State v. Anderson

1

317 Neb. 435

STATE OF NEBRASKA, APPELLEE, v. KAY E. ANDERSON, APPELLANT.

No. S-22-846

Supreme Court of Nebraska

August 23, 2024

1. Convictions: Appeal and Error. In an appeal of a criminal conviction, an appellate court reviews the evidence in a light most favorable to the prosecution.

2. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. When 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 historical 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 independently of the trial court's determination.

3. 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 the trial and from the hearings on the motion to suppress.

4. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeals, and its review is limited to an examination of the record for error or abuse of discretion. When deciding appeals from criminal convictions in county court, the Nebraska Court of Appeals and Nebraska Supreme Court apply the same standards of review that are applied to decide appeals from criminal convictions in district court.

5. Trial: Convictions: Evidence: Appeal and Error. An appellate court will sustain a conviction in a bench trial of a criminal case if the properly admitted evidence, viewed and construed most favorably to the State is sufficient to support that conviction. In making this determination, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses evaluate explanations, or reweigh the evidence presented, which are within a fact finder's province for disposition. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

6. Constitutional Law: Search and Seizure. Both the Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution guarantee against unreasonable searches and seizures.

7. Search Warrants: Affidavits: Probable Cause. A warrant authorizing a search must be based on probable cause as established in an affidavit and application in support of the warrant.

8. 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 in the item to be searched.

9. Search Warrants: Affidavits: Probable Cause: Police Officers and Sheriffs: Presumptions: Proof. There is a presumption of validity with respect to affidavits supporting applications for search warrants, but that presumption may be overcome, and a search warrant may be invalidated, if the defendant proves the affiant officer knowingly and intentionally, or with reckless disregard for the truth, included in the affidavit false or misleading statements that were material to establishing probable cause. Courts extend the same rationale to misleading omissions of material information from warrant affidavits.

10. Search Warrants: Affidavits: Probable Cause. Omissions in an affidavit used to obtain a search warrant are considered misleading when the omitted information tends to weaken or damage the inferences which can logically be drawn from the facts as stated in the affidavit.

11. Search Warrants: Affidavits: Probable Cause: Police Officers and Sheriffs: Evidence: Proof. If the defendant proves, by a preponderance of the evidence, that the affiant knowingly and intentionally, or with reckless disregard for the truth, included a false or misleading statement or omitted information material to a probable cause finding, then the court examines whether the evidence obtained from the warrant and search was fruit of the poisonous tree. To do this, the court reexamines the affidavit after deleting the false or misleading statement and including the omitted information, and it determines whether, viewed under the totality of the circumstances, it still establishes probable cause. If this reexamination shows that the affidavit does not establish probable cause, then the search warrant is deemed void and the fruits of the search are excluded.

12. Search Warrants: Affidavits: Probable Cause: Appeal and Error. An appellate court reviews for clear error the trial court's findings as to whether the affidavit supporting the warrant contained falsehoods or omissions and whether those were made intentionally or with reckless disregard for the truth. However, an appellate court reviews de novo the determination that any alleged falsehoods or omissions were not necessary to the probable cause finding.

13. Administrative Law: Constitutional Law: Search Warrants. Administrative inspections of residential buildings to ascertain compliance with health and safety codes are significant intrusions upon the interests protected by the Fourth Amendment, and residents who do not consent to such an inspection have a constitutional right to insist that the inspectors obtain a warrant, absent exigent circumstances.

14. Administrative Law: Criminal Law: Probable Cause: Search Warrants. The probable cause necessary to support issuance of an administrative inspection warrant is clearly different from the probable cause necessary to support issuance of a criminal search warrant.

15. Administrative Law: Probable Cause: Search Warrants. Probable cause to issue an inspection warrant exists if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular building.

16.___: ___: ___. Probable cause to issue an administrative inspection warrant does not require a showing that a particular dwelling contains violations of the minimum standards proscribed by the code being enforced.

17. Administrative Law: Public Policy: Probable Cause: Search Warrants. The administrative inspection warrant procedure is designed to guarantee that a decision to search private property is justified by a reasonable governmental interest. But reasonableness is still the ultimate standard. If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted inspection warrant.

18. Administrative Law: Probable Cause: Search Warrants: Evidence. Probable cause to justify issuance of an administrative inspection warrant can be based either on a showing of specific evidence of an existing violation or on a more general showing that reasonable legislative or administrative standards for conducting an area inspection have been satisfied.

19. Administrative Law: Constitutional Law: Public Policy: Probable Cause: Search Warrants. Although there may be sound public policy reasons for requiring inspectors to show that consent to inspect was refused before seeking an administrative inspection warrant, such a prerequisite is neither compelled by the Fourth Amendment nor necessary to establish probable cause.

20. Constitutional Law: Search and Seizure: States. Not every violation of a state law restricting searches is sufficient to show a Fourth Amendment violation.

21. Constitutional Law: Statutes: Evidence. Absent a constitutional violation, a court will normally suppress evidence obtained in violation of a rule or statute only if the governing law provides that remedy.

22. Constitutional Law: Statutes: Search and Seizure: Evidence. In the absence of a constitutional violation, the failure to comply with the ministerial step of seeking consent to inspect under Neb. Rev. Stat. § 29-832 (Reissue 2016) before seeking issuance of an inspection warrant is a technical irregularity that, absent a statute providing otherwise, does not require suppression.

23. Judgments: Appeal and Error. A correct result will not be set aside merely because the wrong reasoning was applied.

24. Ordinances: Statutes: Appeal and Error. When analyzing a municipal ordinance, Nebraska courts apply the same rules of construction as those applied to statutory analysis.

25. Criminal Law: Statutes. A penal statute is to be given a sensible construction in the context of the object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served.

26. Ordinances: Courts. When interpreting an ordinance, a court's analysis begins with the text. When the words are plain, direct, and unambiguous, courts are to give the language its plain and ordinary meaning.

27.___: ___. It is not within the province of the courts to read meaning into an ordinance that is not there or to read anything direct and plain out of an ordinance.

Appeal from the District Court for Douglas County, Leigh Ann Retelsdorf, Judge, on appeal thereto from the County Court for Douglas County, Grant A. Forsberg, Judge.

Jason M. Bruno, Robert S. Sherrets, and James L. Schneider, of Sherrets, Bruno & Vogt, L.L.C., for appellant.

Kevin J. Slimp, Omaha City Prosecutor, and Lindsey L. Bitzes for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

STACY J.

After a bench trial in county court, Kay E. Anderson was found guilty of several misdemeanor violations of a city property maintenance code and was sentenced to probation. He appealed his convictions to the district...