State v. Sinsel
| Decision Date | 16 February 1996 |
| Docket Number | No. S-95-139,S-95-139 |
| Parties | STATE of Nebraska, Appellee, v. Carl E. SINSEL, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Pleadings. An issue presented regarding a denial of a plea in bar is a question of law.
2. Judgments: Appeal and Error. Regarding a question of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review.
3. Motions to Suppress: Appeal and Error. A trial court's ruling on a motion to suppress is to be upheld on appeal unless its findings of fact are clearly erroneous.
4. Pleadings: Final Orders. The denial of a plea in bar is a final order as defined in Neb.Rev.Stat. § 25-1902 (Reissue 1989).
5. Criminal Law: Indictments and Informations: Double Jeopardy. If a criminal defendant is to avoid exposure to double jeopardy, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.
6. Jurisdiction: Time: Appeal and Error. Timeliness of an appeal is a jurisdictional necessity.
7. Legislature: Courts: Time: Appeal and Error. When the Legislature fixes the time for taking an appeal, the courts have no power to extend the time directly or indirectly.
8. Jurisdiction: Appeal and Error. An appellate court may not consider a case as within its jurisdiction unless its authority to act is invoked in the manner prescribed by law.
9. Constitutional Law: Search and Seizure. The Fourth Amendment protects the right of a person to be secure in his or her person, house, papers, and effects against unreasonable searches and seizures.
10. Constitutional Law: Search and Seizure. Capacity to claim the protection of the Fourth Amendment to the U.S. Constitution 11. Constitutional Law: Search and Seizure. A subjective expectation of privacy is legitimate if it is one that society is prepared to recognize as reasonable.
depends upon whether the person who claims the protection of the amendment has a legitimate expectation of privacy in the invaded space.
Appeal from the District Court for Kearney County, Stephen Illingworth, Judge.
Charles D. Brewster, of Butler, Voigt & Brewster, P.C., Kearney, for appellant.
Don Stenberg, Attorney General, and Joseph P. Loudon, Lincoln, for appellee.
Carl E. Sinsel appeals his conviction for knowingly or intentionally possessing more than 1 pound of marijuana, for which he was sentenced to 2 years' probation.
In this appeal, Sinsel claims that the trial court erred when it failed (1) to dismiss, before trial, the criminal charge against him because a penalty for the same offense had already been imposed upon him by the Nebraska Department of Revenue, and (2) to sustain his motion to suppress certain evidence used against him that Sinsel claims was obtained by law enforcement officers through an illegal search.
At all relevant times involved in this lawsuit, Sinsel was the sole employee at a landfill site owned by the city of Minden. In June 1993, because he was moving, Sinsel obtained permission from Minden's city administrator, Brenton Lewis, to temporarily store some items of personal property in the shop building at the landfill site. Sinsel was the only employee given permission to store personal items in the building. Among the items Sinsel testified he stored in the shop building was a white electric stove that had an oven with a tinted glass door. Keys to the building were distributed only to Sinsel, Lewis, and the Minden street department. The street department's key would be used by an employee of that department if Sinsel were on vacation or leave.
Early in 1993, Lewis learned that alcohol was being stored on the landfill site. Subsequently, Lewis reported to the Minden City Council, sitting in executive session, the information he had acquired concerning alcohol being stored on city property. The city council ordered Lewis to meet with all city employees and direct them to remove from city property any alcoholic beverages or any other items that should not be stored on city property.
On October 21, Lewis met with virtually all full-time employees of the city of Minden, including Sinsel. He warned the employees that all city property would be searched for alcohol and "anything else that shouldn't be stored there." Prior to the landfill-site search, searches were made of several other buildings owned by the city of Minden.
On the evening of October 28, Lewis, several law enforcement officers, and a drug detection dog searched the landfill-site shop building. Lewis testified he saw the city's front-end loader, an electric stove, a bed, a motorcycle, and various other items in the building. The stove was not plugged into electricity. Lewis testified that he did not know to whom the property belonged. None of the property was tagged or marked with any sort of ownership identification except for the motorcycle, which bore a license plate. Minden's chief of police testified that he did not know whether the license plate was current or to whom it belonged.
During the search, the drug detection dog "hit" three times on the electric stove. This was the only object in the building to which the drug detection dog reacted. Minden's chief of police participated in the search and testified that he could not see inside the stove's oven because of its tinted glass front. The chief testified he opened the door of the oven and saw a green garbage bag with holes in it. The holes permitted the officer to view the bag's contents The next morning, Lewis telephoned Sinsel at the landfill site and told him that he would be coming out to do the inspection he referred to on October 21. Shortly after Lewis' call, Sinsel was placed under arrest while he was attempting to dispose of the bag of marijuana that had been hidden in the stove. Sinsel was subsequently charged with knowingly or intentionally possessing marijuana weighing more than 1 pound.
without opening the bag. The officer suspected the bag contained marijuana. It was photographed, and a video camera was positioned to film the stove.
Prior to his trial on the marijuana charge, Sinsel moved to suppress as evidence the garbage bag containing marijuana that law enforcement officers found in the stove and any samples taken therefrom as the fruit of an illegal search. After a hearing, the motion was overruled.
On May 6, 1994, the Nebraska Department of Revenue notified Sinsel that pursuant to Neb.Rev.Stat. § 77-4316 (Cum.Supp.1994), he owed the State $15,511.91 in tax, penalty, and interest for unpaid drug stamp taxes. The State filed a tax lien in its favor with the Kearney County register of deeds against real estate and personal property owned by Sinsel. At trial, the State stipulated that the Nebraska Department of Revenue had withheld Sinsel's 1993 state income tax refund because the drug stamp tax levied against him was still owing.
Before his trial, on July 13, Sinsel filed a plea in bar and motion to dismiss the charges against him. He claimed that because the Nebraska Department of Revenue took action against him for the unpaid tax due on the marijuana involved in this case, any further criminal prosecution by the State for the same conduct would violate the Double Jeopardy Clause of both the U.S. and Nebraska Constitutions. On September 13, the district court overruled Sinsel's plea in bar and motion to dismiss. No appeal was filed until February 10, 1995.
On November 21, 1994, Sinsel was found guilty, after a bench trial, upon a stipulation of facts. He was sentenced to 2 years' probation and appealed his conviction to the Nebraska Court of Appeals. To adjust the caseloads of the Nebraska Court of Appeals and this court, we removed the case to our docket for disposition.
An issue presented regarding a denial of a plea in bar is a question of law. See State v. Grimm, 240 Neb. 863, 484 N.W.2d 830 (1992). Regarding a question of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review. State v. Skalberg, 247 Neb. 150, 526 N.W.2d 67 (1995). See State v. Dake, 247 Neb. 579, 529 N.W.2d 46 (1995).
A trial court's ruling on a motion to suppress is to be upheld on appeal unless its findings of fact are clearly erroneous. State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994); State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994).
In his first assignment of error, Sinsel claims that the trial court erred when it failed to dismiss, before trial, the criminal charge against him because a penalty for the same offense had already been imposed upon him by the Nebraska Department of Revenue....
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