State v. Vasquez-Arenivar

779 N.W.2d 117

18 Neb. App. 265

STATE of Nebraska, appellee, v. Luis Carlos VASQUEZ-ARENIVAR, appellant.

No. A-09-437.

Court of Appeals of Nebraska.

February 16, 2010.

Jeff E. Loeffler, Deputy Hall County Public Defender, for appellant.

Jon Bruning, Attorney General, and George R. Love, Columbus, for appellee.

INBODY, Chief Judge, and IRWIN and CASSEL, Judges.

INBODY, Chief Judge.

INTRODUCTION

A jury convicted Luis Carlos Vasquez-Arenivar of possession of a controlled substance with the intent to distribute and tampering with physical evidence. Following his sentencing, Vasquez-Arenivar appealed to this court alleging that the district court erred in denying his motion to suppress on the basis that he was subjected to an unconstitutional pat-down search for weapons. We disagree with Vasquez-Arenivar, finding that the pat-down search of his person was constitutional and that Vasquez-Arenivar, who was being legally detained, abandoned a bag of drugs in the presence of an officer. We find that although insufficient evidence was not assigned as error by Vasquez-Arenivar, the evidence is insufficient, as a matter of law, to support Vasquez-Arenivar's conviction for tampering with physical evidence.

STATEMENT OF FACTS

Vasquez-Arenivar was one of two passengers in a vehicle stopped for driving the wrong way down a one-way street. The driver admitted to consuming alcohol, and the investigating officer conducted an investigation to determine if the driver was driving while intoxicated, while Sgt. Tony Keiper and two officers arrived to assist. The officers were concerned because the other passenger, Lisia Pacheco, had been implicated in the distribution of methamphetamine and had been convicted on firearm charges and because the vehicle had an extremely dark tint on the windows, making it difficult to see inside the vehicle. Vasquez-Arenivar, who was able to speak English, told Keiper he was on the way to meet his wife, he was getting a ride, and he worked for a construction company. However, when Keiper asked Vasquez-Arenivar about drugs and firearms, Vasquez-Arenivar looked away and delayed his responses, and the issue arose of whether Vasquez-Arenivar could understand Keiper's questions.

Keiper asked Vasquez-Arenivar and Pacheco to exit the vehicle and conducted a pat-down search for weapons of both passengers for officer safety; however, prior to conducting the pat-down search of Vasquez-Arenivar, Keiper noticed a large bulge in Vasquez-Arenivar's left front pocket. Keiper testified that as he conducted the pat-down search, the bulge felt like "a larger, soft cylinder-shaped bunch" and felt "slightly mushy." The pat-down search confirmed that Vasquez-Arenivar was not concealing any weapons on his person, so Keiper had Vasquez-Arenivar sit on the curb near Pacheco. However, since Keiper suspected that the bulge was drugs, he requested consent to search Vasquez-Arenivar's person, which request was refused. Keiper then conferred with one of the officers, and while the officers were talking, Vasquez-Arenivar stood up and turned his left side away from the officers, putting himself between the officers and Pacheco. The officers then saw what appeared to be a large Ziploc bag lying on the ground between Pacheco's feet. Keiper knew the area of the curb where Pacheco and Vasquez-Arenivar were sitting was clear of objects prior to the two individuals' sitting down, and Pacheco denied knowing anything about the bag.

Keiper conducted another pat-down search of Vasquez-Arenivar, which search confirmed that the bulge was no longer present. Upon examination of the Ziploc bag, it was determined that the bag contained controlled substances, and Vasquez-Arenivar was arrested. During booking, another officer informed Vasquez-Arenivar that he was going to be subjected to a search, at which point Vasquez-Arenivar pointed to his pocket and said, "[T]hat is all I have, it's in here." The officer looked in the coin pocket of Vasquez-Arenivar's pants and found a sandwich bag containing what appeared to be methamphetamine. Vasquez-Arenivar then stated that "he was stupid, he made a mistake, that it was the first time, and he needed the money." The contents of the bags were tested and found to contain a total of 53.74 grams, or approximately 1.9 ounces, of methamphetamine, with a street retail value of $5,300. The Ziploc bag seized at the scene contained four knotted plastic baggies each containing between 13.02 and 13.30 grams of methamphetamine. The knotted plastic bag found on Vasquez-Arenivar's person contained 1.28 grams of methamphetamine. Keiper testified that both the amount of methamphetamine seized and the manner in which the drugs were packaged indicated that the methamphetamine was intended for resale, not personal use.

