State v. Walker
| Decision Date | 24 August 1990 |
| Docket Number | No. 89-1193,89-1193 |
| Citation | 459 N.W.2d 527,236 Neb. 155 |
| Parties | STATE of Nebraska, Appellee, v. James D. WALKER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Constitutional Law: Search and Seizure. Both the U.S. and Nebraska Constitutions guarantee an individual the right to be free from unreasonable searches and seizures.
2. Search and Seizure. A search implies some exploratory investigation. It is not a search to observe that which is open and patent, in either sunlight or artificial light.
3. Search and Seizure: Police Officers and Sheriffs: Evidence. An officer may seize evidence and contraband which is in "plain view" without a warrant if he has the right to be in the position where he has such a view. Such activity does not constitute a search.
4. Constitutional Law: Search and Seizure: Waiver. The right to be free from unreasonable searches and seizures may be waived by consent of a citizen. Affirmative consent may be established by acts entirely aside from the use of words.
5. Constitutional Law: Search and Seizure. Consent may be obtained from one who possesses common authority over, or other sufficient relationship to, the premises sought to be inspected.
6. Constitutional Law: Search and Seizure. It is clear that the fourth amendment prohibition against unreasonable searches and seizures is inapplicable to the conduct of private parties.
7. Constitutional Law: Search and Seizure. Whether a private person's search is actually a search by the State depends on whether the private person must be regarded as having acted as an instrument or agent of the State.
8. Constitutional Law: Search and Seizure: Arrests: Standing. An individual's status as an overnight guest is alone enough to show that he or she has a legitimate expectation of privacy in the premises which is protected by the fourth amendment, and, thus, the person has standing to challenge a warrantless entry to effect his or her arrest.
9. Constitutional Law: Search and Seizure: Police Officers and Sheriffs. A search by an off-duty law enforcement officer in his or her capacity as a private citizen, and not as a law enforcement officer, does not violate the prohibition against unreasonable searches and seizures.
10. Motions to Suppress: Appeal and Error. Findings of fact reached by a trial court on a motion to suppress will not be overturned on appeal unless those findings are clearly erroneous.
11. Search and Seizure: Trial. A trial court's finding on whether a search by a private person is actually a search by the State constitutes a factual finding.
12. Motions to Suppress: Appeal and Error. In making a determination as to a trial court's ruling on a motion to suppress, the Supreme Court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that the trial court has observed the witnesses testifying in regard to such motions.
Thomas M. Kenney, Douglas County Public Defender, and Brian S. Munnelly, for appellant.
Robert M. Spire, Atty. Gen., and Kenneth W. Payne, for appellee.
Claiming that the trial court should have sustained his motion to suppress evidence obtained from a bedroom he was temporarily occupying in a friend's home, James D. Walker appeals his conviction for illegal possession of methamphetamine.
We affirm the finding of the district court for Douglas County that the evidence upon which Walker was convicted was legally seized.
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 wrong. State v. Prahin, 235 Neb. 409, 455 N.W.2d 554 (1990); State v. Abdouch, 230 Neb. 929, 434 N.W.2d 317 (1989); State v. Blakely, 227 Neb. 816, 420 N.W.2d 300 (1988).
Approximately October 1, 1988, Joseph M. Davitt, a lieutenant with the Omaha Police Division, in his private capacity as a landlord, rented a two-bedroom house he owned in Omaha to Milton Garrison. Anne Opsatnick resided in the house with Garrison. Because of marital problems, Walker was temporarily staying at the residence.
About 4:30 p.m. on November 16, 1988, Davitt informed Garrison by telephone that he "wanted to come over and talk to him" around 5:30 that afternoon. Garrison agreed with that arrangement. Although Davitt did not inform Garrison of the specific reason for his visit, he testified he wanted to talk with Garrison about the utility billings, which had not been changed into Garrison's name; a delinquent security deposit; and an overdue rent payment. Davitt testified that one of the reasons for his visit was to check on the status of bedroom repairs which Garrison had agreed to perform in exchange for a reduction in the rent.
