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www.nebraska.gov/apps-courts-epub/
01/30/2018 09:12 AM CST
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Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. KHALIL
Cite as 25 Neb. App. 449
State of Nebraska, appellee, v.
A li E. K halil, appellant.
___ N.W.2d ___
Filed January 16, 2018. No. A-17-085.
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 historical 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. Investigative Stops: Motor Vehicles: Probable Cause. A traffic violation, no matter how minor, creates probable cause to stop the driver of
a vehicle.
3. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs.
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. 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 destination of his or her travel. 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 outstanding warrants for any of
its occupants.
4. ____: ____: ____. An officer’s inquiries into matters unrelated to the
justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not meas
urably extend the duration of the stop.
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STATE v. KHALIL
Cite as 25 Neb. App. 449
5. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs:
Probable Cause. To expand the scope of a traffic stop and continue to
detain the motorist, an officer must have a reasonable, articulable suspicion that a person in the vehicle is involved in criminal activity beyond
that which initially justified the interference.
6. 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.
7. 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.
8. Probable Cause. Reasonable suspicion exists on a case-by-case basis.
9. ____. Factors that would independently be consistent with innocent
activities may nonetheless amount to reasonable suspicion when considered collectively.
10. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs:
Probable Cause. An officer’s suspicion of criminal activity may reasonably grow over the course of a traffic stop as the circumstances unfold
and more suspicious facts are uncovered.
11. Investigative Stops: Motor Vehicles: Probable Cause. In determining whether a continued detention of a defendant following a stop for a
traffic violation is reasonable, a court considers both the length of the
continued detention and the investigative methods employed.
12. Miranda Rights. The safeguards provided by Miranda v. Arizona, 384
U.S. 436,
86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966), come into play whenever a person in custody is subjected to either express questioning or its
functional equivalent.
13. ____. Miranda warnings are required only when there has been such a
restriction on one’s freedom as to render one in custody.
14. Miranda Rights: Arrests: Words and Phrases. A person is in custody
for purposes of Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602,
16 L.
Ed. 2d 694 (1966), when there is a formal arrest or a restraint on his or
her freedom of movement to the degree associated with such an arrest.
15. Miranda Rights: Investigative Stops: Motor Vehicles. Persons temporarily detained pursuant to an investigatory traffic stop are not in custody for purposes of Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966).
16. Miranda Rights: Police Officers and Sheriffs: Investigative Stops:
Motor Vehicles. When a person is detained pursuant to a traffic stop,
there must be some further action or treatment by the police to render
the driver in custody and entitled to Miranda warnings.
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STATE v. KHALIL
Cite as 25 Neb. App. 449
17. Miranda Rights: Self-Incrimination: Right to Counsel. The Miranda
safeguards come into play whenever a person in custody is subjected
to either express questioning or its functional equivalent, and the safeguards include advisements of the right to remain silent and the right to
have an attorney present at questioning.
18. ____: ____: ____. Under Miranda v. Arizona, 384 U.S. 436,
86 S. Ct.
1602,
16 L. Ed. 2d 694 (1966), if the suspect in custody indicates that
he or she wishes to remain silent or that he or she wants an attorney, the
interrogation must cease.
19. Miranda Rights: Right to Counsel. In order to require cessation of
custodial interrogation, the subject’s invocation of the right to counsel
must be unambiguous and unequivocal.
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
Ali E. Khalil was convicted of delivery or possession with
intent to deliver marijuana following the discovery of 128
pounds of marijuana in his vehicle during a traffic stop. On
appeal, he claims that his motion to suppress should have been
granted because of violations of his rights under the Fourth
and Fifth Amendments. We find no merit to the arguments
raised on appeal and therefore affirm.
BACKGROUND
The events giving rise to this case, and the issues raised on
appeal, are substantially intermingled with those in a companion case filed today in State v. Abu-Serieh, post p. 462, ___
N.W.2d ___ (2018). Khalil and Issa Abu-Serieh were driving
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STATE v. KHALIL
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separate rental vehicles but traveling together on Interstate 80
when the relevant events occurred.
