State v. Wells ( 2015 )

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186 290 NEBRASKA REPORTS
s­uspension; driving during revocation; refusing to comply
with the orders of police; and hindering, delaying, or inter-
rupting an arrest. Ortega’s criminal history demonstrates a
continued disregard for the lawful authority of police and the
laws governing the operation of motor vehicles in the State of
Nebraska. This assignment clearly lacks merit.
CONCLUSION
We find no merit to Ortega’s assertion that the district
court’s order in forma pauperis had the legal effect of denying
his appellate counsel payment for their representation. Further,
the district court was not the proper court to address the issue
of attorney fees. To the extent that the district court’s order
granting leave to proceed in forma pauperis may be under-
stood as addressing attorney fees, we vacate the order. As to
Ortega’s other claims, the record establishes that his guilty
pleas were entered knowingly, voluntarily, and intelligently
and that his sentences were not excessive. We affirm the judg-
ment of the district court, which affirmed Ortega’s convictions
and sentences.
Affirmed in part, and in part vacated.
Heavican, C.J., participating on briefs.
State of Nebraska, appellee, v.
Aron D. Wells, Sr., appellant.
___ N.W.2d ___
Filed February 20, 2015. No. S-14-331.
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 historical facts, an 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 an appellate court reviews inde-
pendently of the trial court’s determination.
2. Convictions: Appeal and Error. In reviewing a criminal conviction, an appel-
late 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
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a conviction will be affirmed, in the absence of prejudicial error, if the evi-
dence, viewed and construed most favorably to the State, is sufficient to support
the conviction.
3. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S.
Constitution and article I, § 7, of the Nebraska Constitution, guarantee against
unreasonable search and seizure.
4. Search and Seizure: Evidence: Trial. Evidence obtained as the fruit of an illegal
search or seizure is inadmissible in a state prosecution and must be excluded.
5. Constitutional Law: Police Officers and Sheriffs: Search and Seizure: Appeal
and Error. 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, 242 Neb. 479, 495 N.W.2d 630 (1993), which describes the three
levels, or tiers, of police-citizen encounters.
6. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. A tier-
one police-citizen encounter involves the voluntary cooperation of the citizen
elicited through noncoercive questioning and does not involve any restraint of the
liberty of the citizen.
7. Police Officers and Sheriffs: Search and Seizure. A tier-two police-citizen
encounter constitutes an investigatory stop as defined by Terry v. Ohio, 392
U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Such an encounter involves
a brief, nonintrusive detention during a frisk for weapons or preliminary
questioning.
8. Police Officers and Sheriffs: Search and Seizure: Arrests. A tier-three police-
citizen encounter constitutes an arrest. An arrest involves a highly intrusive or
lengthy search or detention.
9. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. Tier-
two and tier-three police-citizen encounters are seizures sufficient to invoke the
protections of the Fourth Amendment to the U.S. Constitution.
10. Investigative Stops: Police Officers and Sheriffs. When conducting an investi-
gatory 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.
11. ____: ____. 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.
12. Investigative Stops: Police Officers and Sheriffs: Probable Cause. Whether
a police officer has a reasonable suspicion based on sufficient articulable facts
depends on the totality of the circumstances and must be determined on a case-
by-case basis.
13. Police Officers and Sheriffs: Probable Cause. In determining whether a police
officer acted reasonably, it is not the officer’s inchoate or unparticularized
suspicion or hunch that will be given due weight, but the specific reasonable
inferences which the officer is entitled to draw from the facts in light of the offi-
cer’s experience.
14. Investigative Stops: Probable Cause: Appeal and Error. An appellate court
reviews the district court’s finding of reasonable suspicion de novo.
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15. Constitutional Law: Search and Seizure. Searches conducted outside the judi-
cial process, without prior approval by a judge or magistrate, are per se unreason-
able under the Fourth Amendment to the U.S. Constitution, subject only to a few
specifically established and well-delineated exceptions.
16. Warrantless Searches. 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.
17. Search and Seizure: Arrests. A search made without a warrant is valid if made
incidental to a lawful arrest.
18. Police Officers and Sheriffs: Search and Seizure: Arrests. After an arrest is
made, the arresting officer may search the person to remove any weapons that the
latter might seek to use in order to resist arrest or effect his or her escape and also
to search for and seize any evidence on the arrestee’s person in order to prevent
its concealment or destruction.
19. Arrests. 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.
20. Criminal Law: Evidence: Appeal and Error. 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 ele-
ments of the crime beyond a reasonable doubt.
21. Evidence: Appeal and Error. As with any sufficiency claim, regardless of
whether the evidence is direct, circumstantial, or a combination thereof, an appel-
late 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.
