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.
Rules of Evidence: Hearsay: Appeal and Error. Apart from
rulings under the residual hearsay exception, an appellate
court reviews for clear error the factual findings
underpinning a trial court's hearsay ruling and reviews
de novo the court's ultimate determination whether the
court admitted evidence over a hearsay objection or excluded
evidence on hearsay grounds.
Trial: Evidence: Appeal and Error. An appellate court reviews
the trial court's conclusions with regard to evidentiary
foundation for an abuse of discretion.
Convictions: Evidence: Appeal and Error. In reviewing a
criminal conviction for a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a
combination thereof, the standard is the same: An appellate
court does not resolve conflicts in the evidence, pass on the
credibility of witnesses, or reweigh the evidence; such
matters are for the finder of fact. The relevant question for
an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.
Sentences: Appeal and Error. An appellate court will not
disturb a sentence imposed within the statutory limits absent
an abuse of discretion by the trial court.
Neb. 698] 6. Constitutional Law: Search and Seizure. The
Fourth Amendment to the U.S. Constitution and article I,
§ 7, of the Nebraska Constitution guarantee against
unreasonable searches and seizures.
Search and Seizure: Evidence: Trial. Evidence obtained as the
fruit of an illegal search or seizure is inadmissible in a
state prosecution and must be excluded.
Constitutional Law: Search and Seizure. The ultimate
touchstone of the Fourth Amendment is reasonableness.
__:__. Reasonableness is determined by balancing the
intrusion on the individual's Fourth Amendment interests
against the promotion of legitimate governmental interests.
__:__. A seizure that is lawful at its inception can violate
the Fourth Amendment by its manner of execution.
__:__. A "search" under the Fourth Amendment occurs
if either (1) the defendant's legitimate expectation of
privacy is infringed or (2) the government physically
intrudes on a protected area.
Constitutional Law: Search and Seizure: Words and Phrases. A
reasonable expectation of privacy is an expectation that has
a source outside of the Fourth Amendment, by reference either
to concepts of real or personal property law or to
understandings that are recognized and permitted by society.
Constitutional Law: Search and Seizure: Animals. Drug
detection dog sniffs in themselves do not infringe upon a
constitutionally protected privacy interest, because they are
designed to reveal no information other than the possession
of contraband and its location, and society is not prepared
to consider as either reasonable or legitimate any subjective
expectation that possession of contraband will not come to
the attention of the authorities.
Investigative Stops: Motor Vehicles: Animals: Time. The
tolerable duration of a traffic stop is that which is
reasonably necessary to address the mission of the stop and
the ordinary inquiries incident thereto, and a drug detection
dog sniff is not an ordinary incident of a traffic stop.
Investigative Stops: Motor Vehicles: Police Officers and
Sheriffs: Animals: Probable Cause. Where a law enforcement
officer has probable cause or reasonable suspicion to
continue the detention after the initial mission of the stop
is completed, the officer may conduct a drug detection dog
sniff while the suspect is properly detained.
Arrests: Probable Cause: Time: Proof. Judicial probable cause
determinations must be made promptly after a warrantless
arrest, and unreasonable delays in such judicial
determinations of probable cause include delays for the
purpose of gathering additional evidence to justify the
arrest. However, the arrested individual bears the burden of
proving the [301 Neb. 699] delay was unreasonable when the
probable cause determination occurs within 48 hours.
Rules of Evidence: Hearsay: Words and Phrases. Hearsay is a
statement, other than one made by the declarant while
testifying at trial or hearing, offered in evidence to prove
the truth of the matter asserted.
Rules of Evidence: Hearsay: Testimony: Records: Proof.
Testimony as to the content of records, entered into evidence
to prove the truth of the information contained therein, is
Rules of Evidence: Rules of the Supreme Court: Hearsay.
Hearsay is not admissible except as provided by the rules of
evidence or by other rules adopted by the statutes of the
State of Nebraska or by the discovery rules of the Nebraska
Hearsay: Proof. The proponent of the hearsay evidence has the
burden of identifying the appropriate exception and
demonstrating that the testimony falls within it.
Trial: Hearsay: Evidence: Appeal and Error. When the opposing
party objects to evidence as hearsay and the trial court
sustains the objection, the proponent is required to point
out the possible hearsay exceptions in order to preserve the
point for appeal.
