State v. Howell

STATE v. HOWELL 	559
Cite as 284 Neb. 559
portions of new building and fence encroaching on owner’s
land was not inequitable); Seminary v. DuPont, 41 So. 3d 1182
(La. App. 2010) (finding that neighbor’s fence encroached
upon homeowner’s property, supporting issuance of manda-
tory injunction); Crow v. Batchelor, 456 S.W.2d 241 (Tex.
Civ. App. 1970) (determining trial court’s grant of mandatory
injunction requiring defendant to remove fence was not abuse
of discretion).
The district court properly enjoined the appellants. Therefore,
we affirm the order of the district court.
CONCLUSION
The appellees are the rightful owners of both Lot 9 and
the accretion north of the centerline of the slough, as the dis-
trict court correctly determined. Because the appellees own
the land, the appellants’ intentional installation of a fence on
the land constituted a continuous trespass, and the appellees
were entitled to an injunction, as the district court ordered.
Accordingly, we affirm.
A ffirmed.
StAte of NebrASkA, Appellee, v. JuStiN d. Howell, AppellANt.
822 N.W.2d 391
Filed October 26, 2012. 	No. S-12-115.
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 inde-
pendently of the trial court’s determination.
2. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard 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 rea-
sonable doubt.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

560 	284 NEBRASKA REPORTS
3. Constitutional Law: Search and Seizure: Police Officers and Sheriffs. The
standard for measuring the scope of a suspect’s consent under the Fourth
Amendment is that of objective reasonableness—what would the typical rea-
sonable person have understood by the exchange between the officer and
the suspect?
4. Search and Seizure: Police Officers and Sheriffs: Intent. The permissible
scope of a search is not to be determined on the basis of the subjective intentions
of the consenting party or the subjective interpretation of the searching officer.
5. Search and Seizure. Consensual searches generally cannot be destructive.
6. Search and Seizure: Police Officers and Sheriffs: Evidence. Before an officer
may actually destroy or render completely useless a container which would oth-
erwise be within the scope of a permissive search, the officer must obtain explicit
authorization, or have some other, lawful, basis upon which to proceed.
7. Search and Seizure. The scope of a search is generally defined by its
expressed object.
8. Search and Seizure: Motor Vehicles: Police Officers and Sheriffs. The general
rule is that when a suspect does not limit the scope of a search, and does not
object when the search exceeds what he later claims was a more limited consent,
an officer is justified in searching the entire vehicle.
9. Appeal and Error. Consideration of plain error occurs at the discretion of an
appellate court.
10. ____. Plain error may be found on appeal when an error unasserted or uncom-
plained of at trial, but plainly evident from the record, prejudicially affects a
litigant’s substantial right and, if uncorrected, would result in damage to the
integrity, reputation, and fairness of the judicial process.
11. 	Verdicts: Appeal and Error. Only where evidence lacks sufficient probative
value as a matter of law may an appellate court set aside a guilty verdict as
unsupported by evidence beyond a reasonable doubt.
Appeal from the District Court for Hall County: tereSA
k. lutHer, Judge. Affirmed in part, and in part reversed and
remanded with direction.
Mark Porto, of Shamberg, Wolf, McDermott & Depue, for
appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
H eAvicAN, c.J., wrigHt, coNNolly, StepHAN, mccormAck,
miller-lermAN, and cASSel, JJ.
cASSel, J.
INTRODUCTION
The principal issue in this appeal is whether a reasonable
person would understand that a general consent to search

