State v. Saitta
| Decision Date | 17 July 2020 |
| Docket Number | No. S-19-697.,S-19-697. |
| Citation | 306 Neb. 499,945 N.W.2d 888 |
| Parties | STATE of Nebraska, appellee, v. Richard J. SAITTA, appellant. |
| Court | Nebraska Supreme Court |
Thomas C. Riley, Douglas County Public Defender, and Mary M. Dvorak, for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Richard J. Saitta appeals his conviction and sentence in the district court for Douglas County for possession of a controlled substance. The court overruled Saitta's motion to suppress evidence, and thereafter in a bench trial, it found Saitta guilty and sentenced him to probation for 1 year. Saitta claims on appeal that the court erred when it overruled his motion to suppress. We affirm Saitta's conviction and sentence.
Saitta was arrested on July 3, 2018, after police officers found a clear plastic bag containing a substance later identified as methamphetamine inside a glove worn by Saitta. Before trial, Saitta filed a motion to suppress all evidence obtained as a result of his encounter with the police on July 3. He asserted that he was seized in violation of the Fourth Amendment because the police did not have reasonable suspicion to detain and question him and that the search of his personal effects was in violation of the Fourth Amendment because the circumstances did not justify a search without a warrant.
At a hearing on the motion to suppress, the State presented the testimony of Cory Buckley, one of the police officers who arrested Saitta. Buckley's testimony is set forth in more detail below. During Buckley's testimony, the State offered and the court received into evidence a video recording from Buckley's body camera depicting Buckley's encounter with Saitta. During Saitta's cross-examination of Buckley, Saitta offered and the court received into evidence three still photographs depicting the scene of the encounter. The State offered no further testimony or evidence, and Saitta offered no other evidence in his defense.
Buckley testified that he was an officer with the Omaha Police Department. At approximately 5:43 a.m. on July 3, 2018, he and his partner were driving on patrol, and as they drove past an alleyway, they observed a person who appeared to be looking into the window of a building that was in the process of being demolished. Buckley testified that he had been aware of the building's being demolished and that he had made observing the building part of his regular route on patrol because there had been problems with trespassers and people sleeping in the building. He was also aware that there had been "scrappers in that area," which as he further described meant that "[w]herever there's buildings under construction, there's people trying to take metals out of the building being demolished ... for money."
Upon observing a person in the alley, the officers stopped and backed up their patrol car to get a closer look; Buckley testified that he "believe[d] the person saw us because when we reversed the person was gone." They turned into the alley to try to make contact or to see if the person had entered the building; as they drove into the alleyway, they noticed the person, who would later be identified as Saitta, "hiding in the bushes" that were "up against the building." Buckley testified that the officers’ purpose in making contact with Saitta was "[j]ust to see why he was looking in the building" and to "[b]asically, identify him, make sure he's not breaking in, not stealing anything, that he actually belongs in that area."
When the officers got out of their patrol car, Saitta came "out of the bushes to make contact with" them. As Saitta came out of the bushes, Buckley saw "him shove something into his left glove with his right hand." Buckley observed upon initial contact that Saitta was "super nervous" and "did not like [the officers’] being there." Buckley also observed, based on his "training and experience," that the glove Saitta was wearing on his left hand was of "the kind of gloves that are used by like electricians, so they don't cut their hands up when they're dealing with wires." Buckley's partner asked Saitta what he was doing and whether he was breaking into the building; Saitta replied that he was doing nothing and that he did not have any tools on him, and he put his hands in the air. Buckley's partner then asked Saitta, " ‘Well, what's this pile of metal doing right here?’ " as he gestured toward a small pile of scrap metal that was "[u]p against the building, right by the bush ... where [Saitta] came out of from behind." Saitta replied that the metal was not his, and then "he began to back away from" the officers. When Saitta began to back away, Buckley "put [his] hand on [Saitta's] back to get him to stop."
