Opinion
No. A-10-1236.
08-30-2011
STATE OF NEBRASKA, APPELLEE, v. TODD A. JOHNSON, APPELLANT.
Arthur R. Langvardt, of Langvardt, Valle & James, for appellant. Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
STATE V. JOHNSON
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Hall County: WILLIAM T. WRIGHT, Judge. Affirmed.
Arthur R. Langvardt, of Langvardt, Valle & James, for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
IRWIN, CASSEL, and PIRTLE, Judges.
CASSEL, Judge.
I. INTRODUCTION
Following a bench trial, the court convicted Todd A. Johnson of possession of a controlled substance with intent to distribute and obstructing a peace officer. Johnson challenges the overruling of his motion to suppress and the sufficiency of the evidence to convict him. We conclude that the driver's consent to search the vehicle—which consent was never effectively withdrawn--expanded the scope of the initial traffic stop for speeding, that the officer was justified in patting down the occupants for weapons prior to searching the vehicle, and that the suspicious bulge felt in Johnson's coat pocket together with Johnson's furtive explanation for it gave the officer reasonable suspicion to detain the occupants for a drug detection dog. Because the court did not err in overruling Johnson's suppression motion and the evidence was sufficient to support the convictions, we affirm.
II. BACKGROUND
The State charged Johnson with possession of a controlled substance with intent to distribute and with obstructing a peace officer arising out of a traffic stop that began at approximately 9:18 p.m. on January 21, 2009. At that time, police stopped a pickup truck driven by James Hahn for speeding. Johnson was a passenger in the truck. After Officer Robert Winton gave Hahn a written warning for speeding, and as Hahn was walking back to the truck, Winton asked if he could search the truck. Hahn gave consent and was first patted down. Winton asked Johnson to step out of the truck and then patted down Johnson, at which time he felt a suspicious bulge, which Johnson claimed to be a greeting card. Johnson denied Winton's request to search Johnson's person. Winton called for a drug detection dog. While waiting for the dog, Hahn denied a request for his person to be searched. The drug detection dog indicated that the odor of controlled substances was present at the driver's side of the truck. After officers searched the truck, Winton told Johnson that he was going to search him and Johnson tried to pull away from Winton. Winton found a plastic bag of methamphetamine on Johnson and arrested him.
Johnson subsequently filed a motion to suppress the evidence seized during the search of his person. During the hearing on the motion, Winton testified that he observed Hahn to be nervous and shaking. Winton requested a criminal history on both individuals for prior drug-related offenses and was advised that Hahn had a "positive Triple-I for drug-related offenses" and that Johnson received rehabilitation or treatment in Illinois.
Winton testified that as Johnson was getting out of the vehicle, Winton observed several shotgun shells in the truck's cab. During the ensuing pat-down search, Winton "felt an uncharacteristic bulge" in Johnson's left upper-breast portion of his heavy canvas coat. When Winton inquired about the bulge, Johnson removed a greeting card from his pocket which Winton testified was not consistent with the bulge he felt. Winton felt the same area without the greeting card's presence and felt the same bulge, but he testified that he "was satisfied at that point it was definitely not a weapon." Winton testified that the bulge felt approximately the size of a racquetball and was pliable and that it "crinkled, consistent with like a plastic bag." Winton did not believe that he squeezed or manipulated the coat in the area of the bulge. Winton testified that Johnson denied having anything in his pocket besides the greeting card. Winton asked Johnson for consent to search his person at that time, which was denied. Winton then requested permission to search Hahn, which Hahn declined. Although Hahn had given consent to search the vehicle, Winton called for a canine unit instead of searching the vehicle because "once [Hahn] denied consent on his person, I took it as an implied denial of consent on his person and the vehicle at that time."
Once the drug detection dog arrived, an exterior search was performed in which the dog "indicated to the vehicle." Winton then conducted a search of the vehicle's interior, and he testified that he located remnants of marijuana on the passenger-side seat. Winton informed Johnson that he was going to search Johnson, and as Winton was going to put his hand in Johnson's right front pocket, Johnson began pulling away. Winton tried to gain control of Johnson's hands and was able to do so with Officer Eric Javins' help. Winton then delivered two knee strikes to Johnson and was able to get Johnson under control and into handcuffs. Winton searched Johnson and identified the bulge Winton had earlier felt as methamphetamine. Winton then placed Johnson under arrest.
