State v. Rathjen

S tAte of nebrASkA, Appellee , v .
S hAwn k. rAthJen , AppellAnt .
751 N.W.2d 668
Filed June 17, 2008. 	No. A-07-682.
1. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable
Cause: Appeal and Error. A trial court’s ruling on a motion to suppress, apart
from determinations of reasonable suspicion to conduct investigatory stops and
probable cause to perform warrantless searches, will be upheld unless its findings
of fact are clearly erroneous. In making this determination, an appellate court
does not reweigh the evidence or resolve conflicts in the evidence, but, rather,
recognizes the trial court as the finder of fact and takes into consideration that it
observed the witnesses.
2. Constitutional Law: Search and Seizure. both the Fourth Amendment to the
U.S. Constitution and article I, § 7, of the Nebraska Constitution protect against
unreasonable searches and seizures by the government.
3. ____: ____. Searches conducted outside the judicial process, without prior approval
by a judge or magistrate, are per se unreasonable under the Fourth Amendment,
subject only to a few specifically established and well-delineated exceptions.
4. Constitutional Law: Arrests: Warrantless Searches: Probable Cause: Motor
Vehicles. The recognized exceptions to the Fourth Amendment’s warrant require-
ment as applied to automobiles include probable cause, exigent circumstances,
consent, search incident to arrest, inventory search, and plain view.
5. Warrantless Searches: Proof. The State has the burden to prove that one of the
circumstances substantiating the reasonableness of a warrantless search was present
during a warrantless search.
6. Search and Seizure. In order for a consent to search to be effective, it must be a
free and unconstrained choice and not the product of a will overborne.
7. ____. In order to determine whether a person’s consent to search was voluntarily
given, a court must review the totality of the circumstances.
8. ____. A consensual search by its very definition is circumscribed by the extent of
the permission given, as determined by the totality of the circumstances.
9. Constitutional Law: Search and Seizure: Police Officers and Sheriffs. The stan-
dard for measuring the scope of a suspect’s consent under the Fourth Amendment
is that of objective reasonableness—what would the typical reasonable person have
understood by the exchange between the officer and the suspect?
10. Search and Seizure. Whether there were any limitations placed on the consent
given and whether the search conformed to those limitations are questions of fact
to be determined by the totality of the circumstances.
11. ____. Whether one who consents later objects to an ongoing search is a significant
inquiry determining whether there is a limitation placed on the scope of the con-
sent that has been granted.
Appeal from the District Court for York County: A lAn g.
gleSS, Judge. Affirmed.
STATE v. RAThJEN 	799
Cite as 16 Neb. App. 799
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

Eric 	J. 	Williams, 	York 	County 	Public 	Defender, 	for
appellant.
Jon bruning, Attorney General, and George R. Love for
appellee.
S ieverS, moore, and cASSel, Judges.
cASSel, Judge.
INTRODUCTION
Following the conviction and sentencing of Shawn k. Rathjen
for possession of methamphetamine, he appeals, challenging
only the order overruling his pretrial motion to suppress evi-
dence obtained during a warrantless search of a locked toolbox
located in the bed of his pickup truck. We conclude that the
district court’s finding that Rathjen consented to the search of
his vehicle and implicit finding that such consent extended to
the search of the locked toolbox were not clearly erroneous. We
therefore affirm.
bACkGROUND
On march 18, 2006, an officer stopped Rathjen for com-
mitting a traffic infraction and arrested him after a search of
his vehicle revealed that he was in possession of methamphet-
amine. Rathjen thereafter was charged by information with
possession of a controlled substance with intent to distribute
or deliver, a Class IC felony, and entered a plea of not guilty.
he later filed an amended motion to suppress. he requested an
order suppressing all evidence acquired from the search of his
vehicle, alleging that the stop and search violated the Fourth
Amendment because (1) there was no valid reason for the traf-
fic stop, or for the continued detention and seizure of Rathjen
after he was issued a traffic citation; (2) Rathjen did not freely
and voluntarily consent to the warrantless search of his vehicle,
which was otherwise tainted by the unlawful detention; and (3)
law enforcement officers exceeded the scope of any consent to
search by searching a locked container which was outside of the
vehicle and for which Rathjen had a reasonable expectation of
privacy, without obtaining additional consent to do so. Rathjen
800 	16 NEbRASkA APPELLATE REPORTS

