IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. CROFT
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
BARRY L. CROFT, APPELLANT.
Filed June 6, 2017. No. A-16-770.
Appeal from the District Court for Douglas County: GREGORY M. SCHATZ, Judge.
Affirmed.
Thomas C. Riley, Douglas County Public Defender, and Travis L. Wampler for appellant.
Douglas J. Peterson, Attorney General, and Sarah E. Marfisi for appellee.
INBODY and ARTERBURN, Judges.
INBODY, Judge.
INTRODUCTION
Barry L. Croft appeals from an order of the district court for Douglas County overruling
his motion to suppress evidence and finding him guilty of two counts of possession of a controlled
substance after a stipulated bench trial. On appeal, Croft argues the district court erred in overruling
his motion to suppress because the search of his vehicle was done without a warrant and did not
fit within the search incident to lawful arrest or any other recognized exceptions to the warrant
requirement.
STATEMENT OF FACTS
The State filed an information charging Croft with two counts of possession of a controlled
substance. Croft filed a motion to suppress evidence obtained pursuant to the search of his vehicle,
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alleging the search was done without a warrant and did not fit within the search incident to lawful
arrest or any other recognized exceptions to the warrant requirement.
At the suppression hearing, there was testimony that on August 4, 2015, at around 8 a.m.,
the Ralston Police Department was dispatched, after receiving a report that Croft was in the parking
lot of Ralston Junior High, armed with a gun. Sergeant Blair Bishop responded to the scene without
knowing the description of Croft’s vehicle and saw that there were about 100 vehicles in the
Ralston Junior High parking lot because it was student registration day. Upon notifying the
school’s principal about the situation, Sergeant Bishop was informed by Deputy Chief Leonardo
that Croft was driving a Tahoe. Sergeant Bishop left an officer at the front door of the school and
proceeded to the school’s parking lot to find the Tahoe. However, he could not find the vehicle
and believed the reporting party may have been confused about the location of the vehicle. As a
result, Sergeant Bishop went to various Ralston schools to find the vehicle, but was not able to
find a vehicle matching the description.
Upon his return to Ralston Junior High to pick up the other officer, Sergeant Bishop was
notified that Art Croft called 9-1-1, stating that Croft was in the driveway of Art’s residence and
was armed with a gun. When Sergeant Bishop arrived, he noticed a Tahoe matching the description
provided earlier in Art’s driveway and saw Croft sitting in the driver’s seat. Sergeant Bishop
activated his overhead lights, deployed his patrol rifle, and started giving loud verbal commands
to Croft. Croft exited the vehicle, but began to reach back into the vehicle, causing Sergeant Bishop
to give Croft more verbal commands. Croft started to walk towards Sergeant Bishop, but turned
his back to Sergeant Bishop and reached towards his ankles. Sergeant Bishop continued to give
Croft commands, and eventually Croft complied by stepping back to Sergeant Bishop and getting
down onto the ground. Sergeant Bishop held Croft at gunpoint until Deputy Chief Leonardo
arrived.
When Deputy Chief Leonardo arrived, he and Sergeant Bishop approached Croft and
placed him in handcuffs. Another officer escorted Croft to a police cruiser, placing Croft in the
backseat, where Croft did not have access to the interior of the Tahoe. While Croft was being taken
into custody, he was incoherently rambling, making comments about conspiracy theories, and
working undercover for the FBI. Deputy Chief Leonardo went to speak with Art to find out some
more information, while Sergeant Bishop proceeded to search the Tahoe. Art told Deputy Chief
Leonardo that Croft had taken two long guns from his home, and Deputy Chief Leonardo relayed
this information to Sergeant Bishop.
Sergeant Bishop visually inspected the vehicle before entering, as the driver’s side door
was still open, but did not see anything from outside the vehicle. Sergeant Bishop then searched
the driver’s seat and noticed a long rifle case behind the driver’s seat, partially covered by some
clothes. Sergeant Bishop recovered the unlocked case, opened it, and saw a breech-action .12
gauge shotgun and at least one .12-gauge shotgun round.
Sergeant Bishop informed Deputy Chief Leonardo that he located the firearm, causing
Deputy Chief Leonardo to begin a search of the backseat and passenger side. While Deputy Chief
Leonardo searched the rear of the vehicle, he noticed a backpack. Deputy Chief Leonardo unzipped
the backpack, opened it, and saw a plastic container. Deputy Chief Leonardo then opened the
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plastic container, noticing Croft’s identification, along with some pills and drug paraphernalia,
including four different kinds of Schedule IV controlled substances.
