State v. Garza

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/15/2020 08:07 AM CST
- 223 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. GARZA
Cite as 29 Neb. App. 223State of Nebraska, appellee, v.
Charles E. Garza, Jr., appellant.
___ N.W.2d ___
Filed December 8, 2020. No. A-19-474.
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 pro-
tection is a question of law that an appellate court reviews independently
of the trial court’s determination.
2. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error.
When a motion to suppress is denied pretrial and again during trial on
renewed objection, an appellate court considers all the evidence, both
from trial and from the hearings on the motion to suppress.
3. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
4. Search and Seizure: Warrantless Searches: Probable Cause: Motor
Vehicles. As a general rule, automobiles, including containers and pack-
ages that may contain the object of a search, may be searched without
a warrant provided there is probable cause to believe the vehicle con-
tains contraband.
5. ____: ____: ____: ____. Under the automobile exception, a warrantless
search of a vehicle with probable cause is lawful so long as the vehicle
is mobile.
6. Search and Seizure: Warrantless Searches: Motor Vehicles. A war-
rantless search of a vehicle is lawful even after it has been impounded
and is in police custody.
7. Probable Cause: Words and Phrases. Probable cause is a flexible
standard which depends on the totality of the circumstances; it does not
- 224 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. GARZA
Cite as 29 Neb. App. 223demand any showing that such a belief be correct or more likely true
than false, nor does it require the same type of specific evidence of each
element of an offense as would be needed to support a conviction.
8. ____: ____. Probable cause requires a fair probability that contraband or
evidence of a crime will be found.
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. 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
totality of the circumstances illustrated by the affidavit, the issuing mag-
istrate had a substantial basis for finding that the affidavit established
probable cause.
11. Search and Seizure: Search Warrants. Observing objects in plain
view violates no reasonable expectation of privacy, which obviates the
need for a search warrant.
12. Police Officers and Sheriffs: Search and Seizure: Evidence. A war-
rantless seizure is justified under the plain view doctrine if (1) a law
enforcement officer has a legal right to be in the place from which the
object subject to the seizure could be plainly viewed, (2) the seized
object’s incriminating nature is immediately apparent, and (3) the officer
has a lawful right of access to the seized object itself.
13. Police Officers and Sheriffs: Search and Seizure: Probable Cause.
For an object’s incriminating nature to be immediately apparent, the
officer must have probable cause to associate the property with crimi-
nal activity.
14. Search and Seizure: Search Warrants. Any container that may con-
ceal the object of a search authorized by a warrant may be opened
immediately.
15. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction.
- 225 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. GARZA
Cite as 29 Neb. App. 22316. Jury Instructions: Appeal and Error. All the jury instructions must be
read together, and if, taken as a whole, they correctly state the law, are
not misleading, and adequately cover the issues supported by the plead-
ings and evidence, there is no prejudicial error necessitating reversal.
17. Criminal Law: Jury Instructions. If there is an applicable instruction
in the Nebraska Jury Instructions, the court should usually give this
instruction to the jury in a criminal case.
18. Appeal and Error. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the
brief of the party asserting the error.
Appeal from the District Court for Scotts Bluff County: Leo
P. Dobrovolny, Judge. Affirmed.
Sarah P. Newell, of Nebraska Commission on Public
Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Pirtle, Riedmann, and Arterburn, Judges.
Arterburn, Judge.
I. INTRODUCTION
Charles E. Garza, Jr., was convicted in the district court for
Scotts Bluff County, Nebraska, of possession of methamphet-
amine, possession with intent to deliver methamphetamine,
possession with intent to deliver at least 10 grams but less than
28 grams of methamphetamine, and three counts of possession
of a firearm by a prohibited person. The questions pending
before this court are whether the district court erred in denying
motions to suppress the searches of his car, his home, and his
recreational vehicle (RV) and whether the court should have
given Garza’s proposed jury instruction defining “possession.”
We affirm the judgment of the district court.
II. BACKGROUND
In January 2017, the Western Nebraska Intelligence
Narcotics Group (the task force) in Gering, Nebraska, was
- 226 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. GARZA
Cite as 29 Neb. App. 223investigating local drug activity and Garza became a target.
