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State v. Shiffermiller

Supreme Court of Nebraska

February 15, 2019

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: Police Officers and Sheriffs: Search and Seizure: Appeal and Error. To determine whether an encounter between an officer and a citizen reaches the level of a seizure under the Fourth Amendment to the U.S. Constitution, an appellate court employs the analysis set forth in State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993), which describes the three levels, or tiers, of police-citizen encounters.

         5. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. 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 [302 Neb. 246] of contact does not rise to the level of a seizure and therefore is outside the realm of Fourth Amendment protection.

         6. Constitutional Law: Criminal Law: Police Officers and Sheriffs: Investigative Stops: Search and Seizure: Words and Phrases. The second category of police-citizen encounters, the investigatory stop, as defined by the U.S. Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), is limited to brief, nonintrusive detention during a frisk for weapons or preliminary 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.

         7. Constitutional Law: Criminal Law: Police Officers and Sheriffs: Arrests: Search and Seizure: Probable Cause. 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.

         8. Investigative Stops: Arrests: Time. A detention may evolve into a de facto arrest if unreasonable force is used or if a stop lasts for an unreasonable amount of time.

         9. Police Officers and Sheriffs: Investigative Stops. Whether a detention is reasonable under the circumstances 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. ___: ___. The use of handcuffs has been approved when it was reasonably necessary to protect officer safety during an investigatory stop, but the use of handcuffs is not warranted when the facts do not justify a belief that the suspect may be dangerous.

         11. Investigative Stops: Time. An investigative stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop.

         12. Police Officers and Sheriffs: Investigative Stops. In an investigative stop, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time.

         [302 Neb. 247] 13. Constitutional Law: Police Officers and Sheriffs: Motor Vehicles: Public Health and Welfare: Evidence: Words and Phrases. The community caretaking exception to the Fourth Amendment provides 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.

         14. Constitutional Law: Police Officers and Sheriffs: Investigative Stops: Search and Seizure. In order to determine whether the community caretaking exception to the Fourth Amendment applies, the court should 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. If, based on the totality of the circumstances, the seizing officer had a reasonable basis to believe his assistance was necessary, the stop is not unconstitutional.

         15. Constitutional Law: Search and Seizure. A search or seizure under the community caretaking exception to the Fourth Amendment, like any other search or seizure, is subject to the standard test of reasonableness. It must be justified at its inception, based on specific articulable facts which reasonably warrant the intrusion into the individual's liberty, and it must be reasonably related in scope to the circumstances which justified the interference in the first place.

         16. Constitutional Law: Police Officers and Sheriffs: Motor Vehicles. As the community caretaking exception to the Fourth Amendment requires in general, transportation may be warranted and justified under the community caretaking exception when there is an objectively reasonable basis for exercising the community caretaking function.

         17. Constitutional Law: Police Officers and Sheriffs: Intoxication: Public Health and Welfare. Depending on the particular facts presented, the community caretaking exception to the Fourth Amendment may be appropriate when a defendant is visibly intoxicated and presenting a danger to himself and the general public.

         18. Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions, which must be strictly confined by their justifications.

         19. Warrantless Searches: Search and Seizure: Proof. In the case of a search and seizure conducted without a warrant, the State has the burden [302 Neb. 248] of showing the applicability of one or more of the exceptions to the warrant requirement.

         20. Police Officers and Sheriffs: Investigative Stops: Search and Seizure: Weapons: Public Health and Welfare. During a second-tier stop as described in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), an officer is entitled, for the protection of himself or herself and others in the area, to conduct a carefully limited search of outer clothing to discover weapons that might be used to assault the officer.

         21. Police Officers and Sheriffs: Search and Seizure: Weapons: Public Health and Welfare. The purpose of a pat-down search for weapons is the protection of the officer and other persons nearby.

         22. Constitutional Law: Police Officers and Sheriffs: Investigative Stops: Public Health and Welfare. The protection of the officer justification applies equally to a second-tier encounter as described in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that is warranted by the community caretaking exception to the Fourth Amendment.

