State v. Lee

• Decision Date: 04 April 2003
• Docket Number: No. S-01-1321.,S-01-1321.
• Citation: 265 Neb. 663,658 N.W.2d 669
• Parties: STATE of Nebraska, Appellee, v. Kandie A. LEE, Appellant.
• Court: Nebraska Supreme Court

658 N.W.2d 669

265 Neb. 663

STATE of Nebraska, Appellee, v. Kandie A. LEE, Appellant.

No. S-01-1321.

Supreme Court of Nebraska.

April 4, 2003.

James R. Mowbray and Kelly S. Breen, of Nebraska Commission on Public Advocacy, Lincoln, for appellant.

Don Stenberg, Attorney General, and David Arterburn, Lincoln, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

PER CURIAM.

I. INTRODUCTION

Kandie A. Lee was involved in a traffic stop during which sheriff's deputies became suspicious that Lee was involved in drug activity. After a canine sniff alerted the officers to the presence of illegal drugs in Lee's vehicle, a search warrant was obtained. A search of Lee's vehicle produced methamphetamine.

Following a hearing, Lee's motion to suppress was denied. A trial was held in Saline County District Court on stipulated facts, and Lee was convicted of possession of a controlled substance. Lee was sentenced to a term of 20 months' to 5 years' imprisonment. This appeal followed. We moved this case to our docket pursuant to our authority to regulate the caseload between this court and the Nebraska Court of Appeals. See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995).

II. FACTUAL BACKGROUND

On November 30, 2000, Sgt. Jeff Mulbery and Deputy Anthony Lytle of the Saline County sheriff's office were on routine patrol in Saline County. At approximately 9 p.m., the officers conducted a security check of the Walnut Creek Recreation Area, an area owned by the local natural resources district and operated by the Nebraska Game and Parks Commission. Information received by the Saline County sheriff's office prior to this incident indicated that "drug dealers and users are meeting at this location for drug transactions."

During this security check, Mulbery and Lytle observed a green 1993 Plymouth Laser automobile being operated in an area marked by a sign indicating there were to be no unauthorized vehicles beyond that point. This area, according to Mulbery, was not "well lighted" and was "dark." Mulbery and Lytle then stopped the vehicle, which was occupied by Lee.

Upon contacting Lee at approximately 9:03 p.m., Mulbery inquired as to why Lee was present in an area restricted to authorized vehicles. Lee's initial response was that she was there to meet her boyfriend, Stacy Talbott. According to Mulbery, Lee appeared "really nervous" while being questioned. Lytle, who had accompanied Mulbery to Lee's vehicle, requested Lee's operator's license, after which request both officers returned to the patrol car. Lytle then requested the dispatcher at the sheriff's office to run a check of Lee's operator's license. The check disclosed that there were no outstanding warrants and that Lee's operator's license was not under suspension. In addition, at approximately the same time, Mulbery contacted Deputy Kenneth Uher, requesting that Uher report to the scene with the county's drug dog. Shortly thereafter, Mulbery and Lytle received information from Uher that Lee had "prior drug arrests."

Upon being advised of Lee's prior drug arrests, Mulbery and Lytle approached Lee a second time and again asked why she was at the recreation area. This time, according to Mulbery, Lee's story "turned around." Lee now told the officers she was there to meet her boyfriend, whose name was "Johnson," and that Talbott, whom Lee had earlier identified as her boyfriend, was in fact Lee's brother. The officers then asked for consent to search Lee's vehicle, which Lee refused.

Uher and the county's drug dog arrived on the scene at 9:21 p.m. After sniffing the vehicle, the dog alerted to the presence of illegal drugs. At that point, Lee was again asked for permission to search the vehicle, and again permission was denied. Lee was then told she was free to leave, but that her vehicle would need to remain at the scene until a search warrant was obtained. After the search warrant was issued, Lee's vehicle was searched. Methamphetamine was found in Lee's purse, which was located on the front seat of the vehicle.

III. ASSIGNMENTS OF ERROR

Lee assigns, rephrased, that the district court erred in (1) failing to excise from the probable cause affidavit averments regarding a canine sniff which were the product of an illegal detention and seizure, (2) failing to grant her motion to suppress evidence found in the search of her vehicle on the ground that there was no probable cause to issue a search warrant, and (3) finding that the search of her vehicle was justified under the search incident to an arrest exception to the warrant requirement.

