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State v. Perry

Supreme Court of Nebraska

February 12, 2016

STATE OF NEBRASKA, APPELLEE,
v.
DETRON L. PERRY, APPELLANT

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[Copyrighted Material Omitted]

Page 38

Appeal from the District Court for Douglas County: JOSEPH S. TROIA, Judge.

Thomas C. Riley, Douglas County Public Defender, L. Robert Marcuzzo, and Natalie M. Andrews for appellant.

Douglas J. Peterson and Jon Bruning, Attorneys General, and Austin N. Relph, for appellee.

WRIGHT, CONNOLLY, CASSEL, and STACY, JJ., and INBODY, Judge. HEAVICAN, C.J., and MILLER-LERMAN, J., participating on briefs. MCCORMACK, J., not participating.

OPINION

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[292 Neb. 709] Stacy, J.

After a stipulated bench trial, the district court for Douglas County found Detron L. Perry guilty of possession of a controlled substance. Perry appeals, arguing the court erred in [292 Neb. 710] overruling his motion to suppress evidence found during a search of his person. We find no reversible error and affirm.

I. FACTS

On September 5, 2012, law enforcement officers Chris Brown and Mike Sundermeier of the Omaha Police Department were on patrol in the area of 35th and Hamilton Streets in Omaha, Nebraska. They observed a vehicle traveling eastbound on Hamilton Street. It turned northbound onto 35th Street without using a turn signal, and when the brakes were applied, the officers noticed the vehicle's left taillight was not functioning.

The officers initiated a traffic stop. Brown approached the driver's side of the car, and Sundermeier approached the passenger side. Perry was driving, and his brother Devaughn Perry (Devaughn) was the front seat passenger. When Perry rolled down his window to speak with the officers, Brown immediately detected the odor of burnt marijuana coming from the vehicle. Brown described the odor as " a little faint," but he knew it was burnt marijuana because he had smelled it frequently when making traffic stops.

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After noticing the odor, Brown saw Sundermeier talking to Devaughn. Brown noticed Devaughn kept putting his right hand between his right leg and the door. Brown then heard Sundermeier tell Devaughn to keep his hands on his lap, but Devaughn was not complying. When Devaughn eventually brought his hands up, Brown saw the top part of a twisted plastic baggie in Devaughn's right hand. At about the same time, Sundermeier opened the vehicle door and grabbed Devaughn's right hand, because he feared Devaughn was holding a weapon. Sundermeier discovered a baggie containing a white rocklike substance in Devaughn's hand. Devaughn was then removed from the vehicle and placed under arrest.

Brown then asked Perry to step out of the vehicle. Perry complied, and Brown searched Perry's person. Brown found what appeared to be crack cocaine in Perry's front pocket. [292 Neb. 711] Brown then placed Perry in handcuffs and searched him again. During this search, Brown found pills in Perry's front right coin pocket he suspected were " ecstasy." Perry showed the officers his identification and was cooperative throughout the traffic stop.

The officers took Perry and Devaughn to the police cruiser. Perry's vehicle was then searched, and the officers discovered a marijuana cigarette in the center console and a firearm underneath the front passenger seat. Subsequent field tests revealed that the suspected crack cocaine found on both Perry and Devaughn was fake crack cocaine, known as gank. The pills discovered in Perry's pocket were found to be a form of " ecstasy."

The State formally charged Perry with unlawful possession of a controlled substance (benzylpiperazine, a form of " ecstasy" ), a Class IV felony. Prior to trial, Perry moved to suppress the evidence obtained during his search and arrest. At the hearing on the motion to suppress, the officers testified to the above facts.

The court overruled Perry's motion to suppress. It found that the officers could have arrested Perry for the taillight violation and impliedly concluded the search of Perry's person was a search incident to an arrest. The court further found that the smell of marijuana coming from the vehicle provided probable cause to search the vehicle. In ruling on the motion to suppress, the court made a finding that Perry " was no[t] cooperative and gave a false name."

Following the suppression hearing, the court held a stipulated bench trial. The State offered into evidence a transcript of the hearing on the motion to suppress and a laboratory report documenting that the pills found on Perry were in fact " ecstasy." Perry then renewed the objections raised in his motion to suppress. The court ultimately found the search was valid, reasoning the smell of marijuana, combined with the officers' knowledge that the passenger was furtively holding a baggie of suspected drugs, provided probable cause to arrest [292 Neb. 712] Perry. Perry was found guilty of unlawful possession of a controlled substance and sentenced to probation for a term of 4 years. He timely filed this direct appeal.

II. ASSIGNMENTS OF ERROR

Perry assigns, restated and consolidated, that the district court erred in (1) finding he was uncooperative with police and gave a false name during the traffic stop and (2) overruling his motion to ...


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