State v. Andera , 307 Neb. 686 ( 2020 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    12/04/2020 08:08 AM CST
    - 686 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. ANDERA
    Cite as 
    307 Neb. 686
    State of Nebraska, appellee, v.
    Brandi R. Andera, appellant.
    ___ N.W.2d ___
    Filed October 30, 2020.   No. S-19-1205.
    1. Constitutional Law: Search and Seizure: Motions to Suppress:
    Appeal and Error. 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. Regarding histori-
    cal facts, the 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 the appellate court reviews indepen-
    dently of the trial court’s determination.
    2. Search and Seizure: Standing. A passenger who has a property interest
    in a container within the vehicle has standing to challenge the search of
    that container.
    3. Constitutional Law: Search and Seizure. Searches conducted outside
    the judicial process, without prior approval by a judge or magistrate,
    are per se unreasonable under the Fourth Amendment to the U.S.
    Constitution, subject only to a few specifically established and well-
    delineated exceptions.
    4. Warrantless Searches. The warrantless search exceptions recognized by
    the Nebraska Supreme Court include: (1) searches undertaken with con-
    sent, (2) searches under exigent circumstances, (3) inventory searches,
    (4) searches of evidence in plain view, and (5) searches incident to a
    valid arrest.
    5. Warrantless Searches: Police Officers and Sheriffs. A warrantless
    search is valid when based upon consent of a third party whom the
    police, at the time of the search, reasonably believed possessed author-
    ity to consent to a search of the property, even if it is later demonstrated
    that the individual did not possess such authority.
    6. Search and Seizure: Police Officers and Sheriffs. The search of
    property based on consent by a third party must be judged against
    - 687 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. ANDERA
    Cite as 
    307 Neb. 686
    an objective standard: Would the facts available to the officer at the
    moment warrant a person of reasonable caution in the belief that the
    consenting party had authority over the property?
    7. Warrantless Searches: Police Officers and Sheriffs. A warrantless sei-
    zure is justified under the plain view doctrine if (1) a law enforcement
    officer has a legal right to be in the place from which an object subject
    to seizure could be plainly viewed, (2) the seized object’s incriminating
    nature is immediately apparent, and (3) the officer has a lawful right of
    access to the seized object itself.
    Appeal from the District Court for Douglas County: Marlon
    A. Polk, Judge. Affirmed.
    Thomas C. Riley, Douglas County Public Defender, and
    April M. Lucas for appellant.
    Douglas J. Peterson, Attorney General, and Jordan Osborne
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Cassel, J.
    I. INTRODUCTION
    Brandi R. Andera appeals her drug possession conviction
    following a stipulated bench trial. During a traffic stop, a
    police officer obtained the female driver’s consent to search the
    vehicle and found methamphetamine in a purse located on the
    front passenger floorboard. Andera, the front seat passenger,
    challenges the search, because she owned the purse and did not
    consent to its search. Because the officer reasonably believed
    that the driver could have owned the purse and the officer
    found the contraband in plain view upon opening the wallet
    that contained Andera’s identification, we affirm.
    II. BACKGROUND
    Andera was convicted of one count of possession of a
    controlled substance after a female police officer found meth-
    amphetamine during a warrantless search of Andera’s purse
    - 688 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. ANDERA
    Cite as 
    307 Neb. 686
    during a traffic stop. The officer initiated the stop because the
    vehicle did not have license plates.
    During the traffic stop, the officer requested identification
    from Andera, the female driver, and the rear seat passenger.
    Andera and the driver complied, but the rear passenger failed
    to provide accurate identifying information. The officer testi-
    fied that the driver provided a driver’s license and the rear
    passenger gave verbal identification (name and date of birth).
    However, the officer could not recall whether Andera provided
    a driver’s license or gave verbal identification.
    Suspecting illicit activity, the officer obtained consent from
    the driver to search the vehicle. When the driver gave consent,
    she was located outside the vehicle near the trunk. At that time,
    Andera and the rear passenger remained in the vehicle out of
    earshot, but neither Andera nor the rear passenger objected
    once they were informed of the impending search.
    After removing the three vehicle occupants, the officer
    searched the vehicle’s passenger compartment. The officer
    discovered a single purse on the front passenger floorboard. It
    was the only handbag in the vehicle. The officer did not ask the
    occupants who owned the purse. The officer testified that at the
    time, she was not certain to whom the purse belonged. But she
    answered affirmatively when asked: “So in your mind, it could
    have been the driver’s purse?”
    The officer searched the purse and immediately discovered
    a needle. Continuing her search to a wallet located inside the
    purse, the officer discovered a small bag of methamphetamine
    and Andera’s Social Security and debit cards. The record does
    not establish that the identification cards were discovered prior
    to the methamphetamine. When asked at the scene, Andera
    claimed the contraband was not hers. Nonetheless, she was
    charged with possession of a controlled substance.
