Heavican, C.J.
Aron D. Wells, Sr., was convicted in the district court for Lancaster County, Nebraska, of one count of third degree assault of an officer and one count of possession of a controlled substance. Wells alleges that the court erred in overruling his motion to suppress evidence and that there was insufficient evidence to sustain a conviction of assault on an officer. We conclude that the district court did not err in denying Wells' motion to suppress and that there was sufficient evidence to support a conviction.
On January 13, 2012, investigators Timothy Cronin and Scott Parker, police officers serving on the Lincoln/Lancaster County drug task force, were conducting surveillance in Lincoln, Nebraska. The investigators were wearing plain clothes and were in an unmarked car in the parking lot of a local fast-food restaurant located on the corner of 13th and E Streets. Cronin described the area immediately surrounding 13th and E Streets as the "epicenter of narcotics" in Lincoln. Cronin testified that his opinion was based on numerous narcotics arrests made in that area, interviews from confidential informants, "proffer interview reports," police intelligence reports, and results of the police department's undercover controlled substances purchase operations.
The investigators were positioned in the parking lot so that they could observe activity occurring at a gas station and convenience
Over the course of 10 minutes, Cronin and Parker observed "five to six" people approach the driver's side front window of the Buick, stay for "[j]ust a matter of seconds," and then leave. Cronin could not tell whether the window was down, but he assumed it was down based on how the individuals interacted with the driver. Cronin did not observe anyone carrying anything to the car or carrying anything after leaving the car. Based on what he observed, Cronin did not get the impression that the individuals approaching the car were there to shop at the convenience store. Cronin suspected the driver of selling narcotics and explained that based on his experience and training, it was common for drugs to be sold from vehicles either by the potential buyer or seller contacting the driver at a car window or by the driver's having the buyer or seller enter the car, driving the car around the block, and then dropping off the buyer or seller.
Cronin recognized one of the individuals that approached the Buick as Wells. Cronin had had numerous contacts with Wells and had previously arrested Wells on a drug offense. After Wells walked away from the Buick, the investigators observed Wells flag down a Ford Contour driving eastbound on E Street. The Ford stopped, and Wells had a 10- to 15-second conversation with the two occupants of the car. Wells pointed to a nearby parking lot. The Ford drove to the parking lot, and Wells began to walk toward the parking lot. The investigators drove their unmarked car to that parking lot and parked 10 to 20 feet away from the Ford.
The investigators approached the Ford with their badges out and service weapons visible. Cronin observed that Wells was in the back seat on the passenger side of the Ford. Cronin made eye contact with Wells as Cronin neared the rear passenger door. Cronin recognized the driver of the Ford as a known drug trafficker/user, because the driver was easily recognizable by his facial tattoos. As the investigators approached the car, Cronin testified that he saw Wells digging into Wells' right pocket and that Wells' arm appeared to be under his jacket. Cronin testified that he "was very concerned [Wells] was either retrieving or hiding a weapon, or hiding narcotics on his person." When Cronin arrived at the car, Wells' arm was still underneath his jacket. Cronin opened the door, grabbed control of Wells' arm, and pulled Wells out of the car.
After Wells was removed from the car, Cronin placed him in handcuffs. Cronin testified that he asked Wells "if he had anything on him" and that Wells replied he did not. Cronin initially testified that he "asked him if [he] could search him" and that Wells replied that he could. Cronin later testified that he asked Wells if he "could pat him down." Cronin then "began doing a pat search and search of his pockets where [Wells] was digging at." Cronin put his fingers into a coin pocket on the right side of Wells' pants and felt a plastic baggie. Cronin could not tell if there was anything in the baggie, but suspected it might contain a controlled substance.
After Wells was subdued, Cronin searched Wells' coin pocket and discovered baggies of crack cocaine and marijuana. Wells was not charged in connection with the marijuana. At trial, Wells stipulated that the other baggie did indeed contain crack cocaine. According to a police officer who arrived after the altercation occurred, Wells told that officer that Cronin had punched him and that Cronin did not have probable cause to search Wells.
Wells was taken to the hospital to receive treatment for his injuries. After the altercation with Wells, Cronin had a small cut on his hand and went to the hospital to receive treatment as well. Cronin testified that while they were both at the hospital, Wells apologized for kicking Cronin. Cronin stated that he did not prompt Wells to speak to him and that he did not ask Wells any questions.
Wells' testimony at trial presented a different version of the events. Wells testified that he flagged down the Ford in the street to ask the driver for a ride. According to Wells, the driver said that he would give Wells a ride, but he needed to clean out the back seat of his car, and that that was the reason why the Ford had pulled into the parking lot. Wells testified that while he was in the back seat, Cronin came up to the car and pulled Wells out. After being placed in handcuffs, Cronin asked Wells if he could search him and Wells stated that he said no. Wells also explained in his testimony that based on how he was positioned against the car, it would have been impossible for him to kick Cronin the way Cronin alleged. Wells admitted that he did pull away from Cronin while he was being searched, but that he never tried to fight Cronin. Instead, according to Wells, Cronin punched him in the face, put him in a choke hold, and threw him to the ground. Wells also denied that while at the hospital, he apologized to Cronin for kicking him. On cross-examination, Wells admitted to having crack cocaine in his pocket and admitted to using crack cocaine before the incident. Wells estimated that he probably smoked the crack cocaine 30 minutes before his contact with the investigators.
