                         IN THE NEBRASKA COURT OF APPEALS

              MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                                       STATE V. WELCH


  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.
                               DEANDRA C. WELCH, APPELLANT.


                          Filed November 19, 2013.    No. A-12-951.


       Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge. Affirmed.
      Dennis R. Keefe, Lancaster County Public Defender, John C. Jorgensen, and Ariel
Johnson, Senior Certified Law Student, for appellant.
       Jon Bruning, Attorney General, and Melissa R. Vincent for appellee.


       MOORE, PIRTLE, and BISHOP, Judges.
       BISHOP, Judge.
                                     I. INTRODUCTION
        Deandra C. Welch appeals from the decision of the district court for Lancaster County
that, after a jury trial, convicted him of possession of a firearm by a prohibited person and
driving under suspension.
                               II. FACTUAL BACKGROUND
        On October 27, 2011, Investigators Timothy Cronin and Jeffrey Sorensen, both of whom
were assigned to the narcotics unit of the Lincoln Police Department (LPD), were working the
second shift from 2:30 to 10:30 p.m. Both were in plain clothes and traveling in an unmarked
vehicle. Shortly after 7 p.m., Cronin and Sorensen were at the intersection of 27th and Holdrege
Streets when Cronin observed Welch drive by in his vehicle. Cronin recognized Welch from
previous contacts and knew his driver’s license was suspended. Cronin followed Welch while
Sorensen used a laptop computer to access the Nebraska Criminal Justice Information System




                                             -1-
database, which receives real-time information directly from the Department of Motor Vehicles,
to confirm that Welch’s license was suspended.
        Welch pulled his vehicle into the parking lot of a convenience store located on the
southwest corner of 33d and Holdrege Streets. Cronin was not sure whether Welch planned to
stop, so he circled the block. Upon returning, Cronin and Sorensen pulled into a parking lot
across the street from the convenience store and observed Welch’s vehicle parked next to a gas
pump. As Welch began fueling his vehicle, Cronin drove toward the convenience store’s parking
lot and Welch looked directly at him. Cronin testified that Welch was familiar with him and had
seen him in the same vehicle on several prior occasions. After pumping only 27 cents worth of
gas, Welch walked back to his vehicle “at a faster pace” and entered the driver’s side door.
Cronin and Sorensen temporarily lost sight of Welch and were concerned that he might be hiding
contraband or retrieving a weapon.
        Cronin pulled his vehicle directly behind Welch’s vehicle. Welch exited the driver’s side
door, locked it, and shut it. Cronin and Sorensen exited their vehicle and approached Welch.
Once they determined that Welch’s hands were empty, Cronin advised Welch that he was under
arrest for driving under suspension and attempted to place him in handcuffs. According to
Cronin and Sorensen, Welch became argumentative and resisted their efforts to place him in
handcuffs. During this time, Cronin removed the keys from Welch’s hand and placed them on
top of Welch’s vehicle. A marked patrol unit arrived, and Welch was placed in the backseat of
that patrol car.
        Once Welch was secured in the patrol car, Cronin walked around the outside of Welch’s
vehicle. While looking through the windows of the vehicle, Cronin observed a single marijuana
seed on the front passenger seat. After seeing the marijuana seed, Cronin used Welch’s keys to
unlock the vehicle and search for additional contraband. Cronin observed a semiautomatic pistol
underneath the driver’s seat. Cronin later determined that the firearm contained 14 rounds of
ammunition, 13 in the magazine and 1 in the chamber.
                              III. PROCEDURAL BACKGROUND
         The State charged Welch with (1) possession of a firearm by a prohibited person; (2)
carrying a concealed weapon, first offense; (3) resisting arrest, first offense; and (4) driving
under suspension.
         Welch filed a motion to suppress any items seized by the police during the warrantless
search of his vehicle. A suppression hearing was held on May 15, 2012. Cronin and Sorensen
testified to the facts set forth above. Cronin also testified that he has worked for the LPD for 12½
years and has been a narcotics investigator for more than 2 years. He received 6 months of
training at the LPD academy. He also participated in a 2-week Drug Enforcement Agency
training program. Cronin testified that he can identify drugs by their smell and appearance. He
testified that he identifies marijuana on a daily basis. Cronin testified that he is able to identify
marijuana seeds and has seen them “hundreds” of times. Cronin testified that a marijuana seed is
a “very distinctive looking seed.” He described it as “like a little pod,” “very shiny” texture, “not
a solid color,” “yellow and green all mixed in, kind of like a taupe-type color,” with a
“light-colored line running through the middle of it.” Cronin testified that marijuana seeds
contain THC and that THC is what makes marijuana a controlled substance.


