Opinion
No. A-11-321
02-14-2012
STATE OF NEBRASKA, APPELLEE, v. SCOT A. CHRISTENSEN, APPELLANT.
Richard Tegtmeier, of Sherman & Howard, L.L.C., for appellant. Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
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 Lancaster County: STEVEN D. BURNS, Judge. Affirmed.
Richard Tegtmeier, of Sherman & Howard, L.L.C., for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
IRWIN, SIEVERS, and MOORE, Judges.
IRWIN, Judge.
I. INTRODUCTION
Scot A. Christensen appeals the decision of the district court for Lancaster County, Nebraska, denying his motion to suppress evidence obtained as a result of a canine sniff search of the rental vehicle in which he was a passenger. Christensen assigns error concerning his detention, the search, and statements made during the detention. We find no merit to Christensen's assertions, and we affirm.
II. BACKGROUND
The events giving rise to this case, and the issues raised on appeal, are substantially intermingled with those in a companion case filed today in case No. A-11-127 involving Christensen's mother, Cynthia F. Bruckner. Bruckner was driving the rental vehicle in which Christensen was a passenger when the events giving rise to this case occurred.
The events giving rise to this case occurred during the evening hours of February 10, 2010. On that date, a Trooper Townsend of the Nebraska State Patrol was parked in the median of Interstate 80 west of Lincoln, Nebraska, when he observed a black Chevrolet Suburban with Arizona license plates traveling eastbound. Trooper Townsend pulled out of the median and was approximately one-half mile behind the vehicle when he observed it change lanes without properly signaling the lane change. Trooper Townsend radioed dispatch to have the license plates checked, and he was notified that the vehicle was a rental vehicle. Trooper Townsend then initiated a traffic stop.
Trooper Townsend made contact with both Christensen and Bruckner. Trooper Townsend spoke first with Bruckner, in the front seat of his patrol vehicle. Bruckner indicated that she and Christensen lived in California and were traveling to New York to visit family. She indicated that they intended to stay in New York for approximately 1 month and that they intended to use the rental vehicle the entire time. She indicated that the pair flew from California to Las vegas and rented the vehicle in Las vegas, and she told Trooper Townsend that it was "cheaper" to rent the vehicle in Las Vegas than in California. This discussion with Bruckner lasted approximately 7½ minutes.
Trooper Townsend testified that he became suspicious. He testified that he had a hard time believing it would be cheaper to fly from California to Las vegas and then rent a vehicle than to just rent the vehicle in California, and he also found it suspicious that Bruckner indicated that she and Christensen would be in New York for 1 month and would be using the rental vehicle the entire time, but the rental agreement was for only 1 week.
Trooper Townsend then spoke with Christensen. Christensen indicated that he and Bruckner intended to be in New York for a couple of weeks. He indicated that the pair drove from California to Las Vegas in Bruckner's vehicle and that they rented the vehicle in Las Vegas instead of California because Christensen has a house in Las vegas and spends much of his time there. This discussion with Christensen lasted approximately 2½ minutes.
Trooper Townsend testified that he became further suspicious after speaking with Christensen. He was suspicious that Bruckner and Christensen indicated differing lengths of time that the pair intended to be in New York and that both exceeded the length of the rental agreement. He was also suspicious that Bruckner and Christensen gave different accounts of how the pair got from California to Las vegas and different reasons for renting the vehicle in Las Vegas.
Trooper Townsend then spoke with Bruckner again. Bruckner provided additional details about which airport in California she had flown from and where she had left her vehicle in California. This second conversation with Bruckner lasted approximately 6 minutes. Trooper Townsend then issued Bruckner a warning for the turn signal violation. The warning was issued to Bruckner approximately 17 minutes after the traffic stop was initiated.
As Bruckner began to exit Trooper Townsend's vehicle, he asked her if he could ask a few more questions. Bruckner said, "sure," got back into the vehicle, and closed the door. Trooper Townsend then asked Bruckner about the discrepancies between her and Christensen's accounts of their trip and motivations for renting in Las Vegas; Bruckner suggested Christensen may have been remembering another time. Trooper Townsend then inquired whether there was anything illegal in the vehicle, and Bruckner responded, "Not to my knowledge." Trooper Townsend asked Bruckner if he could search her personal property in the vehicle; Bruckner initially consented, but declined after Trooper Townsend informed her that she could decline. Trooper Townsend then called for a canine unit to be sent to the location.
