NOT DESIGNATED FOR PERMANENT PUBLICATION
Appeal from the District Court for Lancaster County: Robert R. Otte, Judge.
Dennis R. Keefe, Lancaster County Public Defender, John C. Jorgensen, and Ariel Johnson, Senior Certified Law Student, for appellant.
Jon Bruning, Attorney General, and Melissa R. Vincent for appellee.
Moore, Pirtle, and Bishop, Judges.
MEMORANDUM OPINIONAND JUDGMENT ON APPEAL
Deandra C. Welch appeals from the decision of the district court for Lancaster County that, after a jury trial, convicted him of possession of a firearm by a prohibited person and driving under suspension.
II. FACTUAL BACKGROUND
On October 27, 2011, Investigators Timothy Cronin and Jeffrey Sorensen, both of whom were assigned to the narcotics unit of the Lincoln Police Department (LPD), were working the second shift from 2:30 to 10:30 p.m. Both were in plain clothes and traveling in an unmarked vehicle. Shortly after 7 p.m., Cronin and Sorensen were at the intersection of 27th and Holdrege Streets when Cronin observed Welch drive by in his vehicle. Cronin recognized Welch from previous contacts and knew his driver's license was suspended. Cronin followed Welch while Sorensen used a laptop computer to access the Nebraska Criminal Justice Information System database, which receives real-time information directly from the Department of Motor Vehicles, to confirm that Welch's license was suspended.
Welch pulled his vehicle into the parking lot of a convenience store located on the southwest corner of 33d and Holdrege Streets. Cronin was not sure whether Welch planned to stop, so he circled the block. Upon returning, Cronin and Sorensen pulled into a parking lot across the street from the convenience store and observed Welch's vehicle parked next to a gas pump. As Welch began fueling his vehicle, Cronin drove toward the convenience store's parking lot and Welch looked directly at him. Cronin testified that Welch was familiar with him and had seen him in the same vehicle on several prior occasions. After pumping only 27 cents worth of gas, Welch walked back to his vehicle "at a faster pace" and entered the driver's side door. Cronin and Sorensen temporarily lost sight of Welch and were concerned that he might be hiding contraband or retrieving a weapon.
Cronin pulled his vehicle directly behind Welch's vehicle. Welch exited the driver's side door, locked it, and shut it. Cronin and Sorensen exited their vehicle and approached Welch. Once they determined that Welch's hands were empty, Cronin advised Welch that he was under arrest for driving under suspension and attempted to place him in handcuffs. According to Cronin and Sorensen, Welch became argumentative and resisted their efforts to place him in handcuffs. During this time, Cronin removed the keys from Welch's hand and placed them on top of Welch's vehicle. A marked patrol unit arrived, and Welch was placed in the backseat of that patrol car.
Once Welch was secured in the patrol car, Cronin walked around the outside of Welch's vehicle. While looking through the windows of the vehicle, Cronin observed a single marijuana seed on the front passenger seat. After seeing the marijuana seed, Cronin used Welch's keys to unlock the vehicle and search for additional contraband. Cronin observed a semiautomatic pistol underneath the driver's seat. Cronin later determined that the firearm contained 14 rounds of ammunition, 13 in the magazine and 1 in the chamber.
III. PROCEDURAL BACKGROUND
The State charged Welch with (1) possession of a firearm by a prohibited person; (2) carrying a concealed weapon, first offense; (3) resisting arrest, first offense; and (4) driving under suspension.
Welch filed a motion to suppress any items seized by the police during the warrantless search of his vehicle. A suppression hearing was held on May 15, 2012. Cronin and Sorensen testified to the facts set forth above. Cronin also testified that he has worked for the LPD for 12½ years and has been a narcotics investigator for more than 2 years. He received 6 months of training at the LPD academy. He also participated in a 2-week Drug Enforcement Agency training program. Cronin testified that he can identify drugs by their smell and appearance. He testified that he identifies marijuana on a daily basis. Cronin testified that he is able to identify marijuana seeds and has seen them "hundreds" of times. Cronin testified that a marijuana seed is a "very distinctive looking seed." He described it as "like a little pod, " "very shiny" texture, "not a solid color, " "yellow and green all mixed in, kind of like a taupe-type color, " with a "light-colored line running through the middle of it." Cronin testified that marijuana seeds contain THC and that THC is what makes marijuana a controlled substance.
