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State v. Shiffermiller

Court of Appeals of Nebraska

August 28, 2018

State of Nebraska, appellee,
v.
Steven F. Shiffermiller, 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, 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. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error. When a motion to suppress is denied pretrial and again during trial on renewed objection, an appellate court considers all the evidence, both from the trial and from the hearings on the motion to suppress.

         3. Trial: Investigative Stops: Warrantless Searches: Appeal and Error. The ultimate determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search are reviewed de novo, and findings of fact are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge.

         4. 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.

         5. Police Officers and Sheriffs: Investigative Stops: Search and Seizure: Arrests: Probable Cause. The first tier of police-citizen encounters involves no restraint of the liberty of the citizen involved, but, rather, the voluntary cooperation of the citizen is elicited through noncoercive questioning. This type of contact does not rise to the level of a seizure and therefore is outside the realm of Fourth Amendment protection. The second category, the investigative stop, is limited to brief, nonintrusive detention during a frisk for weapons or preliminary [26 Neb.App. 251] questioning. This type of encounter is considered a "seizure" sufficient to invoke Fourth Amendment safeguards, but because of its less intrusive character requires only that the stopping officer have specific and articulable facts sufficient to give rise to reasonable suspicion that a person has committed or is committing a crime. The third type of police-citizen encounters, arrests, is characterized by highly intrusive or lengthy search or detention. The Fourth Amendment requires that an arrest be justified by probable cause to believe that a person has committed or is committing a crime.

         6. Police Officers and Sheriffs: Investigative Stops: Search and Seizure: Arrests. If unreasonable force is used or if a stop lasts for an unreasonably long period of time, then a detention may turn into a de facto arrest.

         7. Police Officers and Sheriffs: Investigative Stops. The use of handcuffs has been approved when it was reasonably necessary to protect officer safety during an investigatory stop.

         8. ___: ___. The use of handcuffs may not be justified when the facts do not justify a belief that the suspect may be dangerous.

         9. Police Officers and Sheriffs: Investigative Stops: Search and Seizure: Arrests. In determining whether a detention is reasonable under the circumstances, for the purposes of analyzing whether an investigatory detention was converted to a de facto arrest, depends on a multitude of factors, including the number of officers and police cars involved; the nature of the crime and whether there is reason to believe the suspect might be armed; the strength of the officers' articulable, objective suspicions; the erratic behavior of or suspicious movements by the persons under observation; and the need for immediate action by the officers and lack of opportunity for them to have made the stop in less threatening circumstances.

         10. Police Officers and Sheriffs: Investigative Stops. An investigative stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop.

         11. Constitutional Law: Police Officers and Sheriffs: Investigative Stops. The community caretaking exception to the Fourth Amendment recognizes that local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.

         12. Constitutional Law: Police Officers and Sheriffs: Investigative Stops: Probable Cause. In determining whether the community caretaking exception to the Fourth Amendment applies, a court should [26 Neb.App. 252] assess the totality of the circumstances surrounding the stop, including all of the objective observations and considerations, as well as the suspicion drawn by a trained and experienced police officer by inference and deduction.

         13. Constitutional Law: Investigative Stops. The community caretaking exception to the Fourth Amendment should be narrowly and carefully applied in order to prevent its abuse.

         14. Police Officers and Sheriffs: Investigative Stops: Search and Seizure. An officer is entitled, for the protection of himself or herself and the others in the area, to conduct a carefully limited search of the outer clothing of the persons stopped to discover weapons which might be used to assault the officer.

         15. Police Officers and Sheriffs: Search and Seizure: Warrantless Searches: Probable Cause. Under the "plain feel" doctrine, the findings of a lawful pat-down can establish probable cause to extend the scope of a search, but the legality of the search depends upon the incriminating character of an object being immediately apparent.

         16. Police Officers and Sheriffs: Search and Seizure: Warrantless Searches. If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.

         17. Search and Seizure: Warrantless Searches. Searches without a valid warrant are per se unreasonable, subject only to a few specifically established and well-delineated exceptions that must be strictly confined by their justifications.

         18. Search and Seizure: Warrantless Searches: Proof. In the case of a search and seizure conducted without a warrant, the State has the burden of showing the applicability of one or more of the exceptions to the warrant requirement.

         19. Search and Seizure: Warrantless Searches. The warrantless search exceptions include searches undertaken with consent, searches justified by probable cause, searches under exigent circumstances, inventory searches, searches of evidence in plain view, and searches incident to a valid arrest.

         20. 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.

          [26 Neb.App. 253] Appeal from the District Court for Lancaster County: Robert R. Otte, Judge.

          Matthew K. Kosmicki for appellant.

          Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

          Moore, Chief Judge, and Pirtle and Arterburn, Judges.

          PIRTLE, JUDGE.

         I. INTRODUCTION

         After a stipulated bench trial, Steven F. Shiffermiller was convicted of three counts of possession of a controlled substance and one count of possession of a deadly weapon by a prohibited person. He appeals the convictions and sentences imposed by the district court for Lancaster County, and he challenges ...


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