State v. Runge
Decision Date | 05 October 1999 |
Docket Number | No. A-99-667.,A-99-667. |
Citation | 601 N.W.2d 554,8 Neb. App. 715 |
Parties | STATE of Nebraska, appellant, v. Brian RUNGE, appellee. |
Court | Nebraska Court of Appeals |
Gary E. Lacey, Lancaster County Attorney, and Patrick F. Condon, Lincoln, for appellant.
Dennis R. Keefe, Lancaster County Public Defender, and Kristi J. Egger Brown, Lincoln, for appellee.
Pursuant to Neb.Rev.Stat. & sect; 29-824 (Cum.Supp.1998), the State of Nebraska appeals an order of the district court for Lancaster County suppressing evidence seized without a warrant from Brian Runge's person by Lancaster County Deputy Sheriff Michael Scofield on July 29, 1998.
On July 29, 1998, at approximately 2 a.m., Scofield was eastbound on O Street in Lincoln in a marked cruiser. He was monitoring radio traffic when he heard a dispatch regarding a hit-and-run accident at North 31st and P to Q Streets, which was the general area he was in. The dispatch stated that the driver of the vehicle had run from the scene on foot. Within a few minutes, Scofield observed a white male run to the south onto O Street from the north approximately one and a half to two blocks from the accident coming from the general direction of where Scofield understood the accident to have occurred. The party wore a tank top T-shirt and nylon running shorts and was "sweating profusely." The party was looking behind him as he stopped there on the corner. Scofield testified that he thought this was possibly the hit-and-run driver, so he pulled over and got out of his vehicle, making contact with the party at the northeast corner of 29th and O Streets. The party stopped upon Scofield's approach. Scofield asked the party, later identified as Runge, for identification. Runge eventually produced a nylon wallet and handed it to Scofield. Scofield could not recall if the wallet was produced from Runge's shorts or the fanny pack he was wearing. In any event, the fanny pack was opened at some point.
According to Scofield, Runge was compliant in getting his wallet, took no evasive action, and made no threats. Scofield did not see or suspect that Runge was carrying weapons and had no knowledge of any prior drug offenses or violent tendencies regarding Runge.
Scofield explained that the area was fairly well lit by overhead street lights and that he observed a baggie and a black film canister in the fanny pack. On cross-examination, Scofield clarified that he first saw several baggies. Scofield also testified that he did not observe a camera in the fanny pack. Scofield immediately reached into the pack and took control of a baggie and the film canister because, according to him, he recognized them as types of packaging often used for marijuana and other drugs. Thus, he thought the items may contain "marijuana and other drugs," so he secured them so as not to lose possession of them. At the time he first observed the baggies, Scofield admitted that he could not see what, if anything, was in them. He also admitted that he may have pulled one or more of the baggies out before he observed the film canister. Thus, Scofield admitted that the only thing he recalled looking at that aroused some suspicion at first was the baggies. Then, at some point, he observed the film canister. It was Scofield's opinion that Runge was under the influence of alcohol.
Scofield is a 19-year veteran of the sheriff's department. He was certified by the Nebraska Law Enforcement Training Center in 1977 and has had specialized training in different areas since that time. He also worked for 2frac12; years as a narcotics officer in 1994 and 1995, during which time he had the opportunity to see and observe how marijuana was packaged for sale on the street. Scofield has been involved with 100 to 150 narcotics cases.
After Scofield took control of the items, there was a brief conversation regarding the contents of the baggie and what Runge was doing in the area. Runge explained that he was coming from a friend's house and then attempted, but failed, to grab for Scofield's hand and then took off running. He then hid in the backyard of a residence where Scofield recontacted him, handcuffed him, and took him back to the cruiser. Scofield removed the fanny pack from Runge after he was seated in the cruiser. Scofield asked Runge if Scofield could look in the pack, and according to Scofield, Runge replied in the affirmative. When Scofield opened the fanny pack, he observed two small packages of what Runge told him was methamphetamine and a small scale. Scofield then transported Runge to jail.