                                                -2-
         Cronin testified that he used a hand-held light to look through the windows of Welch’s
vehicle. Cronin testified that he saw a “single marijuana seed in the crevice of the passenger
portion of the front bench seat.” He said it appeared to be a marijuana seed by its size, shape, and
color. After seeing the alleged marijuana seed, Cronin used Welch’s keys to unlock the vehicle
to search for more contraband. During the search, Cronin found the firearm under the driver’s
seat. Cronin collected the firearm and the seed for evidentiary purposes. A subsequent laboratory
analysis of the alleged marijuana seed was inconclusive. The report stated that the item “was of
an insufficient quantity for controlled substances identification.”
         Sorensen testified that the decision was made to tow Welch’s vehicle because Welch had
a history of driving under suspension. It is not clear from Sorensen’s testimony when, during the
course of events, the decision was made to tow Welch’s vehicle. Sorensen testified that when a
vehicle is to be towed, it is the LPD policy to do an inventory search of items within a vehicle.
Sorensen testified that the purpose of an inventory search is to inventory high value items prior
to the vehicle being towed and/or turned over to the tow lot. Sorensen testified that an inventory
search includes a search of the passenger compartment, the glovebox, the center console, and any
unlocked or open containers. Both Cronin and Sorensen testified that the area where the firearm
was found would have been searched during an inventory search.
         After the suppression hearing, the district court judge who heard the motion had to
disqualify herself and the case was reassigned to a new judge. The new district court judge
consulted with counsel, and after the court offered to conduct a new suppression hearing, it was
agreed by all parties that a bill of exceptions would be prepared from the hearing previously held
on May 15, 2012, and the matter submitted on the record. After reviewing the bill of exceptions,
the district court found that the search and seizure were justified under the plain view and
inventory search exceptions to the warrant requirement. Therefore, the district court overruled
Welch’s motion to suppress.
         Trial was held on August 14 and 15, 2012. At the trial, Welch renewed his objections
relating to the motion to suppress, but his objections were overruled. Cronin and Sorensen
testified at trial, and their testimony has been set forth above.
         The State also sought to offer into evidence exhibit 26, a compact disc (CD) containing
audio recordings of four telephone calls made by Welch while he was being detained in a
holding cell at the Lancaster County jail following his arrest on October 27, 2011. Initially, the
State had informed Welch that it did not intend to use the recorded calls at trial. However,
shortly before trial, the State changed its mind and informed Welch that it did intend to use the
calls. Welch requested a hearing pursuant to Neb. Rev. Stat. § 27-104 (Reissue 2008) so that the
court could determine the admissibility of the recorded calls. A hearing on Welch’s motion in
limine regarding § 27-104 admissibility was held during the course of the trial, but outside of the
jury’s presence. The testimony from the hearing will be set forth as necessary in our analysis.
The district court overruled Welch’s motion in limine and found that the four recorded calls
contained in exhibit 26 were admissible at trial. The calls contained admissions by Welch
regarding knowledge of the firearm in the vehicle.
         At trial, the parties stipulated that (1) on October 27, 2011, Welch did not have a valid
driver’s license, because it had been previously revoked, and (2) Welch had previously been
convicted of a felony.


