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. An appellate court
reviews for abuse of discretion a trial court's
evidentiary rulings on the admissibility of a defendant's
other crimes or bad acts under Neb. Evid. R. 404(2), Neb.
Rev. Stat. § 27-404(2) (Reissue 2016), or under the
inextricably intertwined exception to the rule.
Judgments: Words and Phrases. An abuse of discretion
occurs when a trial court's decision is based upon
reasons that are untenable or unreasonable or if its action
is clearly against justice or conscience, reason, and
Jury Instructions: Proof: Appeal and Error. To
establish reversible error from a court's failure to give
a requested jury instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct [26
Neb.App. 311] statement of the law, (2) the tendered
instruction was warranted by the evidence, and (3) the
appellant was prejudiced by the court's failure to give
the requested instruction.
Jury Instructions: Appeal and Error. It is not error
for a trial court to refuse a requested instruction if the
substance of the proposed instruction is contained in those
instructions actually given.
___:___. If the instructions given, which are taken as a
whole, correctly state the law, are not misleading, and
adequately cover the issues submissible to a jury, there is
no prejudicial error concerning the instructions and
necessitating a reversal.
Search and Seizure: Warrantless Searches. 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
Search and Seizure: Warrantless Searches: Proof. In
the case of a search and seizure conducted without a warrant,
the State has the burden of showing the applicability of one
or more of the exceptions to the warrant requirement.
Search and Seizure: Warrantless Searches: Police Officers and
Sheriffs. In the case of entry into a home, a police
officer who has obtained neither an arrest warrant nor a
search warrant cannot make a nonconsensual and warrantless
entry in the absence of exigent circumstances.
Search and Seizure: Police Officers and Sheriffs: 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.
Search and Seizure: Warrantless Searches. The first
element of the emergency doctrine considers whether there
were reasonable grounds to find an emergency, and the second
element considers the reasonableness of the scope of the
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. [26 Neb.App. 312]
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 Warrants: Affidavits: Probable Cause. Where
an affidavit used for the purpose of obtaining a search
warrant includes both illegally obtained facts as well as
facts derived from independent and lawful sources, a valid
search warrant may issue if the lawfully obtained facts,
considered by themselves, establish probable cause to issue
the warrant; not all evidence obtained is considered fruit of
the poisonous tree, and such evidence may be admitted if
there is a sufficient independent basis for the discovery of
Rules of Evidence: Other Acts. Neb. Evid. R. 404(2),
Neb. Rev. Stat. § 27-404(2) (Reissue 2016), does not
apply to evidence of a defendant's other crimes or bad
acts if the evidence is inextricably intertwined with the
___: ___. Inextricably intertwined evidence includes evidence
that forms part of the factual setting of the crime, or
evidence that is so blended or connected to the charged crime
that proof of the charged crime will necessarily require
proof of the other crimes or bad acts, or if the other crimes
or bad acts are necessary for the prosecution to present a
coherent picture of the charged crime.
Jury Instructions. Whenever an applicable
instruction may be taken from the Nebraska Jury Instructions,
that instruction is the one which should usually be given to
the jury in a criminal case.
Jury Instructions: Appeal and Error. All the jury
instructions must be read together, and if, taken as a whole,
they correctly state the law, are not misleading, and
adequately cover the issues supported by the pleadings and
the evidence, there is no prejudicial error necessitating
from the District Court for Lancaster County: Jodi L. Nelson
and Darla S. Ideus, Judges.
Timothy S. Noerrlinger, of Naylor & Rappl Law Office. PC,
L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for
Pirtle, Riedmann, and Bishop, Judges.