Trooper Townsend then returned to the rental vehicle and spoke with Christensen again. Trooper Townsend asked Christensen about the discrepancies between his and Bruckner's accounts of their trip and motivations for renting in Las Vegas; Christensen suggested that Bruckner flew to Las Vegas often and was probably mistaken. Trooper Townsend asked if there was anything illegal in the vehicle, and Christensen responded that there was not. Trooper Townsend asked Christensen if he could search the vehicle, and Christensen declined. Christensen asked if the pair was free to leave, and Trooper Townsend informed him that they were being detained until a drug detection dog arrived. Trooper Townsend then had Christensen sit in the back seat of his patrol vehicle.
A Trooper Downing arrived with a drug detection dog named "Rex" approximately 9 minutes after the warning was issued, or approximately 26 minutes after the traffic stop began. Christensen and Bruckner were left alone in Trooper Townsend's patrol vehicle, where they were able to observe the drug detection dog being taken around their rental vehicle. At this time, Trooper Townsend's patrol vehicle recording equipment recorded their conversation. The drug detection dog was taken around the rental vehicle, and he alerted and indicated the odor of drugs within approximately 40 seconds. Trooper Townsend informed Christensen and Bruckner that the drug detection dog had indicated the presence of drugs and that the rental vehicle was going to be searched.
During the search of the rental vehicle, law enforcement discovered three large padlocked containers. Christensen refused to provide a combination for the locks, and Trooper Townsend had to call for bolt cutters to be brought to the scene. Another law enforcement officer arrived with bolt cutters approximately 20 minutes later, or approximately 56 minutes after the traffic stop began. The three containers were opened, and approximately 63 pounds of high-grade marijuana was discovered. Christensen and Bruckner were then arrested.
Christensen was charged with possession with intent to deliver a controlled substance. Prior to trial, Christensen filed motions to suppress evidence and statements.
The district court entered a thorough 25-page order overruling Christensen's motions to suppress. In that order, the court found that the initial stop was proper because Trooper Townsend observed a traffic violation and found that the continued detention after the issuance of the warning was not unlawful. The court found that the continued detention was supported by reasonable, articulable suspicion and that the duration of the detention was not excessive. The court found that the search of the rental vehicle was supported by probable cause because the drug detection dog was shown to be reliable and was shown to have provided an alert and indication to the presence of the odor of drugs. The court also found that the statements made by Christensen and Bruckner while alone in Trooper Townsend's patrol vehicle were not the result of custodial interrogation and were not involuntary.
Christensen waived his right to a jury trial. The case was presented to the court for a stipulated bench trial. The district court found Christensen guilty and sentenced him to a period of 8 to 10 years' imprisonment. This appeal followed.
III. ASSIGNMENTS OF ERROR
Christensen has assigned five errors on appeal, which we consolidate for discussion to three. First, Christensen challenges his detention as being unjustifiably prolonged. Second, Christensen challenges the search of the rental vehicle as being unlawful and not supported by probable cause. Finally, Christensen challenges the court's overruling of his motion to suppress statements made during the detention while Christensen and Bruckner were alone in Trooper Townsend's patrol vehicle.
IV. ANALYSIS
1. STANDARD OF REVIEW
When reviewing a district court's determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search, ultimate determinations of reasonable suspicion and probable cause are reviewed de novo and findings of fact are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge. State v. Verling, 269 Neb. 610, 694 N.W.2d 632 (2005).
When reviewing a claimed involuntariness of a statement, an appellate court applies a two-part standard of review. See State v. Landis, 281 Neb. 139, 794 N.W.2d 151 (2011). With regard to historical facts, an appellate court reviews the trial court's findings for clear error. Id. Whether those facts suffice to meet the constitutional standards is a question of law, reviewed independently of the trial court's determination. See id.
