State v. Abu-Serieh , 25 Neb. Ct. App. 462 ( 2018 )

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State of Nebraska, appellee, v.
Issa A bu-Serieh, appellant.
___ N.W.2d ___
Filed January 16, 2018. No. A-17-151.
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 or
the safeguards established by the U.S. Supreme Court in Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error. But whether those facts trigger or violate Fourth Amendment or
Fifth Amendment protections is a question of law that an appellate court
reviews independently of the trial court’s determination.
2. Standing: Warrantless Searches. Before a party may challenge a
search without a warrant, he or she must have standing in a legal
controversy.
3. Standing: Words and Phrases. “Standing” means that a person has
a sufficient legally protectable interest which may be affected in a
justiciable controversy, entitling that person to judicial resolution of
the controversy.
4. Constitutional Law: Search and Seizure: Standing. A “standing”
analysis in the context of search and seizure is nothing more than an
inquiry into whether the disputed search and seizure has infringed an
interest of the defendant in violation of the protection afforded by the
Fourth Amendment.
5. Standing: Courts: Jurisdiction: Parties. Because the requirement of
standing is fundamental to a court’s exercise of jurisdiction, a litigant or
a court before which a case is pending may raise the question of stand-
ing at any time during the proceeding.
6. Constitutional Law: Search and Seizure. Ordinarily, two inquiries
are required to determine whether an individual may make a challenge
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under the Fourth Amendment. First, an individual must have exhibited
an actual (subjective) expectation of privacy, and second, the expecta-
tion must be one that society is prepared to recognize as reasonable.
7. Standing: Motor Vehicles: Search and Seizure: Contracts. The driver
of a rental vehicle may have standing to challenge the search or seizure
of such vehicle if he or she can demonstrate that he or she received
permission to drive the vehicle from the individual authorized on the
rental agreement.
8. Standing: Warrantless Searches. Mere possession of a key granting
access to a house does not necessarily create standing to raise an objec-
tion to a warrantless search.
9. Investigative Stops: Motor Vehicles: Probable Cause. A traffic viola-
tion, no matter how minor, creates probable cause to stop the driver of
a vehicle.
10. Investigative Stops: Police Officers and Sheriffs: Probable Cause. If
an officer has probable cause to stop a violator, the stop is objectively
reasonable and any ulterior motivation is irrelevant.
11. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs:
Probable Cause. 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.
12. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs. A
law enforcement officer may conduct certain unrelated checks during an
otherwise lawful traffic stop, so long as doing so does not measurably
extend the duration of the stop.
13. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs:
Probable Cause. In order to expand the scope of a traffic stop and
continue to detain the motorist, a law enforcement officer must have a
reasonable, articulable suspicion that a person in the vehicle is involved
in criminal activity beyond that which justified the initial stop.
14. Probable Cause: Words and Phrases. Reasonable suspicion entails
some minimal level of objective justification for detention, something
more than an inchoate and unparticularized hunch, but less than the level
of suspicion required for probable cause.
15. Miranda Rights: Self-Incrimination. Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), prohibits the use of state-
ments stemming from the custodial interrogation of a defendant unless
the prosecution demonstrates the use of procedural safeguards effective
to secure the privilege against self-incrimination.
16. Miranda Rights. The Miranda safeguards come into play whenever a
person in custody is subjected to either express questioning or its func-
tional equivalent.
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17. Miranda Rights: Investigative Stops: Motor Vehicles. Persons tempo-
rarily detained pursuant to an investigatory traffic stop are not in cus-
tody for purposes of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966).
18. Miranda Rights: Investigative Stops: Motor Vehicles: Police Officers
and Sheriffs. Neither detention pursuant to a traffic stop nor continued
voluntary contact with law enforcement constitutes a formal arrest
or restraint on an individual’s freedom sufficient to require Miranda
warnings.
Appeal from the District Court for Lancaster County:
A ndrew R. Jacobsen, Judge. Affirmed.
Steven B. Muslin, of Muslin & Sandberg, and Thomas J.
