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301 Nebraska Report

STATE v. FERGUSON

Cite as 301 Neb. 697

State of Nebraska, appellee, v.

Travis L. Ferguson, appel

___ N.W.2d ___

Filed November 30, 2018. No. S-17-1197.

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

Appeal and Error. When 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, 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.

2. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings 

under the residual hearsay exception, an appellate court reviews for 

clear error the factual findings underpinning a trial court’s hearsay ruling and reviews de novo the court’s ultimate determination whether the 

court admitted evidence over a hearsay objection or excluded evidence 

on hearsay grounds.

3. Trial: Evidence: Appeal and Error. An appellate court reviews the 

trial court’s conclusions with regard to evidentiary foundation for an 

abuse of discretion.

4. Convictions: Evidence: Appeal and Error. In reviewing a criminal 

conviction for a sufficiency of the evidence claim, 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. 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.

5. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

Nebraska Supreme Court Online Library

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

01/25/2019 09:14 AM CST
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6. Constitutional Law: Search and Seizure. The Fourth Amendment to 

the U.S. Constitution and article I, § 7, of the Nebraska Constitution 

guarantee against unreasonable searches and seizures.

7. Search and Seizure: Evidence: Trial. Evidence obtained as the fruit 

of an illegal search or seizure is inadmissible in a state prosecution and 

must be excluded.

8. Constitutional Law: Search and Seizure. The ultimate touchstone of 

the Fourth Amendment is reasonableness.

9. ____: ____. Reasonableness is determined by balancing the intrusion on 

the individual’s Fourth Amendment interests against the promotion of 

legitimate governmental interests.

10. ____: ____. A seizure that is lawful at its inception can violate the 

Fourth Amendment by its manner of execution.

11. ____: ____. A “search” under the Fourth Amendment occurs if either (1) 

the defendant’s legitimate expectation of privacy is infringed or (2) the 

government physically intrudes on a protected area.

12. Constitutional Law: Search and Seizure: Words and Phrases. A 

reasonable expectation of privacy is an expectation that has a source 

outside of the Fourth Amendment, by reference either to concepts of real 

or personal property law or to understandings that are recognized and 

permitted by society.

13. Constitutional Law: Search and Seizure: Animals. Drug detection 

dog sniffs in themselves do not infringe upon a constitutionally protected privacy interest, because they are designed to reveal no information other than the possession of contraband and its location, and society 

is not prepared to consider as either reasonable or legitimate any subjective expectation that possession of contraband will not come to the 

attention of the authorities.

14. Investigative Stops: Motor Vehicles: Animals: Time. The tolerable 

duration of a traffic stop is that which is reasonably necessary to address 

the mission of the stop and the ordinary inquiries incident thereto, and a 

drug detection dog sniff is not an ordinary incident of a traffic stop.

15. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: 

Animals: Probable Cause. Where a law enforcement officer has probable cause or reasonable suspicion to continue the detention after the 

initial mission of the stop is completed, the officer may conduct a drug 

detection dog sniff while the suspect is properly detained.

16. Arrests: Probable Cause: Time: Proof. Judicial probable cause determinations must be made promptly after a warrantless arrest, and unreasonable delays in such judicial determinations of probable cause include 

delays for the purpose of gathering additional evidence to justify the 

arrest. However, the arrested individual bears the burden of proving the 
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delay was unreasonable when the probable cause determination occurs 

within 48 hours.

17. Rules of Evidence: Hearsay: Words and Phrases. Hearsay is a statement, other than one made by the declarant while testifying at trial or 

hearing, offered in evidence to prove the truth of the matter asserted.

18. Rules of Evidence: Hearsay: Testimony: Records: Proof. Testimony 

as to the content of records, entered into evidence to prove the truth of 

the information contained therein, is hearsay.

19. Rules of Evidence: Rules of the Supreme Court: Hearsay. Hearsay is 

not admissible except as provided by the rules of evidence or by other 

rules adopted by the statutes of the State of Nebraska or by the discovery rules of the Nebraska Supreme Court.

20. Hearsay: Proof. The proponent of the hearsay evidence has the burden 

of identifying the appropriate exception and demonstrating that the testimony falls within it.

21. Trial: Hearsay: Evidence: Appeal and Error. When the opposing 

party objects to evidence as hearsay and the trial court sustains the 

objection, the proponent is required to point out the possible hearsay 

exceptions in order to preserve the point for appeal.

22. Trial: Evidence: Witnesses. There is sufficient foundation to render 

communications by telephone admissible in evidence where the identity 

of the person with whom the witness spoke or the person whom he or 

she heard speak is satisfactorily established.

23. ____: ____: ____. A witness testifying positively that he or she recognized, by voice, the person with whom he or she was talking, is generally sufficient to present the evidence to the jury to determine whether 

the conversation actually occurred.

24. Criminal Law: Juries: Verdicts: Presumptions. Jurors in a criminal 

case are presumed well equipped to analyze the evidence in order to 

avoid resting a guilty verdict on a factually inadequate theory.

25. Juries: Verdicts: Appeal and Error. If there are two possible factual 

grounds for the jury’s general verdict, one factually inadequate and 

unreasonable and the other factually adequate and reasonable, an appellate court will assume, absent a contrary indication in the record, that the 

jury based its verdict on the reasonable and factually adequate ground.

Appeal from the District Court for Lancaster County: Jodi L.