The task force was working with a “cooperating individual”
(CI), an acquaintance and part-time employee of Garza’s. The
CI completed two “controlled buys” from Garza in cooperation
with the task force. Garza was arrested prior to the completion
of a third controlled buy.
The first controlled buy took place January 16, 2017, outside
a convenience store in Gering. The CI bought a quarter ounce
of methamphetamine from Garza for $350. The deal took place
in Garza’s Honda Accord. The CI was wearing a transmitter,
and the task force conducted audio and video surveillance for
the duration of the encounter. The substance purchased by the
CI was sent to the Nebraska State Patrol Crime Laboratory for
testing and was confirmed to be methamphetamine.
The second transaction took place on January 20, 2017,
outside a hospital in Scottsbluff, Nebraska. The CI bought a
half ounce of methamphetamine from Garza for $700. The
deal occurred in Garza’s van. The CI was again wearing a
transmitter, and the task force again conducted audio and video
surveillance. The substance purchased by the CI was sent to
the Nebraska State Patrol Crime Laboratory for testing and was
confirmed to be methamphetamine.
The third transaction was set to take place on February 1,
2017, outside a bank in Scottsbluff. The CI had arranged to
buy a full ounce of methamphetamine for $1,400, which was
twice the going rate for such an amount. Det. James Jackson, a
sergeant with the Gering Police Department and member of the
task force at the time, testified that the task force had no inten-
tion of allowing the third transaction to take place, because it
did not want to risk losing such a substantial sum of money.
Garza’s arrival at the location for the buy was delayed for over
2 hours. Telephone contact between Garza and the CI indi-
cated Garza claimed to have had a flat tire. During the period
of time the CI was waiting for Garza to appear, members of
the task force located the Honda parked at a local motel and
engaged in surveillance of the Honda. The car did not appear
- 227 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. GARZA
Cite as 29 Neb. App. 223to have a flat tire. Members of the task force observed Garza
go from his car to his motel room, and back to his car. When
Garza appeared again and got back into the car, the task force
members who had been conducting surveillance of Garza and
his car arrested Garza in the motel parking lot.
After Garza was arrested, handcuffed, and taken to the police
department, the second officer on the scene at the motel was
instructed to have the Honda towed to the impound lot. The car
was under observation by another sergeant of the Gering Police
Department until the tow truck arrived at the motel. The car
was locked up after it had been towed to the impound lot. The
other sergeant gave the keys to Jackson, who was at the police
department by this time in order to interview Garza.
After Jackson interviewed Garza, Jackson applied for a
search warrant for the Honda in which Garza had been sit-
ting when he was arrested. This was the same car Jackson had
observed during the first controlled buy made by the CI. After
obtaining the search warrant, Jackson searched the Honda in
the impound lot, because it was a secure area. Evidence dis-
covered in the Honda during the search included a plastic bag
containing approximately 28.7 grams of suspected metham-
phetamine, found in the console, and Garza’s driver’s license,
found in the visor. Following the search of the Honda, and as
part of the ongoing investigation, Jackson applied for and was
granted a search warrant for the address listed on the driver’s
license and an RV in which Garza was living, which was
parked at a nearby campground. Searches of the home and the
RV turned up a ballistic vest and face mask, numerous firearms
from gun safes, ammunition, several cell phones, cash, and
methamphetamine. Garza filed motions to suppress all of the
evidence seized in the searches of his car, his home, and his RV
for the reason the supporting affidavits lacked probable cause
and because the searches exceeded the scope of the warrants.
The district court overruled all of the motions to suppress prior
to trial. Garza renewed his motions to suppress at the start of
the trial, and they were all overruled again.
- 228 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. GARZA
Cite as 29 Neb. App. 223III. ASSIGNMENTS OF ERROR
Garza assigns as error the district court’s failure to suppress
evidence seized from Garza’s car, his home, and his RV and the
court’s failure to utilize his proposed jury instruction regarding
constructive possession.
IV. STANDARD OF REVIEW
[1,2] 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 trigger
or violate Fourth Amendment protection is a question of law
that an appellate court reviews independently of the trial court’s
determination. State v. Hartzell, 304 Neb. 82, 933 N.W.2d 441(2019). When a motion to suppress is denied pretrial and again
during trial on renewed objection, an appellate court considers
all the evidence, both from trial and from the hearings on the
motion to suppress. Id.[3] Whether jury instructions are correct is a question of
law, which an appellate court resolves independently of the
lower court’s decision. State v. Lee, 304 Neb. 252, 934 N.W.2d
145 (2019).
