State v. Thomas

308 Neb. 312

953 N.W.2d 793

STATE of Nebraska, appellee,

v.Arius L. THOMAS, appellant.

No. S-19-1163.

Supreme Court of Nebraska.

Filed February 5, 2021

Thomas C. Riley, Douglas County Public Defender, and Travis L. Wampler, for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

The defendant challenges the district court's denial of his motion to suppress evidence found in his vehicle during a felony traffic stop that was based upon law enforcement's belief that the vehicle matched the description in a police bulletin of a vehicle used in a shooting committed 3 days earlier. The defendant argues that a police bulletin regarding a crime completed 3 days prior and without a description of the suspect was insufficient to justify the intrusion of the felony traffic stop. We affirm.

BACKGROUND

Following a jury trial, Arius L. Thomas was convicted of possession of a firearm by a prohibited person, a Class ID felony; possession of a controlled substance, a Class IV felony; and possession of marijuana, more than 1 ounce, a Class III misdemeanor. Thomas was sentenced to 5 to 10 years’ imprisonment on count 1, 2 years’ imprisonment on count 2, and 3 months’ imprisonment on count 3. These sentences were ordered to run consecutively, and Thomas was given credit for 397 days served against count 1.

The convictions arise out of a stop of the vehicle Thomas was driving on October 22, 2018, based upon information contained in a police bulletin from a shots-fired incident 3 days earlier near 25th and Maple Streets in Omaha, Nebraska. During the investigation of the shots-fired incident, law enforcement obtained a video of the suspect vehicle from a surveillance camera located near the scene. The vehicle image captured on the surveillance video was "dark gray in color with damage to the rear driver's side [and] possibly identified as a 2010 Mazda 3." This information, together with a still shot of the vehicle from the surveillance video and a reference image of a 2010 Mazda 3, was included in a police bulletin.

On October 22, 2018, a police sergeant observed a vehicle parked in the area of 24th and Maple Streets that matched the description of the vehicle involved in the shots-fired incident on October 19. It was the same make, model, and color, and it had the same distinct damage to the rear driver's side as shown in the photograph contained in the police bulletin. The police sergeant notified the officers in the north Omaha gang unit of the location of the suspect vehicle and requested assistance in its surveillance. Five police officers, including Chad Frodyma and Cortes Clark, reported to assist in the surveillance. A check of the vehicle's license plates revealed that the vehicle was registered to Thomas.

After approximately 3 hours of observation by the officers, an individual entered the vehicle. This person was later identified as Thomas. The officers continued surveillance of the vehicle as it left the area. As the vehicle approached the intersection of 72d Street and Ames Avenue, Frodyma observed the vehicle make what he thought to be an improper lane change, moving from the right-turn lane to the left-turn lane over the solid white line separating the two lanes. However, a traffic stop was not immediately made due to officer safety concerns based upon the suspicion that this vehicle had been involved in a shots-fired incident and the occupant could be armed.

The officers continued following the vehicle until it pulled into an apartment complex parking lot. At that point, the officers conducted what they described as a felony traffic stop. They activated the emergency lights on their vehicles and exited them with their weapons drawn. The officers then commanded Thomas to put his hands out of the window and open the door from the outside so he could exit the vehicle. Thomas put his hands out of the window, but he refused to get out of the vehicle.

Within seconds, officers approached the driver's side of the vehicle, weapons still drawn, and attempted to pull Thomas out of the vehicle through the window. Thomas continued to resist while officers were trying to grab his hands to remove him from the vehicle. Frodyma could see Thomas pull his right hand back into the vehicle and reach between his legs and under the driver's seat. Frodyma believed Thomas was possibly reaching for a weapon, so he deployed his Taser on Thomas. Thereafter, Thomas was removed from the vehicle, where he was placed on the ground and handcuffed.

After Thomas was removed from the vehicle, officers observed through the windshield and the driver's side window the butt of a handgun under the driver's seat. Thomas was searched, and $522 cash in small denominations was found on his person. Based on the observation of the handgun, officers conducted a search of the rest of the vehicle and located a backpack in the back seat with 41 grams of marijuana, multiple alprazolam pills, plastic baggies, and a digital scale.

Prior to trial, Thomas filed a motion to suppress the evidence found on his person and in the vehicle, asserting that "the arresting officers lacked probable cause and/or reasonable suspicion to conduct a ‘felony traffic stop’ and illegally detain [Thomas]; and further, the arresting officers conducted a warrantless search of [Thomas’] property and persona" and "all evidence obtained as a result of this illegal traffic stop, detention, and search" should be suppressed.

At the suppression hearing, Frodyma testified to the facts as previously set forth regarding the incident on October 22, 2018. Clark testified similarly, but stated he did not personally see Thomas commit a traffic violation; his observations of Thomas’ vehicle were obstructed at times by other vehicles.

After the hearing, the court overruled Thomas’ motion to suppress. The court found that any inconsistencies in the officers’ testimonies regarding whether a traffic violation occurred could be used at trial to challenge their credibility on the matter. The court did not explicitly make findings of fact that a traffic violation actually occurred, but generally noted that "a traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle." Further, the court found that, in considering the totality of the circumstances, based on the information obtained from the surveillance video related to the shots-fired incident, "the officers had probable cause to conduct an investigative stop of [Thomas’] vehicle."

At trial, Thomas renewed the motion to suppress. The State offered substantially similar evidence regarding the events of October 22, 2018, from the perspective of multiple officers. The district court acknowledged that the motion to suppress was heard on May 29, 2019, and that the order overruling the motion was entered on August 2. It again overruled the motion, but made no additional findings of fact.

ASSIGNMENT OF ERROR

Thomas assigns that the trial court erred in denying Thomas’ motion to suppress.

STANDARD OF REVIEW

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.¹ 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

When a motion to suppress is denied pretrial and again during trial on renewed objection, an appellate court considers all the evidence, both from trial and from the hearings on the motion to suppress.³

ANALYSIS

Thomas assigns that the trial court erred in overruling his motion to suppress evidence that was allegedly obtained as the fruit of an illegal seizure in violation of the Fourth Amendment. Both the Fourth Amendment to the U.S. Constitution and article 1, § 7, of the Nebraska Constitution guarantee against unreasonable searches and seizures.⁴

Thomas is challenging on appeal only the lawfulness of the stop. He does not specifically challenge the justification for the stop's escalation after he resisted officers’ commands, whether a weapon was in plain view after he was removed from the vehicle, or whether the officers were justified in searching the vehicle after seeing the weapon.

In determining whether a seizure was reasonable, we balance the degree of the intrusion against the degree of objective certainty that the person stopped is or has been engaged in criminal activity.⁵ We hold that the officers who stopped Thomas employed a reasonable threat of force in light of a reasonable belief that the driver of the suspect vehicle could be armed or dangerous. Accordingly, and in light of all the other surrounding circumstances, the initial seizure was a tier-two encounter. Only reasonable suspicion was required to justify the seizure, and we conclude that the officers had a particularized and objective basis for suspecting Thomas of breaking the law.⁶ Therefore, the district court did not err in denying Thomas’ motion to suppress.

INITIAL DETENTION

There are three distinct tiers of police-citizen encounters, each triggering a different analysis of the balance that should be struck between the government's interests and the invasion of privacy interests which a search or seizure entails.⁷

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.⁸ This type of contact is outside the realm of Fourth Amendment protection.⁹

The second tier, the investigative stop, is limited to brief, nonintrusive detention during a frisk for weapons or preliminary questioning.¹⁰ It is an intermediate response.¹¹ A second-tier...