Nelson, Judge. Affirmed

Candice C. Wooster, of Brennan & Nielsen Law Offices, 

P.C., for appellant.
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Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Freudenberg, 

I. NATURE OF CASE

The defendant appeals his convictions for possession of a 

controlled substance and child abuse. The defendant was driving a vehicle owned by the defendant’s girlfriend when he 

was stopped by law enforcement to investigate a citizen report 

of dangerous driving. The stop occurred at a gas station. The 

defendant’s two young children were in the back seat of the 

vehicle. Methamphetamine was found during a search of the 

vehicle, which was conducted subsequent to a drug detection 

dog sniff. The dog sniff took place approximately 30 minutes 

after law enforcement had completed their routine investigation related to the stop and had discovered that the defendant 

was driving with a suspended license, had given them false 

information, and had an outstanding civil contempt warrant for 

his arrest. The principle issue presented is whether continuing 

the defendant’s detention at the gas station beyond the time 

reasonably necessary to complete the traffic stop’s mission of 

investigating the report of dangerous driving constituted an 

unreasonable seizure when the detention occurred after law 

enforcement had probable cause to arrest the defendant.

II. BACKGROUND

Travis L. Ferguson was charged with one count of possession of a controlled substance in violation of Neb. Rev. Stat. 

§ 28-416(3) (Supp. 2015); one count of false reporting in violation of Neb. Rev. Stat. § 28-907(1) (Reissue 2016); and one 

count of child abuse in violation of Neb. Rev. Stat. § 28-707(1) 

and (3) (Reissue 2016)—specifically, that Ferguson, acting 

negligently, had placed his minor children, ages 8 and 6 at the 

time of the stop, in a situation that endangered their lives or 
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physical or mental health, or deprived them of necessary food, 

clothing, shelter, or care. The charges stem from the events 

of March 9, 2016. Ferguson was driving his girlfriend’s 1998 

four-door silver Honda Accord sedan with his children in the 

back seat. He was stopped by law enforcement after another 

driver called the 911 emergency dispatch service to report dangerous driving, and methamphetamine was eventually found 

inside the vehicle.

1. Motion to Suppr

Before trial, Ferguson moved to suppress any and all evidence and statements obtained by law enforcement on March 

9, 2016, for the reason that they were allegedly obtained in 

violation of Ferguson’s constitutional rights under the 4th, 

5th, 6th, and 14th Amendments to the U.S. Constitution and 

the respective guarantees of the Constitution of the State of 

Nebraska. The following evidence was adduced at the hearing 

on the motion.

(a) Traffic Stop

Around 5 p.m. on March 9, 2016, Bradley Kinzie called 

911 to report a vehicle swerving on Highway 77. The vehicle 

was described as a gray, four-door sedan moving northbound 

from Roca Road in Lancaster County, Nebraska. Kinzie also 

reported the vehicle’s license plate number.

Deputy Sheriff Jeremy Schwarz was in his cruiser headed 

southbound on Highway 77 in the same general vicinity when 

he received the report of the 911 call. One or two minutes 

later, Schwarz saw a man in a vehicle headed northbound on 

Highway 77 behind a white, four-door sedan using hand gestures to emphatically direct Schwarz’ attention to the sedan. 

Schwarz understood, and it was later confirmed, that the 

man gesturing was the 911 caller and the sedan was the vehicle reported.

Schwarz made a U-turn to pursue the vehicle. The vehicle 

pulled into a gas station before he could catch up with it. 

Schwarz pulled up behind the vehicle. Schwarz confirmed 
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that the license plate number was only one digit off from the 

number reported during the 911 call. Schwarz activated the 

cruiser’s overhead lights.

At 5:05 p.m., Schwarz exited the cruiser and approached 

the driver of the vehicle, who was later identified as Ferguson. 

Schwarz observed two children in the back seat. Ferguson 

informed Schwarz that he did not have his driver’s license with 

him. Ferguson acknowledged that he was tired and had been 

swerving the vehicle.

Ferguson originally identified himself using his brother’s 

name. In the databases accessed through the mobile data terminal of his cruiser, Schwarz could not find a person with that 

name who matched the other information given by Ferguson.

At 5:16 p.m., Ferguson was asked to sit in the cruiser 

while Schwarz further investigated Ferguson’s identity. During 

the pat-down search conducted before entering the cruiser, 

Schwarz found Ferguson’s electronic benefit transfer card 

which included his real name. By 5:22 p.m., Schwarz was able 

to confirm Ferguson’s identity through the databases, which 

revealed that Ferguson had a suspended driver’s license and an 

outstanding warrant for civil contempt related to unpaid child 

support. At approximately that same time, Schwarz learned the 

identity of the children’s mother.

(b) Probable Cause

Schwarz described that he had probable cause to arrest 

Ferguson both for driving with a suspended license and on the 

child support warrant.

Ferguson’s criminal history also caused Schwarz to suspect 

that there might be narcotics in the sedan. Ferguson denied 

consent to search the vehicle.

Schwarz did not transport Ferguson immediately to the 

police station, because he was trying to make arrangements 

for the children to be picked up by their mother and for 

Lindsey Koch, the owner of the vehicle, to pick it up. Schwarz 

contacted the children’s mother, who agreed to pick up the 
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children, but she lived 30 to 45 minutes away. Two officers who had arrived at the scene took the children out of 

the vehicle and into the convenience store for snacks while 

they waited.

(c) Dog Sniff and 

Subsequent Search

At 5:25 p.m., approximately the same time that Schwarz 

contacted the children’s mother, he decided to call in a canine 

unit to conduct a dog sniff of the vehicle. Schwarz asked 

Koch for her consent to the search, explaining that the canine 

unit was on its way, but she refused. Koch agreed to pick 

up her vehicle at the gas station. The canine unit arrived 

approximately 30 minutes after Schwarz called it in. When the 

canine unit arrived, neither Koch nor the children’s mother had 

yet arrived.

