State v. Svendgard , 31 Neb. Ct. App. 596 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/21/2023 08:04 AM CST
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. SVENDGARD
Cite as 31 Neb. App. 596State of Nebraska, appellee, v.
Travis T. Svendgard, appellant.
___ N.W.2d ___
Filed February 14, 2023. No. A-22-202.
1. Courts: Appeal and Error. Both the district court and a higher appel-
late court generally review appeals from the county court for error
appearing on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
3. Appeal and Error. An appellate court independently reviews questions
of law in appeals from the county court.
4. Search and Seizure: Search Warrants. In the absence of a clear show-
ing of prejudice, the failure to comply strictly with postservice statutory
requirements will not invalidate a search conducted pursuant to an oth-
erwise valid warrant.
Appeal from the District Court for Washington County,
John E. Samson, Judge, on appeal thereto from the County
Court for Washington County, Francis W. Barron III, Judge.
Judgment of District Court affirmed.
David V. Drew, of Drew Law Firm, P.C., L.L.O., for
appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Pirtle, Chief Judge, and Arterburn and Welch, Judges.
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Nebraska Court of Appeals Advance Sheets
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STATE V. SVENDGARD
Cite as 31 Neb. App. 596Pirtle, Chief Judge.
INTRODUCTION
Travis T. Svendgard appeals from the order of the district
court for Washington County which affirmed the order of the
Washington County Court denying Svendgard’s pretrial motion
to suppress evidence obtained pursuant to a search warrant
executed in violation of Neb. Rev. Stat. § 29-815(1) (Reissue
2016). For the reasons that follow, we affirm.
BACKGROUND
The underlying facts of this case are not in dispute. On
March 7, 2021, a law enforcement officer, Miranda Anderson,
conducted a traffic stop after she observed Svendgard driv-
ing with a defective headlight. Upon making contact with
Svendgard, Anderson detected the odor of alcohol and observed
that Svendgard’s eyes were bloodshot and watery. Anderson
arrested Svendgard, and the parties stipulated there was prob-
able cause for that arrest. Anderson transported Svendgard
to the police department for a definitive breath test, but the
“DataMaster” machine was not working, so Anderson had to
obtain a search warrant to authorize a blood draw. Anderson’s
body camera footage shows her advising Svendgard that she
was leaving to obtain the search warrant and would return to
transport him to a hospital for the blood draw.
Anderson drafted an affidavit and a proposed warrant, and
she contacted Judge Francis W. Barron III of the Washington
County Court via telephone. Thereafter, Anderson drove to
Judge Barron’s residence and presented him with the affidavit
and proposed warrant, and Judge Barron signed the search
warrant authorizing a blood draw. Anderson then transported
Svendgard to the hospital and observed hospital staff con-
duct the blood draw. Svendgard’s blood alcohol content was
.093 grams per 100 milliliters of blood. Following the blood
draw, Anderson’s body camera footage shows her handling a
copy of the signed search warrant in Svendgard’s presence
and discussing the warrant with medical staff. However,
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Nebraska Court of Appeals Advance Sheets
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STATE V. SVENDGARD
Cite as 31 Neb. App. 596Svendgard was never actually provided with a copy of the
search warrant.
On March 29, 2021, the State filed a criminal complaint
in Washington County Court charging Svendgard with one
count of driving under the influence of alcohol. On May
24, Svendgard filed a motion to suppress the results of the
blood draw on the grounds that Anderson failed to give him a
copy of the warrant, as required by § 29-815. Svendgard also
alleged certain other defects in the warrant which are not at
issue on appeal. The hearing on Svendgard’s motion to sup-
press and trial on the State’s criminal complaint were both
held on September 1.
On the motion to suppress, the parties stipulated that
Anderson failed to give Svendgard a copy of the warrant. The
State argued that defect was merely “ministerial,” such that
suppression was not proper absent a showing of prejudice.
Svendgard, on the other hand, argued that that rule only applies
to “post-service statutory requirements,” and the defects in this
case were violations of “service” requirements. The county
court agreed with the State and denied the motion to suppress,
finding that the defects complained of were “ministerial act[s]”
and that Svendgard suffered “no clear prejudice.”
After trial, the county court found Svendgard guilty of
driving under the influence and sentenced him accordingly.
