State v. Perry
| Decision Date | 12 February 2016 |
| Docket Number | No. S–14–506,S–14–506 |
| Citation | 292 Neb. 708,874 N.W.2d 36 |
| Parties | State of Nebraska, Appellee, v. Detron L. Perry, Appellant. |
| Court | Nebraska Supreme Court |
Thomas C. Riley, Douglas County Public Defender, L. Robert Marcuzzo, Omaha, and Natalie M. Andrews for appellant.
Douglas J. Peterson and Jon Bruning, Attorneys General, and Austin N. Relph, for appellee.
After a stipulated bench trial, the district court for Douglas County found Detron L. Perry guilty of possession of a controlled substance. Perry appeals, arguing the court erred in overruling his motion to suppress evidence found during a search of his person. We find no reversible error and affirm.
On September 5, 2012, law enforcement officers Chris Brown and Mike Sundermeier of the Omaha Police Department were on patrol in the area of 35th and Hamilton Streets in Omaha, Nebraska. They observed a vehicle traveling eastbound on Hamilton Street. It turned northbound onto 35th Street without using a turn signal, and when the brakes were applied, the officers noticed the vehicle's left taillight was not functioning.
The officers initiated a traffic stop. Brown approached the driver's side of the car, and Sundermeier approached the passenger side. Perry was driving, and his brother Devaughn Perry (Devaughn) was the front seat passenger. When Perry rolled down his window to speak with the officers, Brown immediately detected the odor of burnt marijuana coming from the vehicle. Brown described the odor as "a little faint," but he knew it was burnt marijuana because he had smelled it frequently when making traffic stops.
After noticing the odor, Brown saw Sundermeier talking to Devaughn. Brown noticed Devaughn kept putting his right hand between his right leg and the door. Brown then heard Sundermeier tell Devaughn to keep his hands on his lap, but Devaughn was not complying. When Devaughn eventually brought his hands up, Brown saw the top part of a twisted plastic baggie in Devaughn's right hand. At about the same time, Sundermeier opened the vehicle door and grabbed Devaughn's right hand, because he feared Devaughn was holding a weapon. Sundermeier discovered a baggie containing a white rocklike substance in Devaughn's hand. Devaughn was then removed from the vehicle and placed under arrest.
Brown then asked Perry to step out of the vehicle. Perry complied, and Brown searched Perry's person. Brown found what appeared to be crack cocaine in Perry's front pocket.
Brown then placed Perry in handcuffs and searched him again. During this search, Brown found pills in Perry's front right coin pocket he suspected were "ecstasy." Perry showed the officers his identification and was cooperative throughout the traffic stop.
The officers took Perry and Devaughn to the police cruiser. Perry's vehicle was then searched, and the officers discovered a marijuana cigarette in the center console and a firearm underneath the front passenger seat. Subsequent field tests revealed that the suspected crack cocaine found on both Perry and Devaughn was fake crack cocaine, known as gank. The pills discovered in Perry's pocket were found to be a form of "ecstasy."
The State formally charged Perry with unlawful possession of a controlled substance (benzylpiperazine, a form of "ecstasy"), a Class IV felony. Prior to trial, Perry moved to suppress the evidence obtained during his search and arrest. At the hearing on the motion to suppress, the officers testified to the above facts.
The court overruled Perry's motion to suppress. It found that the officers could have arrested Perry for the taillight violation and impliedly concluded the search of Perry's person was a search incident to an arrest. The court further found that the smell of marijuana coming from the vehicle provided probable cause to search the vehicle. In ruling on the motion to suppress, the court made a finding that Perry "was no[t] cooperative and gave a false name."
Following the suppression hearing, the court held a stipulated bench trial. The State offered into evidence a transcript of the hearing on the motion to suppress and a laboratory report documenting that the pills found on Perry were in fact "ecstasy." Perry then renewed the objections raised in his motion to suppress. The court ultimately found the search was valid, reasoning the smell of marijuana, combined with the officers' knowledge that the passenger was furtively holding a baggie of suspected drugs, provided probable cause to arrest Perry. Perry was found guilty of unlawful possession of a controlled substance and sentenced to probation for a term of 4 years. He timely filed this direct appeal.
Perry assigns, restated and consolidated, that the district court erred in (1) finding he was uncooperative with police and gave a false name during the traffic stop and (2) overruling his motion to suppress evidence found during the search of his person.
In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review.1 Regarding historical facts, we review the trial court's findings for clear error, but whether those facts trigger or violate Fourth Amendment protections is a question of law that we review independently of the trial court's determination.2
Perry argues the evidence obtained during the search of his person must be suppressed because the search violated his constitutional rights. The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution guarantee against unreasonable search and seizure.3 Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions, which must be strictly confined by their justifications.4
The search here was conducted without a warrant. Thus, to be valid, it must fall within one of the warrantless search exceptions recognized by this court.5 The State has the burden of showing the applicability of one or more of the exceptions to the warrant requirement.6
Before addressing the applicability of any exception to the instant case, we pause to address the effect of our recent decision in City of Beatrice v. Meints .7 In that case, we acknowledged we had often been imprecise when describing the exceptions to the warrant requirement and had incorrectly noted that "probable cause" was such an exception.8 Meints clarified that probable cause, standing alone, is not an exception to the search warrant requirement "as applied to real property."9
For precisely the reason articulated in Meints —a probable cause exception to the warrant requirement would swallow the rule—we now clarify that probable cause, standing alone, is not an exception that justifies the search of a person without a warrant. To the extent our prior cases indicate otherwise, they are disapproved.10
A valid arrest based on probable cause that a person is engaged in criminal activity is allowed by the Fourth Amendment, and if an arrest is made based upon probable cause, a full search of the person may be made incident to that arrest.11
The question here, then, is whether the officers had probable cause to arrest Perry. Under Nebraska law, a person may be arrested without a warrant when an officer has probable cause to believe the person either has committed a felony or has committed a misdemeanor in the officer's presence.12 Probable cause must be particularized with respect to the person being arrested.13
The trial court ultimately analyzed whether the officers had probable cause to arrest Perry under the framework of Maryland v. Pringle.14 In that case, a car with three occupants was stopped at 3:16 a.m. for speeding. When the driver was asked for his license and registration, he opened the glove compartment and an officer saw a large amount of rolled-up money inside. The officer had the driver step out of the vehicle and issued him a warning. He then asked for consent to search the vehicle, and the driver gave it. The search revealed $763 in cash and five plastic baggies containing cocaine. The baggies were found between a raised armrest and the back seat of the vehicle.
The officer questioned all three occupants of the vehicle about the drugs and money, but none offered any information. All three were placed under arrest and taken to the police station. At the station, the front seat passenger confessed the drugs were his and informed police the other two did not know about them. After the passenger was charged with drug possession, he moved to suppress his confession. He argued it was the fruit of an illegal arrest because the officer lacked probable cause to arrest him.
The U.S. Supreme Court noted that a warrantless arrest of an individual in a public place for a felony, or a misdemeanor committed in the officer's presence, is consistent with the Fourth Amendment if the arrest is supported by probable cause. It reasoned that once the officer found the five plastic baggies containing cocaine, he had probable cause to believe a felony had been committed. It focused its analysis on whether the officer had probable cause to believe the passenger committed that crime.
In doing so, the Court in Pringle noted that "the probable-cause standard is ‘ "a practical, nontechnical conception" ’ that deals with ‘ "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." ’ "15 It further noted that probable cause is " ‘a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.’ "16 Similarly, we have noted that probable cause is a flexible, commonsense standard that depends on the totality of the...
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