State v. Nelson

State of NebraSka , appellee , v.
JameS a. NelSoN, appellaNt.
807 N.W.2d 769
Filed December 2, 2011. 	No. S-11-003.
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, 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 inde-
pendently of the trial court’s determination.
2. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal
case, a motion for new trial is addressed to the discretion of the trial court, and
unless an abuse of discretion is shown, the trial court’s determination will not
be disturbed.
3. Constitutional Law: Motor Vehicles: Search and Seizure: Appeal and Error.
To determine whether an unauthorized driver has a privacy interest in a rental
vehicle, an appellate court must consider whether the person who claims the
protection of the Fourth Amendment and Neb. Const. art. I, § 7, has a legitimate
expectation of privacy in the invaded place.
4. Constitutional Law: Search and Seizure. To determine if an individual may
make a challenge under the Fourth Amendment and Neb. Const. art. I, § 7, one
must determine whether an individual has a legitimate or justifiable expectation
of privacy. Ordinarily, two inquiries are required. First, an individual must have
exhibited an actual (subjective) expectation of privacy, and second, the expecta-
tion must be one that society is prepared to recognize as reasonable.
5. Constitutional Law: Motor Vehicles: Search and Seizure. Regarding a deten-
tion during a traffic stop, such action constitutes a seizure of the person and the
individual traveling in an automobile does not lose all reasonable expectation
of privacy.
6. Constitutional Law: Search and Seizure: Standing. A “standing” analysis in
the context of search and seizure is nothing more than an inquiry into whether the
disputed search and seizure has infringed an interest of the defendant in violation
of the protection afforded by the Fourth Amendment.
7. Standing: Motor Vehicles: Search and Seizure: Contracts. A driver of a rental
vehicle may have standing to challenge a detention or search if he or she has
demonstrated that he or she has received permission to drive the vehicle from the
individual authorized on the rental agreement.
8. Investigative Stops: Motor Vehicles: Probable Cause. A traffic violation, no
matter how minor, creates probable cause to stop the driver of a vehicle.
9. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs. Once a
vehicle is lawfully stopped, a law enforcement officer may conduct an investi-
gation reasonably related in scope to the circumstances that justified the traffic
stop. This investigation may include asking the driver for an operator’s license
and registration, requesting that the driver sit in the patrol car, and asking the
STATe v. NelSON 	767
Cite as 282 Neb. 767
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

driver about the purpose and destination of his or her travel. Also, the officer
may run a computer check to determine whether the vehicle involved in the stop
has been stolen and whether there are any outstanding warrants for any of its
occupants.
10. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable
Cause. In order to expand the scope of a traffic stop and continue to detain the
motorist for the time necessary to deploy a drug detection dog, an officer must
have a reasonable, articulable suspicion that a person in the vehicle is involved in
criminal activity beyond that which initially justified the stop.
11. Probable Cause: Words and Phrases. Reasonable suspicion entails some mini-
mal level of objective justification for detention, something more than an inchoate
and unparticularized hunch, but less than the level of suspicion required for prob-
able cause.
12. Police Officers and Sheriffs: Probable Cause. Whether a police officer has a
reasonable suspicion based on sufficient articulable facts depends on the totality
of the circumstances.
13. Probable Cause. Reasonable suspicion exists on a case-by-case basis.
14. ____. Factors that would independently be consistent with innocent activities may
nonetheless amount to reasonable suspicion when considered collectively.
15. Criminal Law: Motions for New Trial: Evidence: Proof. A criminal defendant
who seeks a new trial because of newly discovered evidence must show that if the
evidence had been admitted at the former trial, it would probably have produced
a substantially different result.
16. Constitutional Law: Due Process. The due process requirements of Nebraska’s
Constitution are similar to those of the federal Constitution.
17. Constitutional Law: Due Process: Evidence. Under certain circumstances,
the Due Process Clause of the 14th Amendment to the U.S. Constitution may
require that the State preserve potentially exculpatory evidence on behalf of a
defendant.
18. Due Process: Evidence: Police Officers and Sheriffs. Unless a criminal defend-
ant can show bad faith on the part of the police, failure to preserve potentially
useful evidence does not constitute a denial of due process of law.
19. Judgments: Due Process: Evidence: Appeal and Error. A trial court’s conclu-
sion that the government did not act in bad faith in destroying potentially useful
evidence, so as to deny the defendant due process, is reviewed for clear error.
20. Evidence: Proof. Because of its obvious importance, where “material exculpa-
tory” evidence is destroyed, a showing of bad faith is not necessary.
21. ____: ____. Where evidence that is destroyed is only “potentially useful,” a
showing of bad faith under Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333,
102 l. ed. 2d 281 (1988), is required.
Appeal from the District Court for Cheyenne County: D erek
C. Weimer, Judge. Affirmed.
James 	R. 	Mowbray 	and 	Kelly 	S. 	Breen, 	of 	Nebraska
Commission on Public Advocacy, for appellant.
768 	282 NeBRASKA RePORTS

Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
H eaviCaN, 	C.J., 	WrigHt, 	C oNNolly, 	gerrarD, 	StepHaN,
mCC ormaCk, and miller-lermaN, JJ.
miller-lermaN, J.
NATURe OF CASe
A rental vehicle driven by James A. Nelson, appellant, was
stopped for speeding by a Nebraska State Patrol trooper. After
a conversation and further observations, consent to search
was denied. Nelson was detained, and a drug detection canine
called to the scene alerted. A search disclosed a package of
cocaine. Nelson was charged with possession of cocaine with
intent to deliver or distribute and another count which was
later dismissed.
A first motion to suppress challenging the detention was
initially granted by the district court for Cheyenne County,
but it was reversed by a single judge of the Nebraska Court
of Appeals under the procedure set forth in Neb. Rev. Stat.
§ 29-824 (Reissue 2008). See State v. Nelson, No. A-09-082,
2009 Wl 2342734 (Neb. App. July 28, 2009) (selected for
posting to court Web site). The propriety of the detention
is before us as an issue on appeal. Upon remand, a second
motion to suppress—addressed to the execution of the search,
the reliability of the canine, and the existence of probable
cause to search—was overruled, and this ruling is not at issue
on appeal.
At a jury trial, Nelson was found guilty of possession of
cocaine with intent to deliver or distribute. Nelson’s motion for
new trial, asserting newly discovered evidence and other bases,
was denied. Nelson was sentenced to imprisonment for a term
of 20 to 21 years. Nelson appeals. Although Nelson was not the
driver authorized on the rental agreement, he had permission
from the authorized driver, and we conclude he had standing
to challenge the search and seizure. Because we conclude that
there was reasonable, articulable suspicion to detain Nelson,
the denial of his first motion to suppress was not error. Further,
the district court did not err when it denied the motion for new
trial. We affirm.
STATe v. NelSON 	769
Cite as 282 Neb. 767

STATeMeNT OF FACTS
On August 7, 2008, Nelson was driving a rental vehicle on
Interstate 80 in Cheyenne County, Nebraska, when he was
stopped for speeding. The facts surrounding that stop are
derived primarily from the first of two hearings on Nelson’s
motions to suppress. During the hearing on Nelson’s first
motion to suppress, Trooper Ronald Kissler, who is trained in
drug interdiction, testified. Kissler stated that he stopped the
vehicle being driven by Nelson for speeding. At 12:58 p.m.,
Kissler approached Nelson’s vehicle. Nelson provided Kissler
with his driver’s license and told Kissler that the vehicle was
a rental vehicle. Nelson provided Kissler with the rental agree-
ment, which listed Cornell Nelson as the lessee. Nelson told
Kissler that Cornell is his uncle. Kissler asked Nelson to come
back to his patrol car. Once in the patrol car, at approximately
12:59 p.m., Nelson commented to Kissler that Nelson had
observed that Kissler had both a long rifle and a shotgun in
his patrol car, which Kissler acknowledged. Upon question-
ing, Nelson told Kissler that he had flown to California to visit
his grandmother. Nelson stated the trip was 3 days. He stated
that because he does not like to fly, he was driving back home
to Missouri instead of flying. At this point in the conversa-
tion, Nelson asked Kissler about the local geography, cities,
and attractions.
At about 1:05 p.m., Kissler asked dispatch to run a license
plate check on the vehicle, a check for prior arrests on Nelson,
a check on Nelson and his uncle for involvement with drugs,
and a check on the validity of Nelson’s driver’s license and
whether there were any outstanding warrants on Nelson. While
waiting for this information, Kissler began filling out the warn-
ing citation and advised Nelson that he intended to issue a
written warning. Nelson then asked Kissler whether Kissler
was wearing boots. At 1:09 p.m., dispatch advised Kissler that
Nelson’s license was valid and that there were no outstanding
warrants for him. Kissler was also advised that there was a
positive arrest check on Nelson, but the nature of the arrest was
not initially given.
Kissler and Nelson discussed the rental agreement and the
fact that Nelson was not an authorized driver on the rental
agreement. Kissler then asked Nelson whether there were any
770 	282 NeBRASKA RePORTS