also asserted that his rights under the 5th and 14th Amendments
were violated.
On may 1 and 3, 2006, the court held a hearing on the
amended motion to suppress where the following testimony was
adduced: Robert A. Penner, a deputy sheriff for York County,
Nebraska, testified that Rathjen was arrested on march 18. his
testimony demonstrated that he has extensive training and expe-
rience in conducting drug investigations. he testified that shortly
after 2 a.m. on march 18, he was patrolling on U.S. highway 34
in York County. he testified that he was traveling east when he
passed a pickup truck that was traveling west. After he passed
the pickup truck, he looked in his rearview mirror and noticed
that one of its taillights was not illuminated. he thereafter
turned his patrol car around, activated his emergency lights, and
stopped the pickup truck.
Penner testified that anytime that he activates his emergency
lights, a video camera automatically begins recording. The stop
of Rathjen’s vehicle was recorded, and the recording is included
in the evidentiary record.
Penner approached the driver of the vehicle, whom he
identified as Rathjen, and advised Rathjen that he had been
stopped because one of his vehicle’s taillights was out. Rathjen
responded by looking at his female passenger and exclaiming,
“Damn.” Rathjen then commented that he had recently fixed
one of the taillights.
Penner requested and received from Rathjen his operator’s
license, vehicle registration, and a vehicle insurance card. The
insurance card was expired. Penner then asked Rathjen some
routine questions and learned that Rathjen’s destination was
Clarks, Nebraska, to pick up his children. Penner opined that
Clarks was approximately a 35-minute drive from the scene of
the traffic stop.
Penner returned to his patrol car, where he checked the sta-
tus of Rathjen’s operator’s license and vehicle insurance, and
ordered a criminal history check on Rathjen. he was unable to
obtain verification that the vehicle was insured, but was notified
that Rathjen had previous charges for possession of marijuana
and methamphetamine.
STATE v. RAThJEN 	801
Cite as 16 Neb. App. 799

Penner returned to Rathjen’s vehicle, ordered Rathjen to exit
the vehicle, and showed Rathjen “[t]he rear of the vehicle.” he
issued Rathjen a citation for failure to present proof of insurance
and a defect ticket for the taillight violation. Penner testified that
he had not arrested Rathjen at that point. After Rathjen signed
the citation, Penner advised Rathjen that “he was good to go,
basically that he could leave,” but as Rathjen began to leave,
Penner asked Rathjen for permission to ask him another ques-
tion. According to Penner, in response, Rathjen “stopped and
stood there” and said “something to the effect of yes.” Penner
did not tell Rathjen that he was not free to leave at that point.
Penner asked Rathjen if he had anything illegal in his vehicle,
to which Rathjen responded that he did not and that “‘[t]hat
was a long time ago.’” Rathjen elaborated that he had been in
trouble in the past for possession of marijuana and metham-
phetamine. Penner then asked Rathjen if he could search his
vehicle, to which Rathjen responded that “it was fine.” Penner
also requested and received consent to conduct a pat-down
search of Rathjen’s person. he discovered nothing illegal in the
pat-down search.
Penner then asked the female passenger to exit the vehicle.
She complied with Penner’s request and exited the vehicle carry-
ing her purse, which she appeared to Penner to be trying to
conceal under her coat. Penner asked for and received permis-
sion to search her purse. Penner discovered a glass pipe with
a “whitish film inside of it” that he believed had been used to
smoke methamphetamine. he also found a “plastic self-sealing
baggie” containing a “crystal white substance” that appeared
to Penner to be methamphetamine. he arrested the passenger,
at which time Rathjen commented that “she needed to quit
doing that.”
Penner then searched the passenger compartment of Rathjen’s
pickup truck. he testified that he was “looking for any place
that [he] felt it could [sic] be able to conceal any type of meth-
amphetamine or contraband,” but did not find anything in the
passenger compartment.
he then searched a toolbox located in the bed of the pickup
truck. The bed of the pickup truck did not have “any sort of
camper or shell” on it. The toolbox was positioned against the
802 	16 NEbRASkA APPELLATE REPORTS

