A-99-158
IN THE NEBRASKA COURT OF APPEALS
STATE OF NEBRASKA,
Appellant,
v.
PAUL E. JOHNSON,
Appellee.
APPEAL FROM THE DISTRICT COURT
OF LANCASTER COUNTY, NEBRASKA
Honorable Paul D. Merritt, District Judge
Reply Brief of Appellant
Submitted by.
GARY E. LACEY
Lancaster County Attorney
and
JODI L. NELSON #18619
Deputy County Attorney
129 N. 10th Street
Lincoln, NE 68508
(402)441-7321
Attorneys for Appellant
TABLE OF CONTENTS
TABLE OF CONTENTS
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TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . .. iii
STATEMENT OF THE CASE
"
1
ASSIGNMENT OF ERROR
1
PROPOSITIONS OF LAW
1
STATEMENT OF FACTS
2
ARGUMENT
2
I. THE DISTRICT COURT ERRED IN SUSTAINING THE DEFENDANT'S
MOTION TO SUPPRESS EVIDENCE BECAUSE THE SEARCH AND
SEIZURE OF INCRIMINATING EVIDEN~E WAS CONSTITUTIONAL.... 2
A. The District Court applied the wrong law regarding "plain view" and as
SUCh, the Court's ruling was in error,-v_.< ....
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B. Defe'ctive Sorenson's removal of the muffler and bumper
constitutionally permissible
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CONCLUSION
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TABLE OF AUTHORITIES
Nebraska Cases
State v. Haselhorst, 218 Neb. 233, 353 N.W.2d 7 (1984)
2,3
State v. Mitchell, 1996 WL 366249 (Neb. App. 1996)
3
State v. Shurter, 238 Neb. 54,468 N.W.2d 628 (1991)
3,4
United States Supreme Court Cases
Cardwell v. Lewis, 417 U.S. 583, 94 S. Ct. 2469 (1974)
11
5
Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022 (1971)
4
Horton v. California, 496 U.S. 128, 110 S. Ct. 2301 (1990)
3
Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130 (1993)
5
New York v. Class, 475 U.S. 106, 106 S. Ct. 960 (1986)
,.5
United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405 (1984)
6
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111
STATEMENT OF THE CASE
The Appellant hereby incorporates by reference the Statement of the Case found in its
original brief for this matter.
ASSIGNMENT OF ERROR
The Appellant hereby incorporates by reference the Assignment of Error found in its
original brieffor this matter.
PROPOSITIONS OF LAW
I.
Inadvertence is not a required element of the plain view doctrine. Horton v. California,
496 U.S. 128, 110 S. Ct. 2301 (1990); State v. Shurter, 238 Neb. 54, 61,468 N.W.2d
628,631 (1991); State v. Mitchell; 1996WL 366249 (Neb. App.)996).
II.
."
A warrantless seizure is justified under the plain view doctrine ifO)-accnrweufor.c~me1l,t:.:=' ...
officer has a legal right to be in the place from which the object subject to the 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. State v.
Shurter, 238 Neb. 54, 58,468 N.W.2d 628, 630-31 (1991).
III.
Once the elements of plain view are satisfied and the police have probable cause, the
police may seize the incriminating evidence. State v. Shurter, 238 Neb. 54, 61, 468
N.W.2d 628, 631 (1991); Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130 (1993).
IV.
The exterior of a car is thrust into the public eye, and thus to examine it does not
constitute a search. New York v. Class, 475 U.S. 106, 114, 106 S. Ct. 960, 966 (1986);
1
Cardwell v. Lewis, 417 U.S. 583, 94 S. Ct. 2469 (1974).
V.
The purpose of the exclusionary rule is to deter police misconduct. United States v. Leon,
468 U.S. 897, 104 S. Ct. 3405 (1984).
STATEMENT OF FACTS
The Appellant hereby incorporates by reference the Statement of Facts found in
Appellant's first brief filed with this Court at A-99-158.
ARGUMENT
1. THE DISTRICT COURT ERRED IN SUSTAINING THE DEFENDANT'S MOTION TO
SUPPRESS EVIDENCE BECAUSE THE SEARCH AND SEIZtJRE OF INCRIMINATING
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EVIDENCE WAS CONSTITUTIONAL.
