Case summary: Omaha dentist appeals license revocation. The Nebraska Supreme Court in 2001 had disciplined the dentist who was also a member of the Bar for narcotics abuse. Nebraska Judicial Branch. S-07-0588, Shaun O. Parker, D.D.S., Appellant v. State of Nebraska, Appellee Lancaster County, Judge Jeffre CheuvrontAttorneys: Jerry Katskee (Appellant); Jon Bruning and Lisa Anderson (Attorney General’s Office). Civil: Revocation of professional license Proceedings Below: Parker filed a petition for review with the district court seeking to review the decision by the Chief Medical Officer/Director (CMO) for the Department of Health and Human Services Regulation and Licensure (DHHS), which decision revoked his license to practice dentistry. The district court affirmed the agency's findings of fact, conclusions of law, and order, which order revoked Parker's license to practice dentistry in Nebraska. Issues: On appeal, Parker argues: (1) Whether Parker was denied procedural due process by DHHS in the crucial stages of the proceedings against him, to wit: (a) the investigation of the complaint derived from a confidential informant; (b) the presence of the attorney general at the closed session investigation; (c) the subsequent recommendations by the CMO; (2) whether the punishment meted out to Parker, viz., the revocation of license to practice his profession, fit the nature of the alleged infraction; (3) whether the district court erred in not considering the impact of the failure of the hearing officer to consider the arguments of Parker on constitutional issues by remanding the case to the CMO for further proceedings as permitted by Neb. Rev. Stat. § 84-917(5)(b)(i); (4) whether the district court erred in its order by holding that its de novo review presented clear and convincing evidence that Parker engaged in unprofessional conduct and that the discipline imposed was appropriate under the circumstances; (5) whether the entire administrative procedure is flawed and grants arbitrary and dictatorial powers to the CMO; (6) whether the findings of fact and conclusions of law of the CMO were arbitrary, capricious, and unreasonable; and (7) whether the district court erred in its order by not finding the administrative findings of fact and conclusions of law were arbitrary, capricious, and unreasonable.

Nebraska Supreme Court retains "reasonable suspicion" test and rejects Eighth Circuit's "de minimis" test for detaining suspects the police stop for traffic violations longer for conducting Illinois v Caballes drug dog sweeps, but if it wanted to make it stick it should have ruled on state law. State v. Louthan, S-07-593, 275 Neb. 101 Norfolk area police and state patrolmen stopped a driver whom they suspected of selling methamphetamine for expired plates and making an improper turn. After the police officer completed his traffic stop he requested the suspect remain to have a drug dog sniff the vehicle. After two sweeps the dog detected methamphetamine and the police found the narcotics in the defendant's wallet. The sniff, search and recovery of the drugs took an additional 12 minutes after the end of the traffic stop. Nebraska Supreme Court affirms search finding that the police had reasonable suspicion to detain the suspect beyond the time police needed to complete the traffic stop. a suspect for further drug dog surveillance after completing a traffic stop. While the Eighth Circuit Court of Appeals in similar cases allowed very brief "deminimis" detentions after completed traffic stops (See eg US v Alexander 05-3378 (2006) {four minutes was a de minimis detention}), the Nebraska Supreme Court holds that the United States Supreme Court ruling in Illinois v Caballes requires "reasonable suspicion" to detain suspects as soon as the traffic stop concludes. "there is a constitutionally significant line of demarcation between a routine traffic stop and one in which a dog sniff is conducted after the investigative procedures incident to the traffic stop have been completed.We agree that “the threshold questionis whether the officer had an appropriate basis upon which to detain the citizen” after concluding the routine traffic stop. We conclude that the “reasonable suspicion” test is the appropriate, necessary, and correct standard for resolving that question."

Nebraska Supreme Court affirms defendant's conviction for manufacturing a controlled substance, in this case home-grown marijuana. The Supreme Court rejects defendant's appeal that his marijuana growing qualified for the "personal use" exception in 28-401(14). Police officers' search warrant affidavit did not state stale information even though it restated informants' statements from one month earlier that the defendant was growing marijuana in his home. The court also refused to suppress defendant's incriminating statements he made after a Nebraska State Patrolman arrested the defendant at a gas station for driving on a suspended license as the police were starting to search his home. State v. Bossow, S-07-099, 274 Neb. 836 The Nebraska Supreme Court fires up the cloudy issue in 28-401(14) of how "personal use" differs from manufacturing a controlled substance. The Supreme Court finds the statute clearly included growing plants that produce controlled substances and personal use covered rolling the grass and toking up. "The plain meaning of the “personal use exception” is to avoid finding an individual liable for the felony of manufacturing a controlled substance when that individual is already in possession of the controlled substance and is simply making it ready for use, such as rolling marijuana into cigarettes for smoking or combining it with other ingredients for use." The Supreme Court also rejected the defendant's claim the information in the search warrant affidavit was stale because it contained the informants' statements that when they visited the defendant's home over one month prior marijuana was growing there. Since the growing cycle of the plant would cover that time period and the plants were not likely to disappear, the search warrant affidavit information was not stale. "Growing marijuana is not an isolated activity where the evidence supporting probable cause tends to disappear quickly.Rather, growing marijuana is a protracted process, for which there is a much greater probability that the evidence related to the crime would remain on the premises for some time. Asindicated in (State partolman's) affidavit, marijuana plants can take up to 22 weeks to mature and can grow in excess of 8 feet tall."

Eighth Circuit Court of Appeals affirms "slight" downward deviation from sentencing guidelines of 180 months prison plus 6 years supervised for methamphetamine production 21 U.S.C. § 841(a)(1), (b)(1)(C). Citing Gall v. United States, No. 06-7949 and 18 U.S.C. § 3553(a)(1), (4)(A), the Eighth Circuit finds no abuse of discretion from the sentence outside the guidelines range as the trial court considered all appropriate factors while not considering inappropriate factors.063488U.pdf 12/28/2007 USA v. Robert Jon Lucas U.S. Court of Appeals Case No: 06-3488 U.S. District Court for the Southern District of Iowa - Des Moines [UNPUBLISHED] [Per Curiam, with Murphy, Smith, and Shepherd, Circuit Judges]