State v. Hidalgo , 296 Neb. 912 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/04/2017 09:08 AM CDT
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. HIDALGO
Cite as 296 Neb. 912
State of Nebraska, appellee, v.
Robert Hidalgo, appellant.
___ N.W.2d ___
Filed June 9, 2017. No. S-16-660.
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. Constitutional Law: Search and Seizure: Search Warrants. The
Fourth Amendment to the U.S. Constitution guarantees the right of the
people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures and further provides that no warrants
shall issue but upon probable cause, supported by oath or affirmation,
and particularly describing the place to be searched and the persons or
things to be seized.
3. Constitutional Law: Search Warrants: Probable Cause. The execu-
tion of a search warrant without probable cause is unreasonable and
violates constitutional guarantees.
4. Search Warrants: Affidavits: Probable Cause. A search warrant, to
be valid, must be supported by an affidavit which establishes prob-
able cause.
5. Search Warrants: Probable Cause: Words and Phrases. Probable
cause sufficient to justify issuance of a search warrant means a fair
probability that contraband or evidence of a crime will be found.
6. Search Warrants: Affidavits: Probable Cause: Appeal and Error.
In reviewing the strength of an affidavit submitted as a basis for find-
ing probable cause to issue a search warrant, an appellate court applies
a totality of the circumstances test. The question is whether, under the
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STATE v. HIDALGO
Cite as 296 Neb. 912
totality of the circumstances illustrated by the affidavit, the issuing mag-
istrate had a substantial basis for finding that the affidavit established
probable cause.
7. Search Warrants: Affidavits: Evidence: Appeal and Error. In eval­
uating the sufficiency of an affidavit used to obtain a search warrant,
an appellate court is restricted to consideration of the information and
circumstances contained within the four corners of the affidavit, and
evidence which emerges after the warrant is issued has no bearing on
whether the warrant was validly issued.
8. Search Warrants: Affidavits: Probable Cause: Appeal and Error.
When a search warrant is obtained on the strength of an informant’s
information, the affidavit in support of the issuance of the warrant must
(1) set forth facts demonstrating the basis of the informant’s knowledge
of criminal activity and (2) establish the informant’s credibility, or the
informant’s credibility must be established in the affidavit through a
police officer’s independent investigation. These two prongs are not
accorded independent status, but, rather, are better understood as rel-
evant considerations in the totality-of-the-circumstances analysis that
traditionally has guided probable-cause determinations: a deficiency
in one may be compensated for, in determining the overall reliability
of a tip, by a strong showing as to the other, or by some other indicia
of reliability.
9. Search Warrants: Affidavits. Among the ways in which the reliabil-
ity of an informant may be established are by showing in the affidavit
to obtain a search warrant that (1) the informant has given reliable
information to police officers in the past, (2) the informant is a citizen
informant, (3) the informant has made a statement that is against his or
her penal interest, and (4) a police officer’s independent investigation
establishes the informant’s reliability or the reliability of the information
the informant has given.
10. ____: ____. An affidavit in support of the issuance of a search warrant
must affirmatively set forth the circumstances from which the status of
the informant can reasonably be inferred.
11. Search Warrants: Motor Vehicles. As a general rule, vehicles located
on premises described in a warrant may be searched, even if the vehicle
is not specifically listed in the warrant.
Appeal from the District Court for Douglas County: Duane
C. Dougherty, Judge. Affirmed.
Michael J. Wilson and Glenn A. Shapiro, of Schaefer
Shapiro, L.L.P., for appellant.
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296 Nebraska R eports
STATE v. HIDALGO
Cite as 296 Neb. 912
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Heavican, C.J.
I. INTRODUCTION
Following a stipulated bench trial, Robert Hidalgo was con-
victed of one count of possession of a firearm by a prohibited
person and was sentenced to 3 to 5 years’ imprisonment. He
appeals. We affirm.
II. FACTUAL BACKGROUND
On July 10, 2015, officers with the Omaha Police Department
received a Crime Stoppers tip that a Hispanic male named
“Roberto” was a felon and was in possession of illegal fire-
arms. “Roberto” was described as an active member of the
“18th Street” gang, was between 30 and 35 years of age, and
had the nickname “Sporty.” The informant also indicated that
“Roberto” lived at a particular address in Omaha.
