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State v. Barbeau

Supreme Court of Nebraska

October 12, 2018

State of Nebraska, appellee,
v.
Ryan M. Barbeau, appellant.

         1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. When 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. Investigative Stops: Appeal and Error. The ultimate determinations of reasonable suspicion to conduct an investigatory stop 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.

         3. Constitutional Law: Search and Seizure. Both the Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution guarantee the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.

         4. Constitutional Law: Search and Seizure: Investigative Stops: Motor Vehicles. A traffic stop is a seizure for Fourth Amendment purposes, and therefore is accorded Fourth Amendment protections.

         5. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable Cause. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. A traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle.

         6. Constitutional Law: Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable Cause. Probable cause is not the only standard applied by courts to determine whether a traffic stop is reasonable under the Fourth Amendment. The Fourth Amendment also permits brief investigative stops of vehicles based on reasonable suspicion when [301 Neb. 294] a law enforcement officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity.

         7. Probable Cause. Like the probable cause standard, the reasonable suspicion standard takes into account the totality of the circumstances.

         8. Constitutional Law: Investigative Stops: Police Officers and Sheriffs: Probable Cause. Police can constitutionally stop and briefly detain a person for investigative purposes if the police have a reasonable suspicion, supported by articulable facts, that criminal activity exists, even if probable cause is lacking under the Fourth Amendment.

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

         10. Judgments: Records: Appeal and Error. Where the record adequately demonstrates that the decision of a trial court is correct-although such correctness is based on a ground or reason different from that assigned by the trial court-an appellate court will affirm.

         11. Constitutional Law: Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Statutes. Reasonable suspicion, as a prerequisite for a constitutional investigatory stop, cannot be based only on a police officer's desire to verify compliance with motor vehicle registration statutes.

         12. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Statutes. When an officer observes a vehicle without license plates or in-transit tags, a particularized and objective basis exists to justify a reasonable, articulable suspicion that the driver may be criminally avoiding the motor vehicle registration statutes. The State's interest in enforcing its registration laws supports a brief investigatory stop to ascertain whether the driver possesses the necessary documentation to show compliance with the motor vehicle registration statutes.

         13. Probable Cause: Police Officers and Sheriffs. Reasonable suspicion can be premised on an officer's mistake of fact or mistake of law, so long as the mistake was reasonable.

         14. ___: ___. A determination that reasonable suspicion exists need not rule out the possibility of innocent conduct. The inquiry is not whether some circumstances may be susceptible of innocent explanation, but whether, taken together, they suffice to form a particularized and objective basis for the officer to suspect a crime is, or is about to, occur.

         15. Police Officers and Sheriffs: Motor Vehicles: Probable Cause. Exiting a highway after passing a sign indicating there is a police checkpoint ahead does not, without more, give rise to reasonable suspicion. But it is one factor which can be considered in the totality of the circumstances.

         [301 Neb. 295] 16. Investigative Stops: Motor Vehicles: Time. A lawful traffic stop can become unlawful if it is prolonged beyond the time reasonably required to complete the mission of the stop.

         17. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs. 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. This investigation may include asking the driver for an operator's license and registration, requesting that the driver sit in the patrol car, and asking the driver about the purpose and destination of his or her travel. Also, the officer may run a computer check to determine whether the vehicle involved in the stop has been stolen and whether there are any outstanding warrants for any of its occupants.

          Appeal from the District Court for Hamilton County: Rachel A. Daugherty, Judge. Affirmed.

          Mark Porto, of Porto Law Office, for appellant.

          Douglas J. Peterson, Attorney General, and Joe Meyer for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Stacy, J.

         Ryan M. Barbeau appeals his convictions for drug-related felonies, arguing the evidence was obtained as the result of an unconstitutional traffic stop and should have been suppressed. The district court overruled his motion to suppress, finding the traffic stop was supported by probable cause. We do not reach the question of probable cause, because we conclude this was an investigatory traffic stop supported by reasonable suspicion. Therefore, although our reasoning differs from that of the district court, we agree the motion to suppress was properly overruled, and we therefore affirm.

         BACKGROUND

         On December 11, 2015, Nebraska State Patrol Trooper Gregory Goltz was conducting a "ruse checkpoint" operation [301 Neb. 296] at the Giltner interchange on Interstate 80 in Hamilton County. Nebraska. As part of that operation, signs were placed along the Interstate advising drivers there was a State Patrol checkpoint ahead and a drug dog in use. No such Interstate checkpoint actually existed, but troopers monitored vehicles that left the Interstate immediately after passing the sign.

