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09/20/85 STATE NEBRASKA v. MICHAEL J. HINCHEY

September 20, 1985

STATE OF NEBRASKA, APPELLEE,
v.
MICHAEL J. HINCHEY, APPELLANT



Appeal from the District Court for Sarpy County: George A. Thompson, Judge.

Krivosha, C.j., Boslaugh, White, Hastings, Caporale, Shanahan, and Grant, JJ.

SYLLABUS BY THE COURT

1. Constitutional Law: Search and Seizure. Although there are some recognized exceptions which may justify a warrantless search, as a general rule, searches and seizures inside a home without a warrant are presumptively unreasonable and in violation of an individual's rights guaranteed under the fourth amendment to the U.S. Constitution.

2. Constitutional Law: Search and Seizure. In terms that apply equally to seizures of property and to seizures of persons, the fourth amendment to the U.S. Constitution has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

3. Constitutional Law: Search and Seizure. One governing principle, justified by history and by current experience, has consistently been followed: Except in certain carefully defined classes of cases, a search of private property without proper consent is "unreasonable" unless it has been authorized by a valid search warrant.

4. Judgments: Debtors and Creditors: Property: Warrants. The procedure to be followed to obtain an "execution warrant" should be similar to that prescribed by Neb. Rev. Stat. §§ 29-830 to 29-835 (Reissue 1979), which provide for the issuance of "inspection warrants." Such an execution warrant should be issued only by a Judge of a court of record upon reasonable cause supported by affidavit setting out that a writ of execution has been issued and returned unsatisfied in whole or in part and that the affiant has reason to believe that there is property subject to execution in the possession of the debtor kept and maintained within the debtor's residence, not otherwise available for execution, describing the property sought and the place and purpose of the execution. If the Judge is satisfied that there is reasonable cause to believe that there is property of the debtor within the debtor's possession and that other property is not available for levy and execution, the Judge may then issue an execution warrant authorizing the officer to enter the premises and levy upon property subject to execution.

The opinion of the court was delivered by: Krivosha

This appeal presents to the court a case of first impression and concerns the question as to when and under what circumstances a judicial officer, armed only with a writ of execution issued pursuant to the provisions of Neb. Rev. Stat. § 25-1501 (Reissue 1979), may enter a person's dwelling without violating the individual's right to be free from unreasonable searches and seizures under the fourth and fourteenth amendments to the U.S. Constitution.

The evidence discloses that on January 19, 1984, Deputy Lloyd Glesmann was on duty with the Sarpy County, Nebraska, sheriff's office. At 2 p.m. Deputy Glesmann, assigned to the process division, was directed to apartment 11 at 818 Janesview in Papillion, Nebraska, for the purpose of attempting to serve a writ of execution on the appellant, Michael J. Hinchey. The writ of execution had been issued by the clerk of the county court for the purpose of attempting to satisfy a judgment obtained by another against Hinchey in the small claims court in the amount of $208.40. Under the provisions of Neb. Rev. Stat. § 25-1502 (Reissue 1979), executions are of two kinds: (1) against the personal property of the judgment debtor, wherever found; and (2) for the delivery of the possession of real property with damages for withholding such property. The writ of execution which is issued by the clerk of the court directs the sheriff to seek and take possession of property sufficient to satisfy the judgment. See Neb. Rev. Stat. § 25-1516 (Reissue 1979). The sheriff or his deputy must first seek to satisfy the judgment by levying execution upon personal property, and if the value of the personal property is insufficient to satisfy the debt, the sheriff may then levy on real property. See, Runge v. Brown, 29 Neb. 116, 45 N.W. 271 (1890); Neb. Rev. Stat. § 25-1518 (Reissue 1979).