22. Police Officers and Sheriffs: Assault. Neb. Rev. Stat. § 28-931 (Cum. Supp.
2010) provides that a person commits the offense of assault on an officer in the
third degree if he or she intentionally, knowingly, or recklessly causes bodily
injury to a peace officer and the offense is committed while such officer is
engaged in the performance of his or her official duties.
23. Criminal Law: Words and Phrases. Neb. Rev. Stat. § 28-109(4) (Reissue 2008)
defines physical pain as a bodily injury.
Appeal from the District Court for Lancaster County:
Stephanie F. Stacy, Judge. Affirmed.
Mark E. Rappl for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
Heavican, C.J., Connolly, Stephan, McCormack, Miller-
Lerman, and Cassel, JJ.
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Heavican, C.J.
NATURE OF CASE
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 con-
trolled substance. Wells alleges that the court erred in overrul-
ing his motion to suppress evidence and that there was insuf-
ficient 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.
BACKGROUND
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 pur-
chase operations.
The investigators were positioned in the parking lot so
that they could observe activity occurring at a gas station and
convenience store located across the street from the fast-food
restaurant. At approximately 5 p.m., the investigators observed
a black 1976 Buick pull into the convenience store parking lot.
Cronin believed the driver to be an individual whom Cronin
had previously arrested for narcotics possession. Cronin was
also familiar with reports that the driver of the Buick had pre-
viously purchased drugs from an undercover officer. Cronin
testified that he had also received “more recent” police intel-
ligence regarding the driver’s involvement with narcotics, but
did not elaborate.
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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 inter-
acted 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 train-
ing, 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 eas-
ily 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,
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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 ini-
tially 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.
Cronin testified that after he put his fingers in Wells’ pocket,
Wells tried to spin around. Wells began kicking backward
toward Cronin and struck Cronin in the knee and thigh area
four or five times. Cronin stated that the kicking hurt for
about a minute but did not leave any lasting injuries. After
Wells began struggling, Cronin and Parker “took [Wells] to the
ground.” The investigators observed a large pool of blood com-
ing from Wells’ face while he was lying on the ground. Cronin
testified that after Wells was lying on the ground, Wells told
the investigators that they could not search him.
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 hos-
pital, 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.
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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 hav-
ing 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 justified in removing
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Wells from the Contour and placing him in handcuffs to pro-
tect the investigators and to prevent the destruction of evi-
dence while he conducted his investigation.”
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, com-
bined with Wells’ resistance in response, gave Cronin prob-
able 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 sub-
stance. 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.
ASSIGNMENTS OF ERROR
Wells assigns as error that (1) the court erred in overrul-
ing his motion to suppress and (2) the court erred in find-
ing him guilty of the offense of third degree assault on
an officer because insufficient evidence existed to support
said conviction.
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.1 Regarding histori-
cal facts, we review the trial court’s findings for clear error.2
But whether those facts trigger or violate Fourth Amendment
1
State v. Hedgcock, 277 Neb. 805, 765 N.W.2d 469 (2009).
2
Id.
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protections is a question of law that we review independently
of the trial court’s determination.3
[2] In reviewing a criminal conviction, an appellate court
does not resolve conflicts in the evidence, pass on the cred-
ibility 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.4
ANALYSIS
Motion to Suppress.
[3,4] 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.5
Classifying Initial Detention.
[5-9] To determine whether an encounter between an offi-
cer 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,6 which
describes the three levels, or tiers, of police-citizen encoun-
ters.7 A tier-one police-citizen encounter involves the volun-
tary cooperation of the citizen elicited through noncoercive
questioning and does not involve any restraint of the liberty
3
Id.
4
State v. Keuhn, 273 Neb. 219, 728 N.W.2d 589 (2007).
5
See State v. Kelley, 265 Neb. 563, 658 N.W.2d 279 (2003).
6
State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993).
7
State v. Hedgcock, supra note 1.
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of the citizen.8 A tier-two police-citizen encounter consti-
tutes an investigatory stop as defined by Terry v. Ohio.9 Such
an encounter involves a brief, nonintrusive detention dur-
ing a frisk for weapons or preliminary questioning.10 A tier-
three police-citizen encounter constitutes an arrest.11 An arrest
involves a highly intrusive or lengthy search or detention.12
Tier-two and tier-three police-citizen encounters are seizures
sufficient to invoke the protections of the Fourth Amendment
to the U.S. Constitution.13
[10] Wells argues that Cronin’s use of handcuffs transformed
an investigatory detention into a de facto arrest. When conduct-
ing 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.”14 If unreason-
able force is used or if it lasts for an unreasonably long period
of time, then a detention may turn into a de facto arrest.15
An examination of the case law leads to the conclusion that
there is often a gray area between investigatory detentions and
arrests, and “‘we must not adhere to “rigid time limitations” or
“bright line rules,” . . . but must use “common sense and ordi-
nary human experience.”’”16
This court has not discussed under what circumstances the
use of handcuffs would transform an investigatory detention
8
State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010).