About 5:30 p.m., Davitt arrived at the leased premises. He was not dressed as a police officer, but did carry a weapon which was not displayed. After Davitt rang the doorbell several times and knocked loudly on the door, Walker answered the door. Davitt explained to Walker that he had made arrangements to meet Garrison at the home at 5:30. Walker informed Davitt that Garrison was not at home, stepped back, and held the door open allowing Davitt to enter the house.
Davitt told Walker that while he was waiting for Garrison, he wanted to check on the bedroom where some repairs were to be performed and began walking toward the bedroom. In that bedroom, the wallpaper was to be removed and the room painted. Walker followed Davitt to the bedroom.
Upon reaching the room, Davitt asked Walker to turn on the light activated by a pull chain switch because Davitt was too short to reach it. The defendant entered the bedroom, stood there for a moment, and asked Davitt if he minded if defendant cleaned up. Davitt stated that he did not mind and stepped back from the bedroom door. Davitt, who was not watching Walker the entire time, saw Walker straighten "a quilt or something on the bed." At that point, Walker reached up and turned on the light. Thereupon, Davitt walked into the bedroom and observed a balance beam scale on the floor, with a white powdery residue on it.
After obtaining permission from Walker to use the telephone, Davitt telephoned the narcotics unit of the Omaha Police Division and requested assistance. He advised Walker to have a seat in the living room until the officers arrived. Approximately 2 to 3 minutes later, Garrison arrived at the residence. Davitt informed Garrison that he had found a scale and that police officers were en route. He told Garrison to take a seat in the living room until the police officers arrived. When Opsatnick came out of the bathroom, Davitt asked her to also wait in the living room for the police officers' arrival.
After the police officers arrived, Garrison and Walker were frisked. Garrison gave permission to one of the police officers to search the house. The house was not searched at that time because Walker refused permission to search his bedroom. Walker, Garrison, and Opsatnick were eventually arrested and taken to the police station.
The police officers later obtained a search warrant, and the house was searched. Davitt testified that for the most part, he did not participate in the search. He had never been a member of the police narcotics squad. A number of used syringes, objects with an unknown residue, and baggies containing suspected methamphetamine were found in the house. Through laboratory analysis, it was determined that some of the baggies contained methamphetamine and that the residue on certain spoons was methamphetamine.
By amended information, Walker was charged in the district court for Douglas County with possession of methamphetamine. Walker's motion to suppress the evidence seized pursuant to the search was overruled. Walker waived his right to a jury trial.
At trial, Walker unsuccessfully renewed his objections to the admission of the evidence seized. The court found him guilty beyond a reasonable doubt of unlawful possession of a controlled substance other than marijuana, to wit, methamphetamine. Walker was sentenced to a term of imprisonment of not less than 18 nor more than 36 months, with credit for time served.
The defendant's sole assignment of error alleges that the district court erred in overruling his motion to suppress evidence.
Both the U.S. and Nebraska Constitutions guarantee an individual the right to be free from unreasonable searches and seizures. U.S. Const. amend. IV; Neb. Const. art. I, § 7. As an initial matter, it is therefore considered whether Davitt's actions constituted a search. State v. Howard, 184 Neb. 274, 278, 167 N.W.2d 80, 84 (1969). In State v. Searles, 214 Neb. 849, 853, 336 N.W.2d 571, 575 (1983), this court stated:
Davitt notified his tenant Garrison that he would be arriving at 5:30 p.m. to speak with him, and Garrison agreed to the visit. When Davitt arrived at the house, Walker opened the door and allowed him to enter. After Davitt entered the house and indicated his desire to inspect the bedroom for repairs, Walker followed Davitt to the bedroom, straightened up the room, and turned on the light for him. It can reasonably be inferred that Walker consented to Davitt's entry into his bedroom. The right to be free from unreasonable searches and seizures may be waived by consent of a citizen. State v. Prahin, 235 Neb. 409, 455 N.W.2d 554 (1990). "Affirmative consent may be established by acts entirely aside from...
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