State v. Simons
| Citation | 315 Neb. 415 |
| Docket Number | S-23-056 |
| Decision Date | 03 November 2023 |
| Parties | State of Nebraska, appellee, v. Charles J. Simons, appellant. |
| Court | Supreme Court of Nebraska |
1
315 Neb. 415
State of Nebraska, appellee,
v.
Charles J. Simons, appellant.
No. S-23-056
Supreme Court of Nebraska
November 3, 2023
1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. 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. Whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.
2. Constitutional Law: Search and Seizure: Appeal and Error. An appellate court applies a two-part analysis when reviewing whether a consent to search was voluntary. As to the historical facts or circumstances leading up to a consent to search, the appellate court reviews the trial court's findings for clear error. However, whether those facts or circumstances constituted a voluntary consent to search, satisfying the Fourth Amendment, is a question of law, which the appellate court reviews independently of the trial court. And where the facts are largely undisputed, the ultimate question is an issue of law.
3. Statutes: Appeal and Error. Statutory interpretation is a question of law, which an appellate court reviews independently of the lower court's determination.
4. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution prohibit unreasonable searches and seizures.
5. Constitutional Law: Search and Seizure: Evidence. Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure.
[315 Neb. 416] 6. Search and Seizure. Whether a search is reasonable is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.
7. Warrantless Searches: Search and Seizure: Probable Cause. While searches and seizures conducted pursuant to a warrant supported by probable cause are generally considered reasonable, warrantless searches are considered per se unreasonable, subject to only a few specific exceptions that must be strictly confined by their justifications.
8. Warrantless Searches: Probable Cause: Probation and Parole. One exception to the warrant requirement is when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirements impracticable, and a probation setting is an example of such a special need.
9. Warrantless Searches. A search undertaken with consent is a recognized exception to the warrant requirement.
10. Constitutional Law: Search and Seizure: Duress. To be effective under the Fourth Amendment, consent to a search must be a free and unconstrained choice, and not the product of a will overborne.
11. Warrantless Searches: Duress. Consent for a warrantless search must be given voluntarily and not as a result of duress or coercion, whether express, implied, physical, or psychological.
12. Search and Seizure: Waiver: Appeal and Error. If the State fails to raise the good faith exception to the exclusionary rule on appeal, it waives it.
13. Sentences: Legislature: Probation and Parole. The power of a court to impose probation must be strictly construed from the applicable statutes, because the power to fix criminal punishment is vested in the legislative branch and probation is a sentence.
14. Statutes: Legislature: Intent. In interpreting 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.
15. Statutes: Appeal and Error. An appellate court will not resort to interpretation of statutory language to ascertain the meaning of words which are plain, direct, and unambiguous.
16. Statutes. An appellate court will not read meaning into a statute that is not there or read anything direct and plain out of a statute.
17. ___. All statutes in pari materia must be taken together and construed as if they were one law.
18. ___.To the extent there is a conflict between two statutes, the specific statute controls over the general statute.
[315 Neb. 417] 19. Criminal Law: Statutes. Penal statutes must be strictly construed and are considered in the context of the object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served.
20. Constitutional Law: Statutes. Where a statute is susceptible of two constructions, one of which renders it constitutional, and the other unconstitutional, it is the duty of the court to adopt the construction which, without doing violence to the fair meaning of the statute, would render it valid.
21. Statutes: Words and Phrases. The general rule is that in the construction of statutes, the word "shall" is considered mandatory and inconsistent with the idea of discretion.
22. Probation and Parole: Time. The Nebraska Probation Administration Act expressly authorizes the extension of the original term of probation under only two circumstances.
23. Sentences: Probation and Parole. Noncompliance to the degree of absconsion suggests that a probationer has ceased serving his or her post-release supervision sentence.
24. Probation and Parole: Time. The Nebraska Probation Administration Act does not authorize an extension of the original probationary term based on the mere facts that a complaint for revocation has been filed and the revocation hearing cannot reasonably occur before the end of the probation term to determine whether a violation occurred.
25. Search and Seizure. If consent to a search is granted only in submission to a claim of lawful authority, the consent is invalid.
26. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence admitted by a trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict.
Appeal from the District Court for Madison County: James G. Kube, Judge.
Chelsey R. Hartner, Chief Deputy Madison County Public Defender, for appellant.
Michael T. Hilgers, Attorney General, and Nathan A. Liss for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
[315 Neb. 418] Freudenberg, J.
INTRODUCTION
The defendant appeals from his conviction of possession of a controlled substance, asserting that the search leading to the discovery of the controlled substance was unlawful and that the evidence should have been suppressed. The district court found the search was lawful because it was conducted pursuant to the terms of the defendant's probation, which the district court had pronounced were extended after the original probation term before conducting a hearing on an information to revoke probation. Because the Nebraska Probation Administration Act (the Act)[1] does not permit the increase of the term of probation to which the offender was sentenced before a hearing upon proper notice where the violation of probation is established by clear and convincing evidence,[2] we reverse and vacate, and remand for further proceedings.
BACKGROUND
Procedural History
In April 2019, the district court found Charles J. Simons guilty of felony and misdemeanor charges. Simons was sentenced to an 18-month probation term commencing on March 19, 2020. The scheduled end date of his probation was September 19, 2021. As a condition of probation, Simons agreed to voluntarily submit to reasonable searches of his person, residence, and vehicle at the request of his probation officer.
In July 2021, the State filed an "Information for Revocation of Probation" after Simons was arrested for driving under the influence of drugs. On August 30, Simons appeared for arraignment and requested court-appointed counsel, which the district court granted. The district court scheduled further
[315 Neb. 419] arraignment for September 16, only days before the end of Simons' term of probation. Before adjourning, the district court informed Simons he remained on probation subject to his probation conditions and requirements. Simons responded that he understood. Simons subsequently requested a continuance for an additional 30 days, which the district court granted to October 21.
At the October 2021 hearing, Simons denied the State's allegations in the information for revocation of his probation. The district court scheduled an evidentiary hearing for November. Then the district court, although the end date of Simons' sentenced term of probation was past, informed Simons, "I'm not going to set a bond for you, I'm just going to remind you that you're still under the requirements of the probation order that I entered previously." Simons responded that he understood.
In 2021 and 2022, the district court granted several more motions by Simons to continue the revocation hearing. While its precise date is not specified in the record, the parties indicated at oral argument that the evidentiary hearing eventually occurred in January 2023.
Search of Simons' Bedroom
On January 7, 2022, after the end date of Simons' original sentenced term of probation and during the pendency of the complaint for revocation of probation in connection to the alleged driving under the influence, two probation officers, Amy Kraft and Chad Dachtler, went to the house of Simons' parents where Simons was residing to conduct a probation search. In testimony at the hearing on the motion to suppress in this matter, Kraft testified that...
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