State v. Shiffermiller
| Decision Date | 15 February 2019 |
| Docket Number | No. S-17-675.,S-17-675. |
| Citation | 922 N.W.2d 763,302 Neb. 245 |
| Parties | STATE of Nebraska, Appellee, v. Steven F. SHIFFERMILLER, Appellant. |
| Court | Nebraska Supreme Court |
Matthew K. Kosmicki, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Defendant was arrested after law enforcement stopped and searched his person and belongings, including the inside of a flashlight, and ultimately found illegal drugs and brass knuckles. Following denial of his motion to suppress and a stipulated bench trial, defendant was convicted of three counts of possession of a controlled substance, a Class IV felony, and one count of possession of a deadly weapon by a prohibited person, a Class III felony. Defendant appealed his convictions to the Nebraska Court of Appeals, and the court, applying the narrow community caretaking exception, affirmed. We granted defendant’s petition for further review.
On September 15, 2016, Steven F. Shiffermiller was charged with three counts of possession of a controlled substance, each count a Class IV felony, and one count of possession of a deadly weapon, a Class III felony. Shiffermiller entered a plea of not guilty and filed a motion to suppress the evidence obtained during his detention and subsequent arrest. A hearing on the motion to suppress was held on March 8, 2017, and the following evidence was adduced.
At approximately 4:30 a.m. on June 6, 2016, the Lincoln Police Department received a report that two individuals were fighting near the intersection of South 31st Street and Sequoia Drive. When an officer arrived on the scene, Shiffermiller was walking toward a parked car with its trunk open on the north side of Sequoia Drive. Shiffermiller appeared to have a torn shirt and blood on his face, arm, and knuckles. Wearing camouflaged printed pants and a tank top, Shiffermiller matched the description of one of the individuals from the police report.
An officer approached Shiffermiller, asking whether he was injured and stating that there had been a reported altercation at that location. Shiffermiller appeared to be angry, agitated, and under the influence of drugs or alcohol. According to the officer, he claimed that he had been "boxing trees" in a nearby park and was not involved in a fight. The officer then asked Shiffermiller to sit down, as he appeared to be unable to stand. A few minutes later, three more officers arrived on the scene.
Shiffermiller stated that he wanted to leave, but was told that he was not free to leave and that he would stay until the situation was investigated. Because Shiffermiller was acting uncooperative, he was placed in handcuffs and was seated on the curb while officers searched for the other party involved in the reported fight. Shiffermiller’s cell phone was lying in the middle of the intersection. A "ball cap" was also found in the intersection; Shiffermiller denied that it belonged to him. No other party was found, so, after approximately 30 to 40 minutes, the officers discontinued their investigation of the potential assault.
The officers determined that Shiffermiller should be transported somewhere both for his safety and to avoid any further disturbances or issues. Shiffermiller rejected medical attention and indicated that he wanted to walk home. The officers did not want to leave Shiffermiller alone, in fear that he may cause further disturbances or attempt to operate his car. Because he appeared to be under the influence of alcohol or drugs, they were worried about his ability to care for himself and were concerned for the safety of the public if he chose to drive. Eventually, the officers found contact information for Shiffermiller’s father, who agreed that Shiffermiller could be brought to his home.
In preparing to transport Shiffermiller to his father’s home, two police officers patted Shiffermiller down to make sure he did not have any weapons before placing him in a police cruiser. The officers testified that the pat-down was conducted for officer safety reasons, because Shiffermiller had potentially been in a fight and it was unclear whether weapons had been involved. During the pat-down, an officer felt an object in Shiffermiller’s pocket that he "immediately recognized" to be brass knuckles. The officer extracted the brass knuckles from Shiffermiller’s pocket and noticed that there was a small trace of blood on them. He seized the object, and Shiffermiller was placed under arrest.