The dog sniff was conducted around the exterior of the 

sedan, and the dog alerted to the odor of narcotics. After that, 

the officers searched the sedan and found a plastic bag of what 

appeared to be methamphetamine on the driver’s side floorboard between the center console and the driver’s seat. At trial, 

the parties stipulated that the bag found in the sedan contained 

approximately 1.6 grams of methamphetamine.

Approximately 15 minutes after the search of the sedan had 

been completed, Koch arrived and removed the vehicle from 

the premises. Five minutes later, the children’s mother arrived 

and the children were turned over to her. Ferguson was then 

taken to jail.

(d) Court’s Ruling

In support of the motion to suppress, defense counsel argued 

that prolonging the stop while waiting for Koch and the canine 

unit to arrive was unreasonable, because the officers were no 

longer handling the matter for which the stop was initially 

made. Defense counsel also argued that the search was not 

incident to arrest. Without addressing Ferguson’s suspended 

license, defense counsel argued that if Ferguson would have 
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been taken to jail sooner, he could have purged himself sooner 

of the civil contempt warrant. Defense counsel explained that 

the delay at the gas station unreasonably denied Ferguson the 

“opportunity to go and bond himself out or purge himself of 

that warrant.” The State responded that the continued detention 

was a “non-issue,” because at that point, there was probable 

cause for Ferguson’s arrest.

The court denied the motion to suppress. The court granted 

defense counsel’s request for a continuing objection to evidence of the methamphetamine found in the sedan, and the 

case proceeded to trial.

2. Evidence Presented at

(a) Kinzie’s Testimony

At trial, Kinzie testified that while driving along Highway 

77 on March 9, 2016, he spotted in his rearview mirror a gray, 

four-door Toyota or Mazda sedan behind him. He saw the 

sedan going from one side of the road to the other. He slowed 

down, and the sedan passed him. While passing him, the sedan 

encroached into Kinzie’s lane so much that he had to drive on 

the curb in order to avoid a collision.

Kinzie watched as the sedan, driving at that point in front of 

him, veered past the white line of the right-hand lane and back 

into the left-hand lane. The sedan then proceeded to encroach 

into the right-hand lane again, even though there was another 

vehicle in its path. The sedan pushed that vehicle off the road 

and into a ditch.

After ensuring that the people in the vehicle that went off 

the road were “okay,” Kinzie called 911. Kinzie described seeing a police cruiser soon thereafter and pointing out the sedan 

to the law enforcement officer. While stopped at a red light, 

Kinzie witnessed the cruiser follow the sedan to a nearby gas 

station and park behind it.

The speed limit in that area of Highway 77 was 65 miles 

per hour. It was rush-hour traffic. Kinzie testified that both he 

and the driver of the other vehicle were forced to take evasive 
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action to avoid colliding with the sedan, stating, “At least 

nobody was killed. That’s the main thing.”

(b) Schwarz’ Testimony and 

Motion in Limine

At trial, Schwarz reiterated much of his testimony given at 

the hearing on the motion to suppress. Schwarz also described 

that when he approached the sedan, the children in the back 

seat were moving around and not completely buckled in. 

Schwarz testified that the children had access to the area by 

the floorboards where the methamphetamine was found and 

that they were apparently in the sedan alone for a brief period 

of time after Schwarz directed Ferguson into his cruiser for 

further investigation as to his identity.

Schwarz testified that he had received extensive training in 

narcotics. According to Schwarz, methamphetamine is very 

toxic and can be lethal to children if they accidentally ingest 

it. He opined that a child who is within reach of methamphetamine is placed in a situation that endangers the child’s life.

During a recess, the State moved in limine to prohibit any 

questioning or evidence concerning pending charges against 

Koch originating from an arrest in April 2017, as well as any 

other drug history associated with Koch or her sedan after the 

March 9, 2016, arrest of Ferguson. Defense counsel responded 

that it was part of the theory of Ferguson’s defense to demonstrate that the methamphetamine might have belonged to Koch 

or someone else she lent her vehicle to. The court expressed 

concern that any questioning of Schwarz as to the criminal 

record associated with Koch or the sedan would be outside of 

Schwarz’ personal knowledge. The court sustained the motion 

at that point in time, explaining that if defense counsel wanted 

to “get into anything like that,” she was going to have to first 

demonstrate to the court outside the presence of the jury that it 

was admissible.

Subsequently, defense counsel questioned Schwarz outside 

the presence of the jury as a proffer of “what he knows about 
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the vehicle.” Schwarz testified that during the stop, he had run 

the license plate of the vehicle through the databases he had 

access to. That information, he explained, would be found in 

his report, but he recalled a prior arrest of Koch for possession 

of methamphetamine. He could not specifically recall anything else. During cross-examination for the proffer, Schwarz 

affirmed that his report described other prior arrests for possession of a controlled substance in relation to the vehicle.

At the close of the proffer, the State objected on the grounds 

of hearsay, relevance, unfair prejudice, and improper use of 

character evidence for impeachment. The State explained 

that the prior criminal history of Koch or her vehicle was 

not relevant to the events of March 9, 2016, and that it 

would improperly suggest that, because she had possessed 

methamphetamine in the past, Koch was not telling the truth 

about the methamphetamine found on March 9 when she 

stated it did not belong to her. Defense counsel did not suggest that the proffered statement fell under an exception to 

the hearsay rule. The court sustained the objection on the 

ground of hearsay, and did not specifically address the other 

grounds presented.

