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City of Beatrice v. Meints

Court of Appeals of Nebraska

March 11, 2014

CITY OF BEATRICE, STATE OF NEBRASKA, APPELLEE,
v.
DANIEL A. MEINTS, APPELLANT

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Appeals from the District Court for Gage County, DANIEL E. BRYAN, JR., Judge, on appeal thereto from the County Court for Gage County, STEVEN B. TIMM, Judge.

Terry K. Barber, of Barber & Barber, P.C., L.L.O., for appellant.

Gregory A. Butcher, Beatrice City Attorney, for appellee.

MOORE, PIRTLE, and BISHOP, Judges.

OPINION

Page 89

[21 Neb.App. 807] Pirtle, Judge.

INTRODUCTION

Daniel A. Meints appeals the order of the district court for Gage County affirming in part and reversing in part an order of the Gage County Court.

BACKGROUND

Meints was charged on June 21, 2011, with 12 separate counts of violating Beatrice City Code § 16-623 (2002) on 25 separate dates in the months of May and June 2011. On September 19, Meints filed a " corrected" motion to suppress evidence, and the matter was heard in the county court for Gage County on October 3. All matters were consolidated for the purpose of the hearing.

Steve Printy, a code enforcement officer for the City of Beatrice, testified. One of his job requirements is to look for or monitor unregistered motor vehicles. Printy testified that on March 15, 2011, he observed Meints' Beatrice property from the public street. He found motor vehicles with expired license plates, motor vehicles with no license plates, and motor vehicles whose engines, wheels, or parts had been removed, altered, damaged, or otherwise allowed to deteriorate so that the motor vehicle was not capable of being driven on its own power. He did not observe a residence, fencing, or closed buildings on March 15. He took pictures of the property from the public street, the adjacent alley, and the adjacent property not owned by Meints. Printy did not enter Meints' property and did not seize any objects or evidence. Printy repeated this process on 15 separate dates between May 23 and June 17. Printy testified that the purpose for the visits was to observe the property and reinspect for junk or unlicensed motor vehicles.

Joe McCormick of the Beatrice Police Department testified that on March 15, 2011, he was dispatched to Meints' [21 Neb.App. 808] Beatrice property and observed motor vehicles with expired license plates, vehicles with no license plates, and vehicles in an inoperable condition. McCormick testified he made these observations from the public street and did not observe a residence, fencing, closed buildings, or " no trespassing" signs. McCormick testified that he believed Meints was in violation of the Beatrice City Code regarding unregistered motor vehicles and that he had probable cause to enter the property. He entered the property, took photographs of the motor vehicles at issue, and recorded vehicle identification numbers (VIN numbers). McCormick did not enter any vehicles, open any car doors, enter any structures, move any items, or seize any objects

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while obtaining VIN numbers and taking photographs.

McCormick returned to Meints' Beatrice property on May 23, 2011, and made similar observations. He testified that the condition of the property was the same except that there was a " no trespassing" sign attached to a tree. Meints was present and informed McCormick he did not want him on his property. On that day also, McCormick believed Meints was in violation of the city code and he had probable cause to enter. He entered the property to take photographs and record VIN numbers to determine whether there were violations of the city code. Again, McCormick did not enter any vehicles, open any car doors, enter any structures, move any items, or seize any objects while obtaining VIN numbers and taking photographs. McCormick issued a citation to Meints for violations on May 23 and subsequently repeated this process, with the same observations for probable cause and further citations issued, on 10 additional dates between May 23 and June 16.

Meints cross-examined Printy and McCormick and offered evidence, including a copy of a discovery response by Meints containing McCormick's police reports from May 15 to 23, 2011, photographs of the motor vehicles in question, and registration printouts for the vehicles based upon VIN numbers. The trial court overruled Meints' motion to suppress after the submission of briefs by the parties.

[21 Neb.App. 809] On January 18, 2012, Meints filed a " Motion for Leave to Withdraw Plea," a " Motion to Quash," and a " Plea in Bar," 2 days prior to trial. The trial court overruled the motion for leave to withdraw on January 20, noting Meints had ample opportunity to raise the issue prior to trial.

At trial on January 20, 2012, McCormick and Printy both testified, as did several other officers. McCormick testified that on March 15, 2011, he was dispatched to Meints' Beatrice property and there witnessed vehicles with expired or no license plates. He believed that he had probable cause to obtain VIN numbers which were in plain view, and he ran those numbers through the " NCJIS" computer system of " Beatrice communications" to review Department of Motor Vehicles records. The court received an exhibit which contained an image log and photographs taken by McCormick on March 15. McCormick returned to the property on May 23, 24, and 27 through 29 and June 6, 7, 10 through 12, and 16 to inspect the property, take photographs, and record VIN numbers of the 10 vehicles in continual violation of the city code.

Printy testified he observed the same 10 vehicles in violation on May 23 through 27 and 31, 2011, as well as June 3, 6 through 10, and 15 through 17. Two other officers made similar observations on June 8 and 9 and on May 25, 26, 30, and 31, as well as June 3, 4, 13, and 14, respectively.

On March 30, 2012, the trial court found Meints guilty on all counts across all dates and overruled Meints' motion to quash and plea in bar. Meints appealed this matter to the district court for Gage County on May 16. The matter was heard in the district court on September 6. Evidence was adduced, exhibits were offered and received, and arguments were submitted by brief. On October 19, the district court affirmed the trial court's decisions on counts I through X across all 25 dates. The district court reversed the trial court's findings of guilt as to counts XI and XII across all 25 dates and ordered that the case be remanded to the county court with directions to dismiss on those latter two counts. Meints appealed the decision of the district court on November 19.

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[21 Neb.App. 810] The 25 cases were consolidated at trial and on appeal to the district court. Cases Nos. A-12-1083 through A-12-1107 are also consolidated for purposes of this appeal.

ASSIGNMENTS OF ERROR

Meints asserts the court erred in overruling Meints' suppression motion, finding that the city's proof was sufficient to find him guilty, failing to find that § 16-623 of the Beatrice City Code is invalid, and finding that Meints' multiple prosecutions under the city code did not violate the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution.

Meints also asserts the court erred in overruling Meints' plea in bar, overruling Meints' motion to quash, overruling Meints' motion for leave to withdraw his earlier plea, and not finding that § 16-623 is unconstitutional. However, these issues were not addressed in Meints' brief and will not be addressed on appeal. See Wulf v. Kunnath, 285 Neb. 472, 827 N.W.2d 248 (2013).

STANDARD OF REVIEW

An appellate court applies a two-part standard of review to suppression issues. With regard to historical facts, the court reviews the trial court's findings for clear error. " [W]hether those facts trigger or violate Fourth Amendment protections is a question of law that we review independently of the trial court's ...


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