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State v. Hill

Supreme Court of Nebraska

August 8, 2014

STATE OF NEBRASKA, APPELLEE,
v.
THYLUN M. HILL, APPELLANT

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Appeal from the District Court for Douglas County: LEIGH ANN RETELSDORF, Judge.

AFFIRMED.

Thomas C. Riley, Douglas County Public Defender, and Kelly M. Steenbock for appellant.

Jon Bruning, Attorney General, and Erin E. Tangeman for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

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[288 Neb. 769] McCormack, J.

I. NATURE OF CASE

Thylun M. Hill appeals from his conviction of first degree murder. Hill argues that evidence found on his person the night of the murder should have been suppressed because he was seized the moment officers encountered Hill in the street, even though he fled. Hill argues that evidence found where he lived should have been suppressed because the affidavit in support of the search warrant was so lacking in indicia of probable cause that it was wholly unreasonable for the executing officer to presume it to be valid. Hill argues that the court should have suppressed expert testimony and exhibits relating to Omaha's " ShotSpotter" system and its detection of the gunshots that killed the victim, because the testing of the accuracy of the system was inadequate. Finally, Hill alleges that the evidence presented at trial was insufficient to support his conviction. We affirm.

II. BACKGROUND

Hill was convicted, among other crimes, of first degree murder in connection with the shooting death of an acquaintance of Hill's on the night of February 18, 2012. Hill made three pre-trial motions to suppress evidence, all of which were denied.

1. Motion to Suppress Results of Search of Person

First, Hill moved to suppress all evidence gained as a result of the alleged illegal search of his person on the night of the [288 Neb. 770] shooting. The motion alleged that the officers who apprehended Hill lacked reasonable suspicion sufficient to justify a stop and frisk under Terry v. Ohio [1] and that the search was not incident to a lawful arrest.

At the hearing on the motion, Officers Mickey Larson and Jeff Wasmund described the circumstances surrounding their encounter with Hill on the night in question. Larson and Wasmund testified that at approximately 10:41 p.m. on February 18, 2012, they were in their police cruiser and Larson was pulling the cruiser out of the lot of the northeast police station, located between North 30th Street and North 31st Avenue. They were traveling in an all-black gang unit cruiser. The cruiser did not have emergency lights on top, but was marked in large print as Omaha Police on the sides. The officers were wearing tactical vests also marked " POLICE," but otherwise were not wearing uniforms.

Almost immediately, both officers heard what sounded like gunshots. They explained that it was clear to them that the shots had been fired nearby. Wasmund was " very confident" that the gunshots had come from the west; he was less certain that they also came from the south. The officers headed one-half block west to 31st Avenue and then turned south.

The officers radioed the precinct to determine if the ShotSpotter detection system was able to pinpoint a more precise location for gunfire. As will be described in more detail below, the ShotSpotter system uses microphones and a global positioning system (GPS) to pinpoint the time and location of sounds consistent with gunshots in the area covered by the system. The ShotSpotter soon gave the officers an address on North 31st Avenue about 2 1/2 blocks north of the police station. Thus, while the officers had been correct that the

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gunfire originated west of their original location, the ShotSpotter indicated the shots originated from the northwest, not the southwest. The officers had traveled only about two blocks south on North 31st Avenue when they turned around and headed north.

[288 Neb. 771] The officers arrived at the address indicated by the ShotSpotter and parked their cruiser in the middle of the street. Only 1 minute had passed since the shots had been heard.

About the same time the officers were stopping in front of the house identified by the ShotSpotter as the source of the gunfire, the officers observed a male rounding the corner at the end of the block and heading down the middle of North 31st Avenue directly toward them. This man was later identified as Hill. The officers noted that Hill was the only civilian the officers had seen in the area since they heard the gunshots. They sought to determine whether Hill was the shooter, a victim, or a witness to the gunshots.

Both officers testified that they stepped out of their vehicle and shined the vehicle spotlight in Hill's direction. They then announced, " 'Omaha police.'" During cross-examination, Larson was asked whether they had yelled, " 'Omaha police, stop,'" when they exited the vehicle. Larson answered " [u]h-huh," but almost immediately thereafter, when defense counsel asked Larson to clarify whether they had ordered Hill to " stop" during their initial encounter with Hill, Larson indicated that they did not; they " just announced 'Omaha police.'" Later at trial, Larson clarified that he announced only " Omaha police" and that he used a " normal tone of voice."

The officers did not have the emergency lights on. Hill paused. The officers did not observe a weapon on Hill, and they began to walk in Hill's direction. The officers did not have their weapons drawn at that time.

Hill immediately turned around and fled, running northbound. The officers ran in pursuit, drew their weapons, and advised Hill that " we were police officers and you need to stop running."

Hill attempted to hurdle the white picket fence of a nearby house and tripped. Hill broke the top of a few of the pickets and hit the ground. The officers, trailing close behind, observed at that time a black revolver fall out from somewhere on Hill's person. Hill picked up the gun and began running again before the officers could catch up to him. The officers thereafter fired at Hill, and he was apprehended.

[288 Neb. 772] Numerous additional officers arrived at the scene almost immediately, and Hill was placed under arrest. Several of these officers also testified at the hearing on Hill's motion to suppress. The officers described that they began searching Hill to determine if he had a weapon and whether he had been shot. The officers conducting the search emptied Hill's pockets. The items in Hill's pockets included paper, a wallet, and some latex gloves. A short while thereafter, officers discovered the discarded firearm in the path of Hill's flight from the police. They also discovered the victim, whose body was located behind the house identified by the ShotSpotter as the source of the gunshots heard by Larson and Wasmund.

The court denied the motion to suppress. The court found that the officers had yelled for Hill to stop only after he began running away. The court reasoned that Hill was not " seized" until he was physically apprehended and subdued by the pursuing officers. Therefore, the court did not analyze whether the officers had reasonable suspicion prior to that time. The court found that by the time

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Hill was apprehended, which was when he was placed under arrest, the officers knew that Hill was in the area of the shooting at the time of the shooting and also that he had a gun and had fled from police. The court concluded that such information not only provided reasonable suspicion, but also probable cause for Hill's arrest. The court concluded that the search of Hill's person was proper incident to Hill's arrest. Furthermore, the court noted that the firearm had not been seized from Hill, since he had discarded it before any seizure of his person.

2. Motion to Suppress Results of Search of Home

Hill moved to suppress the evidence found in the apartment where he was living at the time of the shooting. In particular, he sought to suppress bullets found in the bedroom where he slept, which a ballistics expert connected at trial to the bullets used in the shooting of the victim. Hill alleged that the affidavit in support of the search warrant, made by Officer Thomas Queen, lacked probable cause.

[288 Neb. 773] Queen, of the homicide unit of the Omaha Police Department, completed the affidavit for a warrant to search the apartment where Hill was receiving his Department of Labor benefits. In the affidavit, Queen averred that he had reason to believe ammunition, companion equipment, venue items, and other items of evidentiary value " to the homicide that occurred on the 18th day of February 2012 at 2240 Hours at [the address]" would be found at the apartment. The affidavit then explicitly set forth as grounds for the issuance of the warrant:

On Saturday, February 18th, 2012 at about 2240 Hours officers of the Omaha Police Department were in the area of 31 Avenue and Meredith Avenue Omaha, Douglas County, ...

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