State v. Bray
| Decision Date | 29 September 2017 |
| Docket Number | No. S-16-874.,S-16-874. |
| Citation | 297 Neb. 916,902 N.W.2d 98 |
| Parties | STATE of Nebraska, appellee, v. Ethan BRAY, appellant. |
| Court | Nebraska Supreme Court |
Keith M. Kollasch, Nemaha County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph, Lincoln, for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.
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.
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. Delaware1 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 the evidence sufficient to warrant a Franks hearing, and the following evidence was adduced.
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.
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 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 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.
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 also read the form on his own. The form advised Bray of his right to refuse to consent to a search.
Bray filled in his biographical information and then signed the consent form. Bray affirmed on the form that he was giving permission to search his room and vehicle freely and voluntarily and that he had been informed of his right to refuse to permit the search.
After signing the form, Bray told the officers that he had over an ounce of marijuana in his room and wanted to show them other items in the room too. Bray "led the way" and showed them items in the room that were not particularly incriminating. Eventually, Bures informed Bray that they could conduct the search unassisted. The officers did so, though Bray continued to watch.
The officers seized a small amount of marijuana, the bong, and the grinder that were visible from the doorway. Several additional items that had not been plainly visible were found and seized during the search: two additional containers of marijuana, marijuana resin, two bottles of hashish oil, psilocybin mushrooms, a bottle of hydrocodone prescribed to Gonsalves, three loose amphetamine pills, a 100-gram weight, a digital scale, plastic wrap, small plastic bags, and $1,500 in cash. Bray was taken into custody, at which point he refused to make any statements and requested legal counsel.
At the hearing on the motion to suppress, the county attorney acknowledged that the judge had said he would find the search warrant invalid if the informant who provided the information for the warrant affidavit was in custody when he provided the information. Therefore, the county attorney focused on arguing that Bray's consent to the search was sufficiently attenuated from any taint deriving from an illegal search warrant, such that suppression of the evidence was not warranted.
Defense counsel argued that the case law does not support the concept of voluntary consent to a search requested pursuant to observations while on the premises under an invalid warrant. Counsel argued that in such situations, there is never sufficient attenuation from the illegal warrant to purge the primary taint. Counsel further asserted that the Eighth Circuit and several other courts do not expand protective sweeps to nonarrest situations and that there were no specific, articulable facts in this case indicating there were weapons in the house; thus, the...
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