problems with his driving record, to which Nelson responded
that he had had a traffic violation in 1991. At about 1:11 p.m.,
Kissler asked whether Nelson had had any arrests, to which
Nelson responded “not that I remember.” At approximately
1:20 p.m., Nelson asked about the location of the nearest town.
He also asked whether he could place his feet outside of the
cruiser or whether he could go get his shoes from his car, as
his feet were cold. Kissler testified that at this point, Nelson
had his car keys in his hand. Nelson also asked Kissler about
the proximity of other troopers in the area and whether Kissler
was working alone.
At approximately 1:24 p.m., Kissler advised Nelson that
he was making Kissler a little nervous and that Nelson’s
actions and questions indicated that there may be a concern
for Kissler’s safety or an intention on the part of Nelson to
“bolt.” Kissler also advised Nelson that these actions, in addi-
tion to the issue of the rental agreement, created suspicion.
Kissler also advised Nelson that he noticed that the duffelbag
in the back of Nelson’s vehicle did not have airline tags on it,
to which Nelson responded that he had carried the bag onto
the airplane.
At approximately 1:27 p.m., Kissler received a response
from dispatch that Nelson had a previous drug-related arrest. At
1:28 p.m., Kissler gave Nelson a warning citation and returned
his driver’s license and the rental agreement. Kissler then
asked Nelson whether there was anything in the vehicle that
should not be there. Nelson responded in the negative to this
question. Kissler then asked Nelson whether he had a problem
with Kissler’s searching the vehicle, and Nelson did not give
his consent. Kissler testified that Nelson was “visibly shaking
hard.” Kissler requested the drug detection dog at 1:31 p.m.,
and another trooper arrived with the drug detection dog at 1:46
p.m. The dog ultimately alerted to the presence of drugs, and
following the search, cocaine was found in the duffelbag on the
back seat of the vehicle. Nelson was charged with possession
of cocaine with intent to deliver or distribute and another count
which was later dismissed.
Nelson filed his first motion to suppress. The parties stipu-
lated that the hearing would be limited to the propriety of the
stop and continued detention and that, with the court’s approval,
STATe v. NelSON 	771
Cite as 282 Neb. 767

Nelson reserved the right to another hearing addressed to prob-
able cause to search. A hearing was held. On January 16, 2009,
the district court entered an order in which it found facts and
sustained Nelson’s first motion to suppress. The district court
concluded that under the totality of the circumstances, there
was insufficient articulable suspicion of criminal activity to
justify Nelson’s continued detention and therefore ordered that
the evidence from the subsequent search be suppressed.
The State appealed the district court’s suppression order pur-
suant to § 29-824. This statute generally provides that the State
may appeal an order granting a motion to suppress to a single
judge of the Court of Appeals, whose ruling is binding for trial
purposes but may be challenged after conviction.
A single judge of the Court of Appeals determined that the
district court did not err in implicitly concluding that, although
he had not rented the vehicle, Nelson had standing to object to
the detention and search. See State v. Nelson, No. A-09-082,
2009 Wl 2342734 (Neb. App. July 28, 2009) (selected for post-
ing to court Web site). The single judge generally accepted the
facts as found by the district court. The single judge concluded,
however, that the district court had erred when it concluded
that Kissler did not have a reasonable, articulable suspicion
that Nelson was involved in unlawful activity and that thus, the
district court had erred when it concluded that the continued
detention was improper. Id. The single judge reversed the dis-
trict court’s grant of Nelson’s motion to suppress and remanded
the cause for further proceedings. Id. In accordance with the
mandate, Nelson’s challenge to his detention was therefore
rejected. The issue of Nelson’s continued detention is the sub-
ject of Nelson’s first assignment of error on appeal.
Upon remand, Nelson filed a second motion to suppress,
asserting that the officers lacked probable cause to conduct a
search of the rental vehicle. Specifically, Nelson argued that
the officers lacked probable cause because they mishandled
the drug detection dog deployed at the scene, that the drug
detection dog was not properly trained or certified, and that
the drug detection dog failed to alert the officers to any con-
traband which would give the officers probable cause to search
772 	282 NeBRASKA RePORTS

the vehicle. A hearing was held, including testimony regarding
proper dog handling.
On August 26, 2010, the district court overruled Nelson’s
second motion to suppress. The district court determined that
the State provided sufficient evidence to show that the drug
detection dog and the officer were properly trained and certified
at the time of the sniff and alert. The district court also found
that the drug detection dog reliably indicated an alert and con-
cluded that the alert and other facts provided the officers with
probable cause for a warrantless search of the vehicle. The dis-
trict court overruled Nelson’s second motion to suppress. The
substance of this ruling is not challenged on appeal.
A jury trial was held. At trial, the State played an audio
and visual recording of Nelson’s interview with a Nebraska
State Patrol investigator at the State Patrol office in Sidney,
Nebraska, where Nelson was transported after the cocaine
had been discovered. The investigator testified that before the
interview, he advised Nelson of his Miranda rights. During
the interview, Nelson stated that he picked up two men at a
truckstop in Nevada and gave them a ride until he left them
in Utah at a fast-food restaurant. At trial, Nelson similarly
testified that he picked up two men in Nevada and left them in
Utah. Nelson testified he was unaware that the cocaine was in
the car. On September 28, 2010, the jury found Nelson guilty
of possession of cocaine with intent to deliver or distribute, a
Class IB felony, in violation of Neb. Rev. Stat. § 28-416(1)(a)
(Reissue 2008).
On November 17, 2010, prior to sentencing, Nelson filed
an amended motion for new trial, based on a claim of newly
discovered evidence which Nelson asserted was material for
his defense. Nelson also claimed an error of law had occurred
at trial, based on a claim that the State had lost or destroyed
evidence which would have aided his defense. Nelson stated
that after the trial, he learned of two Styrofoam cups and ciga-
rette butts that had been in the vehicle and were destroyed or
lost by the officers. Nelson asserted that the Styrofoam cups
and cigarette butts belonged to the two men to whom Nelson
had given a ride during his trip. Nelson asserted that because
STATe v. NelSON 	773
Cite as 282 Neb. 767