Buckley replied in the affirmative to the State's question whether he "inquire[d] to [Saitta] what was in his glove." He then testified that he "asked [Saitta] to remove the glove and [Saitta] complied." Buckley then "asked [Saitta] to hand [him] the glove," and when Saitta handed the glove to him, Buckley saw that "inside the glove was a clear plastic bag" that contained a substance that "later field-tested positive for methamphetamine." Upon finding the bag and its contents, the officers "immediately placed [Saitta] into handcuffs" and arrested him.
On cross-examination, Saitta referred to Buckley's testimony that he "asked" Saitta to remove his glove. Saitta asked Buckley whether "[i]n fact, [he] directed [Saitta] to remove his gloves," and whether he "told [Saitta] to give it to [him] so that [he] could inspect it." Buckley agreed with both characterizations. Buckley also agreed with Saitta's characterization that he and his partner got only a "fairly quick glance" at Saitta when he was looking into a window of the building as they first drove past the alleyway and before they reversed course and turned into the alley. Buckley acknowledged that he had not previously encountered anyone trying to steal scrap metal from that particular building. Buckley further acknowledged that when he approached Saitta, he did not observe any metal in Saitta's hands and did not observe a vehicle, shopping cart, or other mode of transport available to carry metal. Buckley acknowledged that he and his partner had not found evidence that Saitta was trying to take metal from the building and that at the date of the suppression hearing, he did not "actually know whether ... Saitta was or was not attempting to get metal from this particular building."
Following the suppression hearing, the district court filed an order overruling Saitta's motion to suppress. The district court evaluated the evidence and, at the beginning of its analysis, stated with regard to the glove that "this is not a ‘seizure’ as characterized by" Saitta. Instead, the court found that Despite this finding, the court discussed arguendo that there had been a seizure of the glove and continued its analysis accordingly.
After discussing the different levels of police-citizen encounters, the court determined that the encounter between Saitta and the officers began as a "tier-one encounter" in which Saitta's liberty was not constrained but then became an "investigatory stop," or a "tier-two encounter," which enjoys a level of Fourth Amendment protection. The court found that the investigatory stop was proper "because, under the totality of the circumstances, the officers had reasonable suspicion that [Saitta] had, was about to, or was in the process of committing a crime." The court noted Buckley's testimony that he saw Saitta when he was looking into the building at around 5:43 a.m., that he knew the building was in the process of being demolished and individuals frequently stole scrap metal from such buildings, and that when he and his partner drove into the alley, Saitta tried to hide in the bushes. The court found these to be "specific and articulable facts that criminal activity was afoot," and it concluded that reasonable suspicion supported a lawful detention for an investigatory stop.
The court then reviewed law to the effect that searches without a valid warrant are per se unreasonable, subject to certain exceptions. The court noted that in addition to the evidence which supported reasonable suspicion justifying the investigatory stop, Buckley testified that he saw Saitta put something in his left glove when the officers approached him. The court found that it was "reasonable for the officers to believe the furtive gestures of [Saitta were] an attempt to conceal items of a crime." The court concluded that "probable cause existed in order to justify the search of [Saitta's] glove" and that Saitta's "Fourth Amendment rights were not violated because probable cause existed." The court overruled Saitta's motion to suppress.
After Saitta waived his right to a jury trial, the court conducted a bench trial in which the State offered two exhibits—a stipulation of the parties regarding laboratory testing of the substance in the plastic bag found in Saitta's glove and separately the transcript of the suppression hearing. Saitta objected to the admission of both exhibits based on the reasons set forth in his motion to suppress, and he renewed the motion to suppress. The court overruled the renewed motion to suppress and received the evidence over Saitta's objection. Saitta offered no evidence in his defense, and the court thereafter found Saitta guilty of possession of a controlled substance. After hearing argument by the parties on the issue of sentencing, the court sentenced Saitta to probation for a term of 1 year.
Saitta appeals his conviction and sentence.
Saitta claims generally that the district court erred when it overruled his motion to suppress. He specifically...
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