Svendgard appealed to the district court, challenging only the
county court’s denial of his motion to suppress. On February
28, 2022, the district court entered an order affirming the
county court’s denial of the motion to suppress. The district
court concluded that “under the facts of this case, the error
was ministerial in nature and de minimis, and does not rise
to the level of having the evidence suppressed.” Svendgard
appealed to this court.
ASSIGNMENT OF ERROR
Svendgard assigns, restated, that the district court erred in
affirming the county court’s denial of his motion to suppress.
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Nebraska Court of Appeals Advance Sheets
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STATE V. SVENDGARD
Cite as 31 Neb. App. 596STANDARD OF REVIEW
[1-3] Both the district court and a higher appellate court gen-
erally review appeals from the county court for error appearing
on the record. State v. Webb, 311 Neb. 694, 974 N.W.2d 317(2022). When reviewing a judgment for errors appearing on
the record, an appellate court’s inquiry is whether the decision
conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable. Id. However,
an appellate court independently reviews questions of law in
appeals from the county court. Id.ANALYSIS
[4] There is no dispute in this case that Anderson failed to
comply with a statutory requirement to provide Svendgard
with a copy of the search warrant. See § 29-815(1) (officer
taking property under warrant shall give to person from whom
or from whose premises property was taken copy of warrant
and receipt for property or shall leave copy and receipt at
place from which property was taken). Svendgard does not
otherwise challenge the validity of the warrant or the probable
cause upon which it was based. Moreover, Svendgard acknowl-
edges that in the absence of a clear showing of prejudice, the
failure to comply strictly with statutory requirements which
are ministerial in nature will not invalidate a search conducted
pursuant to an otherwise valid warrant. State v. Nolt, 298 Neb.
910, 906 N.W.2d 309 (2018).
In Nolt, the Nebraska Supreme Court addressed a challenge
to a search warrant that was not returned and filed within 10
days, in violation of § 29-815. The court determined that the
requirement to return a warrant within 10 days was “a post-
service statutory requirement, which is ministerial in nature.”
State v. Nolt, 298 Neb. at 923, 906 N.W.2d at 321. Because the
purely ministerial defect itself did not invalidate the warrant,
the court concluded that suppression of the evidence seized
was not required absent a clear showing of prejudice.
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STATE V. SVENDGARD
Cite as 31 Neb. App. 596Svendgard’s sole argument on appeal is that Nolt does not
apply to the present case on the grounds that the requirement
to provide a copy of the warrant is a “service,” as opposed
to a postservice, statutory requirement. Brief for appellant at
4. Svendgard maintains that while postservice requirements
are ministerial in nature, service requirements are not. Thus,
according to Svendgard, a warrant executed in violation of a
service requirement invalidates the search and requires sup-
pression regardless of prejudice. We disagree.
It is true that the Nolt court referred to the statutory require-
ment in that case as a “postservice” requirement, but there was
no indication that the court intended to make the sweeping
pronouncement that Svendgard proposes. The operative ques-
tion in Nolt was not whether the statutory violation at issue
was a “service” or a “postservice” error, but, rather, whether
the violation was purely ministerial and thus not subject to
suppression absent a showing of clear prejudice. See, also,
Neb. Rev. Stat. § 29-823 (Reissue 2016) (no evidence shall
be suppressed because of technical irregularities not affecting
substantial rights of accused).
Svendgard argues that Anderson’s failure to provide a copy
of the warrant was not ministerial based on his assertion that
“service” errors are considered nonministerial as a matter of
law. Whatever the import of the semantic distinction between
postservice and service errors, we disagree that the Supreme
Court intended to adopt a per se rule requiring suppression
of the evidence in this case. See State v. Nolt, supra. The
defect complained of in this case is the failure to comply with
a statutory requirement to provide a copy of an otherwise
valid warrant. The record suggests that Svendgard was at all
times aware of what was happening during the driving under
the influence investigation, including the fact that a search
warrant was being obtained for the purpose of conducting a
blood draw. Under the circumstances of this case, we agree
that the statutory violation at issue in this case was a purely
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STATE V. SVENDGARD
Cite as 31 Neb. App. 596ministerial defect. Such a defect does not invalidate a search
warrant absent a clear showing of prejudice, and Svendgard
made no such showing in this case. Accordingly, we affirm the
order of the district court affirming the county court’s denial
of Svendgard’s motion to suppress.
CONCLUSION
For the foregoing reasons, we affirm the order of the dis-
trict court.
Affirmed.