State v. Andera

S
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www.nebraska.gov/apps-courts-epub/
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                               Nebraska Supreme Court Advance Sheets
                                        307 Nebraska Reports
                                                   STATE v. ANDERA
                                                   Cite as 

307 Neb. 686



                                        State of Nebraska, appellee, v.
                                        Brandi R. Andera, appellant.
                                                     ___ N.W.2d ___

                                         Filed October 30, 2020.   No. S-19-1205.

                 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 histori-
                    cal facts, the 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 the appellate court reviews indepen-
                    dently of the trial court’s determination.
                 2. Search and Seizure: Standing. A passenger who has a property interest
                    in a container within the vehicle has standing to challenge the search of
                    that container.
                 3. Constitutional Law: Search and Seizure. Searches conducted outside
                    the judicial process, 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.
                 4. Warrantless Searches. The warrantless search exceptions recognized by
                    the Nebraska Supreme Court include: (1) searches undertaken with con-
                    sent, (2) searches under exigent circumstances, (3) inventory searches,
                    (4) searches of evidence in plain view, and (5) searches incident to a
                    valid arrest.
                 5. Warrantless Searches: Police Officers and Sheriffs. A warrantless
                    search is valid when based upon consent of a third party whom the
                    police, at the time of the search, reasonably believed possessed author-
                    ity to consent to a search of the property, even if it is later demonstrated
                    that the individual did not possess such authority.
                 6. Search and Seizure: Police Officers and Sheriffs. The search of
                    property based on consent by a third party must be judged against
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           Nebraska Supreme Court Advance Sheets
                    307 Nebraska Reports
                            STATE v. ANDERA
                            Cite as 

307 Neb. 686

    an objective standard: Would the facts available to the officer at the
    moment warrant a person of reasonable caution in the belief that the
    consenting party had authority over the property?
 7. Warrantless Searches: Police Officers and Sheriffs. A warrantless sei-
    zure is justified under the plain view doctrine if (1) a law enforcement
    officer has a legal right to be in the place from which an object subject
    to 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.

  Appeal from the District Court for Douglas County: Marlon
A. Polk, Judge. Affirmed.
  Thomas C. Riley, Douglas County Public Defender, and
April M. Lucas for appellant.
   Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
  Cassel, J.
                      I. INTRODUCTION
   Brandi R. Andera appeals her drug possession conviction
following a stipulated bench trial. During a traffic stop, a
police officer obtained the female driver’s consent to search the
vehicle and found methamphetamine in a purse located on the
front passenger floorboard. Andera, the front seat passenger,
challenges the search, because she owned the purse and did not
consent to its search. Because the officer reasonably believed
that the driver could have owned the purse and the officer
found the contraband in plain view upon opening the wallet
that contained Andera’s identification, we affirm.
                     II. BACKGROUND
  Andera was convicted of one count of possession of a
controlled substance after a female police officer found meth-
amphetamine during a warrantless search of Andera’s purse
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         Nebraska Supreme Court Advance Sheets
                  307 Nebraska Reports
                        STATE v. ANDERA
                        Cite as 

307 Neb. 686

during a traffic stop. The officer initiated the stop because the
vehicle did not have license plates.
   During the traffic stop, the officer requested identification
from Andera, the female driver, and the rear seat passenger.
Andera and the driver complied, but the rear passenger failed
to provide accurate identifying information. The officer testi-
fied that the driver provided a driver’s license and the rear
passenger gave verbal identification (name and date of birth).
However, the officer could not recall whether Andera provided
a driver’s license or gave verbal identification.
   Suspecting illicit activity, the officer obtained consent from
the driver to search the vehicle. When the driver gave consent,
she was located outside the vehicle near the trunk. At that time,
Andera and the rear passenger remained in the vehicle out of
earshot, but neither Andera nor the rear passenger objected
once they were informed of the impending search.
   After removing the three vehicle occupants, the officer
searched the vehicle’s passenger compartment. The officer
discovered a single purse on the front passenger floorboard. It
was the only handbag in the vehicle. The officer did not ask the
occupants who owned the purse. The officer testified that at the
time, she was not certain to whom the purse belonged. But she
answered affirmatively when asked: “So in your mind, it could
have been the driver’s purse?”
   The officer searched the purse and immediately discovered
a needle. Continuing her search to a wallet located inside the
purse, the officer discovered a small bag of methamphetamine
and Andera’s Social Security and debit cards. The record does
not establish that the identification cards were discovered prior
to the methamphetamine. When asked at the scene, Andera
claimed the contraband was not hers. Nonetheless, she was
charged with possession of a controlled substance.
   Andera filed a motion to suppress the fruits of the war-
rantless search, claiming it violated her Fourth Amendment
protections against unlawful searches and seizures because
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            Nebraska Supreme Court Advance Sheets
                     307 Nebraska Reports
                             STATE v. ANDERA
                             Cite as 

