State v. Lowery

23 Neb.App. 621

875 N.W.2d 12

State of Nebraska, appellee,

v.Joseph R. Lowery, appellant.

No. A–14–721.

Court of Appeals of Nebraska.

Filed February 23, 2016.

Jose L. Rodriguez, Deputy Scotts Bluff County Public Defender, for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

Pirtle, Riedmann and Bishop, Judges.

Bishop, Judge.

Following a jury trial, the district court for Scotts Bluff County, Nebraska, convicted Joseph R. Lowery of possession with intent to distribute a controlled substance (methamphetamine). Lowery appeals, arguing the district court erred in overruling his motion to suppress evidence. We affirm.

BACKGROUND

On January 8, 2014, the chief of police of Mitchell, Nebraska, Michael Cotant, recognized a green, Chevy pickup truck (with a "14 County, Nebraska" license plate) parked in the driveway of George Valles' home on Center Avenue in Mitchell. Chief Cotant had previously seen the Chevy on several occasions in December 2013 at a trailer park in Mitchell; Valles lived in the trailer park at the time. When Chief Cotant "ran" the Chevy's license plate number, he learned that it was registered to Lowery and another person, with an address in Roseland, Nebraska. On January 9, Chief Cotant followed up on Lowery's name, which he recognized, and learned that Lowery and his brother had warrants out for their arrests for unpaid fines and court costs. Chief Cotant prepared a packet of information containing photographs of Lowery and his brother, the registration information for the Chevy, and copies of the arrest warrants for Lowery and his brother, and left it for Officer Joshua Catlin of the Mitchell Police Department.

When Officer Catlin came on duty the morning of January 10, 2014, he received the packet of information prepared by Chief Cotant. Officer Catlin recognized the description of the Chevy from having seen it prior to that day, and he said he "ran the plate" himself. He drove by the residence on Center Avenue at approximately 8:25 a.m. and observed the Chevy parked on the street in front of the residence. Officer Catlin then contacted Deputy Sheriff David Ojeda of the Scotts Bluff County Sheriff's Department (who had been tasked with finding and arresting Lowery's brother) to see if he would be able to assist Officer Catlin in arresting Lowery. Officer Catlin and Deputy Ojeda met around 9 a.m. in Mitchell and updated each other on the information they had. Deputy Ojeda then had the Chevy's "license plate run" again. Deputy Ojeda was advised by the communications center that there was a protection order on Lowery out of Adams County and that he should use caution because Lowery was known to carry a gun, was violent toward other people, and had fled when the protection order was being served on him. At that point, Officer Catlin went back to the residence to monitor the Chevy, while Deputy Ojeda called for additional assistance.

Law enforcement arrived at the residence around 10 a.m. The group of seven split up and surrounded the residence. Officer Catlin was part of the group that went around to the back of the house. Deputy Ojeda and his group went to the front door. Deputy Ojeda knocked, and Valles' wife answered the door holding a baby. She stated that she lived in the residence. Deputy Ojeda then asked her several times whether Lowery was in the house, and each time she said that she did not know. Deputy Ojeda asked Valles' wife if they could come in, and she motioned them into the house. Once inside, Deputy Ojeda continued to ask Valles' wife about whether Lowery was in the house. At that point, Valles walked into the living room and said he was the owner of the house. Deputy Ojeda asked Valles if Lowery was in the house, and Valles stated that he did not know. At some point, Deputy Ojeda heard on his radio that officers behind the residence saw somebody "peeking through the shades in the back room." Deputy Ojeda asked Valles if Lowery was "in the back of the house," and he said no. Deputy Ojeda told Valles that they had an arrest warrant for Lowery and his brother, that the green Chevy outside was registered to Lowery, that officers had seen someone peeking through the back windows, and that Deputy Ojeda thought Valles was hiding either Lowery or his brother. Valles told Deputy Ojeda he "needed to step outside as he didn't see a warrant." The officers stepped outside, and Deputy Ojeda radioed Officer Catlin to bring the arrest warrants to the front door, which were then shown to Valles. Valles told the officers that no one was in the house but him, his wife, and their child.

