State v. Abdouch
| Decision Date | 20 January 1989 |
| Docket Number | No. 88-079,88-079 |
| Parties | , 57 USLW 2482 STATE of Nebraska, Appellee, v. Jean L. ABDOUCH, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Constitutional Law: Search and Seizure. To determine whether a private person's search is actually a search by the state depends on whether the private person must be regarded as having acted as an instrument or agent of the state. The preceding test to determine governmental involvement in a search with a private person is applicable to questions relative to the fourth amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution.
2. Constitutional Law: Search and Seizure. A private person's status as a state or government agent in a search is not restricted to a search ordered, requested, or initiated by the state or government official but may include a search which is a joint endeavor between a private person and a state or government official.
3. Constitutional Law: Search and Seizure. A search is subject to the constitutional safeguard against an unreasonable search, prohibited by the fourth amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution, if the search is a joint endeavor involving a private person and a state or government official.
4. Constitutional Law: Search and Seizure: Words and Phrases. In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), reference to "fruit of the poisonous tree" is a condemnation of the government's subsequent exploitation of a prior violation of a defendant's constitutional right.
5. Constitutional Law: Search and Seizure. Whether evidence is the derivative product of a constitutionally invalid search turns on the question whether, granting establishment of the primary illegality, the evidence to which instant objection 6. Constitutional Law: Search and Seizure: Miranda Rights: Confessions. The Miranda warning, by itself, does not preclude exclusion of a defendant's custodial statement induced by confrontation with evidence obtained through the constitutionally invalid search because the Miranda warning does not break the cause-and-effect relationship between an illegal search and a defendant's subsequent incriminating statement, confession, or admission.
is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.
Thomas M. Kenney, Douglas County Public Defender, and Timothy P. Burns, Omaha, for appellant.
Robert M. Spire, Atty. Gen., and Donald E. Hyde, Lincoln, for appellee.
In a bench trial, Jean L. Abdouch, formerly Jean Fletcher, was convicted on the charge of manufacturing a controlled substance, marijuana, in violation of Neb.Rev.Stat. § 28-416(1)(a) (Cum.Supp.1986). Abdouch claims that certain physical evidence and her oral statements, made while she was in police custody, were constitutionally inadmissible evidence under the fourth amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution. Before trial, Abdouch moved for suppression of the evidence in question. See Neb.Rev.Stat. §§ 29-115 () and 29-822 (Reissue 1985) (suppression of physical evidence). The district court overruled Abdouch's suppression motions and, over Abdouch's objection at trial, admitted into evidence the physical evidence and statements which were the subject of Abdouch's suppression motions.
In determining the correctness of a trial court's ruling on a motion to suppress, the Supreme Court will uphold the trial court's findings of fact unless those findings are clearly erroneous. State v. Blakely, 227 Neb. 816, 420 N.W.2d 300 (1988). In determining whether a trial court's findings on a motion to suppress are clearly erroneous, the Supreme Court recognizes the trial court as the "trier of fact" and takes into consideration that the trial court has observed witnesses testifying regarding such motion to suppress. State v. Blakely, supra. Admission or exclusion of evidence is a matter for the discretion of the trial court, whose ruling on an evidential question will be upheld unless such ruling constitutes an abuse of discretion. State v. Copple, 224 Neb. 672, 401 N.W.2d 141 (1987); State v. Clancy, 224 Neb. 492, 398 N.W.2d 710 (1987). If police have acted without a search warrant, the State has the burden of proof that the search was conducted under circumstances substantiating the reasonableness of such search or seizure. State v. Vrtiska, 225 Neb. 454, 406 N.W.2d 114 (1987).
In April 1979, Terry and Susan Clark, as tenants in common, signed a month-to-month lease for a 7-acre rural tract on a quarter section near Elkhorn in Douglas County, Nebraska. The leasehold consisted of a house and some outbuildings. Susan left Terry in 1984, after which she never lived on or claimed the leased premises as her residence. However, since 1984 Terry Clark and Abdouch lived together on the leasehold but were not married to each other. Terry and Susan Clark were divorced in June 1985. What effect Clarks' dissolution proceeding may have had on the lease is undisclosed.