IV. STANDARD OF REVIEW

In reviewing a trial court's ruling on a motion to suppress evidence, ultimate determinations of reasonable suspicion are reviewed de novo by an appellate court, while findings of historical fact are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge. State v. Kelley, 265 Neb. 563, 658 N.W.2d 279 (2003).

V. ANALYSIS

Lee's primary contention is that the officers were not justified in detaining her while awaiting the arrival of the drug dog and that, therefore, "the detention of herself and her vehicle [was] illegal; and, the subsequent warrant issued was the fruit of this illegality." Brief for appellant at 6. As a result, Lee argues that any averment relating to the canine sniff must be excised from the affidavit in support of the search warrant. Lee contends that once the canine sniff is excised, the remaining averments do not support a finding of probable cause justifying the issuance of the warrant.

1. INITIAL STOP

We determine that the initial traffic stop was valid. It is well established that a traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle. State v. Dallmann, 260 Neb. 937, 621 N.W.2d 86 (2000). Nebraska law provides that local authorities, including natural resources districts and the Game and Parks Commission, are permitted to "place and maintain such traffic control devices upon highways under their jurisdictions ... to indicate and to carry out the provisions of the Nebraska Rules of the Road or to regulate, warn, or guide traffic." Neb.Rev.Stat. § 60-6,121 (Reissue 1998). Furthermore, Neb. Rev.Stat. § 60-682 (Reissue 1998) provides that "a violation of any provision of the rules shall constitute a traffic infraction." Mulbery and Lytle's observation of Lee's vehicle in an unauthorized area provided probable cause for the officers to stop Lee.

At the time Lee was initially stopped, the officers were entitled to conduct an investigation "` "reasonably related in scope to the circumstances that justified the interference in the first place."` " State v. Anderson, 258 Neb. 627, 634, 605 N.W.2d 124, 131 (2000) (quoting U.S. v. Bloomfield, 40 F.3d 910 (8th Cir.1994)). Such an investigation may include asking the driver for an operator's license and registration, requesting that the driver sit in the patrol car, or asking the driver about his or her destination or purpose. State v. Anderson, supra. A computer check may also be run to determine whether the vehicle involved in the stop has been stolen or whether there are outstanding arrest warrants for any of the individuals in the vehicle. Id. In order to expand the scope of the traffic stop and continue to detain the person for additional investigation, an officer must have a reasonable, articulable suspicion that the person is involved in criminal activity beyond that which initially justified the interference. Id. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

We must therefore initially determine the point at which the "` "circumstances that justified the interference in the first place"`" ceased and continued detention began. See State v. Anderson, 258 Neb. at 634, 605 N.W.2d at 131.

2. POINT AT WHICH CONTINUED DETENTION BEGAN

The record shows that Lee was not given a citation as a result of her vehicle's being found in an unauthorized location within the recreation area. As such, the event which frequently determines the point after which reasonable suspicion must be found is not present. See, e.g., State v. Anderson, supra; State v. Gutierrez, 9 Neb.App. 325, 611 N.W.2d 853 (2000); State v. McGinnis, 8 Neb.App. 1014, 608 N.W.2d 605 (2000). The record does establish, however, that shortly after Uher advised Mulbery that Lee "had prior drug arrests," the officers requested permission to search the vehicle, which request was denied. Thereafter, Lee and her vehicle were detained at the scene until the arrival of Uher and the drug dog. That such continued detention constituted a seizure for purposes of the Fourth Amendment is not contested by the State in its brief. The State acknowledges that "[f]ollowing the completion of the initial traffic stop and after consent to search had been denied, Sgt. Mulbery continued to detain Lee until such time as the drug dog arrived." Brief for appellee at 9. Based on our de novo review of the record, we determine that Lee's continued detention by the officers after consent to search was denied constituted a seizure for purposes of the Fourth Amendment. See State v. Anderson, supra.

We further determine it was at this point that the reasonable scope of the initial traffic stop ended. Once Lee denied permission to search, she had a right to proceed, unless during the period of lawful detention, Mulbery and Lytle developed a reasonable, articulable suspicion that Lee was involved in illegal activity beyond that which justified the interference in the first place. See, State v. Anderson, supra; State v. McGinnis, supra. See, also, Terry v. Ohio, supra.

3. REASONABLE, ARTICULABLE SUSPICION

Reasonable suspicion entails some minimal level of objective justification for detention, something more than an inchoate and unparticularized suspicion or "hunch," but less than the level of suspicion required for probable cause. State v. Anderson, 258...