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        At the end of the trial, the district court granted the State’s motion to dismiss the charge
of carrying a concealed weapon. The jury found Welch guilty of possession of a firearm by a
prohibited person and driving under suspension. The jury found Welch not guilty of resisting
arrest. The trial court accepted the jury’s verdict. Welch was later sentenced to 6 to 10 years’
imprisonment for possession of a firearm by a prohibited person and 1 to 3 months’
imprisonment for driving under suspension. The sentences were ordered to be served
concurrently. Welch was given 73 days’ credit for time served. Welch has timely appealed his
convictions and sentences to this court.
                                IV. ASSIGNMENTS OF ERROR
       Welch assigns that (1) the district court improperly admitted exhibit 26, a copy of four
recorded telephone calls, (2) the district court erred in overruling his motion to suppress the
evidence obtained from a warrantless search of his vehicle, (3) the remaining, properly admitted
evidence was insufficient to support his conviction for possession of a firearm by a prohibited
person, and (4) the district court imposed excessive sentences.
                                  V. STANDARD OF REVIEW
         In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence
is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules
make discretion a factor in determining admissibility. State v. Kibbee, 284 Neb. 72, 815 N.W.2d
872 (2012). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the
discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse
of discretion. Id.
         A court must determine whether there is sufficient foundation evidence for the admission
of physical evidence on a case-by-case basis. State v. Nolan, 283 Neb. 50, 807 N.W.2d 520
(2012). Because authentication rulings are necessarily fact specific, a trial court has discretion to
determine whether evidence has been properly authenticated. Id. An appellate court reviews a
trial court’s ruling on authentication for abuse of discretion. Id.
         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. Nolan,
supra. Regarding historical facts, an appellate court reviews the trial court’s findings for clear
error. Id. 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.
         When reviewing a criminal conviction for sufficiency of the evidence to sustain a
conviction, the relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. State v. McGee, 282 Neb. 387, 803
N.W.2d 497 (2011). And whether the evidence is direct, circumstantial, or a combination
thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of
fact. Id.
         A sentence imposed within statutory limits will not be disturbed on appeal absent an
abuse of discretion by the trial court. State v. Williams, 282 Neb. 182, 802 N.W.2d 421 (2011).


                                                -4-
                                          VI. ANALYSIS
                           1. EXHIBIT 26: RECORDED TELEPHONE CALLS
        Welch argues that the district court erred in admitting exhibit 26 without proper
foundation. As stated previously, exhibit 26 is a CD containing audio recordings of four
telephone calls made by Welch while he was being detained in a holding cell at the Lancaster
County jail following his arrest on October 27, 2011. Welch argues that the recorded calls were
not properly authenticated and contained inadmissible hearsay. Welch also argues that the
admission of the recorded calls into evidence violated his rights to confrontation and
cross-examination under the 6th and 14th amendments.
        Welch originally made a motion in limine seeking to exclude the CD containing the four
calls made by him while he was being detained at the jail. The motion was overruled. During the
trial, Welch objected to the receipt of the calls, marked as exhibit 26, on the grounds of
insufficient authentication, hearsay, and confrontation. He asked for, and was granted, a
continuing objection. Thus, Welch’s objections were preserved for appellate review. See State v.
Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (2011).
                               (a) Authentication and Confrontation
         Welch argues that the recorded calls were not properly authenticated and violated his
rights to confrontation and cross-examination. Neb. Rev. Stat. § 27-901(1) (Reissue 2008)
provides that “[t]he requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter in question is
what its proponent claims.” Section 27-901 does not impose a high hurdle for authentication or
identification. State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011). A proponent of evidence
is not required to conclusively prove the genuineness of the evidence or to rule out all
possibilities inconsistent with authenticity. Id. If the proponent’s showing is sufficient to support
a finding that the evidence is what it purports to be, the proponent has satisfied the requirement
of § 27-901(1).
         Section 27-901(2) provides examples of some methods of authentication or identification
that conform with the requirements of § 27-901(1). Those examples include:
                 (a) Testimony that a matter is what it is claimed to be;
                 ....
                 (e) Identification of a voice, whether heard first-hand or through mechanical or
         electronic transmission or recording, by opinion based upon hearing the voice at any time
         under circumstances connecting it with the alleged speaker;
                 ....
                 (i) Evidence describing a process or system used to produce a result and showing
         that the process or system produces an accurate result[.]
§ 27-901(2).
         In the instant case, the State offered into evidence exhibit 26, a CD containing recorded
telephone calls made by Welch while he was being detained at the Lancaster County jail. As
foundation for the exhibit, the State presented testimony from several witnesses. Angie Koziol
testified that she is the business manager, not the records manager, for the Lancaster County


