State v. Louthan

744 N.W.2d 454, 275 Neb. 101
CourtNebraska Supreme Court
DecidedFebruary 15, 2008
DocketS-07-593
StatusPublished
Cited by11 cases

This text of 744 N.W.2d 454 (State v. Louthan) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Louthan, 744 N.W.2d 454, 275 Neb. 101 (Neb. 2008).

Opinion

744 N.W.2d 454 (2008)
275 Neb. 101

STATE of Nebraska, appellee,
v.
Richard L. LOUTHAN, appellant.

No. S-07-593.

Supreme Court of Nebraska.

February 15, 2008.

*458 Melissa A. Wentling, Madison County Public Defender, and Harry A. Moore, Madison, for appellant.

Jon Bruning, Attorney General, and James D. Smith, Lincoln, for appellee.

WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

After a bench trial in the district court for Madison County, Richard L. Louthan was convicted on one count of possession of a controlled substance. The principal issue on appeal is whether Louthan's Fourth Amendment rights were violated when a law enforcement officer prolonged a traffic stop for several minutes in order to deploy a drug detection dog. We conclude that there was no violation of Louthan's rights and that the evidence obtained from the vehicle as a result of the dog sniff was properly used to secure his conviction.

I. BACKGROUND

Jason Bauer is a patrol officer and police service dog handler employed by the Norfolk Police Division. Late on the evening of December 2, 2006, Bauer was conducting surveillance on a Norfolk, Nebraska, residence. He was, observing the residence because the police division had received complaints from neighbors about "stop-and-go traffic" indicative of drug activity. Also, Bauer had been informed by at least two persons whom he arrested for drug offenses that the owner of the residence was a methamphetamine distributor. Bauer's sources indicated drug activity had occurred at the residence as recently as November 2006. Bauer testified that he had observed the residence on previous occasions over the last 2 years and had seen persons he knew to be actively engaged in the drug trade leaving the residence.

When he arrived at the residence, Bauer observed a vehicle parked nearby. Bauer determined that the vehicle was registered to Louthan and that the license plates had expired. Approximately 5 minutes after Bauer began his surveillance, he saw Louthan exit the residence and enter the vehicle. Bauer had not seen Louthan enter the residence and did not know how long he had been inside. Bauer initiated pursuit with the intent of stopping Louthan based on the expired plates. He also intended to request Louthan's permission to search the vehicle. Pursuant to police division policy, he requested a backup officer.

Bauer initiated the traffic stop based on the expired plates and Louthan's failure to signal a turn. Louthan acknowledged that he had come from the residence which Bauer had been observing. Bauer questioned Louthan about his involvement with drugs, and Louthan stated that he was *459 free on bond on a pending charge of possession of a controlled substance and that an attempted manufacture charge had also been filed against him. Bauer asked Louthan when he had last used controlled substances, and Louthan responded that it was in September 2006, when he was arrested for possession. Bauer asked Louthan to step out of the vehicle and obtained consent to search Louthan's person. The search revealed nothing of consequence. Bauer then requested permission to search the vehicle, but Louthan refused. Bauer testified that Louthan became "extremely nervous" at this point, although in his report, he noted that Louthan was "somewhat nervous."

Bauer then called the police dispatcher and determined that Louthan's operator's license was valid and that he had no outstanding warrants. As he was doing this, the backup officer arrived on the scene. After completing his conversation with the dispatcher, Bauer directed Louthan to remain with the backup officer. Bauer then retrieved his drug detection dog from his vehicle and directed the dog to sniff the exterior of Louthan's vehicle. At that point, approximately 7 minutes had elapsed since the inception of the traffic stop.

The dog did not alert in his initial pass around the vehicle. Bauer then began to "detail," directing the dog to sniff in certain locations of the vehicle. The dog alerted and eventually indicated the scent of drugs near the middle of the front hood of the vehicle. Bauer then informed Louthan that he intended to search the interior of the vehicle. From the time that the dog sniff began until Bauer informed Louthan of the result, approximately 4 minutes had elapsed. Bauer then searched the interior of the vehicle and found Louthan's wallet on the transmission hump of the vehicle. Inside the wallet were two bags containing a "rocky substance" later confirmed to be methamphetamine.

Approximately 12½ minutes after Louthan was initially stopped, he was arrested and charged with one count of possession of a controlled substance. He filed a motion to suppress the evidence obtained as a result of the search of his vehicle, arguing that Bauer lacked reasonable suspicion to further detain him after the traffic stop. After conducting an evidentiary hearing, the district court denied the motion. Following a bench trial on stipulated evidence at which Louthan's objection to the dog sniff and resulting search was preserved, he was convicted and sentenced. He filed this timely appeal, and we granted the State's petition to bypass the Court of Appeals.

II. ASSIGNMENT OF ERROR

Louthan assigns, restated, that the district court erred in overruling his motion to suppress the evidence seized from his vehicle because his continued detention after the initial traffic stop violated his right to be free from unreasonable searches and seizures under the 4th and 14th Amendments to the U.S. Constitution and article I, § 7, of the Nebraska Constitution.

III. 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. But findings of historical fact to support that determination are reviewed for clear error, giving due weight to the inferences drawn from those facts by the *460 trial court.[1]

IV. ANALYSIS

There is no issue concerning the propriety of the traffic stop. A traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle.[2] Once a vehicle is lawfully stopped, a law enforcement officer may conduct an investigation reasonably related in scope to the circumstances that justified the traffic stop.[3] This 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.[4] 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.[5] The record in this case reflects that these investigative procedures were completed within approximately 6 minutes after Louthan's vehicle was stopped.

In Illinois v. Caballes,[6] the U.S. Supreme Court held that a dog sniff "conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment," In that case, one officer conducted the traffic stop while another walked a drug detection dog around the exterior of the vehicle.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Zhu
Nebraska Court of Appeals, 2020
State v. Milton
Nebraska Court of Appeals, 2017
State v. Wells
Nebraska Supreme Court, 2015
State v. Kellogg
Nebraska Court of Appeals, 2015
State v. Jenkins
3 A.3d 806 (Supreme Court of Connecticut, 2010)
Whitfield v. State
33 So. 3d 787 (District Court of Appeal of Florida, 2010)
State v. Baker
2010 UT 18 (Utah Supreme Court, 2010)
State v. Richardson
763 N.W.2d 420 (Nebraska Court of Appeals, 2008)
State v. Draganescu
755 N.W.2d 57 (Nebraska Supreme Court, 2008)
State v. Royer
753 N.W.2d 333 (Nebraska Supreme Court, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
744 N.W.2d 454, 275 Neb. 101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-louthan-neb-2008.