After showing Valles the arrest warrants, the officers again entered the house and Valles took them to the back bedroom. How that came to pass is not entirely clear from our record. Officer Catlin testified that officers behind the residence again radioed there was movement in the back bedroom and that because he and Deputy Ojeda could see Valles, his wife, and the baby, Deputy Ojeda told Valles they were going to search and Valles needed to take the officer to the back bedroom. Deputy Ojeda, however, testified that he urged Valles to let them in (as neighbors were starting to come out of their houses and he did not want to make a scene) and that they would arrest Lowery and leave; he said that Valles stepped back inside and started walking to the back of the house and Deputy Ojeda followed him. Either way, officers ended up back inside the house and at the door of the back bedroom. Officer Catlin testified that Valles knocked on the door and said, " ‘If there is anybody in there, open the door, come out.’ " At that point, Lowery came out of the room and was arrested and taken outside to a patrol car. Deputy Ojeda testified that Valles knocked on the door, and someone inside said, " ‘Who is it?’ " Valles responded, " ‘It's the cops.’ " Then Lowery opened the door and was arrested.

After Lowery was arrested, Deputy Ojeda asked Valles about another room, which was locked (earlier when Deputy Ojeda was on the way to the back bedroom where Lowery was found, he had tried to turn the doorknob to this other room, but it was locked). Valles said it was his room, he always kept it locked, and nobody ever went in there. Officers told Valles to get the key and open the door; the officers apparently thought Lowery's brother might be in there. Valles retrieved the key and unlocked the door. Upon entering the room, officers saw in plain view drug paraphernalia and "designer baggies" known to be commonly used to package controlled substances; they also saw a shotgun case and handgun in the closet when checking to make sure no one was hiding in the closet. This evidence formed the basis for a later search warrant. Law enforcement subsequently executed the search warrant that same day and found drugs, paraphernalia, and other incriminating evidence in Valles' room, the room Lowery had been in, and other areas of the home. Among the items found in the room Lowery had been in was more than 10 grams of methamphetamine in a wood box under the bed.

Lowery was charged with possession with intent to distribute a controlled substance (methamphetamine), a Class II felony.

Lowery filed a motion to suppress all relevant evidence on the ground that it had been obtained in violation of the Fourth Amendment. At the hearing on the motion to suppress, Lowery specifically challenged the two initial searches (the search for Lowery and the search of Valles' locked bedroom) and argued that the affidavit offered in support of the search warrant was inadequate, in that it was based on the fruits of those prior, allegedly illegal searches. At the hearing on the motion, Officer Catlin, Deputy Ojeda, and Chief Cotant generally testified to the facts set forth above, and copies of the search and arrest warrants were received into evidence.

The district court overruled Lowery's motion to suppress. The court determined that the officers' initial entry into the house was proper because a resident of the house, Valles' wife, let them in. The court also determined that the reentry into the house to search for Lowery was proper because officers had an arrest warrant for him and reasonably believed that he was in the house. However, the court determined that the search of Valles' locked room was unlawful, that the fruits of that search formed the basis for the search warrant, and that the good faith exception did not apply. Nevertheless, the court overruled Lowery's motion because he failed to prove that he had standing to challenge the search of Valles' locked room; the court found the evidence insufficient to show that Lowery was an overnight guest, but that even if he was an overnight guest, he had no expectation of privacy in Valles' locked room, which is where the contraband was found that formed the basis for the warrant.

At trial, Officer Catlin, Deputy Ojeda, and Chief Cotant testified. Their testimony was generally consistent with what they had testified to at the hearing on the motion to suppress, though Officer Catlin's testimony was geared toward other aspects of the investigation, such as obtaining the search warrant and the collection of evidence; Deputy Ojeda and Chief Cotant provided more of the background information. During Deputy Ojeda's testimony, Lowery objected on the grounds raised in his earlier motion to suppress, which objection was overruled, but Lowery was granted a continuing objection.

Lowery again objected during Officer Catlin's later testimony and added to his continuing objection the alleged insufficiency of the affidavit for the search warrant. Other officers testified regarding their involvement in the case, including the execution of the search warrant, the identification of the drugs, and the various indicia of drug distribution. Thereafter, the State rested.

Lowery then put on his defense, which consisted of the testimony of a friend, Lowery's brother, and Lowery. Lowery's brother testified that Valles was a...