State v. Salvador Rodriguez

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/14/2017 01:09 AM CDT
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. SALVADOR RODRIGUEZ
Cite as 296 Neb. 950
State of Nebraska, appellee, v. Henry O.
Salvador Rodriguez, appellant.
___ N.W.2d ___
Filed June 16, 2017. No. S-16-563.
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. Motions to Suppress: Warrantless Searches: Appeal and Error.
In reviewing a trial court’s denial of a motion to suppress evidence
obtained by a warrantless search under the emergency doctrine, an
appellate court employs a two-part standard in which the first part of
the analysis involves a review of the historical facts for clear error and
a review de novo of the trial court’s ultimate conclusion that exigent
circumstances were present. Where the facts are largely undisputed, the
ultimate question is an issue of law.
3. Rules of Evidence: Other Acts: Appeal and Error. It is within the
discretion of the trial court to determine relevancy and admissibility of
evidence of other wrongs or acts under Neb. Evid. R. 404(2), Neb. Rev.
Stat. § 27-404(2) (Reissue 2016), and the trial court’s decision will not
be reversed absent an abuse of discretion.
4. Search and Seizure: Warrantless Searches: Proof. Searches without a
valid warrant are per se unreasonable, subject only to a few specifically
established and well-delineated exceptions that must be strictly confined
by their justifications. The State has the burden of showing the applica-
bility of one or more of the exceptions to the warrant requirement.
5. Search and Seizure: Warrants: Police Officers and Sheriffs. In the
case of entry into a home, a police officer who has obtained neither an
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STATE v. SALVADOR RODRIGUEZ
Cite as 296 Neb. 950
arrest warrant nor a search warrant cannot make a nonconsensual and
warrantless entry in the absence of exigent circumstances.
6. Search and Seizure: Words and Phrases. The “emergency doctrine”
is a category of exigent circumstances. The elements of the emergency
doctrine are that (1) the police must have reasonable grounds to believe
there is an immediate need for their assistance for the protection of life
or property and (2) there must be some reasonable basis to associate the
emergency with the area or place to be searched.
7. Constitutional Law: Police Officers and Sheriffs. An action is reason-
able under the Fourth Amendment, regardless of the individual officer’s
state of mind, as long as the circumstances viewed, objectively, justify
the action.
8. Police Officers and Sheriffs: Probable Cause. The presence of an
emergency, like probable cause, hinges on the reasonable belief of the
officers in light of specific facts and the inferences derived therefrom,
not whether, in hindsight, one actually existed.
9. Search and Seizure: Police Officers and Sheriffs: Probable Cause.
The first element of the emergency doctrine is similar to probable cause
and asks whether the facts available to the officer at the moment of
entry warranted a person of reasonable caution to believe that entry
was appropriate.
10. Search and Seizure: Police Officers and Sheriffs: Burglary. Courts
generally find sufficient exigent circumstances to justify the warrantless
entry into a home when a police officer reasonably believes that a bur-
glary is in progress or was recently committed therein.
11. Burglary. A burglary indicates an immediate need to secure the prem-
ises because it raises the possibility of danger to an occupant and the
continued presence of an intruder.
12. Other Acts: Words and Phrases. Neb. Evid. R. 404(2), Neb. Rev. Stat.
§ 27-404(2) (Reissue 2016), concerns evidence of other crimes, wrongs,
or acts. Other acts under rule 404(2) are acts that are not part of the
events giving rise to the present charges.
13. Indictments and Informations: Words and Phrases. The phrase “on or
about” in an information indicates the date with approximate certainty.
14. Criminal Law: Time: Words and Phrases. The crime of “possession”
may extend over a period of time if uninterrupted.
15. Criminal Law: Statutes: Words and Phrases. Absent language indi-
cating differently, “possession” within a criminal statute contemplates a
continuing offense as opposed to a single incident.
16. Criminal Law: Time: Words and Phrases. An offense is continuing if
set on foot by a single impulse and operated by an unintermittent force,
however long a time it may occupy; an offense which continues day by
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STATE v. SALVADOR RODRIGUEZ
Cite as 296 Neb. 950
day; a breach of the criminal law, not terminated by a single act or fact,
but subsisting for a definite period and intended to cover or apply to
successive similar obligations or occurrences.
17. Evidence: Other Acts: Words and Phrases. Evidence of uncharged
criminal activity is not considered “other crimes” evidence under Neb.
Evid. R. 404(1)(b), Neb. Rev. Stat. § 27-404(1)(b) (Reissue 2016), if it
arose out of the same transaction or series of transactions.
