                         IN THE NEBRASKA COURT OF APPEALS

              MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                       (Memorandum Web Opinion)

                                      STATE V. THUNDER


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                STATE OF NEBRASKA, APPELLEE,
                                              V.

                              WALKER P. THUNDER, APPELLANT.


                             Filed March 7, 2017.   No. A-15-891.


       Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge.
Affirmed.
       F. Matthew Aerni, of Berry Law Firm, for appellant.
       Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.



       MOORE, Chief Judge, and PIRTLE and RIEDMANN, Judges.
       PER CURIAM.
                                      INTRODUCTION
       Walker P. Thunder appeals his convictions for possession of a firearm by a prohibited
person and possession of a stolen firearm. On appeal, he argues that guns and ammunition were
seized in violation of his constitutional right to be protected from unreasonable searches and
seizures and that statements he made to the arresting deputy were obtained in violation of his
Miranda rights. Upon our review, we affirm.
                                       BACKGROUND
      On December 21, 2013, Deputy Jason Henkel with the Lancaster County Sheriff’s
Department was on routine traffic patrol on Interstate 80 when he noticed a recreational vehicle




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(RV) swerving in its own lane and crossing the shoulder line. Henkel initiated a traffic stop and
requested the driver to have a seat in his patrol car.
         At the time of the traffic stop, there were four other people in the RV, including Thunder.
The driver informed Henkel that the group was heading to New Mexico and Las Vegas. Although
the driver initially referred to the passengers as his “friends,” he later told Henkel that he could not
remember the names of the other people in the RV, aside from his girlfriend and Thunder. When
Henkel asked the driver who the other passengers in the RV were, the driver said that they were
Thunder’s friends who came along because “[Thunder] can’t drive.” Henkel became suspicious
that criminal activity may have been afoot, because the driver did not know the names of his
traveling companions and because the driver remained nervous even after Henkel informed him
he would be issuing only a warning. Henkel observed that the driver’s hands were shaking, his jaw
was quivering, and he had labored breathing. Henkel asked the driver whether there were any
illegal drugs or guns in the vehicle and the driver replied that there were not.
         Henkel then asked the driver for permission to search the RV. The driver responded that
Henkel could search the driver’s personal luggage, but that he did not feel he could give permission
to search the entire RV because it was a rental vehicle. According to the driver, another passenger
had signed the rental documents. At that time, a woman exited the RV with a dog. Henkel requested
the woman to come back to his patrol car. The woman stated that she was the one who rented the
RV and that she did not know the other occupants and had just met them the previous day. The
woman seemed nervous, but denied that there were guns or drugs in the RV. Henkel asked the
renter for permission to search the RV, and she consented.
         Henkel returned to the RV and had the three remaining passengers, including Thunder, exit
the vehicle. Henkel informed Thunder and the other passengers that the renter had given
permission for him to search the vehicle but did not ask Thunder or the other passengers for
permission to search their personal luggage. Neither Thunder nor the other passengers objected to
the search. While the passengers and driver stood off to the side of the road with another deputy
who had arrived on the scene, Henkel began his search of the RV. Inside the RV’s main living
area, Henkel observed a black case which he recognized to be a gun case. Henkel opened the gun
case and discovered a 9-mm handgun inside. Henkel continued his search and located a .45-caliber
handgun and ammunition in a duffle bag.
         After discovering the firearms, Henkel exited the RV and asked the RV’s occupants who
owned the weapons. Thunder admitted they were his. Henkel asked Thunder whether he was a
felon, to which Thunder replied, “I got five times drunken driving.” Thunder was apparently
unsure whether his convictions were felonies. Thunder claimed that he did not know the guns were
in the RV and that his brother must have placed them in the RV before the trip.
         After determining that Thunder owned the guns, Henkel had Thunder sit in his patrol car.
Henkel asked Thunder to spell his name and provide his date of birth, address, phone number, and
social security number. Henkel radioed dispatch with Thunder’s identifying information in an
attempt to determine whether Thunder was, in fact, a convicted felon. Approximately 55 minutes
after radioing in Thunder’s identifying information, Henkel and the other deputy on the scene also
called in the guns’ serial numbers. Dispatch confirmed that the 9-mm handgun was stolen. At that
point, Henkel read Thunder his Miranda rights and placed him under arrest. Henkel later also
confirmed that Thunder was a felon.


