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Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE v. ANDERA

Cite as 307 Neb. 686

State of Nebraska, appellee, v. 

Brandi R. Andera, appellant.

___ N.W.2d ___

Filed October 30, 2020. No. S-19-1205.

1. Constitutional Law: Search and Seizure: Motions to Suppress: 

Appeal and Error. 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. Regarding historical facts, the 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 the appellate court reviews independently of the trial court’s determination.

2. Search and Seizure: Standing. A passenger who has a property interest 

in a container within the vehicle has standing to challenge the search of 

that container.

3. Constitutional Law: Search and Seizure. Searches conducted outside 

the judicial process, without prior approval by a judge or magistrate, 

are per se unreasonable under the Fourth Amendment to the U.S. 

Constitution, subject only to a few specifically established and welldelineated exceptions.

4. Warrantless Searches. The warrantless search exceptions recognized by 

the Nebraska Supreme Court include: (1) searches undertaken with consent, (2) searches under exigent circumstances, (3) inventory searches, 

(4) searches of evidence in plain view, and (5) searches incident to a 

valid arrest.

5. Warrantless Searches: Police Officers and Sheriffs. A warrantless 

search is valid when based upon consent of a third party whom the 

police, at the time of the search, reasonably believed possessed authority to consent to a search of the property, even if it is later demonstrated 

that the individual did not possess such authority.

6. Search and Seizure: Police Officers and Sheriffs. The search of 

property based on consent by a third party must be judged against 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

12/31/2020 09:10 AM CST
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STATE v. ANDERA

Cite as 307 Neb. 686

an objective standard: Would the facts available to the officer at the 

moment warrant a person of reasonable caution in the belief that the 

consenting party had authority over the property?

7. Warrantless Searches: Police Officers and Sheriffs. 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 an 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.

Appeal from the District Court for Douglas County: Marlon 

A. Polk, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, and 

April M. Lucas for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Cassel, J.

I. INTRODUCTION

Brandi R. Andera appeals her drug possession conviction 

following a stipulated bench trial. During a traffic stop, a 

police officer obtained the female driver’s consent to search the 

vehicle and found methamphetamine in a purse located on the 

front passenger floorboard. Andera, the front seat passenger, 

challenges the search, because she owned the purse and did not 

consent to its search. Because the officer reasonably believed 

that the driver could have owned the purse and the officer 

found the contraband in plain view upon opening the wallet 

that contained Andera’s identification, we affirm.

II. BACKGROUND

Andera was convicted of one count of possession of a 

controlled substance after a female police officer found methamphetamine during a warrantless search of Andera’s purse 
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STATE v. ANDERA

Cite as 307 Neb. 686

during a traffic stop. The officer initiated the stop because the 

vehicle did not have license plates.

During the traffic stop, the officer requested identification 

from Andera, the female driver, and the rear seat passenger. 

Andera and the driver complied, but the rear passenger failed 

to provide accurate identifying information. The officer testified that the driver provided a driver’s license and the rear 

passenger gave verbal identification (name and date of birth). 

However, the officer could not recall whether Andera provided 

a driver’s license or gave verbal identification.

Suspecting illicit activity, the officer obtained consent from 

the driver to search the vehicle. When the driver gave consent, 

she was located outside the vehicle near the trunk. At that time, 

Andera and the rear passenger remained in the vehicle out of 

earshot, but neither Andera nor the rear passenger objected 

once they were informed of the impending search.

After removing the three vehicle occupants, the officer 

searched the vehicle’s passenger compartment. The officer 

discovered a single purse on the front passenger floorboard. It 

was the only handbag in the vehicle. The officer did not ask the 

occupants who owned the purse. The officer testified that at the 

time, she was not certain to whom the purse belonged. But she 

answered affirmatively when asked: “So in your mind, it could 

have been the driver’s purse?”

The officer searched the purse and immediately discovered 

a needle. Continuing her search to a wallet located inside the 

purse, the officer discovered a small bag of methamphetamine 

and Andera’s Social Security and debit cards. The record does 

not establish that the identification cards were discovered prior 

to the methamphetamine. When asked at the scene, Andera 

claimed the contraband was not hers. Nonetheless, she was 

charged with possession of a controlled substance.

