State v. Thompson

Decision Date17 September 1993
Docket NumberNo. S-92-928,S-92-928
Citation244 Neb. 189,505 N.W.2d 673
PartiesSTATE of Nebraska, Appellee, v. LaMont L. THOMPSON, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Motions to Suppress. At a hearing to suppress evidence, the trial court, as the trier of fact, is the sole judge of the credibility of witnesses and the weight to be given to their testimony and other evidence.

2. Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on suppression of evidence, an appellate court does not reweigh or resolve conflicts in the evidence, but will uphold the trial court's findings of fact unless those findings are clearly erroneous.

3. Motions to Suppress: Appeal and Error. In deciding whether a trial court's findings on a motion to suppress are clearly erroneous, an appellate court takes into consideration that the trial court has observed the witnesses testifying regarding such motion.

4. Search and Seizure. In determining the reasonableness of an intrusive search, the following factors are to be considered: (1) whether the government had a clear indication that incriminating evidence would be found; (2) whether the police had a warrant or there existed exigent circumstances, such as the imminent destruction of evidence, to excuse the warrant requirement; and (3) whether the method used to extract the evidence was reasonable and performed in a reasonable manner.

5. Criminal Law: Evidence: Police Officers and Sheriffs. The police have a right short of outright brutality of a shocking nature to apply such reasonable force to a suspect as is fairly necessary to prevent an imminent destruction of evidence of the commission of a crime.

6. Constitutional Law: Search and Seizure. Although the determination must be made in light of the fundamental criteria laid down by the Fourth Amendment and in opinions of the court applying that amendment, the reasonableness of a search is a substantive determination to be made by the trial court from the facts and circumstances of the case.

7. Criminal Law: Judgments: Appeal and Error. While in a bench trial of a criminal case the court's findings have the effect of a verdict and will not be set aside unless clearly erroneous, an appellate court has an obligation to reach an independent, correct conclusion regarding questions of law.

8. Statutes: Controlled Substances. Unless a statute specifically provides otherwise, it matters not how much of a controlled substance one possesses; under such a circumstance, the quantity possessed is not an essential element of the crime.

Thomas M. Kenney, Douglas County Public Defender, and Kelly S. Breen, Omaha, for appellant.

Don Stenberg, Atty. Gen., Lincoln, and David Arterburn, Papillion, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.

CAPORALE, Justice.

I. STATEMENT OF CASE

After refusing to suppress certain evidence, the trial court, then sitting as the trier of fact, adjudged the defendant, LaMont L. Thompson, guilty of the Class IV felony offense of possessing cocaine, in violation of Neb.Rev.Stat. §§ 28-405(a)(4) [Schedule II] (Reissue 1989) and 28-416(3) (Cum.Supp.1992). Thompson asserts the trial court erred in (1) overruling his suppression motion and (2) finding the evidence sufficient to support the charge. We affirm.

II. FACTS

While in a marked cruiser at approximately 10 p.m. on February 5, 1992, two Omaha police officers, Vincent Perez and John Sears, observed Thompson standing in the parking lot of a liquor store located in the highest drug trafficking area in the city. Upon seeing the cruiser, Thompson quickly ran into the liquor store. Perez recognized Thompson as the result of some 30 to 40 previous contacts and knew from prior reports that Thompson was a street-level drug dealer who carried crack cocaine in his mouth. Perez also saw Thompson and another party with their hands extended out toward each other, exchanging something. As the officers approached, Thompson hurried away and made a motion to his mouth with his hand.

While Sears attended to the other party, Perez ordered Thompson to open his mouth. As Thompson refused to comply, Perez shined his flashlight on Thompson's face and saw around Thompson's lips white crumbs, which Perez suspected to be crack cocaine. Perez once more ordered Thompson to open his mouth, and Thompson again refused. Perez then ordered Thompson to place his hands behind his back so that he might be secured, whereupon Thompson began swinging his hands and clawing at the officer to avoid being handcuffed.

Perez next placed Thompson in a "lateral vascular neck restraint," as the consequence of which Thompson became unconscious, thereby permitting Perez to handcuff him. Other than Thompson's characterization of the restraint as a choking maneuver, the record does not describe the restraint.

In any event, Sears joined Perez and Thompson and pulled crack-cocaine-like substances off Thompson's lips and from around his teeth. About 10 seconds later, Thompson regained consciousness, and Perez placed him in the cruiser and proceeded to the police station, where Perez swabbed Thompson's hands and had him chew on a sterile gauze.

Laboratory tests established the substances taken from and around Thompson's mouth to be cocaine, and Thompson's hands revealed the presence of cocaine. According to Perez, the substances removed from Thompson's lips were between the size of a pinhead and a pea.

III. ANALYSIS

With those facts in mind, we turn our attention to Thompson's two assignments of error.

1. SUPPRESSION MOTION

In connection with his first assignment of error, Thompson argues that the evidence concerning the nature of the substances taken from and around his mouth should have been suppressed because the search was accomplished through the use of excessive force, rendering the search constitutionally unreasonable. He raises no issues concerning the propriety of the officers' approaching or arresting him.