Cronin testified that he used a hand-held light to look through the windows of Welch's vehicle. Cronin testified that he saw a "single marijuana seed in the crevice of the passenger portion of the front bench seat." He said it appeared to be a marijuana seed by its size, shape, and color. After seeing the alleged marijuana seed, Cronin used Welch's keys to unlock the vehicle to search for more contraband. During the search, Cronin found the firearm under the driver's seat. Cronin collected the firearm and the seed for evidentiary purposes. A subsequent laboratory analysis of the alleged marijuana seed was inconclusive. The report stated that the item "was of an insufficient quantity for controlled substances identification."
Sorensen testified that the decision was made to tow Welch's vehicle because Welch had a history of driving under suspension. It is not clear from Sorensen's testimony when, during the course of events, the decision was made to tow Welch's vehicle. Sorensen testified that when a vehicle is to be towed, it is the LPD policy to do an inventory search of items within a vehicle. Sorensen testified that the purpose of an inventory search is to inventory high value items prior to the vehicle being towed and/or turned over to the tow lot. Sorensen testified that an inventory search includes a search of the passenger compartment, the glovebox, the center console, and any unlocked or open containers. Both Cronin and Sorensen testified that the area where the firearm was found would have been searched during an inventory search.
After the suppression hearing, the district court judge who heard the motion had to disqualify herself and the case was reassigned to a new judge. The new district court judge consulted with counsel, and after the court offered to conduct a new suppression hearing, it was agreed by all parties that a bill of exceptions would be prepared from the hearing previously held on May 15, 2012, and the matter submitted on the record. After reviewing the bill of exceptions, the district court found that the search and seizure were justified under the plain view and inventory search exceptions to the warrant requirement. Therefore, the district court overruled Welch's motion to suppress.
Trial was held on August 14 and 15, 2012. At the trial, Welch renewed his objections relating to the motion to suppress, but his objections were overruled. Cronin and Sorensen testified at trial, and their testimony has been set forth above.
The State also sought to offer into evidence exhibit 26, a compact disc (CD) containing audio recordings of four telephone calls made by Welch while he was being detained in a holding cell at the Lancaster County jail following his arrest on October 27, 2011. Initially, the State had informed Welch that it did not intend to use the recorded calls at trial. However, shortly before trial, the State changed its mind and informed Welch that it did intend to use the calls. Welch requested a hearing pursuant to Neb. Rev. Stat. § 27-104 (Reissue 2008) so that the court could determine the admissibility of the recorded calls. A hearing on Welch's motion in limine regarding § 27-104 admissibility was held during the course of the trial, but outside of the jury's presence. The testimony from the hearing will be set forth as necessary in our analysis. The district court overruled Welch's motion in limine and found that the four recorded calls contained in exhibit 26 were admissible at trial. The calls contained admissions by Welch regarding knowledge of the firearm in the vehicle.
At trial, the parties stipulated that (1) on October 27, 2011, Welch did not have a valid driver's license, because it had been previously revoked, and (2) Welch had previously been convicted of a felony.
At the end of the trial, the district court granted the State's motion to dismiss the charge of carrying a concealed weapon. The jury found Welch guilty of possession of a firearm by a prohibited person and driving under suspension. The jury found Welch not guilty of resisting arrest. The trial court accepted the jury's verdict. Welch was later sentenced to 6 to 10 years' imprisonment for possession of a firearm by a prohibited person and 1 to 3 months' imprisonment for driving under suspension. The sentences were ordered to be ...