State v. Louthan

S tate of neBraSka , appellee , v .
richarD l. louthan , appellant .
744 n.W.2d 454
Filed February 15, 2008. 	no. S-07-593.
1. Investigative Stops: Warrantless Searches: Probable Cause: Appeal and
Error. When reviewing a district court’s determinations of reasonable suspicion
to conduct an investigatory stop and probable cause to perform a warrantless
search, ultimate determinations of reasonable suspicion and probable cause are
reviewed de novo. But findings of historical fact to support that determination are
reviewed for clear error, giving due weight to the inferences drawn from those
facts by the trial court.
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.
4. ____: ____: ____. a traffic stop 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 outstanding warrants for any of
its occupants.
5. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable
Cause. in order to expand the scope of a traffic stop and continue to detain the
motorist for the time necessary to deploy a drug detection dog, an officer must
have a reasonable, articulable suspicion that the person is involved in criminal
activity beyond that which initially justified the interference.
6. Probable Cause: Words and Phrases. Reasonable suspicion entails some mini-
mal level of objective justification for detention, something more than an incho-
ate and unparticularized hunch, but less than the level of suspicion required for
probable cause.
7. Investigative Stops: 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 and must be determined on a case-
by-case basis.
8. ____: ____: ____. if reasonable suspicion exists, the court must then consider
whether the detention was reasonable in the context of an investigative stop,
considering both the length of the continued detention and the investigative
methods employed.
9. Investigative Stops: Probable Cause: Proof. The degree of reliability of an
informant that must be shown to justify an investigatory stop is less than that
required to establish probable cause.
10. Criminal Law: Investigative Stops: Police Officers and Sheriffs: Probable
Cause. an individual’s criminal history may be a relevant factor when determin-
ing whether an officer has reasonable suspicion to detain an individual.
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11. Investigative Stops: Police Officers and Sheriffs: Probable Cause. although
a motorist’s nervousness is an appropriate factor for consideration within the
totality of the circumstances of a prolonged traffic stop, its presence is of limited
significance generally.
appeal from the District Court for Madison County: patrick
G. roGerS, Judge. affirmed.
Melissa a. Wentling, Madison County Public Defender, and
Harry a. Moore for appellant.
Jon Bruning, attorney General, and James D. Smith for
appellee.
W riGht, connolly, G errarD, S tephan, M ccorMack, and
M iller -lerMan, JJ.
S tephan, J.
after a bench trial in the district court for Madison County,
Richard l. louthan was convicted on one count of posses-
sion of a controlled substance. The principal issue on appeal
is whether louthan’s Fourth amendment rights were violated
when a law enforcement officer prolonged a traffic stop for
several minutes in order to deploy a drug detection dog. We
conclude that there was no violation of louthan’s rights and
that the evidence obtained from the vehicle as a result of the
dog sniff was properly used to secure his conviction.
i. BaCkGROUnD
Jason Bauer is a patrol officer and police service dog han-
dler employed by the norfolk Police Division. late on the
evening of December 2, 2006, Bauer was conducting surveil-
lance on a norfolk, nebraska, residence. He was observing the
residence because the police division had received complaints
from neighbors about “stop-and-go traffic” indicative of drug
activity. also, Bauer had been informed by at least two per-
sons whom he arrested for drug offenses that the owner of the
residence was a methamphetamine distributor. Bauer’s sources
indicated drug activity had occurred at the residence as recently
as november 2006. Bauer testified that he had observed the
residence on previous occasions over the last 2 years and had

seen persons he knew to be actively engaged in the drug trade
leaving the residence.
When he arrived at the residence, Bauer observed a vehicle
parked nearby. Bauer determined that the vehicle was reg-
istered to louthan and that the license plates had expired.
approximately 5 minutes after Bauer began his surveillance, he
saw louthan exit the residence and enter the vehicle. Bauer had
not seen louthan enter the residence and did not know how long
he had been inside. Bauer initiated pursuit with the intent of
stopping louthan based on the expired plates. He also intended
to request louthan’s permission to search the vehicle. Pursuant
to police division policy, he requested a backup officer.
Bauer initiated the traffic stop based on the expired plates and
louthan’s failure to signal a turn. louthan acknowledged that
he had come from the residence which Bauer had been observ-
ing. Bauer questioned louthan about his involvement with
drugs, and louthan stated that he was free on bond on a pend-
ing charge of possession of a controlled substance and that an
attempted manufacture charge had also been filed against him.