On January 25, 2015, Lancaster County Deputy Sheriff
Jason Henkel was patrolling Interstate 80 near mile marker
397 when he observed a Nissan Altima that was following a
semi-truck too closely. He observed another vehicle, a Ford
Edge, following the Nissan too closely and believed the Nissan
and Ford were traveling together based on “their driving habits.” Henkel called for Deputy Sheriff Jason Mayo to assist
him. Henkel performed a traffic stop on the Nissan, and Mayo
stopped the Ford.
The driver of the Nissan, later identified as Khalil, provided his driver’s license and a vehicle rental agreement when
requested. While at the window of the Nissan, Henkel noticed
a faint odor of what he believed to be raw marijuana, but he
could not confirm it at that point due to strong winds. Henkel
asked Khalil to accompany him to Henkel’s patrol car in order
to talk with him while Henkel prepared the warning ticket for
following too closely. Khalil did so and sat in the front passenger seat. He was not in handcuffs and was not under arrest, but
was detained for the traffic violation.
Henkel made general conversation with Khalil while preparing the warning ticket by asking questions about his travels.
Khalil said that he had attended a convention in Salt Lake
City, Utah, for the trucking company he owns and was trying to obtain additional business. Khalil said that he lives in
the Chicago, Illinois, area. Henkel asked if Khalil was traveling with the driver of the Ford, and Khalil said yes, the
driver of the Ford, Abu-Serieh, was his friend. Throughout
the time Henkel and Khalil sat in Henkel’s patrol car, Henkel
exchanged communication with Mayo via the mobile data
terminal in each of their patrol cars. Mayo told Henkel that
Abu-Serieh said he was not traveling with Khalil. Khalil
and Abu-Serieh provided additional inconsistent information, with Abu-Serieh reporting that he had attended a bachelor party in California and was returning home to Chicago,
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STATE v. KHALIL
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while Khalil stated that Abu-Serieh lived in the Salt Lake
City area.
After issuing the warning ticket to Khalil, Henkel asked if
there were any guns, bombs, cocaine, heroin, or marijuana in
the vehicle, and Khalil said no. Henkel then asked Khalil for
permission to search the vehicle because he suspected that
there was criminal activity afoot, and Khalil responded that
“he wanted to be on his way.” Henkel was suspicious based
on several factors: the odor of raw marijuana coming from the
vehicle, which he was unable to confirm; the business attire
hanging in the window of the Nissan and a suitcase in the
back seat; the vehicle had a “lived-in look,” and it appeared
that Khalil had slept in the vehicle; Khalil exhibited signs of
nervousness, including shaking and trembling hands, labored
breathing, and “a pulse [visible] in his stomach”; and the
numerous air fresheners in the front and back of the Nissan. In
addition, Khalil was driving a rental vehicle and traveling with
a companion who drove a separate vehicle, but both vehicles
were rented in Khalil’s name, and when questioned, Khalil and
the other driver provided inconsistent information.
Less than 3 minutes after issuing the warning ticket to
Khalil, Henkel deployed his drug dog, which was in his patrol
car, and the canine alerted and indicated to the odor of narcotics coming from the Nissan. Upon searching the vehicle,
Henkel discovered 128 pounds of marijuana in the trunk.
While at the scene of the traffic stop, Henkel handcuffed Khalil
and read him his Miranda warnings. Henkel asked Khalil if he
would be interested in participating in a controlled delivery of
the marijuana, and Khalil indicated that “he’d have to talk to
his attorney first.” Henkel asked whether Khalil was requesting
an attorney at that point, and Khalil responded that it “depends
on the questions you ask me.” Throughout further questioning
later at the jail, Khalil admitted that he was receiving $7,000
to deliver the marijuana.
