State v. Baltimore, S-91-124
| Decision Date | 26 February 1993 |
| Docket Number | No. S-91-124,S-91-124 |
| Citation | 495 N.W.2d 921,242 Neb. 562 |
| Parties | STATE of Nebraska, Appellee, v. Steave BALTIMORE, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Constitutional Law: Police Officers and Sheriffs: Search and Seizure: Evidence. Evidence seized in a defendant's home as the result of a nonconsensual entry by police without a warrant is a product of an unreasonable search and seizure and may be suppressed as constitutionally inadmissible evidence.
2. Standing: Warrantless Searches. Before one may challenge a search without a warrant, one must have standing in a legal controversy.
3. Standing: Words and Phrases. "Standing" means that a person has a sufficient legally protectable interest which may be affected in a justiciable controversy, entitling that person to judicial resolution of the controversy.
4. Courts: Jurisdiction. While not a constitutional prerequisite for jurisdiction of courts of the State of Nebraska, existence of an actual case or controversy, nevertheless, is necessary for the exercise of judicial power in Nebraska.
5. Courts: Justiciable Issues. A court decides real controversies and determines rights actually controverted, and does not address or dispose of abstract questions or issues that might arise in a hypothetical or fictitious situation or setting.
6. Standing: Jurisdiction. Standing relates to a court's power, that is, jurisdiction, to address issues presented and serves to identify those disputes which are appropriately resolved though the judicial process.
7. Standing: Jurisdiction. Standing relates to jurisdiction and prudential considerations regarding exercise of jurisdiction.
8. Standing: Jurisdiction: Justiciable Issues. As an aspect of jurisdiction and justiciability, standing requires that a litigant have such a personal stake in the outcome of a controversy as to warrant invocation of a court's jurisdiction and justify exercise of the court's remedial powers on the litigant's behalf.
9. Claims: Parties. Generally, a litigant must assert the litigant's own legal rights and interests, and cannot rest a claim on the legal rights or interests of third parties.
10. Standing: Courts: Jurisdiction: Parties. Because the requirement of standing is fundamental to a court's exercising jurisdiction, a litigant or a court before which a case is pending can raise the question of standing at any time during the proceeding.
11. Constitutional Law: Search and Seizure. A person's expectation of privacy may be based on the right to be let alone by other people, the right to withhold property from public scrutiny, or the person's belief that he or she is secure from intrusion by others.
12. Constitutional Law: Search and Seizure. The capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place, but upon whether the person who claims the protection of the amendment has a legitimate expectation of privacy in the invaded place.
13. Search and Seizure. A person may have a sufficient interest in a place other than his home to enable the person to be free in that place from unreasonable searches and seizures.
14. Constitutional Law: Standing: Police Officers and Sheriffs: Search and Seizure. Since constitutional protection against an unreasonable search and seizure is a personal right, a defendant's expectation of privacy in another's residence, not the fact that the building is someone else's residence, gives the defendant a legitimate expectation of privacy and standing to challenge a police search of the residence.
Thomas M. Kenney, Douglas County Public Defender, and Brian S. Munnelly, Omaha, for appellant.
Don Stenberg, Atty. Gen., and James A. Elworth, Lincoln, for appellee.
As a result of a jury trial in the district court for Douglas County, Steave Baltimore was convicted on separate counts of possessing a controlled substance, Ritalin (methylphenidate hydrochloride) and Talwin (pentazocine), with the intent to distribute, deliver, or dispense the substances, contrary to Neb.Rev.Stat. § 28-416(1)(a) (Reissue 1989) of the Nebraska Criminal Code. As the sole assignment of error in his appeal, Baltimore claims that the Ritalin and Talwin, seized by police and introduced as physical evidence over Baltimore's objection at trial, were unconstitutionally obtained by an unreasonable search and seizure.
The Surveillance.