18. Records: Appeal and Error. Where allegedly prejudicial remarks of
counsel do not appear in the bill of exceptions, an appellate court is
precluded from considering an assigned error concerning such remarks.
19. Motions for New Trial: Affidavits: Evidence: Records: Appeal and
Error. Affidavits in support of a motion for new trial must be offered in
evidence and preserved in and made a part of a bill of exceptions to be
considered by an appellate court.
20. Motions for New Trial: Testimony: Affidavits: Records: Appeal
and Error. An appellate court will not review testimony in the form
of affidavits used in the trial court on the hearing of a motion for new
trial, unless such affidavits have been included in and presented by a bill
of exceptions.
Appeal from the District Court for Sheridan County: Travis
P. O’Gorman, Judge. Affirmed.
Travis Penn, of Penn Law Firm, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Wright, J.
I. NATURE OF CASE
The defendant appeals from his conviction of possession of
methamphetamine with intent to deliver. At issue is whether
the trial court should have suppressed evidence found during a
search with a warrant that was obtained as a result of observ-
ing defaced firearms during a prior warrantless search for a
possible burglar at the request of a houseguest. Also at issue
is whether the defendant was prejudiced by the admission,
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STATE v. SALVADOR RODRIGUEZ
Cite as 296 Neb. 950
without a limiting instruction, of evidence of his drug use
around the time specified in the information. The defendant
argued the drug use was evidence of prior bad acts subject to
Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue 2016).
The court concluded the drug use was intrinsic to the crime
charged. Finally, the defendant argues he was prejudiced by
comments purportedly made by the prosecutor during closing
arguments erroneously stating that the defendant owned the
home he lived in.
II. BACKGROUND
Henry O. Salvador Rodriguez was charged with one count of
possession of methamphetamine with intent to deliver and one
count of possession of a defaced firearm, both on or about July
30, 2014. A jury found Salvador Rodriguez guilty of possess-
ing methamphetamine, in an amount of over 10 grams, with
intent to deliver. The jury found Salvador Rodriguez not guilty
of possession of a defaced firearm.
1. Warrantless Search
Salvador Rodriguez sought suppression of all evidence
obtained during searches of his place of residence conducted
pursuant to warrants that were issued based on observations
during an initial warrantless search. The State asserted that
the warrantless search was reasonable because of the exigent
circumstance of a possible intruder in the house. Alternatively,
the State argued the search was authorized by Lori Ezell, who
had common authority over the house.
(a) Officer Testimony
Officer Adam Wackler testified that on July 23, 2014, he
responded to a report of a domestic disturbance between Ezell
and Gilbert Chavez at the apartment where Chavez lived.
Wackler had responded previously to similar disturbances at
that apartment. Wackler suggested that Ezell and Chavez spend
the night apart, and they agreed.
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STATE v. SALVADOR RODRIGUEZ
Cite as 296 Neb. 950
Ezell told Wackler that she had the key to a friend’s house
because she was taking care of the friend’s dog and that she
stayed there when she was not getting along with Chavez.
Ezell told Wackler that she had a bedroom at that house and
that she kept some of her and her children’s things there. Ezell
said she stayed at the house sometimes for just a day, other
times for 2 weeks; it depended on the situation.
Ezell explained to Wackler that her friends, whom she iden-
tified as Salvador Rodriguez and Rosa Anguiano, were out of
town. She explained that Salvador Rodriguez and Anguiano
rented the house, hereinafter referred to as the “Salvador
Rodriguez house.”
Wackler testified that after making a telephone call, Ezell
reported to him that Salvador Rodriguez and Anguiano had
given Ezell permission to stay at their house that night.
Wackler drove Ezell and one of her children to the Salvador
Rodriguez house.
A couple of hours later, Wackler received another call from
Ezell. Wackler had given Ezell his work cell phone number
to use in case things escalated further between Ezell and
Chavez that night. Ezell seemed upset. She told Wackler that
she was afraid an intruder was in the Salvador Rodriguez
house. Wackler met Ezell and her child on a street corner near
the house.
Ezell told Wackler that she had gone for a walk with her
child. When she returned to the Salvador Rodriguez house,
all the lights were on and she thought she saw somebody in
the garage looking at her. Ezell reported that she had shut and
locked the door and had turned off all the lights in the house
before leaving for their walk.
Ezell told Wackler that she was afraid to go back into the
house, because she knew Salvador Rodriguez and Anguiano
were not there. She asked Wackler to come and make sure that
nobody was inside.
When Officer Clay Heath arrived as backup, Wackler and
Heath approached the Salvador Rodriguez house and observed
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STATE v. SALVADOR RODRIGUEZ
Cite as 296 Neb. 950
that the front door was unlocked and open a crack—though in
later testimony Wackler described that it was closed but was
not latched closed.