this potentially exculpatory evidence was not turned over to
him and was destroyed before trial, he was not able to cor-
roborate his theory of defense that the two men put cocaine
in his duffelbag. He claimed he was denied a fair trial. The
district court denied the motion for new trial by reference to
Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 l. ed.
2d 281 (1988).
A presentence investigation report was prepared. At the
sentencing hearing, Nelson sought a sentence of probation and
the State brought to the district court’s attention that Nelson
had been previously convicted of a felony for attempted arson,
second degree. The presentence investigation report shows a
conviction for driving under the influence and several arrests,
including a drug-related arrest, the disposition of which is
not clear. On December 17, 2010, Nelson was sentenced to
imprisonment for a term of 20 to 21 years. Nelson appeals his
conviction.
ASSIGNMeNTS OF eRROR
Nelson claims (1) that the officer lacked reasonable suspi-
cion to detain him after the conclusion of the traffic stop and
that his first motion to suppress should have been sustained; (2)
that the district court erred when it denied his motion for new
trial based on newly discovered evidence, including the fact
that the State had destroyed exculpatory evidence; and (3) that
the district court erred when it denied his motion for new trial,
because the destruction of evidence deprived him of valuable
corroboration of his testimony and violated his due process
right to a complete defense.
STANDARDS 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. State v. Borst, 281
Neb. 217, 795 N.W.2d 262 (2011). Regarding historical facts,
we review the trial court’s findings for clear error. Id. 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. Id.
774 	282 NeBRASKA RePORTS

[2] In a criminal case, a motion for new trial is addressed to
the discretion of the trial court, and unless an abuse of discretion
is shown, the trial court’s determination will not be disturbed.
State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011).
ANAlYSIS
Nelson asserts that the evidence found as a result of the
search of the vehicle should have been suppressed, because
Kissler lacked reasonable suspicion to detain him while await-
ing the arrival of the canine unit. Nelson additionally asserts
that the district court erred when it denied his motion for
new trial.
Nelson Has Standing.
We must initially determine whether Nelson has “standing”
to file a motion to suppress challenging his detention and the
search of the rental vehicle. Nelson was driving a rental vehi-
cle, and his name was not on the rental agreement. The record
shows that the deposition of Nelson’s uncle was received in
evidence and established that Nelson had permission from his
uncle, whose name was on the rental agreement, to drive the
vehicle. We have not had occasion to directly address the ques-
tion of whether an individual who has permission to drive a
rental vehicle but is not an authorized driver under the rental
agreement has standing under the Fourth Amendment and Neb.
Const. art. I, § 7 (collectively Fourth Amendment), to challenge
a detention and search of the rental vehicle.
[3-5] To determine whether an unauthorized driver has a pri-
vacy interest in a rental vehicle, we must consider whether “the
person who claims the protection of the [Fourth] Amendment
has a legitimate expectation of privacy in the invaded place.”
Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 l. ed.
2d 387 (1978). To determine if an individual may make a
challenge under the Fourth Amendment, we must determine
whether an individual has a legitimate or justifiable expectation
of privacy. Ordinarily, two inquiries are required. First, an indi-
vidual must have exhibited an actual (subjective) expectation of
privacy, and second, the expectation must be one that society
is prepared to recognize as reasonable. State v. Smith, 279 Neb.
STATe v. NelSON 	775
Cite as 282 Neb. 767

918, 782 N.W.2d 913 (2010). Regarding a detention during a
traffic stop, we have noted that such action constitutes a seizure
of the person and that an individual traveling in an automobile
does not lose all reasonable expectation of privacy. State v.
Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
[6] Although the right to challenge a search on Fourth
Amendment grounds is generally referred to as “standing,” the
U.S. Supreme Court has clarified that the definition of that
right “is more properly placed within the purview of substan-
tive Fourth Amendment law than within that of standing.”
Rakas, 439 U.S. at 140. See Minnesota v. Carter, 525 U.S. 83,
119 S. Ct. 469, 142 l. ed. 2d 373 (1998). We have stated: “A
‘standing’ analysis in the context of search and seizure is noth-
ing more than an inquiry into whether the disputed search and
seizure has infringed an interest of the defendant in violation
of the protection afforded by the Fourth Amendment.” State
v. Konfrst, 251 Neb. 214, 224, 556 N.W.2d 250, 259 (1996).
As the Court of Appeals for the Fifth Circuit has stated, and
we tend to follow: “We [nevertheless] use the term ‘standing’
somewhat imprecisely to refer to this threshold substantive
determination.” U.S. v. Sanchez, 943 F.2d 110, 113 n.1 (1st
Cir. 1991).
In U.S. v. Thomas, 447 F.3d 1191 (9th Cir. 2006), the Court
of Appeals for the Ninth Circuit described three approaches
courts have developed to determine when an unauthorized
driver of a rental vehicle has standing to challenge a search. The
first approach is seen in the opinions from the Third, Fourth,
Fifth, and Tenth Circuits. See, U.S. v. Kennedy, 638 F.3d 159
(3d Cir. 2011); U.S. v. Wellons, 32 F.3d 117 (4th Cir. 1994);
U.S. v. Seeley, 331 F.3d 471 (5th Cir. 2003); U.S. v. Roper, 918
F.2d 885 (10th Cir. 1990). The Ninth Circuit described the first
approach by stating:
These courts have all adopted a bright-line test: An indi-
vidual not listed on the rental agreement lacks standing
to object to a search. Their cases reason that because an
unauthorized driver lacks a property or possessory inter-
est in the car, the driver does not have an expectation of
privacy in it.
Thomas, 447 F.3d at 1196-97.
776 	282 NeBRASKA RePORTS

