State v. Thompson

30 Neb.App. 135

966 N.W.2d 872

STATE of Nebraska, appellee,

v.Ronda K. THOMPSON, appellant.

No. A-20-722.

Court of Appeals of Nebraska.

Filed September 14, 2021.

Lee Timan, of Nelson, Clark & Timan, P.C., for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. Duffy, Lincoln, for appellee.

Pirtle, Chief Judge, and Moore and Bishop, Judges.

Bishop, Judge.

I. INTRODUCTION

Following a stipulated bench trial in the Gage County District Court, Ronda K. Thompson was convicted of possession of methamphetamine, for which she was sentenced to 24 months’ probation. On appeal, Thompson challenges the denial of her motion to suppress related to a traffic stop, the admission of evidence from that traffic stop over her objection at trial, and the sufficiency of the evidence supporting her conviction. We conclude the district court erred in overruling Thompson's motion to suppress and admitting the evidence derived from the traffic stop. Accordingly, we reverse Thompson's conviction and remand the cause for a new trial.

II. BACKGROUND

1. FACTS RELATED TO TRAFFIC STOP

On September 2, 2019, at around 10 a.m., Officer Derrick Hosick of the Beatrice Police Department was on patrol in Beatrice, Nebraska. He observed a vehicle fail to stop at a stop sign and initiated a traffic stop. Thompson was the driver of the vehicle and its sole occupant. She was traveling with her dog. As Officer Hosick exited his cruiser and approached Thompson's vehicle, he switched on his body camera.

The body camera footage shows Officer Hosick approach the driver's-side door of Thompson's vehicle. Thompson's window was rolled down. Officer Hosick advised Thompson of the nature of the stop and asked for her driver's license and vehicle registration. After handing him her documents, Thompson explained that she was aware her license plates had expired. Officer Hosick then returned to his cruiser to conduct a records check and print out the citation, having determined to give a warning for Thompson's failure to stop and a citation for the expired registration. According to the footage, the foregoing took approximately 10 minutes.

At about the 10-minute mark in the recording, Officer Hosick left his cruiser and again approached Thompson's vehicle on the driver's side. The driver's-side door was ajar, and Officer Hosick opened the door further to speak with Thompson, stepping between the open door and Thompson, who remained in the driver's seat. He prepared the citation standing next to Thompson's vehicle while reviewing the information in her documents. He explained that he decided to issue a formal citation for the expired registration and give her a verbal warning regarding the failure to stop. Officer Hosick continued to explain the options available to Thompson in handling that citation. Thompson then held the signed citation out for Officer Hosick to take.

As Officer Hosick retrieved the signed citation, he said to Thompson, "Okay, I'll get you your stuff back so you can get out of here." While putting Thompson's copy of the citation together with her documents still in his possession, he asked Thompson, "Nothing illegal in the car?" Thompson immediately answered, "No." Officer Hosick followed up by asking, "Nothing that a drug dog would indicate on or anything like that?" Thompson again answered, "No." Officer Hosick then handed Thompson her documents and her copy of the citation. At this time, he was still positioned within the threshold of the open driver's-side door of Thompson's vehicle. As he was handing Thompson her documents, he asked her, "Do you have any problems if I look in your car to make sure there's nothing illegal in the car?" Thompson replied, "No, go ahead. Help yourself." Officer Hosick then said, "Would you want to hold on to the pup for me?" Thompson indicated that she told her dog she had done a good job of not barking. Thompson then asked, "You want us to get out or anything?" Officer Hosick responded, "Would you please," and he then turned and walked back toward his cruiser, but stopped short and turned around as Thompson began to exit her vehicle.

Thompson directed her dog to stay "on the green," and then she unlocked the doors to her vehicle. Standing next to Thompson, Officer Hosick asked, "Do you have anything in your pockets or anything like that?" Thompson answered, "No." Officer Hosick then asked her, "Would you turn out your pockets for me?" Thompson immediately proceeded to do so.

