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State v. Rodriguez

Supreme Court of Nebraska

June 16, 2017

State of Nebraska, appellee,
Henry O. Salvador Rodriguez, 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. Motions to Suppress: Warrantless Searches: Appeal and Error. In reviewing a trial court's denial of a motion to suppress evidence obtained by a warrantless search under the emergency doctrine, an appellate court employs a two-part standard in which the first part of the analysis involves a review of the historical facts for clear error and a review de novo of the trial court's ultimate conclusion that exigent circumstances were present. Where the facts are largely undisputed, the ultimate question is an issue of law.

         3. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), and the trial court's decision will not be reversed absent an abuse of discretion.

         4. Search and Seizure: Warrantless Searches: Proof. Searches without a valid warrant are per se unreasonable, subject only to a few specifically established and well-delineated exceptions that must be strictly confined by their justifications. The State has the burden of showing the applicability of one or more of the exceptions to the warrant requirement.

         5. Search and Seizure: Warrants: Police Officers and Sheriffs. In the case of entry into a home, a police officer who has obtained neither an [296 Neb. 951] arrest warrant nor a search warrant cannot make a nonconsensual and warrantless entry in the absence of exigent circumstances.

         6. Search and Seizure: Words and Phrases. The "emergency doctrine" is a category of exigent circumstances. The elements of the emergency doctrine are that (1) the police must have reasonable grounds to believe there is an immediate need for their assistance for the protection of life or property and (2) there must be some reasonable basis to associate the emergency with the area or place to be searched.

         7. Constitutional Law: Police Officers and Sheriffs. An action is reasonable under the Fourth Amendment, regardless of the individual officer's state of mind, as long as the circumstances viewed, objectively, justify the action.

         8. Police Officers and Sheriffs: Probable Cause. The presence of an emergency, like probable cause, hinges on the reasonable belief of the officers in light of specific facts and the inferences derived therefrom, not whether, in hindsight, one actually existed.

         9. Search and Seizure: Police Officers and Sheriffs: Probable Cause. The first element of the emergency doctrine is similar to probable cause and asks whether the facts available to the officer at the moment of entry warranted a person of reasonable caution to believe that entry was appropriate.

         10. Search and Seizure: Police Officers and Sheriffs: Burglary. Courts generally find sufficient exigent circumstances to justify the warrantless entry into a home when a police officer reasonably believes that a burglary is in progress or was recently committed therein.

         11. Burglary. A burglary indicates an immediate need to secure the premises because it raises the possibility of danger to an occupant and the continued presence of an intruder.

         12. Other Acts: Words and Phrases. Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), concerns evidence of other crimes, wrongs, or acts. Other acts under rule 404(2) are acts that are not part of the events giving rise to the present charges.

         13. Indictments and Informations: Words and Phrases. The phrase "on or about" in an information indicates the date with approximate certainty.

         14. Criminal Law: Time: Words and Phrases. The crime of "possession" may extend over a period of time if uninterrupted.

         15. Criminal Law: Statutes: Words and Phrases. Absent language indicating differently, "possession" within a criminal statute contemplates a continuing offense as opposed to a single incident.

         16. Criminal Law: Time: Words and Phrases. An offense is continuing if set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy; an offense which continues day by [296 Neb. 952] day; a breach of the criminal law, not terminated by a single act or fact, but subsisting for a definite period and intended to cover or apply to successive similar obligations or occurrences.

         17. Evidence: Other Acts: Words and Phrases. Evidence of uncharged criminal activity is not considered "other crimes" evidence under Neb. Evid. R. 404(1)(b), Neb. Rev. Stat. § 27-404(1)(b) (Reissue 2016), if it arose out of the same transaction or series of transactions.

         18. Records: Appeal and Error. Where allegedly prejudicial remarks of counsel do not appear in the bill of exceptions, an appellate court is precluded from considering an assigned error concerning such remarks.

         19. Motions for New Trial: Affidavits: Evidence: Records: Appeal and Error. Affidavits in support of a motion for new trial must be offered in evidence and preserved in and made a part of a bill of exceptions to be considered by an appellate court.

         20. Motions for New Trial: Testimony: Affidavits: Records: Appeal and Error. An appellate court will not review testimony in the form of affidavits used in the trial court on the hearing of a motion for new trial, unless such affidavits have been included in and presented by a bill of exceptions.

         Appeal from the District Court for Sheridan County: Travis P. O'Gorman, Judge.

          Travis Penn, of Penn Law Firm, L.L.C., for appellant.

          Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          WRIGHT, J.

         I. NATURE OF CASE

         The defendant appeals from his conviction of possession of methamphetamine with intent to deliver. At issue is whether the trial court should have suppressed evidence found during a search with a warrant that was obtained as a result of observing defaced firearms during a prior warrantless search for a possible burglar at the request of a houseguest. Also at issue is whether the defendant was prejudiced by the admission, [296 Neb. 953] without a limiting instruction, of evidence of his drug use around the time specified in the information. The defendant argued the drug use was evidence of prior bad acts subject to Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue 2016). The court concluded the drug use was intrinsic to the crime charged. Finally, the defendant argues he was prejudiced by comments purportedly made by the prosecutor during closing arguments erroneously stating that the defendant owned the home he lived in.


         Henry O. Salvador Rodriguez was charged with one count of possession of methamphetamine with intent to deliver and one count of possession of a defaced firearm, both on or about luly 30, 2014. A jury found Salvador Rodriguez guilty of possessing methamphetamine, in an amount of over 10 grams, with intent to deliver. The jury found Salvador Rodriguez not guilty of possession of a defaced firearm.