passenger compartment and extended the entire width of the
pickup truck’s bed. Although Rathjen testified that he had a
“locked container attached to [his] vehicle,” it is unclear from
the record whether the toolbox was permanently affixed to the
bed of the pickup truck. however, the nature of the toolbox
makes it likely that it remained in the bed of the pickup truck
at all times.
Penner testified that the toolbox was locked and that he
opened it using the toolbox key on the keyring hanging from
the key in the ignition. During his search of the toolbox, Penner
discovered a black bag that appeared to him to be a shaving kit.
he searched inside the unlocked bag and discovered some mail
addressed to Rathjen, a couple of electronic scales, a cigar in a
glass container, a glass pipe, three empty self-sealing baggies,
and a bag containing a “large amount of a crystal substance that
[Penner] believed to be crystal meth[amphetamine].” Rathjen
was thereafter placed under arrest, and he commented that
“‘[t]hat was her bag that you found.’”
On cross-examination, Penner testified that he asked for
Rathjen’s consent to search his vehicle because he had a “hunch”
that Rathjen was engaged in criminal activity. Penner stated that
before he requested consent for the search, he did not see or
sense any illegal activity or the presence of any contraband,
but did note suspicious activity. he testified that the suspicious
activity he noticed included Rathjen’s “tone of voice” and the
“urgency” with which he looked at his female passenger after he
learned that he had a taillight out. he also testified that Rathjen
appeared “fairly nervous” for just having a taillight out.
Penner admitted that he did not ask Rathjen for additional
consent before searching the toolbox. Rathjen did not assist in
the search, and Penner testified that Rathjen was neither present
nor within earshot when he searched the toolbox. When asked
if he had any reason to believe that Rathjen had consented to
the search of the toolbox, Penner responded, “he didn’t say
I couldn’t.”
Sgt. Don Copeland, a deputy sheriff for York County, testi-
fied that he arrived on the scene shortly after Rathjen consented
to the search of his vehicle and right before Penner arrested the
female passenger. Copeland performed a pat-down search of
STATE v. RAThJEN 	803
Cite as 16 Neb. App. 799

Rathjen upon Penner’s request, but did not find anything out
of the ordinary. Copeland stood behind Rathjen’s vehicle with
Rathjen while Penner searched the passenger compartment of
the vehicle. Rathjen did not indicate to Copeland at any point
that he wanted to withdraw his consent to the search. After some
time, Rathjen asked if he could get his coat, which Penner gave
to him. It was cold out that night, so Copeland asked Rathjen
if he wanted to sit in Copeland’s patrol car. Rathjen accepted
the invitation, and both Rathjen and Copeland sat in Copeland’s
patrol car until Penner told Copeland to arrest Rathjen. At that
point, Copeland and Rathjen exited the car and Rathjen was
placed under arrest.
On cross-examination, Copeland testified that he and Rathjen
entered his patrol car prior to Penner’s search of the toolbox. he
testified that his patrol car was located behind Penner’s patrol
car, which was parked behind Rathjen’s vehicle. he estimated
that his patrol car was “three car lengths” behind Rathjen’s
pickup truck during the search.
Rathjen testified that he did not believe he was free to leave
after Penner issued him a citation and returned his operator’s
license, because Penner almost immediately thereafter asked him
more questions that he believed he was required to answer. he
testified that he felt pressure to remain. he admitted that he con-
sented to the search of his vehicle, but stated that he believed he
did not have the right to deny consent. he denied giving Penner
permission to search the locked toolbox, which he expected was
a private area. he testified that he was in Copeland’s patrol car
when Penner searched the toolbox and that he was not in a posi-
tion where he could have objected to such search.
On July 28, 2006, the district court entered a six-page order
denying Rathjen’s motion to suppress. The court stated that it
believed Penner’s testimony on all factually contested points.
The court determined that Penner had probable cause for the
traffic stop because Rathjen’s vehicle had one taillight that was
not showing red as required by statute. The court also deter-
mined that Penner’s initial questions and requests for informa-
tion were valid officer activities. The court determined that
Rathjen was not restrained after he received the citation and
defect ticket.
804 	16 NEbRASkA APPELLATE REPORTS