9
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). See
State v. Hedgcock, supra note 1.
10
State v. Hedgcock, supra note 1.
11
Id. (citing State v. Van Ackeren, supra note 6).
12
Id.
13
State v. Hedgcock, supra note 1.
14
Fla. v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75 L. Ed. 2d 229
(1983).
15
U.S. v. Maltais, 403 F.3d 550 (8th Cir. 2005).
16
State v. Van Ackeren, supra note 6, 242 Neb. at 490, 495 N.W.2d at 638
(quoting United States v. Sharpe, 470 U.S. 675, 105 S. Ct. 1568, 84 L. Ed.
2d 605 (1985)).
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into a custodial arrest. The use of handcuffs has been approved
when it was reasonably necessary to protect officer safety
during an investigative stop.17 For example, in United States
v. Thompson,18 the defendant attempted to reach inside his
coat pocket several times while an officer was performing a
Terry frisk. The officer warned the defendant to stop or else
he would place him in handcuffs.19 After the defendant again
tried to reach in his pocket, the officer put the defendant in
handcuffs.20 The Ninth Circuit held that the use of handcuffs
was a reasonable precaution for officer safety and did not
transform the stop into a custodial arrest.21 And in United
States v. Purry,22 an officer detained a suspected bank robber.
The officer placed the suspect in handcuffs after the suspect
“‘turned and pulled away’” when the officer put his arm on
the suspect.23 The District of Columbia Circuit determined
that given the circumstances, the use of handcuffs constituted
reasonable force and did not transform the stop into a custo-
dial arrest.24
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,25 an officer was dispatched to investigate
a burglar alarm sounding inside a nearby home. The officer
noticed a car parked outside the front of the house, and as the
officer approached, the car’s headlights turned on and the car
began to move.26 The officer pulled his patrol car in front of
17
See, e.g., U.S. v. Miller, 974 F.2d 953 (8th Cir. 1992); U.S. v. Crittendon,
883 F.2d 326 (4th Cir. 1989); U.S. v. Hastamorir, 881 F.2d 1551 (11th Cir.
1989); U.S. v. Glenna, 878 F.2d 967 (7th Cir. 1989).
18
United States v. Thompson, 597 F.2d 187 (9th Cir. 1979).
19
Id.
20
Id.
21
Id.
22
United States v. Purry, 545 F.2d 217 (D.C. Cir. 1976).
23
Id. at 219.
24
United States v. Purry, supra note 22.
25
State v. Williams, 102 Wash. 2d 733, 689 P.2d 1065 (1984).
26
Id.
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the vehicle and instructed the defendant to get out of the car.27
The officer then handcuffed the suspect and put him in the
back of his patrol car.28 The Washington Supreme Court deter-
mined that the use of handcuffs could be appropriate under
certain circumstances, but was not a reasonable precaution in
this situation, because “[h]e did not threaten the police nor did
the facts of the alleged crime justify assuming that the suspect
was armed or likely to harm the police.”29 The use of force in
that situation exceeded the scope of the Terry stop.
Whether the detention was reasonable under the circum-
stances in this case depends on a multitude of factors. We find
useful those factors listed in United States v. Jones,30 an Eighth
Circuit case examining the reasonable use of force during a
Terry stop, including
the number of officers and police cars involved, the
nature of the crime and whether there is reason to believe
the suspect might be armed, the strength of the officers’
articulable, objective suspicions, the erratic behavior of or
suspicious movements by the persons under observation,
and the need for immediate action by the officers and
lack of opportunity for them to have made the stop in less
threatening circumstances.
In Jones, two officers suspected the defendant of partici-
pating 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 reasonable and did not transform the investigatory
stop into a full-blown arrest.
In this case, we find that the district court did not err in its
determination that the detention constituted an investigatory
27
Id.
28
Id.
29
Id. at 740, 689 P.2d at 1069.
30
United States v. Jones, 759 F.2d 633, 639-40 (8th Cir. 1985).
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198 290 NEBRASKA REPORTS
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.31 Also, the
suspects outnumbered the investigators at the scene and Parker
was on the other side of the car at the time of detention. Based
on Wells’ furtive movements and his apparent attempt to con-
ceal something, Cronin had an immediate need for action. It
does not appear that Cronin could have made the stop and, at
the same time, ensured his safety in a less threatening manner.
