State v. Ready
Decision Date | 11 July 1997 |
Docket Number | No. S-95-1370,S-95-1370 |
Citation | 252 Neb. 816,565 N.W.2d 728 |
Parties | STATE of Nebraska, Appellee, v. Michele S. READY, Appellant. |
Court | Nebraska Supreme Court |
Syllabus by the Court
1. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable Cause: Appeal and Error. A trial court's ruling on a motion to suppress, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. In making this determination, 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.
2. Constitutional Law: Search and Seizure: Waiver. The right to be free from an unreasonable search and seizure, as guaranteed by the 4th and 14th Amendments to the U.S. Constitution and by article I, § 7, of the Nebraska Constitution, may be waived by the consent of the citizen. In order for a consent to search to be effective, however, it must be a free and unconstrained choice and not the product of a will overborne.
3. Constitutional Law: Search and Seizure. The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and voluntariness is a question of fact to be determined from the totality of the circumstances.
Dorothy A. Walker, of Mowbray & Walker, P.C., Lincoln, for appellant.
Don Stenberg, Attorney General, and Ronald D. Moravec, Plattsmouth, for appellee.
The State of Nebraska has petitioned for further review of a Nebraska Court of Appeals opinion that reversed a conviction for criminal attempt of unlawful possession of a controlled substance.
A trial court's ruling on a motion to suppress, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. In making this determination, 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. McCleery, 251 Neb. 940, 560 N.W.2d 789 (1997); State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996).
On August 19, 1995, Nebraska State Patrol Sgt. Lloyd Peters was driving southbound on U.S. Highway 63 at the intersection of Rock Creek Road. He observed a westbound Chevrolet Impala stopped at the intersection with its left turn signal on, indicating that it was going to proceed in the same direction Peters was traveling. However, the Impala did not turn left and follow Peters, but, instead drove through the intersection and continued westward. Peters, who had 15 years of patrol experience, believed that this activity was suspicious. He turned his patrol car around and followed the Impala. He found it stopped at the intersection of Rock Creek Road and U.S. Highway 6, where he saw it make a left turn without signaling. Peters stopped the Impala, which was being driven by Michele S. Ready, and obtained Ready's driver's license, registration, and proof of insurance.
During the initial contact, Peters noticed a cooler in the car and a slight odor of alcohol. Peters then had Ready accompany him to his patrol car for the purpose of administering field sobriety tests. Ready passed the horizontal nystagmus test and the recitation of the alphabet test. Peters thereafter issued her a warning for failure to signal a turn and returned her documents to her.
Before Ready left the patrol car, however, Peters asked her if she had any weapons or drugs or anything illegal in the car. Ready responded in the negative to each question. Peters then asked Ready if he could search her car. Peters did not recall the exact words with which Ready responded, but he recalled that she did not have any objection to the search.
Prior to beginning the search, Peters told Ready that he wanted to search the trunk first. Ready then proceeded to the front of the car to obtain the keys from the ignition. Peters was able to see Ready's purse sitting on the front seat, and he watched Ready "fiddling around" in her purse for nearly a minute. He observed her take the keys out of the ignition, pick up the purse, put the purse strap over her shoulder, and clutch the purse tightly. Peters testified that Ready's handling of her purse aroused concerns and suspicions in his mind.
Peters then proceeded to the rear of the car, where he searched the trunk. Following that search, he asked Ready for consent to search the purse she was holding. Ready took the purse off her shoulder and handed it to Peters. Upon searching the purse, Peters found what was later determined to be methamphetamine.
Ready was originally charged with unlawful possession of a controlled substance, in violation of Neb.Rev.Stat. § 28-416(3) (Cum.Supp.1994). She filed a motion to suppress physical evidence, which was later amended to include a request to suppress statements she made to Peters following the arrest. Following oral argument on the motion to suppress, the district court suppressed the statements but overruled the portion of the motion seeking to suppress the evidence seized from Ready's purse. The State then dropped the unlawful possession charge and filed an amended information 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).
Trial was held without a jury, and Ready reasserted her objection to the admission of physical evidence seized from her purse following a traffic stop. The district court convicted Ready and sentenced her to 18 months' probation.
On appeal, the Court of Appeals reversed Ready's conviction, finding that her consent to the search was given during an illegal detention and, therefore, was not voluntary. The court held that her consent was insufficient to purge the taint of the illegal detention and that, therefore, the contraband subsequently found in Ready's purse was the product of an illegal search and seizure. See State v. Ready, 5 Neb.App. 143, 556 N.W.2d 264 (1996). The State petitioned for further review, and we granted the petition.
In its petition for further review, the State alleges that the Court of Appeals erred in finding that the detention of a citizen for questioning, no matter how briefly, after the purpose of a traffic stop has been accomplished is an unreasonable seizure and a violation of the 4th and 14th Amendments to the U.S. Constitution.
The fundamental issue in the present case is whether Ready's consent to the search of her vehicle and purse was voluntarily given. The right to be free from an unreasonable search and seizure, as guaranteed by the 4th and 14th Amendments to the U.S. Constitution and by article I, § 7, of the Nebraska Constitution, may be waived by the consent of the citizen. State v. Prahin, 235 Neb. 409, 455 N.W.2d 554 (1990). See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In order for a consent to search to be effective, however, it must be a free and unconstrained choice and not the product of a will overborne. State v. Prahin, supra. The consent must be given voluntarily and not as the result of duress or coercion, whether express, implied, physical, or psychological. Id.
It is undisputed that the initial stop of Ready was proper. The Court of Appeals determined that when Peters finished processing the violation for which he initially stopped Ready, the legitimate stop of Ready was complete. At that point, the Court of Appeals reasoned, unless there was a reasonable suspicion that Ready was engaged in other criminal activity, further questioning of Ready amounted to an illegal detention. As a result, because Peters questioned Ready regarding the existence of contraband in her vehicle prior to her leaving the patrol car, without any independent basis for the questioning, the time during which Peters asked Ready about contraband amounted to an illegal detention.
The Court of Appeals held that Ready's consent to Peters' request to conduct a search was so tainted by this illegal detention that the consent was not voluntary. The Court of Appeals stressed the significance of the illegal detention with respect to the analysis of the voluntariness of Ready's consent.
Most importantly ... the Terry violation in this case was flagrant. There is no evidence we can point to that could have given Peters the right to continue questioning Ready after issuing her a warning for improper signaling. Neither Ready's words nor deeds gave Peters cause to be reasonably suspicious. Peters testified that he asked Ready whether she had any drugs, weapons, or illegal items, not because he had reasonable suspicion, but, rather, because he routinely asks such questions after stopping people for traffic violations. This court does not approve of such a practice. Absent probable cause or reasonable suspicion under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), we hold that the detention of a citizen for questioning, no matter how briefly, after the purpose of a traffic stop has been accomplished is an unreasonable seizure and a violation of the 14th Amendment. Thus, we find that Ready's consent was insufficient to purge the taint of what we consider to be an illegal detention. Accordingly, the contraband found in Ready's purse was the product of an illegal search and seizure....
State v. Ready, 5 Neb.App. 143, 152, 556 N.W.2d 264, 270 (1996).
This holding is contrary to our analysis in Prahin, in which a state patrol officer stopped a driver for speeding...
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