State v. Scovill

• Decision Date: 04 April 2000
• Docket Number: No. A-99-154.,A-99-154.
• Citation: 608 N.W.2d 623,9 Neb.App. 118
• Parties: STATE of Nebraska, appellee, v. Derek J. SCOVILL, appellant.
• Court: Nebraska Court of Appeals

608 N.W.2d 623

9 Neb.App. 118

STATE of Nebraska, appellee, v. Derek J. SCOVILL, appellant.

No. A-99-154.

Court of Appeals of Nebraska.

April 4, 2000.

Randall Wertz, Deputy Thayer County Public Defender, Chappell, for appellant.

Don Stenberg, Attorney General, and Marie Colleen Clarke, Lincoln, for appellee.

HANNON, SIEVERS, and INBODY, Judges.

HANNON, Judge.

I. INTRODUCTION

Defendant, Derek J. Scovill, appeals his convictions for possession of methamphetamine, alprazolam, and marijuana on the basis that the evidence admitted against him was the fruit of an illegal search of the glove box of his car conducted after the car had been involved in a one-vehicle accident. Restated, Scovill specifically alleges that the trial court erred in (1) not making the necessary findings required by law and (2) admitting the evidence discovered in searches of his car, containers strewn about the accident scene, and his person. We reverse his convictions because the searches of the glove box, containers, and his person were unconstitutional and therefore the evidence obtained therefrom should have been excluded by the trial court.

II. PROCEDURAL BACKGROUND

The State of Nebraska charged Scovill by information with four counts of drug-related offenses: (1) possession of methamphetamine, pursuant to Neb.Rev.Stat. § 28-416(3) (Reissue 1995); (2) possession of alprazolam, also pursuant to § 28-416(3); (3) possession of marijuana, pursuant to § 28-416(11); and (4) possession of drug paraphernalia, pursuant to Neb.Rev. Stat. § 28-441 (Reissue 1995). Scovill made a motion to suppress to exclude the drugs and paraphernalia as fruit of an illegal search in violation of his rights under the U.S. Const. amend. IV and Neb. Const. art. I, § 7. The district court for Thayer County overruled Scovill's motion to suppress as well as Scovill's renewed objection to the evidence at the bench trial. At the close of the evidence, the trial court dismissed the drug paraphernalia charge but found Scovill guilty on the remaining three charges. Scovill was sentenced to probation and ordered to pay court costs; he now appeals his convictions.

III. SUMMARY OF EVIDENCE

Nebraska State Patrol Trooper Kyle Johansen was dispatched to the scene of a one-car accident, occurring earlier in the day near Byron, Nebraska, in rural Thayer County, after a passerby reported seeing a weapon in the car. Johansen had visited the accident scene earlier in the day and had a brief conversation with Thayer County Deputy Sheriff Gordon Downing about the accident. At that time, Johansen observed an individual in the back of Downing's car whom Downing identified as the driver of the car in the accident and whom Johansen later learned was Scovill. Johansen talked to Downing a second time about the accident while at the sheriff's station later that same day, but before Johansen was dispatched to the scene on the weapons call.

When Johansen responded to the dispatch, he looked inside and immediately observed a handgun on the front passenger seat. At the time he responded to the call, no one else was present at the accident scene. Johansen testified that he did not remember whether he reached through a broken window to pick up the gun but that he did eventually open the passenger door of the car. Upon closer examination of the gun, Johansen realized it was a BB gun. After making this determination, Johansen continued searching for other weapons and for the registration of the vehicle. He testified that while he had seen the person identified as the driver, he was curious as to who owned the car. Johansen opened the glove box and found the car's registration, which listed Scovill as the owner. He also found a piece of broken mirror and small medical forceps which were burnt on the ends, which Johansen believed were drug paraphernalia.

Johansen then searched the remainder of the car for contraband before turning the focus of his search to the items strewn about the accident scene. Johansen first found a Crown Royal whiskey bag about 30 feet in front of the vehicle, which he picked up and, upon feeling a small box inside, opened the bag and removed the box. He then opened the box and found a small, grain scale. Johansen also found a closed six-pack cooler, which he opened. Inside the cooler was a cardboard tube, which Johansen also opened and found short plastic straws which he believed were used for inhaling illegal drugs. Finally, Johansen found a bong, a pipe used for smoking marijuana, in a corn row in the harvested corn field adjacent to the ditch which was "a considerable distance" from the other items that were strewn about.