At trial, Wells filed a motion to suppress, seeking an order to suppress all evidence seized from him on January 13, 2012. Making essentially the same argument Wells now makes on appeal, he argued that Cronin's initial detention or arrest of Wells was an illegal seizure under the Fourth Amendment and that Cronin's warrantless search of Wells constituted an illegal search under the Fourth Amendment. On November 19, 2013, the district court overruled Wells' motion to suppress. The district court noted that it "found Cronin's testimony to be credible, both as it respected the area of 13th and `E' Streets generally, and as it respected the events of January 13, 201[2]."
As to the initial detention, the district court found Cronin's detention of Wells to be a valid Terry stop, determining that the investigators had reasonable suspicion to believe Wells was engaged in suspicious activity. Further, the court found that "[u]nder the circumstances, Cronin was
Regarding the search, the district court stated that it did not find Wells' testimony that he did not give consent to Cronin to be credible. The court concluded that Wells did initially give consent for Cronin to search Wells. The district court further concluded that Cronin's discovery of the plastic baggie, combined with Wells' resistance in response, gave Cronin probable cause to search further after Wells withdrew his consent. Therefore, the subsequent search of Wells, after he withdrew consent, was supported by probable cause and did not violate the Fourth Amendment.
Wells was charged with one count of third degree assault of an officer and one count of possession of a controlled substance. At a bench trial on January 24, 2014, the district court found Wells guilty of both charges. On March 26, Wells was sentenced to 12 to 30 months' imprisonment for the first count and 12 to 18 months' imprisonment for the second count, with the sentences to be served consecutively. Wells timely filed a notice of appeal on April 14.
Wells assigns as error that (1) the court erred in overruling his motion to suppress and (2) the court erred in finding him guilty of the offense of third degree assault on an officer because insufficient evidence existed to support said conviction.
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.
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, viewed and construed most favorably to the State, is sufficient to support the conviction.
Wells assigns that the trial court erred in overruling his motion to suppress. At trial, Wells sought to exclude evidence gathered by Cronin on January 13, 2012, on the ground that it was obtained in violation of the Fourth Amendment. The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution guarantee against unreasonable search and seizure. Evidence obtained as the fruit of an illegal search or seizure is inadmissible in a state prosecution and must be excluded.
To determine whether an encounter between an officer and a citizen reaches the level of a seizure under the Fourth Amendment to the U.S. Constitution, an appellate court employs the analysis set forth in State v. Van Ackeren,
Wells argues that Cronin's use of handcuffs transformed an investigatory detention into a de facto arrest. When conducting an investigatory stop, an officer must employ "the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time."
This court has not discussed under what circumstances the use of handcuffs would transform an investigatory detention into a custodial arrest. The use of handcuffs has been approved when it was reasonably necessary to protect officer safety during an investigative stop.
But the use of handcuffs may not be justified when the facts do not justify a belief that the suspect may be dangerous. In State v. Williams,
Whether the detention was reasonable under the circumstances in this case depends on a multitude of factors. We find useful those factors listed in United States v. Jones,
In Jones, two officers suspected the defendant of participating in a burglary. The defendant fled when the officers attempted to talk to him. The officers blocked the defendant's car from moving and unholstered their weapons while the defendant was out of their sight. The defendant argued that blocking the car and the use of weapons constituted a custodial arrest. The Eighth Circuit determined that the officers' use of force was
In this case, we find that the district court did not err in its determination that the detention constituted an investigatory stop. The record indicates that Cronin detained Wells in a reasonable manner under the circumstances, which stopped short of a full custodial arrest. Cronin had a strong suspicion Wells was in possession of a controlled substance. As Cronin approached the car, he witnessed Wells appear to be digging into his pocket, and when Cronin arrived at the car, Wells' right arm was concealed underneath his jacket. The nature of Wells' suspected crime, trafficking narcotics, further justified Cronin's action. In Cronin's past experience as a member of the Lincoln/Lancaster County drug task force, he knew that narcotics users and traffickers often carry weapons.
Having classified the detention, we must next determine whether it was supported by sufficient reasonable suspicion that Wells was, or was about to be, engaged in criminal activity. An investigatory stop requires only that an officer have specific and articulable facts sufficient to give rise to a reasonable suspicion that criminal activity is afoot.
We have previously analyzed what could create reasonable suspicion in the context of suspected pedestrian-vehicle drug transactions in State v. Ellington.
In Ellington, the officer did not know either the defendant or the occupants of the car, had not observed any similar encounters between the defendant and other motorists, did not see any objects or money exchange hands, and did not see the defendant attempt to conceal anything after leaving the car.