Wackler and Heath entered and proceeded to clear the house
by looking “anywhere that a person could fit.” They did not
find anyone in the house. When looking in closets, however,
Wackler and Heath observed two firearms in plain view. In the
closet of the kitchen, they observed a shotgun that appeared to
have the barrel cut off. In the closet of the master bedroom,
they saw a pistol.
Concerned that someone might be hiding in the house who
would have access to the weapons, Wackler and Heath made
sure that the pistol did not have ammunition. They picked it
up to clear the chamber. In doing so, they found that the pis-
tol’s serial number appeared to have been partially scratched
off. They returned the pistol and continued their search. It was
unclear whether Wackler and Heath picked up the shotgun in
the kitchen.
After ensuring that no one was in the Salvador Rodriguez
house, Wackler and Heath returned the keys to Ezell. Anguiano
called Wackler later that night to ask if the house had been
broken into. Wackler reported that because Ezell did not see
anything out of place, he did not think so. Wackler confirmed
with Anguiano that Ezell had permission to stay in the house.
(b) Ezell’s Testimony
Ezell testified that she stayed at the Salvador Rodriguez
house at least once a week, when she and Chavez would “get
into it.” She had a bedroom there where she and her children
slept when they stayed the night. She kept some of her and
her children’s possessions in that bedroom and had a key to
the house.
Ezell repeatedly testified that she moved into the Salvador
Rodriguez house approximately 1 week prior to July 23, 2014.
But in other testimony, she seemed to indicate that she moved
into the Salvador Rodriguez house on July 23.
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STATE v. SALVADOR RODRIGUEZ
Cite as 296 Neb. 950
After moving in, Ezell considered herself a “permanent resi-
dent” insofar as she was living there and had all of her and her
children’s belongings there. She described those belongings as
clothing, toiletries, medicines, and a crib. Salvador Rodriguez
and Anguiano told her to “make it like it was [her] own home.”
She further affirmed that she had “free rein over the entire
house.” Ezell said she was a “guest” inasmuch as she did not
pay any bills or rent.
Ezell testified that a couple of hours after Wackler responded
to the domestic disturbance report, she called Wackler because
she thought an intruder was inside the Salvador Rodriguez
house. Salvador Rodriguez and Anguiano were out of town all
that week. Ezell and her children had gone to get ice cream.
When they returned, she noticed that a light was on and the
garage door was open, but she did not think anything of it right
away. One of her children wanted to go back to get more ice
cream, and when they exited the house, they saw Ezell’s van
with all the doors open, including the back hatch. She had left
all the van doors closed. One of her children screamed that
someone was in the garage. Ezell testified that she also saw
someone in the garage.
Sometime after Wackler and Heath searched the house
and found no intruders, Ezell called Salvador Rodriguez and
Anguiano. Ezell testified that neither gave her any indica-
tion that she did not have authority to ask the police to check
if there was an intruder in the house. Salvador Rodriguez
reportedly told her, “‘It’s okay. I had someone go check on
the house.’”
(c) Subsequent Searches
On July 30, 2014, Wackler and Heath obtained a warrant to
search the Salvador Rodriguez house, based on their observa-
tions of the defaced firearms. A water bill confirmed Salvador
Rodriguez and Anguiano as the residents, either the owners or
the renters, of the house. At trial, Wackler testified that photo-
graphs inside the home, as well as other documents, such as
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STATE v. SALVADOR RODRIGUEZ
Cite as 296 Neb. 950
checkbooks and tax documents, identified Salvador Rodriguez
and Anguiano as the residents of the house.
When conducting the search pursuant to the warrant,
Wackler and Heath found what appeared to be methamphet-
amine under a couch in the basement. On August 2, 2014,
Wackler and Heath obtained another warrant, to search for
drugs and drug paraphernalia. In the search conducted pursu-
ant to this second warrant, they found more methamphetamine
under the couch in the basement, as well as underneath a base-
ment sink.
(d) Trial Court’s Order
The court overruled the motion to suppress. The court
found that Wackler was called to a domestic dispute between
Ezell and Chavez and that Ezell had Wackler take her to the
Salvador Rodriguez house. The court found that Ezell advised
Wackler that she was housesitting for Salvador Rodriguez and
Anguiano, had a key to the premises, stayed there off and
on when she and Chavez were fighting, and had a room at
the house.
The court found that after a couple of hours, Ezell called
Wackler and reported that upon her return from a walk, the
lights of the residence were on and she thought she saw some-
one in the garage. Ezell told Wackler that she had shut off
all the lights and locked the door before going for her walk.
