State v. Lancelotti
| Decision Date | 29 June 1999 |
| Docket Number | No. A-98-1152,A-98-1152 |
| Citation | 8 Neb.App. 516,595 N.W.2d 558 |
| Parties | STATE of Nebraska, Appellant, v. Bradley J. LANCELOTTI, Appellee. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Constitutional Law: Search and Seizure: Appeal and Error. When facts are undisputed, an appellate court reviews de novo the question of whether a search 2. Constitutional Law: Search and Seizure. The test used to determine if a defendant has an interest protected by the Fourth Amendment to the U.S. Constitution is whether the defendant has a legitimate expectation of privacy in the invaded space.
has occurred within the meaning of the Fourth Amendment to the U.S. Constitution.
3. Constitutional Law: Search and Seizure. A subjective expectation of privacy is legitimate if it is one that society is prepared to recognize as reasonable.
4. Constitutional Law: Search and Seizure. What one knowingly exposes to the public is not a subject of protection under the Fourth Amendment to the U.S. Constitution.
5. Constitutional Law: Search and Seizure. Passengers who place their luggage in the overhead public storage on a commercial carrier can reasonably expect that other passengers will touch, move, or adjust the luggage in order to retrieve or make room for their own luggage.
Robert Francis Cryne, Deputy Douglas County Attorney, for appellant.
Thomas C. Riley, Douglas County Public Defender, and Scott C. Sladek, Omaha, for appellee.
The State appeals a district court order suppressing evidence as allowed by Neb.Rev.Stat. §§ 29-824 to 29-826 (Cum.Supp. 1998). In this single-judge review, I am presented with an issue of first impression, that is, whether squeezing the exterior of luggage which has been placed in an overhead storage compartment of a bus in an area accessible to the public constitutes a search within the meaning of the Fourth Amendment to the U.S. Constitution.
Richard Lutter, an investigator with the Nebraska State Patrol, was assigned to work the Omaha, Nebraska, Greyhound bus station. Lutter's duties were to watch the buses coming from the southwestern United States and heading for Chicago or New York. Lutter testified that it has been his experience that the southwestern area, including California and Texas, is the "source area" of narcotics distribution.
On the afternoon of February 24, 1998, Greyhound bus No. 2919 stopped in Omaha while en route to Chicago. After all of the passengers had left the bus, Lutter boarded and began observing luggage that had been left in the overhead compartment of the bus. The overhead compartment is an open area above the seats where passengers can store carry-on articles.
Lutter noticed a black backpack, which appeared to be new, and he observed no identification tags on the backpack. The overhead compartment was "eye level, head level pretty much" for Lutter. Lutter leaned forward, reached up, placed a hand on either side of the backpack, and squeezed in order to force air out. Lutter described this procedure as "poofing" and stated that it was designed to cause "an air exchange so that [officers] can smell the air from the bag." This procedure has also commonly been referred to as "prepping." Lutter testified that when he performed this procedure, he was able to detect the odor of marijuana. When asked whether he felt anything when he poofed the backpack, Lutter responded that when he put his hands on the exterior sides of the backpack, he felt that "the bag was basically stuffed full with hard--it was--felt like brick-shaped material." Lutter testified that brick-shaped objects were a common form for marijuana to be shipped in.
Because of Lutter's suspicions, Greyhound personnel announced that the "bus was going to be terminated" and requested that all passengers reboard Lutter was observing from a distance to see who claimed the black backpack. Bradley J. Lancelotti went to the counter and claimed the backpack. Lutter then approached Lancelotti and advised Lancelotti that Lutter was a law enforcement officer (Lutter was not in uniform). Lutter asked Lancelotti for identification and ticket information. After returning the articles to Lancelotti, Lutter asked if Lancelotti was carrying any illegal drugs. Lancelotti indicated that he was not. Lutter then asked for permission to search Lancelotti's person and luggage. Lancelotti refused permission.
the bus, remove their personal items, and take the items into the main terminal. The black backpack, a black and white bag, and a jacket were left on the bus. Greyhound bus personnel collected these items, took the items to the ticket counter, and made a general announcement that the items could be claimed at the counter.
