from the District Court for Hall County: WILLIAM T. WRIGHT,
R. Maser for appellant.
J. Peterson, Attorney General, and George R. Love for
Chief Judge, and INBODY and BISHOP, Judges.
Neb.App. 898] Bishop, Judge.
a bench trial in the district court for Hall County, Paul J.
Turner was convicted of possession of a controlled substance
(methamphetamine), a Class IV felony, see Neb. Rev. Stat.
§ 28-416(3) (Cum. Supp. 2014); possession of drug
paraphernalia, an infraction, see Neb. Rev. Stat. §
28-441 (Reissue 2008); and possession of marijuana of 1 ounce
or less, an infraction, see § 28-416(13)(a). He appeals,
contending the district court erred in overruling his
pretrial motion to suppress evidence seized during an
allegedly unconstitutional search of his apartment. He
further argues that without the evidence resulting from the
search, there was insufficient evidence to establish his
guilt. We affirm.
January 21, 2014, Turner was charged by information in the
district court for Hall County with possession of a [23
Neb.App. 899] methamphetamine (count
I), possession of drug paraphernalia (count II), and
possession of 1 ounce or less of marijuana (count III). In a
separate information filed in the district court for Hall
County on the same date, Turner's girlfriend, Shannon K.
Bond, was charged with possession of methamphetamine.
Turner's and Bond's offenses allegedly occurred on
December 3, 2013, in Hall County, Nebraska.
14, 2014, Turner filed a motion to suppress evidence seized
during an allegedly unconstitutional search of his apartment
on December 3, 2013. He further requested that any statements
he made be suppressed, alleging the statements were not
freely and voluntarily made. On May 28, 2014, Bond filed a
nearly identical motion to suppress in her case.
and Bond, both of whom were represented by counsel, agreed to
a consolidated evidentiary hearing on their motions to
suppress; the hearing was held on July 17, 2014. Investigator
Sarah Mann of the Grand Island Police Department testified as
follows: On December 2, 2013, she went to an address on North
Walnut Street in Grand Island, Nebraska, in response to a
child abuse hotline intake indicating possible drug use in
front of minor children at the address. Upon arriving, she
knocked on the door and heard no response. She returned
around 1 p.m. the next day, December 3, with Chelsea Willden,
an employee of the Nebraska Department of Health and Human
Services (DHHS). Investigator Mann realized the door on which
she had knocked the prior day led to a staircase, and she
opened the door and ascended the stairs. At the top of the
stairs was the door to an apartment. She knocked on the door
and heard a male voice say, " Come in." She
continued knocking, and Turner opened the door.
to Investigator Mann, she identified herself and Willden,
explained they had received a complaint, and asked if they
could " come in and chat with him about it." Turner
said yes and invited them inside. Mann and Willden talked to
Turner about the allegations, and then Bond exited a bedroom
[23 Neb.App. 900] and joined the conversation. Mann and
Willden explained the allegations to Bond. At some point
during this interaction, Investigator Mann saw an individual
whom she identified as Dennis Castro sitting in the living
room; she learned that Castro had a warrant for his arrest
and requested a patrol unit to transport Castro to the jail.
Waiting for the patrol unit " took up some time."
Castro was transported away, Royal Kottwitz, another
investigator with the Grand Island Police Department, noticed
a backpack on the living room floor. (On cross-examination,
Mann clarified that Investigator Kottwitz was with her and
Willden when they arrived at the apartment on December 3,
2013.) Neither Turner nor Bond knew who owned the back-pack,
and both agreed it could be searched. Upon opening the
backpack, Investigator Mann located among other items a
hypodermic needle, a small baggie of what appeared to be
marijuana, and a glass pipe with white residue. Based on her
training and experience, Investigator Mann believed the glass
pipe was a " meth pipe."
Mann explained that after finding the items in the backpack,
there was a discussion about consent to search the apartment.
Bond wanted to give consent, but Turner did not. There was a
discussion " amongst officers" about whether to
seek a search warrant. Bond then asked if she could go to the
bathroom and asked Investigator Mann to accompany her. In the
bathroom, Bond " was pretty worked up" and told
Investigator Mann she would give up " everything"
and " wanted to know if that would kind of make all this
go away." Investigator Mann told Bond she could not
answer that question because she did not know what Bond had.
The two women left the bathroom, and Bond led Investigator
Mann into the bedroom, where Bond pulled two pipes and a
baggie out of her purse. Bond handed the pipes to
Investigator Mann and said, " This is my marijuana
pipe," and, " This is my meth pipe." The
baggie had a white residue that appeared to be
Neb.App. 901] After Bond handed the items to her,
Investigator Mann told Bond she still wanted to search the
apartment. They returned to the living room, and Bond
conversed with Turner. According to Investigator Mann, Turner
and Bond could not agree whether to give consent and "
kind of went back and forth." Every now and then,
Investigator Mann would tell them " time's
ticking" and ask for a decision. Eventually,
Investigator Mann informed Turner and Bond she was leaving to
apply for a search warrant, but Bond asked her to wait. After
Turner and Bond still could not reach a decision,
Investigator Mann said " time's up" and left to
seek a search warrant. Prior to leaving, she patted Turner
down for weapons, but located none.
Mann testified that Officer Wesley Tjaden arrived to "
stand by to make sure no evidence was destroyed" while
she sought a search warrant. Investigator Mann returned to
the police department and had nearly completed her warrant
application when Officer Tjaden called to inform her that
Turner and Bond had decided to consent to the search.
Investigator Mann, who had not completed the warrant
application, returned to the apartment, and Turner and Bond
verbally consented to a search and signed consent-to-search
forms. The forms were received into evidence; Bond signed her
form at 4:05 p.m., and Turner signed his form at 4:10 p.m.
the subsequent search of the apartment, Investigator Mann
located a makeup or cosmetic bag containing drug
paraphernalia and what she believed to be methamphetamine.
The bag was located in a magazine rack in the master bedroom,
on the side of the bed that Bond indicated was hers. In the
nightstand on the other side of the bed, Investigator
Kottwitz located a glass marijuana pipe, a marijuana grinder,
two broken glass pipes, and a " blue pencil torch."
Other drug-related items were located in other places in the
master bedroom, including a baggie containing a white
crystalline substance on the desk and folded up tinfoil with
white residue in the trash can.
Neb.App. 902] Investigator Mann testified that after locating
the items during the search, she gave Turner warnings
pursuant to Miranda v. Arizona, 384 U.S. 436, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that he signed a form
waiving his rights. The form was received into evidence and
indicated Turner signed the form at 5:15 p.m. When
Investigator Mann then asked Turner if the items in the