                                                -5-
Corrections Department. Koziol testified that Legacy Inmate Communication (Legacy) is the
inmate telephone provider at the jail. Legacy is located in California. Koziol testified that she is
familiar with the Legacy recording system. The Legacy recording system automatically records
all outgoing inmate calls; there is no human intervention in the recording of the calls. Legacy
assigns a resource ID number to each call made. The resource ID number identifies the date and
time the call was made, as well as the telephone number dialed. At the beginning of each call,
there is a prerecorded message which (1) notifies the receiving party that the call is from an
inmate at the Lancaster County jail; (2) prompts the inmate to state his or her name; (3) gives the
receiving party the option to accept, deny, or block the call; and (4) warns that the call may be
recorded and is subject to monitoring. Calls are stored on a hard drive at Legacy. Recorded calls
can be retrieved at a later date through Legacy’s Web site using a login and password. Calls are
accessible on Legacy’s Web site for 3 to 6 months, after which time the calls are archived and
may be accessed upon request. Recorded calls may be downloaded onto a CD. If the recording
system encounters a problem, a “trouble ticket” is generated and posted on Legacy’s Web site.
        Koziol also testified that the jail keeps an inmate movement log of each inmate’s
movements while in the jail (e.g., arrest times, booking times, when and where they are moved
within the jail, when they leave for court, when they are released from custody, et cetera). The
movement logs are done on the Nebraska Criminal Justice Information System, and the records
are generated at or near the time of the events. Koziol testified that the records are made and kept
in the normal course of business. The public does not have access to the Nebraska Criminal
Justice Information System. The inmate movement log shows Welch was in a holding room from
8:24 p.m. on October 27, 2011, until 12:48 a.m. on October 28. Koziol testified that the holding
room is located in the booking area of the jail. Inmates in the booking area have access to a
telephone on a rolling cart. There are telephone jacks in between the holding cells, and two
holding cells may share an assigned jack. The telephone is plugged into the jack, and the handset
goes through a “pass-through.” The cart is rolled close to the holding cell door so that the inmate
can dial. All calls placed from the booking area are recorded by Legacy. Koziol testified that
only one person is placed in each holding cell and that therefore, a call can be narrowed down to
two individuals on any given date and time.
        Koziol testified that she requested reinstatement of all calls made from the jail on October
27 and 28, 2011. Koziol searched for calls made from the booking area of the jail during the time
Welch was being held there. She testified that the four calls in exhibit 26 were made from the
booking area of the jail while Welch was being held there. She further testified that the Legacy
system was working on October 27 and 28. Koziol testified that it is not possible to alter or
delete calls made by inmates. Koziol’s testimony satisfied § 27-901(2)(i) by describing the
process and system used in creating recordings, the inability of recordings to be made if the
system is down, and the inability to modify recordings.
        Sorensen testified that he is familiar with the Legacy system and has been using the
system for 3 years. Sorensen testified that he has access to Legacy’s Web site. Sorensen testified
that on October 28, 2011, he located three calls placed from the Lancaster County jail to a
telephone number belonging to Welch’s mother on the evening of October 27. Sorensen also
located one call placed from the Lancaster County jail on October 27 to a telephone number
belonging to a woman who has children with Welch. Sorensen downloaded the four calls onto a