A. The District Court applied the wrong law regarding "plain view" and as such, the
Court's ruling was in error.
In its Order dated January 25, 1999, the District Court held that Det. Sorenson's search
and seizure of the muffler and bumper piece from Defendant's car did not properly fall within the
definition of a "plain view" search. (T 18) However, upon further research, the State has
discovered that the District Court applied the wrong law to the facts. The District Court cited
State v. Haselhorst, 218 Neb. 233, 353 N.W.2d 7 (1984), for its delineation of the elements of the
plain view doctrine. (TI8) In Haselhorst, the Court listed the three requirements of plain view as
2
follows:
First, the police officer must lawfully make an 'initial intrusion' or otherwise properly be in
a position from which he can view a particular area. Second, the officer must discover the
incriminating evidence 'inadvertently,' i.e., he may not know in advance the location of the
evidence and intend to seize it without obtaining a warrant, relying on the plain view
exception only as a pretext. Finally, it must be 'immediately apparent' to the police that
the items they observe may be evidence of a crime, contraband, or otherwise subject to
seizure.
Id. at 236,353 N.W.2d at 10. However, in 1990 the United States Supreme Court removed the
inadvertence requirement from the plain view doctrine. Horton v. California, 496 U.S. 128, 110
S. Ct. 2301 (1990). Subsequently, the Nebraska Supreme Court and the Nebraska Court of
Appeals have recognized that inadvertence is nolonger a required element
oftheplainYi.e}y:~
doctrine. See State v. Shurter, 238 Neb. 54,61,468 N.Wi2de628, 631' (1~91) ("Themurth
amendment does not prohibit the warrantless seizure of contraband or evidence of a crime in plain
view, even though the discovery of the evidence was not inadvertent."); and see, State v. Mitchell,
1996 WL 366249 (Neb. App. 1996) (not designated for permanent publication). The District
Court, in its Order, stated: HIt is clear the plain view doctrine is not applicable to the present case.
Sorenson had the defendant's car towed to the service garage and hoisted specifically to secure
evidence for testing." (T18) The District Court clearly based its ruling on the former inadvertence
requirement. Now that inadvertence is no longer required, the trial court's ruling is plainly
erroneous.
The Court in State v. Shurter, supra, articulated the current plain view doctrine as follows:
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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 the object subject to the 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.
State v. Shurter, 238 Neb. at 58, 468 N.W.2d at 630-31. There is no dispute that Det. Sorenson
had a legal right to view the underside of the defendant's car while the car was in police custody.
Furthermore, because of the information available to Det. Sorenson at the time he viewed the
bumper and muftler, the incriminating nature of the evidence was immediately apparent. In fact,
the trial court specifically found that Det. Sorenson had probable cause to believe that the car
would contain evidence of the prior robberies. Therefore, the issue appears to turn on the
"seizure" that the defendant alleges occurred when Det. Sorenson removed the bumper and
exhaust system at the police garage.
B. Detective Sorenson's removal of the muftler and bumper piece was constitutionally
permissible.
Inherent in the plain view doctrine itself is the authority for the police to seize
incriminating evidence when the elements of the doctrine are satisfied. See State v. Shurter,
supra. Contrary to the defendant's argument, once the elements of plain view are satisfied and
the police have probable cause, the police may seize the incriminating evidence. The United
States Supreme Court has stated that "plain view alone is never enough to justify the warrantless
seizure of evidence." Coolidge v. New Hampshire, 403 U.S. 443,468, 91 S. Ct. 2022 (1971).
However, in the instant case, the District Court specifically found that "Sorenson had probable
4
cause to believe the defendant's car contained evidence relating to the Fast Eddie's robbery
and/or the Kabredlo's robbery ..." (T17) In Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct.
2130 (1993), the Court stated that "[i]f ... the police lack probable cause to believe that an object
in plain view is contraband without conducting some further search ofthe object - i.e. if "its
incriminating character [is not] 'immediately apparant,' [citation omitted] - the plain-view
doctrine cannot justify its seizure." Id at 375,113 S. Ct. at 2137. Since Det. Sorenson did, in
fact, have probable cause to believe that the bumper and exhaust system were evidence of a crime,
the warrantless seizure of those items was constitutionally permissible.