Olsen, of Olsen Law Offices, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Pirtle, R iedmann, and A rterburn, Judges.
R iedmann, Judge.
INTRODUCTION
Following a stipulated bench trial, Issa Abu-Serieh was
found guilty of one count of delivery or possession with
intent to deliver a controlled substance, marijuana. The dis-
trict court for Lancaster County sentenced him to 18 to 36
months’ imprisonment. Abu-Serieh now appeals his conviction.
Following our review of the record, we affirm.
BACKGROUND
The events giving rise to this case, and the issues raised on
appeal, are substantially intermingled with those in a compan-
ion case filed today in State v. Khalil, ante p. 449, ___ N.W.2d
___ (2018).
On January 25, 2015, Lancaster County Deputy Sheriff
Jason Henkel observed two vehicles traveling eastbound on
Interstate 80. The first was a Nissan Altima; immediately
behind the Nissan was a Ford Edge. Henkel observed that both
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vehicles had out-of-state license plates and that both appeared
to be following the vehicle in front of them too closely. Henkel
believed that the two vehicles were traveling together based
on “their driving habits” and the fact that they appeared to be
staying close to one another. Henkel used a stopwatch to time
both vehicles’ speed and distance traveled and determined
that both vehicles were following at a closer distance than is
considered safe. Henkel contacted Deputy Sheriff Jason Mayo
and requested that he initiate a traffic stop of the Ford for
following too closely while Henkel initiated a traffic stop of
the Nissan.
Mayo initiated a traffic stop of the Ford and made contact
with the driver and sole occupant, who was later identified as
Abu-Serieh. Abu-Serieh provided Mayo with a copy of the
rental agreement for the vehicle, which was not rented in his
name. Abu-Serieh stated that he was coming from California
and that a cousin had rented the vehicle for him there. When
Mayo asked Abu-Serieh if he was traveling with anyone, Abu-
Serieh responded that he was not.
Mayo informed Abu-Serieh that he would be issuing a warn-
ing citation for following too closely and requested that Abu-
Serieh accompany him to his cruiser while he completed the
paperwork. Abu-Serieh complied and sat in the front passenger
seat of Mayo’s cruiser.
During this time, Mayo maintained contact with Henkel
via the mobile data terminal in each of their cruisers. The
deputies exchanged details regarding the information that
Abu-Serieh and the other driver, who was identified as Ali
E. Khalil, gave them. Henkel informed Mayo that Khalil had
stated that he and Abu-Serieh were traveling together and
that he had rented the vehicle Abu-Serieh was driving. Mayo
was ultimately able to confirm that the vehicle driven by
Abu-Serieh was rented in Khalil’s name. Furthermore, Khalil
reported that he was coming from a trucking convention in
Salt Lake City, Utah, while Abu-Serieh stated that he was
coming from California.
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After Mayo completed the paperwork and gave the warning
citation to Abu-Serieh, he asked Abu-Serieh if he could ask a
few additional questions. Abu-Serieh consented. Mayo then
asked Abu-Serieh if he had any illegal items in his vehicle
such as marijuana. Mayo also informed Abu-Serieh that he
had smelled the odor of raw marijuana when he initially made
contact at the vehicle’s window. Abu-Serieh responded that
he did not have marijuana in his vehicle. Mayo then asked
Abu-Serieh if he could search the vehicle, and Abu-Serieh
consented.
During his search, Mayo found two marijuana joints in a
plastic container along with a piece of drug paraphernalia and
two driver’s licenses for Abu-Serieh. In the back cargo area,
Mayo found a spare tire for another vehicle, as well as its com-
ponent parts, and the contents of another vehicle’s trunk.
While Mayo was searching Abu-Serieh’s vehicle, Henkel
was simultaneously searching Khalil’s vehicle. During Mayo’s
search, Henkel contacted Mayo and asked if he had found
a “trunk lock key” for the Nissan. Mayo found a key that
appeared to match this description in a backpack on the front
passenger seat of the Ford.