At the hearing on the motion to suppress, Sergeant Bishop testified that he searched the
vehicle because of the initial dispatch, the follow-up call from Art, the information that Croft was
armed with a shotgun, and Sergeant Bishop’s desire to secure the shotgun for safety. Sergeant
Bishop testified that he continued to search the vehicle because Art advised that Croft had stolen
two shotguns from him and that Sergeant Bishop had been trained that “if there’s one weapon,
there’s two weapons. If there’s two weapons, there’s three weapons. So we continue to make sure
there’s no other weapons in the vehicle. So we’ll search until the vehicle’s been completely
searched.”
At the February 2016 suppression hearing, Sergeant Bishop admitted that he was unsure
whether he was informed about there being two stolen shotguns before or during the search of the
vehicle. Although both Sergeant Bishop and Deputy Chief Leonardo testified they were told a
shotgun had been dropped off at Croft’s mother’s home, neither could recall whether they received
this information before or after the search of the vehicle.
Moreover, at the suppression hearing, Deputy Chief Leonardo acknowledged that he found
the backpack after Sergeant Bishop found the breech-action .12 gauge shotgun, but continued to
search because he was looking for another weapon. Deputy Chief Leonardo also stated that
because the two guns were long guns, they could not have been concealed in a backpack.
Additionally, when the district court asked Deputy Chief Leonardo if he said he was looking for
guns when he looked inside the backpack, Deputy Chief Leonardo responded, “Well, we don’t
know. I mean, obviously the dad said that he had taken two long guns,” but informed the court he
wanted to assure that the backpack did not contain a firearm as the initial call was an “armed
disturbance, [and they didn’t] know exactly how many guns, if [Croft] had any guns prior to that
. . . that were still in the car that were in addition to the two shotguns that he - that he took.”
In March 2016, the district court denied Croft’s motion to suppress. The district court
determined that officers were permitted to conduct a search of the vehicle, despite Croft being
secured and away from the searched vehicle, because “it was reasonable to believe that the vehicle
might contain evidence of the offense for which [Croft] had been arrested.” The court noted that
the search was allowed because “[t]he officers testified that [Croft] had been detained for an initial
report of being involved in an armed disturbance, involving guns he had stolen from his father,
and testified that they were searching [Croft’s] car for guns that might be in the car.” The district
court determined the search would satisfy the preservation of evidence exception and that a
warrantless search was justified under the circumstances.
Croft waived his right to a jury trial and in May 2016, the matter proceeded to a bench trial.
The parties stipulated to the following facts, as set forth by the prosecutor:
That on August 4th, 2015, officers of the Omaha Police Department had received
911 calls regarding an individual that seemed to appear to be distraught, claiming to be
working with various law enforcement agencies, that was armed and had mentioned
something about being at the Ralston middle school.
Officers with the Ralston Police Department had -- went to check at the various
schools in the area. While they were doing this they received another 911 call that indicated
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that this individual, who by now is identified as . . . Croft, was at his father’s house . . . and
that he was in the park -- excuse me, the driveway and that he was still armed with some
shotguns.
Officers responded to that location and eventually was able to secure . . . Croft.
When the officers were doing a search--
....
At the time the officers take . . . Croft into custody they did search his vehicle.
While searching the vehicle, they did find a firearm. There was also a backpack located in
the backseat of the vehicle, or at least in the vehicle. This backpack had a driver’s license
to . . . Croft. Also in the backpack were several prescription medications, including
Clonazepam and Carisoprodol . . . . And these are both controlled substances under the
State of Nebraska statutes.
In this midst of the stipulated facts, Croft again objected to anything found as a result of
the search of the vehicle or of his person. The district court noted the objection and again overruled
it. Croft was found guilty of the two counts of possession of a controlled substance and sentenced
to probation for a term of 3 years.
ASSIGNMENTS OF ERROR
On appeal, Croft’s assignments of error, consolidated and restated, are that the district court
erred in denying his motion to suppress evidence obtained during the search of his vehicle because
the search was undertaken without a warrant and did not fit the exception to search incident to
lawful arrest or any of the other recognized exceptions to the warrant requirement.
STANDARD OF REVIEW
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. State v. Rocha,
295 Neb. 716, 890 N.W.2d 178 (2017). 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 independently of the trial court’s
determination. Id. When a motion to suppress is denied pretrial and again during trial on renewed
objection, an appellate court considers all the evidence, both from trial and from the hearings on
the motion to suppress. Id.
The ultimate determination of probable cause to perform a warrantless search 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. Id.
ANALYSIS
Croft contends the district court erred in denying his motion to suppress the evidence found
as a result of the vehicle search. Specifically, Croft claims the district court mistakenly relied on
an exception to the warrant requirement because he had not been lawfully arrested at the time the
search took place, he was secured in a police cruiser and had no access to the vehicle’s interior,
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and there was no reason to believe that the offense of arrest would be found in the backpack located
in his vehicle. Further, Croft argues that law enforcement went beyond the scope of the search
incident to arrest by opening the backpack in the vehicle and that the search did not fit into any of
the recognized exceptions to the warrant requirement.