Lutter then asked Lancelotti if he would allow a trained canine to sniff his luggage. Lancelotti acceded to this request. A canine was brought in, and several bags were presented to it. The canine alerted to Lancelotti's bag. A search warrant was then obtained. Lancelotti was subsequently charged with possession of marijuana with intent to deliver, a Class III felony; possession of more than 1 pound of marijuana, a Class IV felony; and possession of cocaine with intent to deliver, a Class II felony.
Prior to trial, Lancelotti filed a motion to suppress the evidence discovered in his backpack. Lancelotti alleged that the information provided in the search warrant was based upon information obtained in violation of Lancelotti's constitutional rights. After a hearing held September 30 and October 20, 1998, the district court concluded that the manipulation of the backpack was an illegal search. Accordingly, the court sustained the motion to suppress. The State timely appeals. For the reasons set forth below, I reverse, and remand.
The State alleges, restated, that the district court erred in finding that squeezing the sides of the backpack constituted an illegal search.
A trial court's ruling on a motion to suppress evidence, 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. State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999); State v. Chitty, 253 Neb. 753, 571 N.W.2d 794 (1998); State v. Aguirre-Rojas, 253 Neb. 477, 571 N.W.2d 70 (1997). 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. Id.
Regarding questions of law, an appellate court is obligated to reach a conclusion independent of the determinations reached by the trial court. State v. Hill, 255 Neb. 173, 583 N.W.2d 20 (1998).
When facts are undisputed, an appellate court reviews de novo the question of whether a search has occurred within the meaning of the Fourth Amendment to the U.S. Constitution. U.S. v. Nicholson, 144 F.3d 632 (10th Cir.1998).
The events leading to the discovery of the marijuana and cocaine are undisputed in this case. As found by the district court, Lutter
"poofed" [Lancelotti's bag] or squeezed it as [officers] had with each piece of luggage in the rack, to allow air inside the bag to be exuded through the pours [sic] or other openings in the bag, and noted a smell of marijuana. There was no odor of marijuana until the bag was poofed. Simultaneously with the poofing of the backpack [Lutter] felt brick shaped objects in its interior, which is a common method for shipping marijuana.
Based upon these facts, the district court concluded that Lutter's "simultaneous poof and manipulation" was a search within the meaning of the Fourth Amendment.
The State contends "Lancelotti had a substantially diminished expectation of privacy in the backpack because he placed the bag in the public overhead compartment of a commercial carrier and did not take the bag with him when he disembarked from the bus during its layover at the Greyhound terminal." Brief for appellant at 9.
Thus, the State argues, the squeezing of the backpack was not a search, because Lancelotti had no legitimate expectation of privacy in the exterior of his backpack.
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 invaded space. See, State v. Merrill, 252 Neb. 510, 563 N.W.2d 340 (1997); State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996). A subjective expectation of privacy is legitimate if it is one that society is prepared to recognize as reasonable. State v. Merrill, supra.
The Supreme Court has "affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment." United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983).... However, "it is generally recognized that the privacy interest of people who are in transit [i.e. on a bus, train, or airplane] on 'public thoroughfares [is] substantially less than those that attach to a fixed dwelling.' " [Citations omitted.] Moreover,"[w]hat one knowingly exposes to the public ... is not a subject of Fourth Amendment protection." California v. Greenwood, 486 U.S. 35, 41, 108 S.Ct. 1625, 1629, 100 L.Ed.2d 30 (1988)....
U.S. v. McDonald, 100 F.3d 1320, 1324-25 (7th Cir.1996).
In order to resolve this case, it is first necessary to determine whether Lancelotti had an expectation of privacy in the exterior of his backpack that society is prepared to recognize as reasonable. This issue is one of first impression in Nebraska. Other courts that have dealt with this issue have uniformly agreed that an officer's touching of a bag's exterior does not necessarily constitute a search. See U.S. v. Nicholson, supra. However, the federal courts have reached varying results as to the...
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...Graham v. State, 146 Md.App. 327, 807 A.2d 75 (2002); Vargas v. State, 18 S.W.3d 247 (Tex.App. 2000). 5. See State v. Lancelotti, 8 Neb.App. 516, 595 N.W.2d 558 (1999), citing U.S. v. Nicholson, 144 F.3d 632 (10th Cir. 1998). 6. See, State v. Anderson, 258 Neb. 627, 605 N.W.2d 124 (2000), d......