The facts of the case at bar distinguish it from Ellington. Cronin recognized both Wells and the driver of the Buick as individuals with a history of narcotics trafficking and use. Before Wells arrived, the investigators also observed a pattern, over a 10-minute period, of several individuals walking up to the Buick in a manner consistent with the sale of narcotics. After interacting with the driver of the Buick, Wells was picked up by the Ford in another manner, according to Cronin, typical of pedestrian-vehicle drug transactions. To further support his suspicion, when the investigators arrived at the parking lot, Cronin recognized the driver of the Ford as another known drug trafficker/user. Cronin then observed Wells possibly hiding or concealing something in his pocket after Wells saw the investigators. This is all in addition to the fact that the entire sequence of events occurred in an area Cronin referred to as the "epicenter of narcotics" in Lincoln.
Based on the totality of the circumstances, the officers had reasonable suspicion, based upon sufficient, articulable facts, that Wells had been involved in a drug transaction, despite the fact that neither investigator actually observed the controlled substance or money changing hands. The district court did not err in determining that the officers had reasonable suspicion.
Wells argues that even if the initial detention was supported by reasonable suspicion, Cronin's search of Wells' pocket was an unreasonable search under the Fourth Amendment. 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.
The district court determined that after Wells was taken out of the car and handcuffed, he voluntarily gave consent for Cronin to search him. Cronin then proceeded to put his fingers into Wells' pocket, which is when Cronin felt the baggies. A struggle between the two subsequently ensued. Wells withdrew his consent after Cronin and Parker "took [Wells] to the ground," but Cronin continued to search Wells and recovered the baggie of crack cocaine from Wells' pocket. The district court found that Cronin's feeling the baggie with his fingers, combined with Wells' reaction to Cronin's discovery, gave Cronin probable cause to search Wells' person.
Wells argues that the consent was not given voluntarily. Further, Wells maintains that if he did give consent, he consented only to a "pat down," and that Cronin exceeded the scope of the consent given by reaching into Wells' pocket. Even if we assume without deciding that Wells' consent was not voluntarily given and that Cronin exceeded the scope of any consent given, we nevertheless conclude that the retrieval of the crack cocaine from Wells' pocket constituted a valid search incident to arrest. "A search made without a warrant is valid if made incidental to a lawful arrest."
We have yet to determine whether the search incident to a lawful arrest exception applies even if the suspect was arrested for resisting an unlawful search or seizure. However, Neb.Rev. Stat. § 28-1409(2) (Reissue 2008) diminishes the common-law right to resist unlawful arrest and provides that regardless of whether the arrest is legal, one may not forcibly resist an arrest. This statute on its face does not extend to illegal searches and seizures. The policy behind the abolition of the common-law right to resist unlawful arrest, however, applies equally to unlawful searches:
In the case at bar, after Wells allegedly kicked Cronin, Cronin had probable cause to arrest Wells for assault of an officer in the third degree. When Wells was subdued and held to the ground by Cronin's putting his knee into Wells' back, the initial detention was transformed into a custodial arrest. This arrest was valid regardless of whether Cronin's prior search was constitutional. Any search of Wells' person that occurred after that time, including Cronin's search of Wells' pockets from which Cronin ultimately retrieved the baggie, would fall under the search incident to a lawful arrest exception to the warrant requirement. Therefore, even if Cronin's initial search was unlawful, the evidence need not be suppressed under the exclusionary rule, because it can be justified under another exception to the warrant requirement. Wells' argument that the district court erred in denying his motion to suppress is without merit.
Wells further assigns that there was insufficient evidence to support Wells' conviction for third degree assault of an officer. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
"A person commits the offense of assault on an officer in the third degree if ... [h]e or she intentionally, knowingly, or recklessly
At trial, Cronin testified that when he reached into Wells' pocket, Wells "attempted to try to spin around and began kicking backwards towards" Cronin. Cronin testified that Wells raised his left leg at the knee, cocked it back, and struck Cronin in the thigh and knee four or five times. Cronin stated that he felt pain in his knee and thigh area "for a few seconds or a minute afterwards," but that there were "no long-lasting effects" and that the kicks did not leave any lasting injuries. Wells denied kicking Cronin and testified that based on his position after being handcuffed, it would have been impossible for him to raise his leg the way Cronin described. Parker testified that he was on the other side of the car and did not witness the incident. Neither the State nor the defense presented additional evidence on this issue.
Without any other evidence to rely on, the district court found Cronin's testimony to be more credible than Wells' testimony. We are not in a position to reweigh the credibility of the witnesses.
Viewing the evidence in a light most favorable to the prosecution, which in this case would mean assuming Cronin's account of the incident is correct, there was sufficient evidence to find all essential elements of the crime beyond a reasonable doubt. The evidence establishes that Wells knew Cronin was a police officer performing his official duties and that Wells caused a bodily injury by kicking Cronin in the knee and thigh several times, which resulted in pain to Cronin. Wells' assignment of error is without merit.
The judgment and sentences of the district court are affirmed.
AFFIRMED.
Wright, J., participating on briefs.