8th Circuit says Nebraska search did not violate rights

A federal appeals court has found that an Omaha police officer did not violate a Pennsylvania man’s constitutional rights by detaining him several minutes after the man was given a warning, then searching his truck.

The ruling Wednesday by the three-judge panel of the 8th U.S. Circuit Court of Appeals reversed a lower court’s ruling last year that threw out the search of Brent Englehart’s truck on Interstate 80 in Omaha and the evidence gathered from it. That evidence included a small amount of marijuana and more than $350,000 in cash.

The lower court based its finding on a 2015 U.S. Supreme Court ruling in another Nebraska case that said police may not extend an ordinary traffic stop to seek evidence of unrelated crimes, even if only for a few minutes.

But the appeals panel said Wednesday that the 2014 stop happened before that ruling was issued, and that the officer had rightly based his detention of Englehart an 8th Circuit precedent that says detaining a person for less than 10 minutes — even without probable cause — does not amount to unreasonable seizure.

“The decision is completely contrary to settled law in the United States, for starters,” said William Gallup, the Omaha attorney for Englehart, of Harrisburg, Pennsylvania.

Gallup pointed to other oddities in the case he said should have led the appeals court to uphold tossing the search. For starters, prosecutors in lower court hearings relied heavily on the recorded interaction between the police officer and Englehart inside the police cruiser, which they said showed Englehart making incriminating statements.

When the video was played in court, no audio could be heard of the conversation. A police officer testified that the audio did not record because the cruiser’s audio recorder wasn’t working and the officer’s microphone had not been charged. Prosecutors instead submitted police testimony and reports of the exchange.

But the recording submitted by prosecutors on appeal did include audio and was “viewed and documented by this court,” the 8th Circuit panel wrote.

That amounts to introducing new evidence into an appeal, which isn’t allowed, Gallup said.

“In my 50-plus years as a criminal defense attorney, I’ve never seen anything like this,” Gallup said.

But Gallup said it would be futile to appeal the 8th Circuit’s decision.

Court records say Englehart told police that he obtained the money through years of selling marijuana. Gallup said police did nothing to corroborate those statements, and therefore don’t have enough evidence for a case. Based on that, Gallup said he plans to file a motion seeking to dismiss the indictment against Englehart.

John Higgins with the U.S. Attorney’s Office on Thursday declined to comment, saying prosecutors generally don’t comment on pending cases.