Khalil was ultimately charged with delivery or possession with intent to deliver marijuana. Prior to trial, he filed a
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STATE v. KHALIL
Cite as 25 Neb. App. 449
motion to suppress the statements he made and the results of
the search of the Nissan. A suppression hearing was held, and
the testimony revealed the information detailed above. The
district court subsequently announced its findings from the
bench. The court determined that there was probable cause for
the traffic stop based on the traffic violation of following too
closely. The court additionally found that Henkel had reasonable suspicion to detain Khalil in order to conduct a canine
sniff and had probable cause to search the Nissan based on the
alert and indication of the canine. Finally, the court concluded
that Khalil did not unequivocally invoke his right to counsel
and that therefore, his statements were admissible. The motion
to suppress was therefore denied.
Thereafter, a stipulated bench trial was held. The evidence
presented consisted of the video recordings of the traffic stops
from Henkel’s patrol car and Mayo’s patrol car, law enforcement reports, and the transcript of the suppression hearing.
The court ultimately found Khalil guilty of delivery or with
possession with intent to deliver marijuana. He was sentenced to 18 to 36 months’ incarceration. He now appeals to
this court.
ASSIGNMENT OF ERROR
Khalil assigns, summarized, 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 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), 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
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STATE v. KHALIL
Cite as 25 Neb. App. 449
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
Khalil argues that the district court erred in denying his
motion to suppress because of perceived violations of his
rights under the Fourth and Fifth Amendments.
Fourth Amendment.
Khalil first argues that his motion to suppress should have
been granted because his Fourth Amendment rights were violated when Henkel impermissibly extended the scope of the
traffic stop beyond what was reasonable to issue the warning
for the traffic violation.
[2] At the outset, we note that in his brief, despite several
arguments to the contrary, Khalil acknowledges that the “evidence is unrebutted that the traffic stop was properly initiated
by Deputy Henkel.” Brief for appellant at 27. We agree. A
traffic violation, no matter how minor, creates probable cause
to stop the driver of a vehicle. State v. Nelson, supra. Here,
Henkel explained how he determined that Khalil’s vehicle was
following another vehicle too closely in violation of Neb. Rev.
Stat. § 60-6,140(1) (Reissue 2010). The fact that Khalil committed a traffic violation is not challenged on appeal, and thus,
the initial stop of the Nissan was justified.
Khalil claims that any questions Henkel posed to him during the stop before the warning ticket was issued that were
unrelated to the traffic violation “create[d] an unwarranted
and nonconsensual expansion of the seizure from a routine
traffic stop to a drug investigation.” Brief for appellant at 31.
We disagree.
[3,4] 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.
State v. Nelson, supra. This investigation may include asking the driver for an operator’s license and registration,
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STATE v. KHALIL
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requesting that the driver sit in the patrol car, and asking the
driver about the purpose and destination 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 outstanding warrants for any of its
occupants. Id. An officer’s inquiries into matters unrelated to
the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as
those inquiries do 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).
In the present case, the amount of time that elapsed between
the time Henkel initiated the traffic stop of the Nissan until the
time he issued the warning ticket was a total of approximately
10 minutes. While Khalil was seated in the passenger seat of
the patrol car, Henkel asked him a variety of questions, such as
where he had been, where he lived, and where he was going.
During this time, Henkel was also communicating with Mayo,
and the deputies were exchanging the information provided to
them by Khalil and Abu-Serieh, discovering discrepancies in
their responses. Khalil references this communication between
deputies in his brief, but he provides no authority to support
a finding that doing so was improper or unconstitutional, particularly when the exchange of communication did not extend
the traffic stop beyond the length of time necessary to issue
the warning ticket. Given the total length of time it took for
Henkel to process Khalil’s information and issue the warning
ticket, approximately 10 minutes, we conclude that any questioning did not measurably extend the duration of the stop and
was therefore permissible.
Khalil also argues that Henkel impermissibly extended the
length of the traffic stop in order to conduct a canine sniff
of the vehicle after issuing the warning ticket to him. We do
not agree.