Runge was charged with possession of methamphetamine in violation of Neb. Rev.Stat. § 28-416(3) (Cum.Supp.1998). He filed a motion to suppress all evidence seized. At the hearing on the motion, Scofield identified exhibits 2 and 3, a film canister and a baggie containing marijuana, which came from exhibit 1, Runge's fanny pack. Scofield was not sure whether exhibit 3 was the baggie he removed when he first contacted Runge or whether it was another of the baggies which "seemed to have residue in them." He explained that he observed additional baggies in the fanny pack and that he did not "recall exactly if the marijuana was found right away or if it was in some of the other baggies that [he] observed originally." He also identified exhibits 4 and 5 as the two packages of methamphetamine.
Scofield testified that during his experience as a narcotics agent, he came into contact with items such as exhibits 2 and 3 and that these items were often used to package or carry marijuana in. Based on this prior training and experience, he explained that at the time he observed the baggies, he believed they could contain contraband.
The State alleged below that the initial seizure of the one baggie and film canister was valid based on either the plain view doctrine or the inevitable discovery exception to the warrant requirement. The trial court sustained Runge's motion, finding that the incriminating character of the objects observed in Runge's fanny pack were not immediately apparent and that thus, they were unlawfully seized. The trial court observed:
Scofield testified that he never saw what was in the baggies until after he seized it. In fact he is not sure that the baggy he seized contained any thing at all let alone contraband. Scofield had no reason to suspect defendant was carrying drugs. He contacted defendant to investigate a possible hit and run. He had no information about the defendant what so ever. All he had were the bags. Plastic sandwich bags, standing alone, are at best undisctictive [sic] containers. The same is true of the film canister. It is used to carry film. The plain view doctrine is not applicable here.
The court also found that there was no evidence that Runge's arrest was for anything other than drug possession. Thus, it concluded that there was no evidence that if the illegal seizure had not occurred, the fanny pack would have inevitably been searched incident to an arrest for the hit and run. The State appeals.
Restated, the State alleges that the district court erred in finding that the plain view doctrine did not apply.
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 re Interest of Andre W., 256 Neb. 362, 590 N.W.2d 827 (1999); State v. Matthews, 8 Neb.App. 167, 590 N.W.2d 402 (1999). In determining whether a trial court's ruling on a motion to suppress is 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. Matthews, supra.
The Fourth Amendment to the U.S. Constitution and the Nebraska Constitution protect individuals against unreasonable searches and seizures by the government, including police officers. State v. Craven, 253 Neb. 601, 571 N.W.2d 612 (1997). However, there are several categories of searches considered reasonable under the Fourth Amendment even though conducted without a warrant. In the case of a search and seizure conducted without a warrant, the State has the burden of showing the applicability of one or more of the exceptions to the warrant requirement. State v. Craven, supra; State v. Butzke, 7 Neb.App. 360, 584 N.W.2d 449 (1998).
To determine whether any physical evidence is constitutionally inadmissible, a court must first examine the circumstances surrounding the officer's stop of the vehicle, for, if the initial stop was unconstitutional, any subsequent search and evidence obtained through that search are constitutionally inadmissible as the "fruit of the poisonous tree." State v. Vermuele, 241 Neb. 923, 492 N.W.2d 24 (1992), citing State v. Thomas, 240 Neb. 545, 483 N.W.2d 527 (1992), citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Evidence must be excluded as "fruit of the poisonous tree" if it is discovered by the exploitation of illegal police conduct. People v. Evans, 259 Ill.App.3d 650, 631 N.E.2d 872, 197 Ill.Dec. 650 (1994), quoting People v. Pettis, 184 Ill.App.3d 743, 540 N.E.2d 1097, 133 Ill.Dec. 231 (1989), citing Wong Sun v. United States, supra.
The seizure of the baggie and the film canister from Runge's fanny pack precipitated the chain of events leading to Runge's seizure and the subsequent search of his fanny pack which disclosed the methamphetamine which is the basis for the present charge. If that seizure was illegal, the evidence seized and all evidence flowing from it must be suppressed. See People v. Evans, supra. Thus, we focus on Scofield's initial "grabbing" of the baggie and the film canister which the State contends were properly obtained under...
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