State v. Valdez

562 N.W.2d 64, 5 Neb. Ct. App. 506, 1997 Neb. App. LEXIS 39
CourtNebraska Court of Appeals
DecidedMarch 4, 1997
DocketA-96-104, A-96-299
StatusPublished
Cited by13 cases

This text of 562 N.W.2d 64 (State v. Valdez) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Valdez, 562 N.W.2d 64, 5 Neb. Ct. App. 506, 1997 Neb. App. LEXIS 39 (Neb. Ct. App. 1997).

Opinions

Mues, Judge.

Emilio D. Valdez and Patricia Valdez appeal their convictions for possession of a controlled substance with the intent to manufacture, distribute, deliver, or dispense the controlled substance, in violation of Neb. Rev. Stat. § 28-416(l)(a) (Cum. Supp. 1994). Both Emilio and Patricia assert that the district court erred by failing to sustain their motions to suppress.

I. STATEMENT OF FACTS

In January 1995, law enforcement officers set up a surveillance of the home of Emilio D. Valdez and Patricia Valdez, whom they suspected of cocaine trafficking. • The surveillance was conducted in accordance with a plan established by Officer Mark Overman. In preparation for the surveillance, a briefing was held during which Overman informed the other officers that a warrant to search the Valdez home was being prepared, but that more information was needed to establish the requisite probable cause.

The plan, according to the briefing, was to stop any of six named suspects, whom the officers suspected of drug involvement, if one of the suspects was observed stopping briefly at the Valdez residence. The stop of the suspect was to take place regardless of whether the suspect violated any traffic laws or behaved in a suspicious manner. The stop was to occur well away from the Valdez residence to prevent the Valdezes from seeing the stop and then destroying evidence. Once the suspect was stopped, the officers were to request permission to search the suspect’s vehicle. However, a search was to occur regardless of whether consent was given. If drugs were found, the suspect was to be asked where the drugs came from and specifically if the drugs came from the Valdez house. Miranda warnings were not to be read to the suspect, as the police were “not interested in these people implicating themselves,” but only in what [509]*509the suspect would say regarding the Valdezes. The plan then provided:

If we believe that the drugs were purchased from the [Valdez] residence, then the house custody team will take custody of the house, to prevent the destruction of evidence. NO SEARCHING IS TO TAKE PLACE UNTIL A WARRANT IS OBTAINED!! Anyone that is at the house will be contacted by the team, and informed that a warrant is being sought. They are to be informed that they are not under arrest at this time, but since we will be seeking a warrant to search Emilio and Patricia, and probably anyone else that we find at the house, then anyone there will not be free to go unless they consent to be searched before the warrant arrives. Searches of parties suspected of carrying drugs should be strip searches, conducted in accordance with existing policy.

(Emphasis in original.)

On March 17, 1995, during a surveillance of the Valdez home, Nancy Herman, one of the six named suspects, was observed making an 8-minute stop at the Valdez residence. The officers then stopped Herman approximately six blocks from the Valdez home at a stop sign. Overman, who drew his weapon upon exiting his vehicle, stated that Herman appeared to be trying to conceal something under her seat. Overman replaced Ids gun in his holster, Herman was removed from her vehicle, and Overman searched her vehicle without consent. Overman found what appeared to be cocaine in Herman’s vehicle. Overman told Herman that she had just been seen leaving the Valdez residence and asked Herman if she obtained “that cocaine from Emilio,” to which Herman responded, “ ‘Yeah.’ ” Herman was then arrested and placed into custody. Herman at no time made any comment regarding Patricia.

After stopping Herman and finding the suspected cocaine, Overman radioed other officers and directed them to enter and take custody of the Valdez residence. Overman testified that he believed impounding the Valdez house was necessary because of “how fast word travels when we’re doing something like this.” The officers entered the house, and within a few minutes Overman arrived and spoke with both Emilio and Patricia. [510]*510Overman told the Valdezes that the police were taking custody of their home while a search warrant was being obtained. Overman also informed the Valdezes that they were not under arrest, but they were not free to leave unless they would consent to “a full search of their person and any vehicle they wanted to take.” Overman then left the premises to complete the affidavit for a search warrant.

Prior to the search warrant’s arriving, Officer Stephen Bonds performed a sweep through the house to see if additional people were in the home. No other searching was conducted prior to the arrival of the warrant. However, during the initial sweep, Bonds did observe Patricia placing something underneath some clothes.

The affidavit in support of the search warrant which Overman prepared contained information that several informants, both citizen and otherwise, had indicated that Emilio was a cocaine dealer. These references dated back to January 1990, with the most recent occurring in January 1995. On January 31, an informant stated that he had recently observed certain activity at the Valdez residence and that “he knows a drug deal when he sees one, and this was a drug deal.” Another recent reference was made by a person with drug charges who was considering working as a confidential informant. This informant stated on January 19, 1995, that he had personally purchased cocaine from Emilio at the Valdez residence within the past 3 months. All other references which related that Emilio was dealing cocaine occurred at least 1 year prior to the affidavit.

Only three reports mentioned Patricia. One stated that Patricia was engaged to Emilio. Another stated that Patricia was “really hooked on cocaine.” The third reported that on April 13, 1990, police searched the home of Patricia and her then boyfriend and that Patricia testified during the trial of the boyfriend for possession of cocaine that cocaine found in the home actually belonged to her.

Other information contained in the affidavit concerned the frequent stops of the six suspects with drug backgrounds. The affidavit stated that each of the six had made stops at the Valdez residence within the 3 months prior to the affidavit. Although [511]*511many of these stops were “brief’ stops which were indicative of drug deals, there was no evidence that any drug deals or illegal activity had taken place during these stops. The affidavit also included a recitation of Herman’s stop and the fact that Herman admitted that the alleged cocaine had come from Emilio. Overman did not mention in the affidavit that Herman’s stop was based on only the observation of her vehicle stopping at the Valdez home, nor did he note that he drew his gun during the stop. There was also nothing in the affidavit regarding the entry and impoundment of the Valdez residence or any information obtained as a result of that entry and impoundment.

A search warrant was signed by a judge and entered at approximately 6:37 p.m. By the time Overman returned to the Valdez house with the warrant, the Valdezes had been detained and their home impounded for approximately 1 hour 25 minutes. After Overman returned to the Valdez residence, Emilio was informed of his Miranda rights by Officer Patrick Rotert. Following Emilio’s being given his Miranda rights, Overman told Emilio that the officers would be searching for drugs and asked him where they would find them.

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State v. Valdez
562 N.W.2d 64 (Nebraska Court of Appeals, 1997)

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Bluebook (online)
562 N.W.2d 64, 5 Neb. Ct. App. 506, 1997 Neb. App. LEXIS 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-valdez-nebctapp-1997.