V. ANALYSIS
1. Search Warrants
(a) Search of Honda
Garza objects to the search of his Honda, because the search
was beyond the scope of the warrant and was not made in
good faith. The warrant itself authorized only the search of
the “above described cellular phone,” and the warrant was
issued prior to the decision in State v. Stelly, 304 Neb. 33,
932 N.W.2d 857 (2019), which held that detailed informa-
tion in a supporting affidavit cured any defect in the warrant
resulting from a scrivener’s error in misidentifying the item
to be searched. Garza argues a search which is not described
in the warrant is not a search made in good faith, because a
- 229 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. GARZA
Cite as 29 Neb. App. 223“well-trained officer would have known that the search autho-
rized was limited to the cellular phone described therein.”
Brief for appellant at 19. Garza posits that “in all likelihood,
law enforcement prepared the warrant language,” and that
while sloppy, “they should be held to their own language in
order to discourage future errors and minimize the discretion
afforded to the executing officer.” Id. at 20.
Garza goes on to suggest that even if this court finds the
methamphetamine and driver’s license were properly seized,
the affidavit in support of the warrant lacks probable cause,
because law enforcement is relying on an unreliable inform­
ant with ulterior motives. Garza argues the CI was a “police
tipster,” someone who acts for money, leniency, or some
other selfish purpose, rather than a “citizen informer,” whose
only motive is to help law enforcement in the suppression of
crime. Id. at 21. Garza argues the affidavit never described
the “‘controlled buy’” process, nor did it contain any infor-
mation about whether or not Jackson witnessed the buys or
complied with the controlled buy protocols as some evidence
of the CI’s credibility. Id. at 22. Finally, he contends that the
affidavit does not describe how the things to be seized were
connected to any criminal activity or why they would be found
in the Honda.
[4,5] While we do not agree with Garza’s assertions, we
find that the totality of the evidence adduced at the suppres-
sion hearing and at trial establishes that even if the affida-
vit were insufficient, the police possessed adequate probable
cause to search the Honda without obtaining a search warrant.
Garza was arrested while in his car in the motel parking lot,
following surveillance by law enforcement, at a time when
he was late for the third controlled buy. Law enforcement
expected Garza to have an ounce of methamphetamine in his
possession, ready to sell to the CI for $1,400. Under these
circumstances, when it is reasonable to believe evidence rel-
evant to the crime of arrest may be found in a vehicle, the
U.S. Supreme Court has established an independent exception
for a warrantless search of a vehicle’s passenger compartment
- 230 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. GARZA
Cite as 29 Neb. App. 223due to circumstances unique to the vehicle context. As a gen-
eral rule, automobiles, including containers and packages that
may contain the object of a search, may be searched without
a warrant provided there is probable cause to believe the
vehicle contains contraband. See United States v. Ross, 456
U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). Under the
automobile exception, a warrantless search of a vehicle with
probable cause is lawful so long as the vehicle is mobile. See
State v. Seckinger, 301 Neb. 963, 920 N.W.2d 842 (2018). Our
Supreme Court has held:
In light of the overwhelming weight of authorities,
we hold that the requirement of ready mobility for the
automobile exception is met whenever a vehicle that is
not located on private property is capable or apparently
capable of being driven on the roads or highways. This
inquiry does not focus on the likelihood of the vehicle’s
being moved under the particular circumstances and is
generally satisfied by the inherent mobility of all opera-
tional vehicles. It does not depend on whether the defend­
ant has access to the vehicle at the time of the search
or is in custody, nor on whether the vehicle has been
impounded. The purpose of the ready mobility require-
ment is to distinguish vehicles on public property from
fixed, permanent structures, in which there is a greater
reasonable expectation of privacy.
State v. Rocha, 295 Neb. 716, 755, 890 N.W.2d 178, 207
(2017).
[6] Moreover, a warrantless search of a vehicle is lawful
even after it has been impounded and is in police custody. See
Michigan v. Thomas, 458 U.S. 259, 102 S. Ct. 3079, 73 L. Ed.
