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State v. Clark

Court of Appeals of Nebraska

December 31, 2013

State of Nebraska, appellee,
v.
Aaron J. Clark, appellant.

Page 152

Appeal from the District Court for Douglas County: W. RUSSELL BOWIE III, Judge.

Affirmed.

Thomas C. Riley, Douglas County Public Defender, and Leslie E. Cavanaugh for appellant.

Jon Bruning, Attorney General, and Carrie A. Thober for appellee.

Inbody, Chief Judge, and Irwin and Moore, Judges.

Syllabus

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 finding for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.

2. Trial: Joinder: Appeal and Error. A trial court's ruling on a motion for consolidation of prosecutions properly joinable

Page 153

will not be disturbed on appeal absent an abuse of discretion.

3. Trial: Joinder: Proof: Appeal and Error. The burden is on the party challenging a joint trial to demonstrate how and in what manner he or she was prejudiced.

4. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution protect individuals against unreasonable searches and seizures by the government.

5. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution do not protect citizens from all governmental intrusion, but only from unreasonable intrusions.

6. Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions, which must be strictly confined by their justifications.

[21 Neb.App. 582] 7. Warrantless Searches: Probable Cause. One of the exceptions to warrantless searches and seizures is a search or seizure supported by probable cause.

8. Criminal Law: Search and Seizure: Probable Cause: Police Officers and Sheriffs: Motor Vehicles. The odor of marijuana emanating from a vehicle provides probable cause to search the vehicle and arrest the occupants where there is sufficient foundation as to the expertise of the officer.

9. Trial: Joinder. There is no constitutional right to a separate trial. The right is statutory and depends upon a showing that prejudice will result from a joint trial.

10. Trial: Joinder: Proof. The burden is on the party challenging a joint trial to demonstrate how and in what manner he or she was prejudiced.

11. Trial: Joinder: Indictments and Informations. The propriety of a joint trial involves two questions: whether the consolidation is proper because the defendants could have been joined in the same indictment or information, and whether there was a right to severance because the defendants or the State would be prejudiced by an otherwise proper consolidation of the prosecutions for trial.

12. Trial: Joinder. Consolidation is proper if the offenses are part of a factually related transaction or series of events in which ...


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