Andera filed a motion to suppress the fruits of the warrantless search, claiming it violated her Fourth Amendment 

protections against unlawful searches and seizures because 
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STATE v. ANDERA

Cite as 307 Neb. 686

she did not consent to the search of her purse. At the conclusion of the evidentiary hearing, the district court overruled 

her motion.

In overruling the motion, the court made three findings on 

the record. First, the search was based on “the consent of the 

driver to search the vehicle.” Second, “it [was] reasonable for 

[the officer] to believe, [as] she testified, that the purse could 

have been the driver’s.” Third, “[the officer] located a syringe 

initially upon searching the purse, prior to discovering any 

venue information that may give indicia of ownership of the 

purse to someone [else].”

In due course, the matter proceeded to the stipulated bench 

trial, and shortly thereafter, the court found Andera guilty. 

After the court imposed a sentence of probation, Andera filed a 

timely appeal. We moved the appeal to our docket. 1

III. ASSIGNMENT OF ERROR

Andera assigns that the district court erred in overruling her 

motion to suppress.

IV. STANDARD OF REVIEW

[1] In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, 

we apply a two-part standard of review. Regarding historical 

facts, we review the trial court’s findings for clear error. But 

whether those facts trigger or violate Fourth Amendment protections is a question of law that we review independently of 

the trial court’s determination. 2

V. ANALYSIS

1. Standing

[2] Andera does not challenge the validity of the officer’s 

stopping the vehicle or the search of the vehicle’s passenger 

1 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).

2 State v. Shiffermiller, 302 Neb. 245, 922 N.W.2d 763 (2019).
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STATE v. ANDERA

Cite as 307 Neb. 686

compartment; instead, she challenges the search of her purse. 

It is well established that a traffic violation, no matter how 

minor, creates probable cause to stop the driver of a vehicle. 3

Additionally, a passenger does not have standing to challenge 

a vehicle search where she has neither a property nor a possessory interest in the automobile. 4 However, a passenger who has 

a property interest in a container within the vehicle has standing to challenge the search of that container. 5 Because Andera 

has a property interest in the purse that the officer searched, 

she has standing to challenge its search.

2. Search of Purse

[3,4] Searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment to the U.S. Constitution, subject only to a few specifically established and well-delineated 

exceptions. 6 The warrantless search exceptions recognized by 

the Nebraska Supreme Court include: (1) searches undertaken 

with consent, (2) searches under exigent circumstances, (3) 

inventory searches, (4) searches of evidence in plain view, and 

(5) searches incident to a valid arrest. 7

The officer who searched Andera’s purse relied on the consent of the driver to conduct the warrantless search. However, 

the driver did not own the purse and Andera never consented to 

the search. Therefore, we must determine if the consent exception nonetheless applies to the search of the purse. We then 

address the legality of the discovery of the contraband within 

the purse.

3 State v. Lee, 265 Neb. 663, 658 N.W.2d 669 (2003).

4 See Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 

(1978).

5 See State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996).

6 State v. Wells, 290 Neb. 186, 859 N.W.2d 316 (2015).

7 Id.
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STATE v. ANDERA

Cite as 307 Neb. 686

(a) Consent to Search Purse

The right to be free from unreasonable searches and seizures 

may be waived by the consent of the citizen. 8 When the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that the consent was 

given by the defendant, but may show that the permission to 

search was obtained from a third party who possessed common 

authority over or other sufficient relationship to the premises or 

effects sought to be inspected. 9

[5,6] Furthermore, a warrantless search is valid when based 

upon consent of a third party whom the police, at the time of 

the search, reasonably believed possessed authority to consent 

to a search of the property, even if it is later demonstrated that 

the individual did not possess such authority. 10 The search of 

property based on consent by a third party must “‘be judged 

against an objective standard: would the facts available to the 

officer at the moment . . . “warrant a man of reasonable caution in the belief”’ that the consenting party had authority over 

the [property]?” 11

Although the officer who searched Andera’s purse testified 

that she was not certain who the purse belonged to when she 

initiated the search, she reasonably believed that the purse 

could have belonged to the female driver. Other courts have 

found that officers can reasonably believe that a bag located 

on the floorboard of the front passenger seat is the property 

of the driver because the bag is within easy reach of the 

driver and drivers do not ordinarily place their bags on the 

driver’s-side floorboard. 12

8 Konfrst, supra note 5.

9 Id.

10 Id.

11 See Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S. Ct. 2793, 111 L. Ed. 

2d 148 (1990) (quoting Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. 