                                               -6-
CD, exhibit 26, and testified that he did not alter, modify, or delete the calls. Sorensen noted that
at the beginning of each call, the inmate identified himself as “Dray.” Sorensen testified that
“Dray” is a known alias for Welch. In addition, Sorensen testified that he is familiar with
Welch’s voice, having heard him speak in person both on and after October 27. Sorensen
testified that the inmate speaking on the recorded calls was Welch. Sorensen testified that the
calls on exhibit 26 are true and accurate recordings of the four calls he listened to on October 28,
although he noted that one call has since been partially redacted. Sorensen testified that the
redacted portion was at the “tail end” of the call and contained Welch’s discussion about an
unrelated case. Sorensen’s testimony satisfied § 27-901(2)(a), (e), and (i).
         Cronin testified that one of Welch’s nicknames is “Dray.” Cronin testified that he is
familiar with Welch’s voice, having heard him speak before, on, and after October 27, 2011.
Cronin testified that the inmate speaking on the recorded calls was Welch. Cronin testified that
he had previously listened to the four calls on Legacy’s Web site and that the calls on exhibit 26
are the same as the calls on the Web site, except for a 4-minute redaction on one call. Cronin’s
testimony satisfied § 27-901(2)(e).
         Welch argues that in order to properly authenticate the recorded calls, the State needed to
have someone from Legacy testify as to its system and whether or not the recordings could have
been altered from their original state (e.g., in the 24 hours between the time the call was
originally recorded onto Legacy’s hard drive on October 27, 2011, and when Cronin and
Sorensen listened to and downloaded the calls from Legacy’s Web site on October 28). Welch
argues that the State’s failure to call a witness from Legacy denied him the opportunity to
confront and cross-examine his accusers.
         In overruling Welch’s motion in limine, the district court stated:
                  I’m going to overrule the motion in limine. And just for the record, I’ll say this. I
         think as I’ve listened to the testimony this morning, there’s no indication to me of any
         mark of unreliability as to the recording. To the extent that there’s a third party involved
         with essentially maintaining records, again, while I appreciate fully the issue of and
         concern with tampering, I don’t find that the process that they used or the people that the
         State called to admit those records were of a concern enough to sustain a motion in limine
         here.
                  I think the recordings have been properly authenticated in the sense that
         somebody from the State has testified as to how the records were kept, how they were
         maintained. It’s true that the records were redacted, but I don’t find any evidence that,
         except for the State’s redacting the records and clipping off four minutes of one of the
         recordings, I don’t find any evidence whatsoever that the foundation for the recordings
         was not properly laid.
                  Could others testify as to that foundation? Yes. Could somebody have [sic] from
         Legacy have come and testified? Maybe they could have. But I don’t -- I don’t require
         that. I don’t think that every time a jail recording gets made that the company that keeps
         the database is required to come testify but for maybe a showing that there was some sort
         of indicator of nonreliabiliy. But in this case there’s nothing of that. The officer testified,
         I find him credible. So as far as the -- as far as a business record, as far as the protection
         of the CD or the four calls, I find that meets the foundational requirement.


                                                 -7-
        The district court did not abuse its discretion in finding that the recorded telephone calls
contained in exhibit 26 were reliable. Other than the 4-minute redaction at the end of one call,
there is no evidence that the calls were altered in any way. During cross-examination of
Sorensen, Welch’s counsel noted that if the files were redacted, then they are capable of being
altered. We disagree. We have listened to the audio recordings of the calls. The redaction in the
one call did not occur in the middle of the call; rather, the redaction occurred at the end of the
call when the recording was cut off 13 minutes 40 seconds into the call. Cutting off the tail end
of the recording is not the same as altering the call. We note that during an earlier discussion
between counsel and the court, the State mentioned that “last night” it had to redact one of the
calls because it contained a reference by Welch to an unrelated case. This comports to
Sorensen’s testimony that the redacted portion of the call contained Welch’s discussion about an
unrelated case. Furthermore, Welch does not argue that he was not provided with an unredacted
version of the call as part of discovery. As stated previously, the State is not required to rule out
all possibilities inconsistent with authenticity. State v. Taylor, 282 Neb. 297, 803 N.W.2d 746
(2011). If the proponent’s showing is sufficient to support a finding that the evidence is what it
purports to be, the proponent has satisfied the requirement of § 27-901(1). State v. Taylor, supra.
Welch could have called his own witness from Legacy to refute the reliability of the recorded
calls, but he did not call any such witness. Welch also had opportunities to confront and
cross-examine the State’s witnesses who provided the foundation for the recordings. Based on
the testimony of Koziol, Sorensen, and Cronin, the district court did not abuse its discretion in
finding that the recorded calls in exhibit 26 were properly authenticated and admissible at trial.
        To the extent that Welch argues that the receipt of the recordings themselves violated his
right to confront his accusers, this argument is without merit because the recordings were not
testimonial in nature. See State v. Leibel, 286 Neb. 725, ___ N.W.2d ___ (2013) (where
testimonial statements are at issue, Confrontation Clause demands that such out-of-court hearsay
statements be admitted at trial only if declarant is unavailable and there has been prior
opportunity for cross-examination; testimonial statements include formal statements by accuser
to government officers). Nontestimonial statements are not subject to Confrontation Clause
protection or analysis. State v. Sorensen, 283 Neb. 932, 814 N.W.2d 371 (2012). Welch’s
recorded jailhouse conversations were not “testimonial.” See United States v. Thurman, 915 F.
Supp. 2d 836, 855 (W.D. Ky. 2012) (holding similar conversations, even though incriminating,
do not implicate confrontation clause concerns because conversations were “far more in the
nature of the type of casual, offhand remarks made between friends that routinely are held to be
nontestimonial in nature”). Because the recordings of Welch’s conversations were not
testimonial in nature, the receipt of such does not violate Welch’s right to confront his accusers.
                                            (b) Hearsay
        Welch argues that exhibit 26 contained inadmissible hearsay and thus should have been
excluded at trial. Any statements in exhibit 26 made by Welch are not hearsay because he is a
party to the litigation. See Neb. Rev. Stat. § 27-801(4)(b) (Reissue 2008) (statement is not
hearsay if statement is offered against party and is his own statement). Furthermore, although not
specifically stated by the State at trial, it appears that the statements made by the recipients of
Welch’s telephone calls were not offered for their truth, but merely to provide context for