The second approach is followed by the Courts of Appeals
for the eighth and Ninth Circuits. See, U.S. v. Best, 135
F.3d 1223 (8th Cir. 1998); Thomas, supra. The Thomas court
explained this approach by stating it is
a modification of the majority bright-line approach, and
generally 	disallows 	standing 	unless 	the 	unauthorized
driver can show he or she had the permission of the
authorized driver. . . . The eighth Circuit reasoned that
an unauthorized driver would have standing after a show-
ing of “consensual possession” of the rental car. . . .
In effect, this approach equates an unauthorized driver
of a rental car with a non-owner driver of a privately
owned car.
447 F.3d at 1197 (citations omitted).
The third approach is used by the Court of Appeals for the
Sixth Circuit, and it examines the totality of the circumstances.
U.S. v. Smith, 263 F.3d 571 (6th Cir. 2001). The Thomas
court stated:
In Smith, the Sixth Circuit noted a broad presumption
against granting unauthorized drivers standing to chal-
lenge a search. However, the court [in Smith] stated that
the “rigid [bright-line] test is inappropriate, given that
we must determine whether [the defendant] had a legiti-
mate expectation of privacy which was reasonable in
light of all the surrounding circumstances.” . . . Instead,
the court opted to consider a range of factors, including:
(1) whether the defendant had a driver’s license; (2) the
relationship between the unauthorized driver and the les-
see; (3) the driver’s ability to present rental documents;
(4) whether the driver had the lessee’s permission to use
the car; and (5) the driver’s relationship with the rental
company, and held that the defendant [in Smith] had
standing to challenge the search.
447 F.3d at 1197 (citations omitted).
Of these three approaches, we find the approach used by
the Courts of Appeals for the eighth and Ninth Circuits to
be the most compelling. The Court of Appeals for the Ninth
Circuit reached its conclusion and explained its rationale by
stating that
STATe v. NelSON 	777
Cite as 282 Neb. 767

an unauthorized driver who received permission to use a
rental car and has . . . authority over the car may chal-
lenge the search to the same extent as the authorized
renter. This approach is in accord with precedent holding
that indicia of ownership—including the right to exclude
others—coupled with possession and the permission of
the rightful owner, are sufficient grounds upon which to
find standing.
U.S. v. Thomas, 447 F.3d 1191, 1199 (9th Cir. 2006).
Our precedent in Nebraska supports the approach used in
the eighth and Ninth Circuits. We have stated that a defend-
ant may demonstrate the infringement of his own legitimate
expectation of privacy by showing that he owned the prem-
ises or that he occupied them and had dominion and control
over them based on permission from the owner. State v. Stott,
243 Neb. 967, 503 N.W.2d 822 (1993), disapproved on other
grounds, State v. Johnson, 256 Neb. 133, 589 N.W.2d 108
(1999). Thus, we have recognized standing of a guest as to
certain areas of the home, State v. Lara, 258 Neb. 996, 607
N.W.2d 487 (2000); an “occupant” in a vehicle belonging to
another, Stott, supra; and the driver of a vehicle of which he
was not the owner where a nonowner passenger gave con-
sent to search, State v. Konfrst, 251 Neb. 214, 556 N.W.2d
250 (1996). Our cases show the importance of dominion and
control and that standing is not limited to property rights
or ownership.
[7] In accordance with the eighth and Ninth Circuits, we
hold that a driver of a rental vehicle may have standing to chal-
lenge a detention or search if he or she has demonstrated that
he or she has received permission to drive the vehicle from the
individual authorized on the rental agreement.
In this case, Nelson was not the authorized driver of the
rental vehicle. However, he presented undisputed evidence
that he had received permission from his uncle to use the
vehicle, and the uncle was the authorized driver under the
rental agreement. Accordingly, Nelson had standing to chal-
lenge his detention and the search of the rental vehicle on
Fourth Amendment grounds.
778 	282 NeBRASKA RePORTS

