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State v. Bray

Supreme Court of Nebraska

September 29, 2017

State of Nebraska, appellee,
v.
Ethan Bray, 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. Trial: Police Officers and Sheriffs: Search Warrants: Appeal and Error. An appellate court reviews the trial court's findings of fact for clear error and gives deference to the inferences drawn from those facts by law enforcement officers, the court that issued the search warrants, and the trial court.

         3. Constitutional Law: Search and Seizure: Evidence: Appeal and Error. When the State seeks to submit evidence as sufficiently attenuated from a previous Fourth Amendment violation, an appellate court will review the trial court's findings of historical facts for clear error but review de novo the court's ultimate attenuation determination based on those facts.

         4. Police Officers and Sheriffs: Search Warrants: Warrantless Searches. A police officer who has obtained neither an arrest warrant nor a search warrant cannot make a nonconsensual and warrantless entry into a suspect's home in the absence of exigent circumstances.

         5. Search and Seizure: Evidence. The exclusionary rule prohibits the admission of physical and testimonial evidence gathered illegally.

         6. Constitutional Law: Search and Seizure: Evidence. One purpose of the exclusionary rule is to compel respect for the constitutional guaranty by removing the incentive to disregard it.

         7. Search and Seizure: Evidence. The exclusionary rule is applicable only where its deterrence benefits outweigh its substantial social costs.

         [297 Neb. 917] 8. Evidence: Police Officers and Sheriffs. Not all evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal action of the police; the question is whether the evidence has been obtained by exploiting the primary illegality or has instead been obtained by means sufficiently distinguishable so as to be purged of the primary taint.

         9. Constitutional Law: Search and Seizure: Evidence: Police Officers and Sheriffs. Under the attenuation exception to the exclusionary rule, evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.

         10. Constitutional Law: Search and Seizure: Evidence: Proof. When the State asserts that evidence obtained in a search following a Fourth Amendment violation is admissible due to the defendant's consent to the search, it must prove two things: (1) The consent was voluntary, and (2) the consent was sufficiently attenuated from the violation to be purged of the primary taint.

         11. Search and Seizure: Evidence: Proof. There is overlap between the voluntariness and the taint components that the State must prove, but they are not identical.

         12. Constitutional Law: Search and Seizure: Evidence. A court must consider the evidence's admissibility in the light of the Fourth Amendment's distinct policies and interests, even if a consent to search is voluntary.

         13. Search and Seizure: Duress. For consent to be voluntarily given, it must be a free and unconstrained choice, not the product of a will overborne, and it cannot be given as the result of duress or coercion, whether express, implied, physical, or psychological.

         14. Constitutional Law: Search and Seizure: Evidence: Time. In determining whether the causal chain leading to consent is sufficiently attenuated from a Fourth Amendment violation to allow for the admission of the evidence, a court considers three relevant factors: (1) the time elapsed between the constitutional violation and the acquisition of the evidence (temporal proximity), (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct.

         15. Search and Seizure: Police Officers and Sheriffs. Being thoroughly advised by law enforcement of one's legal rights, including the right to refuse consent, is an intervening circumstance.

         16. Constitutional Law: Search and Seizure: Attorney and Client. The opportunity for legal consultation is an intervening circumstance and has been considered under various circumstances critically important [297 Neb. 918] in determining that consent was attenuated from a Fourth Amendment violation.

         17. Search and Seizure. A suspect's knowledge of a prior illegal search can sometimes give rise to a sense that refusing to consent would be futile.

         18. Search and Seizure: Evidence: Police Officers and Sheriffs. The purpose and flagrancy of the official misconduct is the most important attenuation factor.

         19. Search and Seizure: Evidence. The underlying purpose of the attenuation exception is to mark the point of diminishing returns of the deterrence principle underlying the exclusionary rule.

         20. Search and Seizure: Evidence: Police Officers and Sheriffs. If law enforcement did not likely foresee the challenged evidence as a probable product of their illegality, then it could not have been the motivating force behind it and the threat of exclusion could not possibly operate as a deterrent to such conduct.

         21. Search and Seizure: Police Officers and Sheriffs. Purposeful and flagrant misconduct exists when (1) the impropriety of the official's misconduct was obvious or the official knew, at the time, that his or her conduct was likely unconstitutional but engaged in it nevertheless and (2) the misconduct was investigatory in design and purpose and executed in the hope that something might turn up.

         22. __:__. Courts usually do not deem police misconduct as flagrant unless the illegal conduct was engaged in for the purpose of obtaining consent or the police misconduct was calculated to cause surprise or fear.

         23. Search and Seizure: Search Warrants: Police Officers and Sheriffs. Officers can take reasonable measures to prevent occupants from becoming disruptive, dangerous, or otherwise frustrating the search; and such routine and preventative measures do not depend on the presence of a threat, actual or perceived, to the officers executing the warrant.

         Appeal from the District Court for Nemaha County: Daniel E. Bryan, Jr., Judge. Affirmed.

          Keith M. Kollasch, Nemaha County Public Defender, for appellant.

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

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

         [297 Neb. 919] WRIGHT, J.

         I. NATURE OF CASE

         While carrying out a search warrant for the common areas of a house and a roommate's bedroom, law enforcement observed through an open doorway drug paraphernalia in the defendant's bedroom. The district court overruled the defendant's motion to suppress evidence seized from his bedroom following the defendant's consent to a search. Because of the omission of the fact that the informant was in custody when he reported the illegal activities forming the basis for the warrant affidavit, the district court found the search warrant for the common areas was invalid. But the court found that the defendant's consultation over his cell phone with a person identified as his legal counsel, as well as law enforcement's advisement of the defendant's right to refuse consent, resulted in voluntary consent to the search that was sufficiently attenuated from the invalid warrant.