Both deputies testified that in order to open the trunk, the
trunk lock located inside the glovebox had to be turned off.
The key found in Abu-Serieh’s backpack turned off the trunk
lock which allowed the deputies to open the trunk. After the
Nissan’s trunk was opened, the deputies found 128 pounds
of marijuana inside. Abu-Serieh and Khalil were both sub-
sequently placed under arrest. Mayo testified that he placed
both parties in the back seat of his cruiser and read them their
Miranda warnings. After being booked at the jail, Abu-Serieh
admitted to Mayo that he was to receive $6,000 to be another
driver for the transportation of the load of marijuana from
California to Chicago, Illinois.
Abu-Serieh was charged with delivery or possession with
intent to deliver a controlled substance, marijuana, in viola-
tion of Neb. Rev. Stat. § 28-416(1) and (2)(b) (Cum. Supp.
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2014). He filed a motion to suppress, claiming that his rights
under the Fourth and Fifth Amendments had been violated.
The district court held a hearing on the motion and overruled
it, finding that there was probable cause to stop Abu-Serieh’s
vehicle, that the statements he made in Mayo’s cruiser were not
custodial and not subject to Miranda warnings, that Abu-Serieh
freely and voluntarily consented to the search of his vehicle,
and that there was probable cause based on the totality of the
circumstances for Abu-Serieh’s arrest. The district court addi-
tionally found that Abu-Serieh waived his Miranda rights and
that his postarrest statements were admissible.
The district court subsequently held a stipulated bench trial
and found Abu-Serieh guilty. The court sentenced Abu-Serieh
to 18 to 36 months’ imprisonment. Abu-Serieh now appeals.
ASSIGNMENT OF ERROR
Abu-Serieh assigns, restated, that the district court erred in
denying his motion to suppress.
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
or the safeguards established by the U.S. Supreme Court in
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966), we apply a two-part standard of review. See,
State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012); State
v. Nelson, 282 Neb. 767, 807 N.W.2d 769 (2011). Regarding
historical facts, we review the trial court’s findings for clear
error. State v. Bauldwin, supra; State v. Nelson, supra. But
whether those facts trigger or violate Fourth Amendment or
Fifth Amendment protections is a question of law that we
review independently of the trial court’s determination. State v.
Bauldwin, supra; State v. Nelson, supra.
ANALYSIS
Abu-Serieh argues that the district court erred in denying
his motion to suppress. Specifically, he claims that the district
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court erred in finding that the deputies did not violate his
rights under the Fourth and Fifth Amendments.
Fourth Amendment.
Abu-Serieh claims that the deputies violated his Fourth
Amendment rights by stopping his vehicle on a pretextual
basis and improperly extending the scope of the traffic stop.
He also argues that he had a legitimate expectation of privacy
in the trunk of Khalil’s vehicle due to his possession of the key
that opened the trunk. He argues that due to this expectation
of privacy, the violation of Khalil’s Fourth Amendment rights
in the search and seizure of Khalil’s rental vehicle violated his
Fourth Amendment rights as well.
[2-6] Before a party may challenge a search without a war-
rant, he or she must have standing in a legal controversy. See
State v. Baltimore, 242 Neb. 562, 495 N.W.2d 921 (1993).
“Standing” means that a person has a sufficient legally pro-
tectable interest which may be affected in a justiciable con-
troversy, entitling that person to judicial resolution of the
controversy. Id. A “standing” analysis in the context of search
and seizure is nothing more than an inquiry into whether the
disputed search and seizure has infringed an interest of the
defendant in violation of the protection afforded by the Fourth
Amendment. State v. Nelson, 282 Neb. 767, 807 N.W.2d 769
(2011). Because the requirement of standing is fundamental to
a court’s exercise of jurisdiction, a litigant or a court before
which a case is pending can raise the question of standing
at any time during the proceeding. State v. Baltimore, supra.
