State v. Lowery ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/07/2016 12:11 PM CDT
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Decisions of the Nebraska Court of A ppeals
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STATE v. LOWERY
Cite as 23 Neb. Ct. App. 621
State of Nebraska, appellee, v.
Joseph R. Lowery, appellant.
___ N.W.2d ___
Filed February 23, 2016. No. A-14-721.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error. But whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
2. Arrests: Warrants: Search and Seizure: Police Officers and Sheriffs.
The interests protected by arrest warrants and search warrants differ: An
arrest warrant primarily serves to protect an individual from an unrea-
sonable seizure, whereas a search warrant safeguards an individual’s
interest in the privacy of his home and possessions against the unjusti-
fied intrusion of the police.
3. Constitutional Law: Arrests: Warrants: Probable Cause. If a person
is arrested pursuant to a valid arrest warrant, it does not matter whether
the arrest occurs in his or her own home or in the home of another, as
long as there is either reasonable belief or probable cause to believe that
the subject of the arrest warrant is within the home; no search warrant,
consent, or exigent circumstances are required in order to protect the
Fourth Amendment rights of the subject of the arrest warrant.
4. Constitutional Law: Search and Seizure: Standing. A “standing”
analysis in the context of search and seizure is nothing more than an
inquiry into whether the disputed search and seizure has infringed an
interest of the defendant in violation of the protection afforded by the
Fourth Amendment.
5. Constitutional Law: Search and Seizure. The test used to determine
if a defendant has an interest protected by the Fourth Amendment is
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whether the defendant has a legitimate or justifiable expectation of
privacy in the premises. Ordinarily, two inquiries are required: First,
an individual must have exhibited an actual (subjective) expectation of
privacy, and second, the expectation must be one that society is prepared
to recognize as reasonable.
6. ____: ____. An overnight guest has an expectation of privacy in his
or her host’s home, which society is willing to recognize as reason-
able, and, therefore, the overnight guest has standing to assert Fourth
Amendment violations.
7. ____: ____. An overnight guest’s legitimate expectation of privacy does
not extend to areas of the host’s home which are off limits to the guest
or of which the guest has no knowledge.
8. Search and Seizure: Standing. A defendant can prevail on a fruit of
the poisonous tree claim only if he has standing regarding the violation
which constitutes the poisonous tree.
Appeal from the District Court for Scotts Bluff County: Leo
Dobrovolny, Judge. Affirmed.
Jose L. Rodriguez, Deputy Scotts Bluff County Public
Defender, for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Pirtle, R iedmann, and Bishop, Judges.
Bishop, Judge.
Following a jury trial, the district court for Scotts Bluff
County, Nebraska, convicted Joseph R. Lowery of possession
with intent to distribute a controlled substance (methamphet-
amine). Lowery appeals, arguing the district court erred in
overruling his motion to suppress evidence. We affirm.
BACKGROUND
On January 8, 2014, the chief of police of Mitchell, Nebraska,
Michael Cotant, recognized a green, Chevy pickup truck (with
a “14 County, Nebraska” license plate) parked in the driveway
of George Valles’ home on Center Avenue in Mitchell. Chief
Cotant had previously seen the Chevy on several occasions
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in December 2013 at a trailer park in Mitchell; Valles lived
in the trailer park at the time. When Chief Cotant “ran” the
Chevy’s license plate number, he learned that it was registered
to Lowery and another person, with an address in Roseland,
Nebraska. On January 9, Chief Cotant followed up on Lowery’s
name, which he recognized, and learned that Lowery and his
brother had warrants out for their arrests for unpaid fines and
court costs. Chief Cotant prepared a packet of information con-
taining photographs of Lowery and his brother, the registration
information for the Chevy, and copies of the arrest warrants for
Lowery and his brother, and left it for Officer Joshua Catlin of
the Mitchell Police Department.
When Officer Catlin came on duty the morning of January
10, 2014, he received the packet of information prepared by
Chief Cotant. Officer Catlin recognized the description of the
Chevy from having seen it prior to that day, and he said he
“ran the plate” himself. He drove by the residence on Center
Avenue at approximately 8:25 a.m. and observed the Chevy
parked on the street in front of the residence. Officer Catlin
then contacted Deputy Sheriff David Ojeda of the Scotts Bluff
County Sheriff’s Department (who had been tasked with find-
ing and arresting Lowery’s brother) to see if he would be able
to assist Officer Catlin in arresting Lowery. Officer Catlin and
Deputy Ojeda met around 9 a.m. in Mitchell and updated each
other on the information they had. Deputy Ojeda then had the
Chevy’s “license plate run” again. Deputy Ojeda was advised
by the communications center that there was a protection order
on Lowery out of Adams County and that he should use cau-
tion because Lowery was known to carry a gun, was violent
toward other people, and had fled when the protection order
was being served on him. At that point, Officer Catlin went
back to the residence to monitor the Chevy, while Deputy
Ojeda called for additional assistance.