In any event, the State submits that the Fourth Amendment is not even implicated by the
removal of the bumper and exhaust system by Det. Sorenson. As was detailed in the Appellant's
initial brief, "[t]he exterior of a car, of course, is thrust into the public eye, and thus to examine it
does not constitute a search." -New York v. Class, 475 U.S. 106, 114, 106 S. Ct. 960, 966(1986):So again, the search and seizure of the incriminating evidence found on the _exterior .ofthe _..
_~_~ __. ~_.
defendant's car did not violate the Fourth Amendment. Id; see also, Cardwell v. Lewis, 417 U.S.
583, 94 S. Ct. 2469 (1974). Moreover, it seems impossible for Det. Sorenson's actions to even
constitute a "seizure" for purposes of the Fourth Amendment when the entire automobile was
already vseized." It is not disputed that the police had the authority to seize and impound the
defendant's vehicle after he was arrested. For the police to then inspect the outside of the
already-seized vehicle does not appear to be a cognizable Fourth Amendment event.
CONCLUSION
The State submits that the District Court erred in holding that the plain view doctrine does
5
not apply to the instant case. The District Court improperly held that the plain view doctrine
requires a finding of inadvertence by the police. According to the current state of Nebraska law,
inadvertence is not required. Thus, the incriminating evidence at issue was properly searched and
seized in accordance with the plain view doctrine. The removal and testing of the items was
appropriate, first, because the police had probable cause to believe that the bumper and exhaust
system was evidence of a crime. Second, it is the State's position that there is not even a
cognizable Fourth Amendment issue at stake. The "seizure," if any, was simply a seizure of part
of a vehicle that was already properly seized by the police. Additionally, since the incriminating
evidence was found on the exterior of a vehicle and there is no legitimate expectation of privacy in
the exterior ofa vehicle, the State submits that for the purposes of the Fourth Amendment, no
search and seizure occurred.
The defendant seeks to have the exclusionary rule applied in the instant case. It is wellsettled that the purpose of the exclusionary rule is to deterpolice misconduct. See UnitedStates.
v. Leon, 468 U.S. 897, 104 S. Ct. 3405 (1984). It is difficult to see how what the police did in
this case constitutes misconduct. It is quite clear that had the police left the defendant's car on
the side of the road until after Det. Sorenson learned of the prior robberies and the
bumper/muffler pieces left behind at the scene of a prior robbery, Det. Sorenson then could have
gone to that car, inspected the underside and bumper, formed the same conclusions and then
impounded the car and removed the bumper and exhaust pieces without a warrant. The exigent
circumstances that the defendant is concerned about would then "follow" the vehicle to the
impound lot, as it were. Here, however, the police did the prudent thing and impounded the
defendant's vehicle after his arrest. The police then discovered a possible connection between the
6
defendant's vehicle and a prior crime, examined portions of the vehicle which were in plain view
and, with probable cause, sent the incriminating pieces to the laboratory to confirm the belief that
the car was in fact involved in a prior crime. It is unclear how these actions constitute
misconduct. It follows, then, that there is no police misconduct to deter and the application of the
exclusionary rule in this case is wholly inappropriate.
Respectfully submitted this
)Z~ay ofApril, 1999.
STATE OF NEBRASKA
Plaintiff
GARY E. LACEY
Lancaster County Attorney
7
IN THE NEBRASKA COURT OF APPEALS
STATE OF NEBRASKA,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
PAUL E. JOHNSON,
Defendant.
STATE OF NEBRASKA
A-99-158
AFFIDAVIT OF SERVICE
)
) ss.
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County of Lancaster
COMES NOW, Jodi L. Nelson, being first duly sworn and upon oath states that two true
and accurate photocopies of the Appellant's Briefwere mailed to the Appellee's attorney of
record at the following address:
Robert Hays
Deputy Public Defender
555 South 10th Street
Lincoln, NE 68508
on this
~day of ~,/
, 1999.
Subscribed and sworn before me this
jattl day of ~
,1999.
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