Johansen collected the paraphernalia and other items strewn about the scene and placed the paraphernalia in his patrol car and the rest of the items in the trunk of Scovill's car. He then called Downing back to the scene to discuss what he had found. Downing informed Johansen that he could probably find Scovill at a truckstop in Hebron, Nebraska. While Downing remained at the scene, Johansen went to the truckstop and found Scovill leaning against an outside wall of the building. Johansen testified that he, while in uniform, approached Scovill and asked if he was Scovill. After Scovill nodded that he was, he informed Johansen that he was the only occupant in the car at the time of the accident and that the items in the car belonged to him.

Johansen then explained to Scovill that he had found drug paraphernalia at the scene and then asked whether Scovill had any weapons or contraband on his person. Scovill stated that he did not have any weapons. Johansen patted Scovill down nonetheless. Specifically, Johansen testified that he conducted the pat-down search because, based on what Johansen had found at the scene, he believed Scovill "still could have had drugs on him or possibly a weapon." On cross-examination, Johansen admitted he conducted the pat down "basically to search him to see if [he] could find anything else." Johansen also testified that he did not have any reason to believe Scovill was armed and dangerous other than the fact that Johansen did not know him, a possibility that exists with virtually anyone. Johansen was also curious because Scovill only answered that he did not have any weapons and said nothing about whether he had any contraband. Johansen testified that he thought he could not have arrested Scovill at that point because he had only found drug paraphernalia which he knew to be an infraction which would justify only the delivery of a citation in lieu of arrest.

Johansen started with the right front pocket of Scovill's ski jacket and, without manipulation, felt what he believed to be a pipe used for smoking marijuana. He then asked Scovill to remove the item from his pocket, which he did, and Johansen found that it was a marijuana pipe which still had residue inside. Johansen next patted the right front change pocket of Scovill's jeans and felt a small bulge. Johansen manipulated the bulge a little to see if it was soft and then removed it from the pocket. Johansen discovered that the item was a wad of plastic wrap containing some marijuana. There was also a cellophane wrapper containing part of a pill later determined to be alprazolam.

As Johansen continued his pat-down search on the right side of Scovill's coat, he felt a pocket with a small rectangular box inside. Johansen asked Scovill what the box contained, to which Scovill replied, "[S]ome meth." Johansen then removed the box, opened it, and found a razor and a small baggie containing a yellowish white powder, which Johansen believed to be methamphetamine. Johansen testified that he did not arrest Scovill until he completed searching him and that then he placed Scovill under arrest for possession of methamphetamine, possession of marijuana, and possession of drug paraphernalia.

IV. ASSIGNMENTS OF ERROR

Scovill alleges, restated, that the trial court erred in (1) failing to make sufficient findings of fact or law regarding the warrantless search of Scovill's automobile and (2) overruling Scovill's motion to suppress and holding that the detention and search were justified.

V. STANDARD OF REVIEW

The Nebraska Supreme Court articulated the applicable standard of review for this case in In re Interest of Andre W., 256 Neb. 362, 365, 590 N.W.2d 827, 830 (1999):

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, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. [Citation omitted.]

A trial court's ultimate determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search are reviewed de novo. However, findings of fact are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge.

VI. ANALYSIS

1. FIRST ASSIGNMENT OF ERROR

Scovill's first assignment of error alleges that the trial court failed to make the necessary findings mandated by State v. Osborn, 250 Neb. 57, 547 N.W.2d 139 (1996). With respect to granting or denying a motion to suppress, Osborn held:

Such findings of fact may be indispensable to a proper appellate review. [Citations omitted.] Without guidance, we might not know whether the trial court rejected a defendant's factual contentions or had acted on some legal basis. Under our standard of review, we would not know the basis of the trial court's judgment. A different standard of review applies to each. Henceforth, district courts shall articulate in writing or from the bench their general findings when denying or granting a motion to suppress. The degree of specificity required will vary,

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