Ezell was frantic, very upset, and scared. She asked Wackler to
check the house to make sure no one was inside.
The court found that once Heath arrived as backup, the offi-
cers approached the house and noticed the lights were on and
that the door was unlocked and not entirely shut. They entered
the house and searched the house only in locations where it
was reasonable that a person could hide.
In the closet of the master bedroom, the officers saw a
revolver. The court found that for their safety, Wackler and
Heath decided to clear the handgun of any ammunition. In
doing so, they noticed that the serial number had been altered
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STATE v. SALVADOR RODRIGUEZ
Cite as 296 Neb. 950
or filed and that it was defaced. After clearing the bedroom,
the officers searched a closet in the kitchen that was large
enough for a person to hide in. Inside, they found a shotgun
that appeared to have been altered.
The trial court concluded that the warrantless search at
issue was reasonable under the Fourth Amendment either as a
search undertaken with consent or as a search conducted under
exigent circumstances. With regard to its conclusion that the
search was undertaken with consent, the court reasoned that
Wackler had a reasonable basis to conclude that Ezell had
common authority over the house at that time. With regard to
the exigent circumstances, the court reasoned that Wackler had
reasonable grounds to believe that there was an emergency and
that the clearing of the guns found during the search did not
exceed the scope of the exigency.
(e) Evidence Seized During Searches
The motion to suppress was overruled. The evidence adduced
at trial showed that a total of approximately 340 grams of
methamphetamine was seized during a search of the Salvador
Rodriguez house. From the master bedroom, the officers also
seized the pistol and drug paraphernalia; they did not find the
sawed-off shotgun.
2. Prior Drug Use
The prosecution offered testimony by Ezell describing
Salvador Rodriguez’ drug usage and how he kept metham-
phetamine under the basement couch and provided the drug
to her and other guests. No notice was filed by the State prior
to trial advising Salvador Rodriguez that it intended to adduce
any evidence of prior bad acts under rule 404(2), and Salvador
Rodriguez did not file any pretrial motions concerning the
possible admission of prior bad acts. No hearing pursuant to
rule 404(3) was conducted outside the presence of the jury to
determine whether the State proved by clear and convincing
evidence that a prior crime, wrong, or act occurred.
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STATE v. SALVADOR RODRIGUEZ
Cite as 296 Neb. 950
Ezell testified, without objection, that she and Salvador
Rodriguez used methamphetamine together in the basement of
the Salvador Rodriguez house as follows:
Q[.] Once you became friends with [Anguiano]
did you also get to know [Salvador Rodriguez] better
as well?
A[.] Yes.
Q[.] In what way?
A[.] We both shared a habit that we used together.
Q[.] Well, let’s talk about that. You said you shared a
habit that you used together. What do you mean by that?
A[.] We both used meth.
....
Q[.] And when you began using methamphetamine,
how did it happen that you started using it?
A[.] The owners of the plant first offered it to me at a
party. And that’s when I very first started using it.
Q[.] And you said that you and [Salvador Rodriguez]
shared in that habit. What did you mean by that?
A[.] After I got to know him a little better, I found out
that he also smoked meth and so we would smoke meth
together.
Q[.] And where would you typically do that?
A[.] At his house.
Q[.] Where at in the house?
A[.] In the basement.
When the prosecutor proceeded after this questioning to
ask if other people smoked methamphetamine with Ezell and
Salvador Rodriguez, defense counsel objected for the first
time. Defense counsel objected on the ground that the line of
questioning violated rule 404. The court sustained the objec-
tion, but denied defense counsel’s motion to strike Ezell’s
testimony that she and Salvador Rodriguez smoked metham-
phetamine together.
When the prosecutor pursued further questioning about
Ezell’s and Salvador Rodriguez’ drug usage, the attorneys
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STATE v. SALVADOR RODRIGUEZ
Cite as 296 Neb. 950
approached the bench for an off-the-record discussion.
Questioning about drug usage after that was focused on the
summer of 2014. Defense counsel made a continuing objec-
tion to “any evidence regarding past use of drugs” as being in
violation of [rule 404]. The court overruled the objection.
Ezell then testified that two or three times a week she
smoked methamphetamine with Salvador Rodriguez in his
basement. Other people were sometimes present. The metham-
phetamine that anyone used in the basement always came from
underneath the basement couch.
Ezell also testified that she once saw Anguiano with a large
amount of cash. Ezell testified that on the day of the “raid”
on the house, Salvador Rodriguez admitted to her that law
enforcement would find large quantities of methamphetamine
there, because he was a dealer.
