State v. Prahin, 89-786

• Decision Date: 18 May 1990
• Docket Number: No. 89-786,89-786
• Citation: 455 N.W.2d 554,235 Neb. 409
• Parties: STATE of Nebraska, Appellee, v. Timothy D. PRAHIN, Appellant.
• Court: Nebraska Supreme Court

Page 554

455 N.W.2d 554

235 Neb. 409

STATE of Nebraska, Appellee, v. Timothy D. PRAHIN, Appellant.

No. 89-786.

Supreme Court of Nebraska.

May 18, 1990.

Syllabus by the Court

1. Arrests: Search and Seizure. An arrest may not be used as a pretext to search for evidence, at least in situations where law enforcement officers make an arrest as a pretext to conduct a search incident to that arrest.

2. Arrests: Search and Seizure: Words and Phrases. A pretextual arrest is one in which the arrest is only a sham or front being used as an excuse for making a search.

3. Constitutional Law: Search and Seizure: Waiver. The right to be free from an unreasonable search and seizure, as guaranteed by the fourth amendment to the U.S. Constitution and by article 1, § 7, of the Nebraska Constitution, may be waived by the consent of the citizen.

4. Search and Seizure. In order for a consent to search to be effective, it must be a free and unconstrained choice and not the product of a will overborne.

5. Search and Seizure: Duress. A consent to search must be given voluntarily and not as the result of duress or coercion whether express, implied, physical, or psychological.

6. Search and Seizure. The determination of whether a consent to search is voluntarily given is a question of fact to be determined from the totality of the circumstances surrounding the giving of the consent.

7. Search and Seizure: Duress. In examining all the surrounding circumstances to determine if in fact a consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.

8. Search and Seizure: Proof. The burden is upon the government to prove that a consent to search was voluntarily given.

9. Motions to Suppress: Appeal and Error. Findings of fact reached by the trial court on a motion to suppress will not be overturned on appeal unless those findings are clearly erroneous.

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

11. Search and Seizure. Although there is no requirement that a person asked to consent to a search be advised that he may refuse to consent, the subject's knowledge of a right to refuse to consent is a factor to be taken into account in determining whether the consent to search is voluntary.

12. Search and Seizure: Probable Cause: Police Officers and Sheriffs. Probable cause exists to validate the seizure of an item during a lawful search where facts and circumstances within an officer's knowledge are sufficient to warrant a person of reasonable caution in the belief that certain items may be contraband or evidence of a particular crime.

Kirk E. Naylor, Jr., Lincoln, and Kent E. Florom, Keith County Public Defender, for appellant.

Robert M. Spire, Atty. Gen., James H. Spears, and Donald Kohtz, Lincoln, for appellee.

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

CAPORALE, Justice.

Defendant-appellant, Timothy D. Prahin, was convicted of speeding, in violation of Neb.Rev.Stat. § 39-662(2)(f) (Reissue 1988), and of possessing a controlled substance (cocaine) with the intent to deliver same, in violation of Neb.Rev.Stat. § 28-416(1)(a) (Cum.Supp.1988). He was thereafter sentenced to imprisonment for a period of from 10 to 20 years. He claims the district court erred in overruling his motion to suppress and in imposing an excessive sentence. We vacate the sentence and remand for resentencing.

On December 1, 1988, Daniel Wilson, a Nebraska State Patrol officer, was traveling eastbound on Interstate 80 in Keith County, Nebraska, when the radar device in his patrol vehicle registered the speed of a large, black Lincoln Continental automobile traveling westbound on the Interstate at 76 miles per hour, in violation of the posted speed limit of 65 miles per hour. Wilson turned his patrol vehicle around in pursuit and noticed that the Lincoln bore Tennessee license plates. At 11:50 a.m., Wilson stopped the Lincoln, which was driven by Prahin.

When Wilson asked Prahin for his motor vehicle operator's license and vehicle registration, Prahin produced the vehicle registration and a Michigan identification card. Prahin explained that he had a California operator's license but had lost it and that he now lived in Michigan. The Lincoln was registered to a Frank Green in Tennessee, but a Florida parking sticker was affixed to the windshield.