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        Henkel transported Thunder to the Lancaster County Sheriff’s Office where he again read
Thunder his Miranda rights. Thunder signed a Miranda waiver form. Henkel then interviewed
Thunder, and Thunder provided additional information about the guns located in the RV.
        Thunder was subsequently charged with one count of possessing a stolen firearm in
violation of Neb. Rev. Stat. § 28-1212.03 (Cum. Supp. 2012), a Class III felony, and one count of
possession of a firearm by a prohibited person in violation of Neb. Rev. Stat. § 28-1206(3)(b)
(Cum. Supp. 2012), a Class ID felony.
        Prior to trial, Thunder filed a motion to suppress the guns, ammunition, evidence of his
criminal record, and statements he made to Henkel. Following a hearing on the motion, the district
court overruled the motion. The court determined that the search of the gun case was constitutional
under the plain view exception to the warrant requirement. Specifically, the court found that
Henkel was authorized to search the RV because he had received consent from the renter. The
court further determined that once Henkel was lawfully in the RV, he observed the gun case and
immediately recognized its incriminating nature. Alternatively, the court held that Henkel acted
reasonably in believing that the renter possessed common authority over the contents of the RV
such that she could consent to a search of Thunder’s luggage. With respect to Thunder’s
statements, the court found no Miranda violation. The court concluded that Thunder was not in
custody at the time he admitted that the guns were his and that he might be a felon. Thunder filed
a motion to reconsider, which the district court overruled.
        The case proceeded to a stipulated bench trial. The evidence adduced at the trial consisted
primarily of the bill of exceptions from the suppression hearing at which Henkel testified and the
recording of the traffic stop from Henkel’s patrol car. The State also introduced evidence of
Thunder’s criminal history which revealed that he was a felon due to a fifth-offense driving under
the influence conviction in 2003. Finally, the State introduced a Lancaster County Sheriff’s
Department additional case information form, which confirmed that the 9-mm handgun had been
stolen in 2011.
        Thunder objected to all the State’s evidence on the basis of the same arguments made in
his motion to suppress. The court overruled Thunder’s objections and received the State’s
evidence. Thunder did not present any evidence.
        Following the bench trial, Thunder was found guilty of both counts. The district court
sentenced Thunder to 2 to 4 years’ incarceration for possessing a stolen firearm and 3 to 5 years’
incarceration for being a felon in possession of a firearm. The sentences were to be served
concurrently. Thunder appeals.
                                  ASSIGNMENTS OF ERROR
       Restated and renumbered, Thunder argues that the district court erred in (1) finding that
the RV renter’s consent to search the vehicle extended to Thunder’s luggage, (2) holding that the
gun case’s incriminating nature was immediately apparent such that it fell under the plain view
exception to the warrant requirement, (3) finding that Thunder consented to a search of his luggage
by remaining silent when informed that the renter had given consent to search, (4) finding that
Thunder was not in custody prior to being read his Miranda rights in the patrol car, and (5) failing
to suppress the statements Thunder made after he was taken into custody and before he was
Mirandized in the patrol car.