         23. Constitutional Law: Criminal Law: Arrests: Search and Seizure: Probable Cause. A valid arrest based on probable cause that a person is engaged in criminal activity is allowed by the Fourth Amendment, and if an arrest is made based upon probable cause, a full search of the person may be made incident to that arrest.

         24. Search and Seizure: Arrests: Search Warrants: Warrants: Probable Cause. A search without a warrant before an arrest, also without a warrant, is valid as an incident to the subsequent arrest if (1) the search is reasonably contemporaneous with the arrest and (2) probable cause for the arrest exists before the search.

         25. Police Officers and Sheriffs: Arrests: Search and Seizure: Weapons: Evidence. A search incident to arrest is not limited to searching the arrested person for weapons only; an officer may search for and seize any evidence on the arrestee's person, even if such evidence is unrelated to the crime for which the arrest was made, in order to prevent concealment or destruction of evidence.

          Petition for further review from the Court of Appeals, Moore. Chief Judge, and Pirtle and Arterburn, Judges, on appeal thereto from the District Court for Lancaster County, Robert R. Otte, Judge. Judgment of Court of Appeals affirmed.

          Matthew K. Kosmicki for appellant.

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

         [302 Neb. 249] Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Freudenberg, J.

         I. NATURE OF CASE

         Defendant was arrested after law enforcement stopped and searched his person and belongings, including the inside of a flashlight, and ultimately found illegal drugs and brass knuckles. Following denial of his motion to suppress and a stipulated bench trial, defendant was convicted of three counts of possession of a controlled substance, a Class IV felony, and one count of possession of a deadly weapon by a prohibited person, a Class III felony. Defendant appealed his convictions to the Nebraska Court of Appeals, and the court, applying the narrow community caretaking exception, affirmed. We granted defendant's petition for further review.

         II. BACKGROUND

         On September 15, 2016, Steven F. Shiffermiller was charged with three counts of possession of a controlled substance, each count a Class IV felony, and one count of possession of a deadly weapon, a Class III felony. Shiffermiller entered a plea of not guilty and filed a motion to suppress the evidence obtained during his detention and subsequent arrest. A hearing on the motion to suppress was held on March 8, 2017, and the following evidence was adduced.

         At approximately 4:30 a.m. on June 6, 2016, the Lincoln Police Department received a report that two individuals were fighting near the intersection of South 31st Street and Sequoia Drive. When an officer arrived on the scene, Shiffermiller was walking toward a parked car with its trunk open on the north side of Sequoia Drive. Shiffermiller appeared to have a torn shirt and blood on his face, arm, and knuckles. Wearing camouflaged printed pants and a tank top, Shiffermiller matched the description of one of the individuals from the police report.

         An officer approached Shiffermiller, asking whether he was injured and stating that there had been a reported altercation [302 Neb. 250] at that location. Shiffermiller appeared to be angry, agitated, and under the influence of drugs or alcohol. According to the officer, he claimed that he had been "boxing trees" in a nearby park and was not involved in a fight. The officer then asked Shiffermiller to sit down, as he appeared to be unable to stand. A few minutes later, three more officers arrived on the scene.

         Shiffermiller stated that he wanted to leave, but was told that he was not free to leave and that he would stay until the situation was investigated. Because Shiffermiller was acting uncooperative, he was placed in handcuffs and was seated on the curb while officers searched for the other party involved in the reported fight. Shiffermiller's cell phone was lying in the middle of the intersection. A "ball cap" was also found in the intersection; Shiffermiller denied that it belonged to him. No other party was found, so, after approximately 30 to 40 minutes, the officers discontinued their investigation of the potential assault.

         The officers determined that Shiffermiller should be transported somewhere both for his safety and to avoid any further disturbances or issues. Shiffermiller rejected medical attention and indicated that he wanted to walk home. The officers did not want to leave Shiffermiller alone, in fear that he may cause further disturbances or attempt to operate his car. Because he appeared to be under the influence of alcohol or drugs, they were worried about his ability to care for himself and were concerned for the safety of the public if he chose to drive. Eventually, the officers found contact information for Shiffermiller's father, who agreed that Shiffermiller could be brought to his home.