Bauer asked louthan when he had last used controlled sub-
stances, and louthan responded that it was in September 2006,
when he was arrested for possession. Bauer asked louthan to
step out of the vehicle and obtained consent to search louthan’s
person. The search revealed nothing of consequence. Bauer
then requested permission to search the vehicle, but louthan
refused. Bauer testified that louthan became “extremely ner-
vous” at this point, although in his report, he noted that louthan
was “somewhat nervous.”
Bauer then called the police dispatcher and determined that
louthan’s operator’s license was valid and that he had no out-
standing warrants. as he was doing this, the backup officer
arrived on the scene. after completing his conversation with the
dispatcher, Bauer directed louthan to remain with the backup
officer. Bauer then retrieved his drug detection dog from his
vehicle and directed the dog to sniff the exterior of louthan’s
vehicle. at that point, approximately 7 minutes had elapsed
since the inception of the traffic stop.
The dog did not alert in his initial pass around the vehicle.
Bauer then began to “detail,” directing the dog to sniff in certain
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104 	275 neBRaSka RePORTS
locations of the vehicle. The dog alerted and eventually indi-
cated the scent of drugs near the middle of the front hood of the
vehicle. Bauer then informed louthan that he intended to search
the interior of the vehicle. From the time that the dog sniff
began until Bauer informed louthan of the result, approximately
4 minutes had elapsed. Bauer then searched the interior of the
vehicle and found louthan’s wallet on the transmission hump of
the vehicle. inside the wallet were two bags containing a “rocky
substance” later confirmed to be methamphetamine.
approximately 12½ minutes after louthan was initially
stopped, he was arrested and charged with one count of pos-
session of a controlled substance. He filed a motion to suppress
the evidence obtained as a result of the search of his vehicle,
arguing that Bauer lacked reasonable suspicion to further detain
him after the traffic stop. after conducting an evidentiary hear-
ing, the district court denied the motion. Following a bench
trial on stipulated evidence at which louthan’s objection to the
dog sniff and resulting search was preserved, he was convicted
and sentenced. He filed this timely appeal, and we granted the
State’s petition to bypass the Court of appeals.
ii. aSSiGnMenT OF eRROR
louthan assigns, restated, that the district court erred in
overruling his motion to suppress the evidence seized from his
vehicle because his continued detention after the initial traffic
stop violated his right to be free from unreasonable searches
and seizures under the 4th and 14th amendments to the U.S.
Constitution and article i, § 7, of the nebraska Constitution.
iii. STanDaRD OF ReVieW
[1] When reviewing a district court’s determinations of rea-
sonable suspicion to conduct an investigatory stop and probable
cause to perform a warrantless search, ultimate determinations
of reasonable suspicion and probable cause are reviewed de
novo. But findings of historical fact to support that determina-
tion are reviewed for clear error, giving due weight to the infer-
ences drawn from those facts by the trial court.1
1 State v. Voichahoske, 271 neb. 64, 709 n.W.2d 659 (2006).

iV. analYSiS
[2-4] There is no issue concerning the propriety of the traffic
stop. a traffic violation, no matter how minor, creates probable
cause to stop the driver of a vehicle.2 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.3 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.4 also, the officer may run a
computer check to determine whether the vehicle involved in the
stop has been stolen and whether there are outstanding warrants
for any of its occupants.5 The record in this case reflects that
these investigative procedures were completed within approxi-
mately 6 minutes after louthan’s vehicle was stopped.
in Illinois v. Caballes,6 the U.S. Supreme Court held that a
dog sniff “conducted during a concededly lawful traffic stop that
reveals no information other than the location of a substance
that no individual has any right to possess does not violate the
Fourth amendment.” in that case, one officer conducted the
traffic stop while another walked a drug detection dog around
the exterior of the vehicle. The Court noted that the duration of
the stop during which the dog sniff was conducted “was entirely
justified by the traffic offense and the ordinary inquiries incident
to such a stop.”7 The facts in this case differ from those consid-
ered in Caballes in that here, the drug detection dog was not
deployed until after the investigative steps incident to the traffic
stop had been completed.