Two days after Terry Clark's intestate death on June 15, 1987, Susan Clark, the mother of Terry's 8-year-old son, Lee, unsuccessfully attempted to contact Abdouch by telephone to obtain any of Terry's personal property for the benefit of Lee. There were no probate proceedings relative Sgt. Ronald A. Larson of the Douglas County Sheriff's Department was assigned to accompany Susan Clark to the farmstead which was previously Terry Clark's residence and which was presently occupied by Abdouch as her home. Larson and Deputy Sam Christensen met with Susan Clark and other members of Terry Clark's family at a bowling alley in Elkhorn, where Larson was shown a copy of the 1979 lease to Terry and Susan Clark. Christensen had an arrest warrant for Abdouch on the charge of drunk driving. Although the officers realized that Susan and Terry Clark were divorced, and none of the Clark family had a court order authorizing entry on the leasehold or possession of Terry Clark's personal property, the officers accompanied the Clark family to the farmstead to search for and retrieve Terry Clark's personal property. Neither officer had a search warrant for the premises.
to Terry Clark's death. In view of her inability to reach Abdouch, Susan Clark contacted the Douglas County Sheriff's Department for assistance in securing Terry Clark's belongings "[t]o make sure there would not be any problems when we went to the farm...."
On arrival at Abdouch's residence on June 17, Clarks and the officers found an adult babysitter caring for Abdouch's children in Abdouch's absence. When the babysitter said Abdouch would be returning shortly, Sergeant Larson stated the reason for the officers' presence with the Clark family, namely, to take possession of Terry Clark's belongings. Without further incident, the Clark family, including Susan Clark, and the officers entered the house and began looking for tools, clothing, miscellaneous household items, and firearms of Terry Clark, which articles were not specifically described or identified with any degree of particularity. Household furnishings belonged to Abdouch.
While members of the Clark family continued to rummage through the house in search of Terry Clark's property, the officers went to a barn, about 50 yards from the house, and, on entering the barn through an open doorway, found two tables comprised of sawhorses and plywood slats. On the tables were 23 plastic trays with paper cups, which contained soil and germinating marijuana seeds, and a plastic bag of marijuana seeds. As the officers left the barn through a side door, they saw six cultivated plots, adjacent to the barn, with seedling marijuana plants in various stages of growth. The officers summoned members of the narcotics unit of the Douglas County Sheriff's Department. Before the narcotics officers arrived, Abdouch returned, was arrested pursuant to the DWI warrant, and was removed to the Douglas County corrections office.
When the narcotics officers arrived, Larson briefed them on his discovery at the barn. During this briefing, Terry Clark's sister-in-law called to the officers, asking them to come to the house because Lee, Terry Clark's 8-year-old son, had something to show the officers. Responding, the officers found the boy, apparently at the door, with a paper grocery sack containing 3 1/2 pounds of marijuana seeds. Lee went back inside the house and returned shortly with a "bong," a pipe used to smoke marijuana. The officers asked Susan Clark whether they could search the house. According to Deputy William H. Jackson, one of the narcotics officers, entry without a search warrant was not the result of apprehension that potential evidence or contraband might be destroyed or unofficially removed. With Susan Clark's permission, the officers entered the house and commenced their search of its interior. Jackson, searching in the kitchen, found a letter, dated June 15 and presumably written by Abdouch to a person named "Ann," which stated:
Those seeds we got are doin' great. I just pinched them all, fertilized em! Wait' til' you see them. I wish Kevin was comin' with you. (I) We miss him too. He's got to make me another Blues tape. He has the best blues in the world. I tell ya what a tape for the weed. Huh Kevin?!....
At some point during the officers' search of the house, Terry Clark's sister-in-law gave Jackson a "Dream Book," which was Abdouch's diary and contained the May 19 entry, "planted dope."
Approximately 5 hours after discovery of the contraband, smoking paraphernalia, correspondence, and diary, Jackson arrived...
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