State v. Neely

• Decision Date: 02 November 1990
• Docket Number: No. 90-696,90-696
• Citation: 236 Neb. 527,462 N.W.2d 105
• Parties: STATE of Nebraska, Appellant, v. Cheryl NEELY, Appellee.
• Court: Nebraska Supreme Court

Page 105

462 N.W.2d 105

236 Neb. 527

STATE of Nebraska, Appellant, v. Cheryl NEELY, Appellee.

No. 90-696.

Supreme Court of Nebraska.

Nov. 2, 1990.

Charles W. Campbell, York County Atty., for appellant.

James H. Truell, York County Public Defender, for appellee.

WHITE, Justice.

This is an appeal pursuant to Neb.Rev.Stat. § 29-824 (Reissue 1989) to one judge of this court, challenging the district court's order to suppress evidence found in the defendant's automobile.

Defendant, Cheryl Neely, is currently charged with attempted burglary, possession of burglar's tools, theft, and being a felon in possession of a firearm, and as a habitual criminal under Neb.Rev.Stat. § 29-2221 (Reissue 1989). She was arrested on November 2, 1989, as she left the Super 8 Motel in York, Nebraska. Neely was identified by the night clerk as being at the Super 8 Motel at approximately 3:30 a.m. He observed her walk through the lobby and come to a stop in front of room 207. He testified that she stood in front of the door with her hands near the doorknob for a period of time without opening the door or calling out to the occupants of the room. She then turned and looked in the general direction of the clerk and exited the motel. The clerk testified that Neely was not registered at the motel that evening and that two men were registered in room 207.

The clerk testified that he was aware that the Super 8 Motel had been burglarized in April and December 1988. He stated that in December 1988 he saw a black female enter the motel through the front door and go up the stairs. He described her as wearing glasses and dark clothing and being of medium height and slender build. He testified that a wallet containing cash was taken from one of the rooms that night and was later recovered empty in another room. He testified that the woman he saw enter the motel in December 1988 was the same woman who entered the motel on November 2, 1989.

As part of the investigation following the 1988 thefts from the Super 8 Motel, the York Police Department had received information from the Kearney Police Department regarding similar motel room thefts that had occurred in Kearney and elsewhere in Nebraska and Colorado. The bulletin received from the Kearney Police Department described a suspect similar to Neely. Additionally, on April 29, 1989, the York Police Department received a Teletype from the Hays, Kansas, police department notifying them of similar motel burglaries at the Super 8 Motel in Hays, Kansas. The Teletype also described a suspect similar to Neely.

After the clerk observed Neely in the motel on November 2, he called the York Police Department and informed them that he had an individual "trying to enter a room." He did not report anything stolen. Shortly after the call from the clerk, York Police Officers Wolfe and Cobb were dispatched to the Super 8 Motel. As Officer Wolfe approached the motel in his patrol car, he observed a black female with glasses driving a vehicle with Colorado license plates exiting the service road leading from the Super 8 Motel. He testified that he knew about similar burglaries from other jurisdictions where the suspect was a black female wearing dark clothing and glasses and driving a vehicle with Colorado license plates.

Officer Cobb contacted the clerk inside the motel, who described Neely. Officer Cobb then instructed Wolfe to stop the vehicle. The driver of the vehicle identified herself as Cheryl Neely and the passenger, a black male, stated his name was Lee Turner, but could not provide any identification. Officer Wolfe testified that when he stopped Neely he saw only a soda bottle, other litter, and some baggage scattered in the interior of the car.

Officer Cobb instructed Wolfe to place Neely under arrest. The testimony is in conflict as to whether she was initially charged with only criminal trespass or with both criminal trespass and attempted burglary. Wolfe took Neely back to the Super 8 Motel, where the desk clerk identified her as the person he had seen in the motel that night. Wolfe then transported her to the police station for booking. Wolfe testified that both he and Cobb were aware that nothing had been reported stolen from the Super 8 Motel that night.