         At approximately 2:52 p.m., Goltz saw a Lincoln Town Car leave the Interstate after passing the checkpoint sign. The car stopped at the end of the off ramp, signaled, and turned north onto the Giltner spur. Goltz followed the car, eventually catching up to it and traveling several car lengths behind it. The car was not speeding.

         Goltz could see the car had no license plates, but had what appeared to be an in-transit tag mounted inside a black license plate holder on the rear of the car. Portions of the in-transit tag were covered by the top and bottom of the frame, preventing Goltz from reading the state of issuance and some of the numbers and handwriting on the tag. Goltz also noticed some of the handwritten numbers on the in-transit tag were written in red ink; he considered that unusual because he had never seen a Nebraska in-transit tag with red ink before. Goltz initiated a traffic stop.

         After the car was stopped, Goltz approached it on foot and was able to read "North Carolina" on the in-transit tag. There were two individuals in the car. Goltz made contact with the driver and explained he had been stopped because his car did not have plates and the trooper could not read the in-transit tag. Goltz asked to see an operator's license and identified the driver as Barbeau.

         Goltz asked to see the car's paperwork to determine whether the in-transit tag was "real." Barbeau told Goltz he had recently purchased the car in North Carolina and was driving it back to his home in Oregon. But Barbeau was not able to produce any paperwork or insurance information on the car.

         When Barbeau was unable to produce any paperwork for the car, Goltz had him step out of the car and walk to the [301 Neb. 297] front of Goltz' patrol car. Goltz' plan was to "investigate the vehicle" and obtain additional information from Barbeau about "where the vehicle came from" and Barbeau's travel plans. Goltz then got into his patrol car to run Barbeau's operator's license and wait for backup. Goltz had called for backup, and a canine unit, almost immediately after the stop. According to Goltz, he planned to return to Barbeau's car to take a closer look at the in-transit tag once backup arrived.

         Within a few minutes of the initial stop, another trooper arrived on the scene and obtained the passenger's identification information. When Goltz ran the passenger's information, he learned there was an active warrant for his arrest. The passenger was then arrested and handcuffed.

         After the passenger was arrested, the dog alerted to drugs in the trunk of Barbeau's car. A subsequent search of the car yielded an AR-15 semiautomatic rifle with ammunition and a 30-round clip; two marijuana pipes; 40 tramadol pills; 60 hydrocodone pills; and $39, 575, which was determined to have been used in a controlled substance transaction.

         Barbeau was then arrested and charged with (1) possession of a controlled substance with intent to deliver while in possession of a firearm, (2) possession of a deadly weapon during the commission of a felony, (3) possession of drug money, and (4) possession of a controlled substance. Goltz did not issue Barbeau a ticket or a warning related to the in-transit tag.

         Before trial, Barbeau moved to suppress the evidence obtained from the search of his car. Barbeau argued Goltz did not have probable cause or reasonable suspicion to initiate the traffic stop. Alternatively, he argued the stop should have been terminated as soon as Goltz could read the information on the in-transit tag.

         The State countered that Goltz had probable cause for the traffic stop based on the partially obscured in-transit tag. The State claimed this was a violation of Neb. Rev. Stat. § 60-399(2) (Reissue 2010), which requires that "[a]ll letters, [301 Neb. 298] numbers, printing, writing, and other identification marks" on plates "shall be kept clear ... so that they shall be plainly visible at all times during daylight and under artificial light in the nighttime."

         At the evidentiary hearing on the motion to suppress, Goltz testified to the facts summarized above and a video recording of the stop was received into evidence. The court found that some of the information on the in-transit tag was covered by the license plate frame, and because the printing was not "plainly visible," the court concluded that Goltz had probable cause to suspect a violation of § 60-399(2). The court rejected Barbeau's claim that the traffic stop should have ended once Goltz approached the car and could read the in-transit tag was from North Carolina. The court reasoned that once the car was lawfully stopped, Nebraska law permitted Goltz to conduct an investigation reasonably related in scope to the circumstance that justified the traffic stop, including asking the driver for an operator's license and registration, requesting the driver to sit in the patrol car, asking the driver about the purpose and destination of his or her travel, and running a computer check to determine whether the vehicle involved in the stop had been stolen and whether there were outstanding warrants for any of its occupants.[1] The trial court ...


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