2d 750 (1982). Here, Garza was arrested in his car in a public
parking lot. The car was then towed to a police impound lot
where it was searched.
[7,8] Probable cause is a flexible standard which depends
on the totality of the circumstances. State v. Seckinger, supra.It does not demand any showing that such a belief be correct
- 231 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. GARZA
Cite as 29 Neb. App. 223or more likely true than false. State v. Au, 285 Neb. 797,
829 N.W.2d 695 (2013). Nor does it require the same type
of specific evidence of each element of an offense as would
be needed to support a conviction. State v. Brewer, 190 Neb.
667, 212 N.W.2d 90 (1973). What is required is a “fair prob-
ability” that contraband or evidence of a crime will be found.
See State v. Goynes, 303 Neb. 129, 139, 927 N.W.2d 346, 353
(2019), cert. denied ___ U.S. ___, 140 S. Ct. 545, 205 L. Ed.
2d 345. Based on the totality of the evidence adduced at the
hearing on the motion to suppress and at trial, we find that
probable cause to search Garza’s Honda existed at the time of
the search and that the automobile exception to the warrant
requirement applied. Therefore, though we do not limit our
analysis to the information provided in the affidavit for the
search warrant of the Honda, we find that the district court did
not err in denying the motion to suppress the evidence found
inside it.
The affidavit in support of the warrant and the testimony at
trial detail the controlled buys completed in January 2017. A
controlled buy was described by Jackson at trial as an opera-
tion where law enforcement controls as many variables as
possible. Before sending a CI to buy drugs, the CI is searched
to be sure the CI does not have any money, contraband, or
weapons on his or her person. A recording device is affixed
to the person of the CI, and the CI is given “pre-recorded buy
money,” which means law enforcement has made photocopies
of the money for comparison purposes in case the money is
never recovered. If a car is involved, the CI’s car is searched
as well. Then law enforcement follows the CI and surveils the
CI’s activities while the buy is underway. Once a purchase has
been made, the CI is searched again for any money and the
drugs. If drugs have been purchased, the drugs are retrieved
and sent to the laboratory for testing to be sure the items pur-
chased under the controlled conditions are actually controlled
substances. The testimony of Jackson and the affidavit in sup-
port of the warrant specifically described the two controlled
- 232 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. GARZA
Cite as 29 Neb. App. 223buys occurring during the 2 weeks prior to Garza’s arrest on
February 1, 2017.
[9] The January 16, 2017, controlled buy took place in the
Honda, which encounter was videotaped by law enforcement.
Jackson confirmed the license plate on the car was actually the
Honda Accord which was registered to Garza. When the buy
was complete, the CI was searched by Jackson, the recording
device was removed from his person, and the drugs were taken
from him. The CI did not have any of the prerecorded money
left after making the buy. By the time the February 1 controlled
buy was underway, the CI had proved to be reliable. Among
the ways in which the reliability of an informant may be estab-
lished 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 investiga-
tion establishes the informant’s reliability or the reliability of
the information the informant has given. State v. Manning, 263
Neb. 61, 638 N.W.2d 231 (2002). The affidavit and testimony
make clear that reliable information had already been given
to law enforcement by the CI. And, law enforcement indepen-
dently corroborated the January 2017 buys with surveillance.
The “ruse” for the February 1 controlled buy was to have
Garza meet the CI at a bank while the CI was in Scottsbluff
having his income taxes prepared. The purchase was to be an
ounce of methamphetamine in exchange for $1,400. Audio
surveillance made it clear the CI was having trouble persuad-
ing Garza to come to the bank where video surveillance was
in place. Jackson then decided to send two other investigators
to Garza’s location and arrest him there. The other investiga-
tors had located Garza sitting in his car in a motel parking lot.
When Garza was arrested in his car, it was reasonable to expect
he would have an ounce of methamphetamine ready for sale,
because a sale had been negotiated and was expected to take
place near the bank.
- 233 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. GARZA
Cite as 29 Neb. App. 223Our analysis of the facts contained in the record, along with
the facts establishing the credibility of the CI, were sufficient
to establish probable cause to search the Honda. We believe
there was sufficient information present for law enforcement
to believe there was a fair probability that contraband or evi-
dence of a drug crime would be found in the car at the time of
Garza’s arrest. See State v. Goynes, 303 Neb. 129, 927 N.W.2d
346 (2019), cert. denied ___ U.S. ___, 140 S. Ct. 545, 205 L.