STATE v. HOWELL 	561
Cite as 284 Neb. 559
a vehicle for illegal drugs authorized the opening of a gift-
wrapped box in the vehicle’s storage area. Because (1) the
object of the search was clearly disclosed, (2) the container was
not equivalent to a locked container and was not destroyed, and
(3) the consent was not withdrawn after the officer’s interest in
the container was communicated to its owner, the search did
not exceed the scope of the consent. Thus, we affirm the con-
viction for possession of a controlled substance with intent to
distribute. However, because the record contains no evidence
of the absence of a drug tax stamp, we find plain error and
reverse the judgment of conviction for that offense.
BACKGROUND
The State charged Justin D. Howell with possession of a
controlled substance with intent to distribute and no drug tax
stamp. Howell moved to suppress the evidence obtained from
within a gift-wrapped box because he did not specifically con-
sent to its search.
Trooper Russell Lewis provided the sole testimony at the
hearing on the motion to suppress. He stopped Howell’s vehi-
cle for speeding and had Howell sit in the patrol car while he
completed a warning ticket.
Lewis asked Howell if there were drugs or weapons in the
vehicle, and Howell answered, “No.” Lewis then obtained
Howell’s consent to search the vehicle. Lewis moved to the
rear cargo area of the vehicle and observed luggage and a gift-
wrapped box. Lewis asked Howell, who remained in the patrol
car, about the ownership of the gift-wrapped box. Howell
stated that his aunt had given it to him to give to his brother as
a birthday gift.
Lewis decided to search the box, but he did not ask for
specific authorization to do so. At the suppression hearing,
he agreed that Howell would not have been able to see what
he was doing inside of the vehicle as he opened the box.
Lewis used a knife to cut the tape on the wrapping paper and
unwrapped one side of the box. The box tore as he opened it
to look inside. Lewis observed two packages of marijuana. In
response to Lewis’ question about the ownership of the box,
Howell stated that it was his. Howell told Lewis that the box

562 	284 NEBRASKA REPORTS
contained approximately 2 pounds of marijuana and that he
sold the drug in addition to personally using it.
The district court overruled Howell’s motion to suppress.
The court determined that Howell gave Lewis general consent
to search, that Howell did not limit or revoke his consent or
say that Lewis could not search the box, and that Howell did
not object to the search of the box. The court further reasoned
that a person “could reasonably expect illegal substances to be
transported in such packaging” and that “[c]utting the package
did not destroy the contents and caused only minimal damage
to a cardboard box of nominal value.”
At a trial to the bench, the only evidence offered was a six-
page exhibit consisting of the “police report from the officer”
and a “copy of the lab[oratory] report for the marijuana that
was seized by the officer.” The police report synopsis states
that Howell “was arrested and charged with Possession of
Marijuana with Intent and No Drug Tax Stamp.” However,
neither the police report narrative nor the laboratory report
contains any fact regarding the absence of a drug tax stamp.
There were no verbal or written stipulations that would oth-
erwise expand the evidence. The court was not asked to
take judicial notice of the evidence adduced at the suppres-
sion hearing. After the trial, the district court found Howell
guilty of possession of a controlled substance with intent to
distribute and no drug tax stamp. The court subsequently sen-
tenced Howell.
Howell timely appealed, and we moved the case to our
docket under our statutory authority to regulate the caseloads
of the appellate courts of this state.1
ASSIGNMENTS OF ERROR
Howell assigns that the court erred in (1) denying his motion
to suppress after determining that his general consent to the
search of his vehicle authorized the cutting open of the gift-
wrapped box located inside the vehicle and (2) finding him
guilty of possession of a controlled substance with intent to
distribute and no drug tax stamp.
1 See Neb. Rev. Stat. § 24-1106 (Reissue 2008).

STATE v. HOWELL 	563
Cite as 284 Neb. 559
STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press 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 pro-
tections is a question of law that we review independently of
the trial court’s determination.2
[2] In reviewing 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 pros-
ecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.3
ANALYSIS
Consent to Search.
The issue in this case is narrow: Did Howell’s general
consent to search his vehicle authorize Lewis to open the gift-
wrapped box? At oral argument, the State conceded that the
validity of the search depended solely upon Howell’s consent.
[3,4] The standard for measuring the scope of a suspect’s
consent under the Fourth Amendment is that of objective
reasonableness—what would the typical reasonable person
have understood by the exchange between the officer and
the suspect?4 The permissible scope of a search “is not to be
determined on the basis of the subjective intentions of the
consenting party or the subjective interpretation of the search-
ing officer.”5
2 State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).
3 State v. Ross, 283 Neb. 742, 811 N.W.2d 298 (2012).
4 Florida v. Jimeno, 500 U.S. 248, 111 S. Ct. 1801, 114 L. Ed. 2d 297
(1991).
5 4 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth
Amendment § 8.1(c) at 19 (4th ed. 2004) (emphasis in original).

