State v. One 1987 Toyota Pickup

• Decision Date: 27 October 1989
• Docket Number: 88-980,Nos. 88-979,s. 88-979
• Citation: 447 N.W.2d 243,233 Neb. 670
• Parties: STATE of Nebraska, Appellee, v. ONE 1987 TOYOTA PICKUP, Appellee, Dennis R. Jurgens, Appellant. STATE of Nebraska, Appellee, v. Dennis R. JURGENS, Appellant.
• Court: Nebraska Supreme Court

Page 243

447 N.W.2d 243

233 Neb. 670

STATE of Nebraska, Appellee, v. ONE 1987 TOYOTA PICKUP, Appellee, Dennis R. Jurgens, Appellant.

STATE of Nebraska, Appellee, v. Dennis R. JURGENS, Appellant.

Nos. 88-979, 88-980.

Supreme Court of Nebraska.

Oct. 27, 1989.

Syllabus by the Court

1. Motions to Suppress: Appeal and Error. In determining the correctness of a ruling on a motion to suppress, the Supreme Court will uphold a trial court's findings of fact unless those findings are clearly wrong.

2. Constitutional Law: Search and Seizure: Motor Vehicles. A motorist has a reasonable expectation of privacy which is not subject to arbitrary invasions solely at the unfettered discretion of police officers in the field.

3. Constitutional Law: Search and Seizure: Actions. The exclusionary rule applies to forfeiture actions.

4. Search Warrants: Affidavits: Probable Cause. Where an affidavit used for the purpose of obtaining a search warrant includes illegally obtained facts as well as facts derived from independent and lawful sources, a valid search warrant may issue if the lawfully obtained facts, considered by themselves, establish probable cause to issue the warrant.

5. Criminal Law: Trial: Evidence: Appeal and Error. Error in admitting or excluding evidence in a criminal trial, whether of constitutional magnitude or otherwise, is prejudicial unless it can be said the error was harmless beyond a reasonable doubt.

Kirk E. Naylor, Jr., Lincoln, for appellant.

Robert M. Spire, Atty. Gen., and Kenneth W. Payne, Alliance, for appellee State.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

WHITE, Justice.

After a bench trial on September 19, 1988, appellant, Dennis R. Jurgens, was found guilty of unlawful manufacture and distribution of a controlled substance and possession of marijuana weighing more than 1 pound (case No. 88-980). Subsequently, Jurgens' 1987 Toyota pickup was condemned in a forfeiture action brought by the State pursuant to Neb.Rev. Stat. § 28-431 (Reissue 1985) (case No. 88-979). Jurgens appeals from both determinations; the appeals have been consolidated in this court.

For the reasons set forth below, both criminal convictions are affirmed. The forfeiture order is reversed and remanded for a new trial.

On October 23, 1987, the Nebraska State Patrol conducted a vehicle check stop selective at the junction of Highways 4 and 99 in Pawnee County, Nebraska. This check stop selective was conducted by four troopers and was to last from 10 a.m. to noon. A "selective" is a concentration of officers in a certain area for a particular purpose. The purpose of this selective was to check drivers for licensing and vehicles for registration and equipment violations. All vehicles were required to stop, whereupon the license, registration, and vehicle were inspected.

That morning, Jurgens was a passenger in a 1987 Toyota pickup driven by Michael Harms. Jurgens was the registered owner of the pickup. At approximately 11:15 a.m., the vehicle stopped at the check stop, where it was inspected by Troopers Gill and Chrans. Upon approaching the passenger compartment of the vehicle, Trooper Gill detected a strong marijuana odor and noticed a "marijuana substance" on the seat. During the course of their inspection of the pickup's exterior safety equipment, Troopers Gill and Chrans observed, through windows on the vehicle's camper shell, several filled canvas bags. A marijuana leaf was seen on top of one of the bags.

Consequently, Jurgens and Harms were arrested and taken to the Pawnee County jail, and the pickup was impounded and stored at a local auto body shop. That afternoon, Troopers Gill and Chrans obtained a search warrant for the pickup based upon their observations of the pickup earlier that day. A search of the vehicle uncovered large quantities of marijuana and various instruments used in cultivating marijuana.

That same day, Nebraska State Patrol Investigator Dishong obtained a search warrant for Jurgens' farm, located near Table Rock, Nebraska. Investigator Dishong had been investigating marijuana cultivation on the farm since July 1987. On several occasions he made surreptitious inspections of the premises, finding marijuana in various stages of cultivation. The affidavit used to obtain this search warrant detailed Investigator Dishong's extensive investigations and observations of marijuana cultivation on the Jurgens farm. It also contained a one-paragraph reference to the results of the vehicle search conducted earlier that day. A search warrant was issued, and a subsequent search of the farm uncovered large quantities of marijuana and equipment used to produce marijuana.