To determine whether an individual may make a challenge
under the Fourth Amendment, we must determine whether an
individual has a legitimate or justifiable expectation of pri-
vacy. See State v. Nelson, supra. Ordinarily, two inquiries are
required for such a determination. First, an individual must
have exhibited an actual (subjective) expectation of privacy,
and second, the expectation must be one that society is pre-
pared to recognize as reasonable. Id.
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[7] Both the U.S. Supreme Court and the Nebraska Supreme
Court have held that individuals have a lesser expectation of
privacy in a motor vehicle than in a home or office because a
motor vehicle’s “function is for transportation purposes and it
seldom serves as one’s residence or as the repository of per-
sonal effects.” See State v. Konfrst, 251 Neb. 214, 224, 556
N.W.2d 250, 259 (1996), citing United States v. Chadwick, 433
U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977). The expecta-
tion of privacy in one’s vehicle extends to rental vehicles. See
State v. Nelson, supra. Nebraska law has held that the driver
of a rental vehicle may have standing to challenge the search
or seizure of such vehicle if he or she can demonstrate that he
or she received permission to drive the vehicle from the indi-
vidual authorized on the rental agreement. See id.
Here, Abu-Serieh contends that he had a legitimate expec-
tation of privacy in the trunk of Khalil’s vehicle because he
was in possession of the key that opened the trunk. However,
nowhere in his brief does he explain why he believes posses-
sion of the key gives rise to a reasonable, legitimate expecta-
tion of privacy. Instead, his argument on this issue consists of
only conclusory statements that such a legitimate expectation
of privacy exists.
The State argues that Abu-Serieh lacks standing to challenge
the search and seizure of Khalil’s vehicle. The State claims
that there is no evidence that Abu-Serieh ever drove or trav-
eled in Khalil’s vehicle, that he had any belongings in Khalil’s
vehicle, or that he ever had dominion or control over Khalil’s
vehicle or any of its contents. Although Abu-Serieh was in
possession of the key to the vehicle’s trunk, the State argues
that there is a difference between a party having access to the
trunk and a party having a reasonable expectation of privacy
in the trunk.
In State v. Baltimore, 242 Neb. 562, 495 N.W.2d 921 (1993),
the Nebraska Supreme Court considered whether a party had
standing to challenge the search of the house where he was
arrested when he did not reside in the house. There, Steave
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Baltimore had permission and “‘sometimes’” had a key to his
neighbor’s home for the limited purpose of using the neigh-
bor’s garden hose. Id. at 572, 495 N.W.2d at 928. On the night
that Baltimore was arrested, he had asked for and received his
neighbor’s house key and permission for the purpose of using
the neighbor’s bathroom. Law enforcement officers made con-
tact with Baltimore at the door to the house and subsequently
entered the home and found prescription drugs.
[8] On appeal, Baltimore argued that the search of the
house was unlawful. The Supreme Court found that Baltimore
had a key to his neighbor’s house for a very limited purpose,
never exercised control over the house or its contents, did
not keep his personal belongings there, and did not have an
unlimited right to enter the house. State v. Baltimore, supra.
The court held that “[a]lthough Baltimore places much stock
in his having a key for access to [his neighbor’s] house, more
than possession of a house key is necessary for access to the
Constitution for an objection against the police search of [his
neighbor’s] house without a warrant.” Id. at 573, 495 N.W.2d at
928. Finding that Baltimore’s limited access to his neighbor’s
house was insufficient to demonstrate a legitimate expectation
of privacy in the home, the Supreme Court held that Baltimore
lacked standing to challenge the search. Thus, mere possession
of a key granting access to a house does not necessarily create
standing to raise an objection to a warrantless search. See State
v. Baltimore, supra.
While we find no Nebraska case law directly on point for
the issue of whether possession of a key to the trunk of a
vehicle rented in another individual’s name is sufficient to give
rise to a legitimate expectation of privacy, we believe that the
factors outlined in State v. Baltimore, supra, can be applied in
this case.
