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State v. Turner

Court of Appeals of Nebraska

April 12, 2016


          Appeal from the District Court for Hall County: WILLIAM T. WRIGHT, Judge.

         Charles R. Maser for appellant.

         Douglas J. Peterson, Attorney General, and George R. Love for appellee.

         MOORE, Chief Judge, and INBODY and BISHOP, Judges.


          [23 Neb.App. 898] Bishop, Judge.

         Following 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.


         On 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.

         On May 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.

         Turner 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.

         According 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."

         After 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."

         Investigator 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 methamphetamine.

          [23 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.

         Investigator 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.

         During 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.

          [23 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 ...

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