State v. Eacker

• Decision Date: 19 October 2021
• Docket Number: A-21-017
• Parties: State of Nebraska, Appellee, v. Tristen R. Eacker, Appellant.
• Court: Nebraska Court of Appeals

State of Nebraska, Appellee, v. Tristen R. Eacker, Appellant.

No. A-21-017

Court of Appeals of Nebraska

October 19, 2021

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Lancaster County: Susan I Strong, Judge.

Jonathan M. Braaten, of Anderson, Creager & Wittstruck P.C., L.L.O, for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.

Pirtle, Chief Judge, and Moore and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

MOORE, JUDGE.

INTRODUCTION

Following his plea of no contest, Tristen R. Eacker was convicted of attempted possession of a firearm with a felony drug violation. He was sentenced to 7 to 12 years' imprisonment. Eacker claims on appeal that his sentence is excessive and that he received ineffective assistance of counsel. Finding no error, we affirm.

STATEMENT OF FACTS

On January 31, 2019, the State filed an information in the district court for Lancaster County charging Eacker with four counts of possession of a controlled substance, in violation of Neb. Rev. Stat. § 28-416(3) (Cum. Supp. 2020), all Class IV felonies; one count of possession with the intent to deliver a controlled substance, in violation of §§ 28-416(1)(a) and (2)(b), a Class IIA felony; one count of possession of a stolen firearm, in violation of Neb. Rev. Stat. § 28-1212.03 (Cum. Supp. 2020), a Class IIA felony; and possession of a firearm with a felony IIA drug violation, in violation of § 28-416(16), a Class II felony.

Motion to Suppress.

Eacker filed a motion to suppress on April 15, 2019, and an amended motion to suppress on October 3. These motions sought to suppress all evidence seized in the search of Eacker's residence following his arrest on November 2, 2018.

In his motions to suppress, Eacker asserts that on November 2, 2018, Lincoln Police Department officers gathered outside of Eacker's residence in anticipation of obtaining a search warrant. Prior to police obtaining the warrant, other persons came out of Eacker's residence. After that, police entered Eacker's residence without a warrant and began conducting a search. During this warrantless search, an officer found a plastic baggie of marijuana inside the residence. The discovery of the marijuana inside the residence was noted in the affidavit for search warrant. Eacker argued in his motions that the protective sweep was a warrantless search of his residence in violation of his constitutional rights. Eacker also contended that the subsequently obtained search warrant was tainted by the "illegal" entry into his residence because the marijuana found in the warrantless search was included in the search warrant affidavit.

A suppression hearing was held on October 24, 2019. Testimony was given by the four officers involved in the investigation of Eacker and the search of his residence.

Sergeant Jeff Sorensen testified that on November 2, 2018, officers detained Eacker at a traffic stop roughly two blocks away from his residence. Shortly after, Eacker's mother and brother approached the scene of Eacker's detention and began confronting the officers. Sorensen testified that based on the information gathered during the traffic stop, probable cause existed to search Eacker's residence and Sorenson sent Investigator Joseph Villamonte to draft an affidavit for a search warrant.

Sorensen testified that because the traffic stop had occurred away from Eacker's residence, seizing the residence was not initially necessary. However, because of the confrontational nature of Eacker's mother and brother at the traffic stop, Sorensen felt that seizing the residence and preventing Eacker's family members from entering would benefit officer safety. Eacker's mother and brother then approached the residence where officers had already arrived to prevent entry. Eacker's family continued to be confrontational with law enforcement, and Sorensen testified that in managing Eacker's family members, officers turned their backs to the residence which created a safety issue.

Sorensen testified that Eacker's mother informed him that there were additional people inside the home. After officers knocked on the front door, two other members of Eacker's family exited the residence. At the time, only one officer was available to be placed at the back of the residence. Sorensen additionally testified to a history of individuals escaping the residence by a second story window to evade law enforcement. Sorensen decided that a protective sweep of the home would be necessary because it was unknown to him if there were others in the residence, and he had a concern for the safety of the officers as well as bystanders at the scene.

The officers who conducted the protective sweep testified that they had looked in the closet in the residence because it was large enough for a person to hide inside. No furniture was blocking access to the closet. Inside the closet the officers found a baggie of marijuana. The officers did not remove the baggie of marijuana at the time of the protective sweep.

Villamonte testified that he was already in the process of drafting the affidavit when he was informed by Sorensen that marijuana had been found at Eacker's residence. Villamonte included that fact at the end his affidavit for search warrant.

On January 17, 2020, the district court denied Eacker's motion to suppress in a 12-page order. The court found that the protective sweep was "justified by articulable facts and inferences supporting the officers' reasonable belief that additional people could be inside the home posing a danger to them during or following the arrest of the Defendant outside the home." The court additionally found that Villamonte's affidavit was sufficient to obtain a search warrant for Eacker's residence even without the discovery of the marijuana during the protective sweep. The court noted that the affidavit contained 6 pages of information detailing law enforcement's surveillance of Eacker from April 2017 to November 2018. The court concluded that based on the affidavit, the discovery of the evidence found at Eacker's residence was inevitable. The court concluded that the evidence seized during the November 2 search was admissible and not subject to exclusion.

Entry of Plea Hearing.

Pursuant to a plea agreement, the State filed an amended information on June 23, 2020, charging Eacker with one count of attempted possession of a firearm with a felony IIA drug violation, a class IIA felony, in violation of Neb. Rev. Stat. § 28-201(4)(b) (Cum. Supp. 2020) and § 28-416(16). At a hearing held on October 1, Eacker pled no contest to the amended information. According to the factual basis provided by the State:

[B]eginning in the time frame of July 1st, 2018, investigators with the Lincoln Police Department began to observe posts on social media platforms that led them to believe that an individual identified as Tristen Eacker, the defendant before the Court, may be involved in the distribution of marijuana

On November 2nd, 2018, investigators believed they observed another post involving Mr. Eacker, a firearm and the distribution of marijuana. That ultimately around 9:37 p.m. that day, investigators served a search warrant . . . based on that information.

Located on the top floor, southeast bedroom, several firearms were located. Under the mattress in this room was a Smith and Wesson MP rifle, with a magazine. In a dresser drawer in the room, there were three handguns located. The handguns were a Smith and Wesson, a Smithfield XDS and a black Smith and Wesson Shield. Smith and Wesson Shield was found to be stolen from a related case.

Also located in the room were two digital scales with marijuana residue. Investigator[s] located a total of 268.2 grams of marijuana in the room, and in the closet of the same room. Several plastic baggies consistent with the packaging and distribution of narcotics were found in the same room, along with the empty box of plastic baggies. There were also other items located in the room.

But ultimately law enforcement . . . found this room to belong to the defendant, based on a Nebraska vehicle title bearing the name of Mr. Eacker and a W-2 tax form with his information, as well.

All these events occurred in Lancaster County, Nebraska.

Sentencing Hearing.

On December 21, 2020, the district court sentenced Eacker to 7 to 12 years' imprisonment, with credit for 170 days already served.

Eacker then appealed.

ASSIGNMENTS OF ERROR

Restated and combined, Eacker assigns that (1) the district court abused its discretion by imposing an excessive sentence and (2) his trial counsel was ineffective in failing to make compelling arguments during the suppression hearing.

STANDARD OF REVIEW

An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020). Abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.

Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019). In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel's alleged deficient performance. Id.

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