Affirming a district court’s convictions for possession of methamphetamine and drug paraphernalia, the Nebraska Supreme Court held the defendant’s consent to a search was neither a result of coercion nor ambiguity. State v. Hammond, 315 Neb. 362 (Oct. 20, 2023).

In Hammond, the defendant was stopped by law enforcement in response to a call complaining about a possible intoxicated driver. Upon contacting the Defendant, the law enforcement officer observed that the Defendant might have been under the influence of a drug. As such, law enforcement officers asked the defendant if she would perform field sobriety maneuvers, to which she did not object. Although the officer did not conclude the Defendant was under the influence of alcohol, the Defendant did show signs consistent with being under the influence of a CNS stimulant. When the Defendant was asked whether she would mind if law enforcement looked in her vehicle, she replied, “If you absolutely need to…” Law enforcement officers asked a second time to “take a look,” and the Defendant replied, “If you really need to go look, more power to you.” Additionally, while law enforcement officers were preparing to search the vehicle, the Defendant asked if they would retrieve her cigarettes from the vehicle. After receiving her cigarettes, the Defendant stood by the vehicle and made a call on her cell phone. During the search, law enforcement officers located a folded-up receipt stuffed in the steering wheel cover that contained a white crystalline substance that the officers recognized as possible methamphetamine. The Defendant was subsequently handcuffed, taken into custody, and arrested.

As a result of the methamphetamine located in her vehicle, the Defendant was ultimately charged with possession of methamphetamine and drug paraphernalia. The district court found the Defendant guilty following a bench trial and sentenced the Defendant to 36 months’ probation. Upon appealing her conviction to the appellate Court, the Nebraska Supreme Court upheld the conviction.

The Nebraska Supreme Court found the law enforcement officer did not use coercion when he asked to look in the vehicle. There were no threatening gestures or a threatening tone of voice during the encounter. Rather, the conversation between law enforcement officers and the Defendant was casual and cordial. The Defendant was allowed to refuse consent, but she allowed the search to proceed without hesitation or protest. Furthermore, in addition to her statements, the Court found the Defendant had made a hand gesture toward the vehicle, stood nearby, and had a conversation on her cell phone without doing anything to manifest refusal. Therefore, the Court concluded the Defendant’s consent was voluntary through her statements and actions.

This Hammond decision fully demonstrates that consent to search does not require direct words of affirming consent but may also be given through actions whether expressed or impliedly. Under Nebraska law, although mere submission to authority is insufficient to establish consent to a search, a consent to search may be implied by action rather than words. Therefore, do not mistakenly give voluntary consent to search by not expressing a clear, direct, and unambiguous refusal through words and/or actions.

If you have any questions about this decision, please contact us.