State v. Garza
| Decision Date | 08 December 2020 |
| Docket Number | No. A-19-474.,A-19-474. |
| Citation | 29 Neb.App. 223,952 N.W.2d 734 |
| Parties | STATE of Nebraska, appellee, v. Charles E. GARZA, Jr., appellant. |
| Court | Nebraska Court of Appeals |
Sarah P. Newell, of Nebraska Commission on Public Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.
Charles E. Garza, Jr., was convicted in the district court for Scotts Bluff County, Nebraska, of possession of methamphetamine, possession with intent to deliver methamphetamine, possession with intent to deliver at least 10 grams but less than 28 grams of methamphetamine, and three counts of possession of a firearm by a prohibited person. The questions pending before this court are whether the district court erred in denying motions to suppress the searches of his car, his home, and his recreational vehicle (RV) and whether the court should have given Garza's proposed jury instruction defining "possession." We affirm the judgment of the district court.
In January 2017, the Western Nebraska Intelligence Narcotics Group (the task force) in Gering, Nebraska, was investigating local drug activity and Garza became a target. The task force was working with a "cooperating individual" (CI), an acquaintance and part-time employee of Garza's. The CI completed two "controlled buys" from Garza in cooperation with the task force. Garza was arrested prior to the completion of a third controlled buy.
The first controlled buy took place January 16, 2017, outside a convenience store in Gering. The CI bought a quarter ounce of methamphetamine from Garza for $350. The deal took place in Garza's Honda Accord. The CI was wearing a transmitter, and the task force conducted audio and video surveillance for the duration of the encounter. The substance purchased by the CI was sent to the Nebraska State Patrol Crime Laboratory for testing and was confirmed to be methamphetamine.
The second transaction took place on January 20, 2017, outside a hospital in Scottsbluff, Nebraska. The CI bought a half ounce of methamphetamine from Garza for $700. The deal occurred in Garza's van. The CI was again wearing a transmitter, and the task force again conducted audio and video surveillance. The substance purchased by the CI was sent to the Nebraska State Patrol Crime Laboratory for testing and was confirmed to be methamphetamine.
The third transaction was set to take place on February 1, 2017, outside a bank in Scottsbluff. The CI had arranged to buy a full ounce of methamphetamine for $1,400, which was twice the going rate for such an amount. Det. James Jackson, a sergeant with the Gering Police Department and member of the task force at the time, testified that the task force had no intention of allowing the third transaction to take place, because it did not want to risk losing such a substantial sum of money. Garza's arrival at the location for the buy was delayed for over 2 hours. Telephone contact between Garza and the CI indicated Garza claimed to have had a flat tire. During the period of time the CI was waiting for Garza to appear, members of the task force located the Honda parked at a local motel and engaged in surveillance of the Honda. The car did not appear to have a flat tire. Members of the task force observed Garza go from his car to his motel room, and back to his car. When Garza appeared again and got back into the car, the task force members who had been conducting surveillance of Garza and his car arrested Garza in the motel parking lot.
After Garza was arrested, handcuffed, and taken to the police department, the second officer on the scene at the motel was instructed to have the Honda towed to the impound lot. The car was under observation by another sergeant of the Gering Police Department until the tow truck arrived at the motel. The car was locked up after it had been towed to the impound lot. The other sergeant gave the keys to Jackson, who was at the police department by this time in order to interview Garza.
After Jackson interviewed Garza, Jackson applied for a search warrant for the Honda in which Garza had been sitting when he was arrested. This was the same car Jackson had observed during the first controlled buy made by the CI. After obtaining the search warrant, Jackson searched the Honda in the impound lot, because it was a secure area. Evidence discovered in the Honda during the search included a plastic bag containing approximately 28.7 grams of suspected methamphetamine, found in the console, and Garza's driver's license, found in the visor. Following the search of the Honda, and as part of the ongoing investigation, Jackson applied for and was granted a search warrant for the address listed on the driver's license and an RV in which Garza was living, which was parked at a nearby campground. Searches of the home and the RV turned up a ballistic vest and face mask, numerous firearms from gun safes, ammunition, several cell phones, cash, and methamphetamine. Garza filed motions to suppress all of the evidence seized in the searches of his car, his home, and his RV for the reason the supporting affidavits lacked probable cause and because the searches exceeded the scope of the warrants. The district court overruled all of the motions to suppress prior to trial. Garza renewed his motions to suppress at the start of the trial, and they were all overruled again.
Garza assigns as error the district court's failure to suppress evidence seized from Garza's car, his home, and his RV and the court's failure to utilize his proposed jury instruction regarding constructive possession.
In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error, but whether those facts trigger or violate Fourth Amendment protection is a question of law that an appellate court reviews independently of the trial court's determination. State v. Hartzell , 304 Neb. 82, 933 N.W.2d 441 (2019). When a motion to suppress is denied pretrial and again during trial on renewed objection, an appellate court considers all the evidence, both from trial and from the hearings on the motion to suppress. Id.
Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision. State v. Lee , 304 Neb. 252, 934 N.W.2d 145 (2019).
Garza objects to the search of his Honda, because the search was beyond the scope of the warrant and was not made in good faith. The warrant itself authorized only the search of the "above described cellular phone," and the warrant was issued prior to the decision in State v. Stelly , 304 Neb. 33, 932 N.W.2d 857 (2019), which held that detailed information in a supporting affidavit cured any defect in the warrant resulting from a scrivener's error in misidentifying the item to be searched. Garza argues a search which is not described in the warrant is not a search made in good faith, because a "well-trained officer would have known that the search authorized was limited to the cellular phone described therein." Brief for appellant at 19. Garza posits that "in all likelihood, law enforcement prepared the warrant language," and that while sloppy, "they should be held to their own language in order to discourage future errors and minimize the discretion afforded to the executing officer." Id. at 20.
Garza goes on to suggest that even if this court finds the methamphetamine and driver's license were properly seized, the affidavit in support of the warrant lacks probable cause, because law enforcement is relying on an unreliable informant with ulterior motives. Garza argues the CI was a "police tipster," someone who acts for money, leniency, or some other selfish purpose, rather than a "citizen informer," whose only motive is to help law enforcement in the suppression of crime. Id. at 21. Garza argues the affidavit never described the " ‘controlled buy’ " process, nor did it contain any information about whether or not Jackson witnessed the buys or complied with the controlled buy protocols as some evidence of the CI's credibility. Id. at 22. Finally, he contends that the affidavit does not describe how the things to be seized were connected to any criminal activity or why they would be found in the Honda.
While we do not agree with Garza's assertions, we find that the totality of the evidence adduced at the suppression hearing and at trial establishes that even if the affidavit were insufficient, the police possessed adequate probable cause to search the Honda without obtaining a search warrant. Garza was arrested while in his car in the motel parking lot, following surveillance by law enforcement, at a time when he was late for the third controlled buy. Law enforcement expected Garza to have an ounce of methamphetamine in his possession, ready to sell to the CI for $1,400. Under these circumstances, when it is reasonable to believe evidence relevant to the crime of arrest may be found in a vehicle, the U.S. Supreme Court has established an independent exception for a warrantless search of a vehicle's passenger compartment due to circumstances unique to the vehicle context. As a general rule, automobiles, including containers and packages that may contain the object of a search, may be searched without a warrant provided there is probable cause to believe the vehicle contains contraband. See United States v. Ross , 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). Under the automobile exception, a warrantless search of a vehicle with probable cause is lawful so long as the vehicle is mobile. See State v. Seckinger , 301 Neb. 963, 920 N.W.2d 842 (2018). Our Supreme...
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