In re Kale H., 011921 NECA, A-20-447

Docket NºA-20-447
Opinion JudgeMOORE, JUDGE
Party NameIn re Interest of Kale H., a child under 18 years of age. v. Kale H., appellant. State of Nebraska, appellee,
AttorneyLyle Joseph Koenig, of Koenig Law Firm, for appellant. Roger L. Harris, Gage County Attorney, and Michael W. Wehling for appellee.
Judge PanelPirtle, Chief Judge, and Moore and Arterburn, Judges.
Case DateJanuary 19, 2021
CourtCourt of Appeals of Nebraska

In re Interest of Kale H., a child under 18 years of age.

State of Nebraska, appellee,

v.

Kale H., appellant.

No. A-20-447

Court of Appeals of Nebraska

January 19, 2021

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the County Court for Gage County: Steven B. Timm, Judge.

Lyle Joseph Koenig, of Koenig Law Firm, for appellant.

Roger L. Harris, Gage County Attorney, and Michael W. Wehling for appellee.

Pirtle, Chief Judge, and Moore and Arterburn, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

MOORE, JUDGE

INTRODUCTION

Kale H. appeals from the order of the county court for Gage County, sitting as a juvenile court, adjudicating him as a juvenile for being a minor in possession of alcohol. On appeal, he contends that the juvenile court erred in denying his motion to suppress and that the evidence was insufficient to support the minor in possession charge. For the reasons stated below, we affirm.

BACKGROUND

On August 14, 2019, the State filed a petition in the juvenile court, alleging that Kale was a juvenile within the meaning of Neb. Rev. Stat. § 43-247(3)(b) (Reissue 2016) who, by reason of being wayward or habitually disobedient, was uncontrolled by his parents; and who deported himself so as to injure or endanger seriously the morals or health of himself or others. Specifically, the State alleged that on or about July 28, Kale, being a minor under the age of 17, consumed or was in the possession of alcohol in violation of Neb. Rev. Stat. § 53-180.02 (Reissue 2010).

On November 18, 2019, Kale filed a motion to suppress all items of physical evidence seized by authorities on July 28, together with all statements allegedly made. Specifically, Kale alleged that (1) law enforcement entered the camper in which Kale was staying without a warrant or the owner's consent, (2) any consent given was not obtained from an individual privileged or authorized to give such consent, (3) any alleged statements made were the result of an illegal search and seizure, and (4) all evidence seized was the result of an unreasonable and illegal search.

A suppression hearing was held before the juvenile court on January 23, 2020. The State presented testimony from Sergeant Jason Sharp with the Gage County Sheriff's Office. Sharp was on duty on the evening of July 28, 2019, at the Gage County Fairgrounds. He was "working a special detail for the fair," with duties including providing "help at the closing of the beer garden," monitoring the fair campgrounds during the "quiet time" starting at 11 p.m., and in general providing surveillance against vandalism and other security. Sharp was aware that there had been problems with minors consuming alcohol earlier during the fair and "numerous complaints about people being loud down in the campground."

Because of those concerns, around 1:30 a.m., Sharp and another deputy walked through the campgrounds. They heard "some loud talking, some laughing, no yelling," and upon approaching, they found a group of young people, "under 21," outside of a camper. After asking the group to "keep it down," Sharp and the other deputy continued to walk around the campground. As they walked away, they were approached by two members of the Gage County Fair Board who stated that there were minors drinking at the camper from which they had just left.

Sharp and the other deputy then returned to the camper, and Sharp told the group they had just been given information that there were minors drinking. At that point, Sharp observed a young woman walk into the camper. Upon Sharp's inquiry, someone in the group told him the camper belonged to Bobby H. (Kale's father); the group also stated that Bobby was not inside the camper. Sharp then went up to the camper and knocked on the door and a young woman identified as Haley T. answered the door and said that she had been babysitting. Once the door was open, Sharp could also see another person, whom he knew was 21, sitting on a couch inside the camper.

At some point, the other deputy informed Sharp that he could see alcohol containers sitting out in the open. From Sharp's position, he was not initially able to see the alcohol containers, but once the other deputy pointed out their presence, Sharp was able to see them as well. Sharp then told the occupants of the camper that he had been given information that there were minors drinking in the camper, and he asked the young people inside (all under 21 except for the one individual identified by Sharp) to exit the camper. As this group exited the camper, Sharp asked each of them whether they had had anything to drink.

Sharp identified one of the underage individuals in the camper as Kale. When Sharp questioned Kale about whether he had been drinking, Kale responded, "not much," and he also indicated that he had been sleeping. Upon a search of the camper, several containers of alcohol were found, some of which were open and some closed.

On cross-examination, Sharp agreed that he did not know where or when Kale might have been drinking. He also confirmed that the camper was searched without a warrant.

Following the suppression hearing, the juvenile court entered an order denying Kale's motion to suppress. We discuss the court's ruling further as necessary in the analysis section below.

An adjudication hearing was held on May 21, 2020. The State presented testimony from Sharp, whose testimony was consistent with his testimony at the suppression hearing. During the course of Sharp's testimony, Kale renewed his motion to suppress. After the State rested, Kale's attorney made a motion to dismiss, which was taken under advisement by the juvenile court. Kale did not present any evidence.

The juvenile court entered an order adjudicating Kale as a juvenile within the meaning of § 43-247(3)(b), finding beyond a reasonable doubt that he was a minor (under the age of 19) in possession of alcohol in violation of § 53-180.02. The court ordered Kale to pay a fine of $250. Kale subsequently perfected his appeal to this court.

ASSIGNMENTS OF ERROR

Kale asserts that the juvenile court erred in (1) failing to suppress the evidence of possession of alcoholic beverages for the reason that the evidence was obtained as a result of an illegal search and seizure and (2) finding him guilty of being a minor in possession of alcohol when there was not sufficient evidence to support the finding.

STANDARD OF REVIEW

An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court's findings. In re Interest of Seth C., 307 Neb. 862, 951 N.W.2d 135 (2020). When the evidence is in conflict, however, an appellate court may give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other. In re Interest of Leyton C. & Landyn C., 307 Neb. 529, 949 N.W.2d 773 (2020).

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. State v. Andera, 307 Neb. 686, 950 N.W.2d 102 (2020). Regarding historical facts, the appellate court reviews the trial court's findings for clear error. Id. But whether those facts trigger or violate Fourth Amendment protections is a question of law that the appellate court reviews independently of the trial court's determination. State v. Andera, supra.

ANALYSIS

Motion to Suppress.

Kale asserts that the juvenile court erred in failing to suppress the evidence of possession of alcoholic beverages for the reason that the evidence was obtained as a result of an illegal search and seizure. Kale argues that his encounter with law enforcement was an investigative stop and that because Sharp lacked reasonable suspicion for the initial detention of Kale, all statements made by Kale and evidence from the search of the camper should have been suppressed. The State argues,...

To continue reading

FREE SIGN UP