Javins, a patrol service dog handler, testified that he and his patrol dog were dispatched at 9:40 p.m. as a result of Winton's request for a canine sniff of the vehicle. The dog "indicates" upon smelling the odor of controlled substance by sitting. Javins testified that the dog "alerted" to the driver's side door of the truck by stepping back and that the dog then smelled the door again. On the second pass around the vehicle, which was higher, the dog indicated at the driver's side door by sitting down.
Johnson testified that one of the officers asked him to exit the vehicle and asked if he had any weapons, to which Johnson replied that he had a pocketknife and handed the knife to the officer. After the officer patted down Johnson, the officer asked what was in Johnson's pocket and Johnson pulled out a Christmas card. Johnson testified that the officer patted him down again, had Johnson remove the card again, "and then he felt it, squeezed it, and said, 'What's that then?'" Johnson testified that he replied, "'It's not a weapon. Don't worry about it.'" According to Johnson, the officer then asked to search Hahn, and Hahn said, " 'No. This is a bunch of crap. I want to go home.'" Johnson testified that the officer replied that there was a dog en route. The vehicle had not been searched at that point. After the dog went around the vehicle, Johnson testified that Winton had Johnson put his hands either on the hood or behind Johnson's head and then Winton reached into Johnson's pocket and Johnson grabbed Winton's hand and said, "'You don't have no right to search me.'" Johnson denied that he was resisting. Johnson testified that he had never been arrested for any drug offense and that he had never been in any kind of drug or alcohol treatment.
The district court overruled Johnson's motion to suppress. The court found that the initial investigation was permissible, but that the information obtained did not appear to justify reasonable suspicion for further detention. The court continued:
What prolonged the continuing contact between Officer Winton and the red pickup, however, was Hahn's clear consent to allow Officer Winton to search the pickup, a consent which the evidence shows was never withdrawn, Officer Winton's decision to treat Hahn's consent as withdrawn was a decision apparently made out of an abundance of caution associated with Hahn's apparent agitation and nervousness and Hahn's refusal to permit a search of his own person. (It is noted, however, that Officer Winton called for a police service dog to come to the scene even before Hahn refused a search of his person.)
Hahn's consent to allow Officer Winton to search the red pickup clearly extended to the areas occupied by . . . Johnson. The space that Johnson occupied could clearly not have been searched without requiring . . . Johnson to exit the pickup, and Officer Winton was clearly within his authority to request Johnson to step out.
The court found that the pat-down search of the exterior of Johnson's clothing was justified for purposes of determining whether Johnson had any additional weapons that may be of danger to Winton. The court found that the pat-down search led to detection of a bulge which suggested to Winton that Johnson may be carrying contraband. However, the court recognized that Winton
could not "immediately" identify the bulge as contraband . . . . Thus, it would not appear that the "plain feel" extension of the "plain view" seizure rule is applicable. . . . The bulge felt during the "pat down" could not have served as an immediate justification to extend the search of [Johnson's] person as Winton couldn't immediately identify it, but the bulge that Officer Winton felt, could reasonably have been considered by Winton as
justification for continued detention of the vehicle on the basis of "reasonable suspicion" of continuing criminal activity and for a discretionary "dog sniff." The additional detention involved, about thirteen minutes, was not unreasonable.
As Hahn never formally or otherwise, withdrew his initial consent to the search of the red pickup, such a justification for the continued detention was unnecessary. Nonetheless, Officer Winton elected out of an abundance of caution to request a police service dog to come to the scene.
The court determined that Winton had probable cause to arrest Johnson based upon (1) Winton's feel during the pat-down search of a plastic bag and Johnson's effort "to misrepresent the nature of the object felt," (2) the dog's positive indication that the vehicle contained an illegal substance, and (3) the discovery during Winton's consensual search of marijuana residue on the seat cushion that had been occupied by Johnson. The court recognized that Winton did not arrest Johnson at that time, but that when Winton attempted to search Johnson, Johnson resisted and was then subdued, searched, and arrested. The court determined that the search was sufficiently contemporaneous with arrest, even though the search occurred before the arrest, and that probable cause for the arrest already existed at the time of the search.
