State v. Vrtiska, 86-752

Citation406 N.W.2d 114,225 Neb. 454
Decision Date22 May 1987
Docket NumberNo. 86-752,86-752
PartiesSTATE of Nebraska, Appellee, v. Gary A. VRTISKA, Appellant.
CourtSupreme Court of Nebraska

Syllabus by the Court

1. Appeal and Error. In the absence of plain error, where an issue is raised for the first time in the Supreme Court, such issue will be disregarded inasmuch as the court whose judgment is being reviewed cannot commit error regarding an issue never presented and submitted for disposition.

2. Motions to Suppress: Appeal and Error. In determining the correctness of a trial court's ruling on a motion to suppress, the Supreme Court will uphold the trial court's findings of fact unless those findings are clearly erroneous. In determining whether a trial court's findings on a motion to suppress are clearly erroneous, the Supreme Court recognizes the trial court as the "trier of fact" and takes into consideration that the trial court has observed witnesses testifying regarding such motion to suppress.

3. Search and Seizure: Search Warrants. Generally, seizure of property is permissible under a validly authorized search warrant, under exigent circumstances, or under some other recognized exception to the warrant requirement.

4. Search and Seizure: Search Warrants: Presumptions. A search pursuant to a warrant is presumed to be valid.

5. Search and Seizure: Search Warrants: Motions to Suppress: Proof. A defendant who seeks to suppress evidence obtained under a legally issued search warrant has the burden of establishing that the search was improper and that the evidence secured thereby should be suppressed.

6. Search and Seizure: Search Warrants: Motions to Suppress: Proof. If police have acted pursuant to a search warrant, the defendant bears the burden of proof that the search or seizure is unreasonable; but, if police acted without a search warrant, the State has the burden of proof that the search was conducted under circumstances substantiating the reasonableness of such search or seizure.

7. Constitutional Law: Search and Seizure: Motions to Suppress: Proof. Regarding a motion to suppress, the initial burden of proof (burden of going forward) is on the movant to establish a prima facie case of an unconstitutional search and seizure, and when such prima facie case has been established, the burden of proof (burden of going forward) shifts to the State to establish that the search and seizure were constitutionally permissible.

8. Constitutional Law: Search and Seizure. Entry through a window of a dwelling is an intrusion subject to the safeguard of the fourth amendment to the U.S. Constitution.

9. Constitutional Law: Police Officers and Sheriffs: Search and Seizure: Search Warrants. A nonconsensual and unannounced entry by a police officer for execution of a search warrant within an unoccupied dwelling is not, by itself and necessarily, an unreasonable intrusion prohibited by the fourth amendment to the U.S. Constitution.

10. Constitutional Law: Police Officers and Sheriffs: Search and Seizure: Search Warrants. A search of premises must be directed in good faith toward the object specified in a search warrant or for other means and instrumentalities by which a crime charged has been committed. Such search must not be a general exploratory search through which officers merely hope to discover evidence of wrongdoing.

11. Constitutional Law: Police Officers and Sheriffs: Search and Seizure: Search Warrants. When officers, in the course of a bona fide effort to execute a valid search warrant, discover articles 12. Criminal Law: Joinder: Trial. If the offenses charged are of the same or similar character, or are based on the same act or transaction, the offenses may be joined in one trial pursuant to Neb.Rev.Stat. § 29-2002(3) (Reissue 1985).

which, although not included in the warrant, are reasonably identifiable as contraband, the officers may seize such articles whether those items are initially in plain sight or come into plain sight subsequently as a result of the officers' efforts.

13. Criminal Law: Joinder: Trial: Appeal and Error. A trial court's ruling on a motion for consolidation of prosecutions properly joinable will not be disturbed in the absence of an abuse of discretion.

14. Trial: Appeal and Error. A judicial abuse of discretion does not denote or imply improper motive, bad faith, or intentional wrong by a judge, but requires the reasons or rulings of a trial judge to be clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition through a judicial system.

James R. Mowbray of Mowbray, Chapin & Walker, P.C., Lincoln, for appellant.

Robert M. Spire, Atty. Gen., and Laura L. Freppel, Lincoln, for appellee.

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

SHANAHAN, Justice.

Gary A. Vrtiska appeals his conviction in a jury trial for possession of a short shotgun in violation of Neb.Rev.Stat. § 28-1203(1) (Reissue 1985). We affirm.

THE WARRANT AND SEARCH

The application and affidavit for the search warrant for Vrtiska's residence, as well as the search warrant itself, was introduced as evidence at the hearing on Vrtiska's motion to suppress evidence. According to those documents, law enforcement personnel had reliable information that Vrtiska was growing marijuana in the basement of his dwelling, where Vrtiska also had a stolen machine gun. The county court issued a warrant to search Vrtiska's residence and seize "Growing Marijuana Plants and a fully automatic machine gun described as a 'Thompson' machine gun," if found on the premises searched.

Pursuant to the search warrant, the sheriff, two deputy sheriffs, and two investigators from the Nebraska State Patrol went to Vrtiska's residence. The sheriff, who was the first to arrive, had the search warrant, found the front door locked, and entered the house through a dining room window. Nothing discloses whether the window was open or entry was gained by application of force to the window. The sheriff then unlocked the house's front door, through which the other officers entered the dwelling.

