State v. Butzke

• Decision Date: 21 July 1998
• Docket Number: No. A-97-436,A-97-436
• Citation: 7 Neb.App. 360,584 N.W.2d 449
• Parties: STATE of Nebraska, Appellee, v. Tommy R. BUTZKE, Sr., Appellant.
• Court: Nebraska Court of Appeals

Page 449

584 N.W.2d 449

7 Neb.App. 360

STATE of Nebraska, Appellee, v. Tommy R. BUTZKE, Sr., Appellant.

No. A-97-436.

Court of Appeals of Nebraska.

July 21, 1998.

Syllabus by the Court

1. Motion to Suppress: Investigative Stops: Warrantless Searches: Probable Cause: Appeal and Error. A trial court's ruling on a motion to suppress, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. In making this determination, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses.

2. Convictions: Appeal and Error. In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.

3. Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions which must be zealously and carefully drawn and applied only where there is a showing that the exigencies of the situation made that course imperative.

4. Warrantless Searches: Search and Seizure: 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.

5. Constitutional Law: Search and Seizure: Waiver. The right to be free from an unreasonable search and seizure, as guaranteed by the 4th and 14th Amendments to the U.S. Constitution and by article 1, § 7, of the Nebraska Constitution, may be waived by the consent of the citizen. In order for a consent to search to be effective, however, it must be a free and unconstrained choice and not the product of a will overborne.

6. Warrantless Searches: Proof. When the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that the consent was given by the defendant, but may show that the permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises; or effects sought to be inspected.

7. Warrantless Searches: Police Officers and Sheriffs. A warrantless search is valid when based upon consent of a third party whom the police, at the time of the search, reasonably believed possessed authority to consent to a search of the premises, even if it is later demonstrated that the individual did not possess such authority.

8. Search and Seizure; Proof. The burden is upon the government to prove that a consent to search was voluntarily given.

9. Search and Seizure; Proof. When the consent of a third party to search is relied upon, the burden of establishing common authority over the premises rests upon the State.

10. Warrantless Searches: Minors. When the State relies upon a minor's third-party consent to justify a warrantless search, the child's age, intelligence, and maturity are critical on the voluntariness issue, on the question of whether the child possessed common authority over or other sufficient relationship to the area or thing sought to be inspected, and on whether the searching party reasonably believed the child possessed authority to consent even if it is later demonstrated that the child did not possess such authority.

11. Constitutional Law: Search and Seizure. The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and voluntariness is a question of fact to be determined from all the circumstances.

12. Search and Seizure: Duress. To be effective, a consent to search must be a free and unconstrained choice and not the product of a will overborne. The consent must be given voluntarily and not as a result of duress or coercion, whether express, implied, physical, or psychological.

13. Criminal Law: Intent. The intent with which an act is done is a mental process and may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident.

14. Criminal Law: Intent: Alcoholic Liquors. In procuring liquor for a minor, the general criminal intent is supplied by the performance of the proscribed act. The offense of procuring liquor for a minor does not involve a specific criminal intent.

Gregory C. Damman, Lincoln, for appellant.

Don Stenberg, Attorney General, and David T. Bydalek, Lincoln, for appellee.

MILLER-LERMAN, C.J., and SIEVERS and MUES, JJ.

MUES, Judge.

I. INTRODUCTION

Tommy R. Butzke, Sr., was convicted of procuring alcohol for a minor, in violation of Neb.Rev.Stat. § 53-180 (Reissue 1993). He appeals, alleging the district court erred in affirming the county court's denial of his motion to suppress and in affirming the county court's finding that the evidence was sufficient to show the requisite intent necessary for conviction.

II. STATEMENT OF CASE

Butzke had a high school graduation party for his son, Chad, on May 21, 1995. Invitations were extended to family and friends, who were mainly married couples and their children. No teenagers were formally invited unless part of an invited family. The Butzke residence was prepared for the party to include various games and activities. Extensive food and beverage preparation was involved, with beverages to include soda pop, iced tea, punch, keg beer, and nonalcoholic beer.

On May 21, Chad, age 17, was subject to two juvenile probation orders, one of which was "intensive supervision probation" imposed due to a juvenile adjudication stemming from minor in possession (MIP) and criminal mischief charges. As a condition of probation, he was not allowed to be in places of "harmful character," including places with alcohol. He had discussed the party with his probation officer, Tom Koch, the week prior to the party. Chad told Koch that there was going to be alcohol present, just as there had been at the graduation parties his father had given for his siblings. Koch told Chad that Chad was not to drink alcohol and explained that Koch might be coming to the party to see if Chad was drinking. Butzke was aware, before the party, that Koch might be coming to check on Chad.

On the day of the party, the food, iced tea, and punch were set out in the kitchen. The keg beer was placed on the outside porch with the nonalcoholic beer and soda pop. Red plastic cups for the guests were placed beside all of the beverages. In the early afternoon, the guests began to arrive, and by the time Chad arrived in the late afternoon, people were drinking, eating, and socializing. Activities included playing basketball, volleyball, horseshoes, card games, and Nintendo and riding horses.

As Koch had warned, he eventually arrived to check on Chad. He arrived at approximately 10:45 p.m., accompanied by two Nebraska State Patrol troopers and a Seward County deputy sheriff. At trial, Koch testified that there were 50 to 75 vehicles parked near the Butzkes' rural residence as he and the officers approached it.

As Koch and the officers arrived in two vehicles, a group of people disbanded and scattered into a nearby field. As Koch and the officers exited their cars and approached the residence, they saw approximately 150 people either around the porch, in a field next to the house, or near a picnic table. As Koch proceeded toward the house, he was greeted by Chad, who was immediately administered a breath test. The result was .000. After determining that Chad had not been drinking alcohol, Koch visited generally with Chad about the party. Koch observed a keg of beer on the front porch and about 100 people in the yard. Some held beer bottles, beer cans, or red cups and appeared to Koch to be minors, but he testified that he had no idea how old these individuals were. He then asked Chad

if it was alright if I walked with him and basically look for alcohol. This was part of his probation he was not to be in a place of harmful character to include with alcohol, and it appeared to me that there was a high probability there was alcohol on this [sic] premises that he had access to whether he was drinking it or not. And so I obtained permission from him to see how much alcohol was on the residence.

Chad said this was fine. However, Koch also testified that he conducted the search pursuant to the probation conditions which stated that Chad was "to permit the Probation Officer to visit [him] in a reasonable manner at home, school or elsewhere" and was to "[s]ubmit to reasonable search and seizure of premises, person, or vehicle by or upon the request of the probation officer." Koch testified that he had previously discussed the probation order's conditions with Chad in the presence of Butzke and that Butzke had "signed off" on the terms of Chad's probation. However, there is no evidence that the probation conditions were discussed on the night of the search.

Koch proceeded to walk to a picnic table on the lawn south of the house. There he found Butzke and other adults seated. He testified that he told Butzke that he was going to look around and that Butzke did not object. Koch and Chad then proceeded to a field area an undescribed distance west of the house where the deputy sheriff was dumping alcohol from Busch Light beer cans. Koch then asked to take a look around the house, and Chad escorted him to the backyard area where Koch noticed 25 to 30 red cups on the ground, which, in his opinion, contained beer. He and Chad tipped over the containers. When asked where the beer was coming...