Law enforcement arrived at the residence around 10 a.m.
The group of seven split up and surrounded the residence.
Officer Catlin was part of the group that went around to the
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back of the house. Deputy Ojeda and his group went to the
front door. Deputy Ojeda knocked, and Valles’ wife answered
the door holding a baby. She stated that she lived in the
residence. Deputy Ojeda then asked her several times whether
Lowery was in the house, and each time she said that she
did not know. Deputy Ojeda asked Valles’ wife if they could
come in, and she motioned them into the house. Once inside,
Deputy Ojeda continued to ask Valles’ wife about whether
Lowery was in the house. At that point, Valles walked into the
living room and said he was the owner of the house. Deputy
Ojeda asked Valles if Lowery was in the house, and Valles
stated that he did not know. At some point, Deputy Ojeda
heard on his radio that officers behind the residence saw
somebody “peeking through the shades in the back room.”
Deputy Ojeda asked Valles if Lowery was “in the back of the
house,” and he said no. Deputy Ojeda told Valles that they
had an arrest warrant for Lowery and his brother, that the
green Chevy outside was registered to Lowery, that officers
had seen someone peeking through the back windows, and
that Deputy Ojeda thought Valles was hiding either Lowery or
his brother. Valles told Deputy Ojeda he “needed to step out-
side as he didn’t see a warrant.” The officers stepped outside,
and Deputy Ojeda radioed Officer Catlin to bring the arrest
warrants to the front door, which were then shown to Valles.
Valles told the officers that no one was in the house but him,
his wife, and their child.
After showing Valles the arrest warrants, the officers again
entered the house and Valles took them to the back bedroom.
How that came to pass is not entirely clear from our record.
Officer Catlin testified that officers behind the residence again
radioed there was movement in the back bedroom and that
because he and Deputy Ojeda could see Valles, his wife, and
the baby, Deputy Ojeda told Valles they were going to search
and Valles needed to take the officer to the back bedroom.
Deputy Ojeda, however, testified that he urged Valles to let
them in (as neighbors were starting to come out of their houses
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and he did not want to make a scene) and that they would
arrest Lowery and leave; he said that Valles stepped back
inside and started walking to the back of the house and Deputy
Ojeda followed him. Either way, officers ended up back inside
the house and at the door of the back bedroom. Officer Catlin
testified that Valles knocked on the door and said, “‘If there
is anybody in there, open the door, come out.’” At that point,
Lowery came out of the room and was arrested and taken out-
side to a patrol car. Deputy Ojeda testified that Valles knocked
on the door, and someone inside said, “‘Who is it?’” Valles
responded, “‘It’s the cops.’” Then Lowery opened the door and
was arrested.
After Lowery was arrested, Deputy Ojeda asked Valles
about another room, which was locked (earlier when Deputy
Ojeda was on the way to the back bedroom where Lowery was
found, he had tried to turn the doorknob to this other room, but
it was locked). Valles said it was his room, he always kept it
locked, and nobody ever went in there. Officers told Valles to
get the key and open the door; the officers apparently thought
Lowery’s brother might be in there. Valles retrieved the key
and unlocked the door. Upon entering the room, officers saw in
plain view drug paraphernalia and “designer baggies” known to
be commonly used to package controlled substances; they also
saw a shotgun case and handgun in the closet when checking
to make sure no one was hiding in the closet. This evidence
formed the basis for a later search warrant. Law enforcement
subsequently executed the search warrant that same day and
found drugs, paraphernalia, and other incriminating evidence
in Valles’ room, the room Lowery had been in, and other areas
of the home. Among the items found in the room Lowery had
been in was more than 10 grams of methamphetamine in a
wood box under the bed.
Lowery was charged with possession with intent to distribute
a controlled substance (methamphetamine), a Class II felony.