[5-10] To expand the scope of a traffic stop and continue
to detain the motorist, an officer must have a reasonable,
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articulable suspicion that a person in the vehicle is involved
in criminal activity beyond that which initially justified the
interference. See State v. Nelson,
282 Neb. 767,
807 N.W.2d
769 (2011). 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.
Id. Whether a
police officer has a reasonable suspicion based on sufficient
articulable facts depends on the totality of the circumstances.
Id. Reasonable suspicion exists on a case-by-case basis.
Id.
Factors that would independently be consistent with innocent
activities may nonetheless amount to reasonable suspicion
when considered collectively.
Id. An officer’s suspicion of
criminal activity may reasonably grow over the course of a
traffic stop as the circumstances unfold and more suspicious
facts are uncovered. U.S. v. Murillo-Salgado,
854 F.3d 407
(8th Cir. 2017).
In this case, Henkel suspected that there was criminal activity afoot based on several factors: the odor of raw marijuana
coming from the vehicle, which he was unable to confirm;
the business attire hanging in the window of the vehicle and
a suitcase in the back seat; the “lived-in look” of the vehicle;
Khalil’s nervousness; and the numerous air fresheners in the
vehicle. In addition, Khalil was driving a rental vehicle and
traveling with a companion who drove a separate vehicle,
and when questioned, Khalil and the other driver provided
inconsistent information, with the other driver denying that he
was even traveling with Khalil. Given the totality of the circumstances, Henkel had a reasonable suspicion to expand the
scope of the traffic stop and continue to detain Khalil in order
to perform a canine sniff of the vehicle.
[11] Khalil takes issue with Henkel’s testimony that “as
an interdiction officer, it was always his intention to deploy
his dog.” Brief for appellant at 33. Regardless of Henkel’s
thought process or motivation for doing so, we find that he
had reasonable, articulable suspicion supporting extending
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the stop in order to conduct a canine sniff of the vehicle. As
such, this argument lacks merit. Having determined that reasonable suspicion existed to support continued detention, the
next question is whether the detention was reasonable in the
context of an investigatory stop. See State v. Voichahoske,
271
Neb. 64,
709 N.W.2d 659 (2006). We consider both the length
of the continued detention and the investigative methods
employed.
Id.
Henkel had the canine with him in his vehicle, and the
amount of time that elapsed from the time he issued the
warning to Khalil until the time the canine was deployed
was less than 3 minutes. In State v.
Voichahoske, supra, the
Supreme Court found that a 15-minute period of time from
the conclusion of the traffic stop until arrival of a drug dog
was not unreasonable. And the Supreme Court has previously
determined that nearly an hour delay between the request of a
canine unit and its arrival was not unreasonable. See State v.
Howard,
282 Neb. 352,
803 N.W.2d 450 (2011). The record
in the instant case shows no lack of diligence on Henkel’s
part nor any unreasonable delay. And because a canine sniff
is not a search under the Fourth Amendment, using the drug
dog during a lawful detention did not violate any constitutionally protected right. See State v.
Voichahoske, supra.
Accordingly, the length and method of detention in the present
case were reasonable.
We note that Khalil relies upon Rodriguez v. United States,
___ U.S. ___,
135 S. Ct. 1609,
191 L. Ed. 2d 492 (2015),
when arguing that the traffic stop was impermissibly extended.
Khalil acknowledges, however, that the question in Rodriguez
was whether police may extend “an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct
a dog sniff.” Brief for appellant at 34. Thus, because we
found that reasonable suspicion existed to allow Henkel to
extend the stop, Rodriguez would not change the outcome of
our decision.
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Finding no merit to any of Khalil’s arguments with respect
to the Fourth Amendment, we conclude that the district court
properly denied his motion to suppress on those grounds.
Fifth Amendment.
Khalil argues that Henkel’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 40.