564 	284 NEBRASKA REPORTS
We begin our analysis with the seminal case of Florida v.
Jimeno.6 In that case, the officer informed the defendant that
he believed the defendant was carrying narcotics in the car and
asked for permission to search the car. After receiving consent
to search, the officer saw a folded, brown paper bag on the
car’s floorboard. The officer opened the bag and found cocaine.
The U.S. Supreme Court upheld the search, stating that it was
objectively reasonable for the officer to conclude that the gen-
eral consent to search the car included consent to search closed
containers within the car which might hold drugs. The Court
explained, “A reasonable person may be expected to know
that narcotics are generally carried in some form of container”
and that they “‘rarely are strewn across the trunk or floor of a
car.’”7 Significantly, the Court specifically declined to add to
the basic test of objective reasonableness a requirement that
police must separately request permission to search each closed
container within a car. The Court cautioned, however, that “[i]t
is very likely unreasonable to think that a suspect, by consent-
ing to the search of his trunk, has agreed to the breaking open
of a locked briefcase within the trunk . . . .”8 As the Jimeno
opinion demonstrates, there is no bright-line rule prohibiting
the opening of closed containers during a search of a vehicle
conducted pursuant to general consent.
The Nebraska Court of Appeals has considered whether,
post-Jimeno, general consent to search a vehicle extended to
closed containers located therein. In State v. Claus,9 the officer
asked the suspect if he had any drugs or weapons and obtained
general consent to search the vehicle. The officer observed a
“‘small blue safety glasses bag’”10 on the front seat of the vehi-
cle and asked the suspect if the bag was his. After the suspect
said that it was, the officer unzipped the bag—without specific
permission to do so—and found drugs and drug paraphernalia.
6 Florida v. Jimeno, supra note 4.
7 Id., 500 U.S. at 251.
8 Id., 500 U.S. at 251-52.
9 State v. Claus, 8 Neb. App. 430, 594 N.W.2d 685 (1999).
10 Id. at 432, 594 N.W.2d at 687.

STATE v. HOWELL 	565
Cite as 284 Neb. 559
In upholding the search, the Court of Appeals noted that the
suspect did not object to the scope of the search or otherwise
protest it. More recently, in State v. Rathjen,11 the Court of
Appeals was confronted with the search of a locked toolbox in
the bed of a pickup truck. The driver gave the officer consent
to search his truck, and the officer searched the toolbox by
using a key he found on the keyring hanging from the key in
the ignition. The officer discovered methamphetamine inside
a black bag located in the toolbox. The officer did not ask for
additional consent before searching the toolbox, and the driver
was not present or within earshot at the time of the search.
The Court of Appeals viewed the locked toolbox as being
analogous to the trunk of an automobile and determined that
the driver’s general consent authorized the search. The Court
of Appeals emphasized the fact that the driver did not object
when the search extended to the toolbox.
[5] Howell relies principally upon precedent from the Eighth
Circuit. In U.S. v. Alverez,12 troopers received consent to search
a car. During the search, they unbolted a spare tire, shook
it, heard several thudding noises, and tried to break the tire
loose from the rim. Ultimately, the troopers cut through the
tire’s sidewall and discovered methamphetamine. The Eighth
Circuit determined that cutting the spare tire “likely exceeded
the scope of the consensual search,”13 but that the troopers had
probable cause to examine the tire more closely. A later case,
U.S. v. Santana-Aguirre,14 involved a search at a bus terminal
where the defendant consented to a search of his suitcase. A
drug interdiction investigator found two large wax candles,
cut into them, and discovered methamphetamine. The Eighth
Circuit reasoned that consensual searches generally cannot be
destructive and stated that “[c]utting or destroying an object
during a search requires either explicit consent for the destruc-
tive search or articulable suspicion that supports a finding
11 State v. Rathjen, 16 Neb. App. 799, 751 N.W.2d 668 (2008).
12 U.S. v. Alverez, 235 F.3d 1086 (8th Cir. 2000).
13 Id. at 1089.
14 U.S. v. Santana-Aguirre, 537 F.3d 929 (8th Cir. 2008).