Lowery filed a motion to suppress all relevant evidence on
the ground that it had been obtained in violation of the Fourth
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Amendment. At the hearing on the motion to suppress, Lowery
specifically challenged the two initial searches (the search
for Lowery and the search of Valles’ locked bedroom) and
argued that the affidavit offered in support of the search war-
rant was inadequate, in that it was based on the fruits of those
prior, allegedly illegal searches. At the hearing on the motion,
Officer Catlin, Deputy Ojeda, and Chief Cotant generally testi-
fied to the facts set forth above, and copies of the search and
arrest warrants were received into evidence.
The district court overruled Lowery’s motion to suppress.
The court determined that the officers’ initial entry into the
house was proper because a resident of the house, Valles’ wife,
let them in. The court also determined that the reentry into the
house to search for Lowery was proper because officers had
an arrest warrant for him and reasonably believed that he was
in the house. However, the court determined that the search of
Valles’ locked room was unlawful, that the fruits of that search
formed the basis for the search warrant, and that the good
faith exception did not apply. Nevertheless, the court overruled
Lowery’s motion because he failed to prove that he had stand-
ing to challenge the search of Valles’ locked room; the court
found the evidence insufficient to show that Lowery was an
overnight guest, but that even if he was an overnight guest, he
had no expectation of privacy in Valles’ locked room, which
is where the contraband was found that formed the basis for
the warrant.
At trial, Officer Catlin, Deputy Ojeda, and Chief Cotant
testified. Their testimony was generally consistent with what
they had testified to at the hearing on the motion to suppress,
though Officer Catlin’s testimony was geared toward other
aspects of the investigation, such as obtaining the search war-
rant and the collection of evidence; Deputy Ojeda and Chief
Cotant provided more of the background information. During
Deputy Ojeda’s testimony, Lowery objected on the grounds
raised in his earlier motion to suppress, which objection was
overruled, but Lowery was granted a continuing objection.
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Lowery again objected during Officer Catlin’s later testimony
and added to his continuing objection the alleged insuffi-
ciency of the affidavit for the search warrant. Other officers
testified regarding their involvement in the case, including
the execution of the search warrant, the identification of the
drugs, and the various indicia of drug distribution. Thereafter,
the State rested.
Lowery then put on his defense, which consisted of the tes-
timony of a friend, Lowery’s brother, and Lowery. Lowery’s
brother testified that Valles was a friend of his and that Valles
allowed Lowery to stay the night at his house. Lowery testified
that he stayed the night at Valles’ house the night of January 9,
2014, with Valles’ permission. Lowery also testified that none
of the contraband found at the house belonged to him. At no
point during Lowery’s case in chief did he renew his motion to
suppress or ask the court to reconsider its earlier ruling.
The jury found Lowery guilty of possession with intent to
distribute a controlled substance (methamphetamine). He was
later sentenced to 36 to 60 months’ imprisonment and given
193 days’ credit for time served.
Lowery has timely appealed to this court.
ASSIGNMENT OF ERROR
Lowery assigns that the trial court erred by failing to sup-
press evidence obtained during an unlawful search and seizure.
STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review. State
v. Wells, 290 Neb. 186, 859 N.W.2d 316 (2015). Regarding
historical facts, an appellate court reviews the trial court’s
findings for clear error. Id. But whether those facts trigger or
violate Fourth Amendment protections is a question of law that
an appellate court reviews independently of the trial court’s
determination. Id.
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ANALYSIS
Arrest of Lowery in Third Party’s Home Did Not
Violate Lowery’s Fourth Amendment Rights.
[2] Lowery argues that the evidence upon which he was
convicted was the result of an unlawful search and seizure.
He argues primarily that law enforcement unlawfully entered
Valles’ residence without a search warrant in their attempt to
arrest Lowery pursuant to an arrest warrant. Lowery argues
that in Steagald v. United States, 451 U.S. 204, 101 S. Ct.
1642, 68 L. Ed. 2d 38 (1981), the U.S. Supreme Court held
that absent exigent circumstances or consent, law enforcement
officers may not legally search for the subject of an arrest war-
rant in the home of a third party without first obtaining a search
warrant. Lowery argues that “by entering the Valles residence
without a valid search warrant in order to search for [Lowery],
law enforcement conducted an illegal search,” and that “none
of the relevant warrantless search exceptions are applicable in a
manner that would cure the illegality of [the officers’] search.”