The Court in Caballes acknowledged and did not alter its
prior holding that “a seizure that is lawful at its inception can
2 Id.; State v. Lee, 265 neb. 663, 658 n.W.2d 669 (2003).
3 See id.
4 Id.
5 Id.
6 Illinois v. Caballes, 543 U.S. 405, 410, 125 S. Ct. 834, 160 l. ed. 2d 842
(2005).
7 Id., 543 U.S. at 408.
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106 	275 neBRaSka RePORTS
violate the Fourth amendment if its manner of execution unrea-
sonably infringes interests protected by the Constitution.”8 The
Court further noted that “[a] seizure that is justified solely by
the interest in issuing a warning ticket to the driver can become
unlawful if it is prolonged beyond the time reasonably required
to complete that mission.”9 in this case, the dog sniff prolonged
the traffic stop several minutes beyond the time required to
conduct the normal investigative inquiries relating to the stop.
The issue presented is whether prolonging the traffic stop for
the time necessary to deploy the drug detection dog which was
already at the scene violated louthan’s Fourth amendment
rights and rendered the evidence obtained through the resulting
search inadmissible at his trial under the Fourth amendment
exclusionary rule.
[5-8] in resolving this question in the negative, the district
court applied a test which this court has employed in cases
decided before and after Caballes. We have held that in order
to expand the scope of a traffic stop and continue to detain the
motorist for the time necessary to deploy a drug detection dog,
an officer must have a reasonable, articulable suspicion that the
person is involved in criminal activity beyond that which initially
justified the interference.10 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.11 Whether
a police officer has a reasonable suspicion based on sufficient
articulable facts depends on the totality of the circumstances.12
Reasonable suspicion must be determined on a case-by-case
basis.13 if reasonable suspicion exists, the court must then con-
sider whether the detention was reasonable in the context of an
8 Id., 543 U.S. at 407, citing United States v. Jacobsen, 466 U.S. 109, 104 S.
Ct. 1652, 80 l. ed. 2d 85 (1984).
9 Illinois v. Caballes, supra note 6, 543 U.S. at 407.
10 See, State v. Voichahoske, supra note 1; State v. Verling, 269 neb. 610, 694
n.W.2d 632 (2005); State v. Lee, supra note 2.
11 State v. Voichahoske, supra note 1; State v. Verling, supra note 10.
12 Id.; State v. Lee, supra note 2.
13 Id.

investigative stop, considering both the length of the continued
detention and the investigative methods employed.14
in this case, the district court determined that Bauer had a
reasonable suspicion that louthan was involved in unlawful
drug activity because Bauer observed louthan leave a residence
where others had reported purchasing unlawful drugs, louthan
admitted that he had a pending charge of possession of meth-
amphetamine, and louthan appeared nervous during the traffic
stop. The court further determined that the prolonged detention
was reasonable, both with respect to its length and the manner
in which it was conducted.
1. applicaBle S tanDarD
The State argues that the district court reached the correct
result by applying an incorrect standard. it urges this court to
abandon our jurisprudence regarding the Fourth amendment
implications of prolonged traffic stops in favor of a “de mini-
mis rule” employed by several state and federal courts.15 This
rule, as articulated in U.S. v. $404,905.00 in U.S. Currency,16
holds that “when a police officer makes a traffic stop and has
at his immediate disposal the canine resources to employ this
uniquely limited investigative procedure, it does not violate
the Fourth amendment to require that the offending motorist’s
detention be momentarily extended for a canine sniff of the
vehicle’s exterior.” Courts applying this rule reject what they
perceive as an artificial distinction between the traffic stop and
the time required for the canine sniff, reasoning that “the arti-
ficial line marking the end of a traffic stop does not foreclose
the momentary extension of the detention for the purpose of
conducting a canine sniff of the vehicle’s exterior.”17
14 See id.
15 See, U.S. v. Alexander, 448 F.3d 1014 (8th Cir. 2006); U.S. v. Martin, 411
F.3d 998 (8th Cir. 2005); U.S. v. $404,905.00 in U.S. Currency, 182 F.3d
643 (8th Cir. 1999); Hugueley v. Dresden Police Dept., 469 F. Supp. 2d 507
(W.D. Tenn. 2007); State v. Griffin, 949 So. 2d 309 (Fla. app. 2007); State
v. DeLaRosa, 657 n.W.2d 683 (S.D. 2003).