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                                    STANDARD OF REVIEW
        In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of
the Fourth Amendment, an appellate court applies a two-part standard of review. State v. Tyler,
291 Neb. 920, 870 N.W.2d 119 (2015). Regarding historical facts, an appellate court reviews the
trial court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews independently of the trial court’s
determination. Id.
        It is a mixed question of law and fact whether a statement was voluntarily made and
whether a custodial interrogation has occurred. State v. Landis, 281 Neb. 139, 794 N.W.2d 151
(2011). These questions involve the application of the facts surrounding the statement to the
constitutional rubric mandated by the U.S. Supreme Court, and are reviewed under the same
two-point standard of review set forth above. Id.
                                            ANALYSIS
Search and Seizure.
        Thunder’s first three assignments of error relate to the constitutionality of the search that
led Henkel to discover and seize the 9-mm handgun in the gun case and the .45-caliber handgun
and ammunition in the duffle bag. Thunder asserts that the district court erred in denying his
motion to suppress because the renter lacked the authority to consent to a search of his luggage,
his silence did not amount to consent to search his luggage, and the plain view doctrine does not
apply under the facts of this case. We conclude that the plain view exception to the warrant
requirement does apply, and therefore, the court did not err in denying Thunder’s motion to
suppress.
        A warrantless seizure is justified under the plain view doctrine if (1) a law enforcement
officer has a legal right to be in the place from which the object subject to seizure could be plainly
viewed, (2) the seized object’s incriminating nature is immediately apparent, and (3) the officer
has a lawful right of access to the seized object itself. State v. Reinpold, 284 Neb. 950, 824 N.W.2d
713 (2013). Here, Thunder does not contest the first and third elements, and we find they are
satisfied by the facts of this case. Instead, Thunder solely argues that the gun case’s incriminating
nature was not immediately apparent, because Henkel was not aware of Thunder’s criminal history
or status as a felon prior to the search.
        In order for an object in plain view to be seized, the incriminating nature of the property
must be immediately apparent. State v. Reinpold, supra. For an object’s incriminating nature to be
immediately apparent, the officer must have probable cause to associate the property with criminal
activity. Id. Probable cause is a flexible, commonsense standard. Id. It merely requires that the
facts available to the officer would warrant a person of reasonable caution in the belief that certain
items may be useful as evidence of a crime. Id.
        The probable cause standard, with regard to the plain view doctrine, does not demand any
showing that a belief that certain items may be useful as evidence of a crime be correct or more
likely true than false. Id. See also U.S. v. Weinbender, 109 F.3d 1327 (8th Cir. 1997) (probable
cause demands not that officer be “sure” or “certain” but only that facts available to reasonably
cautious man would warrant belief that certain items may be contraband or stolen property or


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useful as evidence of crime). Ultimately, satisfaction of the probable cause standard may leave the
reporting officer with further need to investigate the items seized in order to confirm the
incriminating nature of those items. State v. Reinpold, supra.
         In the present case, the traffic stop occurred on Interstate 80, on which there is a high
frequency of illegal activity, according to Henkel’s testimony. Henkel’s suspicions were arisen
initially based on his interactions with the driver and renter. During those conversations, Henkel
learned that the occupants were traveling across the country but did not all know each other.
Henkel testified that it was “odd” for them to be traveling cross-country without even knowing
each other’s names. In addition, the driver and renter each appeared very nervous, more so than
Henkel normally sees during a traffic stop. When talking with the driver, Henkel noticed that the
driver’s hands were shaking, his jaw was quivering, and he had labored breathing. And Henkel
noted that the driver’s nervousness did not subside when Henkel informed him he was only going
to issue a warning, as it generally does with people who are not involved in criminal activity. To
the contrary, the driver’s nervousness remained elevated and appeared to increase throughout his
encounter with Henkel. Henkel suspected the parties may be involved in criminal activity and
actually informed the driver that he thought there might be some criminal activity afoot. Henkel
asked both the driver and renter whether there were any narcotics or weapons in the RV, and both
parties denied the presence of any drugs or guns in the vehicle.
         We conclude, under the facts of this case, that the incriminating nature of the gun case was
immediately apparent, because Henkel had probable cause to associate guns with criminal activity
at the time the case was located in the RV. We reiterate that the “immediately apparent” language
does not require that Henkel knew that a gun in the RV constituted contraband or evidence of a
crime at the time he located the case; rather, it merely requires that the facts available to him would
warrant a man of reasonable belief that it may be contraband, stolen property, or useful as evidence
of a crime. See Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L.Ed.2d 502 (1983).
         The fact that the item seized is not inherently incriminating does not defeat the requirement
that the incriminating nature be immediately apparent. The Nebraska Supreme Court has held that
satisfaction of the probable cause standard may leave the reporting officer with further need to
investigate the items seized in order to confirm the incriminating nature of those items. See State
v. Reinpold, 284 Neb. 950, 824 N.W.2d 713 (2013). In addition, the Seventh Circuit Court of
Appeals has upheld the seizure of innocuous objects based on the totality of the circumstances
surrounding the location of the property. Officers may have probable cause to seize an ordinarily
innocuous object when the context of an investigation casts that item in a suspicious light. United
States v. Cellitti, 387 F.3d 618 (7th Cir. 2004). See also United States v. Bruce, 109 F.3d 323 (7th
Cir. 1997) (summarizing cases where none of items seized, including empty ammunition box, large
amount of money, and money and maps, was inherently incriminating, but in connection with
crime being investigated, each item took on suspicious nature, giving officers probable cause to
seize it).
         In the instant case, Henkel was suspicious that the parties may be involved in transporting
drugs. The driver and renter appeared unusually nervous, and the parties were unfamiliar with each
other, traveling across the country, in a rented vehicle with out-of-state license plates. The Eighth
Circuit Court of Appeals has recognized an officer’s testimony that out-of-state license plates can
be indicative that the vehicle is a rental being used for drug trafficking to make detection and


