State v. Texel

• Decision Date: 06 January 1989
• Docket Number: No. 87-977,87-977
• Citation: 230 Neb. 810,433 N.W.2d 541
• Parties: STATE of Nebraska, Appellee, v. Douglas J. TEXEL, Appellant.
• Court: Nebraska Supreme Court

Page 541

433 N.W.2d 541

230 Neb. 810

STATE of Nebraska, Appellee, v. Douglas J. TEXEL, Appellant.

No. 87-977.

Supreme Court of Nebraska.

Jan. 6, 1989.

Syllabus by the Court

1. Constitutional Law: Search and Seizure. No reasonable expectation of privacy exists in garbage which has been made accessible to the public.

2. Motions to Suppress: Appeal and Error. A reviewing court is required to uphold the trial court's factual findings in ruling on a motion to suppress unless those findings are clearly wrong.

3. Motions to Suppress: Appeal and Error. In determining whether a trial court's findings in ruling on a motion to suppress are clearly erroneous, the reviewing court recognizes the trial court as the trier of fact and takes into consideration that the trial court observed the witnesses.

4. Sentences: Case Overruled. That portion of State v. Jurgens, 187 Neb. 557, 192 N.W.2d 741 (1971), which holds an intermittent sentence is permitted if consented to by the defendant is rejected.

5. Sentences. A sentence is not in the nature of a quasi-contract which a defendant is free to accept or reject.

6. Sentences: Appeal and Error. An intermittent sentence of incarceration is erroneous.

Anthony S. Troia, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and Steven J. Moeller, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT and FAHRNBRUCH, JJ.

CAPORALE, Justice.

Defendant-appellant, Douglas J. Texel, was charged in the county court with seven counts of promoting gambling in the first degree in violation of Neb.Rev.Stat. § 28-1102 (Reissue 1985), and with one count of possessing gambling records in violation of Neb.Rev.Stat. § 28-1105 (Cum.Supp.1986). Following a bench trial, the county court found him guilty as charged and sentenced him to pay a fine of $1,000 on each of the eight counts and to consecutive 30-day terms of incarceration on each count, to be served intermittently during 20 days of each of the succeeding 12 months. Texel appealed to the district court, which affirmed the judgment of the county court. In his appeal to this court, Texel assigns as error the district court's failure to find error on the record made in the county court, claiming that the county court erred in (1) refusing to suppress certain evidence and (2) imposing excessive sentences. Pursuant to order of this court, the parties have additionally briefed and presented oral arguments concerning the propriety of the intermittent nature of the sentences, which Texel claims to be valid and which the State claims to be erroneous. We affirm in part and, in part, reverse and remand for further proceedings.

On the basis of information from a variety of sources, including from a law enforcement officer believed to have the reputation of telling the truth, Fremont Police Det. Greg Chamberlain came to suspect that Texel was engaged in bookmaking activities both at his Fremont residence and at the Dugout Bar, a Fremont saloon in which Texel has an ownership interest. Chamberlain thereupon undertook a series of warrantless searches of the trash placed behind the bar, as well as the trash located at Texel's residence. These searches, conducted at various times during the period from December 30, 1985, through November 11, 1986, produced evidence of gambling activities at both locations.

As a consequence, on November 17, 1986, warrants were issued permitting searches of the two locations and seizures of such described evidence of gambling activities as might be found. The items seized at Texel's residence included wagering records, racing forms, and other sports information, together with a book entitled "Bet To Win." The items seized at the bar included betting forms and "odds sheets" cut into scrap.

Texel moved that all evidence obtained as the result of the November 17 search be suppressed. The county court suppressed the evidence obtained from the search of the bar, but refused to suppress the evidence obtained from the search of Texel's residence and, subsequently, received it in evidence at the trial.

In connection with the first error he assigns to the county court, Texel argues that the search of his residence pursuant to the warrant issued November 17, 1986, and seizure of the items discovered as a result thereof violated his rights "against unreasonable searches and seizures" provided by the fourth amendment to the U.S. Constitution and art. I, § 7, of the Nebraska Constitution, and must therefore be suppressed. He rests the argument on the premise that the warrant was the product of the prior illegal warrantless searches of his residential trash. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The relevant evidence as to the constitutionality of the search and seizure in question is in conflict. According to Chamberlain, the residential trash bags had been positioned near the street curb for collection. However, one of Texel's friends testified that he drove past or visited Texel's residence once or twice weekly and had never seen trash bags placed near the curb, but had seen such in Texel's carport. The parties stipulated that if Texel's immediate neighbor were called as a witness, he would testify that he had never seen Texel place garbage near the curb, nor had he ever seen any garbage truck stop at Texel's property. Although the relevance is not clear to us, the parties further stipulated this witness would also testify that at some time between September and November of 1987, he saw a man rummaging through two or three garbage bags under Texel's carport. It was additionally stipulated that a second neighbor would testify she had never seen Texel deposit garbage near the curb. Finally, Texel testified that he usually kept his residential garbage in trash bags in his basement, and remembered leaving one bag of trash in the carport. He stated that he never placed garbage near the curb, as he did not use a trash removal service. He removed the trash from his residence himself in his own pickup truck.

Following the lead of the U.S. Supreme Court in California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), we recently observed in State v. Trahan, 229 Neb. 683, 428 N.W.2d 619 (1988), that one can have no reasonable expectation of privacy in the inculpatory items he or she discards. Thus, no reasonable expectation of privacy exists in garbage which has been made accessible to the public.

Obviously, then, the crucial question with respect to Texel's first assignment of error is whether Texel's residential garbage had in fact been made accessible to the public by being placed near the street curb for collection, as claimed by Chamberlain, or was kept in Texel's basement and carport, as claimed by Texel and corroborated by his friend and neighbors, and thus not made accessible to the public. The county court, as the trial court, elected to believe Chamberlain. Were we free to review this matter de novo on the record, we might conclude otherwise; however, we are required, as was the district court, to uphold the trial court's factual findings in ruling on a motion to suppress unless those findings are clearly wrong. State v. Price, 229 Neb. 448, 427 N.W.2d 81 (1988); State v. Holman, 229 Neb. 57, 424 N.W.2d 627 (1988). Moreover, in determining whether a trial court's findings in ruling on such a motion are clearly erroneous, the reviewing court recognizes the trial court observed the witnesses. State v. Price, supra; State v. Hayes, 229 Neb. 53, 424 N.W.2d 624 (1988).

While it is true that the parties elected to present much of the evidence relevant to the issue by stipulation, there were witnesses who testified in person and whose credibility the trial court assessed. Under the circumstances, we cannot say the factual findings of the trial court are clearly wrong. That being so, the warrant cannot be said to have resulted from constitutionally impermissible prior warrantless searches. Texel's first assignment of error is therefore without merit.

This brings us to the sentences and, more particularly, to...