After the State’s case in chief, defense counsel called sev-
eral character witnesses who testified generally as to Salvador
Rodriguez’ good character and testified that Salvador Rodriguez
was not a drug user or abuser.
At the jury instruction conference, defense counsel con-
ceded that he was not arguing that the evidence of Salvador
Rodriguez’ drug usage with Ezell was inadmissible. Defense
counsel asked for a jury instruction that would ensure the jury
would use the evidence for its independent relevance and not
for propensity reasoning. The trial court denied the request and
did not instruct the jury on the proper purpose for which it
could consider the evidence of Salvador Rodriguez’ drug use.
The court reasoned that the drug use was not prior bad acts, but
instead was an integral part of and contributed to the factual
setting of the crime charged.
3. Closing A rguments
No record was made of closing arguments. Neither did
Salvador Rodriguez make an offer of proof concerning any
statements allegedly made during closing arguments. In a
motion for new trial, defense counsel alleged that the prosecutor
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STATE v. SALVADOR RODRIGUEZ
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stated in closing arguments that Salvador Rodriguez “‘owned’”
the house where the methamphetamine was found. The motion
further alleged that defense counsel’s objections to such testi-
mony were overruled. Defense counsel attached to the motion
an affidavit averring that the factual allegations in the motion
for new trial were true.
The jury was instructed that “possession” of a thing means
either knowingly having it on one’s person or knowing of its
presence and having the right to exercise dominion and control
over it. During deliberations, the jury asked, “Is there any other
evidence that [Salvador Rodriguez] had leased or rented the
house?” and “Does ownership/lease equate to liability?” The
court answered that the jury had received all the evidence and
must refer to the jury instructions.
III. ASSIGNMENTS OF ERROR
Salvador Rodriguez assigns that the trial court erred when
it (1) overruled his motion to suppress evidence gained as a
result of the warrantless search of his residence, (2) allowed
evidence of past methamphetamine use, (3) gave no limiting
instruction concerning for what limited purpose the evidence
of past methamphetamine use was allowed, and (4) overruled
his objection during closing arguments to the State’s comments
that he owned the house where he lived.
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
1
State v. McCumber, 295 Neb. 941, 893 N.W.2d 411 (2017).
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STATE v. SALVADOR RODRIGUEZ
Cite as 296 Neb. 950
[2] In reviewing a trial court’s denial of a motion to suppress
evidence obtained by a warrantless search under the emergency
doctrine, an appellate court employs a two-part standard in
which the first part of the analysis involves a review of the
historical facts for clear error and a review de novo of the trial
court’s ultimate conclusion that exigent circumstances were
present.2 Where the facts are largely undisputed, the ultimate
question is an issue of law.3
[3] It is within the discretion of the trial court to determine
relevancy and admissibility of evidence of other wrongs or
acts under rule 404(2), and the trial court’s decision will not be
reversed absent an abuse of discretion.4
V. ANALYSIS
Three basic issues are raised in this appeal. First, Salvador
Rodriguez asserts that the court should have suppressed the
physical evidence found in his home, because it was the fruit
of a warrantless search. Second, Salvador Rodriguez argues he
was prejudiced by the lack of a limiting instruction concerning
what he contends was evidence of prior bad acts within the
purview of rule 404. Lastly, Salvador Rodriguez argues there
was prosecutorial misconduct during closing arguments when
the prosecutor falsely stated Salvador Rodriguez owned the
home where he resided.
1. Motion Suppress Evidence Obtained
to
Warrantless Search
in
[4] Searches without a valid warrant are per se unrea-
sonable, subject only to a few specifically established and
well-delineated exceptions that must be strictly confined by
their justifications.5 The State has the burden of showing the
2
See State v. Eberly, 271 Neb. 893, 716 N.W.2d 671 (2006).
3
State v. Modlin, 291 Neb. 660, 867 N.W.2d 609 (2015).
4
State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).
5
See, State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017); State v. Perry,
292 Neb. 708, 874 N.W.2d 36 (2016).
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applicability of one or more of the exceptions to the war-
rant requirement.6
[5] In the case of entry into a home, a police officer who has
obtained neither an arrest warrant nor a search warrant cannot
make a nonconsensual and warrantless entry in the absence of
exigent circumstances.7 The trial court found that the search
of the Salvador Rodriguez house was justified by the exigent
circumstance of a possible burglary in progress and by being,
regardless, consensual.
The question presented on appeal is whether the trial court
was correct in determining that the warrantless search was con-
stitutional because a reasonable officer would have believed
either that (1) a burglary was in progress or (2) Ezell had
authority to consent to the search. The parties do not dispute
that if the warrantless search was unreasonable, the court
should have suppressed evidence of the items seized during
subsequent searches pursuant to warrants based on the items
observed during the warrantless search. The parties do not
dispute that if the warrantless search was reasonable, any han-
dling of the weapons in plain view in order to ensure officer
safety was within the proper scope of the search.