Vasquez-Arenivar was charged with possession of a controlled substance (methamphetamine) with the intent to distribute and tampering with physical evidence. Vasquez-Arenivar filed a motion to suppress, contending that his arrest, search, seizure, and questioning were in violation of his constitutional rights and that thus, all evidence obtained as a result thereof should be suppressed, which motion was denied. A jury trial was held, and the jury convicted Vasquez-Arenivar of the charged offenses. Following his sentencing, Vasquez-Arenivar appealed to this court, alleging that the district court erred in denying his motion to suppress.

ASSIGNMENT OF ERROR

Vasquez-Arenivar's sole assignment of error is that the district court erred in denying his motion to suppress.

STANDARD OF REVIEW

In reviewing a trial court's ruling on a motion to suppress, we review the ultimate determination of probable cause de novo and review the findings of fact made by the trial court for clear error, giving due weight to the inferences drawn from those facts by the trial court. State v. Wenke, 276 Neb. 901, 758 N.W.2d 405 (2008).

ANALYSIS

Denial of Motion to Suppress.

Vasquez-Arenivar's sole assignment of error is that the district court erred in denying his motion to suppress which asserted the pat-down search for weapons was unconstitutional for the reason that the officer did not have reasonable suspicion, based on articulable facts, that Vasquez-Arenivar was armed and dangerous.

Vasquez-Arenivar does not contest the initial stop of the vehicle in this case. The stop, for driving the wrong way down a one-way street, clearly was proper. See Neb.Rev.Stat. § 60-6,138 (Reissue 2004). A traffic violation, no matter how minor, creates probable cause to stop the driver of the vehicle. State v. Royer, 276 Neb. 173, 753 N.W.2d 333 (2008). Officers could also clearly order Vasquez-Arenivar out of the vehicle pending completion of the stop. See State v. Gutierrez, 9 Neb. App. 325, 611 N.W.2d 853 (2000) (officer making traffic stop may order driver and passengers to get out of vehicle, pending completion of stop). See, also, Maryland v. Wilson, 519 U.S 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). This brings us to the question posed by Vasquez-Arenivar: Did the officer who conducted the pat-down search of Vasquez-Arenivar have reasonable suspicion, based on articulable facts, that Vasquez-Arenivar was armed and dangerous?

In addition to an investigatory stop pursuant to 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 the outer clothing of persons stopped on Terry grounds to discover weapons which might be used to assault the officer. State v. Coleman, 10 Neb.App. 337, 630 N.W.2d 686 (2001); State v. Gutierrez, supra. In determining whether an officer acted reasonably, it is not the officer's inchoate or unparticularized suspicion or hunch that is given due weight, but the specific reasonable inferences which the officer is entitled to draw from the facts in light of his or her experience. State v. Ellington, 242 Neb. 554, 495 N.W.2d 915 (1993); State v. Coleman, supra. Whether a police officer has a reasonable suspicion based on sufficient articulable facts requires taking into account the totality of the circumstances. State v. Ellington, supra; State v. Coleman, supra.

The law is well settled in Nebraska that, as part of the totality of the circumstances, a court can consider an officer's knowledge of the defendant's drug-related criminal history. See, State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008); State v. Lee, 265 Neb. 663, 658 N.W.2d 669 (2003). However, we have not directly considered whether an officer's knowledge of another passenger's drug- or weapon-related criminal history may be considered as part of the totality of the circumstances justifying a pat-down search of the defendant. In State v. Coleman, supra, we did cite with approval to U.S. v. Menard, 898 F.Supp. 1317 (N.D.Iowa 1995), which was subsequently affirmed by the Eighth Circuit at U.S. v. Menard, 95 F.3d 9 (8th Cir.1996). The Eighth Circuit held that, in considering the totality of the circumstances of whether reasonable suspicion existed to pat down a back seat passenger, the trial court could consider an officer's reminder to a fellow officer of the "`Officer Safety Warning'" posted at the police department which specifically stated the front seat passenger was believed to be armed with an automatic pistol. U.S. v. Menard, 95 F.3d at 10.

Other courts have likewise held that a fellow passenger's criminal history is a valid factor to be considered as part of the totality of the circumstances in assessing reasonable suspicion. See, U.S. v. Mathurin, 561 F.3d 170 (3d Cir.2009) (defendant acknowledged that codefendant's criminal history, involving arrests for possession of drugs, aggravated assault, and another arrest resulting in seizure of large sums of cash from his person, was valid factor for court to consider, under totality of circumstances, when it assessed reasonable suspicion that defendan...