State v. Mays

578 N.W.2d 453, 6 Neb. Ct. App. 855, 1998 Neb. App. LEXIS 62
CourtNebraska Court of Appeals
DecidedApril 21, 1998
DocketA-97-797
StatusPublished
Cited by5 cases

This text of 578 N.W.2d 453 (State v. Mays) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Mays, 578 N.W.2d 453, 6 Neb. Ct. App. 855, 1998 Neb. App. LEXIS 62 (Neb. Ct. App. 1998).

Opinion

Irwin, Judge.

I. INTRODUCTION

Charles J. Mays was charged with operating a motor vehicle while his operator’s license was revoked, in violation of Neb. Rev. Stat. § 60-6,196 (Reissue 1993). Mays filed a motion to suppress, alleging that the stop of his vehicle was unconstitutional and that all evidence obtained as a result should be suppressed. After a hearing, the motion was denied. A bench trial was held on a stipulated record, at which time Mays preserved the objections raised in his motion to suppress. Mays was found guilty of the above charge and sentenced to 24 months’ inten *856 sive supervision probation. See Neb. Rev. Stat. § 29-2262.03 (Reissue 1995). Mays appeals his conviction and sentence. Because we conclude that the police did not possess a reasonable suspicion to justify the stop of Mays’ vehicle, we reverse the judgment of the district court and dismiss the case.

II. FACTUAL BACKGROUND

The facts relevant to our decision are as follows: On July 10, 1996, at approximately 6:30 p.m., Officer Adam Kyle of the Omaha Police Division conducted a traffic stop of Mays’ vehicle. As a result of the stop, Kyle learned that Mays was driving while his license was revoked. Mays was then charged and prosecuted.

At the hearing on Mays’ motion to suppress, the State’s evidence consisted exclusively of Kyle’s testimony. Kyle testified as follows regarding his reasons for stopping Mays’ vehicle on July 10, 1996: According to Kyle, he received information from an Officer Baudler that the driver of a red pickup truck had drugs on his person and was dealing drugs in the Pleasantview West housing projects (Pleasantview). Baudler told Kyle that the driver was known by the street name “Twin” and that he had a suspended driver’s license. Although Kyle testified that Baudler had received the above information that day, Kyle was unsure whether he had received this information from Baudler earlier in the day or over the radio prior to the stop.

The record provides no further description of the driver, the vehicle, or the activity. Kyle did not explain his basis of knowledge for the information except that he was told of it by Baudler. In no way did Kyle explain Baudler’s source of the information. In addition, Kyle did not indicate whether he was aware who “Twin” was at the time of the stop. Kyle was also unsure whether he received the information prior to the stop indicating that “Twin” was a black male.

Sometime before 6:30 p.m. on July 10, 1996, Baudler contacted Kyle and told him either that the red pickup truck was leaving Pleasantview or that the red pickup truck was arriving at Pleasantview. The record does not reflect whether this information was received at the same time as the prior information regarding “Twin,” or at a later time. After receiving this latest *857 message, Kyle saw a red pickup truck traveling on Parker Street away from Pleasantview. There was no testimony suggesting that Kyle saw or recognized the driver prior to the stop. Kyle testified that he was unable to read the license plate due to a trailer ball on the back of the truck. However, a tape recording of Kyle’s radio transmissions indicates that Kyle called in a partial plate number a few moments before the stop of Mays’ vehicle. After observing the red pickup truck, Kyle initiated a stop. Kyle testified that he observed no traffic violations prior to the stop.

III. ASSIGNMENTS OF ERROR

For his assignments of error, Mays contends that the district court erred in overruling his motion to suppress, in admitting over his objection an exhibit purporting to show that his license was revoked for 15 years, and in finding him guilty despite a lack of proof that his driving privileges were revoked at the time of his arrest.

IV. ANALYSIS

Mays assigns that the district court erred in overruling his motion to suppress. He argues that the officer did not have a reasonable suspicion to justify the stop of Mays’ vehicle. Mays further argues that if the stop of his vehicle was unjustified, all evidence subsequently obtained was constitutionally inadmissible as the “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

1. District Court’s Suppression Order

We initially address the lack of specificity in the district court’s order overruling Mays’ motion to suppress. In State v. Osborn, 250 Neb. 57, 67, 547 N.W.2d 139, 145 (1996), the Nebraska Supreme Court mandated: “Henceforth, district courts shall articulate in writing or from the bench their general findings when denying or granting a motion to suppress. The degree of specificity required will vary, of course, from case to case.” In an attempt to comply with Osborn, the district court stated in its order: “Upon consideration of the evidence and the law, the Court finds that there was reasonable suspicion to justify the stop of the automobile that defendant was operating and *858 that, therefore, the defendant’s motion should be overruled.” In this case, some detailed findings of fact would have been illuminating. As indicated above, certain aspects of Kyle’s testimony were conflicting, and how the district court judge arrived at his conclusion to overrule the motion to suppress would have helped us apply the standard of review we are obliged to follow. Even after resolving all conflicts in the testimony of Kyle in favor of the State, we conclude that there was not sufficient justification for the stop of Mays’ vehicle. We set forth the reasons for our conclusion below.

2. Standard of Review

If police acted without a warrant, the State has the burden to prove the reasonableness of the search or seizure. State v. Vermuele, 241 Neb. 923, 492 N.W.2d 24 (1992); State v. Valdez, 5 Neb. App. 506, 562 N.W.2d 64 (1997). On appeal, the ultimate determination of reasonable suspicion is 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. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996).

3. Reasonable Suspicion

Investigatory stops are permissible only upon a reasonable suspicion supported by specific and articulable facts that the person is, was, or is about to be engaged in criminal activity.

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Bluebook (online)
578 N.W.2d 453, 6 Neb. Ct. App. 855, 1998 Neb. App. LEXIS 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mays-nebctapp-1998.