State v. Pawling, A-00-942.
| Decision Date | 26 December 2000 |
| Docket Number | No. A-00-942.,A-00-942. |
| Parties | STATE of Nebraska, Appellant, v. Thomas PAWLING, Appellee. |
| Court | Nebraska Court of Appeals |
James S. Jansen, Douglas County Attorney, and Michael P. Meckna, for appellant.
Thomas C. Riley, Douglas County Public Defender, and Scott C. Sladek, Omaha, for appellee.
This is an appeal by the State of Nebraska under Neb.Rev.Stat. §§ 29-116 and 29-825 (Cum.Supp.2000) seeking to reverse a motion to suppress granted by the district court in the prosecution of Thomas Pawling for manufacturing methamphetamine. At the time the evidence was obtained, the defendant was serving a probation sentence which, when issued, contained no provision concerning the State's right to search his person or property. The physical evidence suppressed had been obtained by a search of the defendant's home which was made without a warrant but with the defendant's consent after he was presented with a recent ex parte amendment to his probation order which required him to consent to reasonable searches. The district court also suppressed statements he made during and immediately after the search. I conclude that the amendment to the probation order was a nullity because it was obtained without notice or a hearing, and therefore I affirm the district court's ruling.
On September 30, 1999, the defendant was convicted in the county court for Douglas County, Nebraska, of operating a motor vehicle during suspension of his license and of giving false information to the police. He was sentenced to a 12 month term of probation. The probation order is on a form which contains seven specific terms of probation which are usually regarded as "boiler plate" provisions, such as, These provisions are not significant to this appeal and will not be summarized.
The order then states, "The following special conditions have been added by the Court to further the rehabilitation of the Defendant: ONLY THE SPECIAL CONDITIONS INITIALED BY THE JUDGE APPLY." The form then contains 23 numbered provisions with a line before each. The first special condition concerns fines, costs, restitution, et cetera, and the last one, No. 23, is a blank designated "Other." The only special condition with initials before it is one designated as "Testing." This provision required the defendant to abstain from the use of alcohol or drugs, and further provided for the testing of his blood, breath, or urine at his expense to determine the use of alcohol or drugs. Immediately below the heading "Testing" appears a handwritten word which I would interpret as "monthly." Special condition No. 19, if initialed, would have required the defendant to "[s]ubmit to reasonable search and seizure of premises, person or vehicle by or upon request of the probation officer." The blank before this provision was not initialed by the judge.
The December 23, 1999, order refers to the defendant's previous conviction and his 12-month term of probation and then provides: "It is therefore, considered, adjudged and ordered that: Special Condition # 23 of the Order of Probation states: Submit to reasonable search and seizure of premises, person or vehicle by or upon request of the probation officer." (Emphasis in original.) The order goes on to state that the other terms of the probation order remain in force.
The defendant's probation officer was Charlie Martinez. Martinez testified that because one urinalysis test that was performed on the defendant was positive for methamphetamine, he intended to seek an amendment to the probation order. He did not do so until December 23, 1999. On that date, Deputy Sheriff Scott Daugherty called and informed Martinez that the defendant was being investigated for the manufacture of methamphetamine. Martinez reviewed the defendant's file, containing the same information that would have been available to the judge when the defendant was sentenced, and found a report which stated that the defendant had been shopping for ingredients for methamphetamine. Martinez then contacted the sentencing judge over the telephone and informed the judge what was going on with the case—the positive test for methamphetamine, the original facts in the case, and Daugherty's investigation of the defendant for the manufacture of methamphetamine. The judge then signed the probation order of December 23 summarized above.
Martinez testified that after the amendment to the probation order, he attempted to contact the defendant by telephone, but did not succeed. The record does not show how Martinez obtained physical possession of a copy of the amendment.
Daugherty, Deputy Sheriff Theodore Fitzsimmons, and Martinez had a "narcotics briefing" at approximately 1 p.m. on December 23, 1999, in which they discussed "what was going to take place with the search warrant dealing with the amendment to the probation order ." Fitzsimmons was dispatched to conduct a traffic stop of the defendant to assist the narcotics unit. Fitzsimmons looked for the defendant and at approximately 2:30 p.m. observed him make a left-hand turn without signaling, but did not observe any other illegal or suspicious conduct on the defendant's part. No search warrant was obtained. Daugherty and Martinez arrived on the scene while Fitzsimmons was conducting a records check. They identified themselves to the defendant and informed him of the amendment to the probation order. Martinez testified that he told the defendant that he, along with the officers, was going to search his house. The defendant was then patted down, and his vehicle was searched, but nothing was found. After he was shown the amended probation order, but while still at the scene of the traffic stop, the defendant verbally consented to the search of his residence. Pursuant to usual procedures, the defendant was handcuffed before he was placed in the police cruiser and transported to his home.
When they arrived at the defendant's residence, the handcuffs were removed, and the defendant was presented with a form regarding his consent to search his residence. The defendant read and signed the form, with Fitzsimmons witnessing his signature. This form was completed in a fashion that allowed Daugherty and Martinez to search the defendant's residence. The defendant opened and unlocked the gate to his yard, which was enclosed and which contained a pit bull dog. The defendant secured the dog before letting them in the yard. After the house was secured by the officers, Martinez and the officers conducted a search of the house and grounds. Martinez found a tank of ammonia in a trailer in the yard and "heat" containers around the yard. Upon being asked, the defendant stated there was a bag of methamphetamine which he used for himself in a briefcase in the house. Later, the defendant brought the briefcase to the officers. When asked, the defendant admitted the area had been used for the manufacture of methamphetamine. The defendant was also questioned regarding materials he used in the manufacture of methamphetamine. However, the only methamphetamine found was a small amount in a Ziploc bag in the briefcase.
At approximately 3:30 p.m., after the "lab inside of the cargo box" was found, Daugherty questioned the defendant while standing in the backyard, but before he was read his Miranda rights. The defendant admitted he was engaged in manufacturing methamphetamine, and he also told them of the location of his "partner in crime's" residence and that at that location, they would find a skid loader the pair had stolen. The defendant was then read his Miranda rights about this time, but exactly when with reference to his admissions is not clear from the record.
The defendant moved to suppress the physical evidence as well as the statements he made to the officers. After a hearing, the district court entered a formal order in which it narrated the evidence and found "[a]s a result of the search the defendant was questioned, and the defendant made certain, arguably inculpatory statements." The trial court recognized the validity of such search-permitting provisions in probation orders and that the sentencing court had authority to amend such orders, but concluded it did not have authority to make such changes without the defendant's knowledge or giving him notice of the change. The court found that the defendant consented to the search after he was told he would be searched as a result of the signed order and was then asked to consent, which he did. Accordingly, the judge specifically found that the defendant did not freely and voluntarily consent to the search. The court also found any statements made as a result of the search were fruits of the illegal search and therefore were inadmissible.
The State alleges the trial court erred in that (1) it lacked jurisdiction because the probation order was final within 30 days and not appealed after that time, (2) the county court was entitled to amend its probation order if it found that the defendant violated the terms of his probation, and (3) the defendant waived his right to object to the search when he made a voluntary waiver of that right.
In State v. Chitty, 253 Neb. 753, 754, 571 N.W.2d 794, 795-96 (1998), the Nebraska Supreme Court stated:
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.
Accord, State v. Ready, 252 Neb. 816, 565 N.W.2d 728 (1997); State v. McCleery, 251 Neb. 940, 560 N.W.2d 789 (1997); State v....
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