Trial: Evidence: Witnesses. There is sufficient foundation to
render communications by telephone admissible in evidence
where the identity of the person with whom the witness spoke
or the person whom he or she heard speak is satisfactorily
__:__:__. A witness testifying positively that he or she
recognized, by voice, the person with whom he or she was
talking, is generally sufficient to present the evidence to
the jury to determine whether the conversation actually
Criminal Law: Juries: Verdicts: Presumptions. Jurors in a
criminal case are presumed well equipped to analyze the
evidence in order to avoid resting a guilty verdict on a
factually inadequate theory.
Juries: Verdicts: Appeal and Error. If there are two possible
factual grounds for the jury's general verdict, one
factually inadequate and unreasonable and the other factually
adequate and reasonable, an appellate court will assume,
absent a contrary indication in the record, that the jury
based its verdict on the reasonable and factually adequate
from the District Court for Lancaster County: Jodi L. Nelson,
Candice C. Wooster, of Brennan & Nielsen Law Offices. PC,
Neb. 700] Douglas J. Peterson, Attorney General, and Austin
N. Relph for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
NATURE OF CASE
defendant appeals his convictions for possession of a
controlled substance and child abuse. The defendant was
driving a vehicle owned by the defendant's girlfriend
when he was stopped by law enforcement to investigate a
citizen report of dangerous driving. The stop occurred at a
gas station. The defendant's two young children were in
the back seat of the vehicle. Methamphetamine was found
during a search of the vehicle, which was conducted
subsequent to a drug detection dog sniff. The dog sniff took
place approximately 30 minutes after law enforcement had
completed their routine investigation related to the stop and
had discovered that the defendant was driving with a
suspended license, had given them false information, and had
an outstanding civil contempt warrant for his arrest. The
principle issue presented is whether continuing the
defendant's detention at the gas station beyond the time
reasonably necessary to complete the traffic stop's
mission of investigating the report of dangerous driving
constituted an unreasonable seizure when the detention
occurred after law enforcement had probable cause to arrest
L. Ferguson was charged with one count of possession of a
controlled substance in violation of Neb. Rev. Stat. §
28-416(3) (Supp. 2015); one count of false reporting in
violation of Neb. Rev. Stat. § 28-907(1) (Reissue 2016);
and one count of child abuse in violation of Neb. Rev. Stat.
§ 28-707(1) and (3) (Reissue 2016)-specifically, that
Ferguson, acting negligently, had placed his minor children,
ages 8 and 6 at the time of the stop, in a situation that
endangered their lives or [301 Neb. 701] physical or mental
health, or deprived them of necessary food, clothing,
shelter, or care. The charges stem from the events of March
9, 2016. Ferguson was driving his girlfriend's 1998
four-door silver Honda Accord sedan with his children in the
back seat. He was stopped by law enforcement after another
driver called the 911 emergency dispatch service to report
dangerous driving, and methamphetamine was eventually found
inside the vehicle.
Motion to Suppress
trial, Ferguson moved to suppress any and all evidence and
statements obtained by law enforcement on March 9, 2016, for
the reason that they were allegedly obtained in violation of
Ferguson's constitutional rights under the 4th, 5th, 6th,
and 14th Amendments to the U.S. Constitution and the
respective guarantees of the Constitution of the State of
Nebraska. The following evidence was adduced at the hearing
on the motion.
5 p.m. on March 9, 2016, Bradley Kinzie called 911 to report
a vehicle swerving on Highway 77. The vehicle was described
as a gray, four-door sedan moving northbound from Roca Road
in Lancaster County, Nebraska. Kinzie also reported the
vehicle's license plate number.
Sheriff Jeremy Schwarz was in his cruiser headed southbound
on Highway 77 in the same general vicinity when he received
the report of the 911 call. One or two minutes later, Schwarz
saw a man in a vehicle headed northbound on Highway 77 behind
a white, four-door sedan using hand gestures to emphatically
direct Schwarz' attention to the sedan. Schwarz
understood, and it was later confirmed, that the man
gesturing was the 911 caller and the sedan was the vehicle
made a U-turn to pursue the vehicle. The vehicle pulled into
a gas station before he could catch up with it. Schwarz
pulled up behind the vehicle. Schwarz confirmed [301 Neb.