                                                -8-
Welch’s statements. Accordingly, the recipients’ statements were not hearsay. See § 27-801(3)
(hearsay is statement, other than one made by declarant while testifying at trial or hearing,
offered in evidence to prove truth of matter asserted). See, also, United States v. Tolliver, 454
F.3d 660 (7th Cir. 2006) (statements providing context for other admissible statements are not
hearsay because they are not offered for their truth); United States v. Wills, 346 F.3d 476, 489-90
(4th Cir. 2003) (defendant’s own statements on recorded telephone conversations were
admissible as admissions by a party-opponent, and defendant’s brother’s statements on those
recordings were also admissible as they were reasonably required to place defendant’s responses
into context; accordingly, brother’s statements were properly admitted to make defendant’s
statements, so far as they constituted incriminating admissions, “intelligible to the jury and
recognizable as admissions”). The district court did not abuse its discretion in receiving exhibit
26 into evidence at trial.
        Even if the statements made by the recipients of Welch’s telephone calls constituted
inadmissible hearsay, the admission of such statements into evidence was harmless error.
Harmless error exists when there is some incorrect conduct by the trial court which, on review of
the entire record, did not materially influence the jury’s verdict adversely to a defendant’s
substantial right. State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011). In the recorded calls,
Welch said the following: “The gun was stolen,” “I knew it was loaded,” “I had one in the
chamber,” “13 and 1 in the chamber,” and “[m]ust have meant for me to get off the street . . .
cause I was plannin[g] on burnin[g] somebody.” Sorensen testified that “to burn” is a common
slang term for shooting somebody. As stated previously, any statements made by Welch are not
hearsay because he is a party to the litigation, and his own incriminating statements were enough
to support the jury’s verdict.
                                     2. MOTION TO SUPPRESS
         Welch asserts that the district court erred in overruling his motion to suppress the
evidence obtained from the warrantless search of his vehicle. There is no dispute in this case that
the investigators did not have a warrant to search Welch’s vehicle. Therefore, this case must be
analyzed as a warrantless search and seizure case.
         Warrantless searches and seizures are per se unreasonable under the Fourth Amendment,
subject only to a few specifically established and well-delineated exceptions, which must be
strictly confined by their justifications. State v. Borst, 281 Neb. 217, 795 N.W.2d 262 (2010).
Warrantless search exceptions include (1) searches undertaken with consent or with probable
cause, (2) searches under exigent circumstances, (3) inventory searches, (4) searches of evidence
in plain view, and (5) searches incident to a valid arrest. Id. In the case of a search and seizure
conducted without a warrant, the State has the burden of showing the applicability of one or
more of the exceptions to the warrant requirement. Id. The district court in this case found that
the warrantless search and seizure was justified under the plain view and inventory search
exceptions to the warrant requirement.
         Welch does not dispute that the seed was in plain view. Instead, he argues that the seed
did not provide Cronin with probable cause to search the vehicle because (1) Cronin did not have
probable cause to believe the seed was a marijuana seed and (2) even if it was a marijuana seed,



