State v. Trahan

• Decision Date: 02 September 1988
• Docket Number: No. 87-506,87-506
• Citation: 428 N.W.2d 619,229 Neb. 683
• Parties: STATE of Nebraska, Appellee, v. Randall TRAHAN, Appellant.
• Court: Nebraska Supreme Court

Page 619

428 N.W.2d 619

229 Neb. 683

STATE of Nebraska, Appellee, v. Randall TRAHAN, Appellant.

No. 87-506.

Supreme Court of Nebraska.

Sept. 2, 1988.

Syllabus by the Court

1. Criminal Law: Pretrial Procedure: Motions to Suppress: Appeal and Error. In a criminal trial, after a pretrial hearing and order overruling a defendant's motion to suppress evidence, the defendant must object at trial to admission of the evidence which was the subject of the motion to suppress in order to preserve a question concerning admissibility of that evidence for review on appeal.

2. Constitutional Law: Search and Seizure. No reasonable expectation of privacy exists in garbage which is accessible to the public and placed for collection.

3. Constitutional Law: Police Officers and Sheriffs: Search and Seizure: Search Warrants. A law enforcement officer making a good faith effort to execute a valid search warrant may legally seize evidence of a crime not described in the warrant.

4. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. If evidence of contraband is discovered inadvertently while it is in plain view, it may be seized if the officer has a right to be in the place where he has such a view.

5. Sentences: Appeal and Error. Where the punishment of an offense created by statutes is left to the discretion of the court to be exercised within certain prescribed limits, a sentence imposed within such limits will not be disturbed on appeal unless there appears to be an abuse of discretion.

Anthony S. Troia, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and Jill Gradwohl Schroeder, Lincoln, for appellee.

BOSLAUGH, CAPORALE, and GRANT, JJ., MULLEN, District Judge, and COLWELL, District Judge, Retired.

MULLEN, District Judge.

As a result of a bench trial in the district court for Dodge County upon a stipulated set of facts, the defendant, Randall Trahan, was convicted of possession of cocaine, Neb.Rev.Stat. § 28-416(3) (Cum.Supp.1986); promoting gambling, Neb.Rev.Stat. § 28-1102 (Reissue 1985); and possession of gambling records, Neb.Rev.Stat. § 28-1105 (Cum.Supp.1986). The district court sentenced the defendant to a 3-year term of probation.

The defendant assigns as error: (1) The court erred in not suppressing evidence seized at the defendant's residence as fruit of an illegal search and seizure in violation of the Constitution of the State of Nebraska and the fourth amendment to the U.S. Constitution; (2) the court erred in not suppressing evidence seized at the defendant's residence which was outside the scope of the warrant issued; and (3) the court abused its discretion by its excessive sentence of the defendant.

We affirm.

On November 18, 1986, officers of the Fremont Police Department and Dodge County Sheriff's Department searched Randall Trahan's residence pursuant to a search warrant. The supporting affidavit for the warrant recited 10 occasions in which a law enforcement officer searched through the contents of garbage containers which had been placed for collection at the defendant's trailer house or at a tavern owned jointly by the defendant and his roommate. Gambling records were recovered from the trash on each occasion. In addition, the officer received information from an unspecified source that Randall Trahan and his roommate were engaged in bookmaking activities. The warrant was limited in its scope to the search for evidence of bookmaking and/or gambling materials.

While searching the defendant's bedroom, an officer discovered a vial on the defendant's dresser. Also on the dresser shelf near the vial were two straws, one of which had white powdery residue collected on and around it. The vial and white powdery substance were in plain view as the officer conducted his search pursuant to the warrant. The officer opened the vial and found a substance which was later determined to be cocaine.

The defendant filed a motion to suppress evidence to the original one-count information containing the charge of possession of cocaine, on which motion evidence was adduced and the motion overruled. The county attorney later filed an amended information charging the two additional counts relating to the promotion of gambling and possession of gambling records. Defense counsel requested the court take judicial notice of the testimony relating to the previous motion to suppress evidence hearing, which the court did and summarily overruled defendant's motion to suppress evidence to counts II and III of the amended information.

