State v. Staten
| Decision Date | 03 May 1991 |
| Docket Number | No. 90-232,90-232 |
| Citation | 238 Neb. 13,469 N.W.2d 112 |
| Parties | STATE of Nebraska, Appellee, v. Shawn J. STATEN, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Constitutional Law: Criminal Law: Police Officers and Sheriffs: Investigative Stops: Probable Cause. Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), police can constitutionally stop and briefly detain a person for investigative purposes if the police have a reasonable suspicion, supported by articulable facts, that criminal activity exists, even if probable cause is lacking under the fourth amendment.
2. Investigative Stops: Probable Cause: Words and Phrases. Reasonable suspicion entails some minimal level of objective justification for detention, something more than an inchoate and unparticularized suspicion or "hunch," but less than the level of suspicion required for probable cause.
3. Search and Seizure: Arrests. A valid search as an incident to an arrest without a warrant necessarily depends on the legality of the arrest itself.
4. Constitutional Law: Police Officers and Sheriffs: Search and Seizure: Arrests: Probable Cause. The constitutional issue regarding a reasonable search, as an incident of a felony arrest without a warrant, depends on the presence or absence of probable cause for that arrest, that is, whether immediately before the search an officer has probable cause to believe that the person to be searched has committed a felony.
5. Police Officers and Sheriffs: Arrests: Probable Cause. When a law enforcement officer has knowledge, based on information reasonably trustworthy under the circumstances, which justifies a prudent belief that a suspect is committing or has committed a crime, the officer has probable cause to arrest without a warrant.
6. Police Officers and Sheriffs: Search and Seizure: Search Warrants: Motions to Suppress: Proof. If police have acted without a search warrant, the State has the burden to prove that the search was conducted under circumstances substantiating the reasonableness of such search or seizure.
7. Police Officers and Sheriffs: Arrests: Search and Seizure: Search Warrants. If there is a lawful arrest, police have authority, without a search warrant, to conduct a full search of the person arrested.
8. Police Officers and Sheriffs: Arrests: Search and Seizure: Weapons: Evidence. A police officer's search is not limited to searching the arrested person for weapons only; the officer may search for and seize any evidence on the arrestee's person, even if such evidence is unrelated to the crime for which the arrest was made, in order to prevent concealment or destruction of evidence.
9. Arrests: Search and Seizure. A search incident to a lawful arrest need not be made immediately on arrest, but may legally be conducted later when the accused arrives at the place of detention.
10. Police Officers and Sheriffs: Search and Seizure: Search Warrants: Motions to Suppress: Proof. If police have acted pursuant to a search warrant, the defendant bears the burden of proof that the search or seizure was unreasonable; but if police acted without a search warrant, the State has the burden of proof that the search was conducted under circumstances substantiating the reasonableness of such search or seizure.
11. Search and Seizure: Search Warrants: Motions to Suppress: Proof. A defendant who seeks to suppress evidence obtained pursuant to a search warrant has the burden of establishing that the search warrant is invalid so that evidence secured thereby may be suppressed.
12. Constitutional Law: Search and Seizure. The "fruit of the poisonous tree" doctrine, expressed in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), is a condemnation of the government's subsequent exploitation of a prior violation of a defendant's constitutional right.
Thomas M. Kenney, Douglas County Public Defender, and Cheryl M. Kessell, Omaha, for appellant.
Robert M. Spire, Atty. Gen., and Barry Waid, Lincoln, for appellee.
The State charged that Shawn J. Staten intended to deliver or distribute cocaine in her possession, a violation of Neb.Rev.Stat. § 28-416(1)(a) (Cum.Supp.1988). In her suppression motions, Staten claimed that cocaine found on her person and her custodial statements were constitutionally inadmissible. See Neb.Rev.Stat. § 29-115 (Reissue 1989)(suppression of accused's statement) and Neb.Rev.Stat. § 29-822 (). When the district court for Douglas County sustained Staten's motions, the State obtained a review by a judge of this court concerning the suppression orders. See Neb.Rev.Stat. §§ 29-116 and 29-824 (Reissue 1989). As a result of that review, the suppression orders were
reversed. See State v. Staten, 233 Neb. 800, 448 N.W.2d 152 (1989). In a subsequent bench trial, Staten was convicted on the cocaine charge and sentenced to imprisonment.
On the morning of March 29, 1989, in the Kansas City International Airport, Agent Carl Hicks of the Federal Drug Enforcement Agency was routinely observing arrival of flights from Los Angeles, California, and noticed a man and a woman, later identified as Tracy Wood and Staten, whom he described as "suspicious" inasmuch as the couple fit the drug courier profile. When Hicks approached the pair and asked them for identification, Wood and Staten said they had none. However, Staten later produced some identification and also displayed their plane tickets. Hicks noted that Wood and Staten had paid cash for their plane tickets and that they were flying to Omaha on Braniff Airline flight 1490, which was scheduled to arrive in Omaha at 8:30 that morning. Since no drug detection dog was available at Kansas City and because the couple's luggage was already on board the Omaha flight scheduled for departure in the next few minutes, Hicks terminated the interview with Wood and Staten, who boarded Braniff flight 1490 to Omaha.
