Judge says stop went too far, suppresses evidence

LORI PILGER

The recent dismissal of an Elkhorn man's drug case has followed on the heels of a Lincoln judge's ruling that the marijuana edibles found in his Porsche Cayenne couldn't be used as evidence against him at his trial.

The question: Did the Nebraska State Patrol trooper have a lawful reason to stop Blake Chance on U.S. 77 near Lincoln on March 15, 2015, to see if the SUV he was driving was insured?

Lancaster County District Judge Steven Burns found he did not.

In his May 26 order, Burns said Trooper Kurt Frazey "had nothing more than a hunch that was not supported by reliable facts sufficient to support a reasonable suspicion."

What Frazey had was an anonymous tip that Chance was returning from Colorado and that he'd been selling marijuana edibles in Elkhorn.

Before he reached Lancaster County, two other troopers had spotted him driving east on Interstate 80 but had seen no traffic violations to warrant a stop.

Frazey spotted the Porsche on I-80 near Lincoln and followed it along along the interstate and then north onto U.S. 77.

He acknowledged that he saw no traffic violations either, but as Chance neared the edge of Lancaster County, Frazey decided to pull him over to ask for his insurance card after a check with dispatch indicated the insurance information for the 2014 SUV was "unavailable."

After Chance provided the card, Burns said, there was no evidence the trooper made any effort to check it out more or that he could have.

Instead, Frazey took Chance back to his cruiser and started asking him questions, including whether he would consent to a search of his vehicle.

Chance declined and was detained for the 40 or so minutes it took to get a drug dog there. The dog alerted to the odor of drugs, a search turned up 150 grams of THC edibles and Chance ended up charged with possession with intent to deliver a controlled substance, a felony that could have gotten him as many as four years in prison and two years of supervised release.

He fought the charge, arguing the stop was illegal.

After a motion to suppress hearing over three days this spring, defense attorney Sean Brennan argued the court should suppress the evidence because the trooper had formed an erroneous suspicion the SUV was uninsured based on an absence of information.

"A reasonable suspicion must be supported by articulable facts," he wrote in a brief. "Facts do not arise from the absence of information. Frazey, stopping Chance on a mere hunch, violated the Fourth Amendment," which prohibits unreasonable search and seizure.

Deputy Lancaster County Attorney Eric Miller argued in his brief that the anonymous tip to the patrol provided reasonable suspicion that criminal activity was afoot when put together with three other factors.

Frazey saw Chance turn off of I-80, which would've increased the time and mileage to get to Elkhorn, Chance seemed nervous, and he lied about where he'd been.

But, Burns wrote this in his order: "While an anonymous tip may be of some value when coupled with other information, by itself it does not establish either reasonable suspicion or probable cause."

The absence of an insurance certificate on the SUV didn't make the tip more likely, he said.

As for the stop itself, the judge said even if the trooper had a reasonable suspicion, the stop exceeded what was constitutionally permitted.

Chance gave the insurance information to the officer right away, Burns said, and then the trooper invited him back to his cruiser under the "pretense" of checking out the papers.

"Once the trooper had the opportunity to examine the insurance certificate his investigation was concluded," Burns wrote.

Lancaster County prosecutors asked that the case be dismissed, and retired District Judge Karen Flowers did so on June 14.