State v. Borst

281 Neb. 217

795 N.W.2d 262

STATE of Nebraska, appellee,

v.Jay

v. BORST, appellant.

No. S–09–1084.

Supreme Court of Nebraska.

March 18, 2011.

Syllabus by the Court

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 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.

2. Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions, which must be strictly confined by their justifications.

3. Warrantless Searches. The warrantless search exceptions recognized by the Nebraska Supreme Court include: (1) searches undertaken with consent or with probable cause, (2) searches under exigent circumstances, (3) inventory searches, (4) searches of evidence in plain view, and (5) searches incident to a valid arrest.

4. Warrantless Searches: Search and Seizure: Proof. In the case of a search and seizure conducted without a warrant, the State has the burden of showing the applicability of one or more of the exceptions to the warrant requirement.

5. Police Officers and Sheriffs: Search and Seizure: Evidence. A warrantless 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.

6. Warrants: Affidavits: Evidence. Ordinarily, evidence from which the court can determine that an arrest warrant was legally valid will consist of the arrest warrant and supporting affidavit; however, the affidavit requirement will be forgiven where the record establishes the “personal knowledge exception.”

7. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence admitted by a trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict.

Patrick J. Boylan, Chief Deputy Sarpy County Public Defender, and Mandy M. Gruhlkey, Senior Certified Law Student, for appellant.Jon Bruning, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.MILLER–LERMAN, J.

NATURE OF CASE

Jay V. Borst appealed his convictions in the district court for Sarpy County for manufacture of a controlled substance (marijuana) and possession of a controlled substance (methamphetamine) to the Nebraska Court of Appeals. The Court of Appeals determined that although the actual arrest warrants were not in evidence, the testimony of law enforcement officers that they had outstanding arrest warrants was sufficient to establish that the officers had valid arrest warrants and therefore a lawful right to be in Borst's home when they saw the controlled substances in plain view. The Court of Appeals, in a memorandum opinion filed June 21, 2010, concluded that the district court did not err when it overruled parts of Borst's motion to suppress, and the Court of Appeals therefore affirmed Borst's convictions.

We granted Borst's petition for further review. We reverse the decision of the Court of Appeals, and we remand the cause to the Court of Appeals with directions to reverse Borst's convictions and to remand the cause to the district court for a new trial on both charges.

STATEMENT OF FACTS

On July 2, 2008, three officers from the Sarpy County sheriff's office came to Borst's home to serve outstanding misdemeanor arrest warrants on Borst. While at the home, the officers observed, in plain view, a growing marijuana plant and a syringe containing methamphetamine. Borst told the officers that both items belonged to him. Later, after he had been taken to a holding cell and given Miranda warnings, Borst stated that he had started growing the marijuana plant from seeds and that he had purchased the methamphetamine earlier in the day. Borst was charged with manufacture of a controlled substance (marijuana) and possession of a controlled substance (methamphetamine).

Prior to trial, Borst moved to suppress the physical evidence seized from his home and the statements he made to the officers. He asserted in his motion to suppress that there were no exigent circumstances permitting the officers to enter his home without a search warrant, that the officers did not have a valid arrest warrant for him, and that the officers began an exploratory search after they illegally entered his home to arrest him without a valid warrant.

Following a suppression hearing, the district court found that the officers had a lawful right to be in Borst's home, that they had an active warrant for Borst's arrest, and that they were serving the warrant in a proper manner. The court's findings were based on the officers' testimony that they had outstanding traffic-related arrest warrants for Borst. The State did not offer the actual arrest warrants into evidence. The court overruled Borst's motion to suppress the physical evidence—specifically, the marijuana plant and the syringe—seized from the home. The court sustained the motion to suppress the statements Borst made in the home, because he was in custody and had not been given Miranda warnings. However, the court ruled that the statements Borst made at the jail regarding controlled substances after receiving Miranda warnings were admissible.

Following a bench trial, Borst was found guilty of the charged offenses, and the court sentenced him to 20 months' to 4 years' imprisonment for each offense and ordered the sentences to be served concurrently. Borst appealed his convictions to the Court of Appeals and claimed, inter alia, that the district court erred when it overruled parts of his motion to suppress. Borst argued that the court's findings were erroneous, because the State did not offer the arrest warrants as evidence at the suppression hearing or at trial, the court never examined the warrants, and thus the State failed to establish the validity of the arrest warrants, which, in turn, would have justified the warrantless search. The Court of Appeals rejected Borst's arguments. The Court of Appeals noted that although the arrest warrants were not offered or received into evidence, testimony by the officers was sufficient to establish that “there were three valid outstanding warrants for Borst.” The Court of Appeals rejected Borst's other arguments and affirmed his convictions.

Borst filed a petition for further review. We granted the petition.

ASSIGNMENT OF ERROR

Borst asserts on further review that the Court of Appeals erred when “it affirmed the trial court's overruling of the Motion to Suppress because the [S]tate never offered the arrest warrants it used to justify [Borst's] arrest.”

STANDARDS OF REVIEW

In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, we apply a two-part standard of review. Regarding historical facts, we review the trial court's findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that we review independently of the trial court's determination. State v. Garcia, 281 Neb. 1, 792 N.W.2d 882 (2011).

ANALYSIS

The State Was Required to Offer the Arrest Warrants and Affidavits Into Evidence in Order for the District Court to Determine Whether the Officers Had Valid Arrest Warrants and Therefore Had a Legal Right to Be in Borst's Home.

Borst claims that the Court of Appeals erred when it affirmed the district court's order that overruled his motion to suppress both the physical evidence that was seized from his home and the statements he made in the holding cell. Borst asserts that because the State relied on the officers' testimony that they had outstanding warrants rather than offering the actual warrants into evidence, the State failed to prove an exception justifying a warrantless search of his home. We agree that in order to determine whether the officers had a legal right to be in Borst's home, it was necessary for the State to offer the arrest warrants and supporting affidavits into evidence. Without the arrest warrants and affidavits in evidence, the court could not determine their validity. We conclude therefore that the district court erred when it overruled Borst's motion to suppress the physical evidence seized from his home and the statements he made in the holding cell and that the Court of Appeals erred when it affirmed the ruling.

There is no dispute in this case that the officers did not have a search warrant to search Borst's home. Therefore, this case must be analyzed as a warrantless search and seizure case. We have stated that warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions, which must be strictly confined by their justifications. State v. Gorup, 279 Neb. 841, 782 N.W.2d 16 (2010). The warrantless search exceptions recognized by this court include: (1) searches undertaken with consent or with probable cause, (2) searches under exigent circumstances, (3) inventory searches, (4) searches of evidence in plain view, and (5) searches incident to a valid arrest. Id. In the case of a search and seizure conducted without a warrant, the State has the burden of showing the applicability of one or more of the exceptions...