                                               -9-
a single marijuana seed could not support a reasonable belief that additional contraband would be
found.
        Probable cause escapes precise definition or quantification into percentages because it
deals with probabilities and depends on the totality of the circumstances. State v. Smith, 279 Neb.
918, 782 N.W.2d 913 (2010). 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 contraband or stolen property or useful as evidence of a crime; it
does not demand any showing that such a belief be correct or more likely true than false. Id. We
determine probable cause by an objective standard of reasonableness, given the known facts and
circumstances. Id.
        It is clear from Cronin’s testimony that he had reason to believe that the seed he observed
in Welch’s vehicle was a marijuana seed. Cronin has worked for the LPD for 12½ years and has
been a narcotics investigator for more than 2 years. As detailed previously, he had learned to
identify drugs, including marijuana, by their smell and appearance. Cronin testified that the seed
he saw in Welch’s vehicle appeared to be a marijuana seed by its size, shape, and color. Given
Cronin’s training and experience, he had reason to believe that the seed he observed was a
marijuana seed.
        Welch argues that a single marijuana seed could not support a reasonable belief that
additional contraband would be found. The Nebraska Supreme Court has said: “Having found a
quantity of illicit drugs in one part of the automobile does not sensibly suggest the probability
that no more such substance is present.” State v. Watts, 209 Neb. 371, 374, 307 N.W.2d 816, 819
(1981). See, also, State v. Ellington, 396 F. Supp. 2d 695 (E.D. Vir. 2005) (officers had probable
cause to search defendant’s vehicle after observing single marijuana seed resting on carpeted
strip between seat and door); State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996). Under
Nebraska law, marijuana is a controlled substance, see Neb. Rev. Stat. § 28-405(c)(10) (Supp.
2011), and seeds are included in the definition of marijuana, see Neb. Rev. Stat. § 28-401(13)
(Cum. Supp. 2012). Thus, Cronin’s observation of a marijuana seed, an illicit drug, does support
a reasonable belief that additional contraband would be found in the vehicle.
        Other relevant information supports a reasonable belief that additional contraband would
be found in the vehicle. Cronin testified that he had arrested Welch in the past for offenses
involving marijuana. Additionally, Welch’s behaviors immediately prior to contact with Cronin
and Sorensen were suspicious and concerning. Cronin testified that when Welch saw Cronin and
Sorensen driving toward him, Welch stopped pumping gas, walked back to his vehicle “at a
faster pace,” and entered the driver’s side door. Cronin and Sorensen temporarily lost sight of
Welch when Welch seemed to “duck down” below the driver’s seat. After a few seconds, Welch
exited the driver’s side door, locked it, and shut it. The investigators were concerned that Welch
was trying to either conceal or retrieve some item or firearm. Based on the totality of the
circumstances, Cronin had probable cause to search the vehicle.
        In addition to probable cause, we find that the firearm would have inevitably been
discovered during an inventory search of the vehicle. See State v. Ball, 271 Neb. 140, 710
N.W.2d 592 (2006) (courts have recognized that evidence which would have been discovered in
course of lawful inventory search can be admissible under inevitable discovery doctrine).
Inventory searches are permissible after an arrest. State v. Filkin, 242 Neb. 276, 494 N.W.2d 544