Officer Wolfe impounded Neely's vehicle because the passenger accompanying her did not have a driver's license. The vehicle was towed to the police department and then searched by Officer Cobb approximately 20 minutes after the vehicle arrived at the police station. Cobb did not obtain a warrant to search the vehicle or any containers found within the vehicle.

Officer Cobb searched the interior passenger compartment of the car as well as the trunk. In the trunk he opened and searched a brown suitcase that belonged to Neely. Inside the suitcase he found 22 "do not disturb" signs and identification belonging to a Sarah Hazel Francis. He also opened and searched a camera case, where he found a 9-millimeter handgun and some ammunition. Officer Cobb testified that Neely identified the camera case as hers while she was being questioned at the police station. After the search Neely's belongings were placed in the locked inventory room of the York County Jail.

Following Neely's preliminary hearing, Officer Cobb again searched her suitcase as well as her purse while both items were located in the jail's locked inventory room. He did not have a warrant to search either the suitcase or the purse. He testified that he searched the suitcase in order to seize the "do not disturb" signs located inside the suitcase in preparation for trial.

Officers Wolfe's and Cobb's testimony concerning the purpose for the search of Neely's vehicle is contradictory. Officer Wolfe testified at both the preliminary and suppression hearings that he impounded the vehicle because Neely's passenger did not have a driver's license. He stated that the vehicle was the police department's responsibility and was searched in order to compile an inventory of its contents. He referred to the search as an inventory search on at least one occasion. Officer Cobb testified that the initial purpose of the search was to inventory the contents of the car. Cobb himself compiled the inventory list, but he also stated that the search was incident to arrest and he was looking for criminal evidence while conducting the search. The State did not present any evidence as to what were the standard inventory procedures used by the York Police Department.

Neely sought to suppress all the evidence found inside the suitcase and the camera case, as well as any statements made by her as a result of the search. She claimed the warrantless search of the suitcase and camera case violated her fourth amendment rights. Her initial motion to suppress the evidence was overruled by the district court on July 25, 1990. Neely then moved to suppress the evidence found in the second search of the suitcase conducted while the suitcase was held in the jail inventory room.

The district court then sustained both motions, reversing the previous ruling. The court based its decision on the recent U.S. Supreme Court case of Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990), having found that the prosecution failed to present sufficient evidence on the existence of standard inventory procedures used by the York Police Department.

In its appeal for summary review, the State has assigned as error the following: First, the district court erred in ruling that the search of the vehicle was an inventory search governed by the rule in Florida v. Wells, supra; second, the court erred by failing to uphold the search as justified under the "automobile exception" to the warrant requirement; third, the court erred in ruling that the defendant had an expectation of privacy in her property held in the inventory lockup of the York County Jail; and last, the court erred in suppressing all the evidence found from the search of the suitcase and the camera case, as well as any statements made by the defendant.

The issue in this case is whether Neely's fourth amendment rights were violated when Officer Cobb conducted the warrantless search of her suitcase and camera case following her arrest.

The fourth amendment to the U.S. Constitution protects people against unreasonable searches and seizures by the government. U.S. Const. amend. IV. The Nebraska Constitution has a similar provision. See Neb. Const. art. I, § 7. The fourth amendment was made applicable to the states in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Before government action constitutes a search under the fourth amendment, a person must exhibit a subjective expectation of privacy in the thing to be searched. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). In addition, the expectation of privacy must be both reasonable and recognized by society. Id. It is obvious that Neely had a reasonable and legitimate expectation of privacy in her luggage. Officer Cobb's actions constituted a search under the fourth amendment.

Searches under the fourth amendment are unlawful only if unreasonable. A criminal search conducted pursuant to a warrant supported by probable cause is usually considered reasonable. However, the U.S. Supreme Court has created several categories of searches considered reasonable under the fourth amendment though conducted without a warrant. I must decide if this warrantless search was reasonable and therefore not violative of the fourth amendment. Since the testimony and the assigned errors in the State's brief are conflicting as to which type of search this was, I will consider the legality of the search under three recognized exceptions to the warrant requirement: the search incident to arrest exception, the automobile exception, and the inventory exception.

THE SEARCH INCIDENT TO ARREST EXCEPTION

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