Ed. 2d 345. See, also, Riley v. California, 573 U.S. 373, 134 S.
Ct. 2473, 189 L. Ed. 2d 430 (2014). Accordingly, the search of
the Honda was supported by sufficient probable cause and the
district court was not clearly wrong in denying the motion to
suppress the evidence found in the Honda.
Finally, we address Garza’s argument that the scope of the
search exceeded that authorized by the search warrant. Having
found that the officers had probable cause to search the Honda
and that the automobile exception to the warrant requirement
applies, the allowable scope of the search is not determined by
the warrant, but by the nature of the contraband or evidence of
a crime that was being searched for. Here, there is no evidence
that the search went beyond the Honda or its contents, all of
which was supported by probable cause.
(b) Search of Schmid Drive Residence
Garza argues the affidavit for a warrant to search his resi-
dence on Schmid Drive did not provide probable cause, the
seizure of firearms from the residence went beyond the scope
authorized by the search warrant, and the opening of the gun
safe found in the residence required a separate warrant.
(i) Probable Cause
The search of the Honda resulted in the discovery of Garza’s
driver’s license, which identified the Schmid Drive address as
his residence. Garza confirmed this was his address during his
interview with Jackson at the Gering Police Department after
his arrest on February 1, 2017. Jackson’s affidavit in support
of a search warrant for the residence included all of the past
- 234 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. GARZA
Cite as 29 Neb. App. 223information regarding the controlled buys made from Garza,
the arrangements for the buy of an ounce of methamphetamine,
and the ultimate discovery of 28.7 grams of methamphetamine
in his car on February 1. The affidavit, drafted on February
2, also recounts that the original CI reported to Jackson that
Garza’s girlfriend, Carmen Scott, had spoken to him about get-
ting Garza out of jail. The CI reported Scott knew there was a
safe at the address which contained at least $3,000 and more
methamphetamine. The CI reported Scott talked about selling
the methamphetamine in order to get Garza out of jail. The CI
reported Scott knew two of the numbers in the combination
to the safe but did not have the other two. Jackson was also
aware one of the investigators working on the case listened to
a jail telephone call between Scott and Garza. During the call,
Garza reported his mother and brother had the combination to
the safe. Scott told Garza she had already asked them for the
combination to no avail. Garza went on to tell Scott there was
“something in the blue truck that would help” her. Jackson
was aware that Garza owned a “blue Volvo Semi truck.” The
information reported by the CI was corroborated by the jail
telephone call. Jackson concluded his affidavit by indicating
he had probable cause to believe evidence in the form of “ille-
gal drugs, plastic bags, digital scales, pay/owe sheets, cellular
phones, and US Currency” were located at the Schmid Drive
residence “and inside a safe inside the residence.”
[10] The Nebraska Supreme Court set out the standard for
reviewing the strength of an affidavit for a search warrant in
State v. Goynes, 303 Neb. 129, 927 N.W.2d 346 (2019), cert.
denied ___ U.S. ___, 140 S. Ct. 545, 205 L. Ed. 2d 345. The
court stated:
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 cir-
cumstances illustrated by the affidavit, the issuing magis-
trate had a substantial basis for finding that the affidavit
- 235 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. GARZA
Cite as 29 Neb. App. 223established probable cause. Probable cause sufficient to
justify issuance of a search warrant means a fair probabil-
ity that contraband or evidence of a crime will be found.
In evaluating the sufficiency of an affidavit used to obtain
a search warrant, an appellate court is restricted to con-
sideration 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.
Id. at 138-39, 927 N.W.2d at 353-54.
Applying the standards defined by Goynes, we believe prob-
able cause has been established by the affidavit in support of
the warrant. The address of the house was confirmed by Garza
during his interview after his driver’s license was located in the
Honda. The methamphetamine found in the car was consistent
with the amount to be sold in the February 1, 2017, controlled
buy. The CI had proved reliable following two completed con-
trolled buys and his report of a conversation with Garza’s girl-
friend about the contents of a safe at the house as evidence of
criminal activity was independently confirmed by law enforce-
ment. Applying the totality of the circumstances test, we agree
with the district court that a fair probability existed that contra-
band or evidence of a crime would be found in the residence.