(c) Children’s Mother’s Testimony 

and Foundation Objection

The children’s mother testified without objection that the 

older child reported that Ferguson had been falling asleep at 

the wheel that day.

The children’s mother testified further that she and Ferguson 

had a telephone conversation about his arrest a week or so 

after Ferguson was released from jail, which she said was 

in April 2016. She described that she was at home. No one 

else was around at the time, and she did not know where 

Ferguson was calling from. She confirmed that, as a result of 

having previously dated Ferguson for 8 years, she had talked 

to him on the telephone previously and knew the sound of 

his voice.
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Defense counsel objected on foundation grounds to any 

further testimony about the telephone conversation. Defense 

counsel explained that the State had failed to present evidence 

as to both parties’ locations or precise information about when 

it took place. The court overruled the objection.

The children’s mother proceeded to testify that during the 

conversation, Ferguson apologized for his actions that had 

caused the Department of Health and Human Services to make 

inquiries into the children’s welfare. Ferguson explained that 

he thought he had left the methamphetamine at home.

(d) Koch’s Testimony

Koch testified that after she had agreed to lend Ferguson 

her car in order for him to be able to go see his children, she 

spent about an hour cleaning it. She testified that her car was 

normally very messy and that she wanted to make sure there 

was room for the children and there was nothing “dangerous” 

in the car. She denied placing any methamphetamine in the car 

on March 9, 2016, and she denied that the methamphetamine 

found in the car on that date was hers. Koch admitted that during that general period of time, it was not unusual for her to 

allow others to borrow her car, but clarified that no one had 

borrowed her car from the time she cleaned it until the time 

that Ferguson drove it to go see his children on March 9.

(e) Ferguson’s Testimony

Ferguson testified in his own defense. He generally denied 

the allegations against him, except that he admitted he lied to 

Schwarz when he identified himself as his brother rather than 

as himself. He admitted to swerving his vehicle, because he 

was tired, and he explained that he had been helping one of his 

children with her seatbelt. He denied having any knowledge 

that there were drugs in the vehicle. He conceded that children 

can get hurt when they are within reach of methamphetamine.

3. Verdi

The jury found Ferguson guilty of all three charges.
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4. Sente

The court sentenced Ferguson to 365 days of imprisonment 

and 12 months of postrelease supervision on count 1. The court 

sentenced Ferguson to 90 days of imprisonment on count 2, 

to be served consecutively to count 1. On count 3, the court 

sentenced Ferguson to 30 days of imprisonment, to be served 

concurrently to counts 1 and 2.

The court explained that it was not placing Ferguson on 

probation because he did not appear to be capable of completing probation successfully. The court explained that Ferguson 

was being sentenced to jail time, not to prison, and that if 

he were given probation instead, he would likely engage in 

criminal conduct in violation of the terms of his probation 

and face a prison sentence. The court noted Ferguson’s history during the proceedings of not showing up to court and not 

going to his probation evaluation on time. The court further 

noted that Ferguson was convicted of other crimes committed 

while awaiting trial. The record contains a bench warrant for 

Ferguson’s failure to appear. Ferguson agreed that he would 

likely fail probation.

Ferguson appeals his convictions for child abuse and possession of a controlled substance and his sentences.

III. ASSIGNMENTS OF ERROR

Ferguson assigns that the district court erred by (1) overruling his motion to suppress, (2) refusing to admit evidence that 

the vehicle he was driving had previously been involved in 

drug convictions, (3) admitting evidence of a telephone conversation between Ferguson and the children’s mother, (4) finding 

the evidence sufficient to support the child abuse conviction, 

and (5) imposing excessive sentences.

IV. STANDARD OF REVIEW

[1] When 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 
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review.1 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.2

[2] Apart from rulings under the residual hearsay exception, 

an appellate court reviews for clear error the factual findings 

underpinning a trial court’s hearsay ruling and reviews de novo 

the court’s ultimate determination whether the court admitted 

evidence over a hearsay objection or excluded evidence on 

hearsay grounds.3

[3] An appellate court reviews the trial court’s conclusions with regard to evidentiary foundation for an abuse of 

discretion.4

[4] In reviewing a criminal conviction for a sufficiency of 

the evidence claim, 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.5 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.6

[5] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by the 

trial court.7

1 State v. Barbeau, ante p. 293, 917 N.W.2d 913 (2018).

2 Id.

3 State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017).

4 Midland Properties v. Wells Fargo, 296 Neb. 407, 893 N.W.2d 460 (2017).

5 State v. McCurdy, ante p. 343, 918 N.W.2d 292 (2018).

6 Id.

7 State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).
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V. ANALYSIS

On appeal, Ferguson challenges the denial of his motion 

to suppress, which sought to prevent the jury from considering the methamphetamine found in Koch’s vehicle. He also 

asserts that the district court erred in sustaining the State’s 

hearsay objection to the proposed testimony of Schwarz 

regarding his recollection of the criminal records associated 

with Koch’s vehicle. He asserts, further, that the court should 

not have allowed into evidence over Ferguson’s foundation 

objection statements made by Ferguson during a telephone 

conversation. Lastly, Ferguson argues that there was insufficient evidence to support the conviction for child abuse 

and that his sentences to jail time rather than probation 

were excessive.

1. Motion to Suppr

We first address the motion to suppress, which alleged that 

the discovery of the methamphetamine in the vehicle Ferguson 

was driving was the product of an illegal search and seizure. 

