State v. Petties ( 2021 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. PETTIES
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).
STATE OF NEBRASKA, APPELLEE,
V.
JAMAL T. PETTIES, APPELLANT.
Filed December 21, 2021. No. A-21-301.
Appeal from the District Court for Douglas County: HORACIO J. WHEELOCK, Judge.
Affirmed.
W. Randall Paragas, of Paragas Law Offices, for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.
PIRTLE, Chief Judge, and RIEDMANN and WELCH, Judges.
WELCH, Judge.
INTRODUCTION
Following a stipulated bench trial in the Douglas County District Court, Jamal T. Petties
was convicted of possession of marijuana with the intent to distribute and was sentenced to 18
months’ supervised probation. Petties has appealed challenging the district court’s denial of his
motion to suppress related to the investigative traffic stop and the subsequent searches of his person
and his vehicle. Petties argues that officers did not have a sufficient basis to conduct the stop in
violation of his constitutional rights and evidence obtained should have been suppressed as fruit
of the poisonous tree. For the reasons stated herein, we affirm.
STATEMENT OF FACTS
Prior to the traffic stop which is the subject of the motion to suppress, the Douglas County
Police Department obtained information from a confidential informant (CI) that Petties was
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dealing large quantities of marijuana. After receiving this information, Officer Troy Liebe
conducted an independent investigation and learned that Petties’ criminal history included drug
transactions and firearm possession and that Petties was a known gang member. On the day of the
investigative stop, officers including Officer Liebe and Officer Cortes Clark were conducting
routine probation surveillance in a high crime area and became suspicious of two vehicles parked
outside of a tobacco hut away from the store’s main entrance near the dumpsters.
After identifying one of the occupants as Petties, and as a result of officers’ suspicions that
the individuals in the vehicles were participating in a drug transaction, the officers approached the
vehicles. Officer Liebe noted that Petties, who was the driver of one of the vehicles, began acting
frantically. Officer Liebe unholstered his service weapon and demanded that Petties exit the
vehicle. When Petties exited the vehicle, officers could smell the odor of marijuana coming from
Petties and his vehicle. A search of both Petties and his vehicle uncovered marijuana. Petties was
arrested and charged with possession of marijuana with intent to distribute, a Class IIA felony.
Petties filed a motion to suppress evidence obtained as a result of the stop, seizure,
detention, arrest, and questioning of him. Petties alleged that officers did not have probable cause
to believe a traffic violation occurred or reasonable suspicion that criminal activity had occurred
or was occurring, that the traffic stop was unlawful, that Petties was detained longer than necessary
to effectuate the stop and officers did not have reasonable suspicion to continue or expand the stop,
that officers lacked probable cause or consent to search the vehicle, and that any statements made
by Petties were a result of the unlawful detention.
At the suppression hearing, the issues before the court were narrowed to the stop and search
of Petties and his vehicle. The State called the arresting officers, Officers Liebe and Clark. Officer
Liebe testified that 30 days prior to Petties’ arrest, he was working with a reliable CI who provided
information that Petties was a known drug dealer of large quantities and the CI indicated that he
could likely obtain 2 pounds of marijuana by doing a controlled purchase with Petties. Officer
Liebe testified that, under his direction, this CI had participated in controlled purchases on several
prior occasions. Although Officer Liebe was unable to execute a controlled purchase from Petties
due to time constraints and coordination, he independently corroborated the information provided
by the CI through his own investigation which revealed Petties was a major drug dealer, was a
known “South Family Blood” gang member, had a significant history of dealing drugs and
possessing firearms, and had a criminal history of charges involving possession with intent to
distribute.
Officers Liebe and Clark both testified to the events that gave rise to the arrest of Petties
and the subsequent search. The officers testified that, on the day of Petties’ arrest, they, along with
Officer Jordan Brandt, were conducting surveillance on an unrelated probationer in a high crime
and drug activity area. While surveilling the area, the officers observed a Chevy Impala and a
Dodge Charger pull into a tobacco hut parking lot next to a dumpster. Both officers noted that it
was common for drug deal exchanges to occur in parking lots of gas stations, tobacco huts, and
convenience stores and that it was common for one individual to get out of one vehicle and enter
another vehicle for a very short period of time. The officers then conducted a data check on the
Charger’s license plate number which revealed that it was registered to Petties. The Impala did not
have license plates. Officer Clark recognized Petties’ Charger because he went to high school with
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Petties and he was personally and professionally aware that Petties was involved in gang activity
and was a documented gang member.