We conclude that the exigent circumstance of a possible
burglary in progress justified the warrantless search, and we
need not address the alternative basis from the trial court’s
order that Ezell had authority to consent to the search.
[6] The “‘emergency doctrine’” is a category of exigent cir-
cumstances.8 The elements of the emergency doctrine are that
(1) the police must have reasonable grounds to believe there
is an immediate need for their assistance for the protection of
life or property and (2) there must be some reasonable basis to
associate the emergency with the area or place to be searched.9
6
State v. Perry, supra note 5.
7
See State v. Eberly, supra note 2.
8
See id. at 900, 716 N.W.2d at 677.
9
See id.
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STATE v. SALVADOR RODRIGUEZ
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The first element considers whether there were reasonable
grounds to find an emergency, and the second element consid-
ers the reasonableness of the scope of the search.10 Salvador
Rodriguez focuses only on the first element and argues that
reasonable police officers would not have had grounds under
these facts to believe there was an immediate need for their
assistance for the protection of life or property.
[7-9] An action is reasonable under the Fourth Amendment,
regardless of the individual officer’s state of mind, as long as
the circumstances viewed, objectively, justify the action.11 The
presence of an emergency, like probable cause, hinges on the
reasonable belief of the officers in light of specific facts and
the inferences derived therefrom, not whether, in hindsight, one
actually existed.12 The first element of the emergency doctrine
is similar to probable cause and asks whether the facts avail-
able to the officer at the moment of entry warranted a person
of reasonable caution to believe that entry was appropriate.13
[10,11] Courts generally find sufficient exigent circum-
stances to justify the warrantless entry into a home when a
police officer reasonably believes that a burglary is in progress
or was recently committed therein.14 A burglary indicates an
immediate need to secure the premises, because it raises the
possibility of danger to an occupant and the continued presence
of an intruder.15
In State ex rel. Zander v. District Court,16 the court found
that an officer reasonably believed a burglary might be in
progress in a house after a neighbor reported that he knew
10
See id.
11
See id.
12
See id.
13
See State v. Eberly, supra note 2.
14
See id. See, also, Annot., 64 A.L.R. 5th 637 (1998) (and cases cited
therein).
15
See State v. Eberly, supra note 2.
16
State ex rel. Zander v. District Court, 180 Mont. 548, 591 P.2d 656 (1979).
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no one was at home, he saw someone tampering with a win-
dow in the home, and the door to the home was always kept
locked. The investigating officer found no signs of tampering
at the window, but after knocking on the door and receiving
no response, the officer found the door unlocked when he
tested the handle.17 The court concluded it was reasonable for
the officer, believing a burglar might be hiding in the house,
to search without a warrant those areas of the house where a
burglar might be hiding.18
In Hill v. Com.,19 the court similarly found that officers rea-
sonably believed a burglar might be in a house that was the
subject of a warrantless search. A neighbor reported that the
occupant of the house had been out of town for 2 days and
that the front door of his house was open. When the officers
arrived, they observed that the front door was ajar approxi-
mately 12 to 15 inches and that no one answered the door
when they rang the doorbell and knocked on the storm door.20
The court found that under such circumstances, it was reason-
able to search without a warrant those places inside the house
where a burglar might hide.21
The court in Hill explained that the situation of a possible
burglary in progress required prompt action and an immediate,
warrantless entry. It was the officers’ duty to determine if the
house had been burglarized, to apprehend any burglar, and to
resecure the premises.22 It would have been impractical, the
court noted, for one officer to go for a warrant while the other
attempted to secure the premises from all sides.23
17
Id.
18
Id.
19
Hill v. Com., 18 Va. App. 1, 441 S.E.2d 50 (1994). See, also, e.g., Love v.
State, 290 Ga. App. 486, 659 S.E.2d 835 (2008).
20
Hill v. Com., supra note 19.
21
Id.
22
Id.
23
Id.
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In contrast to State ex rel. Zander and Hill, in United States
v. Selberg,24 the court held there were insufficient facts for a
reasonable officer to believe that warrantless entry was appro-
priate. The neighbor who called the police saw the occupant
leave the door open when he left, observed that the door
remained open the following day, and observed that the occu-
pant’s car was still gone. No occupant answered to knocks on
the door.25 The court found that under such facts, the warrant-
less search of the home was unreasonable.26
We find no clear error in the trial court’s findings con-
cerning the historical facts. Ezell told Wackler that Salvador
Rodriguez and Anguiano, who leased the house, were out of
town, and that she and her child were the only occupants in
the house before they went for a walk. Ezell told Wackler that
when they left for their walk, they turned off all the lights in
the house and locked the doors. Ezell told Wackler that when
they returned, they saw someone in the garage and all the
lights in the house were on. Wackler and Heath confirmed that
the lights of the house were on, and they found that the front
door of the house was unlocked and not entirely shut.