Therefore, we find no error in the court’s finding that probable
cause existed for the search of the house.
(ii) Scope of Warrant
Garza argues the seizure of the firearms at the house
exceeded the scope of the warrant. His argument is twofold.
First, he argues that firearms were not included as items to
be seized in the original warrant for the search of the house.
Second, he argues that the warrant authorizing the search of
the house was not sufficient to authorize a search of a safe
found within the house. We note that during the course of trial,
evidence was adduced regarding weapons that were found in
a bedroom in the house and in a gun safe located in the base-
ment of the house. Garza was charged and tried for being a
- 236 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. GARZA
Cite as 29 Neb. App. 223felon in possession of two firearms found in the gun safe (an
SKS rifle and an “AR[-]15 style rifle”) and two guns found
in a gun safe in his RV (a handgun and a shotgun). He was
found guilty as to both guns found in the RV and the AR-15
style rifle found in the house, but was found not guilty as to
the SKS rifle. He was not tried as to any of the remaining guns
found elsewhere in the residence. All of the guns found in the
residence and RV were seized, however, and evidence was pre-
sented thereon during trial.
[11-13] We first address the seizure of firearms that were
not contained in the gun safe. Observing objects in plain view
violates no reasonable expectation of privacy, which obviates
the need for a search warrant. Horton v. California, 496 U.S.
128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990). A warrant-
less seizure is justified under the plain view doctrine if (1)
a law enforcement officer has a legal right to be in the place
from which the object subject to the seizure could be plainly
viewed, (2) the seized object’s incriminating nature is immedi-
ately apparent, and (3) the officer has a lawful right of access
to the seized object itself. State v. Borst, 281 Neb. 217, 795
N.W.2d 262 (2011); State v. Vyhnalek, 19 Neb. App. 904, 814
N.W.2d 768 (2012). For an object’s incriminating nature to be
immediately apparent, the officer must have probable cause to
associate the property with criminal activity. State v. Keup, 265
Neb. 96, 655 N.W.2d 25 (2003).
The Supreme Court has held that “‘“dealers in narcotics
keep firearms on their premises as tools of the trade almost
to the same extent as they keep scales, glassine bags, cut-
ting equipment and other narcotics equipment.”’” State v.
Groves, 239 Neb. 660, 676, 477 N.W.2d 789, 800 (1991)
(quoting United States v. Milham, 590 F.2d 717 (8th Cir.
1979)). The Groves court also held that in drug-related pros-
ecutions, evidence relating to guns in a defendant’s posses-
sion is relevant. Because law enforcement was investigating
crimes involving the distribution of narcotics, the incriminat-
ing nature of firearms would have been readily apparent to the
- 237 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. GARZA
Cite as 29 Neb. App. 223officers lawfully in the home pursuant to the search warrant.
Seizing the weapons as relevant evidence of illegal drug activ-
ity was not unreasonable and did not violate Garza’s Fourth
Amendment rights.
With regard to the firearms found within the gun safe, sev-
eral issues must be considered. First, we note that two separate
affidavits and search warrants relate to the contents of the safe.
In the first affidavit, the affiant provided specific information
related from the CI about the presence of methamphetamine in
the safe. The CI reported that Garza’s girlfriend had told him
that the safe contained $3,000 cash and methamphetamine, all
of which could be utilized to bond Garza out of jail. Therefore,
while the warrant did not specifically authorize the officers to
search the safe, the safe certainly constituted a place within the
residence where contraband could be found.
Once the safe was found, Jackson completed an additional
affidavit for a search warrant. In that affidavit, all of the facts
contained in the first warrant to search the house were listed.
The affidavit then included information on what the search
of the house had revealed to that point, including a bag of
suspected methamphetamine found on the refrigerator in the
kitchen, which tested positive in a presumptive test, and the
guns in the upstairs bedroom. The affidavit also related that a
safe had been found in the basement. The affidavit requested
that the police be allowed to further search the house and
specifically included the safe as something to be searched for,
among other items, illegal drugs, currency, firearms, ammu-
nition, and items related to firearms such as holsters, gun
cases, and body armor. A second warrant was issued. It added
ammunition, body armor, and gun cases to the list of items to
be obtained, but did not specifically include firearms. In addi-
tion, the search warrant itself does not specifically authorize
the search of the safe, but instead lists only the Schmid Drive
residence as the place to be searched. While it appears that the
sole reason law enforcement sought the search warrant was as
a precautionary step to obtain permission to search the safe,
- 238 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. GARZA
Cite as 29 Neb. App. 223the warrant itself is no more specific than the original warrant
as to the location to be searched.
