State v. Ready
| Decision Date | 19 November 1996 |
| Docket Number | No. A-95-1370,A-95-1370 |
| Citation | 5 Neb.App. 143,556 N.W.2d 264 |
| Parties | STATE of Nebraska, Appellee, v. Michele S. READY, Appellant. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Motions to Suppress: Appeal and Error. In deciding whether to uphold a trial court's ruling on a motion to suppress evidence, an appellate court will uphold the lower court's findings of fact unless those findings are clearly erroneous.
2. Judgments: Appeal and Error. Concerning questions of law, an appellate court has an obligation to reach an independent conclusion.
3. Motions to Suppress: Appeal and Error. In determining whether a trial court's findings on a motion to suppress are clearly erroneous, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses.
4. Motions to Suppress: Appeal and Error. In analyzing a motion to suppress, an appellate court may review the evidence from the suppression hearing as well as the evidence brought forth at trial.
5. Police Officers and Sheriffs: Motor Vehicles: Probable Cause. When a police officer observes a traffic offense--however minor--the officer has probable cause to stop the driver of the motor vehicle.
6. Police Officers and Sheriffs: Motor Vehicles: Investigative Stops. A police officer may properly ask the driver of a motor vehicle for his or her driver's license and vehicle registration. The officer may properly run a check on those documents and may also request that the driver sit in the patrol car during this time. Additionally, the officer may ask the driver about his or her destination and purpose and may verify the driver's responses by questioning the driver's passengers. If the responses of the detainee and the circumstances give rise to suspicions unrelated to the traffic offense, the officer may broaden the inquiry and satisfy those suspicions.
7. Police Officers and Sheriffs: Investigative Stops: Probable Cause. A police officer may not detain a person for investigative purposes unless the officer has specific and articulable facts that make the officer reasonably suspicious that the person has committed or is committing a crime.
8. Constitutional Law: Investigative Stops: Search and Seizure. The fact of an illegal detention is only the start, and not the end, of the Fourth Amendment analysis. Even given the illegal detention, a court must still decide if the consent to search was nevertheless sufficiently an act of free will to purge the primary taint.
9. Police Officers and Sheriffs: Search and Seizure. For consent to search to be voluntary, it is not necessary that the individual sign a consent form, nor is the police officer required to inform the individual of his or her right to refuse consent, although these factors are relevant to the assessment of voluntariness of consent.
Dorothy A. Walker, of Mowbray & Walker, P.C., Lincoln, for appellant.
Don Stenberg, Attorney General, and Ronald D. Moravec, Plattsmouth, for appellee.
On October 24, 1995, the appellant, Michele S. Ready, was charged in an information filed by the county attorney of Cass County, Nebraska, with unlawful possession of a controlled substance, in violation of Neb.Rev.Stat. § 28-416(3) (Cum.Supp.1994), a Class IV felony. Ready filed a motion to suppress evidence, which was later amended with the court's permission to include a request to suppress statements Ready made to Nebraska State Patrol Sgt. Lloyd Peters. A hearing on the amended motion to suppress evidence and statements was held on October 24, 1995. Following oral argument, the district court for Cass County suppressed the statements, but overruled the portion of the amended motion seeking to suppress physical evidence. On November 14, the State dropped the felony charge against Ready and filed a complaint charging Ready with criminal attempt of unlawful possession of a controlled substance, in violation of Neb.Rev.Stat. § 28-201(1)(b) and (4)(d) (Reissue 1995), a misdemeanor.
On November 14, 1995, trial without jury was held. Ready reasserted her objection to the admission of the physical evidence seized from her purse following a traffic stop, as explained more fully below. After trial, the district court determined that Ready was guilty of the misdemeanor charge in the complaint and ordered a presentence investigation. On December 18, the district court sentenced Ready to an 18-month term of probation. On the same date, Ready filed her notice of appeal and the district court released Ready on her previously posted bond and suspended the sentence of probation pending this appeal.