    Andera filed a motion to suppress the fruits of the war-
    rantless search, claiming it violated her Fourth Amendment
    protections against unlawful searches and seizures because
    - 689 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. ANDERA
    Cite as 
    307 Neb. 686
    she did not consent to the search of her purse. At the conclu-
    sion of the evidentiary hearing, the district court overruled
    her motion.
    In overruling the motion, the court made three findings on
    the record. First, the search was based on “the consent of the
    driver to search the vehicle.” Second, “it [was] reasonable for
    [the officer] to believe, [as] she testified, that the purse could
    have been the driver’s.” Third, “[the officer] located a syringe
    initially upon searching the purse, prior to discovering any
    venue information that may give indicia of ownership of the
    purse to someone [else].”
    In due course, the matter proceeded to the stipulated bench
    trial, and shortly thereafter, the court found Andera guilty.
    After the court imposed a sentence of probation, Andera filed a
    timely appeal. We moved the appeal to our docket. 1
    III. ASSIGNMENT OF ERROR
    Andera assigns that the district court erred in overruling her
    motion to suppress.
    IV. STANDARD OF REVIEW
    [1] In reviewing a trial court’s ruling on a motion to sup-
    press based on a claimed violation of the Fourth Amendment,
    we apply a two-part standard of review. Regarding historical
    facts, we review the trial court’s findings for clear error. But
    whether those facts trigger or violate Fourth Amendment pro-
    tections is a question of law that we review independently of
    the trial court’s determination. 2
    V. ANALYSIS
    1. Standing
    [2] Andera does not challenge the validity of the officer’s
    stopping the vehicle or the search of the vehicle’s passenger
    1
    See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
    2
    State v. Shiffermiller, 
    302 Neb. 245
    , 
    922 N.W.2d 763
    (2019).
    - 690 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. ANDERA
    Cite as 
    307 Neb. 686
    compartment; instead, she challenges the search of her purse.
    It is well established that a traffic violation, no matter how
    minor, creates probable cause to stop the driver of a vehicle. 3
    Additionally, a passenger does not have standing to challenge
    a vehicle search where she has neither a property nor a posses-
    sory interest in the automobile. 4 However, a passenger who has
    a property interest in a container within the vehicle has stand-
    ing to challenge the search of that container. 5 Because Andera
    has a property interest in the purse that the officer searched,
    she has standing to challenge its search.
    2. Search of Purse
    [3,4] Searches conducted outside the judicial process, with-
    out prior approval by a judge or magistrate, are per se unreason-
    able under the Fourth Amendment to the U.S. Constitution, sub-
    ject only to a few specifically established and well-­delineated
    exceptions. 6 The warrantless search exceptions recognized by
    the Nebraska Supreme Court include: (1) searches undertaken
    with consent, (2) searches under exigent circumstances, (3)
    inventory searches, (4) searches of evidence in plain view, and
    (5) searches incident to a valid arrest. 7
    The officer who searched Andera’s purse relied on the con-
    sent of the driver to conduct the warrantless search. However,
    the driver did not own the purse and Andera never consented to
    the search. Therefore, we must determine if the consent excep-
    tion nonetheless applies to the search of the purse. We then
    address the legality of the discovery of the contraband within
    the purse.
    3
    State v. Lee, 
    265 Neb. 663
    , 
    658 N.W.2d 669
    (2003).
    4
    See Rakas v. Illinois, 
    439 U.S. 128
    , 
    99 S. Ct. 421
    , 
    58 L. Ed. 2d 387
        (1978).
    5
    See State v. Konfrst, 
    251 Neb. 214
    , 
    556 N.W.2d 250
    (1996).
    6
    State v. Wells, 
    290 Neb. 186
    , 
    859 N.W.2d 316
    (2015).
    7
    Id. - 691 -
                 Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. ANDERA
    Cite as 
    307 Neb. 686
    (a) Consent to Search Purse
    The right to be free from unreasonable searches and seizures
    may be waived by the consent of the citizen. 8 When the pros-
    ecution seeks to justify a warrantless search by proof of vol-
    untary consent, it is not limited to proof that the consent was
    given by the defendant, but may show that the permission to
    search was obtained from a third party who possessed common
    authority over or other sufficient relationship to the premises or
    effects sought to be inspected. 9
    [5,6] Furthermore, a warrantless search is valid when based
    upon consent of a third party whom the police, at the time of
    the search, reasonably believed possessed authority to consent
    to a search of the property, even if it is later demonstrated that
    the individual did not possess such authority. 10 The search of
    property based on consent by a third party must “‘be judged
    against an objective standard: would the facts available to the
    officer at the moment . . . “warrant a man of reasonable cau-
    tion in the belief”’ that the consenting party had authority over
    the [property]?” 11
    Although the officer who searched Andera’s purse testified
    that she was not certain who the purse belonged to when she
    initiated the search, she reasonably believed that the purse
    could have belonged to the female driver. Other courts have
    found that officers can reasonably believe that a bag located
    on the floorboard of the front passenger seat is the property
    of the driver because the bag is within easy reach of the
    driver and drivers do not ordinarily place their bags on the
    driver’s-side floorboard. 12
    8
    Konfrst, supra note 5.