Brief for appellant at 18. However, in Steagald, the Court spe-
cifically stated that “the narrow issue before [the Court was]
whether an arrest warrant—as opposed to a search warrant—is
adequate to protect the Fourth Amendment interests of persons
not named in the warrant.” 451 U.S. at 212 (emphasis sup-
plied). As stated in Steagald, the interests protected by the two
warrants differ; an arrest warrant “primarily serves to protect
an individual from an unreasonable seizure,” whereas a search
warrant “safeguards an individual’s interest in the privacy of
his home and possessions against the unjustified intrusion of
the police.” 451 U.S. at 213.
The Eighth Circuit, citing to Steagald, supra, for the propo-
sition that “absent exigent circumstance or consent, an arrest
warrant does not justify entry into a third person’s home to
search for the subject of the arrest warrant,” stated that “[t]hus,
‘if the suspect is just a guest of the third party, then the police
must obtain a search warrant for the third party’s dwelling in
order to use evidence found against the third party.’” U.S. v.
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Risse, 83 F.3d 212, 215, 216 (8th Cir. 1996) (emphasis sup-
plied). Risse is similar to Steagald in that both were concerned
only with the Fourth Amendment rights of the person not
named in the arrest warrant. We have found no U.S. Supreme
Court case addressing whether the subject of an arrest warrant
has had his or her Fourth Amendment rights violated when
law enforcement enters the home of a third party without first
obtaining a search warrant in an attempt to execute a valid
arrest warrant of the subject.
[3] As we explain below, according to the overwhelming
majority of the case law, if a person is arrested pursuant to
a valid arrest warrant, it does not matter whether the arrest
occurs in his or her own home or in the home of another,
as long as there is either reasonable belief or probable cause
to believe that the subject of the arrest warrant is within the
home; no search warrant, consent, or exigent circumstances
are required in order to protect the Fourth Amendment rights
of the subject of the arrest warrant. And because Lowery
was arrested pursuant to a valid arrest warrant and there
was probable cause to believe that he was in Valles’ home,
Lowery’s Fourth Amendment rights were not violated when
law enforcement entered Valles’ home without a search war-
rant to arrest Lowery.
In his brief, Lowery also cites us to State v. Gorup, 279
Neb. 841, 782 N.W.2d 16 (2010), for the proposition that
without a search warrant, police may only search for the
subject of an arrest warrant in the home of a third party if
a warrantless search exception applies; we do not read the
Gorup opinion to say what Lowery claims. Rather, at issue in
Gorup was the admissibility of evidence seized following law
enforcement’s entry into the defendant’s apartment after his
arrest outside the apartment, which was later followed by the
defendant’s consent to search the apartment. The discussion
in Gorup on attenuation, or break in the causal connection
between the illegal conduct and the consent to search, does
not help us here.
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A copy of Lowery’s arrest warrant was received into evi-
dence at the suppression hearing without objection; the war-
rant was for unpaid fines and court costs, and the underlying
offenses were infractions. Although Lowery does not chal-
lenge the validity of the arrest warrant, we note that the arrest
warrant was in fact valid. See State v. Wenke, 276 Neb. 901,
905-06, 758 N.W.2d 405, 409 (2008) (“[w]here an arrest is
pursuant to a warrant . . . the validity of the arrest turns on
whether the county court had probable cause to issue the
arrest warrant. On its face, the warrant pursuant to which
[defendant] was arrested affirmatively states facts giving rise
to probable cause based upon the issuing judge’s personal
review of the court file. This is sufficient to establish prob-
able cause”).
Because there was a valid arrest warrant for Lowery, officers
did not need a search warrant to arrest Lowery in Valles’ home,
regardless of whether Lowery enjoyed overnight guest status
which would entitle him to a reasonable expectation of privacy
in Valles’ home. We now explain.
We begin by considering the well-established law regard-
ing law enforcement’s ability to enter the home of the subject
of an arrest warrant. “[F]or Fourth Amendment purposes,
an arrest warrant founded on probable cause implicitly car-
ries with it the limited authority to enter a dwelling in which
the suspect lives when there is reason to believe the suspect
is within.” Payton v. New York, 445 U.S. 573, 603, 100 S.
Ct. 1371, 63 L. Ed. 2d 639 (1980). Although the holding in
Payton occurred in the context of a felony arrest, other courts
have extended the holding in Payton to permit entry into a
suspect’s residence to execute a valid arrest warrant, even
when the underlying offense was not a felony. See United
States v. Spencer, 684 F.2d 220 (2d Cir. 1982) (court’s deci-
sion in Payton permits entry into residence to effectuate valid
arrest warrant, regardless of precise nature of underlying war-
rant). See, also, Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.