Here, Abu-Serieh claims to have a legitimate expectation of
privacy in the trunk of Khalil’s vehicle due to his possession of
the key that opened the trunk. However, there is no evidence
in the record to indicate that Abu-Serieh ever exercised any
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type of control over the trunk or any other part of Khalil’s
vehicle. The law enforcement officers found no evidence that
Abu-Serieh kept any personal belongings anywhere in Khalil’s
vehicle. Furthermore, the vehicle was rented in Khalil’s name,
not Abu-Serieh’s.
While Abu-Serieh did possess the key that opened the
locked glovebox, thereby giving access to the trunk lock, that
was the key’s only purpose; it was not a key to the vehicle
itself. Additionally, Henkel and Mayo testified that in order to
use the key to open the trunk, it must be inserted into a lock
in the glovebox that would then allow the trunk lock to be
turned either on or off. Based on this testimony, it appears that
a person must first have access to the passenger compartment
of the vehicle in order to use the trunk key. This indicates that
Abu-Serieh did not have an unlimited right to access the trunk,
as use of the key required Khalil to grant him access to the
vehicle’s passenger compartment.
Based on these factors, as well as the lesser expectation of
privacy an individual has in a vehicle, we find that Abu-Serieh
did not have a legitimate expectation of privacy in the trunk
of Khalil’s rental vehicle and therefore does not have standing
to challenge the search and seizure of the vehicle. Other juris-
dictions addressing the issue of whether possession of a key
creates a reasonable expectation of privacy in the item which
the key unlocks have similarly found a lack of standing. See,
e.g., U.S. v. Stokes, 829 F.3d 47 (1st Cir. 2016) (no standing to
maintain Fourth Amendment challenge to search of post office
box to which defendant held key); U.S. v. Reyes, 908 F.2d 281
(8th Cir. 1990) (possession of key to rental locker does not cre-
ate reasonable expectation of privacy in locker); United States
v. Sanchez, 635 F.2d 47 (2d Cir. 1980) (possession of keys
insufficient to give defendant constitutionally protected interest
in privacy of car).
Because Abu-Serieh lacks standing to challenge the search
of the Nissan, our analysis will focus solely on the stop of the
Ford driven by Abu-Serieh.
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Abu-Serieh argues that Mayo improperly expanded the
scope of the traffic stop by asking him questions unrelated to
the offense of following too closely and by extending the scope
past the time at which Mayo issued him a warning citation.
We disagree.
[9,10] Before addressing the merits of his argument, we note
that Abu-Serieh spends a significant portion of his brief argu-
ing that the stop of his vehicle was pretextual. However, he
also concedes that “[t]he evidence is unrebutted that the traffic
stop was properly initiated . . . ,” brief for appellant at 27, and
that Henkel had “both reasonable suspicion . . . and probable
cause” to stop Abu-Serieh’s vehicle for the offense of follow-
ing too close, id. at 31. It is well established that a traffic viola-
tion, no matter how minor, creates probable cause to stop the
driver of a vehicle. State v. Jasa, 297 Neb. 822, 901 N.W.2d
315 (2017). If an officer has probable cause to stop a violator,
the stop is objectively reasonable and any ulterior motivation is
irrelevant. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57
(2008). It is clear from the record that the stop of Abu-Serieh’s
vehicle was lawful.
[11,12] Once a vehicle is lawfully stopped, a law enforce-
ment officer may conduct an investigation reasonably related
in scope to the circumstances that justified the traffic stop.
State v. Nelson, 282 Neb. 767, 807 N.W.2d 769 (2011). 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 des-
tination of his or her travel. Id. Also, the officer may run a
computer check to determine whether the vehicle involved in
the stop has been stolen and whether there are any outstand-
ing warrants for any of its occupants. Id. The U.S. Supreme
Court has held that an officer may conduct certain unrelated
checks during an otherwise lawful traffic stop, so long as
doing so does not measurably extend the duration of the stop.
Arizona v. Johnson, 555 U.S. 323, 129 S. Ct. 781, 172 L. Ed.
2d 694 (2009).