566 	284 NEBRASKA REPORTS
that probable cause exists to do the destructive search.”15 The
Eighth Circuit ultimately did not reach the issue of consent
because it concluded that there was probable cause to support
the search. Both of these cases involved the destruction of a
closed container in such a manner that the container could no
longer be used for its intended purpose.
[6] The damage to or destruction of a closed container is
a factor in the objective reasonableness analysis. In U.S. v.
Osage,16 during a search on a train, the defendant gave an
officer permission to search his suitcases and produced a key
to open the locked suitcase. The officer observed four cans
labeled “‘tamales in gravy’”17 inside the locked suitcase and
noticed that the label on one of the cans appeared to have
been tampered with. When he shook the can, it did not feel
and sound like it contained tamales in liquid, but, rather, felt
like a container of salt. The officer opened the can and dis-
covered methamphetamine. The 10th Circuit determined that
the defendant’s failure to object to the search of the sealed
container did not permit the officer to destroy the can. The
court analogized the opening of a sealed can—which made
the can useless and incapable of performing its intended
function—to breaking open a locked briefcase and contrasted
it with the opening of a folded paper bag. The court held:
“[B]efore an officer may actually destroy or render com-
pletely useless a container which would otherwise be within
the scope of a permissive search, the officer must obtain
explicit authorization, or have some other, lawful, basis upon
which to proceed.”18 In a later case from the 10th Circuit,
U.S. v. Jackson,19 an agent used a knife to take off the top of a
baby powder container located within a bag. The 10th Circuit
reasoned that removing the lid of the container did not exceed
the scope of consent because it did not destroy or render the
15 Id. at 932.
16 U.S. v. Osage, 235 F.3d 518 (10th Cir. 2000).
17 Id. at 519.
18 Id. at 522.
19 U.S. v. Jackson, 381 F.3d 984 (10th Cir. 2004).

STATE v. HOWELL 	567
Cite as 284 Neb. 559
container useless and the container could still perform its
designated function.
Several courts have considered the opening of a taped box
during a general consent search. In U.S. v. Mendoza-Gonzalez,20
border patrol agents obtained permission to look inside a trailer
and saw a few brown cardboard boxes which were sealed with
a piece of tape over the top. An agent used a pocketknife to
slice the tape on one of the boxes and discovered bricks of
marijuana. The defendant argued that the search of the card-
board box exceeded the scope of his consent, but the Fifth
Circuit upheld the search. The court reasoned that because the
defendant knew the boxes contained marijuana, he should have
limited his consent if he deemed it necessary to do so, which
would have clarified any ambiguity about whether the agent
had consent to search the boxes. The Fifth Circuit noted that
it had previously placed the responsibility to limit the scope
of consent on the defendant because it is the defendant who
knows the contents of the vehicle. In analyzing the reasonable-
ness of a search of a closed container, the Fifth Circuit looked
at “the varying impact that such a search has upon two inter-
ests: (1) the owner’s expectation of privacy as demonstrated
by his attempt to lock or otherwise secure the container; and
(2) the owner’s interest in preserving the physical integrity of
the container and the functionality of its contents.”21 The Fifth
Circuit rationalized that the defendant’s expectation of privacy
in the box did not rise to the level of that of a locked con-
tainer, particularly where the box could be opened by merely
removing or cutting through a piece of tape. The court pointed
out that the agent did not “damage the box, render it useless,
or endanger its contents during the course of the search” and
that “cardboard boxes that were once taped, glued, or closed
in some other manner are just as capable of performing their
function on subsequent occasions with the help of a brand new
piece of tape.”22
20 U.S. v. Mendoza-Gonzalez, 318 F.3d 663 (5th Cir. 2003).
21 Id. at 671.
22 Id. at 672.

568 	284 NEBRASKA REPORTS
In U.S. v. Maldonado,23 which involved a search on a train,
agents obtained consent to search the defendant’s luggage and
located two boxes marked “‘juicer’”24 inside. The defendant
testified that he told one of the agents he did not want to open
the juicer boxes—which were taped shut—because the items
inside were gift wrapped and that he again expressed concern
about the gift wrap when one of the agents offered to open
the boxes. An agent opened the boxes and found packages of
cocaine. The defendant argued that the search of the boxes
exceeded the scope of his consent, but the Seventh Circuit
determined that a reasonable person would have understood
the defendant’s consent for the search of his luggage to include
permission to search any items inside his luggage which might
reasonably contain drugs. In U.S. v. Jones,25 a trooper opened
a gift-wrapped package found in the trunk of a car, and the
defendants argued that it exceeded their general consent to
search the car for anything illegal. The court determined that
the search was reasonable and within the scope of the consent
to search, stating:
The defendants were aware that [the trooper] was search-
ing the trunk of the vehicle and that he was interested in
the contents of the gift-wrapped package, as they were
asked repeatedly about its contents. The defendants had
ample opportunity to instruct [the trooper] not to search
the trunk or the package. However, the defendants never
objected to [the trooper’s] search of the package or placed
any limitation on the scope of the consent. Therefore,
it was reasonable for [the trooper] to believe that the
defendants’ consent extended to the gift-wrapped package
found in the trunk.26
[7,8] These cases guide our resolution of the instant case.
Lewis asked Howell if there were drugs or weapons in the
vehicle immediately prior to obtaining consent to search. Thus,
23 U.S. v. Maldonado, 38 F.3d 936 (7th Cir. 1994).
24 Id. at 938.
25 U.S. v. Jones, 501 F. Supp. 2d 1284 (D. Kan. 2007).
26 Id. at 1301-02.