Ct. 2091, 80 L. Ed. 2d 732 (1984) (“[w]hen the government’s
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interest is only to arrest for a minor offense . . . the govern-
ment usually should be allowed [to enter the home] to make
such arrests only with a warrant issued upon probable cause
by a neutral and detached magistrate”); U.S. v. Gooch, 506
F.3d 1156 (9th Cir. 2007) (officers were justified in entering
residence of suspect named in misdemeanor bench warrant
for failure to appear); U.S. v. Lloyd, 396 F.3d 948 (8th Cir.
2005) (deputies were entitled to enter defendant’s residence
to execute misdemeanor arrest warrant for defendant); State
v. Borst, 281 Neb. 217, 795 N.W.2d 262 (2011) (State was
required to offer misdemeanor arrest warrants and affidavits
into evidence in order for district court to determine whether
officers had valid arrest warrants and therefore had legal right
to be in defendant’s home). As will be discussed further next,
given law enforcement’s authority to enter a suspect’s own
residence to execute a valid arrest warrant, courts have gener-
ally held that a suspect should expect no greater protection in
a third party’s residence.
Nearly every court of appeals to consider the issue has
held that law enforcement officers do not need a search war-
rant in addition to an arrest warrant to enter a third party’s
residence in order to effect an arrest. See, U.S. v. Hollis, 780
F.3d 1064 (11th Cir. 2015); U.S. v. Jackson, 576 F.3d 465 (7th
Cir. 2009); U.S. v. McCarson, 527 F.3d 170 (D.C. Cir. 2008);
U.S. v. Agnew, 407 F.3d 193 (3d Cir. 2005); U.S. v. Kaylor,
877 F.2d 658 (8th Cir. 1989); United States v. Underwood,
717 F.2d 482 (9th Cir. 1983); United States v. Buckner, 717
F.2d 297 (6th Cir. 1983). But see, U.S. v. Glover, 746 F.3d
369 (8th Cir. 2014) (contradicting Kaylor, supra, which it
still cites as precedent); U.S. v. Weems, 322 F.3d 18 (1st Cir.
2003) (assuming but not deciding that suspect can challenge
search of third party’s home incident to suspect’s arrest). As
stated by the 11th Circuit in Hollis, 780 F.3d at 1068, quoting
Agnew, supra:
“A person has no greater right of privacy in another’s
home than in his own. If an arrest warrant and reason to
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believe the person named in the warrant is present are
sufficient to protect that person’s [F]ourth [A]mendment
privacy rights in his own home, they necessarily suffice to
protect his privacy rights in the home of another.”
In the instant case, there was a valid arrest warrant for Lowery,
and therefore, the officers did not need a search warrant to
arrest Lowery in Valles’ home. We want to be clear that we
are concerned only with Lowery (the subject of the arrest war-
rant) and whether his Fourth Amendment rights were violated;
we do not address whether the rights of any third party were
violated when law enforcement entered Valles’ home without a
search warrant to arrest Lowery.
Although officers do not need a search warrant to execute an
arrest warrant in a third party’s home, they do need some basis
for believing that the suspect is actually present in the home.
Jackson, supra. The Jackson court noted the split among the
circuits as to what level of suspicion officers need in order to
enter a home to execute an arrest warrant.
In Payton [v. New York, 445 U.S. 573, 100 S. Ct. 1371,
63 L. Ed. 2d 639 (1980)], the Supreme Court held that
an arrest warrant “carries with it the limited authority to
enter a dwelling when there is reason to believe the sus-
pect is within.” 445 U.S. at 602, 100 S. Ct. 1371 (empha-
sis added).
Our sister circuits disagree about what “reasonable
belief” actually entails and whether its meaning is dif-
ferent from probable cause. By our count, three cir-
cuits have explicitly concluded that reasonable belief
requires a lesser degree of knowledge than probable
cause. See United States v. Thomas, 429 F.3d 282, 286
(D.C.Cir.2005); Valdez v. McPheters, 172 F.3d 1220, 1227
n. 5 (10th Cir.1999); United States v. Lauter, 57 F.3d 212,
215 (2d Cir.1995). The courts in these cases conclude that
the Supreme Court “used a phrase other than ‘probable
cause’ because it meant something other than ‘probable
cause.’” Thomas, 429 F.3d at 286.