With regard to consent for the search, the district court
determined that no facts indicated that Penner forced Rathjen
to comply with the vehicle search request. The court found that
Penner did not know that the toolbox was locked when he asked
for consent to search the vehicle and did not seek separate con-
sent to search the toolbox. The court also found that Rathjen did
not limit the coverage of his consent for the search. The court
concluded that Rathjen gave valid consent for the search of his
pickup truck and toolbox and that regardless of the consent,
Penner had “sufficient probable cause to search the pickup and
locked toolbox without consent.”
The case proceeded to a jury trial. On march 14, 2007,
Rathjen was found guilty of possession of methamphetamine
and sentenced to 3 years’ probation.
Rathjen timely appeals.
ASSIGNmENT OF ERROR
Rathjen’s sole assignment of error is that the district court
erred in overruling his motion to suppress.
STANDARD OF REVIEW
[1] A trial court’s ruling on a motion to suppress, apart from
determinations of reasonable suspicion to conduct investigatory
stops and probable cause to perform warrantless searches, will
be upheld unless its findings of fact are clearly erroneous. In
making this determination, an appellate court does not reweigh
the evidence or resolve conflicts in the evidence, but, rather,
recognizes the trial court as the finder of fact and takes into
consideration that it observed the witnesses. State v. Tucker, 262
Neb. 940, 636 N.W.2d 853 (2001); State v. McGinnis, 8 Neb.
App. 1014, 608 N.W.2d 605 (2000).
ANALYSIS
[2-5] both the Fourth Amendment to the U.S. Constitution
and article I, § 7, of the Nebraska Constitution protect against
unreasonable searches and seizures by the government. State v.
Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996). Searches con-
ducted outside the judicial process, without prior approval by a
judge or magistrate, are per se unreasonable under the Fourth
Amendment, subject only to a few specifically established and
STATE v. RAThJEN 	805
Cite as 16 Neb. App. 799

well-delineated exceptions. Id. The recognized exceptions to
the Fourth Amendment’s warrant requirement as applied to auto-
mobiles include probable cause, exigent circumstances, consent,
search incident to arrest, inventory search, and plain view. State
v. Konfrst, supra. The State has the burden to prove that one of
these circumstances was present during a warrantless search.
State v. Hisey, 15 Neb. App. 100, 723 N.W.2d 99 (2006).
Rathjen asserts that none of the exceptions to the warrant
requirement were present during Penner’s search of his toolbox.
however, he focuses his argument on three of the exceptions,
asserting that the search (1) was not conducted pursuant to valid
consent, (2) was not conducted incident to an arrest, and (3)
was not justified by the existence of probable cause. because
we ultimately conclude that the search of the toolbox was con-
ducted pursuant to Rathjen’s valid consent, we need not consider
any of the other exceptions.
[6,7] To address Rathjen’s argument regarding consent, we
recall the legal standards governing the issue. In order for a con-
sent to search to be effective, it must be a free and unconstrained
choice and not the product of a will overborne. See State v.
Ready, 252 Neb. 816, 565 N.W.2d 728 (1997). The consent must
be given voluntarily and not as the result of duress or coercion,
whether express, implied, physical, or psychological. Id. In
order to determine whether a person’s consent to search was
voluntarily given, a court must review the totality of the circum-
stances. Id. As stated above, the findings of fact in this respect
will not be set aside on appeal unless they are clearly erroneous.
See State v. Graham, 241 Neb. 995, 492 N.W.2d 845 (1992).
The district court made several factual findings regarding
the circumstances surrounding Rathjen’s consent to the search.
The court found that the officers did not restrain Rathjen at any
time prior to his arrest. The court also found that Penner did not
use intimidating words or gestures to obtain Rathjen’s consent,
but instead found that Penner was “cordial and polite” when he
requested consent for the search. The court further concluded
that Rathjen was not impaired when he granted Penner consent
for the search. based upon these findings, the court concluded
that Rathjen’s consent to the search was valid.
806 	16 NEbRASkA APPELLATE REPORTS