307 Neb. 686

she did not consent to the search of her purse. At the conclu-
sion of the evidentiary hearing, the district court overruled
her motion.
   In overruling the motion, the court made three findings on
the record. First, the search was based on “the consent of the
driver to search the vehicle.” Second, “it [was] reasonable for
[the officer] to believe, [as] she testified, that the purse could
have been the driver’s.” Third, “[the officer] located a syringe
initially upon searching the purse, prior to discovering any
venue information that may give indicia of ownership of the
purse to someone [else].”
   In due course, the matter proceeded to the stipulated bench
trial, and shortly thereafter, the court found Andera guilty.
After the court imposed a sentence of probation, Andera filed a
timely appeal. We moved the appeal to our docket. 1

              III. ASSIGNMENT OF ERROR
  Andera assigns that the district court erred in overruling her
motion to suppress.

                  IV. 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. Regarding historical
facts, we review the trial court’s findings for clear error. But
whether those facts trigger or violate Fourth Amendment pro-
tections is a question of law that we review independently of
the trial court’s determination. 2

                       V. ANALYSIS
                        1. Standing
   [2] Andera does not challenge the validity of the officer’s
stopping the vehicle or the search of the vehicle’s passenger
1
    See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
2
    State v. Shiffermiller, 

302 Neb. 245

, 

922 N.W.2d 763

(2019).
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                     307 Nebraska Reports
                            STATE v. ANDERA
                            Cite as 

307 Neb. 686

compartment; instead, she challenges the search of her purse.
It is well established that a traffic violation, no matter how
minor, creates probable cause to stop the driver of a vehicle. 3
Additionally, a passenger does not have standing to challenge
a vehicle search where she has neither a property nor a posses-
sory interest in the automobile. 4 However, a passenger who has
a property interest in a container within the vehicle has stand-
ing to challenge the search of that container. 5 Because Andera
has a property interest in the purse that the officer searched,
she has standing to challenge its search.

                      2. Search of Purse
   [3,4] Searches conducted outside the judicial process, with-
out prior approval by a judge or magistrate, are per se unreason-
able under the Fourth Amendment to the U.S. Constitution, sub-
ject only to a few specifically established and well-­delineated
exceptions. 6 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. 7
   The officer who searched Andera’s purse relied on the con-
sent of the driver to conduct the warrantless search. However,
the driver did not own the purse and Andera never consented to
the search. Therefore, we must determine if the consent excep-
tion nonetheless applies to the search of the purse. We then
address the legality of the discovery of the contraband within
the purse.
3
    State v. Lee, 

265 Neb. 663

, 

658 N.W.2d 669

(2003).
4
    See Rakas v. Illinois, 

439 U.S. 128

, 

99 S. Ct. 421

, 

58 L. Ed. 2d 387

    (1978).
5
    See State v. Konfrst, 

251 Neb. 214

, 

556 N.W.2d 250

(1996).
6
    State v. Wells, 

290 Neb. 186

, 

859 N.W.2d 316

(2015).
7

Id. – 691 –

             Nebraska Supreme Court Advance Sheets
                      307 Nebraska Reports
                              STATE v. ANDERA
                              Cite as 

307 Neb. 686

                    (a) Consent to Search Purse
   The right to be free from unreasonable searches and seizures
may be waived by the consent of the citizen. 8 When the pros-
ecution seeks to justify a warrantless search by proof of vol-
untary consent, it is not limited to proof that the consent was
given by the defendant, but may show that the permission to
search was obtained from a third party who possessed common
authority over or other sufficient relationship to the premises or
effects sought to be inspected. 9
   [5,6] Furthermore, a warrantless search is valid when based
upon consent of a third party whom the police, at the time of
the search, reasonably believed possessed authority to consent
to a search of the property, even if it is later demonstrated that
the individual did not possess such authority. 10 The search of
property based on consent by a third party must “‘be judged
against an objective standard: would the facts available to the
officer at the moment . . . “warrant a man of reasonable cau-
tion in the belief”’ that the consenting party had authority over
the [property]?” 11
   Although the officer who searched Andera’s purse testified
that she was not certain who the purse belonged to when she
initiated the search, she reasonably believed that the purse
could have belonged to the female driver. Other courts have
found that officers can reasonably believe that a bag located
on the floorboard of the front passenger seat is the property
of the driver because the bag is within easy reach of the
driver and drivers do not ordinarily place their bags on the
driver’s-side floorboard. 12
 8
     Konfrst, supra note 5.
 9