Wilson informed Prahin that he was stopped for speeding and asked Prahin to accompany him to the patrol vehicle. Prahin entered the passenger side of the patrol vehicle and, when inside, stated that he had Green's permission to drive the Lincoln but did not know how Green could be contacted. Wilson conducted a check on Prahin and on the Lincoln, discovered no outstanding warrants on either, and confirmed that the Lincoln was registered in Green's name.

After Prahin had been in Wilson's patrol vehicle for about 5 minutes, Wilson issued Prahin a citation for speeding and a violation card for failure to have an operator's license, and returned Prahin's identification card and vehicle registration. Before Prahin left the patrol vehicle, Wilson asked him, " 'Excuse me, by the way, would it be all right [for me] to take a look inside of your vehicle for narcotics, drugs, weapons and/or large amounts of cash.' " Wilson explained that "the interstate system through Keith County was having a large amount of problems with ... those items going through the county."

When Prahin responded "Yes" to Wilson's request, Wilson showed Prahin a "PERMISSION FOR SEARCH AND SEIZURE" form, confirmed that Prahin could read English, and gave Prahin time to read the form, after which both men signed it. According to Wilson, Prahin understood the form before signing it. The form reads that Prahin "voluntarily authorize[s]" Wilson to search the Lincoln and further authorizes Wilson "to remove from my said ... motor [vehicle] ... whatever documents, articles, or other items of property whatsoever, which [he] deem[s] pertinent to [his] investigation...." The final paragraph of the form states:

I AM GIVING THIS WRITTEN PERMISSION to these Nebraska State Patrol Officers freely and voluntarily, without any threats or promises having been made to me, and after having been informed by these officers that I have the right to refuse to permit this search and seizure, and that any property seized may be used against me in the event of prosecution.

After Prahin had signed the consent form, Wilson stated, " 'Let's go ahead and start searching your vehicle.' " At Wilson's request, Prahin opened the trunk of the Lincoln, which contained a lone traveling bag Prahin acknowledged to be his. Again at Wilson's request, Prahin removed the bag from the trunk, placed it on the shoulder of the Interstate, and unzipped it halfway, stating that "there was nothing in the traveling bag except for some miscellaneous clothes...." Wilson unzipped the bag the rest of the way, pulled the sides of the bag apart, and observed inside "two separate packages wrapped in a brown paper-like substance with Magic Marker markings on them." On one of the packages was written "3030" and "A-I-R-E," and on the other package was written "114," "P-E-T-A-L-O," and "III." The packages were approximately 8 inches long, 7 inches wide, and 1 1/2 inches thick.

Because Wilson believed, based on the markings, that the packages contained cocaine, he arrested Prahin and advised him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Wilson testified that "[t]he only way that I have ever seen cocaine packaged was in the manner similar to that" and that based on his past training, he was 99.9 percent certain that the packages contained cocaine. Laboratory tests later revealed that the packages did in fact contain cocaine. At trial, the parties stipulated that the amount of cocaine found in the packages "denotes distribution and not personal use."

Wilson admitted that from the moment he stopped Prahin, he intended to try to get Prahin to consent to a search of the Lincoln. He further acknowledged that when he asked to search Prahin's automobile, he was suspicious that Prahin was a "courier of narcotics" or had contraband in his vehicle. Wilson testified that although Prahin was not free to leave from the time of the initial stop of the vehicle until the time the speeding citation was issued, Prahin was free to leave when Wilson asked him to sign the consent form. On the other hand, Prahin testified that he did not believe he was free to leave from the time Wilson asked him to enter the patrol vehicle until the time he was placed under arrest.

Pursuant to Neb.Rev.Stat. § 29-822 (Reissue 1989), Prahin moved to suppress all evidence seized from the Lincoln, including the traveling bag and its contents, on the basis that there was no legal basis for the search. Prahin also objected to the admission of the traveling bag and the two packages of cocaine at trial on the basis that the items were products of an illegal search and seizure. The district court refused to suppress the evidence.

Prahin argues that he was illegally placed under arrest at the time he entered the patrol vehicle, that his subsequent consent to the search of his vehicle was tainted by that illegal arrest, and, thus, that the cocaine seized from his vehicle should have been suppressed.

The validity of Wilson's search of Prahin's automobile, trunk, and traveling bag depends upon whether Prahin's consent was given voluntarily and absent a preexisting illegality which may be said to have tainted the consent. Wilson did not have a search warrant, and the State does not argue, nor does...