State v. McGinnis

• Decision Date: 08 February 2000
• Docket Number: No. A-99-419.,A-99-419.
• Parties: STATE of Nebraska, appellee, v. Robert F. McGINNIS, appellant.
• Court: Nebraska Court of Appeals

608 N.W.2d 605

8 Neb.App. 1014

STATE of Nebraska, appellee, v. Robert F. McGINNIS, appellant.

No. A-99-419.

Court of Appeals of Nebraska.

February 8, 2000.

Arthur R. Langvardt, of Langvardt & Valle, Hastings, for appellant.

Don Stenberg, Attorney General, and Marie Colleen Clarke, Lincoln, for appellee.

HANNON, SIEVERS, and INBODY, Judges.

INBODY, Judge.

I. INTRODUCTION

Robert F. McGinnis appeals his convictions for possession of marijuana with the intent to deliver, in violation of Neb.Rev. Stat. § 28-416(1)(a) (Reissue 1995), and possession of marijuana or a controlled substance without the official indicium, in violation of Neb.Rev.Stat. § 77-4309 (Reissue 1996). His sole assigned error on appeal is the district court's overruling of his motion to suppress. For the reasons set forth herein, we reverse, and remand with directions to dismiss.

II. STATEMENT OF FACTS

On May 30, 1996, an information was filed in Hamilton County District Court charging McGinnis with count I, possession of marijuana with the intent to deliver, and count II, possession of marijuana or a controlled substance without the official indicium. On June 3, McGinnis filed a motion to suppress all evidence obtained from McGinnis or his vehicle for the reason that said evidence was obtained in violation of his constitutional rights. A hearing on McGinnis' motion to suppress was held on April 24, 1997. The following facts were adduced by the State: At about 11:25 a.m. on April 12, 1996, Nebraska State Patrol Trooper Andy Allen was eastbound on Interstate 80 in Hamilton County, Nebraska, when he observed a small white vehicle ahead traveling at a speed slightly above the speed limit, catching up with a "pack" of other eastbound traffic. Trooper Allen observed that the white car "would get right up real close to the bumper of the vehicles ahead of him following way too close — well, less than the two-second rule .... and went on around [the pack]." Trooper Allen stopped the vehicle to issue a warning ticket for following too closely to the driver and sole occupant of the vehicle, McGinnis.

Upon making contact with McGinnis, Trooper Allen advised McGinnis why he had been stopped and noted that McGinnis' hands were shaking and that he appeared to be more nervous than most persons under the same circumstances. While receiving McGinnis' Washington State driver's license, rental papers from San Francisco on the vehicle, and flight tickets from Seattle to San Francisco, Trooper Allen conversed with McGinnis about his destination and the purpose of his trip. McGinnis indicated to Trooper Allen that he was on his way to Buffalo, New York, to pick up his brother and then visit his grandfather who was also in New York, but "in the hospital, failing ill." Trooper Allen also learned that McGinnis had flown from Seattle to San Francisco, rented the car at the San Francisco airport, and left from that location. When Trooper Allen asked why McGinnis did not fly to New York, McGinnis stated that he had never driven across the country before and that he wanted to try it one time.

Trooper Allen returned to his patrol vehicle to check on McGinnis' license and the car rental documents, and to write a warning ticket for following too closely. He returned to McGinnis' vehicle, handed McGinnis back his paperwork and the warning ticket, and then asked McGinnis if he was carrying any firearms or drugs. According to Trooper Allen, McGinnis asserted that he was not carrying any weapons or drugs in the vehicle, but would not look directly at Trooper Allen; instead, McGinnis looked down and straight ahead.

Trooper Allen then asked McGinnis if he would have any problem with having the vehicle searched, to which McGinnis inquired whether he had to grant permission. Trooper Allen explained to McGinnis that while he did not have to consent to a search of the interior of the vehicle, a drug detection dog could sniff the exterior air surrounding the vehicle. McGinnis then stated that he would like to "just go on my way if I could." At that point, Trooper Allen told McGinnis that he was going to summon a drug detection dog to perform a sniff of the exterior of McGinnis' vehicle.

