State v. Wells
| Decision Date | 20 February 2015 |
| Docket Number | No. S–14–331,S–14–331 |
| Citation | 859 N.W.2d 316 |
| Parties | State of Nebraska, appellee, v. Aron D. Wells, Sr., appellant. |
| Court | Nebraska Supreme Court |
Mark E. Rappl, Lincoln, for appellant.
Jon Bruning, Attorney General, and George R. Love, Lincoln, for appellee.
1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error.In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.
2. Convictions: Appeal and Error.In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such matters are for the finder of fact, and
a conviction will be affirmed, in the absence of prejudicial error, if the evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.
3. Constitutional Law: Search and Seizure.The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution guarantee against unreasonable search and seizure.
4. Search and Seizure: Evidence: Trial.Evidence obtained as the fruit of an illegal search or seizure is inadmissible in a state prosecution and must be excluded.
5. Constitutional Law: Police Officers and Sheriffs: Search and Seizure: Appeal and Error.To determine whether an encounter between an officer and a citizen reaches the level of a seizure under the Fourth Amendment to the U.S. Constitution, an appellate court employs the analysis set forth in State v. Van Ackeren,242 Neb. 479, 495 N.W.2d 630 (1993), which describes the three levels, or tiers, of police-citizen encounters.
6. Constitutional Law: Police Officers and Sheriffs: Search and Seizure.A tier-one police-citizen encounter involves the voluntary cooperation of the citizen elicited through noncoercive questioning and does not involve any restraint of the liberty of the citizen.
7. Police Officers and Sheriffs: Search and Seizure.A tier-two police-citizen encounter constitutes an investigatory stop as defined by Terry v. Ohio,392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Such an encounter involves a brief, nonintrusive detention during a frisk for weapons or preliminary questioning.
8. Police Officers and Sheriffs: Search and Seizure: Arrests.A tier-three police-citizen encounter constitutes an arrest. An arrest involves a highly intrusive or lengthy search or detention.
9. Constitutional Law: Police Officers and Sheriffs: Search and Seizure.Tier-two and tier-three police-citizen encounters are seizures sufficient to invoke the protections of the Fourth Amendment to the U.S. Constitution.
10. Investigative Stops: Police Officers and Sheriffs.When conducting an investigatory stop, an officer must employ the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time.
11. Investigative Stops: Police Officers and Sheriffs.An investigatory stop requires only that an officer have specific and articulable facts sufficient to give rise to a reasonable suspicion that criminal activity is afoot.
12. Investigative Stops: Police Officers and Sheriffs: Probable Cause.Whether a police officer has a reasonable suspicion based on sufficient articulable facts depends on the totality of the circumstances and must be determined on a case-by-case basis.
13. Police Officers and Sheriffs: Probable Cause.In determining whether a police officer acted reasonably, it is not the officer's inchoate or unparticularized suspicion or hunch that will be given due weight, but the specific reasonable inferences which the officer is entitled to draw from the facts in light of the officer's experience.
14. Investigative Stops: Probable Cause: Appeal and Error.An appellate court reviews the district court's finding of reasonable suspicion de novo.
15. Constitutional Law: Search and Seizure.Searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment to the U.S. Constitution, subject only to a few specifically established and well-delineated exceptions.
16. Warrantless Searches.The warrantless search exceptions recognized by the Nebraska Supreme Court include: (1) searches undertaken with consent, (2) searches under exigent circumstances, (3) inventory searches, (4) searches of evidence in plain view, and (5) searches incident to a valid arrest.
17. Search and Seizure: Arrests.A search made without a warrant is valid if made incidental to a lawful arrest.
18. Police Officers and Sheriffs: Search and Seizure: Arrests.After an arrest is made, the arresting officer may search the person to remove any weapons that the latter might seek to use in order to resist arrest or effect his or her escape and also to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction.
19. Arrests.Neb.Rev.Stat. § 28–1409(2) (Reissue 2008) diminishes the common-law right to resist unlawful arrest and provides that regardless of whether the arrest is legal, one may not forcibly resist an arrest.
20. Criminal Law: Evidence: Appeal and Error.The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
21. Evidence: Appeal and Error.As with any sufficiency claim, regardless of whether the evidence is direct, circumstantial, or a combination thereof, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact.
22. Police Officers and Sheriffs: Assault.Neb.Rev.Stat. § 28–931 (Cum.Supp.2010) provides that a person commits the offense of assault on an officer in the third degree if he or she intentionally, knowingly, or recklessly causes bodily injury to a peace officer and the offense is committed while such officer is engaged in the performance of his or her official duties.
23. Criminal Law: Words and Phrases.Neb.Rev.Stat. § 28–109(4) (Reissue 2008) defines physical pain as a bodily injury.
Aron D. Wells, Sr., was convicted in the district court for Lancaster County, Nebraska, of one count of third degree assault of an officer and one count of possession of a controlled substance. Wells alleges that the court erred in overruling his motion to suppress evidence and that there was insufficient evidence to sustain a conviction of assault on an officer. We conclude that the district court did not err in denying Wells' motion to suppress and that there was sufficient evidence to support a conviction.
On January 13, 2012, investigators Timothy Cronin and Scott Parker, police officers serving on the Lincoln/Lancaster County drug task force, were conducting surveillance in Lincoln, Nebraska. The investigators were wearing plain clothes and were in an unmarked car in the parking lot of a local fast-food restaurant located on the corner of 13th and E Streets. Cronin described the area immediately surrounding 13th and E Streets as the “epicenter of narcotics” in Lincoln. Cronin testified that his opinion was based on numerous narcotics arrests made in that area, interviews from confidential informants, “proffer interview reports,” police intelligence reports, and results of the police department's undercover controlled substances purchase operations.
The investigators were positioned in the parking lot so that they could observe activity occurring at a gas station and convenience store located across the street from the fast-food restaurant. At approximately 5 p.m., the investigators observed a black 1976 Buick pull into the convenience store parking lot. Cronin believed the driver to be an individual whom Cronin had previously arrested for narcotics possession. Cronin was also familiar with reports that the driver of the Buick had previously purchased drugs from an undercover officer. Cronin testified that he had also received “more recent” police intelligence regarding the driver's involvement with narcotics, but did not elaborate.
Over the course of 10 minutes, Cronin and Parker observed “five to six” people approach the driver's side front window of the Buick, stay for “[j]ust a matter of seconds,” and then leave. Cronin could not tell whether the window was down, but he assumed it was down based on how the individuals interacted with the driver. Cronin did not observe anyone carrying anything to the car or carrying anything after leaving the car. Based on what he observed, Cronin did not get the impression that the individuals approaching the car were there to shop at the convenience store. Cronin suspected the driver of selling narcotics and explained that based on his experience and training, it was common for drugs to be sold from vehicles either by the potential buyer or seller contacting the driver at a car window or by the driver's having the buyer or seller enter the car, driving the car around the block, and then dropping off the buyer or seller.
Cronin recognized one of the individuals that approached the Buick as Wells. Cronin had had numerous contacts with Wells and had previously arrested Wells on a drug offense. After Wells walked away from the Buick, the investigators observed Wells flag down a Ford Contour driving eastbound on E Street. The Ford stopped, and Wells had a 10– to 15–second conversation with the two occupants of the car. Wells pointed to a nearby parking...
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