Upon arriving at the Hinchey home Deputy Glesmann knocked on the door of the apartment, and after a brief delay Hinchey answered the door. The deputy identified himself to Hinchey, stated his purpose, and asked for permission to enter the Hinchey premises. Hinchey refused. The officer explained to Hinchey that arrangements had to be made for payment of the judgment. After a few minutes and four or five additional requests for admission by the deputy, to which Hinchey each time said "No," Hinchey finally agreed to let the deputy into his home. Before doing so, however, he said, "Wait a second, let me put something away." The deputy testified that he clearly understood that Hinchey wanted him to wait in the hall and did not want him to come into the apartment until Hinchey returned to the door. Hinchey walked back into the apartment. At this time the front door of the apartment was partially open, and the deputy proceeded to follow Hinchey into the apartment. Once inside the apartment, the deputy observed a jar which appeared to contain marijuana. Hinchey was immediately instructed to sit on the couch and not to move and was subsequently arrested by the deputy for possession of drug paraphernalia in violation of Neb. Rev. Stat. § 28-441 (Cum. Supp. 1984) and possession of marijuana, less than 1 ounce, in violation of Neb. Rev. Stat. § 28-416(6) (Cum. Supp. 1984).

Prior to trial Hinchey filed two motions to suppress the evidence. The first motion was in effect a claim that Hinchey's rights guaranteed to him under the fourth and fourteenth amendments to the U.S. Constitution had been violated. The second motion alleged that the officer had failed to give to Hinchey his Miranda warnings, and therefore any statements or evidence obtained after he was arrested was in violation of Hinchey's constitutional rights guaranteed to him under the fifth, sixth, and fourteenth amendments to the U.S. Constitution.

The county court found that all evidence obtained by the officer, including those items which were in plain view and seen prior to the time that Hinchey was placed under arrest, was admissible into evidence but that all statements or evidence obtained after the officer ordered Hinchey to sit on the couch and placed him under arrest but did not give him his Miranda warnings was inadmissible. Following trial to the county court, the county court found Hinchey guilty of count II, possession of marijuana, less than 1 ounce, and dismissed count I, possession of drug paraphernalia. Hinchey was sentenced to pay a fine of $100 plus costs and ordered to take a drug education course. Upon appeal to the district court for Sarpy County, Nebraska, the district court affirmed Hinchey's conviction and sentence. The district court entered a detailed order in which it sought to distinguish the case of G. M. Leasing Corp. v. United States, 429 U.S. 338, 97 S. Ct. 619, 50 L. Ed. 2d 530 (1977), and further relied upon the U.S. Supreme Court decision in Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978). Specifically, the district court relied on § 25-1518, which directs an officer to whom a writ of execution is delivered to proceed immediately to levy upon goods and chattels. We believe, however, that the decision of the district court was in error, and therefore we must reverse and remand for a new trial.

Although there are some recognized exceptions which may justify a warrantless search, see, California v. Carney, U.S. , 105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985) (motor home); United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982) (automobile); New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981) (automobile); South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976) (automobile inventory); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) (consent); State v. Hert, ante p. 447, 370 N.W.2d 166 (1985) (exigent circumstances); and State v. Billups, 209 Neb. 737, 311 N.W.2d 512 (1981) (consent), as a general rule, searches and seizures inside a home without a warrant are presumptively unreasonable and in violation of an individual's rights guaranteed under the fourth amendment to the U.S. Constitution. See, Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), reh'g denied 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120; State v. Weible, 211 Neb. 174, 317 N.W.2d 920 (1982). While Payton v. New York, supra, concerned itself with a warrantless arrest, the language of the opinion makes it clear that "he simple language of the Amendment applies equally to seizures of persons and to seizures of property." Id. at 585. The Payton Court went on to state at 585-86:

Our analysis in this case may therefore properly commence with rules that have been well established in Fourth Amendment litigation involving tangible items. As the Court reiterated just a few years ago, the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v United States District Court, 407 U. S. 297, 313 [92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972)]. And we have long adhered to the view that the warrant procedure minimizes the danger of needless intrusions of that sort.

The U.S. Supreme Court in Payton, supra at 590, continued: "In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant."

Neither party to this action argues that the entry was consensual. The State, in its brief, concedes that "appellant did not voluntarily consent to the deputy's entry within the consent to search exception to the warrant requirement." In this ...


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