Trooper Allen then contacted Nebraska State Patrol Trooper Gerald Schenck to bring his drug detection dog, Nero, to the scene. Trooper Schenck arrived on the scene in less than 10 minutes, and a canine sniff around McGinnis' vehicle was conducted. When Nero reached the "right rear quarter panel" of the vehicle, Nero "indicated" by barking and scratching at that area. Thereafter, stating concern over the possibility that someone who had previously used the rental car had left contraband in it, McGinnis consented to allow the interior of his vehicle to be searched. However, McGinnis specifically declined to consent to a search of the vehicle's trunk, stating that he was transporting adult magazines to New York for his brother. The subsequent search of the interior also resulted in Nero indicating to the trunk area through the backseat cushion. Trooper Schenck informed McGinnis that "`I'm opening it up,'" and he retrieved the keys from the ignition and opened the trunk of the vehicle.

The troopers then conducted a search of the trunk of the vehicle where they located 11 large packages, which contained 28½ pounds of marijuana, wrapped in dryer sheets and plastic. There were no official stamp labels or other indicia on or near the packages of marijuana.

On June 25, 1997, the district court overruled McGinnis' motion to suppress, finding that the stop of McGinnis' vehicle was proper and that Trooper Allen's detention of McGinnis following the issuing of the warning ticket was supported by a "particularized and objective basis for suspecting the defendant of criminal activity."

A stipulated trial was held on October 31, 1997. McGinnis renewed the issues raised in his motion to suppress. The court found McGinnis guilty of the charged offenses, and on April 16, 1999, McGinnis was sentenced to 20 months' to 3 years' imprisonment on count I, possession of marijuana with the intent to deliver. On count II, possession of marijuana or a controlled substance without the official indicium, McGinnis was sentenced to imprisonment of 1 year with credit for 27 days served. The sentences were ordered to be served concurrently. McGinnis has timely appealed to this court.

III. ASSIGNMENT OF ERROR

McGinnis' sole assigned error on appeal is that the district court erred in overruling his motion to suppress.

IV. STANDARD OF REVIEW

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. 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. State v. Ortiz, 257 Neb. 784, 600 N.W.2d 805 (1999); State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999). To the extent questions of law are involved, an appellate court is obligated to reach conclusions independent of the decisions reached by the courts below. Ortiz, supra; Johnson, supra.

In reviewing a district court's ruling on a motion to suppress evidence obtained through a warrantless search or seizure, an appellate court conducts a de novo review of reasonable suspicion and probable cause determinations, and reviews factual findings for clear error, giving due weight to the inferences drawn from those facts by the trial judge. State v. Bartholomew, 258 Neb. 174, 602 N.W.2d 510 (1999). See State v. Soukharith, 253 Neb. 310, 570 N.W.2d 344 (1997).

V. DISCUSSION

1. INITIAL STOP

First, we address whether the initial stop of McGinnis was proper. Trooper Allen testified that he observed McGinnis getting "right up real close to the bumper of the vehicles ahead of him following way too close — well, less than the two-second rule .... and went on around [the pack]" and that he stopped McGinnis to give him a warning ticket for following too closely.

When a police officer observes a traffic offense, no matter how minor, the officer has probable cause to stop the driver of the vehicle. Bartholomew, supra; State v. Chronister, 3 Neb.App. 281, 526 N.W.2d 98 (1995). If an officer has probable cause to stop a violator, the stop is objectively reasonable, and any ulterior motivation on the officer's part is irrelevant. Bartholomew, supra.

Following too closely is a violation of Neb.Rev.Stat. § 60-6,140(1) (Reissue 1998), which provides: "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, and such driver shall have due regard for the speed of such vehicles and the traffic upon and the condition of the roadway." The standard by which traffic stops are judged is an objective one, and thus if an objectively lawful reason exists for the stop, the fact that the officer hopes to secure consent to search does not make a traffic stop illegal or pretextual. See U.S. v. Pereira-Munoz, 59 F.3d 788 (8th Cir.1995) (applying standard of objective reasonableness and holding that officer's actual state of mind is irrelevant for purposes of determining lawfulness of stop).

Trooper Allen observed McGinnis committing a traffic offense and consequently had probable cause to conduct the stop. Therefore, the initial stop of McGinnis' vehicle was proper.

2. DETENTION

We proceed to address the continued detention of McGinnis after the purpose of the traffic stop had been completed. Once the warning ticket had been issued, McGinnis had the right to proceed, unless during the period of lawful detention, Trooper Allen developed other information reasonably justifying a continued investigative detention, which is commonly referred to as a "Terry stop....