2. DETENTION
Christensen first challenges his detention. Christensen asserts on appeal that Trooper Townsend pursued matters that were extrinsic to the basis for the traffic stop, exceeded the length of time necessary to issue a warning to Bruckner for the traffic violation observed, and lacked reasonable, articulable suspicion to detain the pair for a canine search. We find no merit to these assertions.
We first note that there is no dispute that the initial stop of the rental vehicle was valid. It is well established that a traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle. State v. Lee, 265 Neb. 663, 658 N.W.2d 669 (2003). Trooper Townsend stopped the rental vehicle when Bruckner failed to properly signal a lane change on the Interstate. See Neb. Rev. Stat. § 60-6,133 (Reissue 2010) (requiring signal when passing). Christensen does not challenge this initial stop.
At the time of the initial stop, Trooper Townsend was entitled to conduct an investigation reasonably related in scope to the circumstances that justified the initial stop. State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011); State v. Lee, supra; State v. Anderson, 258 Neb. 627, 605 N.W.2d 124 (2000). Such 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. State v. Howard, supra. 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 officer may engage in similar routine questioning of passengers in the vehicle to verify information provided by the driver. State v. Verling, 269 Neb. 610, 694 N.W.2d 632 (2005).
In this case, Trooper Townsend engaged in this routine investigation, had Bruckner sit in his patrol vehicle, and spoke with Christensen to verify information provided by Bruckner. Trooper Townsend's initial questioning of Bruckner lasted less than 8 minutes, and his initial questioning of Christensen to verify information provided by Bruckner lasted less than 3 minutes. Trooper Townsend issued a warning to Bruckner less than 17 minutes after the stop was initiated. We conclude that there was nothing unlawful about the questioning or the duration of the detention from the time of the initial stop until the warning was issued.
To expand the scope of a traffic stop and continue to detain the person for additional investigation, an officer must have a reasonable, articulable suspicion that the person is involved in criminal activity beyond that which initially justified the initial stop. State v. Howard, supra; State v. Verling, supra. 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. Id. Reasonable suspicion must be determined on a case-by-case basis. Id. Even if the factors leading to a determination to detain a person during a traffic stop are each independently consistent with innocent activities, those same factors may amount to reasonable suspicion when considered collectively. State v. Howard, supra.
In the present case, Christensen and Bruckner were traveling in a rental vehicle with a large amount of cargo in the back. The rental agreement indicated that the vehicle had been rented in Las Vegas for 1 week, although both Christensen and Bruckner were from California. When questioned about their travel plans, Christensen and Bruckner both indicated an intent to travel to New York and to remain for more than 1 week. They both indicated an intent to use the rental vehicle the entire time, even though it had been rented for only 1 week.
When questioned, Christensen and Bruckner gave conflicting reasons for renting the vehicle in Las Vegas and gave conflicting stories concerning how they got from California to Las Vegas. Bruckner asserted to Trooper Townsend that it was cheaper to fly from California to Las Vegas and then rent the vehicle than to just rent the vehicle in California, and she indicated that they had actually flown from California to Las Vegas. Christensen, on the other hand, indicated that Bruckner drove from California to Las Vegas, where Christensen already was, and left Bruckner's vehicle in Las Vegas. Both suggested the other was probably mistaken when questioned about the discrepancies.
When viewed in their totality, we conclude that the facts available to Trooper Townsend supported his reasonable suspicion and detention of Bruckner and Christensen until a canine unit could arrive. See State v. Howard, supra. We also conclude that the length of the detention until the canine unit arrived was not unreasonable. See id. (investigative stop must be temporary and last no longer than necessary to effectuate purpose of stop). The warning was issued approximately 17 minutes after the initial stop, and the canine unit arrived less than 10 minutes later. Nothing in the record indicates any lack of diligence or abuse of discretion on the part of Trooper Townsend in seeking the canine unit, and the length of the detention awaiting the canine unit was not unreasonably long. See id. (detention of nearly 1 hour awaiting canine unit reasonable absent evidence of lack of diligence or abuse of discretion). We find no merit to Christensen's assertions challenging the detention in this case.