After entering, the officers first confirmed their belief that the premises were unoccupied and then commenced a search for marijuana plants in the basement, where officers found a marijuana plant "stem that looked like it had been chopped off." Although there were no plants growing in the basement, the officers found a fan, electric lights, loose dirt, a watering apparatus, aluminum foil, and a thermometer, which were items used in a "marijuana-cultivating operation." Officers photographed the area for marijuana production in the basement and returned upstairs to continue their search for the machine gun mentioned in the search warrant. In the course of the upstairs search, the officers came across some "explosive material," a plastic pipe with a fuse in it, and continued their search for the machine gun.

During their search, and at various times in different parts of the house, the officers found the machine gun, which consisted of three components--a barrel and receiver group, a loaded drum-magazine, and a butt stock.

On top of a buffet in the dining room, the officers found the loaded magazine for the machine gun. Believing that the other parts for the weapon were in the vicinity, the officers continued their search. Beneath a television set in the living room The State filed three complaints against Vrtiska. The first complaint charged Vrtiska with possession of a short shotgun, which is defined in Neb.Rev.Stat. § 28-1201(6) (Reissue 1985) as "a shotgun having a barrel or barrels less than eighteen inches long or an overall length of less than twenty-six inches." The second complaint charged Vrtiska with possession of explosive materials in violation of Neb.Rev.Stat. § 28-1215 (Reissue 1985), while the third charged that Vrtiska had received stolen property in violation of Neb.Rev.Stat. § 28-517 (Reissue 1985). After a preliminary hearing, Vrtiska was bound over to district court on all three charges filed in separate informations, to which Vrtiska entered his not guilty plea.

one officer found the barrel and receiver group for the machine gun. The sheriff, still searching in the dining room, opened a door in the buffet and discovered a sawed-off shotgun, which had an 11 1/4-inch barrel. Later, officers found the butt stock near a footlocker in the living room.

MOTION TO SUPPRESS

In district court, Vrtiska, as authorized by Neb.Rev.Stat. § 29-822 (Reissue 1985), filed a motion to suppress all physical evidence obtained under the search warrant for his residence and alleged that such search violated his rights "under the applicable provisions of the Fourth, Fifth and Fourteenth Amendments to the United States Constitution." At the hearing on Vrtiska's motion to suppress, evidence was adduced, as previously set forth in this opinion. The court overruled Vrtiska's motion.

CONSOLIDATION OF TRIALS

At the State's request and pursuant to Neb.Rev.Stat. § 29-2002(3) (Reissue 1985), the court ordered that the three informations against Vrtiska be tried together. After the State rested its case, Vrtiska asked for dismissal of each information, contending that the State had failed to prove a prima facie case for the three charges. The court dismissed the informations which charged Vrtiska with receiving stolen property and possessing explosive materials, but overruled Vrtiska's motion concerning the charge of possessing a short shotgun. After the jury found Vrtiska guilty of possessing a short shotgun, the court sentenced Vrtiska to imprisonment for a term of 3 years.

ASSIGNMENTS OF ERROR

Vrtiska contends that the district court erred in failing to suppress evidence obtained at Vrtiska's residence and in consolidating the trials on the three informations.

SUPPRESSION OF EVIDENCE

Vrtiska argues that the search of his residence violated statutory and constitutional...

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45 cases
  • State v. Ford
    • United States
    • Oregon Supreme Court
    • 26 Noviembre 1990
    ... ... Morgan, 517 Pa. 93, 534 A.2d 1054 (1987) (violation of rule merely a factor to be considered in assessing claim of constitutional violation on grounds of unreasonable search); State v. Vrtiska ... ...
  • State v. Illig
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    • Nebraska Supreme Court
    • 22 Marzo 1991
    ...the trial court's ruling on a motion to suppress unless the trial court's findings of fact are clearly erroneous. State v. Vrtiska, 225 Neb. 454, 406 N.W.2d 114 (1987), cert. denied 484 U.S. 863, 108 S.Ct. 180, 98 L.Ed.2d 133; State v. Walker, 236 Neb. 503, 461 N.W.2d 755 (1990); State v. P......
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    ...118. Accord, State v. Juhl, 234 Neb. 33, 449 N.W.2d 202 1989); State v. Abdouch, 230 Neb. 929, 434 N.W.2d 317 (1989); State v. Vrtiska, 225 Neb. 454, 406 N.W.2d 114 (1987). See, also, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 "A search incident to a lawful arrest nee......
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    ...v. Valentine, 264 Or. 54, 504 P.2d 84, 85, cert. denied 412 U.S. 948, 93 S.Ct. 3001, 37 L.Ed.2d 1000; see, contra, State v. Vrtiska, 225 Neb. 454, 406 N.W.2d 114, 121, cert. denied 484 U.S. 863, 108 S.Ct. 180, 98 L.Ed.2d 133 ). However, in People v. Payton, 45 N.Y.2d 300, 314-315, 408 N.Y.S......
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1 books & journal articles
  • The smell of Herring: a critique of the Supreme Court's latest assault on the exclusionary rule.
    • United States
    • Journal of Criminal Law and Criminology Vol. 99 No. 3, June 2009
    • 22 Junio 2009
    ...560 (1971). (155) Herring, 129 S. Ct. at 710 n.7. (156) See, e.g., United States v. Vigo, 413 F.2d 691 (5th Cir. 1969); State v. Vrtiska, 406 N.W.2d 114 (Neb. (157) People v. Willis, 46 P.3d 898, 907 (Cal. 2002). (158) See CHARLES MCCORMICK, EVIDENCE [section] 337 (4th ed. 1992). (159) Id. ......

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