         II. BACKGROUND

         Ethan Bray was charged under Neb. Rev. Stat. § 28-416 (Cum. Supp. 2014) with one count of possession of a controlled substance with intent to deliver, a Class III felony; three counts of possession of a controlled substance, which are Class IV felonies; and one count of possession of money used or intended to be used to facilitate a violation of § 28-416(1), a Class IV felony. Before trial, Bray moved to suppress all evidence gathered by law enforcement as a direct or indirect result of the entry and search of his residence on August 23, 2015. The entry of the residence was pursuant to a warrant directed toward one of his roommates, Alexander Gonsalves.

         Bray asked for a hearing under Franks v. Delaware[1] to determine whether omissions in the warrant were made in reckless disregard for the truth and resulted in the warrant's being issued without probable cause. The district court found [297 Neb. 920] the evidence sufficient to warrant a Franks hearing, and the following evidence was adduced.

         1. Warrant

         Officer Steven Bures prepared and signed the affidavit for the search warrant. The affidavit described that one of several roommates at Gonsalves' residence, Deven Moore, had reported that drug use and distribution were occurring in the home. Specifically, Moore reported to Bures that Gonsalves was involved in using marijuana. Moore told Bures that he had recently smelled marijuana in the house and had seen bongs and baggies. He had also taken baggies consistent with "dime bags" up to Gonsalves' room 2 to 3 weeks before. Finally, Moore had observed between 6 and 12 people visiting the house in the last 48 hours asking to see Gonsalves and going to Gonsalves' bedroom. Moore explained that he suspected the visitors were there to buy marijuana.

         The parties stipulated that at the time Moore gave the information to Bures, he was in custody for driving under the influence. Additionally, Bures admitted on cross-examination that Moore had alcohol in his system when he gave Bures the information about Gonsalves' drug usage. Bures did not describe in the warrant affidavit either that Moore was in custody or that he was under the influence of alcohol when he informed Bures of Gonsalves' illegal activities.

         Bures had been a law enforcement officer since 2012. He testified that he did not have any training or experience in preparing an affidavit based on information from an informant who is in custody. He did not know that it was important to specify in the affidavit that the informant was in custody. Bures believed at the time that the warrant was valid.

         2. Observation of Bray's Room During Execution of Warrant

         The warrant was to be served during the daylight hours and was to search for drugs and related items in the common areas of the house and in Gonsalves' bedroom. Officers Kaleb [297 Neb. 921] Bruggeman, Matthew Kadavy, Jeff Timmerman, Harold Silvey. Dan White, and Bures conducted the search in the late afternoon of August 23, 2015.

         While conducting the search, the officers observed Bray in his bedroom from the open doorway on the main level. They asked him to come out to the living room. Bray joined Gonsalves and another roommate on the couch in the living room. The roommates were monitored by Bruggeman and White while the remaining officers conducted the search of the common areas and Gonsalves' bedroom upstairs. None of the occupants who waited on the couch were patted down for weapons. They moved around the living room freely, but were asked to stay in that room.

         While waiting for the other officers to conduct the search, Bray asked Bruggeman about the search warrant. Bruggeman explained the process of applying for a warrant and allowed Bray to examine it. Bruggeman described their tone as conversational. Bray understood that the warrant was not directed toward him.

         Bray used his cell phone freely while in the living room. When it ran out of charge, he asked Bruggeman if he could retrieve a cell phone charger from his room. Bruggeman told Bray that he could, but that Bruggeman would have to accompany Bray into the room for the safety and security of everybody involved in the search warrant. Bray said that was fine. Bruggeman testified at the hearing that he wanted to ensure Bray did not obtain any weapons from the room and that accompanying Bray was standard protocol.

         When Bruggeman accompanied Bray into the room, he observed a bong and a grinder with loose-leaf marijuana around it. Bruggeman also detected a strong odor of raw marijuana. Bruggeman did not make any statements at that time to Bray about what he observed, and Bray returned to the living room.

         When Timmerman completed his part of the search, he waited in the living room while Bures completed some [297 Neb. 922] paperwork. While doing so, Timmerman observed through the open doorway the bong in Bray's bedroom. He voiced this observation, and Bray responded that it was a vase. Bruggeman interjected that it was a bong.

         About 45 minutes after the officers had arrived at the residence and begun their search, Bures joined the others in the living room. Bruggeman and Timmerman advised Bures that there was a bong, a grinder, and some marijuana in Bray's bedroom. From the living room, Bures looked into the room through the open doorway. He was able to observe these three items. He could also smell the odor of marijuana. Bures briefly walked into Bray's room but quickly left, without observing additional items.

         3. Consent

         Bures asked Bray if he could have a conversation with him out on the porch. Bray consented, and Timmerman and Silvey joined them. Bures stood nearest to Bray, while Timmerman and Silvey were farther away at other locations on the porch and did not directly engage in the conversation. Bures told Bray that he had seen drug paraphernalia and marijuana in Bray's bedroom. Bures asked Bray for consent to search his room, explaining that if Bray did not consent, he would apply for a search warrant. Bures described his tone as conversational.

         Bray asked if he could call his legal counsel. Bures said he could, and Bray stepped away for a private conversation with someone on his cell phone. After that conversation, which lasted about 5 minutes, Bray said he would consent to the search. Bures retrieved a standard consent form from his vehicle. When Bures returned, he read the form to Bray. Bray ...


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