As the officers continued to observe the two vehicles, they witnessed the Impala passenger
exit the vehicle and enter Petties’ front passenger seat and remain there for approximately 30 to 60
seconds. At this time, Officer Liebe, based off his training and experience, believed that this action
was indicative of a drug transaction. Officer Liebe testified that the basis for his suspicion arose
from numerous factors including that the cars parked next to each other in a parking lot of a tobacco
hut away from the entrance near the dumpsters, that one individual exited the vehicle and entered
the other briefly, that he received prior information about Petties from a reliable CI, the data check
confirmed that Petties was the owner of the vehicle the individual entered, the events occurred in
a high crime area specifically related to drug deals, and from his training and experience as a police
officer. Based on that information, Officer Liebe stated he reasonably believed a narcotics
exchange was likely occurring and he decided to approach the vehicle to determine what was
happening inside the vehicle. Although Officer Liebe testified that it is possible the behavior could
have been lawful or innocent behavior, he stated that is why he decided to approach the vehicles
and see what was occurring.
Officer Liebe testified that all three officers exited the unmarked police vehicle and
initiated each of their body cameras and microphones on their vests. As officers began to approach
the vehicles with their firearms holstered, the passenger exited Petties’ vehicle and headed back
toward the Impala. As the passenger was walking back toward the Impala, Officer Brandt stopped,
handcuffed, and searched the passenger. Officer Liebe approached the driver side of Petties’
vehicle and, through the vehicle’s tinted window, observed a “wide-eyed” Petties hurriedly
stuffing something down the front of his waistband. Officer Liebe unholstered his gun and ordered
Petties to show his hands and exit the vehicle. Officer Liebe stated that he drew his weapon for
safety reasons because he knew Petties’ history and he was unsure whether Petties was concealing
narcotics or a firearm in his waistband. Officer Liebe opened the car door and when Petties exited
the vehicle, Officer Liebe stated that he could smell the odor of marijuana emanating from Petties
and the vehicle. Thereafter, Petties was placed in handcuffs and Officer Liebe conducted a pat
down of Petties focusing on Petties’ waistband to determine what he had been attempting to
conceal. Officer Liebe asked Petties whether he had marijuana in his groin area and how much he
had stuffed there. Petties responded that he had stuffed about 1 ounce of marijuana into his pants.
Officer Liebe seized $3,784 in cash out of Petties’ pockets. Due to the placement of the marijuana,
Petties was then transported to the Nebraska Precinct Assembly for a strip search. That search
revealed a larger baggie containing 40.79 grams of marijuana. The larger baggie contained nine
smaller baggies which each weighed approximately the same amount. A search of Petties’ vehicle
revealed a freshly rolled blunt.
The passenger, who was also detained at the scene, admitted to having marijuana in his
pocket. After searching the passenger’s pocket, the officer located a package containing marijuana
that was later compared to the packages found on Petties. The marijuana found on the passenger
was similar in weight and packaging to the nine individual packages found on Petties. The defense
did not present any evidence.
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The district court overruled Petties’ motion to suppress. The court considered the two
issues presented: (1) whether the initial stop was lawful and (2) whether the searches of Petties
and his vehicle were lawful. The district court classified the initial stop as a tier-2 encounter, not a
tier-3 arrest, requiring only reasonable suspicion to support the investigatory stop. To that end, the
court found the officers had reasonable suspicion to conduct an investigatory stop in the following
particulars:
First, the officers were surveilling the area and observed . . . Petties in the parking lot at the
“Hut” known to be a high-crime area where drug deals are a known occurrence. Second,
the officers observed that the Chevy Impala had no license plates. State v. Garcia, 302 Neb.