STATE v. HOWELL 	569
Cite as 284 Neb. 559
a reasonable person would have been on notice that Lewis was
looking for drugs or weapons. The scope of a search is gener-
ally defined by its expressed object.27 One could reasonably
expect drugs to be hidden in a closed container such as the
gift-wrapped box. “A lawful search of fixed premises generally
extends to the entire area in which the object of the search may
be found and is not limited by the possibility that separate acts
of entry or opening may be required to complete the search.”28
When Howell consented to a search of the vehicle, he did not
place any limitation on the search. After Lewis observed the
gift-wrapped box, he asked Howell to whom it belonged and
whether it was “basically” Howell’s. Despite Lewis’ interest in
the box, Howell did not revoke or limit his consent to search.
The general rule is that when a suspect does not limit the scope
of a search, and does not object when the search exceeds what
he later claims was a more limited consent, an officer is justi-
fied in searching the entire vehicle.29 In the instant case, Lewis
used a knife to cut the tape on the gift wrap and created a tear
in the box as he tried to peer inside. However, the box and gift
wrap were not rendered useless by the search. The tear in the
generic cardboard box could be fixed with a piece of tape, and
the wrapping paper could be secured to the box with another
piece of tape. Under the circumstances, we conclude that the
search of the box was within the scope of Howell’s consent.
Thus, the district court did not err in overruling Howell’s
motion to suppress the evidence.
Plain Error on Drug Tax
Stamp Conviction.
On appeal, Howell assigned that the court erred in find-
ing him guilty of both crimes, but his argument was premised
solely upon the court’s failure to sustain his motion to suppress.
27 Florida v. Jimeno, supra note 4.
28 United States v. Ross, 456 U.S. 798, 820-21, 102 S. Ct. 2157, 72 L. Ed. 2d
572 (1982).
29 U.S. v. Contreras, 506 F.3d 1031 (10th Cir. 2007). Cf. State v. Brown, 294
S.W.3d 553 (Tenn. 2009) (stating that silence alone cannot expand scope
of initial consent).

570 	284 NEBRASKA REPORTS
He did not argue that the evidence at trial—which included the
evidence he had sought to suppress—nonetheless failed to
establish that there was no drug tax stamp on the marijuana.
However, our review of the record reveals no evidence regard-
ing the absence of a drug tax stamp.
Because this aspect of the evidence was not argued on
appeal, it may be considered only as a matter of plain error.
After oral argument in this case, we issued an order directing
the parties to address whether plain error exists on the record
because of insufficient evidence to sustain the conviction for
no drug tax stamp, and we specifically asked them to address
the existence of evidence in the record sufficient to show the
absence of a drug tax stamp.
The parties arrive at opposite conclusions regarding the suf-
ficiency of the evidence. Howell asserts that the State failed to
present evidence with respect to whether a drug tax stamp was
affixed to the marijuana. The State, on the other hand, admits
that the record does not contain any testimony about the pres-
ence or absence of a drug tax stamp, but contends that it met
its burden of proof through circumstantial evidence. The State
directs our attention to the patrol car’s video recording of the
stop and search and to two photographs of the box—one show-
ing the box in wrapping paper and the other showing part of
the unwrapped box. The State points to a regulation from the
Nebraska Department of Revenue which provides that “drug
tax stamps must be physically affixed, using their adhesive
backing, to a container holding the taxable drugs.”30 Relying
on the regulation, the State argues that the evidence does not
show any sign of a tax stamp affixed to the box or wrapping
paper or any remark by Lewis on the presence of a tax stamp.
Further, the State asserts that the presence of a drug tax stamp
would have eliminated the need for caution exercised by Lewis
in opening the package because the presence of the drug tax
stamp would have declared the contents of the box. The State
suggests that Lewis’ carefully cutting off part of the gift wrap
30 316 Neb. Admin. Code, ch. 94, § 005.01 (1992). See, also, 316 Neb.
Admin. Code, ch. 94, § 003.02A (1992) (“[d]rug stamps must be affixed
to a container holding threshold amounts of marijuana”).

