Summary
The Supreme Court of Nebraska held that a pat-down and pocket search conducted by private nightclub security with the assistance of an off-duty police officer constituted a government search under the Fourth Amendment. The court concluded that the search was unreasonable because Smith withdrew consent and the officers lacked probable cause to search his pocket. The court reversed Smith's conviction and sentence and remanded for a new trial.
Topics
Practice areas
Questions Presented
- Whether the officers' and security personnel's conduct constituted a search within the meaning of the Fourth Amendment.
- Whether the search was a government search because the private security officer and an off-duty police officer engaged in a joint endeavor.
- Whether the warrantless search of Smith's pocket was reasonable under the Fourth Amendment based on probable cause or consent.
- Whether reversal of the conviction required remand for a new trial or was barred by double jeopardy.
Holdings
- Reaching into Smith's pocket to retrieve an object hidden from public view was a search within the meaning of the Fourth Amendment and article I, section 7, of the Nebraska Constitution.
- The search was a government search because the private security officer and the off-duty, uniformed police officer engaged in a joint endeavor before the search was completed.
- The warrantless search of Smith's pocket was unreasonable because neither probable cause nor valid consent justified extending the pat-down into the pocket.
- Double jeopardy did not bar a retrial after reversal because the conviction was reversed based on trial error rather than evidentiary insufficiency.
Key quotations
“Taking all of these circumstances into account, we conclude that Smith established that the search meets the test for a government search. The totality of the facts shows that Harper and South were engaged in a joint endeavor.” (at 923)
“Here, the extension of the search into Smith's pocket was grounded on intuition, not facts and circumstances known to law enforcement supporting a reasonable belief that Smith was carrying contraband.” (at 925)
“In fact, the only way South could complete the search was for Harper to physically restrain Smith. Any objective observer watching this scenario would conclude Smith was not consenting to the search of his pocket.” (at 927)
“For these reasons, we conclude that the district court erred in denying Smith's motion to suppress and that as a result, the court erred in convicting and sentencing Smith.” (at 928)
Factual background
A private security company contracted with a nightclub to pat down every patron for narcotics or weapons before entry, and an off-duty, uniformed, armed police officer was providing security at the entrance. During the pat-down of Smith, the private security officer felt a bulge in Smith's pocket and attempted twice to reach into it after Smith failed to answer questions about its contents. Smith grabbed and pushed the officer's hand away, but the police officer restrained Smith's arm while the private officer reached into the pocket and found pills. Smith had initially consented to the pat-down but resisted the pocket search.
Procedural history
The State charged Smith by information with possession of a controlled substance with intent to deliver. The district court denied Smith's motion to suppress, conducted a bench trial on stipulated facts, found him guilty, and sentenced him to three to five years' imprisonment. The Nebraska Supreme Court reversed and remanded for a new trial.
Remand instructions
The cause was remanded for a new trial following suppression of the evidence obtained in the unlawful search.