In our de novo review, we agree with the trial court that
these facts, taken together with rational inferences therefrom,
reasonably warranted an immediate intrusion of the Salvador
Rodriguez house into areas where a burglar might be hiding.
The officers had reasonable grounds to believe that there was
an emergency requiring an immediate warrantless search of
the house. The trial court did not err in overruling Salvador
Rodriguez’ motion to suppress.
2. Drug Use as Prior Bad Act
Salvador Rodriguez’ second assignment of error con-
cerns Ezell’s testimony that she smoked methamphetamine
24
United States v. Selberg, 630 F.2d 1292 (8th Cir. 1980). See, State ex rel.
Zander v. District Court, supra note 16; Hill v. Com., supra note 19.
25
United States v. Selberg, supra note 24.
26
Id.
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with Salvador Rodriguez and other guests and that Salvador
Rodriguez provided the methamphetamine which he kept under-
neath his basement couch. Salvador Rodriguez argues that the
court committed error because the testimony was admitted as
intrinsic evidence rather than as other acts evidence admitted
for a proper purpose under rule 404(3). Specifically, he argues
he was prejudiced by a lack of an instruction to the jury to
consider the evidence only for its proper purpose.
[12] We find no error in the trial court’s determination that
Ezell’s testimony was direct evidence of the crime charged and
thus outside the purview of rule 404. Rule 404(2) concerns
“[e]vidence of other crimes, wrongs, or acts.” Other acts under
rule 404(2) are acts that are not part of the events giving rise to
the present charges.27
Salvador Rodriguez was charged with possession of meth-
amphetamine with intent to deliver “on or about” July 30,
2014, the date when officers found methamphetamine under-
neath Salvador Rodriguez’ basement couch. Defense counsel
objected to Ezell’s testimony that during the summer of 2014,
she had observed Salvador Rodriguez in possession of meth-
amphetamine which he kept underneath the basement couch.
[13-16] The phrase “on or about” in an information indi-
cates the date with approximate certainty.28 Furthermore, the
crime of “possession” may extend over a period of time if
uninterrupted.29 Absent language indicating differently, “pos-
session” within a criminal statute contemplates a continuing
offense as opposed to a single incident.30 There is no indication
27
U.S. v. Gorman, 312 F.3d 1159 (10th Cir. 2002). See State v. Cullen, 292
Neb. 30, 870 N.W.2d 784 (2015). See, also, e.g., U.S. v. Carboni, 204 F.3d
39 (2d Cir. 2000); U.S. v. Kinshaw, 71 F.3d 268 (8th Cir. 1995); U.S. v.
Soliman, 813 F.2d 277 (9th Cir. 1987); U.S. v. Fortenberry, 971 F.2d 717
(11th Cir. 1992).
28
See State v. Metzger, 199 Neb. 186, 256 N.W.2d 691 (1977).
29
State v. Williams, 211 Neb. 650, 319 N.W.2d 748 (1982).
30
See id.
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the Legislature intended that possession of methamphetamine
should always be a single incident rather than a continuing
offense. An offense is continuing if
“set on foot by a single impulse and operated by an
unintermittent force, however long a time it may occupy;
an offense which continues day by day; a breach of the
criminal law, not terminated by a single act or fact, but
subsisting for a definite period and intended to cover or
apply to successive similar obligations or occurrences.”31
[17] In U.S. v. Towne,32 the court held that evidence of the
defendant’s possession of a pistol on days other than the date
described in the information charging him with being a felon
in unlawful possession of a pistol was not evidence of other
acts within the meaning of Fed. R. Evid. 404(b), the federal
equivalent to our rule 404(2). The continuous possession of the
gun, the court explained, constituted a single offense. And evi-
dence of uncharged criminal activity is not considered “‘other
crimes’” evidence under that rule if it “‘arose out of the same
transaction or series of transactions.’”33
Justice Cassel in his concurring opinion in State v.
Freemont 34 discussed several analogous cases holding that
evidence of possession on dates other than those specified
in the information is direct evidence of the charged crime of
possession rather than other acts evidence.35 The defendant in
Freemont was charged with second degree murder. In addition,
31
Id. at 655, 319 N.W.2d at 751, quoting 22 C.J.S. Criminal Law § 1 (1961).