Finally, we note that Wells was detained only for a brief period
of time before he allegedly assaulted Cronin and was placed
under arrest.32 Considering these circumstances, we conclude
that Cronin’s decision to gain control of Wells’ arm and hand-
cuff him while Cronin conducted his investigation was a “rea-
sonable precaution . . . to protect [officer] safety and maintain
the status quo.”33
Reasonable Suspicion.
[11-14] 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.34
Whether a police officer has a reasonable suspicion based on
31
See, also, U.S. v. Miller, supra note 17.
32
See State v. Verling, 269 Neb. 610, 694 N.W.2d 632 (2005).
33
U.S. v. Martinez, 462 F.3d 903, 907 (8th Cir. 2006).
34
See State v. Hedgcock, supra note 1.
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sufficient articulable facts depends on the totality of the cir-
cumstances and must be determined on a case-by-case basis.35
In determining whether a police officer acted reasonably, it
is not the officer’s inchoate or unparticularized suspicion or
hunch that will be given due weight, but the specific reason-
able inferences which the officer is entitled to draw from the
facts in light of the officer’s experience.36 We review the dis-
trict court’s finding of reasonable suspicion de novo.37
We have previously analyzed what could create reasonable
suspicion in the context of suspected pedestrian-vehicle drug
transactions in State v. Ellington.38 In Ellington, we held that
the officer did not have reasonable suspicion to stop a defend­
ant when the officer observed, in an area known for narcotics,
the defendant lean into a vehicle with his arms extended into
the vehicle, appear to converse with the occupants, and then
walk away upon seeing the police cruiser.39 Citing to cases
from several jurisdictions, we listed several factors, absent in
that case, which could give rise to reasonable suspicion that a
pedestrian-vehicle drug transaction took place:
These jurisdictions have collectively concluded that when
an officer does not recognize or know an individual;
is not acting on particularized information from a third
party; does not observe an exchange of items or money
between the individual and another person; does not
observe any movement, gestures, or attempts by the indi-
vidual to conceal or hide objects; does not observe the
individual repeatedly approach vehicles in a similar pat-
tern of activity; and does not suspect the individual of any
other crime, the officer’s mere observation of a pedestrian
leaning into a window of a stopped vehicle in a high-
crime area and then walking away upon seeing the officer
35
State v. Louthan, 275 Neb. 101, 744 N.W.2d 454 (2008).
36
State v. Kelley, supra note 5.
37
See State v. Allen, 269 Neb. 69, 690 N.W.2d 582 (2005), disapproved on
other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
38
State v. Ellington, 242 Neb. 554, 495 N.W.2d 915 (1993).
39
Id.
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200 290 NEBRASKA REPORTS
does not amount to a reasonable suspicion of drug-related
activity warranting an investigatory stop.40
In Ellington, the officer did not know either the defendant or
the occupants of the car, had not observed any similar encoun-
ters between the defendant and other motorists, did not see any
objects or money exchange hands, and did not see the defend­
ant attempt to conceal anything after leaving the car.41
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, typi-
cal 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 hid-
ing 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 reason-
able suspicion.
Reasonableness of Search.
[15,16] 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
40
Id. at 559-60, 495 N.W.2d at 919.
41
Id.
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STATE v. WELLS 201
Cite as 290 Neb. 186
Amendment. Searches conducted outside the judicial proc­
ess, 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.42 The warrantless search excep-
tions 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.43
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 with-
drew 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.
[17,18] Wells argues that the consent was not given vol-
untarily. 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.”44 After an arrest is
made, the arresting officer may search the person to “remove
any weapons that the latter might seek to use in order to resist
42
State v. Newman, 250 Neb. 226, 548 N.W.2d 739 (1996).
43
See State v. Borst, 281 Neb. 217, 795 N.W.2d 262 (2011). See, also, City
of Beatrice v. Meints, 289 Neb. 558, 856 N.W.2d 410 (2014).
44
State v. Buckman, 259 Neb. 924, 936, 613 N.W.2d 463, 475 (2000).
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202 290 NEBRASKA REPORTS
arrest or effect his escape” and also “to search for and seize
any evidence on the arrestee’s person in order to prevent its
concealment or destruction.”45
[19] 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 forc-
ibly 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:
Society has an interest in securing for its members the
right to be free from unreasonable searches and seizures.