702] that the license plate number was only one digit off
from the number reported during the 911 call. Schwarz
activated the cruiser's overhead lights.
p.m., Schwarz exited the cruiser and approached the driver of
the vehicle, who was later identified as Ferguson. Schwarz
observed two children in the back seat. Ferguson informed
Schwarz that he did not have his driver's license with
him. Ferguson acknowledged that he was tired and had been
swerving the vehicle.
originally identified himself using his brother's name.
In the databases accessed through the mobile data terminal of
his cruiser, Schwarz could not find a person with that name
who matched the other information given by Ferguson.
p.m., Ferguson was asked to sit in the cruiser while Schwarz
further investigated Ferguson's identity. During the
pat-down search conducted before entering the cruiser,
Schwarz found Ferguson's electronic benefit transfer card
which included his real name. By 5:22 p.m., Schwarz was able
to confirm Ferguson's identity through the databases,
which revealed that Ferguson had a suspended driver's
license and an outstanding warrant for civil contempt related
to unpaid child support. At approximately that same time,
Schwarz learned the identity of the children's mother.
described that he had probable cause to arrest Ferguson both
for driving with a suspended license and on the child support
criminal history also caused Schwarz to suspect that there
might be narcotics in the sedan. Ferguson denied consent to
search the vehicle.
did not transport Ferguson immediately to the police station,
because he was trying to make arrangements for the children
to be picked up by their mother and for Lindsey Koch, the
owner of the vehicle, to pick it up. Schwarz contacted the
children's mother, who agreed to pick up the [301 Neb.
703] children, but she lived 30 to 45 minutes away. Two
officers who had arrived at the scene took the children out
of the vehicle and into the convenience store for snacks
while they waited.
Sniff and Subsequent Search
p.m., approximately the same time that Schwarz contacted the
children's mother, he decided to call in a canine unit to
conduct a dog sniff of the vehicle. Schwarz asked Koch for
her consent to the search, explaining that the canine unit
was on its way, but she refused. Koch agreed to pick up her
vehicle at the gas station. The canine unit arrived
approximately 30 minutes after Schwarz called it in. When the
canine unit arrived, neither Koch nor the children's
mother had yet arrived.
sniff was conducted around the exterior of the sedan, and the
dog alerted to the odor of narcotics. After that, the
officers searched the sedan and found a plastic bag of what
appeared to be methamphetamine on the driver's side
floorboard between the center console and the driver's
seat. At trial, the parties stipulated that the bag found in
the sedan contained approximately 1.6 grams of
15 minutes after the search of the sedan had been completed,
Koch arrived and removed the vehicle from the premises. Five
minutes later, the children's mother arrived and the
children were turned over to her. Ferguson was then taken to
support of the motion to suppress, defense counsel argued
that prolonging the stop while waiting for Koch and the
canine unit to arrive was unreasonable, because the officers
were no longer handling the matter for which the stop was
initially made. Defense counsel also argued that the search
was not incident to arrest. Without addressing Ferguson's
suspended license, defense counsel argued that if Ferguson
would have [301 Neb. 704] been taken to jail sooner, he could
have purged himself sooner of the civil contempt warrant.
Defense counsel explained that the delay at the gas station
unreasonably denied Ferguson the "opportunity to go and
bond himself out or purge himself of that warrant." The
State responded that the continued detention was a
"non-issue," because at that point, there was
probable cause for Ferguson's arrest.
court denied the motion to suppress. The court granted
defense counsel's request for a continuing objection to
evidence of the methamphetamine found in the sedan, and the
case proceeded to trial.
Evidence Presented at Trial
trial, Kinzie testified that while driving along Highway 77
on March 9, 2016, he spotted in his rearview mirror a gray,
four-door Toyota or Mazda sedan behind him. He saw the sedan
going from one side of the road to the other. He slowed down,
and the sedan passed him. While passing him, the sedan
encroached into Kinzie's lane so much that he had to
drive on the curb in order to avoid a collision.
watched as the sedan, driving at that point in front of him,
veered past the white line of the right-hand lane and back
into the left-hand lane. The sedan then proceeded to encroach
into the right-hand lane again, even though there was another