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[13,14] In order to expand the scope of a traffic stop and
continue to detain the motorist, an officer must have a rea-
sonable, articulable suspicion that a person in the vehicle is
involved in criminal activity beyond that which initially justi-
fied the stop. See State v. Nelson, supra. Reasonable suspicion
entails some minimal level of objective justification for deten-
tion, something more than an inchoate and unparticularized
hunch, but less than the level of suspicion required for prob-
able cause. Id.
Here, Mayo testified that during the course of the traffic
stop, he asked Abu-Serieh where he was from, what he did for
a living, as well as his general itinerary and travel plans. Abu-
Serieh stated that he was coming from California, where his
cousin had rented the vehicle for him, and that he was not trav-
eling with anyone else. After completing the paperwork for the
warning citation and handing it to Abu-Serieh, Mayo sought
permission to ask a few additional questions and Abu-Serieh
consented. At that point, Mayo asked Abu-Serieh if he had any
illegal items such as marijuana in his vehicle and informed
Abu-Serieh that he had smelled the odor of raw marijuana
upon making initial contact at the vehicle’s window. Abu-
Serieh denied having marijuana in the vehicle and consented to
Mayo’s request to search the vehicle.
Although Mayo conceded that some of the questions he
asked Abu-Serieh during the traffic stop were unrelated to
issuing a warning citation, there is nothing in the record to
suggest that such questions extended the duration of the stop.
Furthermore, after Mayo completed the warning citation and
handed it to Abu-Serieh, thereby completing the traffic stop,
Abu-Serieh consented to additional questioning. At that time,
we find that Abu-Serieh was no longer detained and was
instead engaged in a voluntary contact with Mayo. Such vol-
untary contact does not require reasonable suspicion because
Abu-Serieh was no longer detained and was free to termi-
nate the encounter. Abu-Serieh also consented to a search of
his vehicle thereby agreeing to an extension of the scope of
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the stop. Accordingly, we find no merit to this assignment
of error.
Fifth Amendment.
Abu-Serieh argues that Mayo’s question to him of whether
he had any drugs “created a hazard of incrimination” and that
he was compelled to answer the question or be penalized for
asserting his right to refuse to answer. Brief for appellant at
39. He therefore concludes that Mayo was required to read
him his Miranda rights prior to posing the question. This argu-
ment fails for two reasons. First, Abu-Serieh was not in cus-
tody. Second, Mayo posed the question only after Abu-Serieh
consented to additional questioning.
[15-17] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966), prohibits the use of statements stem-
ming from the custodial interrogation of a defendant unless
the prosecution demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination.
State v. Cody, 248 Neb. 683, 539 N.W.2d 18 (1995). The
Miranda safeguards come into play whenever a person in cus-
tody is subjected to either express questioning or its functional
equivalent. State v. DeJong, 287 Neb. 864, 845 N.W.2d 858
(2014). A person is in custody for purposes of Miranda when
there is a formal arrest or a restraint on his or her freedom
of movement to the degree associated with such an arrest.
See State v. Landis, 281 Neb. 139, 794 N.W.2d 151 (2011).
Persons temporarily detained pursuant to an investigatory traf-
fic stop are not in custody for purposes of Miranda. State v.
Landis, supra.
Because Abu-Serieh was only temporarily detained pursu-
ant to an investigatory traffic stop when he was seated in
the cruiser, he was not in custody for purposes of Miranda.
Furthermore, Abu-Serieh consented to additional questioning.
See State v. Landis, supra (determining defendant voluntarily
stayed in cruiser for additional questioning at officer’s request
and therefore was not in custody).
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[18] Neither detention pursuant to a traffic stop nor contin-
ued voluntary contact with law enforcement constitutes a for-
mal arrest or restraint on an individual’s freedom sufficient to
require Miranda warnings. Therefore, we find no merit to this
assignment of error.
CONCLUSION
Following our review of the record, we find Abu-Serieh’s
assignment of error to be without merit and therefore affirm.
A ffirmed.