The case was tried to the court on a stipulation of facts submitted by counsel for both parties. The stipulation recites facts which are sufficient for the trier of fact to find the defendant guilty on all three counts. The final paragraphs of the stipulation and request of the parties state as follows:

6. The evidence set forth in paragraphs 1-5 above would not be controverted by defendant, but defendant would object to the introduction of the fruits of the search warrant, and evidence derived therefrom, on the same basis as asserted in defendant's Motion to Suppress.

7. It is the intent of the parties hereto that this Stipulation resolve all elements of the offenses charged in favor of the State, while preserving the defendant's right to appeal the decision of the Court in overruling of defendant's Motion to Suppress.

WHEREFORE, parties request that the Court reach a verdict in this matter on the basis of this Stipulation and testimony received at the Motion to Suppress.

In addition, defense counsel stated to the court at the time of the offer of the stipulation:

Defendant, your Honor, pursuant to previous motions, which have already been filed in this case, argued in this case, we would reiterate and object to the basis of the evidence and ask the Court once again to suppress any evidence based upon the unlawful search warrant in the matter.

The State argues that the defendant has waived any claim of error as to the seizure of the items in question because he stipulated to the facts constituting the offenses, which facts were sufficient to convict him.

In a criminal trial, after a pretrial hearing and order overruling a defendant's motion to suppress evidence, the defendant must object at trial to admission of the evidence which was the subject of the motion to suppress in order to preserve a question concerning admissibility of that evidence for review on appeal. State v. Sock, 227 Neb. 646, 419 N.W.2d 525 (1988).

This case is distinguished from State v. Sock, supra (failure of defendant to object at trial after motion to suppress overruled), State v. Roggenkamp, 224 Neb. 914, 402 N.W.2d 682 (1987) (motion to suppress overruled, but no objection made to receipt of evidence at trial on stipulated facts), and State v. Davis, 224 Neb. 205, 397 N.W.2d 41 (1986) (motion to suppress evidence was renewed at trial, but no objection was made to receipt of evidence at trial).

The defendant preserved his right of appeal by his objections contained in the stipulation and his objection to the receipt of the evidence at the time of trial.

Regarding defendant's first assignment of error, that the trial court erred in not suppressing evidence seized from the defendant's residence, the issue is substantially addressed in California v. Greenwood, --- U.S. ----, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). In Greenwood, supra, a law enforcement officer asked the regular trash collector to pick up the plastic garbage bags that Greenwood left on the curb in front of his house and to turn the bags over to the law enforcement officer without mixing their contents with garbage from other houses. That procedure was followed, and the trash bags were subsequently searched by law enforcement officers and items were found indicative of narcotics use. Approximately a month later, a second search was completed substantially in conformity with the first, and again evidence of narcotics use was found. A search warrant was secured for the Greenwood home; the warrant was executed; and the subsequent search found more evidence of narcotics trafficking. Justice White, delivering the opinion of the Court, stated: "An expectation of privacy does not give rise to Fourth Amendment protection, however, unless society is prepared to accept that expectation as objectively reasonable. Here, we conclude that respondents exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection." 108 S.Ct. at 1628.

As in Greenwood, the defendant placed his garbage at its normal site for collection, both at his residence and at his business. There was no evidence adduced at the hearing on the motion to suppress to suggest that the defendant would have reason to expect any greater privacy than any other member of the community would have in placing his garbage for regular collection. The Court further states in Greenwood:

Accordingly, having deposited their garbage "in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it," United States v. Reicherter, 647 F.2d 397, 399 (CA3 1981), respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded.

108 S.Ct. at 1629.

In Greenwood, the Court held that the fourth amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of the home. The Greenwood Court, in citing United States v. Thornton, 746 F.2d 39 (D.C.Cir.1984), observed that " 'the overwhelming weight of authority rejects the proposition that a reasonable expectation of privacy exists with respect to trash discarded outside the home and the curtilege [sic ] thereof.' " 108 S.Ct. at 1630....