We have reviewed the record and conclude that the district
court’s factual findings were not clearly erroneous. Penner
testified during the hearing on the motion to suppress that he
asked Rathjen if he could “search the vehicle,” to which Rathjen
responded that “it was fine.” Rathjen voluntarily consented
to the search of his vehicle. We next consider the scope of
Rathjen’s consent.
[8,9] A consensual search by its very definition is circum-
scribed by the extent of the permission given, as determined by
the totality of the circumstances. State v. Wells, 539 So. 2d 464
(Fla. 1989), affirmed on other grounds 495 U.S. 1, 110 S. Ct.
1632, 109 L. Ed. 2d 1 (1990). The standard for measuring the
scope of a suspect’s consent under the Fourth Amendment is
that of objective reasonableness—what would the typical rea-
sonable person have understood by the exchange between the
officer and the suspect? Florida v. Jimeno, 500 U.S. 248, 111
S. Ct. 1801, 114 L. Ed. 2d 297 (1991). See, also, U.S. v. Siwek,
453 F.3d 1079 (8th Cir. 2006).
because we view the locked toolbox in this case as analogous
to the trunk of an automobile, we observe that several courts
have concluded that a suspect’s general consent to a vehicle
search permitted officers to search the vehicle’s trunk. See,
e.g., State v. Dunkel, 143 P.3d 290 (Utah App. 2006) (general
consent to search vehicle for drugs extended scope of search
to trunk and most containers found therein that could contain
narcotics); State v. Castellon, 151 N.C. App. 675, 566 S.E.2d
696 (2002) (suspect’s general consent to search vehicle allowed
officers to search trunk of car). These cases support the notion
that Rathjen’s response constituted a general consent which
authorized Penner to search the locked toolbox.
[10] After determining that Rathjen’s initial response extended
authorization to the locked toolbox, we next consider whether
Rathjen otherwise limited the scope of his consent to the pas-
senger compartment. Whether there were any limitations placed
on the consent given and whether the search conformed to those
limitations are questions of fact to be determined by the totality
of the circumstances. State v. Tucker, 262 Neb. 940, 636 N.W.2d
853 (2001).
STATE v. RAThJEN 	807
Cite as 16 Neb. App. 799

The circumstances would allow the district court to conclude
that Rathjen did not limit the scope of the consent. Penner testi-
fied that Rathjen did not say that Penner could not search the
toolbox. In light of the conversation that took place immediately
prior to Rathjen’s granting consent for the search, the court
could find that Rathjen knew that one of the items that Penner
would search for was narcotics. The toolbox was a place where
one could reasonably expect illegal substances, such as narcot-
ics, to be hidden. The key to unlock the toolbox was on the
keyring hanging from the key in the ignition.
The district court made findings consistent with the evidence.
The court found that Penner did not seek separate consent to
search the toolbox, but did not know that the toolbox was locked
when he requested consent for the search. The court also found
that Rathjen did not limit the scope of his consent. It further
found that Rathjen did not attempt to revoke or limit his consent
to the search after Penner commenced the search. We find that
it was not clearly erroneous for the district court to implicitly
conclude that a reasonable person would have understood the
exchange between Penner and Rathjen to include consent to
search the toolbox.
[11] We also find significant the fact that Rathjen did not
object when the search extended to the toolbox. Whether one
who consents later objects to an ongoing search is a significant
inquiry determining whether there is a limitation placed on
the scope of the consent that has been granted. State v. Claus,
8 Neb. App. 430, 594 N.W.2d 685 (1999). Although Rathjen
was in Copeland’s patrol car when Penner searched the tool-
box, Rathjen did not testify that his view was impaired. Penner
searched the passenger compartment while Rathjen watched.
Rathjen knew that the search was continuing after he entered
Copeland’s patrol car. he also left the key to the toolbox in
the passenger compartment and did not tell Penner that he
did not have Rathjen’s permission to utilize the key to unlock
the toolbox.
CONCLUSION
The district court’s findings that Rathjen consented to the
search of his vehicle and that such consent extended to the
808 	16 NEbRASkA APPELLATE REPORTS

locked toolbox were not clearly erroneous. The district court
therefore did not err in overruling Rathjen’s motion to sup-
press evidence discovered during the search. We affirm the
court’s judgment.
A ffirmed .
STATE v. RAThJEN 	809
Cite as 16 Neb. App. 799