Ferguson does not contest that Schwarz had reasonable suspicion for conducting the traffic stop, that Schwarz had probable 

cause to arrest Ferguson by the time the dog sniff of the vehicle occurred, or that the officers had probable cause to search 

inside the vehicle once the dog alerted to the presence of illegal substances inside. In arguing that there was an unreasonable seizure of Ferguson’s person and an unreasonable search 

of the vehicle, Ferguson instead focuses on the length and 

place of his detention and the fact that the search and seizure 

occurred after Schwarz had completed all inquiries incident to 

the citizen report of dangerous driving.

[6-10] The Fourth Amendment to the U.S. Constitution and 

article I, § 7, of the Nebraska Constitution guarantee against 

unreasonable searches and seizures.8 Evidence obtained as the 

fruit of an illegal search or seizure is inadmissible in a state 

8 State v. Avey, 288 Neb. 233, 846 N.W.2d 662 (2014).
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prosecution and must be excluded.9 The ultimate touchstone 

of the Fourth Amendment is reasonableness.10 Reasonableness 

is determined by balancing the intrusion on the individual’s 

Fourth Amendment interests against the promotion of legitimate governmental interests.11 A seizure that is lawful at its 

inception can violate the Fourth Amendment by its manner 

of execution.12

In asserting that his seizure, lawful at its inception, was 

unreasonable, Ferguson relies chiefly upon the holding of 

the U.S. Supreme Court in Rodriguez v. U.S.

13 that a seizure 

justified by a legitimate traffic stop becomes unlawful if prolonged beyond the time reasonably required to complete the 

mission of the stop.14 Ferguson has taken this proposition out 

of context.

The U.S. Supreme Court has explained that the Fourth 

Amendment tolerates certain investigations unrelated to the 

traffic stop, so long as those investigations do not lengthen the 

roadside detention.15 Before Rodriguez, in Illinois v. Caballes,

16

the U.S. Supreme Court held that a dog sniff unsupported by 

reasonable suspicion or probable cause was nevertheless reasonable when conducted while the driver was lawfully seized 

during a traffic stop and where the duration of the stop was 

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

10 Brigham City v. Stuart, 547 U.S. 398, 126 S. Ct. 1943, 164 L. Ed. 2d 650 

(2006).

11 Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276 

(1990).

12 See Illinois v. Caballes, 543 U.S. 405, 125 S. Ct. 834, 160 L. Ed. 2d 842 

(2005).

13 Rodriguez v. U.S., ___ U.S. ___, 135 S. Ct. 1609, 191 L. Ed. 2d 492 

(2015). See, also, State v. Barbeau, supra note 1.

14 See, Rodriguez v. U.S., supra note 13; Illinois v. Caballes, supra note 12.

15 Arizona v. Johnson, 555 U.S. 323, 129 S. Ct. 781, 172 L. Ed. 2d 694 

(2009). See, also, e.g., Illinois v. Caballes, supra note 12.

16 Illinois v. Caballes, supra note 12.
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justified by the traffic offense and the ordinary inquiries incident thereto.

[11-13] The Court in Caballes held that the dog sniff, conducted around the exterior of a vehicle without physically 

intruding into a constitutionally protected area17 or prolonging 

the seizure, did not change the lawful character of the traffic stop.18 This was because a dog sniff, in itself, does not 

infringe upon the driver’s constitutionally protected interest in 

privacy.19 A “search” under the Fourth Amendment occurs if 

either (1) the defendant’s legitimate expectation of privacy is 

infringed or (2) the government physically intrudes on a protected area.20 A reasonable expectation of privacy is an expectation that has a source outside of the Fourth Amendment, by 

reference either to concepts of real or personal property law 

or to understandings that are recognized and permitted by 

society.21 The Court in Caballes explained that drug detection 

dog sniffs in themselves do not infringe upon a constitutionally 

protected privacy interest, because they are designed to reveal 

no information other than the possession of contraband and its 

location.22 And society, the Court explained, is not prepared 

to consider as either reasonable or legitimate any subjective 

expectation that possession of contraband will not come to the 

attention of the authorities.23

[14] Subsequently, in Rodriguez, the U.S. Supreme Court 

addressed the seizure of the driver and the vehicle in order to 

conduct a dog sniff after the traffic stop had been completed.24

17 Compare Florida v. Jardines, 569 U.S. 1, 133 S. Ct. 1409, 185 L. Ed. 2d 

495 (2013).

18 See Illinois v. Caballes, supra note 12.

19 See id.

20 City of Beatrice v. Meints, 289 Neb. 558, 856 N.W.2d 410 (2014).

21 State v. Wiedeman, 286 Neb. 193, 835 N.W.2d 698 (2013).

22 Illinois v. Caballes, supra note 12.

23 Id.

24 Rodriguez v. U.S., supra note 13. See, also, State v. Barbeau, supra note 1.
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The U.S. Supreme Court reiterated that the tolerable duration of a traffic stop is that which is reasonably necessary to 

address the mission of the stop and the ordinary inquiries incident thereto, and it clarified that a drug detection dog sniff is 

not an ordinary incident of a traffic stop.25 Since it was undisputed in Rodriguez that the delay for purposes of conducting 

the dog sniff occurred beyond the time reasonably necessary 

to complete the tasks tied to the traffic infraction that justified the stop, the Court vacated the circuit court’s judgment, 

which had held that the prolonged seizure was an acceptable de minimis intrusion. The Court noted, however, that it 

remained open for the circuit court on remand to determine 

whether reasonable suspicion of criminal activity justified 

detaining the driver beyond completion of the traffic infraction investigation.