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(1993). However, such searches must be performed in accordance with standard operating
procedures. Id. There is no constitutional requirement that inventory policies be established in
writing. Id. But, the State bears the burden of proving that a law enforcement agency’s search
was made pursuant to a standardized criteria or established routine. Id.
        In the instant case, Welch was arrested for driving under suspension. Because Welch had
a history of driving under suspension, law enforcement made the decision to tow Welch’s
vehicle. Sorensen testified that when a vehicle is to be towed, the LPD policy requires an
inventory search of items within a vehicle. Although no written policy was offered or received
into evidence, Sorensen testified as to the purpose (to inventory high value items and document
those items prior to vehicle’s being turned over to tow lot) and scope (passenger compartment,
glovebox, center console, and any unlocked or open containers) of an inventory search of a
vehicle. Both Cronin and Sorensen testified that the area where the firearm was found would
have been searched during an inventory search. Based on the testimony, we find that the firearm
would have inevitably been discovered during an inventory search of the vehicle.
                                   3. SUFFICIENCY OF EVIDENCE
        Welch asserts that there was insufficient evidence to support his conviction for
possession of a firearm by a prohibited person. When reviewing a criminal conviction for
sufficiency of the evidence to sustain a conviction, the relevant question for an appellate court is
whether, after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
State v. McGee, 282 Neb. 387, 803 N.W.2d 497 (2011). And whether the evidence is direct,
circumstantial, or a combination thereof, the standard is the same: An appellate court does not
resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. Id.
        Pursuant to Neb. Rev. Stat. § 28-1206(1) (Cum. Supp. 2012), any person who possesses a
firearm and who has previously been convicted of a felony commits the offense of possession of
a deadly weapon by a prohibited person. Welch stipulated at trial that he had previously been
convicted of a felony. The fact of possession may be proved by circumstantial evidence. State v.
Long, 8 Neb. App. 353, 594 N.W.2d 310 (1999). Additionally, a defendant’s control or dominion
over premises at which narcotics or other contraband is located may establish the defendant’s
constructive possession of the contraband. Id.
        A firearm was found underneath the driver’s seat of a vehicle driven by Welch, and
Welch was the sole occupant of that vehicle. In telephone calls made after his arrest, Welch
admitted that he knew the firearm was inside the vehicle and that he had been planning to use the
firearm. Viewing the evidence in the light most favorable to the prosecution, the jury could have
found the essential elements of the crime beyond a reasonable doubt. See State v. McGee, supra.
Accordingly, there was sufficient evidence to support Welch’s conviction for possession of a
firearm by a prohibited person.
                                    4. EXCESSIVE SENTENCES
       Welch asserts that the district court imposed excessive sentences. Factors a judge should
consider in imposing a sentence include the defendant’s age, mentality, education, experience,


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and social and cultural background, as well as his or her past criminal record or law-abiding
conduct, motivation for the offense, nature of the offense, and the amount of violence involved in
the commission of the crime. State v. Williams, 282 Neb. 182, 802 N.W.2d 421 (2011).
        Welch was 20 years old at the time of the crime and 21 at the time of sentencing. He
completed the 11th grade and was unemployed. Welch’s criminal history dates back to 2004,
when he was a juvenile. He has adult convictions for, among other things, criminal mischief,
obstructing a peace officer, possession of marijuana less than 1 ounce, theft by unlawful taking
(a Class IV felony), and assault. As part of the presentence investigation for his current
convictions, the probation office conducted an assessment, which indicated that Welch was at a
“very high” risk to reoffend.
        A sentence imposed within statutory limits will not be disturbed on appeal absent an
abuse of discretion by the trial court. State v. Williams, supra. And it is the minimum portion of
an indeterminate sentence which measures its severity. State v. Nevels, 235 Neb. 39, 453 N.W.2d
579 (1990). Welch was convicted of possession of a firearm by a prohibited person under
§ 28-1206(3)(b), a Class ID felony, and sentenced to 6 to 10 years’ imprisonment. The statutory
sentencing range for a Class ID felony is 3 to 50 years’ imprisonment. Welch was also convicted
of driving under suspension under Neb. Rev. Stat. § 60-4,108(2) (Cum. Supp. 2012), a Class III
misdemeanor, and sentenced to 1 to 3 months’ imprisonment. The statutory sentencing range for
a Class III misdemeanor is up to 3 months’ imprisonment, a $100 fine, or both imprisonment and
a fine. Welch’s sentences were to be served concurrently. His combined sentence is in the low
range of the permissible sentencing range. Having considered the relevant factors in this case, we
find that the combined sentence is not excessive or an abuse of discretion.
                                      VII. CONCLUSION
       For the reasons stated above, Welch’s convictions and sentences are affirmed.
                                                                                       AFFIRMED.




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