16 U.S. v. $404,905.00 in U.S. Currency, supra note 15, 182 F.3d at 649.
17 U.S. v. Alexander, supra note 15, 448 F.3d at 1017.
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We are not persuaded to abandon the reasonable suspicion
standard in favor of the “de minimis rule” advocated by the
State. in Caballes, the Court specifically noted a distinction
between a dog sniff occurring during a routine traffic stop
and one occurring during an “unreasonably prolonged traffic
stop.”18 Referring to a decision of the illinois Supreme Court19
holding that a dog sniff and subsequent discovery of contra-
band during an unreasonably prolonged traffic stop was the
product of an unconstitutional seizure, the Court stated: “We
may assume that a similar result would be warranted in this
case if the dog sniff had been conducted while respondent was
being unlawfully detained.”20 This indicates that there is a con-
stitutionally significant line of demarcation between a routine
traffic stop and one in which a dog sniff is conducted after the
investigative procedures incident to the traffic stop have been
completed. From the video of the traffic stop which is a part of
the record in this case, it is apparent that the routine traffic stop
had ended and the prolonged detention for deployment of the
drug detection dog had begun by the time that Bauer received
information from dispatch that louthan’s license was valid and
that louthan had no outstanding warrants.
Was the traffic stop “unreasonably prolonged” beyond this
point? While the detention for the dog sniff was not lengthy,
that is but one factor in the Fourth amendment analysis, which
requires the dual inquiries of “whether the officer’s action was
justified at its inception, and whether it was reasonably related
in scope in the circumstances which justified the interference
in the first place.”21 We agree with the view expressed by the
dissent in State v. DeLaRosa22 that “the threshold question . . .
is whether the officer had an appropriate basis upon which to
detain the citizen” after concluding the routine traffic stop. We
18 Illinois v. Caballes, supra note 6, 543 U.S. at 407, citing People v. Cox, 202
ill. 2d 462, 782 n.e.2d 275, 270 ill. Dec. 81 (2002).
19 People v. Cox, supra note 18.
20 Illinois v. Caballes, supra note 6, 543 U.S. at 408.
21 Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 20 l. ed. 2d 889 (1968).
22 State v. DeLaRosa, supra note 15, 657 n.W.2d at 691 (Sabers, J.,
dissenting).

conclude that the “reasonable suspicion” test is the appropriate,
necessary, and correct standard for resolving that question.
2. exiStence of reaSonaBle , articulaBle S uSpicion
We turn, then, to louthan’s contention that the district
court erred in applying this standard. as noted, the district
court found that Bauer had a reasonable, articulable suspicion
that louthan was involved in unlawful drug activity for three
reasons: (1) Bauer observed louthan leave the residence of a
suspected drug dealer, (2) louthan admitted a prior arrest for
possession of methamphetamine, and (3) louthan appeared
nervous when Bauer asked permission to search his vehicle. We
examine each of these factors separately, mindful of the rule
that when a determination is made to detain a person during a
traffic stop, even where each factor considered independently
is consistent with innocent activities, those same factors may
amount to reasonable suspicion when considered collectively.23
(a) Residence of Suspected Drug Dealer
Relying on State v. Lee,24 louthan contends that the record
provides no factual basis for Bauer’s testimony that the resi-
dence he was observing, and from which he observed louthan
exit, was a site of unlawful drug activity. in Lee, the State
claimed reasonable suspicion sufficient to prolong the deten-
tion of a motorist stopped in a public recreation area based in
part upon an averment that law enforcement had “‘received
information prior to this incident that drug dealers and users
are meeting at this location for drug transactions.’”25 noting
the lack of any showing regarding the source or reliability of
this information, this court held that the averment amounted
to “little more than conclusory assertions” which could not be
considered in the reasonable suspicion analysis.26
[9] The record in this case provides significantly more detail.