[15] Read together, Caballes and Rodriguez instruct that 

the fact that a dog sniff is conducted after the time reasonably required to complete the initial mission of a traffic stop is 

not, in and of itself, a Fourth Amendment violation. A Fourth 

Amendment violation arises only when the dog sniff is conducted after the initial mission of a stop is completed and the 

officer lacks probable cause or reasonable suspicion to investigate further. Where, on the other hand, the officer has probable 

cause or reasonable suspicion to continue the detention after 

the initial mission of the stop is completed, the officer may 

conduct a drug detection dog sniff while the suspect is properly 

detained. We accordingly held in State v. Verling26 and State v. 

Rogers27 that seizures that took place in order to facilitate dog 

sniffs after the completion of traffic infraction investigations 

did not violate the Fourth Amendment when the officers had 

reasonable suspicion of criminal activity, developed during the 

ordinary inquiries incident to the stops.

25 See id.

26 State v. Verling, 269 Neb. 610, 694 N.W.2d 632 (2005).

27 State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017).
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Like in Verling and Rogers, Ferguson’s detention at the 

time of the dog sniff was independently justified. It was no 

longer the temporary detention associated with an investigatory stop, but was a tier-three encounter that necessarily entails a prolonged detention.28 That prolonged detention 

was supported by probable cause for the officers to believe, 

based on information lawfully obtained during the stop, that 

Ferguson had committed the law violations of driving with 

a suspended license and giving false information to a police 

officer. Additionally, the prolonged detention was supported 

by a contempt warrant for Ferguson’s arrest. We find no 

merit to Ferguson’s argument that the dog sniff was unlawful 

because it occurred past the time necessary to investigate the 

reported traffic violation.

Ferguson also argues that the prolonged seizure was conducted in an unlawful manner because of the place where 

he was being detained. He suggests that rather than being 

detained at the gas station, “Ferguson should have immediately been taken to the jail to begin the booking process and 

to allow Ferguson the opportunity to attempt to get his child 

support payments up to date.”29 He argues that he was unreasonably detained at the gas station in order to facilitate the 

dog sniff.

[16] The U.S. Supreme Court has held that judicial probable 

cause determinations must be made promptly after a warrantless arrest and, further, that unreasonable delays in such judicial determinations of probable cause include delays for the 

purpose of gathering additional evidence to justify the arrest.30

However, the Court has also held in this context that the 

arrested individual bears the burden of proving the delay was 

unreasonable when the probable cause determination occurs 

28 See State v. Petsch, 300 Neb. 401, 914 N.W.2d 448 (2018).

29 Brief for appellant at 13.

30 County of Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661, 114 L. 

Ed. 2d 49 (1991).
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within 48 hours.31 Ferguson was arrested under a civil warrant 

issued by a judge and, regardless, he made no attempt to prove 

that a judicial probable cause determination was unreasonably 

delayed by virtue of being held at the gas station for an additional 30 minutes.

Moreover, we fail to comprehend how any delay in reaching the jail was causally connected to the dog sniff of Koch’s 

vehicle and the resulting discovery of the methamphetamine. 

In other words, his detention at the gas station was not for 

the purpose of gathering additional evidence to justify the 

arrest and, further, there is no evidence that the methamphetamine was derivative32 of Ferguson’s detention at the gas 

station rather than at the jail. Regardless of where Ferguson 

was detained, the vehicle would have been parked in a place 

of public access until Koch arrived, which was after the dog 

sniff. Ferguson does not assert that he could have reached 

the jail, been released, and returned to the vehicle before 

Koch arrived.

Finally, Ferguson suggests that the dog sniff was an unreasonable “search” of the vehicle, because it was “merely parked 

at a gas station waiting for the owner . . . to arrive.”33 It is not 

clear that Ferguson had “standing” to claim a possessory or 

privacy interest in the borrowed vehicle once he entered into 

a tier-three encounter with law enforcement justified by probable cause.34 In any event, the dog sniff did not unreasonably 

intrude upon any reasonable expectation of privacy, no matter 

how innocuously the vehicle was parked at the gas station.35

When the drug detection dog does not physically intrude into a 

constitutionally protected area,36 the dog sniff is not a “search” 

31 Id.

32 See State v. Bray, 297 Neb. 916, 902 N.W.2d 98 (2017).

33 Brief for appellant at 13.

34 See State v. Lowery, 23 Neb. App. 621, 875 N.W.2d 12 (2016).

35 See Illinois v. Caballes, supra note 12.

36 Compare Florida v. Jardines, supra note 17.
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at all.37 Ferguson does not suggest that the gas station was a 

constitutionally protected area.

The district court did not err in denying Ferguson’s motion 

to suppress.

2. Sustaining Hea

Objection Reg

Koch’s Criminal His

[17] We turn next to Ferguson’s contention that the court 

should have allowed him to adduce testimony from Schwarz 

that Koch’s vehicle had been involved in prior drug possession 

charges not involving Ferguson. The court sustained the State’s 

objection to the proposed testimony on the ground of hearsay. 

Hearsay is a statement, other than one made by the declarant 

while testifying at trial or hearing, offered in evidence to prove 

the truth of the matter asserted.38

[18] Ferguson asserts that Schwarz’ testimony as to what 

he discovered while running a records search for the vehicle 

was not hearsay. He cites to no law in support of such proposition. Our courts have repeatedly held that testimony as to the 

content of records, entered into evidence to prove the truth 

of the information contained therein, is hearsay.39 Ferguson’s 

theory of defense was that the methamphetamine belonged to 

someone else. Schwarz’ testimony of what he remembered of 

the content of the databases was proffered for the truth of the 

matters asserted: that there were other incidents involving illegal drugs in Koch’s vehicle that did not involve Ferguson. The 

proffered testimony was hearsay.