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identifying the occupants more difficult. See U.S. v. Coleman, 603 F.3d 496 (8th Cir. 2010). Here,
the driver and renter also claimed there were no guns in the RV, despite one of the guns Henkel
located appearing in plain view when he searched. The Eighth Circuit has held that hidden guns,
even badly hidden guns, are by their nature incriminating, U.S. v. Hatten, 68 F.3d 257, (8th Cir.
1995), and that guns are “tools of the trade” for drug dealers, U.S. v. Regans, 125 F.3d 685, 686
(8th Cir. 1997). Thus, the totality of the circumstances supports a conclusion that Henkel had
probable cause to suspect that the gun case may contain contraband or evidence of a crime when
he located it in plain view.
        Having determined that Henkel had probable cause to seize the gun case, we turn to his
authority to search it without a warrant. Because Thunder does not argue this prong of the test, we
summarily discuss it solely for purposes of completeness. The Eighth Circuit Court of Appeals has
upheld the warrantless search of a gun case that was readily identifiable as such. See U.S. v. Banks,
514 F.3d 769 (8th Cir. 2008). The court stated:
        Ordinarily, a warrant is necessary before police may open a closed container because by
        concealing the contents from plain view, the possessor creates a reasonable expectation of
        privacy. Robbins v. California, 453 U.S. 420, 427, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981),
        overruled on other grounds by United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72
        L.Ed.2d 572 (1982). However, like objects that sit out in the open, the contents of some
        containers are treated similarly to objects in plain view. In Arkansas v. Sanders [442 U.S.
        753, 99 S.Ct. 2586 (1979), overruled on other grounds by United States v. Acevedo, 500
        U.S. 565, 111 S.Ct. 1982 (1991)], the Court suggested that no warrant is required to open
        such containers: “some containers (for example . . . a gun case) by their very nature cannot
        support a reasonable expectation of privacy because their contents can be inferred from
        their outward appearance.”

Id. at 773.
        Here, Henkel testified that he recognized the case as being a gun case; therefore, Thunder
could not have a reasonable expectation of privacy in it because once Henkel lawfully seized it, its
contents could be inferred. See also State v. Vyhnalek, 19 Neb. App. 904, 814 N.W.2d 768 (2012)
(concluding that because container was single-purpose container warrant was not required before
officers opened gun case).
        Thunder’s argument focuses on the fact that Henkel did not know he was a felon when he
searched the gun case and that it is not unlawful to transport a gun. We recognize that the Eighth
Circuit in dicta has expressed concern that officers who seized ammunition during a search of a
suspect’s residence did so without any knowledge that the suspect was a convicted felon. See U.S.
v. Blom, 242 F.3d 799 (8th Cir. 2001). The court rejected, in dicta, the notion that an officer could
seize a citizen’s firearms or ammunition with no knowledge of that citizen’s criminal history and
then attempt to justify the seizure because, in hindsight, it turns out the citizen is a convicted felon.
In the present case, however, Henkel did not seize the guns because of a belief that one of the RV’s
occupants may be a convicted felon. Rather, he reasonably believed that the gun may be connected
to drug activity, and as we determined above, that belief is supported by probable cause. We
therefore conclude that the totality of the circumstances supports a finding that the incriminating