The narcotics unit of the Omaha Police Division received information that an illegal narcotics operation was being conducted in Omaha at a vacant house described as 2509 Grant Street. Sometime on June 13, 1990, near the vacant house, a police informant had purchased some Ritalin and Talwin from Baltimore and supplied the narcotics unit with a detailed description of Baltimore, including his physical characteristics About 10:30 p.m. on June 13, 1990, officers of the narcotics unit took up surveillance of the vacant house. Officers involved in the surveillance were, among others, Bruce M. Ferrell, Mark T. Langan, and Mark Sundermeier. When the officers commenced their surveillance, an individual, later identified as Cowans, was seated in a lawn chair beneath the carport attached to the vacant house. Police observed that another man, fitting the previous description of Baltimore according to the informant, walked toward the rear of the vacant house, bent down, and picked up something from the ground. That man then proceeded to enter the Cowans residence through a rear door on the west side of the house. At that time, the officers decided to approach Cowans and Baltimore, who was still in Cowans' house.
and the clothing worn by him. Arthur Cowans resided in a house at 2218 North 25th Avenue, catercorner and southeast of the vacant house. Consequently, Baltimore and Cowans were prime suspects in the narcotics traffic area. East of and adjacent to Cowans' residence was a dwelling at 2220 North 25th Avenue, where James Holly lived. Baltimore lived several blocks from the Holly house and Cowans' residence. Between Cowans' residence and the Holly house was a small vegetable garden where Baltimore and his cogardner-friend, Holly, raised corn, sweet potatoes, and cabbage. Since there was no water supply for the garden, Baltimore prevailed on Cowans for use of a garden hose kept inside Cowans' house and water from the Cowans residence. Cowans "sometimes" gave Baltimore a key to Cowans' house so that Baltimore "borrowed the hose from Cowans" and "hooked it up and watered" the Baltimore-Holly garden.
Police Entry into Cowans' Residence.
Wearing a jacket with "Omaha Police" printed in fluorescent letters and with his badge displayed from a chain around his neck, Officer Ferrell went to the rear door of Cowans' house and knocked. Baltimore partially opened the door and, when he saw Ferrell, who identified himself as a police officer, tried to slam the door with his left hand, while simultaneously using his right hand to throw an object behind him. Ferrell put his foot in the open doorway and heard something hit the floor inside the house. Believing that Baltimore was about to conceal or destroy evidence, Ferrell threw open the door and entered the house's kitchen area. Ferrell then arrested Baltimore and placed handcuffs on him near the refrigerator. Another officer entered and took charge of Baltimore, while Ferrell went to talk with Officer Sundermeier, who had taken Cowans into custody. Ferrell walked to the carport at the vacant house, where, in the meantime, officers had found a pharmaceutical container labeled "Talwin" and $590 in cash on Cowans. Ferrell asked Cowans' permission to search the Cowans residence for drugs and weapons. Officer Langan, also present when Ferrell was talking with Cowans, told Cowans that the police wanted to search his house for Ritalin and Talwin. Cowans verified that Baltimore did not live in Cowans' residence and granted permission to the police for a search of the Cowans house.
Ferrell and Langan went back into the kitchen of Cowans' house, where Baltimore was still handcuffed and in the custody of an officer. In a trash box beneath a table near the refrigerator, Ferrell discovered a brown "pill bottle" containing tablets, later analyzed and identified as 67 Talwin tablets and 26 Ritalin tablets. Several other pill bottles were retrieved from the trash box. On searching Baltimore's person, officers found a set of keys that fit the lock and dead bolt in the rear door of the Cowans house. Police transported Baltimore to their headquarters, and he was later charged regarding the Ritalin and Talwin taken from Cowans' residence.
Before trial, Baltimore filed his motion to suppress the State's use of the Ritalin and Talwin discovered at Cowans' house as evidence against Baltimore, and alleged that the police unconstitutionally obtained the substances by an unreasonable search and seizure, in violation of U.S. Const. amend. IV and Neb. Const. art. I, § 7. After the Ferrell testified concerning the circumstances and events surrounding his participation in the surveillance previously described and his entry into Cowans' house. Langan, as a specially trained narcotics investigator, testified about Ritalin, a mild central nervous system stimulant, and Talwin, a potent analgesic with sedative properties and effects similar to codeine. According to Langan, individuals illegally purchase a "set" of Talwin and Ritalin, that is, one Talwin tablet and two Ritalin tablets per set, which sell for $21. The tablets are then pulverized and, being readily soluble, are dissolved in water to achieve a liquid for an intravenous injection that produces a "heroin-type high."
court denied Baltimore's suppression motion, Baltimore went to trial, during which he renewed his constitutional objection...
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