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State v. Ferguson

Supreme Court of Nebraska

November 30, 2018

State of Nebraska, Appellee,
Travis L. Ferguson, 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. 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.

         3. Trial: Evidence: Appeal and Error. An appellate court reviews the trial court's conclusions with regard to evidentiary foundation for an abuse of discretion.

         4. 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.

         5. 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.

         [301 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.

         7. 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.

         8. Constitutional Law: Search and Seizure. The ultimate touchstone of the Fourth Amendment is reasonableness.

         9. __:__. Reasonableness is determined by balancing the intrusion on the individual's Fourth Amendment interests against the promotion of legitimate governmental interests.

         10. __:__. A seizure that is lawful at its inception can violate the Fourth Amendment by its manner of execution.

         11. __:__. 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.

         12. 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.

         13. 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.

         14. 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.

         15. 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.

         16. 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.

         17. 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.

         18. 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 hearsay.

         19. 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 Supreme Court.

         20. Hearsay: Proof. The proponent of the hearsay evidence has the burden of identifying the appropriate exception and demonstrating that the testimony falls within it.

         21. 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.

         22. 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 established.

         23. __:__:__. 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 occurred.

         24. 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.

         25. 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 ground.

          Appeal from the District Court for Lancaster County: Jodi L. Nelson, Judge. Affirmed.

          Candice C. Wooster, of Brennan & Nielsen Law Offices. PC, for appellant.

         [301 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.

          Freudenberg, J.

         I. NATURE OF CASE

         The 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 the defendant.


         Travis 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.

         1. Motion to Suppress

         Before 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.

         (a) Traffic Stop

         Around 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.

         Deputy 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 reported.

         Schwarz 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.

         At 5:05 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.

         Ferguson 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.

         At 5:16 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.

         (b) Probable Cause

         Schwarz described that he had probable cause to arrest Ferguson both for driving with a suspended license and on the child support warrant.

         Ferguson's criminal history also caused Schwarz to suspect that there might be narcotics in the sedan. Ferguson denied consent to search the vehicle.

         Schwarz 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.

         (c) Dog Sniff and Subsequent Search

         At 5:25 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.

         The dog 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 methamphetamine.

         Approximately 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 jail.

         (d) Court's Ruling

         In 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.

         The 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.

         2. Evidence Presented at Trial

         (a) Kinzie's Testimony

         At 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.

         Kinzie 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 ...

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