406, 923 N.W.2d 725 (2019) (holding the stop “was based on a reasonable suspicion,
because before they made the stop, the police officers did not see license plates or visible
in-transit tags. The fact that in-transit tags became visible as the police approached the
vehicle on foot does not invalidate the reasonable suspicion that justified the initial traffic
stop.”) Third, the vehicles were parked right next to each other and one person exited the
Chevy Impala, entered the Dodge Charger’s passenger side, and remained for
approximately 30 seconds and exited the Dodge Charger. The articulated behavior is highly
suspicious of drug activity. Fourth, officers conducted a data check on license plate . . . and
the results of the data check revealed that . . . Petties was the registered owner of the Dodge
Charger. Fifth, Officer Clark recognized . . . Petties’ vehicle. Officer Clark went to high
school with . . . Petties and they grew up together. Officer Clark knows . . . Petties to be
involved in gang activities and he knows him professionally as a documented gang
member. Sixth, Officer Liebe testified that thirty days prior to June 5, 2019[,] he was
working with a [CI] who informed him that . . . Petties was a known drug dealer. The [CI]
informed Officer Liebe that . . . Petties dealt with large quantities of marijuana and he felt
confident that . . . Petties could sell him upwards of two pounds of marijuana. After
speaking with the [CI,] Officer Liebe conducted his own investigation on . . . Petties.
Seventh, Officer Liebe’s independent investigation corroborated the [CI’s] articulation that
. . . [Petties] is a major drug dealer. Officer Liebe corroborated that . . . Petties has a
significant history of dealing drugs and possessing firearms. Specifically, Officer Liebe’s
research concluded that . . . Petties has a criminal history of possession with intent to
distribute controlled substances. Officer Liebe gleaned from his independent investigation
that . . . Petties was a known “South Family Blood” gang member. Eighth, when Officer
Liebe approached the driver’s side of the Dodge Charger . . . Petties looked at Officer Liebe
wide eyed and frantically started stuffing something down the front of his pants. At the
time, Officer Liebe was unaware as to what . . . Petties was stuffing down his pants.
Detective Liebe gave a loud verbal command for . . . Petties to stop, but he did not stop.
Officer Liebe then drew his service firearm as did Officer Clark who was unable to see . . .
Petties from his vantage point. Ninth, when Officer Liebe was removing . . . Petties from
the vehicle he smelled an odor of marijuana emanating from the vehicle. The Court
examines these factors individually and together, and determines that they do rise to a
showing of reasonable suspicion on the totality of the circumstances, which include . . .
Petties’ prior drug charges, criminal history, the location of the parked vehicles in a known
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area of crime and drug activity, and the behavior of the parties the officers had reasonable
suspicion, based upon sufficient, articulable facts, that . . . Petties was involved in a drug
transaction, despite the fact that no law enforcement officer actually observed the
controlled substance or money changing hands.
The court then reviewed the searches of Petties and his vehicle and determined that the
totality of the circumstances led Officer Liebe to objectively and reasonably believe that, due to
Petties’ furtive movements, a pat down of Petties was necessary for officer safety. Further, the
court found that, based upon the smell of marijuana emanating from Petties and his vehicle, and
from Petties’ frantic attempt to conceal something in his pants, probable cause existed that the
vehicle contained evidence or contraband. Therefore, the court determined that the search met the
requirement under the automobile and plain view exceptions to the search warrant requirement.
After finding that the initial stop of the vehicle was supported by reasonable suspicion, and
that the pat down of Petties and search of his vehicle were lawful under exceptions to the warrant
requirement, the court overruled Petties’ motion to suppress. The case proceeded to a stipulated
bench trial and Petties preserved the issues raised in his motion to suppress. The district court
found Petties guilty of possession of marijuana with the intent to distribute. Thereafter, the district
court sentenced Petties to 18 months’ supervised probation and ordered him to surrender the
money recovered by law enforcement at the time of his arrest. Petties timely appeals to this court.
