State v. Rathburn

• Decision Date: 26 February 1976
• Docket Number: No. 40247,40247
• Citation: 239 N.W.2d 253,195 Neb. 485
• Parties: STATE of Nebraska, Appellee, v. Mark L. RATHBURN, Appellant.
• Court: Nebraska Supreme Court

Page 253

239 N.W.2d 253

195 Neb. 485

STATE of Nebraska, Appellee, v. Mark L. RATHBURN, Appellant.

No. 40247.

Supreme Court of Nebraska.

Feb. 26, 1976.

Syllabus by the Court

1. A consent, freely and intelligently given, validates a search even if the suspect was not under arrest or if the officer did not have a search warrant.

2. The voluntariness of a consent to search is a question of fact to be determined by the totality of the circumstances.

3. The State has the burden of proving that a consent to search was freely and voluntarily given.

4. An officer's statement that he will obtain a search warrant is not per se coercive and will not alone vitiate the voluntariness of a consent.

5. Intent to distribute may be inferred from the equipment and quantity of controlled substance seized, the manner of packaging, the form of drug, and testimony of knowledgeable witnesses.

6. The admission of irrelevant evidence will be considered 'harmless error,' not requiring reversal of a judgment, unless it affects the 'substantial rights of the adverse party,' when considered in connection with other evidence properly adduced. S. 29-2308, R.R.S.1943.

Robert J. Bulger, Bridgeport, for appellant.

Paul L. Douglas, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

BRODKEY, Justice.

Mark L. Rathburn appeals to this court from his conviction by a jury in the District Court for Morrill County of possession of marijuana weighing more than 1 pound, as charged in count I of the information, and of lysergic acid diethylamide (commonly known as LSD), with the intent to distribute that controlled substance, as charged in count II. Following a commitment to the Division of Corrections of the State of Nebraska for evaluation for a period of 61 days, pursuant to section 83-1,105(3), R.S.Supp., 1974, he was sentenced by the court to imprisonment in the Nebraska Penal and Correctional Complex for a period of 2 years on each count, the sentences to run concurrently with each other, and was further given credit for the time he spent in confinement during evaluation by the Division of Corrections.

His appeal to this court involves three principal issues. The first involves the validity of the search of his vehicle made by the officer at the time of his arrest, it being appellant's contention that the court erred in overruling his motion to suppress the evidence removed from his automobile because it was obtained by an illegal search and seizure contrary to the provisions of both the federal and state constitutions. Secondly, he assigns as error that the evidence adduced at his trial does not support a verdict of guilty of possession of LSD 'with intent to distribute.' Thirdly, he assigns as error the action of the court in receiving in evidence a certain coke spoon, State's exhibit 4, it being his contention it was not relevant to the charges for which he was being tried, and was prejudicial to him. We conclude his contentions are without merit, and affirm the judgment of the District Court.

The material facts of this case, as reflected by the record, are as follows. On October 4, 1974, state trooper Sam Frandsen stopped the car driven by Rathburn for exceeding the speed limit while traveling north on U.S. Highway No. 385. Frandsen testified that when he approached appellant's car to inform him that he had been speeding, he smelled the odor of 'burnt marijuana.' He also observed some Zig-Zig cigarette papers on the car floorboard by Rathburn's feet. Rathburn got out of his car and accompanied Frandsen to his cruiser where he sat on the passenger side of the car while Frandsen prepared the speeding citation. Rathburn had produced a valid license and registration. While they were seated in the cruiser, the officer again noticed the odor of burned marijuana.

After appellant had signed the citation, Frandsen informed him that he could smell burned marijuana on him and asked him if he had been smoking marijuana. Rathburn replied 'No, I haven't,' and consented to a search of his person. Frandsen found no drugs, but did find a roach clip and coke spoon on Rathburn's key chain. These were returned to appellant at that time. The officer then requested permission to search the car, which Rathburn gave. As a result of Frandsen's search of the interior of the car, he discovered the previously mentioned cigarette papers, as well as additional cigarette papers under the front passenger seat. Frandsen then asked Rathburn to open the trunk. Rathburn refused. Frandsen then stated, 'Okay, I will get a search warrant.' He started back to his cruiser, and had just opened the door when appellant said, 'All right, you son-on-a-bitch, I will open it.' The trunk lock was missing and Rathburn used a screwdriver to open the lid. Inside the trunk the officer found a brown paper grocery sack which he opened. Two opaque white plastic bags were inside the sack along with an envelope. The white bags contained marijuana. The envelope contained four separate baggies each with a quantity of about 100 purple pills, later identified as LSD. The officer then advised Rathburn he was under arrest, and they drove their respective vehicles to the sheriff's office at Bridgeport.