[19-21] Hearsay is not admissible except as provided by 

the rules of evidence or by other rules adopted by the statutes 

37 See Illinois v. Caballes, supra note 12.

38 State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).

39 See, e.g., State v. Roenfeldt, 241 Neb. 30, 486 N.W.2d 197 (1992); Hoelck 

v. ICI Americas, Inc., 7 Neb. App. 622, 584 N.w.2d 52 (1998); State v. 

Ward, 1 Neb. App. 558, 510 N.W.2d 320 (1993).
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of the State of Nebraska or by the discovery rules of this 

court.40 Therefore, the proponent of the hearsay evidence has 

the burden of identifying the appropriate exception and demonstrating that the testimony falls within it.41 When the opposing party objects to evidence as hearsay and the trial court 

sustains the objection, the proponent is required to point out 

the possible hearsay exceptions in order to preserve the point 

for appeal.42

During trial, Ferguson did not identify the appropriate 

exception to the hearsay rule that would render the proffered 

testimony admissible, and he makes no argument on appeal 

that it falls under any exception. Ferguson did not offer 

the records themselves into evidence. We find no merit to 

Ferguson’s argument that the district court erred in refusing 

to allow into evidence Schwarz’ testimony concerning what 

he remembered to be the content of the databases he searched 

during the stop.

3. Overruling Found

Objection to Tel

Conversati

[22,23] Ferguson next contests the admission into evidence 

of Ferguson’s statements to the children’s mother during a 

telephone conversation. The court overruled Ferguson’s foundation objection to the testimony. We have long held that there 

is sufficient foundation to render communications by telephone 

admissible in evidence where the identity of the person with 

whom the witness spoke or the person whom he or she heard 

speak is satisfactorily established.43 And a witness testifying 

positively that he or she recognized, by voice, the person with 

40 State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).

41 State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).

42 Id.

43 See, Midland Properties v. Wells Fargo, supra note 4; Linch v. Carlson, 

156 Neb. 308, 56 N.W.2d 101 (1952).
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whom he or she was talking, is generally sufficient to present 

the evidence to the jury to determine whether the conversation 

actually occurred.44

While additional evidence as to the surrounding circumstances of the telephone conversation may be necessary where 

the witness was unable to identify the caller by voice,45 that 

was not the circumstance here. The children’s mother testified 

that as a result of having previously dated Ferguson for 8 years, 

she had spoken to him on the telephone before and knew the 

sound of his voice. She testified that she was able to identify 

Ferguson by his voice and that it was Ferguson with whom she 

had been speaking over the telephone. The district court did 

not abuse its discretion in overruling Ferguson’s foundation 

objection to the children’s mother’s testimony.

4. Sufficiency of E

Having addressed the assignments of error related to the 

evidentiary rulings at trial, we now consider Ferguson’s argument that the evidence was insufficient to support the jury’s 

verdict that he committed child abuse. Ferguson’s challenge to 

his child abuse conviction derives from the possibility the jury 

concluded that the presence of methamphetamine in the vehicle 

within reach of the children—as opposed to Ferguson’s alleged 

reckless driving—was child abuse. Ferguson concedes that the 

evidence that Ferguson was swerving the vehicle all over the 

road was legally sufficient to support his conviction for child 

abuse, but argues that the facts relating to the methamphetamine in the vehicle were not.

In reviewing a criminal conviction for a sufficiency of the 

evidence claim, 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 

44 See id.

45 See Midland Properties v. Wells Fargo, supra note 4.
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matters are for the finder of fact.46 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.47

Section 28-707(1) provides in relevant part that “[a] person 

commits child abuse if he or she knowingly, intentionally, or 

negligently causes or permits a minor child to be: (a) Placed in 

a situation that endangers his or her life or physical or mental 

health.” “Endangers” for purposes of § 28-707(1)(a) means to 

expose a minor child’s life or health to danger or the peril of 

probable harm or loss.48 The purpose of criminalizing conduct 

under the statute is that where a child is endangered, it may be 

injured; it is the likelihood of injury against which the statute 

speaks.49 Criminal endangerment in § 28-707(1)(a) encompasses not only conduct directed at the child but also conduct 

which presents the likelihood of injury due to the child’s having 

been placed in a situation caused by the defendant’s conduct.50

Ferguson was charged with negligently placing his children 

in a situation that endangered their lives or physical or mental health under § 28-707(3). Section 28-707(9) explains that 

“negligently” in this context “refers to criminal negligence and 

means that a person knew or should have known of the danger 

involved and acted recklessly, as defined in section 28-109, 

with respect to the safety or health of the minor child.” Neb. 

Rev. Stat. § 28-109 (Supp. 2015), in turn, defines “[r]ecklessly” as

acting with respect to a material element of an offense 

when any person disregards a substantial and unjustifiable 

46 State v. McCurdy, supra note 5.

47 Id.

48 State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017); State v. 

Crowdell, 234 Neb. 469, 451 N.W.2d 695 (1990).

49 Id.

50 Id.
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risk that the material element exists or will result from his 

or her conduct. The risk must be of such a nature and 

degree that, considering the nature and purpose of the 

actor’s conduct and the circumstances known to the actor, 

its disregard involves a gross deviation from the standard 

of conduct that a law-abiding person would observe in 

the actor’s situation.