ASSIGNMENT OF ERROR
Petties’ sole assignment of error is that the district court erred in denying his motion to
suppress because evidence was obtained in violation of his constitutional rights requiring
suppression of all evidence under the fruit of the poisonous tree doctrine.
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. State v. Petsch,
300 Neb. 401, 914 N.W.2d 448 (2018). Regarding historical facts, an appellate court reviews the
trial court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment
protection is a question of law that an appellate court reviews independently of the trial court’s
determination. State v. Petsch, supra.The ultimate determinations of reasonable suspicion to conduct an investigatory stop and
probable cause to perform a warrantless search 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. Montoya, 29 Neb. App. 563, 957 N.W.2d 190 (2021).
When a motion to suppress is denied pretrial and again during trial on renewed objection,
the appellate court considers all evidence, both from trial and from the hearing on motion to
suppress. State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).
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ANALYSIS
Petties contends that officers did not have reasonable articulable suspicion prior to
initiating the stop and, consequently, the evidence obtained therefrom should have been
suppressed. He contends that
[t]he moment [the officers] chose to abandon their scheduled duties and approach [Petties’]
car, the officers lacked the reasonable suspicion necessary to create the conditions that
would make a reasonable person feel unable to freely leave the situation and violated
[Petties’] constitutional rights from unreasonable search and seizure. Because the approach
violated [Petties’] rights, the Fruit of the Poisonous Tree Doctrine mandates all evidence
gathered following the violation be suppressed.
Brief for appellant at 6.
Both the Fourth Amendment to the U.S. Constitution and Neb. Const. art. I, § 7, guarantee
against unreasonable searches and seizures. State v. Garcia, supra. The ultimate touchstone is one
of reasonableness. Id.Recently, in State v. Thomas, 308 Neb. 312, 319-20, 953 N.W.2d 793, 801 (2021), the
Nebraska Supreme Court reiterated the distinctions between the three tiers of police-citizen
encounters:
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.
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. This type of contact is outside the realm of Fourth Amendment
protection.
The second tier, the investigative stop, is limited to brief, nonintrusive detention
during a frisk for weapons or preliminary questioning. It is an intermediate response. A
second-tier encounter is considered a “seizure” sufficient to invoke Fourth Amendment
safeguards; but because of its less intrusive character, it requires only that the stopping
officer have specific and articulable facts sufficient to give rise to reasonable suspicion that
a person has committed or is committing a crime.
The third tier of police-citizen encounters, arrests, is characterized by highly
intrusive or lengthy search or detention. The Fourth Amendment requires that an arrest be
justified by probable cause to believe that a person has committed or is committing a crime.
Petties first argues that even if the officers’ initial stop and investigation of Petties was a
tier-two encounter, the police lacked reasonable suspicion to do so. He then argues that, because
the police lacked reasonable suspicion to conduct the initial investigation, all evidence
subsequently discovered must be suppressed. We disagree.
The very purpose of investigatory stops is to clarify ambiguous situations. State v.
Morrissey, 19 Neb. App. 590, 810 N.W.2d 195 (2012). Even if it is equally probable that a vehicle
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or its occupants are innocent of any wrongdoing, police must be permitted to act before their
reasonable belief is verified by escape or fruition of the harm it is their duty to prevent. Id. In some
circumstances, even wholly lawful conduct may justify the suspicion that criminal activity is afoot.
State v. Bowers, 250 Neb. 151, 548 N.W.2d 725 (1996); State v. Morrissey, supra.
A police officer may in appropriate circumstances and in an appropriate manner approach
a person for purposes of investigating possible criminal behavior even though there is no probable
cause to make an arrest. State v. Thomas, 240 Neb. 545, 483 N.W.2d 527 (1992). Police can
constitutionally stop and briefly detain a person for investigative purposes if the police have a
reasonable suspicion, supported by articulable facts, that criminal activity exists, even if probable
cause is lacking under the Fourth Amendment. State v. Thomas, supra. A reliable informant’s tip
to police concerning criminal activity may furnish a basis for reasonable suspicion supporting a
Terry stop. State v. Thomas, supra.