(a) Scope of Review

We begin our consideration of this assignment of error by noting that at a hearing to suppress evidence, the trial court, as the trier of fact, is the sole judge of the credibility of witnesses and the weight to be given to their testimony and other evidence. Moreover, in reviewing a trial court's ruling on suppression of evidence, an appellate court does not reweigh or resolve conflicts in the evidence, but will uphold the trial court's findings of fact unless those findings are clearly erroneous. State v. Martin, 243 Neb. 368, 500 N.W.2d 512 (1993); State v. Bowen, 232 Neb. 725, 442 N.W.2d 209 (1989); State v. Marco, 230 Neb. 355, 432 N.W.2d 1 (1988). In deciding whether a trial court's findings on a motion to suppress are clearly erroneous, an appellate court takes into consideration that the trial court has observed the witnesses testifying regarding such motion. State v. Martin, supra; State v. Ellington, 242 Neb. 554, 495 N.W.2d 915 (1993); State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993).

(b) Nature of Search

We note first of all that it is not at all clear that Perez employed the restraint at issue in order to effect a search; his testimony was that he used the restraint to control Thompson. However, for the purposes of our analysis, we assume, as Thompson has done, that the restraint was applied to effect the search.

The two most prominent decisions on the subject of intrusive searches are Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), and Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

Rochin, the only case cited by Thompson, was decided before Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), made the right of privacy guaranteed by the 4th Amendment applicable to the states through the Due Process Clause of the 14th Amendment. Rochin was therefore grounded on due process principles. Therein, police officers, acting upon a tip that Rochin was dealing in drugs, illegally entered his home without a warrant. The officers forced their way into the defendant's bedroom and observed two capsules on a nightstand beside Rochin's bed. When asked about the capsules, Rochin grabbed and placed them in his mouth. The officers grappled with Rochin and unsuccessfully tried to retrieve the capsules. Rochin was then handcuffed and taken to a hospital, where, at the direction of one of the officers, a doctor forced him to ingest an emetic solution which caused him to vomit the capsules. The U.S. Supreme Court described the officers' conduct as "brutal" and "shock[ing] the conscience" and held that the method of retrieving the evidence was "too close to the rack and the screw" not to have violated due process of law. 342 U.S. at 172-74, 72 S.Ct. at 209-10.

In Schmerber, police arrested the defendant at a hospital where he had been taken for treatment after an automobile accident. While at the hospital, the officer ordered a blood sample be taken from the defendant without his consent and without a warrant. The blood sample revealed the defendant was intoxicated, and the results were admitted at trial. In approving this procedure, the Schmerber Court remarked that the officers acted in accordance with an accepted medical procedure and that the operation was performed in a reasonable manner without trauma or pain. Noting that "the Fourth Amendment's proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances or which are made in an improper manner," 384 U.S. at 768, 86 S.Ct. at 1835, the Court emphasized that a blood test was routine and that taking blood must be contrasted sharply with the practice in Rochin. Moreover, the Court found an "emergency" situation to exist because of the highly evanescent nature of the evidence. 384 U.S. at 770, 86 S.Ct. at 1835. The Schmerber Court set forth several criteria to be considered in...

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23 cases
  • State v. Harris, S-92-789
    • United States
    • Supreme Court of Nebraska
    • October 1, 1993
    ...from the defendant's mouth after police applied a lateral vascular neck restraint that rendered the defendant unconscious. As discussed in Thompson, the weight of federal and state authority supports a determination that police officers may use a considerable amount of force to prevent a su......
  • State v. Hanson, 20374
    • United States
    • Supreme Court of South Dakota
    • January 20, 1999
    ...drug testing any different from blood-alcohol testing. See State v. Strong, 493 N.W.2d 834 (Iowa 1992) (cocaine); State v. Thompson, 244 Neb. 189, 505 N.W.2d 673 (1993) (cocaine). In both cases exigent circumstances existed and the difference is at most only in the matter of degree, not whe......
  • State v. Buchholz, 20706.
    • United States
    • Supreme Court of South Dakota
    • August 11, 1999
    ...testing. Hanson, 1999 SD 9 at ¶ 36, 588 N.W.2d at 893. See State v. Strong, 493 N.W.2d 834 (Iowa 1992) (cocaine); State v. Thompson, 244 Neb. 189, 505 N.W.2d 673 (1993) (cocaine). "In both cases exigent circumstances existed and the difference is at most only in the matter of degree, not wh......
  • State v. Buchholz, 20706
    • United States
    • Supreme Court of South Dakota
    • April 26, 1999
    ...testing. Hanson, 1999 SD 9 at p 36, 588 N.W.2d at 893. See State v. Strong, 493 N.W.2d 834 (Iowa 1992) (cocaine); State v. Thompson, 244 Neb. 189, 505 N.W.2d 673 (1993) (cocaine). "In both cases exigent circumstances existed and the difference is at most only in the matter of degree, not wh......
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