At the subsequent bench trial, the parties stipulated that they were offering the evidence from the suppression hearing as trial evidence. They also stipulated that the seized substance tested positive for methamphetamine and weighed 27.61 grams. Sgt. Tony Keiper, who assisted Winton as a backup officer, testified that the amount of methamphetamine was not consistent with personal use and that methamphetamine, by its nature, is ingested in smaller quantities. Winton testified, "On my initial pat-down, I suspected it possibly could have been a controlled substance based off of the feel and the crinkling of the plastic bag, through my training and experience, yes. It was possibly a controlled substance, but not specifically meth at that time." Javins had testified at the suppression hearing that when Winton told Johnson that he was going to search him, "Johnson turned, against Officer Winton's orders, and started to resist at that moment in time." Javins testified that he secured Johnson's left arm and that he and Winton continued to give verbal commands with which Johnson continued to not comply and to struggle. Johnson renewed his motion to suppress the evidence, which the court overruled.
The court entered judgment in which it reaffirmed its order on the motion to suppress. The court found that the evidence was sufficient to establish intent to distribute the drug. Further, the court found beyond a reasonable doubt that Johnson, by pulling away when Winton tried to search him, "intentionally used physical interference or obstacle to hinder . . . Winton's investigation." Accordingly, the court found Johnson guilty of possession of a controlled substance with intent to distribute and of obstructing a peace officer. The court later sentenced Johnson to imprisonment.
Johnson timely appeals. Pursuant to authority granted to this court under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.
III. ASSIGNMENTS OF ERROR
Johnson alleges that the district court erred in (1) overruling his motion to suppress the evidence found on his person because (a) there was not reasonable suspicion to detain the vehicle and its occupants to await a dog and to expand the scope of the traffic stop, (b) there was not reasonable suspicion to conduct a pat down of Johnson which went beyond permitted bounds and did not provide grounds for further detention, and (c) Hahn revoked consent to search prior to the arrival of the dog; (2) overruling Johnson's renewed suppression motion at trial because (a) the court erred in its belief that Johnson was not held to await a dog until after his pat down when the dog was called for before there was any consent to search and (b) the police officer reaffirmed his belief that Hahn had revoked his consent to search; and (3) finding that the evidence was sufficient to convict Johnson of (a) possession with intent to distribute and (b) obstructing a peace officer.
IV. STANDARD OF REVIEW
In reviewing a trial court's ruling on a motion to suppress based on the Fourth Amendment, an appellate court will uphold its findings of fact unless they are clearly erroneous. State v. Sharp, 281 Neb. 130, 795 N.W.2d 638 (2011). An appellate court reviews de novo a trial court's ultimate determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search. Id.
When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, 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. State v. Chavez, 281 Neb. 99, 793 N.W.2d 347 (2011). Regardless of whether the evidence is direct, circumstantial, or a combination thereof, an appellate court, in reviewing a criminal conviction, does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Id.
V. ANALYSIS
1. MOTION TO SUPPRESS
Johnson first disagrees with the trial court's finding that his continued detention was justifiably extended due to Hahn's consent to search the vehicle. He contends that because the court recognized that there was not enough to create a reasonable suspicion to justify expansion of the scope of the traffic stop, the court should have found a Fourth Amendment violation.
Johnson does not challenge the initial stop of the truck. Because Winton observed the truck to be exceeding the speed limit, he had probable cause for the initial stop. A traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle. State v. Garcia, 281 Neb. 1, 792 N.W.2d 882 (2011). 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. State v. Passerini, 18 Neb. App. 552, 789 N.W.2d 60 (2010). 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 outstanding warrants for any of its occupants. Id. The record shows that Winton called for a "Triple I"--criminal history information--on the occupants shortly after the stop and that he issued a written warning to Hahn approximately 18 minutes after Winton stopped the truck.