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nature of the 9-mm handgun was immediately apparent, because Henkel had probable cause to
associate it with criminal activity upon discovery. Accordingly, the district court did not err in
denying Thunder’s motion to suppress with respect to the 9-mm handgun. Because the 9-mm
handgun alone supports Thunder’s convictions for possession of a stolen firearm and possession
of a firearm by a prohibited person, we do not address the search of Thunder’s duffle bag which
led to the location of the .45-caliber handgun and ammunition. In addition, because we find that
the motion to suppress was properly denied under the plain view doctrine, we need not address
Thunder’s arguments as to whether the renter could consent to a search of Thunder’s luggage or
whether Thunder acquiesced to the search based on his silence.
Miranda Rights.
        Thunder’s final two assignments of error relate to the statements Thunder made to Henkel
before being read his Miranda rights. On appeal, Thunder no longer argues that his statements
prior to being placed in the patrol car should be suppressed. Rather, Thunder argues that he was
subject to custodial interrogation without Miranda warnings when he was seated in Henkel’s patrol
car and that his statements, including his name, address, date of birth, phone number, and social
security number, should have been suppressed. We find no merit to Thunder’s assignments of
error.
        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), prohibits the
use of statements stemming from the custodial interrogation of a defendant unless the prosecution
demonstrates the use of procedural safeguards effective to secure the privilege against
self-incrimination. State v. Dallmann, 260 Neb. 937, 621 N.W.2d 86 (2000). Thus, in order to
safeguard an uncounseled individual’s Fifth Amendment privilege against self-incrimination,
suspects interrogated while in police custody must be apprised of certain rights. Id.
        A person is in custody for purposes of Miranda when there is a formal arrest or a restraint
on one’s freedom of movement to the degree associated with such an arrest. State v. Bormann, 279
Neb. 320, 777 N.W.2d 829 (2010). Interrogation under Miranda refers not only to express
questioning, but also to any words or actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are reasonably likely to elicit an
incriminating response from the suspect. Id.
        The Nebraska Supreme Court has drawn a distinction between custodial interrogation
requiring Miranda warnings and preliminary investigation not triggering such protections:
       [T]he Miranda decision distinguished preliminary investigation from custodial
       interrogation. Miranda applies only to interrogations initiated by law officers after a person
       has been taken into custody or deprived of his freedom in any significant way. The
       [Miranda] procedures . . . were not meant to preclude law enforcement personnel from
       performing their traditional investigatory functions such as general on-the-scene
       questioning. . . . Thus, [i]n on-the-scene investigations the police may interview any person
       not in custody and not subject to coercion for the purpose of determining whether a crime
       has been committed and who committed it.

State v. Holman, 221 Neb. 730, 736, 380 N.W.2d 304, 309 (1986) (internal quotation marks
omitted) (citations omitted).


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         For example, in Holman, an officer stopped the defendant for a missing license plate and
observed four large tires in her open trunk. Id. The officer asked the defendant who owned the tires
and she admitted they were not hers, but declined to name the owner. The officer also asked the
defendant for her license and registration, which she provided. The officer ran a registration and
warrants check and learned that the defendant’s license had been suspended and that there was a
warrant for her arrest. The officer then arrested the defendant. She was later prosecuted for
receiving stolen property. On appeal, the defendant contended that her statements to the officer
regarding the tires should have been suppressed because she had not been read her Miranda rights
at the time. The Supreme Court determined that suppression was not required because the officer
was simply engaging in on-the-scene questioning and the defendant was not in custody at the time.
         Similarly, in State v. Bowers, 250 Neb. 151, 548 N.W.2d 725 (1996), the Nebraska
Supreme Court found that Miranda warnings were not required during an on-the-scene
investigation. The officer had stopped the defendant’s vehicle for missing license plates and
in-transit tags. The officer smelled alcohol upon approaching the car. The defendant was able to
produce paperwork showing that he had recently purchased the car, but he failed to produce a
driver’s license. The defendant claimed that he had recently had his license reinstated. The officer
asked the defendant to accompany him back to his police cruiser to verify his story regarding his
driver’s license and to determine if the smell of alcohol emanated from the defendant. The
defendant sat in the front seat of the cruiser and the officer had him perform routine field sobriety
tests, which the defendant failed. The court determined that the defendant was not in custody
during the investigation.
         Likewise here, Henkel was involved in a preliminary, on-the-scene investigation to
determine whether a crime had been committed at the time he asked Thunder questions in his
patrol car. Similar to the officers in Holman, supra, and Bowers, supra, Henkel asked Thunder
only for basic information to verify his identity in an attempt to determine whether a crime (being
a felon in possession of a firearm) had been committed. Thunder was not in custody at the time he
made these statements. The district court did not err in failing to suppress Thunder’s statements.
                                          CONCLUSION
       We find no error in the district court’s denial of Thunder’s motion to suppress and
determination that no Miranda violation occurred. We therefore affirm.
                                                                                         AFFIRMED.




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