The site of the suspected drug activity in this case was a specific
23 State v. Voichahoske, supra note 1.
24 State v. lee, supra note 2.
25 Id. at 670, 658 n.W.2d at 677.
26 Id. at 670, 658 n.W.2d at 678.
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110 	275 neBRaSka RePORTS
residence, not a general area as in Lee. Bauer testified that he
knew the name of the resident and that the police department
had received complaints from neighbors about “stop-and-go
traffic” near the residence. Bauer, who had received specialized
drug interdiction training in addition to his training as a drug
detection dog handler during his 7 years of service as a norfolk
police officer, testified that “stop-and-go traffic” at a residential
location is an indicator of unlawful drug trade being conducted
there. Bauer testified that he had received reports over a period
of 2 years that the resident was involved in unlawful drug activ-
ity, and he identified by name two persons arrested for drug
offenses who reported that they had obtained drugs from the
resident of the house. He further testified that the most recent
report of drug activity at the residence was approximately 1
month prior to louthan’s arrest. Reasonable suspicion may be
based upon information which may not be sufficient to establish
probable cause. it follows that the “degree of reliability of an
informant that must be shown to justify an investigatory stop is
less than that required to establish probable cause.”27 We con-
clude that Bauer’s testimony regarding prior drug activity at the
residence was sufficiently detailed and reliable to be considered
in a reasonable suspicion analysis and that the district court did
not err in doing so.
(b) Prior Drug arrest
[10] an individual’s criminal history may be a relevant fac-
tor when determining whether an officer has reasonable suspi-
cion to detain an individual.28 in Lee, this court held that the
officers’ awareness that the motorist had unspecified “‘prior
drug arrests’” could be considered as a part of the totality of
the circumstances in determining whether there was a reason-
able, articulable suspicion which would warrant continued
detention pending the arrival of a drug detection dog.29
in this case, louthan admitted to Bauer that he had been
arrested for possession of methamphetamine in September 2006,
27 United States v. Eisenberg, 807 F.2d 1446, 1450 (8th Cir. 1986).
28 State v. Lee, supra note 2.
29 Id. at 671, 658 n.W.2d at 678.

approximately 3 months prior to the traffic stop, and that he had
last used methamphetamine at that time. We conclude that this
information was properly considered by the district court in its
reasonable suspicion analysis.
(c) nervousness
[11] Bauer testified that louthan was “extremely nervous”
when asked if he had “anything illegal” in his vehicle, but
in his report, he described louthan as “somewhat nervous.”
although a motorist’s nervousness is an appropriate factor
for consideration within the totality of the circumstances of a
prolonged traffic stop, its presence is of limited significance
generally.30 Standing alone, Bauer’s description of louthan’s
nervousness would not support a determination of reasonable
suspicion. While it may be considered with other factors, it is
of minimal significance.
(d) Conclusion
We find no clear error by the district court in its determina-
tion of the historical facts which could be considered in deter-
mining whether Bauer had a reasonable, articulable suspicion
to prolong louthan’s detention for the time required to conduct
a dog sniff of his vehicle. Based upon our de novo review of
the totality of the circumstances, we conclude that reason-
able suspicion existed, based primarily on the facts that Bauer
observed louthan leaving a house at which he had a reasonable
basis for believing that unlawful drug activity was conducted
and that louthan admitted he had recently been arrested for
possession of methamphetamine.
3. reaSonaBleneSS of D etention
We must next determine whether the extended detention in
this case was reasonable in the context of an investigative stop,
both with respect to its duration and the investigative methods
employed.31 approximately 7 minutes elapsed from the time
Bauer initiated the dog sniff until he arrested louthan for pos-
session of the controlled substance found in his vehicle as a
30 See State v. Lee, supra note 2.
31 See, State v. Voichahoske, supra note 1; State v. Verling, supra note 10.
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112 	275 neBRaSka RePORTS
result of the search precipitated by the canine alert and indica-
tion. Both the dog and Bauer as its handler were trained and
certified for drug detection. We agree with the determination of
the district court that the extended detention was reasonable.
V. COnClUSiOn
The law enforcement officer had a reasonable, articulable
suspicion that louthan was involved in unlawful drug activ-
ity which was sufficient to justify prolonging the traffic stop
in order to deploy the drug detection dog which was present
on the scene. The prolonged detention was reasonable in the
context of a traffic stop, as to both its duration and the investi-
gative methods used. The canine alert and indication provided
probable cause for the warrantless search of louthan’s vehicle,
a point he does not contest. The district court did not err in
denying louthan’s motion to suppress, receiving the evidence
obtained in that search, and convicting louthan of the offense
of possession of a controlled substance.
affirMeD.
heavican, C.J., not participating.