We agree with the district court that Winton lacked reasonable suspicion to expand the scope of the stop at the time that Winton gave Hahn the warning ticket. Reasonable suspicion entails some minimal level of objective justification for detention, something more than an inchoate and unparticularized hunch, but less than the level of suspicion required for probable cause. Id. Whether a police officer has a reasonable suspicion based on sufficient articulable facts depends on the totality of the circumstances. Reasonable suspicion must be determined on a case-by-case basis. Id. A court can consider, as part of the totality of the circumstances, the officer's knowledge of a person's drug-related criminal history. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008). Here, the facts that Hahn was nervous and that he apparently had prior drug-related offenses were insufficient reasons to expand the search.
The scope of the stop was legitimately expanded by Hahn's consent to search the truck. A warrantless search undertaken with consent is not per se unreasonable under the Fourth Amendment. See State v. Gorup, 279 Neb. 841, 782 N.W.2d 16 (2010). After Winton issued the warning ticket and as Hahn was walking back to his truck, Winton asked Hahn if he could search the truck and Hahn gave him permission to do so. Winton patted down Hahn, asked Johnson to step out of the vehicle, and conducted a pat-down search of Johnson. An officer is entitled, for the protection of himself or herself and others in the area, to conduct a carefully limited search of the outer clothing of persons stopped to discover weapons which might be used to assault the officer. See State v. Vasquez-Arenivar, 18 Neb. App. 265, 779 N.W.2d 117 (2010). And a fellow passenger's prior drug, weapon, or criminal history may properly be considered in the totality of the circumstances of whether reasonable suspicion existed to conduct a pat-down search of a defendant for weapons. Id. During the pat-down search of Johnson, Winton felt a bulge in the upper-breast pocket of Johnson's jacket. Upon Winton's questioning, Johnson stated that it was a greeting card--which was inconsistent with what Winton felt. And when Winton asked "What's that right there?" Johnson responded, "Nothing." Under the "plain feel" doctrine, the findings of a lawful pat down can establish probable cause to extend the scope of a search. State v. Smith, 279 Neb. 918, 782 N.W.2d 913 (2010). But the legality of the search depends upon the incriminating character of an object being immediately apparent. Id.
"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."Id. at 928, 782 N.W.2d at 924, quoting Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993). Although Winton testified that he suspected the bulge was a controlled substance, he did not testify that it was immediately apparent to him that it was contraband. Thus, Winton did not have probable cause at that time under the "plain feel" doctrine to extend the scope of the search even further. Winton then requested consent to search Johnson, which request Johnson denied. At that point, Winton called for a drug detection dog.
In order to expand the scope of a traffic stop and continue to detain the motorist for the time necessary to deploy a drug detection dog, an officer must have a reasonable, articulable suspicion that the person is involved in criminal activity beyond that which initially justified the interference. State v. Passerini, 18 Neb. App. 552, 789 N.W.2d 60 (2010). Once Winton felt the suspicious bulge--which the officer can be heard on the recording telling someone that it crunched consistent with a plastic bag of marijuana or methamphetamine--in Johnson's upper-breast pocket coupled with Johnson's explanations that it was either a greeting card or "[n]othing," Winton had a reasonable suspicion that Johnson was involved in criminal activity. If reasonable suspicion exists, the court must then consider whether the detention was reasonable in the context of an investigative stop, considering both the length of the continued detention and the investigative methods employed. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008). The drug detection dog arrived approximately 8 minutes after Johnson denied consent to search him or nearly 11 minutes after Hahn gave Winton consent to search the truck. This continued detention was reasonable in time and scope.