The Initial Traffic Stop Was Proper.
[8] Nelson does not contest the propriety of the initial traffic
stop. Nor could he reasonably do so, because the undisputed
facts show that Nelson was stopped for speeding. A traffic vio-
lation, no matter how minor, creates probable cause to stop the
driver of a vehicle. State v. Howard, ante p. 352, 803 N.W.2d
450 (2011). Therefore, Kissler had probable cause to stop
Nelson’s vehicle.
Nelson’s Continued Detention Did Not Violate
His Fourth Amendment or Nebraska
Constitutional Rights.
For his first assignment of error, Nelson claims that the
denial of his first motion to suppress challenging the propriety
of his continued detention while he and Kissler awaited the
drug detection dog was error. We find no merit to this assign-
ment of error.
[9] Once a vehicle is lawfully stopped, a law enforce-
ment officer may conduct an investigation reasonably related
in scope to the circumstances that justified the traffic stop.
Howard, supra. This investigation may include asking the
driver for an operator’s license and registration, requesting that
the driver sit in the patrol car, and asking the driver about the
purpose and destination of his or her travel. Id. Also, the officer
may run a computer check to determine whether the vehicle
involved in the stop has been stolen and whether there are any
outstanding warrants for any of its occupants. Id.
Nelson argues that after Kissler concluded these investiga-
tive procedures and issued a warning citation to him, Kissler
lacked legal authority to detain the vehicle and Nelson pending
the arrival of the canine unit. He claims that given the facts
as found by the district court, his continued detention was
improper, and that his first motion to suppress had merit. 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. State v. Borst, 281 Neb. 217, 795
N.W.2d 262 (2011). Regarding historical facts, we review the
trial court’s findings for clear error. Id. But whether those facts
trigger or violate Fourth Amendment protections is a question
STATe v. NelSON 	779
Cite as 282 Neb. 767

of law that we review independently of the trial court’s deter-
mination. Id.
[10-13] In order to expand the scope of a traffic stop and
continue to detain the motorist for the time necessary to
deploy a drug detection dog, an officer must have a reasonable,
articulable suspicion that a person in the vehicle is involved in
criminal activity beyond that which initially justified the stop.
Howard, supra. Reasonable suspicion entails some minimal
level of objective justification for detention, something more
than an inchoate and unparticularized hunch, but less than the
level of suspicion required for probable cause. Id. Whether a
police officer has a reasonable suspicion based on sufficient
articulable facts depends on the totality of the circumstances.
Id. Courts must determine whether reasonable suspicion exists
on a case-by-case basis. Id.
[14] In determining whether reasonable suspicion exists, a
court may consider, as part of the totality of the circumstances,
the officer’s knowledge of a person’s drug-related criminal
history. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57
(2008). Moreover, factors that would independently be consist-
ent with innocent activities may nonetheless amount to reason-
able suspicion when considered collectively. Id. See Howard,
supra. For example, evidence that a motorist is returning to
his or her home state in a vehicle rented from another state is
not inherently indicative of drug trafficking when the officer
has no reason to believe the motorist’s explanation is untrue.
Draganescu, supra. But a court may nonetheless consider this
factor when combined with other indicia that drug activity may
be occurring, particularly the occupant’s contradictory answers
regarding his or her travel purpose and plans or an occupant’s
previous drug-related history. See id. A court may consider,
along with other factors, evidence that the occupant exhibited
nervousness. Id.
In this case, the district court considering Nelson’s first
motion to suppress made findings of fact with which the single
judge of the Court of Appeals on the State’s appeal under
§ 29-824 essentially agreed. Thus, we refer to the district
court’s findings. In its order, the district court found that Nelson
had flown to Sacramento, California, and was driving a rental
780 	282 NeBRASKA RePORTS

vehicle home to Kansas City, Missouri; that Nelson’s name was
not listed as an authorized driver on the rental agreement; and
that Nelson was nervous. The district court noted that Nelson’s
excursion was a 3-day trip. The district court found that many
people, including drug traffickers, use I-80 to transport their
goods; drug traffickers have been known to regularly use rental
vehicles to transport illegal drugs in order to avoid the risk of
forfeiture of their own vehicles; drug traffickers are known to
fly from their base location to pick up their illegal drugs else-
where; and drug traffickers sometimes rent a vehicle to return
with the illegal drugs.
The district court also found that Nelson had made various
statements while waiting in the patrol car, including asking
why Kissler wore combat-type boots, asking whether he could
open the car door and put his feet outside of the patrol car,
asking if he could return to his vehicle to get his shoes, com-
menting on Kissler’s weapons in the back of the patrol car,
and noting the barren area and inquiring about the existence of
backup officers for Kissler. The district court noted that Nelson
did not mention his prior arson conviction when asked about
his prior arrests and that Kissler knew that Nelson was a “posi-
tive Triple I,” meaning that the driver had a prior arrest. Kissler
testified that a “positive Triple I, 1040” means a criminal his-
tory with a drug-related arrest.
On appeal, we examine each of these findings in our inde-
pendent review of the law. See State v. Borst, 281 Neb. 217,
795 N.W.2d 262 (2011). We are mindful of the rule that when
a determination is made to detain a person during a traffic stop,
even where each factor considered independently is consistent
with innocent activities, those same factors may amount to
reasonable suspicion when considered collectively. State v.
Howard, ante p. 352, 803 N.W.2d 450 (2011). We have consid-
ered the facts and the totality of these circumstances. Among
other factors, we note the short duration of Nelson’s trip; the
fact that he flew out and drove back; the fact that his name
was not on the rental agreement; the fact that he had a prior
criminal history, including a drug-related arrest which he failed
to acknowledge; and the fact that he was extremely nervous.
We also note Kissler’s testimony as a trained officer regarding
STATe v. NelSON 	781
Cite as 282 Neb. 767