Thompson pulled a small plastic baggie out of her pocket and, upon seeing it, declared, "That is so not mine." The baggie had a crystalline residue inside, and upon further questioning from Officer Hosick, Thompson stated that she had put an antihistamine tablet in the baggie "to dissolve it." She further explained that she had "picked up the baggie from somewhere else," describing that she had picked it up "out of the trash, ... boxes, dumpster, whatever."

After taking the baggie from Thompson, Officer Hosick called a female officer to the scene to conduct a more thorough search of Thompson's person. After the female officer arrived and began to search Thompson, Officer Hosick conducted a search of Thompson's vehicle. No further contraband was found during these searches of Thompson's person and her vehicle. Officer Hosick thereafter conducted a field test of the residue in the baggie, and the residue tested positive for methamphetamine. He then placed Thompson under arrest. Later, as he was preparing to transport Thompson to jail, Officer Hosick asked her if she had any other contraband on her person. In response, she produced a red straw with a small amount of white residue inside of it. The baggie and straw were subsequently sent to the Nebraska State Patrol Crime Laboratory, and the baggie tested positive for methamphetamine after laboratory analysis. No analysis was conducted on the straw.

2. PROCEDURAL HISTORY

Thompson was charged with possession of a controlled substance, methamphetamine. On December 28, 2019, she filed a motion to suppress "any and all physical evidence obtained as a result from the law enforcement search" of her person. She alleged the traffic stop extended "beyond that which was necessary for Officer Hosick to complete his investigation into the No Valid Registration issue" and that her continued detention was not supported by probable cause or reasonable suspicion, all in violation of the Nebraska Constitution and the 4th and 14th Amendments to the U.S. Constitution. There was a hearing on Thompson's motion, and on March 24, 2020, the district court issued an order overruling the motion to suppress. The court concluded that "Officer Hosick's request to search [Thompson's] person at the conclusion of the traffic stop was not an unreasonable search or seizure, because [she] knowingly, voluntarily and intelligently consented to a search of her person."

The district court held a stipulated bench trial submitted on stipulated facts. Thompson objected to the admission of the evidence acquired from the traffic stop, and the court overruled the objection. The court found Thompson guilty and sentenced her to 24 months’ probation. Thompson now appeals.

III. ASSIGNMENTS OF ERROR

On appeal, Thompson claims the district court erred in overruling her motion to suppress and overruling her objection to the admission of evidence presented by the State. She also claims the evidence was insufficient to support her conviction.

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. State v. Shiffermiller , 302 Neb. 245, 922 N.W.2d 763 (2019). Regarding historical facts, we review the trial court's findings for clear error. Id. 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. State v. Shiffermiller, supra .

Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Price , 306 Neb. 38, 944 N.W.2d 279 (2020).

V. ANALYSIS

1. MOTION TO SUPPRESS AND ADMISSION OF EVIDENCE DERIVED FROM TRAFFIC STOP

Thompson claims the district court erred by denying her motion to suppress and admitting the evidence acquired from the traffic stop. Both the Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution guarantee against unreasonable searches and seizures. State v. Garcia , 302 Neb. 406, 923 N.W.2d 725 (2019).

(a) Initial Traffic Stop

A traffic stop is a seizure for Fourth Amendment purposes, and therefore is accorded Fourth Amendment protections.

State v. Barbeau , 301 Neb. 293, 917 N.W.2d 913 (2018). Thompson does not contest the validity of the initial traffic stop for her failure to stop, and we find no impropriety regarding that initial traffic stop. See id. (traffic violation, no matter how minor, creates probable cause to stop driver of vehicle).

(b) Inquiries Into Presence of Contraband and Request for Consent to Search of Vehicle

Thompson asserts that "[t]he ultimate issue for this [c]ourt to determine is whether or not the further inquiry by Officer Hosick ... should be seen as an extension of the initial [traffic stop] or [as] a voluntary encounter occurring between Officer Hosick and [Thompson]." Brief for appellant at 6. We proceed to examine the traffic stop and Officer...