Officers attempted to corroborate this tip. On July 21,
2015, officers drove by of the address referenced in the Crime
Stoppers tip. Officers noted approximately six tattooed Hispanic
males between the ages of 20 and 30 sitting on the porch and
dressed in loose clothing. According to the affidavit in support
of the search warrant, the “physical description of the male
persons had characteristics similar to that of gang members,
between the clothing, how it was worn and the tattoos.” The
individuals looked alarmed at the approach of the officers’
police cruiser. As such, the officers did not stop.
Officers noted and checked the registration on a white
Nissan Sentra parked in the driveway. The vehicle was reg-
istered to Hidalgo and Jacqueline Linares. In addition, the
utilities at the address listed Linares as the account holder.
Upon learning these names, officers researched Hidalgo further
and determined that he was born in May 1987, was a known
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STATE v. HIDALGO
Cite as 296 Neb. 912
member of the “18th Street” gang, and went by the nick-
name “Shorty.”
A “trash pull” at the address was completed that night. Two
relevant items were found in the trash: a piece of mail directed
to the address referenced in the tip and marijuana stems, seeds,
and leaves.
Based upon this information, officers obtained a search war-
rant for
the premises [referenced in the tip and verified by offi-
cers in] Omaha, Douglas County, Nebraska, which is
further described as a white in color one and one half
story residence with green trim. The unit has a white
front door which includes a green storm door in front of
it. The [house] numbers . . . are located at the exterior
of [the] house on the trim of the covered patio. [The
house] is located on the west side of [a nearby] intersec-
tion . . . .
The affidavit in support of the warrant sought marijuana and
“all monies, records, weapons and ammunition used to con-
duct an illegal narcotics operation.”
The search warrant was executed on July 26, 2015, granting
officers the authority to “search the afore described location
and/or person(s).” During the search, officers found a firearm
and marijuana in the residence, as well as another firearm in a
neighboring yard, which law enforcement believe was placed
there by one of Hidalgo’s associates just prior to the execution
of the search warrant. In addition, the Nissan Sentra in the
driveway of the house was searched and a third firearm was
recovered from it. Hidalgo later admitted that the firearm in
the vehicle belonged to him; two associates admitted to own-
ing the other firearms.
Hidalgo had been previously convicted of being an acces-
sory to a felony, a Class IIIA felony. As such, the posses-
sion of a firearm by him was unlawful and he was charged
accordingly. Following a stipulated bench trial, Hidalgo was
convicted of possession of a firearm by a prohibited person, a
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STATE v. HIDALGO
Cite as 296 Neb. 912
Class ID felony, and was sentenced to 3 to 5 years’ imprison-
ment. He appeals.
III. ASSIGNMENTS OF ERROR
Hidalgo assigns that (1) his Fourth Amendment rights were
violated when his house and vehicle were searched, because
the application and warrant did not establish probable cause,
and (2) officers exceeded the scope of the search warrant when
they searched a vehicle parked outside the house described by
the search warrant.
IV. 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.
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error. But whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination.1
V. ANALYSIS
1. Probable Cause
Hidalgo first argues that the evidence against him should be
suppressed, because there was no probable cause to support
the issuance of the search warrant. In arguing this, Hidalgo
asserts that the affidavit did not sufficiently establish the reli-
ability of the anonymous tip; the corroboration of information
contained in the tip did not establish reliability, because the
information confirmed was “innocent details”; an unspecified
amount of marijuana leaves, seeds, and stems found during a
trash pull does not establish probable cause; and the good faith
exception does not apply here.2
1
State v. Hill, 288 Neb. 767, 851 N.W.2d 670 (2014).
2
Brief for appellant at 10.
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STATE v. HIDALGO
Cite as 296 Neb. 912
[2] The Fourth Amendment to the U.S. Constitution guar-
antees “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures . . .” and further provides that “no Warrants shall
issue, but upon probable cause, supported by Oath or affirma-
tion, and particularly describing the place to be searched, and
the persons or things to be seized.” The Nebraska Constitution
provides similar protection.3
[3-7] The execution of a search warrant without probable
cause is unreasonable and violates these constitutional guar-
antees.4 Accordingly, a search warrant, to be valid, must be
supported by an affidavit which establishes probable cause.5
Probable cause sufficient to justify issuance of a search war-
rant means a fair probability that contraband or evidence
of a crime will be found.6 In reviewing the strength of an
affidavit submitted as a basis for finding probable cause to
issue a search warrant, an appellate court applies a “totality
of the circumstances” test. The question is whether, under the
totality of the circumstances illustrated by the affidavit, the
issuing magistrate had a substantial basis for finding that the
affidavit established probable cause.7 In evaluating the suf-
ficiency of an affidavit used to obtain a search warrant, an
appellate court is restricted to consideration of the informa-
tion and circumstances contained within the four corners of
the affidavit, and evidence which emerges after the warrant
is issued has no bearing on whether the warrant was val-
idly issued.8
3
Neb. Const. art. I, § 7.