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Four other circuits have disagreed, holding that “rea-
sonable belief” amounts to the same thing as “probable
cause.” See United States v. Hardin, 539 F.3d 404, 416 n.
6 (6th Cir.2008); United States v. Barrera, 464 F.3d 496,
501 (5th Cir.2006); United States v. Gorman, 314 F.3d
1105, 1111 (9th Cir.2002); United States v. Magluta, 44
F.3d 1530, 1535 (11th Cir.1995). As Judge Clay explained
in a concurring opinion, the Supreme Court tends to use
phrases like “reasonable grounds for belief” as “gram-
matical analogue[s]” for probable cause. United States v.
Pruitt, 458 F.3d 477, 490 (6th Cir.2006) (Clay, J., concur-
ring) (citing cases). To wit, in Maryland v. Pringle, 540
U.S. 366, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003), the
Court appears to use “reasonable belief” to define prob-
able cause. Id. at 371, 124 S. Ct. 795 (“[T]he substance
of all the definitions of probable cause is a reasonable
ground for belief of guilt.”).
U.S. v. Jackson, 576 F.3d 465, 468-69 (7th Cir. 2009). The
Jackson court said that if it had to reach the issue, it “might be
inclined to adopt the view of the narrow majority . . . that ‘rea-
sonable belief’ is synonymous with probable cause.” 576 F.3d
at 469. However, the Jackson court stated that it did not need
to decide the issue, because in the case before it the police had
enough evidence to satisfy a probable cause standard.
Similarly, we need not decide whether reasonable belief
requires probable cause or something less, because in the
instant case, officers had probable cause to believe that Lowery
was in Valles’ home. Officer Catlin observed Lowery’s Chevy
parked on the street in front of Valles’ home. Officers informed
Valles and his wife that they were looking for Lowery and
asked if he was in the house; both Valles and his wife stated
that they did not know if Lowery was in the house, and in
fact, Valles told officers that no one was in the house except
for himself, his wife, and their child (whom his wife was
holding). While speaking with Valles and his wife, officers
behind the house radioed that they had seen someone peeking
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through the shades in the back room of the house. Given the
circumstances, the officers had probable cause to believe that
Lowery was in Valles’ home. Because officers had a valid
warrant to arrest Lowery and probable cause to believe he was
in Valles’ residence, the officers could enter Valles’ residence
to arrest Lowery. The arrest of Lowery in Valles’ residence
did not violate Lowery’s Fourth Amendment rights. Again, we
want to be clear that we are concerned only with Lowery and
whether his Fourth Amendment rights were violated; we do
not address whether the rights of any third party were violated
when law enforcement entered Valles’ home without a search
warrant to arrest Lowery.
Lowery Did Not Have Standing to Challenge
Search of Valles’ Locked Room.
Lowery also argues that because of his status as an overnight
guest, he has standing to challenge the alleged invalid search of
Valles’ residence. In its brief, the State points out that Lowery
relies in large part on his testimony at trial to argue that the
district court erred in concluding that he was not an overnight
guest and did not have standing to challenge the searches under
the Fourth Amendment. But, the State notes that Lowery’s
trial testimony was not available to the district court when it
overruled Lowery’s motion to suppress, and after Lowery’s
testimony was adduced at trial, he “did not renew his motion
to suppress, ask the court to reconsider its earlier ruling, or
otherwise alert the court that there was new evidence regarding
whether Lowery was an overnight guest.” Brief for appellee
at 13.
The State acknowledges the general rule that “‘[w]hen a
motion to suppress is denied pretrial and again during trial on
renewed objection, an appellate court considers all the evi-
dence, both from trial and from the hearings on the motion to
suppress.’” Id. Accord State v. Tyler, 291 Neb. 920, 870 N.W.2d
119 (2015). But the State then argues that “it is difficult to see
how the court could have erred based on evidence that was
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never presented to it for disposition.” Brief for appellee at 13.
The State submits that if Lowery’s testimony were excluded
from consideration, “the district court’s finding that Lowery
was not an overnight guest would not be clearly wrong, which
would mean that Lowery did not have standing to challenge
the searches and that the court properly overruled his motion to
suppress on that ground.” Brief for appellee at 14.
We need not decide whether Lowery’s trial testimony regard-
ing his overnight status should be excluded from consideration,
because the arrest of Lowery in Valles’ home did not violate
Lowery’s Fourth Amendment rights. As will become apparent
later in our analysis, even if Lowery did have overnight guest
status, he did not have standing to challenge the initial search
of Valles’ locked room. The search of the locked room led to
a search warrant for the rest of the home, at which time the
evidence used against Lowery was discovered. The fact that
the room was locked and not accessible to Lowery is key to
Lowery’s inability to challenge the search.