         In preparing to transport Shiffermiller to his father's home, two police officers patted Shiffermiller down to make sure he did not have any weapons before placing him in a police cruiser. The officers testified that the pat-down was conducted for officer safety reasons, because Shiffermiller had potentially been in a fight and it was unclear whether weapons had been [302 Neb. 251] involved. During the pat-down, an officer felt an object in Shiffermiller's pocket that he "immediately recognized" to be brass knuckles. The officer extracted the brass knuckles from Shiffermiller's pocket and noticed that there was a small trace of blood on them. He seized the object, and Shiffermiller was placed under arrest.

         A search of the police database conducted in one of the officer's cruisers revealed that Shiffermiller had a previous felony conviction, which meant that the arrest related to the brass knuckles became a felony arrest as opposed to a misdemeanor. The officers then determined that Shiffermiller would be transported to jail and informed Shiffermiller's father of the change in circumstances.

         Shortly after or nearly contemporaneous to the discovery of the brass knuckles, the officers conducted a complete search of Shiffermiller's person, finding keys and a flashlight in Shiffermiller's right pocket. The officer who found the flashlight noticed that it "rattle[d]" and that he "could just feel there weren't batteries inside." He opened the flashlight and found several pills and a small baggie of marijuana. Shiffermiller did not produce a prescription for the pills. The officers checked the pills, which had identifying markings, and confirmed that they were controlled substances. At that time, Shiffermiller was also placed under arrest for possession of a controlled substance. According to the officers present at the scene of the arrest and Shiffermiller's father, approximately 45 minutes to 1 hour passed between the initial stop and Shiffermiller's arrest. The district court overruled Shiffermiller's motion to suppress.

         On April 25, 2017, a stipulated bench trial was held. At this trial, Shiffermiller renewed his motion to suppress, which was again overruled by the district court. The State offered two exhibits that were accepted into evidence, one a complete set of police reports and a laboratory report regarding the June 6, 2016, arrest and the other a certified copy of Shiffermiller's prior felony conviction. The parties stipulated that if witnesses [302 Neb. 252] were called to testify in this matter, they would testify consistently with the information contained in those exhibits. The parties also stipulated as to the necessary foundation for the first exhibit which established venue and the chain of custody for the brass knuckles and the narcotics seized at the time of the arrest.

         The district court found Shiffermiller guilty on each count alleged. On June 1, 2017, Shiffermiller was sentenced to jail for a period of 50 days on each count and ordered credit for 117 days already served in jail. The court then placed Shiffermiller on probation for a period of 1 year on count I, 2 years on count II, 3 years on count III, and 4 years on count IV, to run concurrently.

         Shiffermiller appealed to the Nebraska Court of Appeals, asserting that the district court erred in overruling his motion to suppress the evidence obtained on June 6, 2017. The Court of Appeals affirmed the district court's decision, applying the "community caretaking" exception to the Fourth Amendment to justify Shiffermiller's continued detention after officers completed their initial investigation related to the reported altercation.[1] Shiffermiller petitioned this court for further review of the Court of Appeals' decision, alleging it erred in concluding that evidence found on Shiffermiller's person was properly admitted.

         III. ASSIGNMENTS OF ERROR

         Shiffermiller assigns that the district court erred in failing to suppress evidence because (1) the government exceeded the permissible scope and duration of a stop pursuant to Terry v. Ohio[2] and (2) the warrantless search of Shiffermiller violated the Fourth Amendment because law enforcement did not have a reasonable suspicion that Shiffermiller was armed and dangerous and there was no basis in law to justify the search of his flashlight.

         [302 Neb. 253] IV. STANDARD OF REVIEW

         In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, we apply a two-part standard of review.[3] Regarding historical facts, we review the trial court's findings for clear error.[4] But whether those facts trigger or violate Fourth Amendment protections is a question of law that we review independently of the trial court's determination.[5] 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.[6]

         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.[7]

         V ANALYSIS

         Shiffermiller asserts that the district court and Court of Appeals erred in finding that the stop did not exceed the permissible scope and duration of a Terry stop and in determining the search of Shiffermiller, including the inside of his flashlight, was proper under the Fourth Amendment.[8] In sum, he argues that the court erred in concluding that Shiffermiller's rights were not violated in such a manner that required the suppression of the evidence gathered during ...


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