3. SEARCH
Christensen next challenges the search of the rental vehicle. Christensen asserts that the warrantless search was not justified by any exception to the warrant requirement and that there was not probable cause to support searching the contents of the rental vehicle. We find that there was probable cause to search the rental vehicle and find no merit to Christensen's assertions.
Resolution of this issue depends on the determination of whether there was probable cause to search the rental vehicle. Probable cause to search requires that the known facts and circumstances are sufficient to warrant a person of reasonable prudence in the belief that contraband or evidence of a crime will be found. State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011). Probable cause is a flexible, commonsense standard. Id. It merely requires that the facts available to the officer would warrant a person of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand a showing that such a belief be correct or more likely true than false. Id. Probable cause is determined by an objective standard of reasonableness, given the known facts and circumstances. Id.
Christensen's argument on appeal appears to be primarily that the drug detection dog used for the canine sniff of the rental vehicle lacked sufficient reliability for its alert and indication to provide the basis for probable cause. Generally, the factors supporting an officer's reasonable suspicion of illegal drug activity, coupled with a well-trained drug detection dog's positive indication of drugs in a vehicle, give the officer probable cause to search the vehicle. Id. A district court's finding that a drug detection dog is reliable is a finding of fact that is reviewed for clear error. See id.
Recently, in State v. Howard, supra, the Nebraska Supreme Court specifically addressed a challenge to the reliability of a canine sniff. In that case, the court adopted the standard that introduction into evidence of a drug detection dog's search records and consideration of those records is appropriate in assessing the totality of the circumstances when determining whether a canine alert, combined with reasonable suspicion factors, amounts to probable cause to search a vehicle.
In the present case, a Sergeant Duis of the Nebraska State Patrol testified concerning the training and search records of the drug detection dog used to search the rental vehicle, Rex. Sergeant Duis testified that he is the head trainer for the Nebraska State Patrol's police service dog division. He also testified that he has been separately trained as a judge of service dogs through the International Congress of Police Service Dogs. He testified that he has trained in excess of 50 service dogs and that he has judged several hundred dogs.
Sergeant Duis testified about the training records of Rex and his handler, Trooper Downing. Sergeant Duis testified that Rex and Trooper Downing had been certified every year since 2005 for both narcotics detection and patrol work, and Sergeant Duis testified concerning their training and certification records. He reviewed the video of the traffic stop and the canine sniff of the rental vehicle performed by Rex and Trooper Downing. He testified that Rex provided both an alert and an indication and testified that he did not believe Trooper Downing cued Rex in any way. Sergeant Duis testified that, in his opinion, Rex was well-trained and reliable and that the sniff, alert, and indication were reliable.
On cross-examination, Christensen's counsel questioned Sergeant Duis extensively concerning canine alerts in situations where no drugs are ultimately located. Sergeant Duis testified that he does not believe a trained canine can ever provide a false indication and testified that a trained canine will alert and indicate only if the scent of drugs is present, regardless of whether drugs are ultimately located. He testified that there are many explanations for why the odor of drugs can be present but no drugs located, including situations in which drugs had previously been present in the location. Sergeant Duis acknowledged that Rex's records indicated that during past deployment searches, a measurable quantity of drugs was located 40 percent of the time when Rex alerted and indicated. Sergeant Duis testified that in determining accuracy, he had considered deployments, training sniffs, and certification sniffs, and explained that there were situations where marijuana had been smoked in a vehicle recently prior to Rex's alert and indication or other explanations for the odor of drugs to be present to trigger an alert and indication even if no measurable quantity of drugs was located. He testified that he was not concerned with the number of times a dog alerts but no drugs are ultimately found because of the many explanations for the odor to be present without a measurable quantity of drugs being present.