Id. 10


Id. 11

     See Illinois v. Rodriguez, 

497 U.S. 177

, 188, 

110 S. Ct. 2793

, 

111 L. Ed. 2d

148 (1990) (quoting Terry v. Ohio, 

392 U.S. 1

, 

88 S. Ct. 1868

, 20 L.
     Ed. 2d 889 (1968)).
12
     See, e.g., U.S. v. Barber, 

777 F.3d 1303

(11th Cir. 2015).
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                      307 Nebraska Reports
                              STATE v. ANDERA
                              Cite as 

307 Neb. 686

   Andera argues that we should apply State v. Caniglia 13 to
determine if the officer reasonably believed that the driver
could have owned the purse. There, the Nebraska Court of
Appeals ruled that a warrantless search of a makeup purse hid-
den under the passenger seat violated the Fourth Amendment,
because a male driver could not give consent to the search. 14
The male driver did not have common authority or joint con-
trol over a female passenger’s makeup purse. 15 The Court of
Appeals reasoned that the officer could not reasonably have
believed the female passenger’s makeup purse was the property
of the male driver. 16
   Andera’s case is distinguishable from Caniglia. Here, the
driver and passenger were both female. Moreover, the purse
was located on the floorboard of the passenger seat, within the
driver’s reach, and not hidden under the passenger seat. We
are not persuaded that the reasoning in Caniglia applies here.
Thus, Andera’s argument lacks merit. 17
   Because the officer reasonably believed the purse could
have belonged to the driver, the officer was justified in rely-
ing on the driver’s consent to search Andera’s purse. However,
the driver’s consent was only a valid justification up until
the moment the officer determined that the purse belonged
to Andera. Thereafter, the driver’s consent would have been
insufficient to extend the search of the purse.
   The district court seemed to rely upon the officer’s discovery
of the needle to justify the seizure of the methamphetamine.
But another doctrine supported the officer’s action.
                     (b) Plain View Doctrine
   [7] It is well established that under certain circumstances,
the police may seize evidence in plain view without a
13
     State v. Caniglia, 

1 Neb. Ct. App. 730

, 

510 N.W.2d 372

(1993).
14
     See

id. 15

     See

id. 16

     See

id. 17

     See

id. – 693 –

             Nebraska Supreme Court Advance Sheets
                      307 Nebraska Reports
                             STATE v. ANDERA
                             Cite as 

307 Neb. 686

warrant. 18 Here, we are not concerned with the situation in
which there has been no Fourth Amendment search at all,
which encompasses those circumstances in which an obser-
vation is made by a police officer without a prior physical
intrusion into a constitutionally protected area. 19 The plain
view doctrine, which applies here, serves to supplement a
prior justification for a search—such as consent—and per-
mits the warrantless seizure. 20 Of course, the extension of the
original justification is legitimate only where it is immediately
apparent to the police that they have evidence before them;
the plain view doctrine may not be used to extend a general
exploratory search from one object to another until some-
thing incriminating at last emerges. 21 Therefore, 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 an object subject to 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. 22
   Here, the officer lawfully seized the evidence of metham-
phetamine from Andera’s purse under the plain view doctrine.
The officer’s search was already justified by the consent of
the driver, and the officer had a legal right to be looking in
the wallet. She did not discover the true ownership of the
purse until the wallet was already opened. Once the officer
saw the bag of methamphetamine, its contents became imme-
diately apparent in correlation with the previously discovered
needle and the officer could lawfully access and seize the
18
     Coolidge v. New Hampshire, 

403 U.S. 443

, 

91 S. Ct. 2022

, 

29 L. Ed. 2d 564

(1971).
19
     See 1 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth
     Amendment § 2.2(a) at 621 (6th ed. 2020) (discussing “‘open field’ or
     similar unprotected area”).
20
     See 1 LaFave, supra note 19.
21

Id. 22

     State v. Shurter, 

238 Neb. 54

, 

468 N.W.2d 628

(1991).
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         Nebraska Supreme Court Advance Sheets
                  307 Nebraska Reports
                       STATE v. ANDERA
                       Cite as 

307 Neb. 686

methamphetamine. Thus, the officer’s seizure was lawful under
the plain view doctrine.
                      VI. CONCLUSION
   The driver’s consent validated the officer’s warrant-
less search of Andera’s purse because the officer reasonably
believed the purse could have belonged to the driver. The plain
view doctrine justified the subsequent seizure of methamphet-
amine from Andera’s wallet. Andera’s Fourth Amendment pro-
tections against unreasonable searches and seizures were not
violated. Because the district court did not err in overruling
Andera’s motion to suppress, we affirm the judgment of the
district court.
                                                  Affirmed.

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