Nelson’s conduct, the significance thereof, and questions which
suggested a risk of flight. We have considered each factor
and conclude that these facts collectively, when viewed from
the standpoint of an objectively reasonable law enforcement
officer, created a reasonable, articulable suspicion that Nelson
was involved in unlawful activity justifying Nelson’s contin-
ued detention to await the canine unit. We reject Nelson’s first
assignment of error claiming that his first motion to suppress
challenging his detention was wrongly overruled.
The District Court Did Not Err When It Denied
Nelson’s Motion for New Trial.
For his second and third assignments of error, Nelson claims
that the district court erred when it denied his motion for new
trial, because there was newly discovered evidence; that the
State destroyed evidence material for his defense before trial
and that thus, he was deprived of corroboration of his testi-
mony; and that the foregoing violated his due process rights
to a complete defense and a fair trial. As we read Nelson’s
argument, he asserts that after the trial, he learned of two
Styrofoam cups and cigarette butts that had been in the vehicle
and were destroyed or lost by the officers. evidently, Nelson
believes that these items would bear the fingerprints of the
two men to whom he gave a ride during his trip and that these
items were exculpatory in nature. essentially, the district court
concluded by reference to Arizona v. Youngblood, 488 U.S.
51, 109 S. Ct. 333, 102 l. e. 2d 281 (1988), that Nelson had
not demonstrated that the officers acted in bad faith when the
material was destroyed or went missing, that Nelson had not
shown that the material would have been exculpatory, and that
there was not sufficient evidence presented to find that Nelson
was unable to obtain comparable evidence by other reasonably
available means. Accordingly, the district court denied Nelson’s
motion for new trial.
[15] A new trial can be granted on grounds materially affect-
ing the substantial rights of the defendant, including “newly
discovered evidence material for the defendant which he or she
could not with reasonable diligence have discovered and pro-
duced at the trial.” See Neb. Rev. Stat. § 29-2101(5) (Reissue
782 	282 NeBRASKA RePORTS

2008). A criminal defendant who seeks a new trial because of
newly discovered evidence must show that if the evidence had
been admitted at the former trial, it would probably have pro-
duced a substantially different result. State v. Dunster, 270 Neb.
773, 707 N.W.2d 412 (2005). We review the ruling denying a
motion for new trial in a criminal case for an abuse of discre-
tion. State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011).
We determine that the district court did not abuse its discretion
when it denied Nelson’s motion for new trial and therefore
reject Nelson’s second and third assignments of error.
The essence of Nelson’s motion for new trial and his second
and third assignments of error is (1) that the existence of the
Styrofoam cups and cigarette butts and their loss was not dis-
covered until after trial, and these items form newly discovered
evidence, and (2) that the unavailability of these items deprived
him of valuable corroborative evidence and denied him a fair
trial. We recently considered the merits of a similar challenge
to the denial of a new trial based on newly discovered evidence
and concluded that the evidence was not newly discovered
within the meaning of § 29-2101(5) and that even if the evi-
dence were newly discovered, it was not exculpatory. Collins,
supra. The same analysis applies in this case.
The record shows that a photograph, exhibit 83, was received
in evidence during the State’s case. The two Styrofoam cups,
one with cigarette butts, are pictured in exhibit 83. The ser-
geant who inventoried the vehicle testified about exhibit 83,
and he acknowledged the existence of these items shown in
the photograph. Upon cross-examination by Nelson’s counsel,
he stated that the practice normally was to retain items of
monetary value, but not trash; that these items would be con-
sidered trash; and that he did not know what had happened to
these items.
During his testimony, Nelson was shown a photograph,
exhibit 86, which displays numerous items inventoried and
retained by the authorities. Nelson testified that the “Kool”
brand cigarettes pictured in exhibit 86 belonged to him, but
that a package of “Grand” brand cigarettes, a cardboard pack
of matches, and a package of crackers did not belong to him.
Nelson did not attempt to obtain fingerprints or otherwise test
STATe v. NelSON 	783
Cite as 282 Neb. 767

the “Grand” brand cigarette package, the matches, or the pack-
age of crackers. Nelson testified that he had given a ride to
two men whom he picked up in Nevada and left in Utah. The
theory of the defense was that these men placed the cocaine
in Nelson’s duffelbag before they departed in Utah and that
Nelson was unaware of the cocaine. Although the closing argu-
ments are not in the record, the district court’s order which
denied Nelson’s motion for new trial notes that Nelson’s coun-
sel “based a fair amount of his closing argument on the loss of
this evidence,” which we understand to mean the loss of the
two Styrofoam cups and cigarette butts.
The two Styrofoam cups and cigarette butts are not newly
discovered evidence under § 29-2101(5). The existence of the
two Styrofoam cups and cigarette butts could have been dis-
covered before trial, and in any event, their existence was, in
fact, produced at trial and shown to the jury. They are pictured
in exhibit 83. The record shows that Nelson conducted pre-
trial discovery. Further, Nelson testified that numerous items
in exhibit 86 did not belong to him and that this information,
if believed, was therefore graphic corroboration of Nelson’s
claim that two men rode with him for a distance.
even if the existence of this evidence was “newly discov-
ered,” the fact of its loss is not newly discovered, the evidence
is not exculpatory, and its loss or destruction did not deprive
Nelson of due process or a fair trial. The existence of the two
travelers and their potential for detritus was made well known
to the jury, inter alia, through the testimony of the State Patrol
investigator and Nelson himself.
[16-19] We have previously considered a claim that the
State’s failure to preserve evidence denied a defendant of due
process. In State v. Davlin, 263 Neb. 283, 299-300, 639 N.W.2d
631, 647 (2002), we stated:
[The defendant] argues that the charges against him
should have been dismissed because his right to due proc-
ess under the state and federal Constitutions was violated
by the State’s failure to preserve relevant evidence. Because
the due process requirements of Nebraska’s Constitution
are similar to those of the federal Constitution, we apply
the same analysis to [the defendant’s] state and federal
784 	282 NeBRASKA RePORTS