The district court found that police officers had reasonable suspicion to conduct a Terry
stop after observing the vehicles parked together and surmising they may be involved in a drug
deal. More specifically, the district court set forth a list of factors which supported a finding of
reasonable suspicion to conduct the initial stop, investigation, and short detention of Petties
including information police obtained from a CI about Petties selling large quantities of drugs,
information police obtained concerning Petties’ prior criminal history and associated gang
involvement, the police’s prior knowledge of drug related activity in this particular high crime area
conducted in the manner in which the vehicles were positioned, police identification of Petties’
vehicle being present and positioned in a manner consistent with furthering a drug deal, and
Petties’ vehicle being parked next to a vehicle with no license plates. We agree with the district
court that the totality of the circumstances supports a finding that police had reasonable suspicion
to approach Petties and perform a brief stop to investigate possible criminal behavior on the facts
of this record. Petties first argument fails.
Petties next argues that even if the facts supported a brief investigatory tier-two stop, the
stop quickly ripened into a tier-three encounter requiring probable cause to continue the police
encounter. Petties argues that because police did not have probable cause to search Petties or his
vehicle at the time of the encounter, the evidence discovered thereafter should be suppressed.
The focus of Petties’ argument stems from Officer Liebe’s removal of his revolver shortly
after he first encountered Petties. More specifically, after Liebe first approached Petties’ driver’s
side window and observed Petties stuffing something down his pants, he unholstered his gun and
ordered Petties to stop, show his hands, and exit the vehicle. To these facts, Petties specifically
argues:
Even if the Court were to find that either there was reasonable suspicion at the time the
officers approached Appellant or that the encounter was first-tier despite Brandt’s clear
command to “hang tight,” [Savage’s] Fourth Amendment rights were violated again when
(1) officers drawing their guns elevated the encounter to a third-tier arrest and (2) officers
lacked probable cause to believe a crime had been committed at the moment weapons were
drawn.
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Brief for appellant at 10. Petties’ argument is an extension of the Nebraska Supreme Court’s
statement in State v. Shiffermiller, 302 Neb. 245, 922 N.W.2d 763 (2019), in which the court stated
that detention may evolve into a de facto arrest if unreasonable force is used or if a stop lasts for
an unreasonable amount of time. However, in Shiffermiller, the court also stated:
We have noted that there is often a gray area between investigatory detentions and arrests.
In State v. Wells, [290 Neb. 186, 859 N.W.2d 316 (2015),] we stated that whether a
detention is reasonable under the circumstances depends on a multitude of factors,
including the factors set forth in United States v. Jones, [759 F.2d 633 (8th Cir. 1985),] by
the Eighth Circuit. These factors include “the number of officers and police cars involved,
the nature of the crime and whether there is reason to believe the suspect might be armed,
the strength of the officers’ articulable, objective suspicions, the erratic behavior of or
suspicious movements by the persons under observation, and the need for immediate action
by the officers and lack of opportunity for them to have made the stop in less threatening
circumstances.”
302 Neb. at 255, 922 N.W.2d at 773-74.
But in State v. Thomas, 308 Neb. 312, 322-26, 953 N.W.2d 793, 802-04 (2021), the
Nebraska Supreme Court addressed a similar contention stating:
While not discussing the type of felony traffic stop procedures here presented, we
have similarly found seizures to be second-tier encounters despite intrusions going
somewhat beyond a typical investigatory stop, when the facts justified a reasonable belief
that an officer or public safety was in danger. In State v. Wells, [290 Neb. 186, 859 N.W.2d
316 (2015),] we explained that the use of handcuffs does not transform a tier-two encounter
into a tier-three encounter when using handcuffs is reasonably necessary to protect officer
safety during an investigative stop, but that using handcuffs will transform the tier-two
encounter into tier-three encounter when the facts do not justify a belief that the suspect
may be dangerous.