         1. Warrantless Search

         Salvador Rodriguez sought suppression of all evidence obtained during searches of his place of residence conducted pursuant to warrants that were issued based on observations during an initial warrantless search. The State asserted that the warrantless search was reasonable because of the exigent circumstance of a possible intruder in the house. Alternatively, the State argued the search was authorized by Lori Ezell, who had common authority over the house.

         (a) Officer Testimony

         Officer Adam Wackier testified that on luly 23, 2014, he responded to a report of a domestic disturbance between Ezell and Gilbert Chavez at the apartment where Chavez lived. Wackier had responded previously to similar disturbances at that apartment. Wackier suggested that Ezell and Chavez spend the night apart, and they agreed.

         [296 Neb. 954] Ezell told Wackier that she had the key to a friend's house because she was taking care of the friend's dog and that she stayed there when she was not getting along with Chavez. Ezell told Wackier that she had a bedroom at that house and that she kept some of her and her children's things there. Ezell said she stayed at the house sometimes for just a day, other times for 2 weeks; it depended on the situation.

         Ezell explained to Wackier that her friends, whom she identified as Salvador Rodriguez and Rosa Anguiano, were out of town. She explained that Salvador Rodriguez and Anguiano rented the house, hereinafter referred to as the "Salvador Rodriguez house."

         Wackier testified that after making a telephone call, Ezell reported to him that Salvador Rodriguez and Anguiano had given Ezell permission to stay at their house that night. Wackier drove Ezell and one of her children to the Salvador Rodriguez house.

         A couple of hours later, Wackier received another call from Ezell. Wackier had given Ezell his work cell phone number to use in case things escalated further between Ezell and Chavez that night. Ezell seemed upset. She told Wackier that she was afraid an intruder was in the Salvador Rodriguez house. Wackier met Ezell and her child on a street corner near the house.

         Ezell told Wackier that she had gone for a walk with her child. When she returned to the Salvador Rodriguez house, all the lights were on and she thought she saw somebody in the garage looking at her. Ezell reported that she had shut and locked the door and had turned off all the lights in the house before leaving for their walk.

         Ezell told Wackier that she was afraid to go back into the house, because she knew Salvador Rodriguez and Anguiano were not there. She asked Wackier to come and make sure that nobody was inside.

         When Officer Clay Heath arrived as backup, Wackier and Heath approached the Salvador Rodriguez house and observed [296 Neb. 955] that the front door was unlocked and open a crack-though in later testimony Wackier described that it was closed but was not latched closed.

         Wackier and Heath entered and proceeded to clear the house by looking "anywhere that a person could fit." They did not find anyone in the house. When looking in closets, however. Wackier and Heath observed two firearms in plain view. In the closet of the kitchen, they observed a shotgun that appeared to have the barrel cut off. In the closet of the master bedroom, they saw a pistol.

         Concerned that someone might be hiding in the house who would have access to the weapons, Wackier and Heath made sure that the pistol did not have ammunition. They picked it up to clear the chamber. In doing so, they found that the pistol's serial number appeared to have been partially scratched off. They returned the pistol and continued their search. It was unclear whether Wackier and Heath picked up the shotgun in the kitchen.

         After ensuring that no one was in the Salvador Rodriguez house, Wackier and Heath returned the keys to Ezell. Anguiano called Wackier later that night to ask if the house had been broken into. Wackier reported that because Ezell did not see anything out of place, he did not think so. Wackier confirmed with Anguiano that Ezell had permission to stay in the house.

         (b) Ezell's Testimony

         Ezell testified that she stayed at the Salvador Rodriguez house at least once a week, when she and Chavez would "get into it." She had a bedroom there where she and her children slept when they stayed the night. She kept some of her and her children's possessions in that bedroom and had a key to the house.

         Ezell repeatedly testified that she moved into the Salvador Rodriguez house approximately 1 week prior to July 23, 2014. But in other testimony, she seemed to indicate that she moved into the Salvador Rodriguez house on July 23.

         [296 Neb. 956] After moving in, Ezell considered herself a "permanent resident" insofar as she was living there and had all of her and her children's belongings there. She described those belongings as clothing, toiletries, medicines, and a crib. Salvador Rodriguez and Anguiano told her to "make it like it was [her] own home.'' She further affirmed that she had "free rein over the entire house." Ezell said she was a "guest" inasmuch as she did not pay any bills or rent.

         Ezell testified that a couple of hours after Wackier responded to the domestic disturbance report, she called Wackier because she thought an intruder was inside the Salvador Rodriguez house. Salvador Rodriguez and Anguiano were out of town all that week. Ezell and her children had gone to get ice cream. When they returned, she noticed that a light was on and the garage door was open, but she did not think anything of it right away. One of her children wanted to go back to get more ice cream, and when they exited the house, they saw Ezell's van with all the doors open, including the back hatch. She had left all the van doors closed. One of her children screamed that someone was in the garage. Ezell testified that she also saw someone in the garage.

         Sometime after Wackier and Heath searched the house and found no intruders, Ezell called Salvador Rodriguez and Anguiano. Ezell testified that neither gave her any indication that she did not have authority to ask the police to check if there was an intruder in the house. Salvador Rodriguez reportedly told her, '"It's okay. I had someone go check on the house.'"

         (c) Subsequent Searches

         On July 30, 2014, Wackier and Heath obtained a warrant to search the Salvador Rodriguez house, based on their observations of the defaced firearms. A water bill confirmed Salvador Rodriguez and Anguiano as the residents, either the owners or the renters, of the house. At trial, Wackier testified that photographs inside the home, as well as other documents, such as [296 Neb. 957] ...

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