    9
    Id. 10
         Id.
    11
    
         See Illinois v. Rodriguez, 
    497 U.S. 177
    , 188, 
    110 S. Ct. 2793
    , 
    111 L. Ed. 2d
    148 (1990) (quoting Terry v. Ohio, 
    392 U.S. 1
    , 
    88 S. Ct. 1868
    , 20 L.
    Ed. 2d 889 (1968)).
    12
    See, e.g., U.S. v. Barber, 
    777 F.3d 1303
    (11th Cir. 2015).
    - 692 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. ANDERA
    Cite as 
    307 Neb. 686
    Andera argues that we should apply State v. Caniglia 13 to
    determine if the officer reasonably believed that the driver
    could have owned the purse. There, the Nebraska Court of
    Appeals ruled that a warrantless search of a makeup purse hid-
    den under the passenger seat violated the Fourth Amendment,
    because a male driver could not give consent to the search. 14
    The male driver did not have common authority or joint con-
    trol over a female passenger’s makeup purse. 15 The Court of
    Appeals reasoned that the officer could not reasonably have
    believed the female passenger’s makeup purse was the property
    of the male driver. 16
    Andera’s case is distinguishable from Caniglia. Here, the
    driver and passenger were both female. Moreover, the purse
    was located on the floorboard of the passenger seat, within the
    driver’s reach, and not hidden under the passenger seat. We
    are not persuaded that the reasoning in Caniglia applies here.
    Thus, Andera’s argument lacks merit. 17
    Because the officer reasonably believed the purse could
    have belonged to the driver, the officer was justified in rely-
    ing on the driver’s consent to search Andera’s purse. However,
    the driver’s consent was only a valid justification up until
    the moment the officer determined that the purse belonged
    to Andera. Thereafter, the driver’s consent would have been
    insufficient to extend the search of the purse.
    The district court seemed to rely upon the officer’s discovery
    of the needle to justify the seizure of the methamphetamine.
    But another doctrine supported the officer’s action.
    (b) Plain View Doctrine
    [7] It is well established that under certain circumstances,
    the police may seize evidence in plain view without a
    13
    State v. Caniglia, 
    1 Neb. Ct. App. 730
    , 
    510 N.W.2d 372
    (1993).
    14
    See
    id. 15
         See
    id. 16
         See
    id. 17
         See
    id. - 693 -
                 Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. ANDERA
    Cite as 
    307 Neb. 686
    warrant. 18 Here, we are not concerned with the situation in
    which there has been no Fourth Amendment search at all,
    which encompasses those circumstances in which an obser-
    vation is made by a police officer without a prior physical
    intrusion into a constitutionally protected area. 19 The plain
    view doctrine, which applies here, serves to supplement a
    prior justification for a search—such as consent—and per-
    mits the warrantless seizure. 20 Of course, the extension of the
    original justification is legitimate only where it is immediately
    apparent to the police that they have evidence before them;
    the plain view doctrine may not be used to extend a general
    exploratory search from one object to another until some-
    thing incriminating at last emerges. 21 Therefore, a warrantless
    seizure is justified under the plain view doctrine if (1) a law
    enforcement officer has a legal right to be in the place from
    which an object subject to seizure could be plainly viewed,
    (2) the seized object’s incriminating nature is immediately
    apparent, and (3) the officer has a lawful right of access to the
    seized object itself. 22
    Here, the officer lawfully seized the evidence of metham-
    phetamine from Andera’s purse under the plain view doctrine.
    The officer’s search was already justified by the consent of
    the driver, and the officer had a legal right to be looking in
    the wallet. She did not discover the true ownership of the
    purse until the wallet was already opened. Once the officer
    saw the bag of methamphetamine, its contents became imme-
    diately apparent in correlation with the previously discovered
    needle and the officer could lawfully access and seize the
    18
    Coolidge v. New Hampshire, 
    403 U.S. 443
    , 
    91 S. Ct. 2022
    , 
    29 L. Ed. 2d 564
    (1971).
    19
    See 1 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth
    Amendment § 2.2(a) at 621 (6th ed. 2020) (discussing “‘open field’ or
    similar unprotected area”).
    20
    See 1 LaFave, supra note 19.
    21
    Id. 22
         State v. Shurter, 
    238 Neb. 54
    , 
    468 N.W.2d 628
    (1991).
    - 694 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. ANDERA
    Cite as 
    307 Neb. 686
    methamphetamine. Thus, the officer’s seizure was lawful under
    the plain view doctrine.
    VI. CONCLUSION
    The driver’s consent validated the officer’s warrant-
    less search of Andera’s purse because the officer reasonably
    believed the purse could have belonged to the driver. The plain
    view doctrine justified the subsequent seizure of methamphet-
    amine from Andera’s wallet. Andera’s Fourth Amendment pro-
    tections against unreasonable searches and seizures were not
    violated. Because the district court did not err in overruling
    Andera’s motion to suppress, we affirm the judgment of the
    district court.
    Affirmed.