Hahn never withdrew consent to search his truck. Winton testified that once Hahn denied his request to search Hahn--which was after the drug detection dog had been requested but before its arrival--Winton "took it as an implied denial of consent on his person and the vehicle at that time." However, in reviewing a probable cause determination, an appellate court focuses on the facts known to arresting officers, not the conclusions the officers draw from those facts. State v. Carnicle, 18 Neb. App. 761, 792 N.W.2d 893 (2010). Thus, Winton's subjective belief that Hahn withdrew his consent is not determinative. Withdrawal of consent need not be effectuated through particular "magic words," but an intent to withdraw consent must be made by unequivocal act or statement. State v. Smith, 279 Neb. 918, 782 N.W.2d 913 (2010). If equivocal, a defendant's attempt to withdraw consent is ineffective and police may reasonably continue their search pursuant to the initial grant of authority. Id. The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of objective reasonableness, or, what would the typical reasonable person have understood by the exchange between the officer and the suspect. State v. Smith, supra. While a suspect's mere reluctance to facilitate a consensual search may not serve to withdraw consent, the suspect's deliberate interference with the search--actions designed to prevent law enforcement from searching further--are clearly sufficient to communicate a withdrawal of consent, because no reasonable observer could conclude that the suspect wanted the search to continue. Id. Here, the evidence shows that Hahn was agitated and that he said, "This is ridiculous." Such evidence is not an unequivocal act or statement sufficient to withdraw consent. The district court's factual findings on this issue were not clearly erroneous, and we agree that any attempt by Hahn to withdraw his consent to search the truck was ineffective.
Johnson next argues that the drug detection dog was not reliable, but he did not assign error related to the drug detection dog. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court. State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010). We decline to consider Johnson's challenge to the drug detection dog's reliability.
Ultimately, we uphold the district court's findings of fact because they were not clearly erroneous. Upon our de novo review of the district court's determinations relevant to reasonable suspicion for the continued detention and probable cause to search without a warrant, we agree with the district court that Hahn's consent to search the truck was never withdrawn and that it justified expanding the scope of the initial traffic stop. The bulge that Winton detected during his
pat down of Johnson in connection with the drug detection dog's indication of the odor of controlled substances within the vehicle provided Winton with justification to search Johnson's person. Accordingly, the district court did not err in denying Johnson's motion to suppress or his renewed motion to suppress made at the end of the trial.
2. SUFFICIENCY OF EVIDENCE
(a) Possession With Intent to Distribute
Johnson concedes that if the evidence is not suppressed, there was sufficient proof that he was guilty of possession of methamphetamine. However, he challenges the conviction of possessing the drug with intent to distribute it.
In reviewing a conviction for sufficiency of the evidence, an appellate court must view the evidence in the light most favorable to the State. State v. Utter, 263 Neb. 632, 641 N.W.2d 624 (2002). Circumstantial evidence may support a finding that a defendant intended to distribute, deliver, or dispense a controlled substance in the defendant's possession. Id. Evidence of the quantity of a controlled substance possessed combined with expert testimony that such quantity indicates an intent to deliver can be sufficient for a jury to infer an intent to deliver. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008). The State adduced evidence from Keiper, who had worked for over 12 years in a drug task force and had received extensive drug-specific training. Keiper testified that the 27.61 grams of methamphetamine was not consistent with personal use. He explained that the quantities of ingestion of methamphetamine are smaller and that "in hundreds of hours of proffer and non-prosecution interviews, no user or distributor has ever told [him] they've bought one ounce of methamphetamine simply to hoard and use for their personal use." Keiper estimated the street value of the methamphetamine to be $2,000 to $2,500. The evidence produced by the State was sufficient for the court to find the necessary intent to distribute the drug.
(b) Obstructing Peace Officer
Finally, Johnson argues that the evidence was not sufficient to find him guilty of obstruction of a peace officer. As applicable to the facts of this case, a person commits the offense of obstructing a peace officer, when, by using or threatening to use violence, force, physical interference, or obstacle, he intentionally obstructs, impairs, or hinders the enforcement of the penal law or the preservation of the peace by a peace officer acting under color of his official authority. See Neb. Rev. Stat. § 28-906(1)(a) (Reissue 2008). Evidence showing that a defendant resisted handcuffing, struggled with an officer, and continued to resist restraint are alone sufficient to sustain a conviction for obstructing a peace officer. State v. Campbell, 260 Neb. 1021, 620 N.W.2d 750 (2001); State v. Lynch, 223 Neb. 849, 394 N.W.2d 651 (1986). Here, the State presented evidence that when Winton told Johnson that he was going to search Johnson's person and tried to reach into Johnson's coat pocket, Johnson began to pull away. Keiper testified that Johnson became "somewhat defensive, as though he was going to resist the efforts to search him." Winton testified that Johnson "turned toward me and pulled away at the same time, and we usually don't tend to let someone at