The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska
Constitution protect individuals against unreasonable searches and seizures by the state. State v.
Pester, 294 Neb. 995, 885 N.W.2d 713 (2016). In other words, the essential criterion of the Fourth
Amendment and article I, § 7, of the Nebraska Constitution is reasonableness. State v. Rocha,
supra. Searches without a valid warrant are per se unreasonable, subject only to a few specifically
established and well-delineated exceptions, including searches incident to a lawful arrest. Id. The
State has the burden of showing the applicability of one or more of the exceptions to the warrant
requirement. State v. Perry, 292 Neb. 708, 874 N.W.2d 36 (2016).
An arrest constitutes a seizure that must be justified by probable cause to believe that a
suspect has committed or is committing a crime. State v. Pester, supra. Probable cause is a flexible,
commonsense standard that depends on the circumstances’ totality. State v. Rocha, supra.
“Probable cause to search requires that the known facts and circumstances are sufficient to warrant
a person of reasonable prudence in the belief that contraband or evidence of a crime will be found.”
Id. at 755, 890 N.W.2d at 207. We determine whether probable cause exists under an objective
standard of reasonableness, given the known facts and circumstances. State v. Pester, supra.
“Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is
within reaching distance of the passenger compartment at the time of the search or it is reasonable
to believe the vehicle contains evidence of the offense of arrest.” Arizona v. Gant, 556 U.S. 332,
351, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009) (emphasis supplied). “[C]ircumstances unique to
the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe
evidence relevant to the crime of arrest might be found in the vehicle.” 556 U.S. at 343 (internal
quotations omitted). Whether the warrantless search of a vehicle is conducted incident to arrest, or
is justified instead by probable cause, law enforcement may search all containers that might
conceal the object of the search. United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed.
2d 572 (1982). That is to say, if there is probable cause to believe a vehicle contains evidence of
criminal activity, law enforcement may lawfully search any area of the vehicle in which the
evidence might be found. Arizona v. Gant, supra. Additionally, “[w]hen there is probable cause to
search for contraband in a car, it is reasonable for police officers . . . to examine packages and
containers without a showing of individualized probable cause for each one.” Wyoming v.
Houghton, 526 U.S. 295, 302, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999).
In this instance, the record indicates that law enforcement received reports that Croft was
at the Ralston Junior High School parking lot, armed with a gun. Nebraska State law provides that
a person is not allowed to possess a firearm on school grounds. See Neb. Rev. Stat. § 28-1204.04(1)
(Reissue 2016) (“Any person who possesses a firearm . . . on school grounds . . . is guilty of the
offense of unlawful possession of a firearm at a school. Unlawful possession of a firearm at a
school is a Class IV felony.”). As law enforcement tried to find Croft, they received an updated
report that Croft was parked in the driveway at his father’s residence, armed with a gun.
Specifically, in Sergeant Bishop’s testimony, he indicated that when he was dispatched to the
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school and to Art’s home, he was told that Croft was “armed with a gun.” The stipulated facts at
the bench trial also provided that law enforcement received reports of an individual “that was
armed” at the school and “that this individual, who by now is identified as . . . Croft . . . was still
armed with some shotguns.” Although the timeline is questionable on whether law enforcement
was informed that Croft took two long guns from Art’s home before or during the search of the
vehicle, there was no indication that the reports of Croft being “armed with a gun” was specific to
Croft’s possession of Art’s long guns. Although Deputy Chief Leonardo acknowledged that
because the guns taken from Art were long guns they could not have been concealed in a backpack,
he stated his desire to assure that the backpack did not contain a firearm since the initial call was
an “armed disturbance” and that they did not know “exactly how many guns, if [Croft] had any
guns prior to that . . . that were still in the car that were in addition to the two shotguns that he
. . . took.”
Based on our review of the record, it appears Croft was taken into custody based on the
reports that he had been in possession of a firearm at a school. As such, it was reasonable for law
enforcement to believe that Croft’s vehicle contained evidence of the offense for which Croft, as
a recent occupant of the vehicle, had been arrested. As it was reasonable for the law enforcement
officer to believe the vehicle contained evidence related to the offense for which the arrest was
made, the search of the vehicle, including containers or bags that might conceal the object of the
search within it, and the seizure of the items found as a result of that search were reasonable.
Moreover, because we ultimately conclude that the search of the vehicle, including the backpack
located in the vehicle, was conducted pursuant to search incident to arrest, we need not consider
any of the other exceptions.
CONCLUSION
Having found no merit to Croft’s assignments of error, we affirm the denial of Croft’s
motion to suppress and his conviction.
AFFIRMED.
MOORE, Chief Judge, participating on briefs.
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