On the contrary, Steven Nicely testified on behalf of Christensen and Bruckner concerning Rex's reliability. Nicely testified that, based on his review of Rex's records and the video of the canine sniff in the present case, Rex is not reliable. Nicely acknowledged having no certification for training or handling dogs, acknowledged that he had never talked with a trainer or handler for the Nebraska State Patrol, and acknowledged that he had never been trained in the Nebraska State Patrol's canine training methods. He indicated that he had testified in approximately 50 prior cases in various jurisdictions, acknowledged that in the five or six prior cases concerning the Nebraska State Patrol he had never found a Nebraska State Patrol dog to be reliable, acknowledged that he has concluded that dogs were cued in approximately half of the cases in which he has testified, and acknowledged that a number of prior courts had found him to be not credible.
We do not find clear error in the district court's conclusion that the evidence established Rex's reliability. Upon de novo review of the totality of the circumstances, we do not find error in the district court's conclusion that the factors supporting the continued detention, along with the alert and indication by Rex, a reliable and well-trained drug detection dog, provided probable cause to search the contents of the rental vehicle. Christensen's assertions concerning the search are without merit.
4. STATEMENTS
Finally, Christensen asserts that the district court erred in not suppressing statements made during a conversation between Christensen and Bruckner in Trooper Townsend's patrol vehicle. Christensen asserts that the circumstances surrounding his conversation with Bruckner amounted to custodial interrogation and that because no Miranda warnings were given, the court should have suppressed them. We disagree.
It is a mixed question of law and fact whether a statement was voluntarily made and whether a custodial interrogation has occurred. State v. Landis, 281 Neb. 139, 794 N.W.2d 151 (2011). The safeguards provided by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. State v. Landis, supra.
In the present case, the district court concluded that Christensen and Bruckner were in custody when they were placed together in Trooper Townsend's patrol vehicle and left alone to observe the canine sniff of the rental vehicle. The State argues on appeal that Christensen and Bruckner were not in custody because they were only temporarily detained pursuant to an investigatory traffic stop. See State v. Landis, supra. We need not resolve this issue, however, because we conclude that resolution of this assignment of error can be accomplished by addressing the interrogation prong of the analysis.
Interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. State v. Bormann, 279 Neb. 320, 777 N.W.2d 829 (2010). Statements made in a conversation initiated by the accused or spontaneously volunteered by the accused are not the result of interrogation. Id.; State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007). An objective standard is applied to determine whether there is interrogation, and the question to be answered is whether a reasonable and disinterested person would conclude that police conduct would likely elicit an incriminating response from the suspect. See State v. Bormann, supra.
In the present case, Trooper Townsend did not take any action that a reasonable and disinterested person would conclude was likely to elicit an incriminating response. Rather, Trooper Townsend placed both Christensen and Bruckner in his patrol vehicle while a canine sniff of the rental vehicle was conducted on the side of the Interstate. Trooper Townsend testified that it was cold outside at the time that he placed Christensen into his patrol vehicle with Bruckner to await the arrival of the canine unit. Until Trooper Downing arrived in the canine unit, there was nowhere else to place Christensen and Bruckner. Trooper Townsend testified that he did not move either Christensen or Bruckner to Trooper Downing's vehicle because it was not State Patrol practice to place suspects in a canine unit.
While Christensen and Bruckner were alone in Trooper Townsend's patrol vehicle, they were not being questioned by anyone. Their conversation was recorded by a recording device in the patrol vehicle. During the conversation, Christensen stated that the reason for Trooper Townsend's suspicion was Bruckner's indications to Trooper Townsend that they had flown from California to Las Vegas and that they were "done" and had to "hope for it to get thrown out because of bullshit." In addition, during the conversation Christensen told Bruckner, "We're probably being recorded right now, so we need to just shut up."
We find no merit to Christensen's assertion that there was an interrogation. He and Bruckner were alone in a patrol vehicle, suspected that they were being recorded, and voluntarily initiated and engaged in conversation with one another. The statements were made in a conversation initiated by Christensen and Bruckner and were spontaneously volunteered. As such, they were not the result of interrogation. See State v. Bormann, supra. This assigned error is without merit.
V. CONCLUSION
We find no merit to Christensen's assertions on appeal. There was no error by the district court in denying the motions to suppress on the basis of Christensen's challenges to the detention, the search, or the voluntariness of statements made during the detention. We affirm.
AFFIRMED.