State v. Cox
| Citation | 529 N.W.2d 795,247 Neb. 729 |
| Decision Date | 31 March 1995 |
| Docket Number | No. S-93-1044,S-93-1044 |
| Parties | STATE of Nebraska, Appellee, v. Calvin F. COX, Appellant. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court
1. Statutes. The meaning of a statute is a question of law.
2. Appeal and Error. In connection with a question of law, a reviewing court has an obligation to reach a conclusion independent of that of the inferior court.
3. Constitutional Law: Search and Seizure. While with respect to searches the principal object of the Fourth Amendment to the U.S. Constitution is the protection of privacy rather than property, seizures nonetheless involve property interests.
4. Criminal Law: Motions to Suppress: Evidence. A defendant may in a criminal trial move for suppression of evidence even though under the facts the defendant could not sustain a property-based action of replevin or trespass for the thing suppressed.
5. Statutes: Legislature: Intent. In reading a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.
6. Statutes. It is not within the province of a court to read a meaning into a statute that is not warranted by the language; neither is it within the province of a court to read anything plain, direct, and unambiguous out of a statute.
7. Search and Seizure: Property: Words and Phrases. The phrase "seized property" means property seized in which the defendant or another person has a possessory interest.
David E. Veath, Chadron, for appellant.
Don Stenberg, Atty. Gen., and Marilyn B. Hutchinson, Lincoln, for appellee.
The Nebraska Court of Appeals affirmed the district court's judgment that the defendant-appellant, Calvin F. Cox, was guilty of driving under the influence of alcohol. State v. Cox, 3 Neb.App. 80, 523 N.W.2d 52 (1994). Cox then successfully moved this court for further review, asserting, in summary, that the Court of Appeals erred in failing to rule that the district court had wrongly asserted jurisdiction over certain evidence used to convict him and thus improperly received that evidence. We now affirm the judgment of the Court of Appeals.
Cox was initially charged in the county court for Box Butte County with driving while intoxicated. After the county court sustained Cox' motion to suppress certain evidence, the plaintiff-appellee, the State of Nebraska, successfully moved for dismissal. The State thereafter instituted in the district court the proceedings giving rise to this appeal.
Remarkably enough, although several of Cox' assignments of error in the Court of Appeals centered around the county court's order of dismissal, that order was not made a part of the record until it was supplied in response to this court's order to Cox to show cause why his appeal should not be dismissed. As a consequence, the record now reveals that although the State filed its information in the district court on July 30, 1993, the county court did not dismiss the action pending therein until August 5, 1993, with an order reciting that the matter was being Although on October 20, 1993, the district court held a hearing on Cox' motion in that court to suppress "any and all evidence obtained from or about his person" at or near the date of his arrest, a copy of the county court's order was not filed in the district court until December 28, 1994, after this court entered its show cause order.
The error Cox has assigned to the Court of Appeals rests on the provisions of Neb.Rev.Stat. § 29-827 (Reissue 1989), which read:
Where motions to suppress and for the return of seized property are made in courts inferior to the district court in cases involving violations of state laws, the county attorney may give notice to such court that the property in question will be further required as evidence, may then dismiss the action in such court and refile the complaint in the district court. In its order of dismissal the court shall order transfer of the property to the jurisdiction of the district court.
Cox urges that as the State did not make known to the district court that the county court had transferred to the district court the property which had been within the jurisdiction of the county court and which the county court had suppressed, the district court did not acquire jurisdiction over the property and thus could not receive the property in evidence. More specifically, Cox contends that the district court had no jurisdiction to receive in evidence the printed record of the result of the blood alcohol test performed on him after his arrest.
The question is the meaning of § 29-827. The meaning of a statute is a question of law, in connection with which a reviewing court has an obligation to reach a conclusion independent of that of the inferior court. State v. Wragge, 246 Neb. 864, 524 N.W.2d 54 (1994).
Cox' argument assumes that by virtue of its being tangible, the written record of the blood alcohol test result is "property" in the sense in which that term is used in § 29-827. He then postulates that since the district court was not supplied with an order of the county court transferring jurisdiction over that item to the district court, the district court lacked jurisdiction over it and thus could not receive the item into evidence.
The argument suffers from two fatal fallacies. The first is that it equates the suppressing of evidence with the returning of seized property. However, § 29-827 does not equate the two matters, for it addresses "motions to suppress and for the return of seized property." (Emphasis supplied.) The statute thereby contemplates separate motions to achieve different results.
Properly so, for while with respect to searches the principal object of the Fourth Amendment to the U.S. Constitution is the protection of privacy rather than property, Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), seizures nonetheless involve property interests, Soldal v. Cook County, Ill., 506 U.S. 56, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (), and United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). As noted in Soldal, 506 U.S. at ---- - ----, 113 S.Ct. at 545-46:
Suppose ... that police officers lawfully enter a house, by either complying with the warrant requirement or satisfying one of its recognized exceptions-- e.g., through a valid consent or a showing of exigent circumstances. If they come across some item in plain view and seize it, no invasion of personal privacy has occurred.... If the boundaries of the Fourth Amendment were defined exclusively by rights of privacy, "plain view" seizures would not implicate that constitutional provision at all.
See, also, U.S. v. Conley, 856 F.Supp. 1010 (W.D.Pa.1994).
As a result of the evolution from early common-law emphasis on property rights to concerns over privacy interests, the U.S. Supreme Court has established that a defendant could move for suppression in a criminal trial even though under the facts the defendant could not sustain a property-based action of replevin or trespass for the thing suppressed. See Warden, supra, citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), overruled on other grounds, United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980).
In Silverthorne Lumber Co., numerous papers were seized in violation of the Fourth Amendment. Photographs and copies were then made and were used as the basis of an indictment. The U.S. Supreme Court rejected the notion that even though the papers were illegally obtained, the government could copy them, return the originals, and then use the...
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