A search of the police database conducted in one of the officer’s cruisers revealed that Shiffermiller had a previous felony conviction, which meant that the arrest related to the brass knuckles became a felony arrest as opposed to a misdemeanor. The officers then determined that Shiffermiller would be transported to jail and informed Shiffermiller’s father of the change in circumstances.
Shortly after or nearly contemporaneous to the discovery of the brass knuckles, the officers conducted a complete search of Shiffermiller’s person, finding keys and a flashlight in Shiffermiller’s right pocket. The officer who found the flashlight noticed that it "rattle[d]" and that he "could just feel there weren’t batteries inside." He opened the flashlight and found several pills and a small baggie of marijuana. Shiffermiller did not produce a prescription for the pills. The officers checked the pills, which had identifying markings, and confirmed that they were controlled substances. At that time, Shiffermiller was also placed under arrest for possession of a controlled substance. According to the officers present at the scene of the arrest and Shiffermiller’s father, approximately 45 minutes to 1 hour passed between the initial stop and Shiffermiller’s arrest. The district court overruled Shiffermiller’s motion to suppress.
On April 25, 2017, a stipulated bench trial was held. At this trial, Shiffermiller renewed his motion to suppress, which was again overruled by the district court. The State offered two exhibits that were accepted into evidence, one a complete set of police reports and a laboratory report regarding the June 6, 2016, arrest and the other a certified copy of Shiffermiller’s prior felony conviction. The parties stipulated that if witnesses were called to testify in this matter, they would testify consistently with the information contained in those exhibits. The parties also stipulated as to the necessary foundation for the first exhibit which established venue and the chain of custody for the brass knuckles and the narcotics seized at the time of the arrest.
The district court found Shiffermiller guilty on each count alleged. On June 1, 2017, Shiffermiller was sentenced to jail for a period of 50 days on each count and ordered credit for 117 days already served in jail. The court then placed Shiffermiller on probation for a period of 1 year on count I, 2 years on count II, 3 years on count III, and 4 years on count IV, to run concurrently.
Shiffermiller appealed to the Nebraska Court of Appeals, asserting that the district court erred in overruling his motion to suppress the evidence obtained on June 6, 2017. The Court of Appeals affirmed the district court’s decision, applying the "community caretaking" exception to the Fourth Amendment to justify Shiffermiller’s continued detention after officers completed their initial investigation related to the reported altercation.1 Shiffermiller petitioned this court for further review of the Court of Appeals’ decision, alleging it erred in concluding that evidence found on Shiffermiller’s person was properly admitted.
Shiffermiller assigns that the district court erred in failing to suppress evidence because (1) the government exceeded the permissible scope and duration of a stop pursuant to Terry v. Ohio2 and (2) the warrantless search of Shiffermiller violated the Fourth Amendment because law enforcement did not have a reasonable suspicion that Shiffermiller was armed and dangerous and there was no basis in law to justify the search of his flashlight.
In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, we apply a two-part standard of review.3 Regarding historical facts, we review the trial court’s findings for clear error.4 But whether those facts trigger or violate Fourth Amendment protections is a question of law that we review independently of the trial court’s determination.5 When a motion to suppress is denied pretrial and again during trial on renewed objection, an appellate court considers all the evidence, both from the trial and from the hearings on the motion to suppress.6
The ultimate determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search are reviewed de novo, and findings of fact are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge.7
Shiffermiller asserts that the district court and Court of Appeals erred in finding that the stop did not exceed the permissible scope and duration of a Terry stop and in determining the search of Shiffermiller, including the inside of his flashlight, was proper under the Fourth Amendment.8 In sum, he argues that the court erred in concluding that Shiffermiller’s rights were not violated in such a manner that required the suppression of the evidence gathered during the stop and subsequent search. Because we also find that Shiffermiller’s Fourth Amendment rights were not violated, we affirm.
Shiffermiller first contends that the district court erred in overruling his motion to suppress because the police officers exceeded the permissible scope and duration of a second-tier Terry stop. He argues that the stop in this case falls within the third tier described in State...
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