State v. Pope, 90-889

Citation239 Neb. 1009,480 N.W.2d 169
Decision Date14 February 1992
Docket NumberNo. 90-889,90-889
PartiesSTATE of Nebraska, Appellee, v. Clifton L. POPE, Appellant.
CourtSupreme Court of Nebraska

Syllabus by the Court

1. Criminal Law: Investigative Stops: Police Officers and Sheriffs: Probable Cause. The test to determine whether an investigative stop is justified is whether the police officer has a reasonable suspicion based on articulable facts which indicate that a crime has occurred, is occurring, or is about to occur and that the suspect may be involved.

2. Criminal Law: Investigative Stops: Police Officers and Sheriffs: Probable Cause. In determining what cause is sufficient to authorize police to stop a person, the totality of the circumstances must be taken into account.

3. Motions to Suppress: Appeal and Error. On review, a trial court's ruling on a motion to suppress will be upheld unless the findings of fact inherent in the ruling are clearly erroneous.

4. Search and Seizure. Although the fact that an individual is in police custody is an important consideration in determining the voluntariness of the consent to search, such factor, standing alone, does not invalidate the consent to search as long as the consent was otherwise voluntarily given.

Thomas M. Kenney, Douglas County Public Defender, and Brian S. Munnelly, Omaha, for appellant.

Don Stenberg, Atty. Gen., and Jim Elworth, Lincoln, for appellee.

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

GRANT, Justice.

Defendant, Clifton L. Pope, was convicted by the district court, sitting without a jury, of unlawful possession of a controlled substance. He was sentenced to 20 months' to 5 years' imprisonment, with credit given for time served. Defendant timely appealed, assigning a single error: The "District Court erred in overruling the Defendant's motion to suppress the fruits of the stop and subsequent arrest of the Defendant." A timely objection was made at trial to the admission into evidence of the "fruits of the illegal stop." We affirm.

The record shows the following: At 10:14 p.m. on December 8, 1989, two police officers on routine patrol saw a parked car, "partially out in the westbound traffic lane on Taylor Street," obstructing the flow of traffic west of 24th Street in Omaha. At the time, "there was a lot of traffic flow on Taylor Street." The area was described as "a high drug traffic area." The car was parked "two, two and a half feet" from the curb, and "[t]he flow of traffic was having difficulty due to this vehicle." Two men were seated in it. Defendant was in the front passenger seat. The officers saw the two men get out of the car and hurriedly walk away.

The officers parked their cruiser and walked toward the car, intending to "advise the parties to either pull the vehicle out from the position or just go ahead and pull it over to the side of the roadway so the traffic could flow." As the officers walked past the car, they saw that it was unlocked and that the keys were in the ignition. They testified that that was unusual for such a high crime area, frequented by pedestrians.

The officers caught up with the two men approximately 20 feet away from the car. The officers asked the two to move the car, but they replied that it was not their car and that it belonged to a woman in a nearby bar. The men stated they did not know the woman's name, only her nickname.

This first contact between the police and defendant was proper. The police were addressing an obvious traffic problem and sought to clear the way for traffic by having the car moved. When defendant and his companion said that they did not own the car and that they did not know the name of the owner, the police were then faced with a different problem. Defendant had just left a car that neither he nor his companion owned, and they did not know the name of the owner. The police knew that keys were in the ignition of the car and that the location was a high crime area. At this point, the police knew objective facts constituting reasonable cause for a "stop and frisk." See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The police conducted a pat-down search. Defendant cannot successfully contend the pat-down search was illegal.

The pat-down search of defendant and the other man disclosed no weapons. While one officer was checking the two men's identification, the other went to look for registration papers in the car. About this time, two more officers joined the officers already at the scene. Two officers looked through the window and immediately saw that the glove compartment was open and that several packages of cellophane and numerous burnt matches were on top of the open glove compartment door. The officers had much training and experience in drug enforcement, and they testified the facts before them made them suspect that someone had been consuming crack cocaine in the car.

After observing the cellophane and the matches, one officer approached defendant and questioned him. At this point, defendant was, in effect, seized. The officer testified that defendant was not "free to go." The stop had developed into an investigation.

We have held:

The test to determine whether an investigative stop is justified is whether the police officer has a reasonable suspicion based on articulable facts which indicate that a crime has occurred, is occurring, or is about to occur and that the suspect may be involved.... In determining what cause is sufficient to authorize police to stop a person, the totality of the circumstances must be taken into account.... The assessment of the totality of the circumstances includes all of the objective observations and considerations, as well as the suspicion drawn by a trained and experienced police officer by inference and deduction that the individual stopped is, has been, or is about to be engaged in criminal behavior.

State v. Pillard, 235 Neb. 642, 646, 456 N.W.2d 755, 758 (1990).

In this case, experienced officers had properly looked inside the car in an effort to determine the ownership of the car and saw physical items in plain view. Those items indicated that illegal drugs had been consumed in the car. The items were positioned directly in front of the seat in the car that the officers knew defendant had just left. The information could be used by the officers because it was obtained pursuant to the "plain view" doctrine. The officers lawfully made their initial intrusion into the car; the incriminating...

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23 cases
  • State v. Konfrst
    • United States
    • Nebraska Supreme Court
    • December 6, 1996
    ...Was Freely and Voluntarily Given The State must prove that the consent to search was freely and voluntarily given. State v. Pope, 239 Neb. 1009, 480 N.W.2d 169 (1992). See, also, State v. Juhl, 234 Neb. 33, 449 N.W.2d 202 (1989). In order for consent to search to be valid, it must be the re......
  • State v. Ortiz
    • United States
    • Nebraska Supreme Court
    • October 1, 1999
    ...view, does not constitute a search." State v. Ramaekers, 257 Neb. 391, 397, 597 N.W.2d 608, 613 (1999). See, also, State v. Pope, 239 Neb. 1009, 480 N.W.2d 169 (1992). To the foregoing we add: That which a law enforcement officer detects using his or her unaided senses while lawfully presen......
  • State v. Harris
    • United States
    • Nebraska Supreme Court
    • October 1, 1993
    ...findings of fact unless those findings are clearly erroneous. State v. Martin, 243 Neb. 368, 500 N.W.2d 512 (1993); State v. Pope, 239 Neb. 1009, 480 N.W.2d 169 (1992); State v. Masat, 239 Neb. 849, 479 N.W.2d 131 (1992). In deciding whether the trial court's findings on a motion to suppres......
  • State v. Brooks
    • United States
    • Nebraska Court of Appeals
    • February 18, 1997
    ...U.S. Constitution and article I, § 7, of the Nebraska Constitution prohibit only unreasonable searches and seizures. State v. Pope, 239 Neb. 1009, 480 N.W.2d 169 (1992); State v. Hayes, 3 Neb.App. 919, 535 N.W.2d 715 (1995). The 4th and 14th Amendments and the Nebraska Constitution do not p......
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