He therefore concludes that Henkel was required to read him
his Miranda rights prior to posing the question. Khalil also
argues that he later invoked his right to counsel, but Henkel
continued to question him in violation of his Fifth Amendment
rights. We disagree.
[12-14] We reject Khalil’s argument that Henkel was
required to read him his Miranda rights because Khalil
was not in custody. The safeguards provided by Miranda
v. Arizona,
384 U.S. 436,
86 S. Ct. 1602,
16 L. Ed. 2d 694
(1966), come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. State v. Landis,
281 Neb. 139,
794 N.W.2d 151 (2011).
Miranda warnings are required only when there has been such
a restriction on one’s freedom as to render one in custody.
Id.
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, supra.
[15,16] Persons temporarily detained pursuant to an investigatory traffic stop are not in custody for purposes of Miranda.
State v. Landis, supra. When a person is detained pursuant to
a traffic stop, there must be some further action or treatment
by the police to render the driver in custody and entitled to
Miranda warnings. Id. In State v. Landis, the Supreme Court
observed that the defendant’s presence in the trooper’s cruiser
did not raise the interaction to the extent analogous to an
arrest, because there was no indication that the trooper used
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force or threats to get the defendant to enter the cruiser or to
remain there.
Likewise here, Khalil was temporarily detained pursuant to
a traffic stop and voluntarily entered Henkel’s patrol car while
Henkel prepared the warning ticket. Thus, some further action
or treatment by the deputy that would raise Khalil’s detention
to an extent analogous to an arrest was required. Because there
was none, Khalil was not “in custody,” and thus, Miranda
warnings were not required before he could be questioned.
Having determined that Khalil was not in custody for Miranda
purposes, we need not address whether he was subjected to
an interrogation during that time. Accordingly, any statements
he made to Henkel while seated in the patrol car were not
obtained in violation of his Fifth Amendment rights and were
admissible. As such, the motion to suppress was properly
denied on these grounds.
Khalil further asserts that he invoked his right to counsel
and that Henkel unconstitutionally continued to question him
after he had done so.
[17,18] The U.S. Supreme Court adopted a set of prophylactic measures to protect suspects from modern custodial
interrogation techniques. Miranda v. Arizona, supra. See, also,
State v. DeJong,
287 Neb. 864,
845 N.W.2d 858 (2014). The
Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional
equivalent. State v. DeJong, supra. The safeguards include the
familiar Miranda advisements of the right to remain silent and
the right to have an attorney present at questioning. Id. If the
suspect in custody indicates that he or she wishes to remain
silent or that he or she wants an attorney, the interrogation
must cease. Id.
[19] In order to require cessation of custodial interrogation, the subject’s invocation of the right to counsel must be
unambiguous and unequivocal. State v. Goodwin,
278 Neb.
945,
774 N.W.2d 733 (2009). “Statements such as ‘“[m]aybe
I should talk to a lawyer”’ or ‘“I probably should have an
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attorney”’ do not meet this standard.” Id. at 959,
774 N.W.2d
at 744-45.
In the case at hand, Khalil never unambiguously and
unequivocally invoked his right to counsel. When discussing
whether Khalil would be interested in assisting law enforcement by participating in a controlled delivery of marijuana,
Khalil remarked that “he’d have to talk to his attorney first.”
Henkel then asked whether Khalil was requesting an attorney
at that point, and Khalil responded that it “depends on the
questions you ask me.” We cannot find that this language
constitutes an unambiguous and unequivocal request for counsel, particularly when Khalil’s reference to speaking with his
attorney was made in the context of agreeing to participate in
a controlled delivery rather than discussing specifics about the
events of this case. Therefore, law enforcement’s continued
questioning of Khalil did not violate his Fifth Amendment
rights and the district court did not err in denying the motion
to suppress.
CONCLUSION
Having found no merit to Khalil’s arguments with respect
to the Fourth and Fifth Amendments, we find no error in the
district court’s denial of his motion to suppress. We therefore
affirm his conviction and sentence.
A ffirmed.