Without citation to legal authority, Ferguson argues that 

being within reach of methamphetamine is insufficient to 

support a child abuse conviction, because “[a] child can at 

almost any time reach an object that could be harmful to the 

child if used by the child. For example, knives in a kitchen 

drawer, lighters in a drawer, alcohol in a cabinet, and guns 

on a shelf.”51 Ferguson also points out that the only time the 

children were alone in the vehicle within reach of the methamphetamine was when law enforcement removed Ferguson from 

the vehicle in an attempt to identify him.

[24,25] We find no merit to Ferguson’s arguments that the 

evidence was insufficient to support the child abuse conviction. First, Ferguson’s reliance on the inability to know the factual theory underlying the jury’s general verdict is misplaced.

Jurors in a criminal case are presumed well equipped to analyze the evidence in order to avoid resting a guilty verdict on 

a factually inadequate theory.52 Thus, if there are two possible 

factual grounds for the jury’s general verdict, one factually 

inadequate and unreasonable and the other factually adequate 

and reasonable, we will assume, absent a contrary indication in 

the record, that the jury based its verdict on the reasonable and 

factually adequate ground.53

51 Brief for appellant at 20.

52 Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed. 2d 371 

(1991). See, also, e.g., U.S. v. Richardson, 421 F.3d 17 (1st Cir. 2005).

53 See, People v. Guiton, 4 Cal. 4th 1116, 847 P.2d 45, 17 Cal. Rptr. 2d 365 

(1993); People v. Spaccia, 12 Cal. App. 5th 1278, 220 Cal. Rptr. 3d 65 

(2017).
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But we also reject the reckless driving and access to methamphetamine as two disparate factual theories. The jury was 

presented with evidence that on March 9, 2016, Ferguson, 

without a license, drove recklessly and was falling asleep at 

the wheel during rush-hour traffic at a speed of approximately 

65 miles per hour, while his young children, able to unbuckle 

themselves, could have reached for methamphetamine contained in a bag lying on the floorboard and ingested it. The 

jury was presented with further evidence that Ferguson chose 

to leave the bag of methamphetamine in the vehicle with his 

unattended children while he answered questions in Schwarz’ 

cruiser. This evidence was sufficient to support the conviction 

of child abuse.

Finally, even if we were to parse out the children’s access to 

the methamphetamine from the reckless driving, that evidence 

was legally sufficient to support the child abuse conviction. 

Unlike many of the common household risks illustrated by 

Ferguson, the risk of access to methamphetamine, an illegal 

and toxic substance, involves a gross deviation from the standard of conduct that a law-abiding person would observe.

In Carosi v. Com.,54 the Supreme Court of Virginia rejected 

a similar argument that storage of illegal drugs where children could have obtained access to them was no different than 

the common methods of storing various dangerous household 

items. “[T]hey differ,” the court explained, “in the important 

respect that the latter items, though unquestionably dangerous if left accessible to unsupervised children, are possessed 

by the parent or custodian for lawful purposes, whereas drugs 

that are illegally present . . . are not.”55 The court in Carosi

further explained:

The myriad factors to be considered in such cases—such 

as the ages of the children, the length of the exposure, 

the level of supervision or lack thereof, and the quantity 

54 Carosi v. Com., 280 Va. 545, 701 S.E.2d 441 (2010).

55 Id. at 556, 701 S.E.2d at 447.
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and variety of the drugs—suggest that as with most cases 

where criminal negligence is at issue, this determination 

is necessarily fact-specific [and] best left to the jury.56

We agree.

We have explained that “‘[a]s a matter of practicability for 

general application, child abuse statutes, by virtue of the nature 

of their subject matter and the nature of the conduct sought to 

be prohibited, usually contain broad and rather comprehensive 

language.’”57 There was evidence that methamphetamine was 

within reach of the children both while Ferguson was driving, tired and distracted, and while they were unattended in 

the stopped vehicle. The jury could have inferred that the 

children, ages 8 and 6, were likely to see the bag of methamphetamine and explore its contents out of curiosity. Schwarz 

testified that he had received extensive training in narcotics 

and that methamphetamine is very toxic and potentially lethal 

to children if they accidentally ingest it. He opined that a child 

who is within reach of methamphetamine is placed in a situation that endangers the child’s life.

Viewing the evidence in the light most favorable to the 

prosecution, a rational trier of fact could have found the essential elements of the crime of negligent endangerment child 

abuse beyond a reasonable doubt.58

5. Excessive Sen

Lastly, Ferguson asserts that the court imposed excessive 

sentences. There is no dispute that the sentences imposed were 

within the statutory limits, but Ferguson argues that his sentences were excessive, because probation would have been better suited to Ferguson’s rehabilitative needs. An appellate court 

will not disturb a sentence imposed within the statutory limits 

56 Id. at 557, 701 S.E.2d at 447-48.

57 State v. Mendez-Osorio, supra note 48, 297 Neb. at 534, 900 N.W.2d at 

786-87, quoting State v. Crowdell, supra note 48.

58 See State v. Swindle, supra note 7.
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absent an abuse of discretion by the trial court.59 An abuse of 

discretion in imposing a sentence occurs when a sentencing 

court’s reasons or rulings are clearly untenable and unfairly 

deprive the litigant of a substantial right and a just result.60

The court explained that it was not placing Ferguson on probation because he was unlikely to complete probation successfully, given Ferguson’s history during the proceedings of not 

showing up to court and not going to his probation evaluation 

on time. The court further noted that Ferguson was convicted 

of other crimes committed while awaiting trial. Ferguson himself admitted at the sentencing hearing that he would probably fail probation. The court did not abuse its discretion in 

sentencing Ferguson to jail time with postrelease supervision, 

rather than to probation.

VI. CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court.

Affirmed

59 Id.

60 Id.