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
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.
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
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
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.
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.
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.
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.
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.
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.
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
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.
Indictments and Informations: Words and
Phrases. The phrase "on or about" in an
information indicates the date with approximate certainty.
Criminal Law: Time: Words and Phrases. The
crime of "possession" may extend over a period of
time if uninterrupted.
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.
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
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
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.
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.
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
from the District Court for Sheridan County: Travis P.
Penn, of Penn Law Firm, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
NATURE OF CASE
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.
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.
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.
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.
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.
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
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
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
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.
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
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.
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.
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
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.
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.
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.
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
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.
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
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] ...