32
U.S. v. Towne, 870 F.2d 880 (2d Cir. 1989). Compare U.S. v. Bowie, 232
F.3d 923 (D.C. Cir. 2000) (affirmative evidence that is not same item
previously observed).
33
See U.S. v. Towne, supra note 32, 870 F.2d at 886.
34
State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012) (Cassel, J.,
concurring).
35
See, U.S. v. Dorsey, 677 F.3d 944 (9th Cir. 2012); U.S. v. Adams, 604 F.3d
596 (8th Cir. 2010); United States v. Mitchell, 613 F.2d 779 (10th Cir.
1980).
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he was charged with use and possession of a deadly weapon.
Justice Cassel reasoned that evidence that the defendant had
been seen a week prior with a gun similar to the one used in
the shooting bore directly on an element of the possession
charge and therefore was not other acts evidence. Noting that
the crime of possession stated in the information was commit-
ted “‘on or about’” the date specified, he concluded that the
evidence of the possession days before was “not so removed
in time as to lose its temporal connection to the charged date
of possession.”36
The majority in Freemont held that the evidence of the
defendant’s possession of a gun before the date specified in
the information was other acts evidence. But we failed to
discuss the concept of continuing possession. We have since
explained that our holding in Freemont is limited to circum-
stances where the offense of possession is entirely different
from the most serious charged offense.37 That is not the situa-
tion presented here.
We find the reasoning in Towne 38 is applicable to this case.
Ezell’s testimony supports the inference that in July 2014,
Salvador Rodriguez gradually consumed with his acquaintances
a stash of methamphetamine that he kept in his basement.
In the objected-to testimony, Ezell did not testify that
Salvador Rodriguez had committed on unrelated occasions
the crime of possession of methamphetamine with intent to
deliver, such that he had the character trait of being the type
of person who possesses methamphetamine with intent to
deliver. Rather, Ezell’s testimony was direct evidence that on
or about July 30, 2014, Salvador Rodriguez was engaged in a
series of transactions constituting the crime of possession of
36
State v. Freemont, supra note 34, 284 Neb. at 212, 213, 817 N.W.2d at
303, 304 (Cassel, J., concurring).
37
State v. Cullen, supra note 27.
38
U.S. v. Towne, supra note 32.
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methamphetamine with intent to deliver. This is not other acts
evidence. Ezell’s testimony did not require an intermediate
propensity inference in order for the trier of fact to have con-
cluded based on that testimony that Salvador Rodriguez com-
mitted the crime charged. The court did not err in overruling
defense counsel’s rule 404 objection.
3. Comments in Closing A rguments
[18] Salvador Rodriguez asserts there was prosecutorial mis-
conduct in closing arguments. But the closing arguments were
not recorded in the bill of exceptions. It is the law in Nebraska
that, where allegedly prejudicial remarks of counsel do not
appear in the bill of exceptions, this court is precluded from
considering an assigned error concerning such remarks.39 We
mentioned in State v. Harris 40 that counsel could have made an
offer or proof when closing arguments were not in the record.
But here, the only “evidence” of the statements made in clos-
ing arguments is an affidavit attached to the motion for new
trial in which the defense attorney avers that the factual allega-
tions in the motion are true.
[19,20] It has long been the law of this state that affidavits
in support of a motion for new trial must be offered in evidence
and preserved in and made a part of a bill of exceptions to be
considered by this court.41 This court will not review testimony
in the form of affidavits used in the trial court on the hearing
of a motion for new trial, unless such affidavits have been
included in and presented by a bill of exceptions.42
Salvador Rodriguez argues he was unfairly prejudiced
when the prosecutor said in closing arguments that Salvador
39
State v. Harris, 205 Neb. 844, 290 N.W.2d 645 (1980).
40
See id.
41
Metschke v. Department of Motor Vehicles, 186 Neb. 197, 181 N.W.2d
843 (1970), overruled on other grounds, State v. Perez, 235 Neb. 796, 457
N.W.2d 448 (1990).
42
Id.
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Rodriguez owned the house where the methamphetamine was
found. Defense counsel averred that in his closing arguments,
he corrected this and told the jury that Salvador Rodriguez
was only a tenant and had no legal ownership in the house.
Even assuming the prosecution made the statements alleged,
the prosecutor’s remarks were not misconduct and Salvador
Rodriguez was not prejudiced. The ownership of the house was
not decisive of any issue in the case, and there was no allega-
tion that the prosecutor told the jury that ownership of the resi-
dence was relevant to the crimes charged. We find no merit to
this last assignment of error.
VI. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
A ffirmed.