[4] In State v. Nelson, 282 Neb. 767, 776, 807 N.W.2d 769,
778 (2011), the Nebraska Supreme Court said:
Although the right to challenge a search on Fourth
Amendment grounds is generally referred to as “stand-
ing,” the U.S. Supreme Court has clarified that the defini-
tion of that right “is more properly placed within the pur-
view of substantive Fourth Amendment law than within
that of standing.” Rakas [v. Illinois, 439 U.S. 128, 140,
99 S. Ct. 421, 58 L. Ed. 2d 387 (1978)]. See Minnesota
v. Carter, 525 U.S. 83, 119 S. Ct. 469, 142 L. Ed. 2d
373 (1998). We have stated: “A ‘standing’ analysis in the
context of search and seizure is nothing more than an
inquiry into whether the disputed search and seizure has
infringed an interest of the defendant in violation of the
protection afforded by the Fourth Amendment.” State v.
Konfrst, 251 Neb. 214, 224, 556 N.W.2d 250, 259 (1996).
As the Court of Appeals for the Fifth Circuit has stated,
and we tend to follow: “We [nevertheless] use the term
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‘standing’ somewhat imprecisely to refer to this threshold
substantive determination.” U.S. v. Sanchez, 943 F.2d
110, 113 n.1 (1st Cir. 1991).
Like the court in Nelson, supra, we will use the term “stand-
ing” in our analysis as well.
[5] A “standing” analysis in the context of search and
seizure is nothing more than an inquiry into whether the
disputed search and seizure has infringed an interest of the
defendant in violation of the protection afforded by the Fourth
Amendment. Nelson, supra. The test used to determine if a
defendant has an interest protected by the Fourth Amendment
is whether the defendant has a legitimate or justifiable expec-
tation of privacy in the premises. See id. Ordinarily, two
inquiries are required: First, an individual must have exhibited
an actual (subjective) expectation of privacy, and second, the
expectation must be one that society is prepared to recognize
as reasonable. Id.
[6,7] In State v. Lara, 258 Neb. 996, 1001, 607 N.W.2d 487,
491 (2000), the Nebraska Supreme Court said:
The U.S. Supreme Court has held that an individual’s
status as an overnight guest is enough alone to show that
he or she has a legitimate expectation of privacy in the
premises which is protected by the Fourth Amendment.
Minnesota v. Olson, 495 U.S. 91, 110 S. Ct. 1684, 109
L. Ed. 2d 85 (1990). Likewise, this court has recognized
that an overnight guest has an expectation of privacy in
his or her host’s home, which society is willing to recog-
nize as reasonable, and, therefore, the overnight guest has
standing to assert Fourth Amendment violations. State v.
Conklin, 249 Neb. 727, 545 N.W.2d 101 (1996); State
v. Cody, 248 Neb. 683, 539 N.W.2d 18 (1995); State v.
Cortis, 237 Neb. 97, 465 N.W.2d 132 (1991); State v.
Walker, 236 Neb. 155, 459 N.W.2d 527 (1990).
Importantly, however, an overnight guest’s legitimate expecta-
tion of privacy does not extend to areas of the host’s home
which are off limits to the guest or of which the guest has
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no knowledge. U.S. v. Osorio, 949 F.2d 38 (2d Cir. 1991);
Lara, supra.
Based on these principles, even if Lowery was an over-
night guest at Valles’ home, Lowery did not have a legitimate
expectation of privacy in Valles’ locked bedroom; Valles told
the officers that it was his room, he always kept it locked, and
nobody ever went in there. Accordingly, Lowery did not have
standing to challenge the search of Valles’ locked room.
The search of Valles’ locked room revealed drug parapher-
nalia and formed the basis for the search warrant; the search
warrant was then used to search the entire home, including
the bedroom that Lowery had been in. As we will explain
below, any illegal search of Valles’ locked room did not violate
Lowery’s Fourth Amendment rights, and thus, he does not have
standing to challenge such search and the fruit of the poisonous
tree doctrine does not apply. Accordingly, evidence found in
Valles’ home, including the bedroom Lowery had been in, was
admissible against Lowery.