constitutional claims. See, State v. Hookstra, [263 Neb.]
116, 638 N.W.2d 829 (2002); Marshall v. Wimes, 261
Neb. 846, 626 N.W.2d 229 (2001).
Under certain circumstances, the Due Process Clause
of the 14th Amendment may require that the State pre-
serve potentially exculpatory evidence on behalf of a
defendant. State v. Castor, 257 Neb. 572, 599 N.W.2d 201
(1999), citing California v. Trombetta, 467 U.S. 479, 104
S. Ct. 2528, 81 l. ed. 2d 413 (1984). It is uncontroverted,
however, that “‘unless a criminal defendant can show bad
faith on the part of the police, failure to preserve poten-
tially useful evidence does not constitute a denial of due
process of law.’” Castor, 257 Neb. at 590, 599 N.W.2d
at 214, quoting Arizona v. Youngblood, 488 U.S. 51, 109
S. Ct. 333, 102 l. ed. 2d 281 (1988). See, also, State v.
Tanner, 233 Neb. 893, 448 N.W.2d 586 (1989). A trial
court’s conclusion that the government did not act in
bad faith in destroying potentially useful evidence, so as
to deny the defendant due process, is reviewed for clear
error. See, U.S. v. Gomez, 191 F.3d 1214 (10th Cir. 1999);
U.S. v. Weise, 89 F.3d 502 (8th Cir. 1996).
[20,21] Since our opinion in Davlin, the U.S. Supreme Court
has made clear that because of its obvious importance, where
“‘material exculpatory’” evidence is destroyed, bad faith is not
necessary. See Illinois v. Fisher, 540 U.S. 544, 549, 124 S. Ct.
1200, 157 l. ed. 2d 1060 (2004). However, in the present case,
where the evidence is only “‘potentially useful,’” a showing of
bad faith under Youngblood is required. See Fisher, 540 U.S.
at 549. Furthermore, in the present case, it cannot be said that
the Styrofoam cups and cigarette butts are irreplaceable under
California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 l.
ed. 2d 413 (1984), because the potential for fingerprints show-
ing the presence of two other persons was possible had the
“Grand” brand cigarettes, matches, and crackers—which were
retained—been tested.
In analyzing the motion for new trial based on the failure
of the State to preserve evidence, the district court consid-
ered three factors using the standard set forth in Arizona v.
Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 l. ed. 2d 281
STATe v. NelSON 	785
Cite as 282 Neb. 767

(1988): (1) Did the State act in bad faith in failing to preserve
the evidence, (2) was the exculpatory value of the evidence
apparent prior to its destruction, and (3) was the nature of the
evidence such that the defendant would be unable to obtain
comparable evidence by other reasonably available means.
The district court essentially found that there was no bad faith,
that the items were not exculpatory, and that Nelson could
obtain comparable evidence. These findings were not clearly
erroneous.
The record shows that the missing evidence consisting of
trash was not preserved or retained as a matter of routine pro-
cedure. While the procedure may be unwise, nothing in the
record shows bad faith by the State. The Styrofoam cups and
cigarette butts are commonplace, Nelson was a smoker, and the
exculpatory nature of these items was not apparent. An inter-
view of Nelson was played at the trial, and Nelson again stated
that during his trip, he gave a ride to two men from Nevada to
Utah. This evidence is comparable to the evidence that may
have been obtained if the Styrofoam cups and cigarette butts
were not lost or destroyed; that is, the lost evidence might have
shown evidence that another individual or individuals handled
these materials which were found in the rental vehicle. The
district court’s findings were not clearly erroneous, and it did
not err when it denied Nelson’s motion for new trial. We reject
Nelson’s second and third assignments of error.
CONClUSION
Because Nelson had permission from the driver who was
authorized under the rental agreement, Nelson had standing to
assert his Fourth Amendment claims. The detention of Nelson
and the rental vehicle after the traffic stop was not unreason-
able. The denial of Nelson’s first motion to suppress was not
error. The district court did not err when it denied Nelson’s
motion for new trial. We affirm.
affirmeD.
WrigHt, J., not participating in the decision.
786 	282 NeBRASKA RePORTS