State v. Nelson

282 Neb. 767

807 N.W.2d 769

STATE of Nebraska, appellee,

v.James A. NELSON, appellant.

No. S–11–003.

Supreme Court of Nebraska.

Dec. 2, 2011.

Syllabus by the Court

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.

Criminal Law:

Motions for New Trial:

Appeal and Error. In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed.

3.

Constitutional Law:

Motor Vehicles:

Search and Seizure:

Appeal and Error.

To determine whether an unauthorized driver has a privacy interest in a rental vehicle, an appellate court must consider whether the person who claims the protection of the Fourth Amendment and Neb. Const. art. I, § 7, has a legitimate expectation of privacy in the invaded place.

4.

Constitutional Law:

Search and Seizure.

To determine if an individual may make a challenge under the Fourth Amendment and Neb. Const. art. 1, § 7, one must determine whether an individual has a legitimate or justifiable expectation of privacy. Ordinarily, two inquiries are required. First, an individual must have exhibited an actual (subjective) expectation of privacy, and second, the expectation must be one that society is prepared to recognize as reasonable.

5.

Constitutional Law:

Motor Vehicles:

Search and Seizure. Regarding a detention during a traffic stop, such action constitutes a seizure of the person and the individual traveling in an automobile does not lose all reasonable expectation of privacy.

6.

Constitutional Law:

Search and Seizure:

Standing. A “standing” analysis in the context of search and seizure is nothing more than an inquiry into whether the disputed search and seizure has infringed an interest of the defendant in violation of the protection afforded by the Fourth Amendment.

7.

Standing:

Motor Vehicles:

Search and Seizure:

Contracts.

A driver of a rental vehicle may have standing to challenge a detention or search if he or she has demonstrated that he or she has received permission to drive the vehicle from the individual authorized on the rental agreement.

8.

Investigative Stops:

Motor Vehicles:

Probable Cause. A traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle.

9.

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.

10.

Investigative Stops:

Motor Vehicles:

Police Officers and Sheriffs:

Probable Cause.

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 a person in the vehicle is involved in criminal activity beyond that which initially justified the stop.

11.

Probable Cause:

Words and Phrases.

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.

12.

Police Officers and Sheriffs:

Probable Cause.

Whether a police officer has a reasonable suspicion based on sufficient articulable facts depends on the totality of the circumstances.

13. Probable Cause. Reasonable suspicion exists on a case-by-case basis.

14. Probable Cause. Factors that would independently be consistent with innocent activities may nonetheless amount to reasonable suspicion when considered collectively.

15.

Criminal Law:

Motions for New Trial:

Evidence:

Proof.

A criminal defendant who seeks a new trial because of newly discovered evidence must show that if the evidence had been admitted at the former trial, it would probably have produced a substantially different result.

16.

Constitutional Law:

Due Process.

The due process requirements of Nebraska's Constitution are similar to those of the federal Constitution.

17.

Constitutional Law:

Due Process:

Evidence. Under certain circumstances, the Due Process Clause of the 14th Amendment to the U.S. Constitution may require that the State preserve potentially exculpatory evidence on behalf of a defendant.

18.

Due Process:

Evidence:

Police Officers and Sheriffs. Unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.

19.

Judgments:

Due Process:

Evidence:

Appeal and Error.

A trial court's conclusion that the government did not act in bad faith in destroying potentially useful evidence, so as to deny the defendant due process, is reviewed for clear error.

20.

Evidence:

Proof.

Because of its obvious importance, where “material exculpatory” evidence is destroyed, a showing of bad faith is not necessary.

21.

Evidence:

Proof.

Where evidence that is destroyed is only “potentially useful,” a showing of bad faith under Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), is required.

James R. Mowbray and Kelly S. Breen, of Nebraska Commission on Public Advocacy, for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.

MILLER–LERMAN, J.

NATURE OF CASE

A rental vehicle driven by James A. Nelson, appellant, was stopped for speeding by a Nebraska State Patrol trooper. After a conversation and further observations, consent to search was denied. Nelson was detained, and a drug detection canine called to the scene alerted. A search disclosed a package of cocaine. Nelson was charged with possession of cocaine with intent to deliver or distribute and another count which was later dismissed.

A first motion to suppress challenging the detention was initially granted by the district court for Cheyenne County, but it was reversed by a single judge of the Nebraska Court of Appeals under the procedure set forth in Neb.Rev.Stat. § 29–824 (Reissue 2008). See State v. Nelson, No. A–09–082, 2009 WL 2342734 (Neb.App. July 28, 2009) (selected for posting to court Web site). The propriety of the detention is before us as an issue on appeal. Upon remand, a second motion to suppress—addressed to the execution of the search, the reliability of the canine, and the existence of probable cause to search—was overruled, and this ruling is not at issue on appeal.

At a jury trial, Nelson was found guilty of possession of cocaine with intent to deliver or distribute. Nelson's motion for new trial, asserting newly discovered evidence and other bases, was denied. Nelson was sentenced to imprisonment for a term of 20 to 21 years. Nelson appeals. Although Nelson was not the driver authorized on the rental agreement, he had permission from the authorized driver, and we conclude he had standing to challenge the search and seizure. Because we conclude that there was reasonable, articulable suspicion to detain Nelson, the denial of his first motion to suppress was not error. Further, the district court did not err when it denied the motion for new trial. We affirm.

STATEMENT OF FACTS

On August 7, 2008, Nelson was driving a rental vehicle on Interstate 80 in Cheyenne County, Nebraska, when he was stopped for speeding. The facts surrounding that stop are derived primarily from the first of two hearings on Nelson's motions to suppress. During the hearing on Nelson's first motion to suppress, Trooper Ronald Kissler, who is trained in drug interdiction, testified. Kissler stated that he stopped the vehicle being driven by Nelson for speeding. At 12:58 p.m., Kissler approached Nelson's vehicle. Nelson provided Kissler with his driver's license and told Kissler that the vehicle was a rental vehicle. Nelson provided Kissler with the rental agreement, which listed Cornell Nelson as the lessee. Nelson told Kissler that Cornell is his uncle. Kissler asked Nelson to come back to his patrol car. Once in the patrol car, at approximately 12:59 p.m., Nelson commented to Kissler that Nelson had observed that Kissler had both a long rifle and a shotgun in his patrol car, which Kissler acknowledged. Upon questioning, Nelson told Kissler that he had flown to California to visit his grandmother. Nelson stated the trip was 3 days. He stated that because he does not like to fly, he was driving back home to Missouri instead of flying. At this point in the conversation, Nelson asked Kissler about the local geography, cities, and attractions.

At about 1:05 p.m., Kissler asked dispatch to run a license plate check on the vehicle, a check for prior arrests on Nelson, a check on Nelson and his uncle for involvement with drugs, and a check on the validity of Nelson's driver's license and whether there were any outstanding warrants on Nelson. While waiting for this information, Kissler began filling out the warning citation and advised Nelson that he intended to issue a written warning. Nelson then asked Kissler whether Kissler was wearing boots. At 1:09 p.m., dispatch...