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State v. Lowery

Court of Appeals of Nebraska

February 23, 2016

State of Nebraska, appellee,
Joseph R. Lowery, appellant.

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 findings 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. Arrests: Warrants: Search and Seizure: Police Officers and Sheriffs. The interests protected by arrest warrants and search warrants differ: An arrest warrant primarily serves to protect an individual from an unreasonable seizure, whereas a search warrant safeguards an individual's interest in the privacy of his home and possessions against the unjustified intrusion of the police.

3. Constitutional Law: Arrests: Warrants: Probable Cause. If a person is arrested pursuant to a valid arrest warrant, it does not matter whether the arrest occurs in his or her own home or in the home of another, as long as there is either reasonable belief or probable cause to believe that the subject of the arrest warrant is within the home; no search warrant, consent, or exigent circumstances are required in order to protect the Fourth Amendment rights of the subject of the arrest warrant.

4. Constitutional Law: Search and Seizure: Standing. A "standing" analysis in the context of search and seizure is nothing more than an inquiry into whether the disputed search and seizure has infringed an interest of the defendant in violation of the protection afforded by the Fourth Amendment.

5. Constitutional Law: Search and Seizure. The test used to determine if a defendant has an interest protected by the Fourth Amendment is [23 Neb.App. 622] whether the defendant has a legitimate or justifiable expectation of privacy in the premises. Ordinarily, two inquiries are required: First, an individual must have exhibited an actual (subjective) expectation of privacy, and second, the expectation must be one that society is prepared to recognize as reasonable.

6.__: __ . An overnight guest has an expectation of privacy in his or her host's home, which society is willing to recognize as reasonable, and, therefore, the overnight guest has standing to assert Fourth Amendment violations.

7. __:__. An overnight guest's legitimate expectation of privacy does not extend to areas of the host's home which are off limits to the guest or of which the guest has no knowledge.

8. Search and Seizure: Standing. A defendant can prevail on a fruit of the poisonous tree claim only if he has standing regarding the violation which constitutes the poisonous tree.

Appeal from the District Court for Scotts Bluff County: Leo Dobrovolny, Judge.

Jose L. Rodriguez, Deputy Scotts Bluff County Public Defender, for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

Pirtle, Riedmann, and Bishop, Judges.

Bishop, Judge.

Following a jury trial, the district court for Scotts Bluff County, Nebraska, convicted Joseph R. Lowery of possession with intent to distribute a controlled substance (methamphetamine). Lowery appeals, arguing the district court erred in overruling his motion to suppress evidence. We affirm.


On January 8, 2014, the chief of police of Mitchell, Nebraska, Michael Cotant, recognized a green, Chevy pickup truck (with a "14 County, Nebraska" license plate) parked in the driveway of George Valles' home on Center Avenue in Mitchell. Chief Cotant had previously seen the Chevy on several occasions [23 Neb.App. 623] in December 2013 at a trailer park in Mitchell; Valles lived in the trailer park at the time. When Chief Cotant "ran" the Chevy's license plate number, he learned that it was registered to Lowery and another person, with an address in Roseland, Nebraska. On January 9, Chief Cotant followed up on Lowery's name, which he recognized, and learned that Lowery and his brother had warrants out for their arrests for unpaid fines and court costs. Chief Cotant prepared a packet of information containing photographs of Lowery and his brother, the registration information for the Chevy, and copies of the arrest warrants for Lowery and his brother, and left it for Officer Joshua Catlin of the Mitchell Police Department.