Ed. 2d 889 (1968)).

12 See, e.g., U.S. v. Barber, 777 F.3d 1303 (11th Cir. 2015).
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STATE v. ANDERA

Cite as 307 Neb. 686

Andera argues that we should apply State v. Caniglia 13 to 

determine if the officer reasonably believed that the driver 

could have owned the purse. There, the Nebraska Court of 

Appeals ruled that a warrantless search of a makeup purse hidden under the passenger seat violated the Fourth Amendment, 

because a male driver could not give consent to the search. 14

The male driver did not have common authority or joint control over a female passenger’s makeup purse. 15 The Court of 

Appeals reasoned that the officer could not reasonably have 

believed the female passenger’s makeup purse was the property 

of the male driver. 16

Andera’s case is distinguishable from Caniglia. Here, the 

driver and passenger were both female. Moreover, the purse 

was located on the floorboard of the passenger seat, within the 

driver’s reach, and not hidden under the passenger seat. We 

are not persuaded that the reasoning in Caniglia applies here. 

Thus, Andera’s argument lacks merit. 17

Because the officer reasonably believed the purse could 

have belonged to the driver, the officer was justified in relying on the driver’s consent to search Andera’s purse. However, 

the driver’s consent was only a valid justification up until 

the moment the officer determined that the purse belonged 

to Andera. Thereafter, the driver’s consent would have been 

insufficient to extend the search of the purse.

The district court seemed to rely upon the officer’s discovery 

of the needle to justify the seizure of the methamphetamine. 

But another doctrine supported the officer’s action.

(b) Plain View Doctrine

[7] It is well established that under certain circumstances, 

the police may seize evidence in plain view without a 

13 State v. Caniglia, 1 Neb. App. 730, 510 N.W.2d 372 (1993).

14 See id.

15 See id.

16 See id.

17 See id.
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warrant. 18 Here, we are not concerned with the situation in 

which there has been no Fourth Amendment search at all, 

which encompasses those circumstances in which an observation is made by a police officer without a prior physical 

intrusion into a constitutionally protected area. 19 The plain 

view doctrine, which applies here, serves to supplement a 

prior justification for a search—such as consent—and permits the warrantless seizure. 20 Of course, the extension of the 

original justification is legitimate only where it is immediately 

apparent to the police that they have evidence before them; 

the plain view doctrine may not be used to extend a general 

exploratory search from one object to another until something incriminating at last emerges. 21 Therefore, 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 an 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. 22

Here, the officer lawfully seized the evidence of methamphetamine from Andera’s purse under the plain view doctrine. 

The officer’s search was already justified by the consent of 

the driver, and the officer had a legal right to be looking in 

the wallet. She did not discover the true ownership of the 

purse until the wallet was already opened. Once the officer 

saw the bag of methamphetamine, its contents became immediately apparent in correlation with the previously discovered 

needle and the officer could lawfully access and seize the 

18 Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 

564 (1971).

19 See 1 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth 

Amendment § 2.2(a) at 621 (6th ed. 2020) (discussing “‘open field’ or 

similar unprotected area”).

20 See 1 LaFave, supra note 19.

21 Id.

22 State v. Shurter, 238 Neb. 54, 468 N.W.2d 628 (1991).
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STATE v. ANDERA

Cite as 307 Neb. 686

methamphetamine. Thus, the officer’s seizure was lawful under 

the plain view doctrine.

VI. CONCLUSION

The driver’s consent validated the officer’s warrantless search of Andera’s purse because the officer reasonably 

believed the purse could have belonged to the driver. The plain 

view doctrine justified the subsequent seizure of methamphetamine from Andera’s wallet. Andera’s Fourth Amendment protections against unreasonable searches and seizures were not 

violated. Because the district court did not err in overruling 

Andera’s motion to suppress, we affirm the judgment of the 

district court.

Affirmed.