[8] “[A] defendant . . . can prevail on a ‘fruit of the poison-
ous tree’ claim only if he has standing regarding the violation
which constitutes the poisonous tree.” 6 Wayne R. LaFave,
Search and Seizure, A Treatise on the Fourth Amendment
§ 11.4 at 324-25 (5th ed. 2012). LaFave said:
A useful illustration is People v. Henley, [53 N.Y.2d
403, 425 N.E.2d 816, 442 N.Y.S.2d 428 (1981)], where
after his illegal arrest defendant consented to search of
an apartment he shared with his brother, resulting in
the discovery of the fruits of a burglary. The evidence
was suppressed as to the defendant because the consent,
though voluntary, was the fruit of his illegal arrest, but the
brother did not likewise prevail, as the illegal arrest was
not a violation of his constitutional rights.
6 LaFave, supra, § 11.4 at 325.
Also instructive is Alderman v. United States, 394 U.S.
165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969). In Alderman,
the question was the defendants’ (there were three separate
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defendants involved) standing to object to the government’s
use of the fruits of illegal surveillance. Each defendant asked
for a retrial if any of the evidence used to convict him
was the product of unauthorized surveillance, regardless of
whose Fourth Amendment rights the surveillance violated.
The Supreme Court rejected the defendants’ “expansive read-
ing” of the Fourth Amendment and of the exclusionary rule
stating: “The established principle is that suppression of the
product of a Fourth Amendment violation can be successfully
urged only by those whose rights were violated by the search
itself, not by those who are aggrieved solely by the introduc-
tion of damaging evidence.” Alderman, 394 U.S. at 171-72.
The Alderman Court adhered to “the general rule that Fourth
Amendment rights are personal rights which, like some other
constitutional rights, may not be vicariously asserted.” Id.,
394 U.S. at 174. The Court said that “there is a substantial
difference for constitutional purposes between preventing the
incrimination of a defendant through the very evidence ille-
gally seized from him and suppressing evidence on the motion
of a party who cannot claim this predicate for exclusion.” Id.
But see, La. Const. Ann. art. 1, § 5 (2006) (stating in relevant
part “[a]ny person adversely affected by a search or seizure
conducted in violation of this Section shall have standing to
raise its illegality in the appropriate court”).
In the instant case, the search warrant and the items found
in the subsequent search of the entire house, including the bed-
room Lowery had been in, were the fruit of the prior search of
Valles’ locked bedroom. An argument could be made that the
search of that locked room was illegal, because the officers
forced Valles to unlock the door and had no probable cause
or other reasonable belief that Lowery’s brother was in there.
In other words, the initial search of Valles’ locked room is the
“poisonous tree” in this case. Lowery did not have standing
to challenge the search of Valles’ locked room, because even
if Lowery qualified as an overnight guest in Valles’ home
entitling him to an expectation of privacy in his host’s home,
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an overnight guest’s legitimate expectation of privacy does
not extend to areas of the host’s home which are off limits
to the guest or of which the guest has no knowledge. State
v. Lara, 258 Neb. 996, 607 N.W.2d 487 (2000). Therefore,
the possible illegal search of Valles’ locked bedroom did not
violate Lowery’s constitutional rights. Though the search of
Valles’ bedroom was arguably unconstitutional as to Valles,
Lowery, as a third party, does not have standing to com-
plain about a violation of another party’s constitutional rights.
See, Alderman, supra; People v. Henley, 53 N.Y.2d 403, 425
N.E.2d 816, 442 N.Y.S.2d 428 (1981). See, also, Rakas v.
Illinois, 439 U.S. 128, 134, 99 S. Ct. 421, 58 L. Ed. 2d 387
(1978) (“since the exclusionary rule is an attempt to effectu-
ate the guarantees of the Fourth Amendment . . . it is proper
to permit only defendants whose Fourth Amendment rights
have been violated to benefit from the rule’s protections”).
Therefore, Lowery cannot prevail on his fruit of the poisonous
tree doctrine claim, because he did not have standing regard-
ing the search that constituted the poisonous tree (the initial
search of Valles’ locked room). Accordingly, evidence found in
Valles’ home, including the bedroom Lowery had been in, was
admissible against Lowery.
CONCLUSION
For the reasons stated above, the arrest of Lowery in Valles’
home did not violate Lowery’s Fourth Amendment rights, and
even if Lowery did have overnight guest status, he did not
have standing to challenge the search of Valles’ locked room.
Accordingly, we affirm the district court’s denial of Lowery’s
motion to suppress.
A ffirmed.