When Officer Catlin came on duty the morning of January 10, 2014, he received the packet of information prepared by Chief Cotant. Officer Catlin recognized the description of the Chevy from having seen it prior to that day, and he said he "ran the plate" himself. He drove by the residence on Center Avenue at approximately 8:25 a.m. and observed the Chevy parked on the street in front of the residence. Officer Catlin then contacted Deputy Sheriff David Ojeda of the Scotts Bluff County Sheriff's Department (who had been tasked with finding and arresting Lowery's brother) to see if he would be able to assist Officer Catlin in arresting Lowery. Officer Catlin and Deputy Ojeda met around 9 a.m. in Mitchell and updated each other on the information they had. Deputy Ojeda then had the Chevy's "license plate run" again. Deputy Ojeda was advised by the communications center that there was a protection order on Lowery out of Adams County and that he should use caution because Lowery was known to carry a gun, was violent toward other people, and had fled when the protection order was being served on him. At that point, Officer Catlin went back to the residence to monitor the Chevy, while Deputy Ojeda called for additional assistance.

Law enforcement arrived at the residence around 10 a.m. The group of seven split up and surrounded the residence. Officer Catlin was part of the group that went around to the [23 Neb.App. 624] back of the house. Deputy Ojeda and his group went to the front door. Deputy Ojeda knocked, and Valles' wife answered the door holding a baby. She stated that she lived in the residence. Deputy Ojeda then asked her several times whether Lowery was in the house, and each time she said that she did not know. Deputy Ojeda asked Valles' wife if they could come in, and she motioned them into the house. Once inside, Deputy Ojeda continued to ask Valles' wife about whether Lowery was in the house. At that point, Valles walked into the living room and said he was the owner of the house. Deputy Ojeda asked Valles if Lowery was in the house, and Valles stated that he did not know. At some point, Deputy Ojeda heard on his radio that officers behind the residence saw somebody "peeking through the shades in the back room." Deputy Ojeda asked Valles if Lowery was "in the back of the house, " and he said no. Deputy Ojeda told Valles that they had an arrest warrant for Lowery and his brother, that the green Chevy outside was registered to Lowery, that officers had seen someone peeking through the back windows, and that Deputy Ojeda thought Valles was hiding either Lowery or his brother. Valles told Deputy Ojeda he "needed to step outside as he didn't see a warrant." The officers stepped outside, and Deputy Ojeda radioed Officer Catlin to bring the arrest warrants to the front door, which were then shown to Valles. Valles told the officers that no one was in the house but him, his wife, and their child.

After showing Valles the arrest warrants, the officers again entered the house and Valles took them to the back bedroom. How that came to pass is not entirely clear from our record. Officer Catlin testified that officers behind the residence again radioed there was movement in the back bedroom and that because he and Deputy Ojeda could see Valles, his wife, and the baby, Deputy Ojeda told Valles they were going to search and Valles needed to take the officer to the back bedroom. Deputy Ojeda, however, testified that he urged Valles to let them in (as neighbors were starting to come out of their houses [23 Neb.App. 625] and he did not want to make a scene) and that they would arrest Lowery and leave; he said that Valles stepped back inside and started walking to the back of the house and Deputy Ojeda followed him. Either way, officers ended up back inside the house and at the door of the back bedroom. Officer Catlin testified that Valles knocked on the door and said, '"If there is anybody in there, open the door, come out.'" At that point, Lowery came out of the room and was arrested and taken outside to a patrol car. Deputy Ojeda testified that Valles knocked on the door, and someone inside said, '"Who is it?'" Valles responded, '"It's the cops.'" Then Lowery opened the door and was arrested.

After Lowery was arrested, Deputy Ojeda asked Valles about another room, which was locked (earlier when Deputy Ojeda was on the way to the back bedroom where Lowery was found, he had tried to turn the doorknob to this other room, but it was locked). Valles said it was his room, he always kept it locked, and nobody ever went in there. Officers told Valles to get the key and open the door; the officers apparently thought Lowery's brother might be in there. Valles retrieved the key and unlocked the door. Upon entering the room, officers saw in plain view drug paraphernalia and "designer baggies" known to be commonly used to package controlled substances; they also saw a shotgun case and handgun in the closet when checking to make sure no one was hiding in the closet. This evidence formed the basis for a later search warrant. Law enforcement subsequently executed the search warrant that same day and found drugs, ...

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