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State v. Abu-Serieh

Court of Appeals of Nebraska

January 16, 2018

State of Nebraska, appellee,
v.
Issa Abu-Serieh, appellant.

         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 or the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), 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 or Fifth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.

         2. Standing: Warrantless Searches. Before a party may challenge a search without a warrant, he or she must have standing in a legal controversy.

         3. Standing: Words and Phrases. "Standing" means that a person has a sufficient legally protectable interest which may be affected in a justiciable controversy, entitling that person to judicial resolution of the controversy.

         4. Constitutional Law: Search and Seizure: Standing. A "standing" analysis in the context of search and seizure is nothing more than an inquiry into whether the disputed search and seizure has infringed an interest of the defendant in violation of the protection afforded by the Fourth Amendment.

         5. Standing: Courts: Jurisdiction: Parties. Because the requirement of standing is fundamental to a court's exercise of jurisdiction, a litigant or a court before which a case is pending may raise the question of standing at any time during the proceeding.

         6. Constitutional Law: Search and Seizure. Ordinarily, two inquiries are required to determine whether an individual may make a challenge[25 Neb.App. 463] under the Fourth Amendment. First, an individual must have exhibited an actual (subjective) expectation of privacy, and second, the expectation must be one that society is prepared to recognize as reasonable.

         7. Standing: Motor Vehicles: Search and Seizure: Contracts. The driver of a rental vehicle may have standing to challenge the search or seizure of such vehicle if he or she can demonstrate that he or she received permission to drive the vehicle from the individual authorized on the rental agreement.

         8. Standing: Warrantless Searches. Mere possession of a key granting access to a house does not necessarily create standing to raise an objection to a warrantless search.

         9. Investigative Stops: Motor Vehicles: Probable Cause. A traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle.

         10. Investigative Stops: Police Officers and Sheriffs: Probable Cause. If an officer has probable cause to stop a violator, the stop is objectively reasonable and any ulterior motivation is irrelevant.

         11. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable Cause. Once a vehicle is lawfully stopped, a law enforcement officer may conduct an investigation reasonably related in scope to the circumstances that justified the traffic stop.

         12. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs. A law enforcement officer may conduct certain unrelated checks during an otherwise lawful traffic stop, so long as doing so does not measurably extend the duration of the stop.

         13. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable Cause. In order to expand the scope of a traffic stop and continue to detain the motorist, a law enforcement officer must have a reasonable, articulable suspicion that a person in the vehicle is involved in criminal activity beyond that which justified the initial stop.

         14. Probable Cause: Words and Phrases. Reasonable suspicion entails some minimal level of objective justification for detention, something more than an inchoate and unparticularized hunch, but less than the level of suspicion required for probable cause.

         15. Miranda Rights: Self-Incrimination. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), prohibits the use of statements stemming from the custodial interrogation of a defendant unless the prosecution demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.

         16. Miranda Rights. The Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.

         [25 Neb.App. 464] 17. Miranda Rights: Investigative Stops: Motor Vehicles. Persons temporarily detained pursuant to an investigatory traffic stop are not in custody for purposes of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

         18. Miranda Rights: Investigative Stops: Motor Vehicles: Police Officers and Sheriffs. Neither detention pursuant to a traffic stop nor continued voluntary contact with law enforcement constitutes a formal arrest or restraint on an individual's freedom sufficient to require Miranda warnings.

         Appeal from the District Court for Lancaster County: Andrew R. Jacobsen, Judge. Affirmed.

          Steven B. Muslin, of Muslin & Sandberg, and Thomas J. Olsen, of Olsen ...


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