Society also has an interest, however, in the orderly
settlement of disputes between citizens and their govern-
ment; it has an especially strong interest in minimizing
the use of violent self-help in the resolution of those
disputes. We think a proper accommodation of those
interests requires that a person claiming to be aggrieved
by a search conducted by a peace officer pursuant to an
allegedly invalid warrant test that claim in a court of law
and not forcibly resist the execution of the warrant at the
place of search.46
This is the view the Nebraska Court of Appeals has taken in
State v. Coleman.47 In Coleman, the defendant bit an officer
during a Terry frisk and was charged with assault on an offi-
cer.48 The Court of Appeals determined that the officer did
not have reasonable suspicion to initially detain the defendant
and that therefore, the subsequent frisk was unconstitutional.49
45
Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685
(1969), abrogated on other grounds, Arizona v. Gant, 556 U.S. 332, 129
S. Ct. 1710, 173 L. Ed. 2d 485 (2009).
46
United States v. Ferrone, 438 F.2d 381, 390 (3d Cir. 1971).
47
State v. Coleman, 10 Neb. Ct. App. 337, 630 N.W.2d 686 (2001).
48
Id.
49
Id.
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STATE v. WELLS 203
Cite as 290 Neb. 186
Nevertheless, the Court of Appeals held that the assault con-
viction could stand, despite the fact that the defendant was
resisting an unconstitutional search.50 The Court of Appeals
believed that “the rationale and policy behind the ban on
resistance to arrests in § 28-1409(2) is applicable to the use of
force to resist pat downs, even though the search may be later
found to fail constitutional muster.”51 Several other jurisdic-
tions have also extended the rule to prohibit resistance against
illegal pat-down searches as well.52 Accordingly, we agree
with the Court of Appeals’ reasoning in Coleman and hold that
an illegal search would not justify the use of force in resisting
an officer.
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 with-
out merit.
Sufficiency of Evidence.
[20,21] Wells further assigns that there was insufficient
evidence to support Wells’ conviction for third degree assault
50
Id.
51
Id. at 349, 630 N.W.2d at 697.
52
See, e.g., Elson v. State, 659 P.2d 1195 (Alaska 1983); State v. Ritter,
472 N.W.2d 444 (N.D. 1991); Com. v. Hill, 264 Va. 541, 570 S.E.2d 805
(2002); U.S. v. Mouscardy, No. Crim. 10-10100-PBS, 2011 WL 2600550
(D. Mass. June 28, 2011) (unpublished memorandum and order), affirmed
722 F.3d 68 (1st Cir. 2013).
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204 290 NEBRASKA REPORTS
of an officer. The relevant question for an appellate court is
whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.53 As with any sufficiency claim, regardless of whether
the evidence is direct, circumstantial, or a combination thereof,
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.54
[22,23] “A person commits the offense of assault on an
officer in the third degree if . . . [h]e or she intentionally,
knowingly, or recklessly causes bodily injury . . . [t]o a peace
officer [and t]he offense is committed while such officer . . . is
engaged in the performance of his or her official duties.”55 And
Neb. Rev. Stat. § 28-109(4) (Reissue 2008) defines physical
pain as a bodily injury. We have previously held that a con-
viction for assault on a peace officer in the third degree was
supported by sufficient evidence showing that the defendant
struck an officer and that the officer experienced physical pain
as a result.56
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
53
See State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
54
State v. Norman, 285 Neb. 72, 824 N.W.2d 739 (2013).
55
Neb. Rev. Stat. § 28-931 (Cum. Supp. 2010).
56
See State v. Melton, 239 Neb. 576, 477 N.W.2d 154 (1991).
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ARMSTRONG v. STATE 205
Cite as 290 Neb. 205
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’ tes-
timony. We are not in a position to reweigh the credibility of
the witnesses.
Viewing the evidence in a light most favorable to the pros-
ecution, 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’ assign-
ment of error is without merit.
CONCLUSION
The judgment and sentences of the district court are affirmed.
Affirmed.
Wright, J., participating on briefs.
Terry J. Armstrong, appellant, v.
State of Nebraska, appellee.
___ N.W.2d ___
Filed February 20, 2015. No. S-14-438.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or award of
the compensation court may be modified, reversed, or set aside only upon the
grounds that (1) the compensation court acted without or in excess of its pow-
ers, (2) the judgment, order, or award was procured by fraud, (3) there is not
sufficient competent evidence in the record to warrant the making of the order,
judgment, or award, or (4) the findings of fact by the compensation court do not
support the order or award.
2. ____: ____. On appellate review, the factual findings made by the trial judge of
the Workers’ Compensation Court have the effect of a jury verdict and will not be
disturbed unless clearly wrong.
3. ____: ____. In workers’ compensation cases, an appellate court determines ques-
tions of law.