Hicks telephoned Sgt. James Cisar of the Omaha Police Division and related Hicks' observations at the Kansas City International Airport. Cisar immediately called Sgt. William Agnew of the Omaha Police Division's narcotics unit. Agnew assembled a team of FBI agents and Omaha police officers, who went to Omaha's Eppley Airfield to meet Braniff flight 1490. Agnew also contacted Steve Sanchelli, an Omaha police officer who handles "Bush," a dog used for drug detection by the Omaha Police Division, and asked Sanchelli to bring Bush to the airport.
On arrival at the airport, the officers and the FBI agents went to gate 21, where flight 1490 was to arrive, and set up surveillance. When flight 1490 arrived at 8:30 a.m., the officers observed Wood and Staten disembark from the plane and walk to the baggage claim area. Staten made a phone call, after which she and Wood retrieved three pieces of luggage and began to walk toward the airport's main terminal area. Agnew approached Wood and Staten, identified himself as a police officer conducting a "narcotics investigation," and asked them to produce their plane tickets. Staten said she had discarded her ticket on the plane. When Agnew asked for some identification, Staten showed Agnew a copy of a birth certificate and her Social Security card. Agnew told Wood and Staten that a drug detection dog was en route to the airport and asked whether they would consent to having the dog "sniff" their luggage for the possible presence of controlled substances. Staten agreed to let the dog sniff her luggage, which included a brown "two suiter suitcase" bearing a Braniff identification tag: "Shawn Staten, 15546 Friar Street, Van Nuys, California."
Wood and Staten accompanied the officers to the airport security area, where Agnew asked Staten about the reason for her presence in Omaha. Staten responded that she was visiting her brother, Harry Harris. Agnew knew that Harry Harris, an alias for Dan Staten, was in custody. Harris was a member of a Los Angeles gang and was "involved in narcotics activity" in Omaha. Also, Agnew had personally arrested Staten's sister, Mowesha Staten, in an Omaha motel for possession of a controlled substance.
Approximately 15 minutes after Staten had arrived in Omaha, Officer Sanchelli arrived at the airport with Bush, the drug detection dog. Bush had been specially trained in locating cocaine, heroin, and other controlled substances and was used to "alert" officers to the presence of a controlled substance within luggage. The "alert" consists of Bush's sniffing luggage and then biting or scratching luggage which contains a controlled substance. Before Staten encountered the officers at the Eppley Airport, Bush had positively verified controlled substances in "50 controlled alerts" and had located a controlled substance in luggage on 18 separate occasions.
[238 Neb. 17] Staten's luggage was placed in the airport hallway for Bush's "off-leash" sniffing. As the dog was sniffing Staten's luggage, "Bush alerted violently by biting and scratching" at Staten's "two suiter" suitcase, an indication that the luggage contained a controlled substance such as cocaine. After Bush "alerted on" Staten's suitcase, Agnew requested permission to search Staten's person and luggage. Staten told Agnew that he could search her luggage but not search her. When Agnew said that "a female officer would conduct the search in the privacy of a room," Staten still refused to permit a search of her person. According to Agnew: "At that point I informed [Staten] that she was under arrest for suspicion of possession of a controlled substance and she would be taken to central police headquarters and we were going to apply for a search warrant for her luggage and her person." No one questions that Staten was arrested for possession of a controlled substance at the airport. The officers then transported...To continue reading
Request your trial
-
Powell v. State
...clothes incident to that lawful arrest was permissible. See Taylor v. State, 239 Ga.App. 858, 522 S.E.2d 266 (1999); State v. Staten, 238 Neb. 13, 469 N.W.2d 112 (1991); Pinkston v. State, 189 Ga.App. 851, 377 S.E.2d 864 (1989); and 2 LaFavre, Search and Seizure § 5.3 (3d ed.1996). Therefor......
-
State v. Twohig
...may we conclude that a "seizure" has occurred. 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16. As we observed in State v. Staten, 238 Neb. 13, 18, 469 N.W.2d 112, 116 (1991): "[U]nder Terry v. Ohio ... police can constitutionally stop and briefly detain a person for investigative purposes if ......
-
State v. Johnson
... ... Ellington, 242 Neb. 554, 495 N.W.2d 915 (1993). However, a reasonable suspicion sufficient to justify an investigative stop may exist even if probable cause is lacking under the Fourth Amendment. State v. Soukharith, supra; State v. Bowers, 250 Neb. 151, 548 N.W.2d 725 (1996); State v. Staten, 238 Neb. 13, 469 N.W.2d 112 (1991). To the extent that our decisions beginning with State v. Robish, supra, and continuing through State v. Lytle, supra, and those of the Court of Appeals in State v. Nelson, supra, and State v. Flemming, supra, suggest that issuance of a search warrant may be ... ...
-
State v. Ortiz
...State v. Morrison, 243 Neb. 469, 500 N.W.2d 547 (1993), disapproved on other grounds, State v. Johnson, supra; State v. Staten, 238 Neb. 13, 469 N.W.2d 112 (1991); State v. Chronister, 3 Neb.App. 281, 526 N.W.2d 98 (1995). If, however, the police did not have at least reasonable, articulabl......