We said that, generally, if unreasonable force is used or if it lasts for an
unreasonably long period of time, then an investigatory detention may turn into a de facto
arrest. Whether a detention was reasonable under the circumstances depends on a multitude
of factors, including (1) the number of officers and police vehicles involved; (2) the nature
of the crime and whether there is a reason to believe the suspect might be armed; (3) the
strength of the officers’ articulable, objective suspicions; (4) the erratic behavior of or
suspicious movements by the persons under observation; and (5) the need for immediate
action by the officers and lack of opportunity for them to have made the stop in less
threatening circumstances. In Wells, noting the nature of the suspected crime of narcotics
trafficking and that the defendant was digging in his pocket and concealing his right arm,
we found that the officers’ decision to gain control of the defendant’s arm and handcuff
him for a short time while conducting the investigation was a reasonable precaution and
did not escalate the encounter to a tier three.
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Similarly, in State v. Shiffermiller, we held that the use of handcuffs and a 30-to-40
minute investigation of a reported assault did not amount to third-tier encounter because
this initial detention was not unreasonable, highly intrusive, or excessive in length. . . .
....
The 10th Circuit Court of Appeals has analyzed on multiple occasions when
forceful techniques used by police officers transform a second-tier encounter into a
third-tier encounter, and its comparisons are helpful in this case. In U.S. v. Shareef, [100
F.3d 1491 (10th Cir. 1996),] the court held that a display of firearms, removing occupants
from three stopped vehicles, and frisking and handcuffing them did not transform the
second-tier encounter into a third-tier encounter because of the officers’ reasonable belief
that one of the motorists was armed and dangerous. Similarly, in U.S. v. Perdue, [8 F.3d
1455 (10th Cir. 1993),] the court held that the fact that two officers removed two occupants
from a vehicle at gunpoint in a remote area and made them lie on the ground did not
transform the second-tier encounter into a third-tier encounter, where officers reasonably
believed occupants were armed and dangerous.
....
We hold that where the facts available to a law enforcement officer would warrant
a person of reasonable caution in the belief that an occupant of a vehicle is armed and
dangerous and that the use of forceful techniques, including blocking the vehicle and
displaying firearms when ordering the occupants out of the vehicle, are reasonably
necessary to protect the officer’s personal safety, the use of such techniques does not
necessarily transform a second-tier encounter into a third-tier encounter. Such techniques,
designated here as a “felony traffic stop,” may under the circumstances be the least
intrusive means reasonably available to verify or dispel the officer’s suspicion.
We believe the principles articulated in State v. Thomas are applicable here. As we
previously stated, police had reasonable suspicion to conduct a Terry stop of Petties in the parking
lot. Upon approaching the driver’s side window while Petties’ passenger exited, Officer Liebe
observed Petties’ furtive movements in the vehicle coupled with his observation of Petties stuffing
something in his pants. Officer Liebe, while withdrawing his weapon, ordered Petties to stop, show
his hands, and exit the vehicle. We find that Officer Liebe’s withdrawal of his weapon, which
occurred within seconds of approaching the vehicle, was based upon a reasonable belief that Petties
could be armed and dangerous and was reasonably necessary to protect the officers’ personal
safety. As such, the rather immediate reactions by police did not transform this second-tier
encounter to a third-tier encounter. After vacating his vehicle, with Officer Liebe’s weapon drawn,
Petties admitted that the action Officer Liebe observed was Petties stuffing marijuana in his pants.
This discovery was made during a second-tier encounter. Petties does not separately argue that the
officers’ search of his vehicle following the officers’ detection of the odor of marijuana emanating
from the car was unlawful so we do not address it. See State v. Olbricht, 294 Neb. 974, 885 N.W.2d
699 (2016) (alleged error must be both specifically assigned and specifically argued in brief of
party asserting error to be considered by appellate court).
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CONCLUSION
In sum, we agree with that the district court’s factual finding that the initial stop in this case
was an investigatory tier-two stop requiring reasonable suspicion. Under our de novo review, we
find that there was reasonable suspicion to support the initial tier-two stop. Further, because the
initial stop was not transformed to a tier-three encounter at the time Petties admitted he stuffed
marijuana down his pants, we hold the court did not err in overruling Petties’ motion to suppress.
Accordingly, we affirm the district court’s denial of Petties’ motion to suppress, his conviction,
and his sentence.
AFFIRMED.
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