The record contains the following facts: On August 19, 1995, at 9:10 p.m., Peters, dressed in a Nebraska State Patrol summer uniform, was driving his marked patrol car when he stopped Ready for an alleged unsignaled left-hand turn. The stop occurred on a dirt road at the intersection of Rock Creek Road and U.S. Highway 6 in Cass County. After stopping Ready, Peters requested her driver's license, vehicle registration, and proof of insurance, which she produced. During this initial contact, Peters noticed a cooler in Ready's car, as well as a slight odor of alcohol. Peters then asked Ready to accompany him to his patrol car to perform two field sobriety tests: the horizontal nystagmus test and recitation of the alphabet. Ready passed both tests.
Peters then issued Ready a warning for failure to signal a turn and returned the documents he had requested. Thereafter, Peters proceeded to ask Ready three questions: "[D]o you have any drugs in your car?" "[D]o you have any weapons in your car?" "[D]o you have anything at all that's illegal in your car?" After Ready responded no to each question, Peters asked Ready if he could search her car. Peters does not recall Ready's exact response, whether she said "yes or okay or all right," but did seem to recall that Ready did not have any objection to him searching the car. At that point, Peters asked Ready to get her keys, which were still in her car's ignition. Peters noted that Ready did not retrieve her keys immediately, but, rather, "fiddled" around in her purse for nearly a minute before she took the keys out of the ignition. When returning with her keys, Ready also returned with her purse, which she had left in her car up until this time. After doing so, Ready handed her keys to Peters, who then searched the trunk, but found nothing. He then asked to search Ready's purse. Ready did not verbally respond, but, instead, handed her purse to Peters. Upon searching the purse, Peters found what was later tested to be methamphetamine. After the search, Ready was handcuffed and placed under arrest. Peters then searched the rest of the car, but found no other controlled substances.
Ready contends that the search of her car and purse was unconstitutional. Thus, any physical evidence found during the search should have been considered fruit of an unlawful search and should have been suppressed pursuant to Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The State contends that the trial court properly overruled the portion of the amended motion seeking to suppress physical evidence, because Ready's consent to search was voluntary and any evidence obtained thereby was admissible. We agree with Ready and find that the trial court's decision denying that portion of Ready's motion seeking to suppress physical evidence was in error.
Ready asserts that the district court erred in overruling that portion of her motion seeking to suppress physical evidence by (1) failing to find that the search of Ready's car and purse was unconstitutional, (2) failing to find that Ready's consent to search her purse and car was involuntary, (3) failing to find that the search of Ready's purse violated the Wong Sun doctrine.
In deciding whether to uphold a trial court's ruling on a motion to suppress evidence, an appellate court will uphold the lower court's findings of fact unless those findings are clearly erroneous. State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996). Concerning questions of law, an appellate court has an obligation to reach an independent conclusion. State v. Cox, 247 Neb. 729, 529 N.W.2d 795 (1995).
In determining whether a trial court's findings on a motion to suppress are clearly erroneous, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. State v. Osborn, 250 Neb. 57, 547 N.W.2d 139 (1996).
In analyzing a motion to suppress, an appellate court may review the evidence from the suppression hearing as well as the evidence brought forth at trial. State v. Huffman, 181 Neb. 356, 148 N.W.2d 321 (1967), cert. denied 386 U.S. 1024, 87 S.Ct. 1384, 18 L.Ed.2d 466.
Ready does not argue that Peters improperly stopped her. " 'When an officer observes a traffic offense--however minor--he has probable cause to stop the driver of the vehicle.' " State v. Chronister, 3 Neb.App. 281, 285, 526 N.W.2d 98, 103 (1995), quoting U.S. v. Cummins, 920 F.2d 498 (8th Cir.1990), cert. denied 502 U.S. 962, 112 S.Ct. 428, 116 L.Ed.2d 448 (1991). Nebraska law requires that a motorist moving left or right on a roadway signal appropriately. See Neb.Rev.Stat. §§ 60-6,161 to 60-6,163 (Reissue 1993). Clearly, the initial stop was proper.
Detention.
Ready generally challenges Peters' actions after the initial stop. In effect, Ready claims that when Peters detained her and questioned her further after issuing her a warning ticket, the detention was unconstitutional. A police officer may properly ask a driver of a motor...
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