Despite the shortcomings of the warrant, we find that the
warrants authorizing the search of the house also authorized
the search of the safe found in the house. In United States
v. Ross, 456 U.S. 798, 820-21, 102 S. Ct. 2157, 72 L. Ed. 2d
572 (1982), the Court stated:
A lawful search of fixed premises generally extends to
the entire area in which the object of the search may be
found and is not limited by the possibility that separate
acts of entry or opening may be required to complete
the search. Thus, a warrant that authorizes an officer to
search a home for illegal weapons also provides authority
to open closets, chests, drawers, and containers in which
the weapon might be found. . . . When a legitimate search
is under way, and when its purpose and its limits have
been precisely defined, nice distinctions between clos-
ets, drawers, and containers, in the case of a home . . .
must give way to the interest in the prompt and efficient
completion of the task at hand.
[14] The Court went on to explain that any container that
may conceal the object of a search authorized by a warrant
may be opened immediately. In State v. Salas, 237 Neb. 546,
466 N.W.2d 790 (1991), the court, applying the foregoing lan-
guage from Ross, held that officers were not required to seek
a subsequent search warrant in order to search a locked box
for narcotics. The search warrant for the premises in which the
locked box was found was sufficient to authorize the search
of the box. Here, Jackson took the step of seeking a second
warrant for the safe. We do not read the warrant which failed
to list the safe specifically as an indication that the judge was
denying the police access to the safe. We find, under the facts
of this case, that by authorizing the police to search the entire
premises at the Schmid Drive residence, the court did autho-
rize a search of any containers within that residence, including
the safe located in the basement. Once the safe was opened,
- 239 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. GARZA
Cite as 29 Neb. App. 223the firearms located inside were in plain view, were immedi-
ately recognized as tools associated with narcotics trafficking,
and were subject to seizure. The district court was not clearly
wrong in overruling Garza’s motion to suppress the search of
the Schmid Drive residence and the safe contained therein.
(c) Search of RV
Garza argues the search of his RV was also illegal for many
of the same reasons he believes the search of his residence was
illegal—that probable cause for the search was lacking and
opening the safe from the RV required a separate warrant.
(i) Probable Cause
The affidavit in support of the application for a warrant
to search the RV contained all of the facts already known to
law enforcement and contained in the affidavits in support of
the warrants for searches of the Honda and the Schmid Drive
residence. The affidavit also contained additional facts dis-
covered following the search of the home in order to establish
probable cause for the search of the RV. Jackson reported that
law enforcement noticed surveillance cameras affixed to the
Schmid Drive residence and directed toward the street. Once
inside the home, law enforcement discovered methamphet-
amine in a plastic bag on top of the refrigerator and four rifles
in a bedroom. Jackson also reported that during the search
of the home, Garza’s girlfriend, Scott, was standing a block
away from the home watching the scene. Jackson approached
Scott and asked her about the blue truck mentioned in the jail
telephone call. Scott reported Garza had left her some clothes
in the blue truck. Scott also told Jackson that she and Garza
were living in an RV, which was parked at a nearby camp-
ground. Jackson specifically identified the RV by its license
plate number and lot space. Jackson was given authority to
search for “[i]llegal drugs, plastic bags, digital scales, pay/owe
sheets, cellular phones, US currency, firearms, ammunition,
body armor, holsters, gun cases, [and] surveillance systems.”
- 240 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. GARZA
Cite as 29 Neb. App. 223Again, applying the flexible totality of the circumstances and
“fair probability that contraband or evidence of a crime will
be found” standards as described in State v. Goynes, 303 Neb.
129, 139, 927 N.W.2d 346, 353 (2019), cert. denied ___ U.S.
___, 140 S. Ct. 545, 205 L. Ed. 2d 345, we believe the affida-
vit contained sufficient probable cause that contraband would
be found in the RV. We therefore believe there was sufficient
probable cause for the warrant to issue.
