State v. Van Ackeren

• Decision Date: 10 May 1978
• Docket Number: No. 41647,41647
• Citation: State v. Van Ackeren, 265 N.W.2d 675, 200 Neb. 812 (Neb. 1978)
• Parties: STATE of Nebraska, Appellee, v. Steven W. VAN ACKEREN, aka Steve Van Ackeren, aka Frederick Van Ackeren, Appellant.
• Court: Nebraska Supreme Court

Page 675

265 N.W.2d 675

200 Neb. 812

STATE of Nebraska, Appellee, v. Steven W. VAN ACKEREN, aka Steve Van Ackeren, aka Frederick Van Ackeren, Appellant.

No. 41647.

Supreme Court of Nebraska.

May 10, 1978.

Syllabus by the Court

1. In a criminal case, where a defendant has filed a timely pretrial motion to suppress evidence, and such motion is denied by the District Court after hearing, an objection at trial to the introduction of the evidence, or the renewal of the motion to suppress, is not essential to preserve the question for review.

2. A warrantless search of a house may be justified when the police have obtained the consent to search from a party who possessed common authority over, or other sufficient relationship to, the premises sought to be inspected.

Dennis R. Keefe, Naylor & Keefe, Lincoln, for appellant.

Paul L. Douglas, Atty. Gen. and Marilyn B. Hutchinson, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ.

McCOWN, Justice.

On trial to the court, jury trial having been waived, the defendant was convicted on one count of burglary and on one count of possession of a firearm by a felon, and adjudged to be an habitual criminal. He was sentenced to imprisonment for a period of not less than 11 nor more than 14 years on each count, the sentences to run concurrently to each other and consecutively to any sentence being served. The defendant has appealed.

On December 24, 1976, the defendant escaped from the Nebraska Penal and Correctional Complex, where he was then serving a 7-year prison sentence. The defendant went to a house in Omaha, Nebraska, where Lita Longton, a woman he had previously known, was living with Billy Morris, a man who paid her living expenses. So far as the record shows, there were no other occupants of the house. Ms. Longton gave the defendant permission to stay in the house.

Morris' testimony was that the defendant arrived at the house on Christmas Eve and thereafter occupied quarters in the basement. Morris also said that sometime after the defendant's arrival at the house the defendant asked Morris if Morris wanted to join him in a burglary. On December 28 or 29, 1976, Morris and Van Ackeren went to a residence in Omaha, jimmied the back door, and took a shotgun, a rifle, and a suitcase filled with clothing.

The Omaha police department had been alerted as to the defendant's escape. On the afternoon of December 30, 1976, the police received a tip that the defendant might be living at 4315 Franklin Street. Five police officers went to the house at approximately 3 p. m. Three officers were assigned to guard the rear and side of the house while Officers Godberson and Jernigan approached the front door. Officer Godberson knocked on the front door and the door was opened by Morris. The officers displayed their identification, drew their guns, and asked if the defendant was hiding in the house. Morris nodded his head affirmatively. One of the officers told Morris to lie down on the living room floor. The other officer called to the defendant not to make a move, that the house was surrounded. Officer Godberson went into a bedroom to the left of the entrance where he found the defendant hiding under the bed. The defendant was arrested and handcuffed. The officers told Morris they wanted to see everything in the house that the defendant had brought in. Morris gave them permission to search the house and told them that the defendant was staying in the basement. The officers went to the basement with Morris. One of the officers picked up a leather jacket which was lying on the bed and Morris indicated that it was the defendant's jacket. Inside the jacket the officers found an automatic pistol with live rounds in the clip. In the basement area they also found a shotgun and a rifle, later identified as those taken in the burglary. The police had neither an arrest warrant nor a search warrant.

Prior to trial and in compliance with statutory requirements, the defendant moved to suppress all the items seized as a result of the search of the house. The District Court denied defendant's motion to suppress, held that the defendant had no standing to challenge the search, and that the search was not unreasonable in view of the defendant's status as an escapee. After trial and conviction, motion for new trial was filed and overruled, and this appeal followed.

The defendant's assignments of error center around the contention that the search and seizure in this case violated the defendant's constitutional right to be free from unreasonable searches and seizures, and that defendant's motion to suppress the evidence seized was erroneously denied.

In this case the defendant filed a motion to suppress the evidence obtained in the allegedly unreasonable search and seizure more than 10 days prior to trial in accordance with statutory requirements. After hearing in the District Court, the court denied the motion to suppress. The defendant did not again move to suppress the evidence at trial, nor make specific objection to its admission.

A preliminary issue on this appeal is therefore whether, after denial of a motion to suppress evidence, it is necessary at trial to move to suppress again or object to the admission of the evidence which the court has previously refused to suppress, and whether such objection is a prerequisite to review of the suppression issue on appeal.

Section 29-822, R.R.S.1943, provides that motions to suppress evidence obtained by an unlawful search and seizure must be filed at least 10 days before trial or at the time of the plea to the complaint, whichever is the later, and provides: "Unless claims of unlawful search and seizure are raised by motion before trial as herein provided, all objections to use of the property as evidence on the ground that it was obtained by an unlawful search and seizure shall be deemed waived; Provided, that the court may entertain such motions to suppress after the commencement of trial where the defendant is surprised by the possession of such evidence by the state, and also may in its discretion then entertain the motion where the defendant was not aware of the grounds for the motion before commencement of the trial."

In State v. Smith, 184 Neb. 363, 167 N.W.2d 568, the court said: "We conclude that section 29-822, R.R.S.1943, intends, unless within the exceptions contained in the statute, that motions to suppress evidence should be finally determined before trial, but that a trial court is not precluded from correcting errors at the trial." In the case now before us there are no facts which bring it within the exceptions contained in the statute.

The State now contends that since the trial court is not precluded from correcting errors at trial, the failure to again object to the evidence at trial constitutes a waiver of all objections to admission and precludes any review of the suppression issue on appeal. We disagree.

The issue is one of first impression in this state but has been dealt with extensively in other jurisdictions. In Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321, the United States Supreme Court noted: "It is quite true generally that the overruling of a pretrial motion to suppress the use at the trial of particular evidence preserves the point and renders it unnecessary to object when such evidence is offered at the trial." In that particular case, however, defense counsel had made use of the evidence in his argument, and had stated that he had no objection to its introduction. The court therefore held that he had waived the objection.

A leading case for the view that reassertion of the objection at trial is not necessary is Waldron v. United States, 95 U.S.App.D.C. 66, 219 F.2d 37. In that case the court was applying Rule 41(e) of the Federal Rules of Criminal Procedure, a rule very similar to section 29-822, R.R.S.1943. That case very effectively sets forth the reasons for such a rule. The court said: "It seems clear to us that a ruling on a motion to suppress evidence becomes a controlling rule in the case just as does a ruling made during a trial. * * * It seems to us the same elementary principles must apply when a motion to suppress has been...