez did not look inside the vehicle. After Konfrst failed the field sobriety tests, Sanchez arrested him for driving while under the influence of alcohol (DUI), placed Konfrst in his patrol car, and removed him from the scene. Sanchez testified that he took Konfrst to a law enforcement facility.

Backup officer Jim Murcek arrived at the scene at some point during the administration of the field sobriety tests. Murcek testified that when he arrived at the scene, Konfrst was "some distance ... approximately 25 feet" away from the vehicle, and one other male and one female were standing nearby. 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." Murcek then testified The evidence regarding control and ownership of the vehicle is as follows: The parties stipulated to the testimony of Mary Jo Harris in an exhibit received into evidence at trial. The parties stipulated that if Harris were called she would state that she is the mother of Konfrst, that the Blazer was registered in her name, and that Konfrst was the purchaser of the Blazer and its primary operator up until the time of his arrest.

that he believed Uehling looked drunk and that he did not think Uehling should operate the vehicle. Murcek testified that Uehling stated "it would be better if Amy Goldyn took the vehicle."

In connection with the control of the vehicle, Sanchez initially testified at the suppression hearing that the vehicle was left in the custody of his backup officers when he took Konfrst to the law enforcement facility and did not indicate that Konfrst said anything about giving anyone else at the scene control of the vehicle. However, Sanchez then testified during cross-examination that Konfrst told Cpl. Joseph Lager, a backup officer at the scene, that the vehicle was in the possession of Uehling. At trial, during direct examination, Sanchez testified that he did not hear Konfrst say "anything to anybody" prior to leaving the scene. On redirect, after refreshing his recollection with his police report, Sanchez testified that he had heard Konfrst say that he had had three or four beers, but Sanchez made no mention of Konfrst's delegating control of his vehicle to anyone else.

Lager was the supervisor on duty the night of June 25, 1994, and he went...