4
State v. Hill, supra note 1.
5
Id.
6
Id.
7
Id.
8
Id.
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STATE v. HIDALGO
Cite as 296 Neb. 912
(a) Anonymous Tip
[8] When a search warrant is obtained on the strength of an
informant’s information, the affidavit in support of the issu-
ance of the warrant must (1) set forth facts demonstrating the
basis of the informant’s knowledge of criminal activity and (2)
establish the informant’s credibility, or the informant’s cred-
ibility must be established in the affidavit through a police
officer’s independent investigation.9 These two prongs are not
accorded “independent status,” but, rather, are
better understood as relevant considerations in the
totality-of-the-circumstances analysis that traditionally
­
has guided probable-cause determinations: a deficiency in
one may be compensated for, in determining the overall
reliability of a tip, by a strong showing as to the other, or
by some other indicia of reliability.10
[9,10] Among the ways in which the reliability of an
informant may be established are by showing in the affidavit
to obtain a search warrant that (1) the informant has given
reliable information to police officers in the past, (2) the
informant is a citizen informant, (3) the informant has made
a statement that is against his or her penal interest, and (4)
a police officer’s independent investigation establishes the
informant’s reliability or the reliability of the information the
informant has given.11 An affidavit in support of the issuance
of a search warrant must affirmatively set forth the circum-
stances from which the status of the informant can reasonably
be inferred.12
Hidalgo and the State agree that this falls under the fourth
scenario—that a police officer’s independent investigation
9
State v. Lytle, 255 Neb. 738, 587 N.W.2d 665 (1998), overruled on other
grounds, State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999).
10
Illinois v. Gates, 462 U.S. 213, 233, 103 S. Ct. 2317, 76 L. Ed. 2d 527
(1983).
11
Id.
12
Id.
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STATE v. HIDALGO
Cite as 296 Neb. 912
establishes the informant’s reliability or the reliability of the
information the informant has given. Hidalgo argues that the
officers were not able to corroborate all parts of the tip—in
particular, the portion suggesting that he was a felon in pos-
session of illegal firearms—and this was sufficient to render
the entire tip unreliable.
We turn first to Hidalgo’s claim that the entire tip must be
corroborated. Hidalgo offers no case law to support this asser-
tion. Nebraska case law suggests differently. We held in State
v. Vermuele13 that “[t]here is no requirement that the ‘crime’
itself be corroborated or verified in order to justify probable
cause for a warrantless search . . . .”
We also disagree with Hidalgo’s contention that all law
enforcement did was confirm innocent details. The record
shows that law enforcement conducted an investigation in
order to identify “Roberto.” Officers were able to establish that
the utilities at the address noted by the informant listed Linares
as the account holder and that Linares, along with Hidalgo,
owned the white Nissan Sentra in the driveway of the house.
The vehicle registration indicated that Hidalgo’s first name was
Robert; the informant provided the name “Roberto” in the tip.
Robert and Roberto are similar, which supports the reliability
of the tip.
Once learning the name “Hidalgo,” the officers, through
their work in the gang suppression unit, identified Hidalgo as a
known member of the “18th Street” gang, as the informant had
indicated, and had the nickname “Shorty.” “Shorty” is similar
to “Sporty,” the nickname provided by the tipster.
In addition, when officers drove by the property, they noted
a group of Hispanic men between the ages of 20 and 30 on the
porch. The tipster indicated that “Roberto” was Hispanic and
was between the age of 30 and 35. This information, along
13
State v. Vermuele, 234 Neb. 973, 982, 453 N.W.2d 441, 447 (1990). See,
also, State v. Dussault, 193 Neb. 122, 225 N.W.2d 558 (1975).
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STATE v. HIDALGO
Cite as 296 Neb. 912
with the fact that Hidalgo could be considered a Hispanic
name, further supports the reliability of the tip.
(b) Marijuana
Hidalgo argues that the marijuana leaves, stems, and seeds
alone were insufficient to support the issuance of the search
warrant in this case.