(ii) Scope of Warrant
Garza argues that there was no evidence in the affidavit that
supported probable cause that any weapons previously found
were linked to criminal activity on Garza’s part. He argues the
seizure of weapons from the RV, and from the gun safe in the
RV specifically, was beyond the scope of the warrant, because
probable cause was lacking to authorize a specific seizure of
weapons. We previously concluded that firearms are regarded
as tools of the trade in drug enterprises and that a warrant for
drug activity is likely to result in the discovery of weapons.
And because weapons were discovered during the search of
the home, it was reasonable for law enforcement to conclude
additional weapons could be found in the search of the RV. We
believe that there was probable cause to include weapons in the
warrant for the RV and that the warrant specifically identified
weapons and ammunition as evidence to be seized. We are not
persuaded the seizure of the weapons was not supported by
probable cause or was beyond the scope of the warrant.
Relying on the same rationale for the search of the safe at the
residence, we do not believe a separate warrant was required
for the RV gun safe. See, United States v. Ross, 456 U.S. 798,
102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982); State v. Salas, 237
Neb. 546, 466 N.W.2d 790 (1991). We have found no author-
ity, nor has Garza directed us to any, which establishes greater
protections for safes in RVs than safes in homes. The district
court was not clearly wrong in denying the motion to suppress
evidence found in the RV.
- 241 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. GARZA
Cite as 29 Neb. App. 2232. Jury Instruction
[15,16] Garza argues the district court erred by rejecting his
proposed instruction on constructive possession related to the
firearms. To establish reversible error from a court’s refusal
to give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction. State v. Parnell, 294
Neb. 551, 883 N.W.2d 652 (2016). All the jury instructions
must be read together, and if, taken as a whole, they correctly
state the law, are not misleading, and adequately cover the
issues supported by the pleadings and evidence, there is no
prejudicial error necessitating reversal. Id.[17] Utilizing NJI2d Crim. 4.2, the district court instructed
the jury: “Possession of a thing means either knowingly hav-
ing it on one’s person, or knowing of its presence and having
the right to exercise dominion and control over it.” Garza
argues the district court erred in omitting his additional lan-
guage defining “constructive possession” as proof of owner-
ship, dominion, or control over the contraband itself, coupled
with the intent to exercise control over the same. Garza empha-
sizes that the given instruction does not emphasize adequately
the required intent. We note, however, that the instructions
included a separate instruction which does define “intent.”
Moreover, the elements instruction as to each of the firearms
charges required the jury to find beyond a reasonable doubt
that Garza possessed each firearm “knowingly and intention-
ally.” Garza relies on State v. Garza, 256 Neb. 752, 592
N.W.2d 485 (1999), and State v. Garcia, 216 Neb. 769, 345
N.W.2d 826 (1984), for this additional language, but neither
case says the additional language requested is required. If there
is an applicable instruction in the Nebraska Jury Instructions,
the court should usually give this instruction to the jury in a
criminal case. State v. Lavalleur, 289 Neb. 102, 853 N.W.2d
203 (2014). See, also, State v. Castellanos, 26 Neb. App. 310,
- 242 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. GARZA
Cite as 29 Neb. App. 223918 N.W.2d 345 (2018) (affirming use of NJI2d Crim. 4.2
defining “possession”). We find that the district court did not
err by failing to give Garza’s proposed instruction.
[18] Garza also argues he was prejudiced when his lawyer’s
argument to the jury about reading the instructions together
in order to find “intent to exercise dominion and control”
was met with “incredulity” by the court and derision by the
prosecutor. Brief for appellant at 52, 54. However, Garza does
not assign this action by the court as error. To be considered
by an appellate court, an alleged error must be both specifi-
cally assigned and specifically argued in the brief of the party
asserting the error. Adair Holdings v. Johnson, 304 Neb.
720, 936 N.W.2d 517 (2020). Therefore, we do not consider
this argument.
VI. CONCLUSION
We find no error in the district court’s determinations that
Garza’s motions to suppress should be overruled. We also find
no error in the district court’s refusal to give Garza’s proposed
instruction regarding constructive possession. Accordingly, the
judgment of the district court is affirmed.
Affirmed.