STATE v. HOWELL 	571
Cite as 284 Neb. 559
“is an unequivocal inference that there was no drug tax stamp
which would have readily and openly identified the contents
as contraband.”31
The fundamental problem with the State’s argument is that
the evidence from which it seeks to draw these inferences was
not offered or received at the trial. At trial, the court received
only a single exhibit combining a copy of Lewis’ written report
with a copy of the laboratory report. There was no testimony or
any other physical or documentary evidence. The sole exhibit
did not memorialize any observations regarding the absence of
a drug tax stamp. The evidence from the suppression hearing
was not offered at trial, nor was the court requested to judi-
cially notice the evidence from the suppression hearing. Thus,
the only evidence actually received at trial failed to show the
absence of the drug tax stamp. There was simply a total failure
of evidence at trial on this element of the offense.
[9-11] Thus, we note plain error. Consideration of plain error
occurs at the discretion of an appellate court.32 Plain error may
be found on appeal when an error unasserted or uncomplained
of at trial, but plainly evident from the record, prejudicially
affects a litigant’s substantial right and, if uncorrected, would
result in damage to the integrity, reputation, and fairness of the
judicial process.33 Only where evidence lacks sufficient proba-
tive value as a matter of law may an appellate court set aside a
guilty verdict as unsupported by evidence beyond a reasonable
doubt.34 No drug tax stamp is a Class IV felony.35 The crime
is committed when a “dealer distribut[es] or possess[es] mari-
juana or a controlled substance without affixing the official
stamp, label, or other indicium.”36 Thus, an essential element
of the crime is the failure to affix the official stamp or label.
Because there was no evidence to show the absence of a drug
31 Supplemental brief for appellee at 4.
32 State v. Britt, 283 Neb. 600, 813 N.W.2d 434 (2012).
33 State v. Williams, 282 Neb. 182, 802 N.W.2d 421 (2011).
34 State v. Ross, supra note 3.
35 Neb. Rev. Stat. § 77-4309 (Reissue 2009).
36 Id.

572 	284 NEBRASKA REPORTS
tax stamp, we cannot allow Howell’s conviction for that charge
to stand.
CONCLUSION
We conclude that Howell’s general consent to search his
vehicle extended to the gift-wrapped box. Howell did not
withdraw or otherwise limit his consent when Lewis inquired
about the box, and the search of the box caused only minimal,
cosmetic damage to it. We therefore affirm the conviction and
sentence for possession of a controlled substance with intent
to distribute.
Because the record contained no evidence regarding the
absence of a drug tax stamp, we reverse the judgment of con-
viction and sentence for that charge and remand the cause with
direction to dismiss the charge for no drug tax stamp.
A ffirmed iN pArt, ANd iN pArt reverSed
ANd remANded witH directioN.
StAte of NebrASkA, Appellee, v.
SHerrie l. mccArtHy, AppellANt.
822 N.W.2d 386
Filed October 26, 2012. 	No. S-12-478.
1. Collateral Estoppel: Appeal and Error. The applicability of the doctrine of
collateral estoppel constitutes a question of law. With regard to such a question,
an appellate court is obligated to reach a conclusion independent from the lower
court’s conclusion.
2. Statutes. The interpretation of a statute presents a question of law.
3. Collateral Estoppel: Words and Phrases. “Collateral estoppel” means that
when an issue of ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same parties or their
privies in any future lawsuit.
4. Collateral Estoppel. There are four conditions that must exist for the doctrine
of collateral estoppel to apply: (1) The identical issue was decided in a prior
action, (2) there was a judgment on the merits which was final, (3) the party
against whom the rule is applied was a party or in privity with a party to the prior
action, and (4) there was an opportunity to fully and fairly litigate the issue in the
prior action.
5. Criminal Law: Statutes: Words and Phrases. It is a fundamental principle of
statutory construction that penal statutes are to be strictly construed, and it is not