On January 13, 1988, informations were filed against both Jurgens and Harms. On April 11, Jurgens filed a motion to suppress all evidence discovered as a result of the seizure of the pickup. On April 20, a hearing on this motion was held. Considerable testimony was elicited concerning the State Patrol's method of establishing and conducting the check stop selective. The motion to suppress was later overruled.

On September 19, both Jurgens and Harms were tried at a bench trial. The court admitted, over both defendants' continuing objection, all evidence obtained as a result of the seizure of the pickup at the check stop, including evidence obtained as a result of the search of Jurgens' farm. Jurgens was found guilty of unlawful manufacture and distribution of a controlled substance and possession of marijuana weighing more than 1 pound. He was subsequently sentenced, respectively, to terms of imprisonment of not less than 3 nor more than 10 years and not less than 1 nor more than 3 years, these sentences to run concurrently.

On October 30, 1987, the State initiated forfeiture proceedings against the pickup pursuant to § 28-431. In his answer, Jurgens contended that the vehicle was seized in violation of the fourth amendment to the U.S. Constitution. This issue was treated as a motion to suppress related to the unconstitutional seizure of the vehicle and was considered in the motion to suppress hearing conducted in the criminal case on April 20. The motion was overruled. By stipulation of both parties, evidence adduced at the suppression hearing and at the criminal trial was considered as the sole evidence in the forfeiture determination. On November 14, 1988, the trial court ordered Jurgens' pickup forfeited.

Jurgens appeals from both of these decisions. His sole assignment of error is that the trial court erred in overruling his motions to suppress.

This court has stated that in determining the correctness of a ruling on a motion to suppress, the Supreme Court will uphold a trial court's findings of fact unless those findings are clearly wrong. State v. Marcotte, 233 Neb. 533, 446 N.W.2d 228 (1989). Our review of the record in this case does not disclose whether the trial court made factual findings. In any event, it is not necessary for this court to examine those findings, if any, because it is evident that the trial court erroneously applied the law in overruling the motions to suppress.

Initially, we note that standing is not an issue in this appeal. The State has conceded that Jurgens has standing to challenge the search and seizure of his vehicle.

In State v. Crom, 222 Neb. 273, 383 N.W.2d 461 (1986), the defendant was convicted of driving while under the influence of alcohol after he was arrested at a vehicle check stop. This check stop was established and conducted by several patrolmen and a sergeant from the Omaha Police Division. These officers in the field were free to determine when, where, and how to establish and operate the check stop and were not acting under any standards, procedures, or guidelines promulgated by the police department or other law enforcement agency. This court held, in the majority opinion, that the check stop was constitutionally infirm because "a driver's reasonable expectation of privacy was rendered subject to arbitrary invasion solely at the unfettered discretion of officers in the field." Crom, supra at 277, 383 N.W.2d at 463. Thus, the defendant in Crom was unreasonably seized in violation of the fourth amendment to the U.S. Constitution.

On the facts of this case, it is clear that the check stop was established at the unfettered discretion of officers in the field. Originally, the selective's enforcement list promulgated by the Beatrice office of the State Patrol indicated a "roving Patrol" selective for October 24, 1987. This list was promulgated by Trooper Morris and approved by Lieutenant Winkler on September 23, 1987. At some point after September 23, but before October 23, Sergeant Nedley changed the date of the selective from October 24 to October 23 to allow him to participate in the selective. Sergeant Nedley is the immediate supervisor to Troopers Gill and Stake and was one of four troopers involved in conducting the check stop selective. The new selective date was never resubmitted to anyone in the State Patrol command structure for reapproval. The State Patrol command structure was never aware that a selective of any type would be conducted on October 23.

Sergeant Nedley testified that the new selective, which was to be conducted on October 23, was to be a roving patrol selective. However, the testimony at the suppression hearing shows that Trooper Stake, on the morning of October 23, made the decision to change the selective from a roving patrol selective to a check stop selective. Trooper Stake was present and involved with conducting the check stop and was not in a supervisory capacity. Sergeant Nedley testified that when he arrived at work on the morning of the 23d, he expected to engage in a roving patrol selective. Shortly after arriving at work, he learned that Trooper Stake had decided to change the roving patrol selective to a check stop selective. Sergeant Nedley testified that he had no prior knowledge of the...