Hidalgo cites United States v. Elliott14 to support his conten-
tion that the marijuana evidence was insufficient. In Elliott,
the federal district court held that a small amount of discarded
marijuana cigarettes and stems was evidence of past use and
insufficient to “render[] the continued presence of contraband
reasonably probable.”15
Hidalgo also directs us to State v. McKnight,16 a recent
unpublished opinion of a single-judge panel of the Nebraska
Court of Appeals. That opinion concluded that a 0.1-gram
marijuana roach was insufficient to support a search warrant
seeking evidence of a larger narcotics operation. In reaching
that conclusion, the court noted that the affidavit in support
of the warrant did not sufficiently establish the reliability of
an anonymous tip in that case. The court also noted that the
defendant’s prior gun charges were not something the court
could consider because they were only charges and not con-
victions and the timeframe of those charges was not stated in
the affidavit.
While these cases might suggest that marijuana alone is
insufficient to establish probable cause, other cases find to the
contrary, noting that the possession of marijuana was illegal
under state and federal law.17
14
United States v. Elliott, 576 F. Supp. 1579 (S.D. Ohio 1984).
15
Id. at 1582.
16
State v. McKnight, No. A-15-301, 2015 WL 5025473 (Neb. App. Aug. 25,
2015) (selected for posting to court website).
17
See U.S. v. Briscoe, 317 F.3d 906 (8th Cir. 2003). See, also, U.S. v.
Allebach, 526 F.3d 385 (8th Cir. 2008).
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296 Nebraska R eports
STATE v. HIDALGO
Cite as 296 Neb. 912
In any case, the marijuana evidence found in the trash was
not the only evidence supporting probable cause. Rather, the
issuing court was also entitled to consider the Crime Stoppers
tip, which detailed Hidalgo’s alleged possession of weapons.
There was sufficient probable cause to support the issuance
of the warrant, and as such, there is no merit to Hidalgo’s
first assignment of error. Because we find there was probable
cause to support the warrant, we need not reach Hidalgo’s
arguments regarding the good faith exception to the war-
rant requirement.
2. Vehicle Search
Hidalgo also argues that the warrant issued in this case
was specific as to describing his house, but did not include
his vehicle, and that as such, officers violated his Fourth
Amendment rights when his white Nissan Sentra was searched.
During police questioning, Hidalgo admitted that the firearm
found in the vehicle belonged to him.
[11] As a general rule, vehicles located on premises described
in a warrant may be searched, even if the vehicle is not specifi-
cally listed in the warrant.18 This includes vehicles parked in a
driveway (as this one was) or in a garage.19 One court reasoned
in part:
[A] car parked in a garage is just another interior con-
tainer, like a closet or a desk. If, as in this case, the trunk
or glove compartment is not too small to hold what the
search warrant authorizes the police to look for, they can
search the trunk and the glove compartment.20
The warrant would not, however, cover a vehicle parked on a
nearby street, even if police knew that the vehicle belonged to
the occupant of the described premises.21
18
2 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth
Amendment § 4.10(c) (5th ed. 2012) (citing cases).
19
Id.
20
U.S. v. Evans, 92 F.3d 540, 543 (7th Cir. 1996).
21
2 LaFave, supra note 18.
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STATE v. HIDALGO
Cite as 296 Neb. 912
We agree with Hidalgo that the warrant did not explicitly
provide that vehicles found on the property could be searched.
But we do not find that such failure requires suppression of
the search of Hidalgo’s vehicle. The vehicle was parked in the
driveway of the house described in the warrant. During the
hearing on the motion to suppress, one officer testified that
the vehicle was located about 10 feet from the front steps of
the house and was not separated from the house by a fence or
other obstruction.
Moreover, in the portion of the warrant authorizing a
no-knock warrant, the issuing court specifically noted that
“individuals involved in gang activity often will possess,
maintain or store weapons and ammunition in the residence,
building or vehicle used during the facilitation of illegal
narcotics operations.” Thus, the officers and issuing judge
envisioned that weapons could be concealed in vehicles on
the property. The Eighth Circuit has held that the search of a
vehicle not explicitly listed in a warrant was covered under the
scope of the warrant where facts in the affidavit indicated the
defend­ant’s connection to the vehicle in question.22
We conclude that the vehicle search was valid under the
warrant and that there is no merit to Hidalgo’s second assign-
ment of error.
VI. CONCLUSION
The district court did not err in denying the motion to
suppress. As such, there was sufficient evidence to support
Hidalgo’s conviction. Accordingly, we affirm.
A ffirmed.
22
See U.S. v. Pennington, 287 F.3d 739 (8th Cir. 2002).