Under the above facts, did Officer Frandsen obtain the drugs and other evidence referred to in violation of Rathburn's constitutional rights against unreasonable searches and seizures, with the result that its subsequent use against him during the trial was illegal? We conclude he did not. Initially it should be noted that Officer Frandsen's stop of Rathburn's vehicle was perfectly legal. It was his duty to enforce the traffic laws of this state, and he had observed Rathburn in the act of speeding, which was confirmed by his mobile radar unit. At that point, it is also clear that he would have had probable cause to search the car as he smelled the odor of burned marijuana in the car when he requested Rathburn to produce his driver's license and registration certificate. He also saw in plain view on the floor of the automobile at that time Zig-Zag cigarette papers. While these papers, concededly, could have been used for the purpose of rolling ordinary cigarettes, there is evidence in the record that they are very frequently used for rolling marijuana cigarettes, and the officer knew that fact. Subsequently, while in the officer's cruiser, the officer again noticed the smell of burned marijuana about Rathburn's person, and obtained consent from Rathburn to search his vehicle. The totality of the circumstances was clearly sufficient to authorize the officer to search the car itself. State v. Wood, 195 Neb. 353, 238 N.W.2d 226 (1976); State v. Romonto, 190 Neb. 825, 212 N.W.2d 641 (1973). Additional Zig-Zag cigarette papers were found as the result of that consent search.

While there was undoubtedly probable cause for Frandsen to search the car itself, he justifies his search of the trunk on an entirely different ground, that is, upon the consent of Rathburn. It has long been the rule in this state that a warrantless search of a defendant's automobile and seizure of materials found therein is reasonable and lawful when the defendant has consented freely and intelligently to the search, even though he is not under arrest at that time. State v. Forney, 181 Neb. 757, 150 N.W.2d 915 (1967); State v. Fiegl, 184 Neb. 704, 171 N.W.2d 643 (1969); State v. Holloway, 187 Neb. 1, 187 N.W.2d 85 (1971); State v. Van Ackeren, 194 Neb. 650, 235 N.W.2d 210 (1975); State v. Skonberg, 194 Neb. 550, 233 N.W.2d 919 (1975); State v. Wood, supra. However, when a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. State v. Van Ackeren, supra; Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The voluntariness of the consent to search should be determined from the totality of all the circumstances surrounding it. State v. Van Ackeren, supra; Schneckloth v. Bustamonte, supra. A question of whether a consent to search is voluntarily given is a question of fact. Schneckloth v. Bustamonte, supra; State v. Skonberg, supra; State v. Van Ackeren, supra; State v. Holloway, supra. We have also held that a consent is not voluntary if it is the result of duress or coercion, either actual or implied. State v. Forney, supra. In Schneckloth v. Bustamonte, supra, the United States Supreme Court makes it clear that the consent to search must 'be free from any aspect of official coercion.'

Applying the above rules to this case, it is clear from the evidence that Rathburn originally refused to open the trunk of the car when he was requested to do so by the officer. The officer then stated 'Okay, I'll get a warrant.' Rathburn then consented to and did open the trunk of the car. It is his contention that his action in so doing did not constitute a free and voluntary consent to search but was the result of official coercion, because of the statement relative to obtaining a warrant. We do not agree. There is no doubt that false assertions that one already Has a warrant will vitiate a consent to search. Bumper v. North Carolina, supra. However under the facts of the instant case, all the officer said was that he would Get a warrant. In situations where the searching officer has stated that he could obtain or was in the process of getting a warrant, the courts have never found such a statement coercive per se. Rather, the courts have generally...