State v. Peters
| Decision Date | 16 March 2001 |
| Docket Number | No. S-00-404.,S-00-404. |
| Court | Nebraska Supreme Court |
| Parties | STATE of Nebraska, Appellee, v. Glen M. PETERS, Appellant. |
David T. Schroeder, of Kelly & Schroeder, Grand Island, for appellant.
Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.
Following a bench trial in district court, Glen M. Peters appeals his conviction of being a felon in possession of a firearm under Neb.Rev.Stat. § 28-1206 (Reissue 1995). Before 1995, § 28-1206 did not apply to firearms with barrels in excess of 18 inches in length. But in 1995, § 28-1206 was amended to apply to all firearms. Peters argues that at the time of his previous convictions under § 28-1206, he was allowed to possess a firearm with a barrel longer than 18 inches and that his conviction under the amended § 28-1206, which now forbids possession of any firearm, violates the Ex Post Facto Clauses of the U.S. and Nebraska Constitutions. Peters also argues that the district court should have sustained his motion to suppress evidence because the affidavit in support of the warrant and evidence at trial did not support a nighttime search or show the credibility of a citizen informant.
We determine that although Peters' previous felonies occurred before § 28-1206 was amended, there was no violation of the Ex Post Facto Clauses because § 28-1206 was not applied retroactively and was not further punishment for the earlier convictions. We further determine that the affidavit in support of the search warrant supported the issuance of a warrant to be served without notice and at any time. Accordingly, we affirm.
On March 13, 1999, Sgt. Richard N. Miller prepared an affidavit in support of a search warrant to be executed on Peters' residence. The affidavit stated that on March 8, 1999, Merrick County Deputy Sheriff Brian M. Stobbe was in Palmer, Nebraska, investigating a dogbite. The affidavit stated that while conducting the investigation, a citizen informant informed Stobbe that based on the informant's personal knowledge, Peters had various items of stolen property, which the informant described in detail. These stolen items included tools. The affidavit stated that the informant also told Stobbe that Peters had marijuana, that he was selling various controlled substances, and that he had various weapons. The informant told Stobbe that one of Peters' "hobbies" was to go out on the front porch and shoot a high-powered rifle at a stop sign located on the northwest corner of Highway 92 and Worms Road. The affidavit stated that Miller had further been advised that Peters would not hesitate to shoot at law enforcement officers.
In the affidavit, Miller stated that he verified that tools had been stolen from a construction site on Worms Road and that during the course of his duties, he had observed where the stop sign described by the informant had been shot. Miller stated that a background check showed that Peters was a convicted felon and had been previously charged with being a felon in possession of a firearm and with giving false information on an application for a handgun permit. In addition, Peters had a criminal history of discharging firearms within city limits, kidnapping, and false imprisonment. Miller stated in the affidavit that he has known the informant for approximately 8 years and that the informant had given reliable information in the past, including one time when Miller was able to obtain a search warrant based on information that later proved to be reliable. Miller then stated that based on his training and experience, he was aware that persons involved in drug- and weapons-related crimes often arm themselves with weapons and sometimes use those weapons against police and others. Miller stated that such people would also conceal or destroy evidence if given time and that very important factors in raids involving weapons and drugs are surprise and speed. Miller stated that identification eliminates surprise and provides persons within a residence time to take actions that would require reaction by officers. Miller then requested a no-knock search warrant to be served at any time.
The county court issued a warrant that could be served at any time and without notice. Five days later, on March 18, 1999, at 5:39 a.m., the warrant was executed. During the search, law enforcement officers seized four firearms with barrel lengths over 18 inches. As a result, Peters was charged by information with being a felon in possession of a firearm. Peters was also charged with two counts of possession of stolen property, which were later dismissed.
Peters filed a demurrer, plea in abatement, and motion to quash, all of which contended that the charge of being a felon in possession of a firearm violated his rights under the Ex Post Facto Clauses of the U.S. and Nebraska Constitutions. Peters also filed a motion to suppress.
Stobbe, Miller, and Peters testified at the hearing on the motion to suppress. Stobbe testified that he had not had any prior contact with the informant. Stobbe did not try to independently verify what the informant told him, but instead gave all the information to Miller. Miller testified that he had known the informant for 8 years and that he spoke personally with the informant before executing the search warrant. When asked about the informant's reputation in the community for truthfulness and veracity, Miller responded that the informant had a mixed reputation for truthfulness, with some people finding him very likeable and truthful, while others disliked him and would call him a liar. Miller testified that he asked for a no-knock warrant that could be served at any time due to the high probability that Peters had weapons in his house and the possibility that he could use those weapons against police officers. Miller stated that he was also concerned that evidence could be disposed of or hidden.
Miller admitted that he waited 5 days after getting the information on Peters to ask for a warrant. Miller stated that the delay was due to other responsibilities within his office. Miller also admitted that while he received the warrant on March 13, 1999, he did not execute it until March 18. Miller testified that the reason for the delay was because his office was getting the State Patrol involved in the case. Miller testified that he saw no urgency that the evidence would be removed or hidden during this timeframe. Rather, Miller stated that his concern was that the warrant should be executed before Peters became aware of it. Miller stated that he was concerned that if Peters was not surprised, a weapon could be used against the officers.
Peters testified that he had previously been convicted of a felony in 1976 for burglary and another in 1989 for being a felon in possession of a firearm. (The record shows that although Peters was charged in 1976, he was convicted in 1977.) Peters admitted that he had previously been charged with other crimes.
The district court overruled the motion to suppress, having earlier overruled the demurrer, motion to quash, and plea in abatement. At the arraignment, Peters elected to stand mute, and the court entered a plea of not guilty on his behalf. A bench trial was held, during which Peters renewed the objections made in his previous motions. At the end of the State's evidence, Peters made a motion to dismiss because the firearms had barrels over 18 inches in length and his prior convictions took place during a time when a person convicted of a felony could possess firearms with barrels over that length. Peters did not present any evidence, and the district court found him guilty and sentenced him to incarceration for 12 months to 3 years. Peters appealed, and we granted his motion to bypass.
Peters assigns, rephrased, that the district court erred in overruling his demurrer, plea in abatement, motion to quash, and motion to suppress.
A trial court's ruling on a motion to suppress evidence, 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. State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999).
To the extent questions of law are involved, an appellate court is obligated to reach conclusions independent of the decisions reached by the courts below. State v. Burdette, 259 Neb. 679, 611 N.W.2d 615 (2000); State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000).
Peters contends that at the time of his previous felony convictions, § 28-1206 allowed him to possess a firearm with a barrel longer than 18 inches and that thus, his conviction under § 28-1206 as amended, which now forbids possession of any firearm, violates the Ex Post Facto Clauses of the U.S. and Nebraska Constitutions. Before 1995, § 28-1206 (Reissue 1989) stated: "(1) Any person who possesses any firearm with a barrel less than eighteen inches in length ... and who has previously been convicted of a felony or who is a fugitive from justice commits the offense of possession of firearms by a felon or a fugitive from justice." Operative September 9, 1995, § 28-1206 was amended to read: "(1) Any person who possesses any firearm ... and who has previously been convicted of a felony or who is a fugitive from justice commits the offense of possession of a deadly weapon by a felon or a fugitive from justice."
The U.S. Const. art. I, § 10, and Neb. Const. art. I, § 16, provide that no ex post facto law shall be passed. Under this...
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