§ 29-411 — Warrants and arrests; powers of officer; direction for executing search warrant; damages

Nebraska § 29-411

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

In executing a warrant for the arrest of a person charged with an offense, or a search warrant, or when authorized to make an arrest for a felony without a warrant, the officer may break open any outer or inner door or window of a dwelling house or other building, if, after notice of his office and purpose, he is refused admittance; or without giving notice of his authority and purpose, if the judge or magistrate issuing a search warrant has inserted a direction therein that the officer executing it shall not be required to give such notice, but the political subdivision from which such officer is elected or appointed shall be liable for all damages to the property in gaining admission. The judge or magistrate may so direct only upon proof under oath, to his satisfaction that the property sought may be easily or quickly destroyed or disposed of, or that danger to the life or limb of the officer or another may result, if such notice be given; but this section is not intended to authorize any officer executing a search warrant to enter any house or building not described in the warrant.

Legislative History

Source: G.S.1873, c. 58, § 293, p. 791; R.S.1913, § 8947; C.S.1922, § 9971; C.S.1929, § 29-411; R.S.1943, § 29-411; Laws 1965, c. 149, § 1, p. 491. Annotations: Given the facts viewed most favorably to the plaintiff, the defendant officer's statement identifying himself as a sheriff's deputy was insufficient to announce his office and purpose: The officer was dressed in jeans, a sweatshirt, and a ball cap, did not show his badge, displayed a weapon upon entry into the home, and failed to produce a copy of the warrant before or after his forced entry into the home. Waldron v. Roark, 292 Neb. 889, 874 N.W.2d 850 (2016). Following a knock and announcement, the requirement that officers executing a search warrant be "refused admittance," within the meaning of this section, is not restricted to an affirmative refusal, but encompasses circumstances that constitute constructive or reasonably inferred refusal. State v. Kelley, 265 Neb. 563, 658 N.W.2d 279 (2003). This section codifies the common-law requirement of knocking and announcing when serving a search warrant prior to breaking into a person's dwelling. State v. Kelley, 265 Neb. 563, 658 N.W.2d 279 (2003). Provisions in warrants allowing no-knock search warrants offend neither U.S. Const. amend. IV nor Neb. Const. art. I, sec. 7. State v. Eary, 235 Neb. 254, 454 N.W.2d 685 (1990). The provision allowing for no-knock search warrants does not offend the fourth amendment to the Constitution of the United States. State v. Meyer, 209 Neb. 757, 311 N.W.2d 520 (1981). Officer's conduct in making an arrest under the apparent authority of sections 29-404.02 and 29-411 did not rise to the level of conscious or flagrant misconduct requiring prophylactic exclusion of the defendant's statements. State v. Smith, 209 Neb. 505, 308 N.W.2d 820 (1981). Where defendant's erratic driving and subsequent conduct is sufficient to give police probable cause to believe defendant was under the influence of drugs or liquor, it is permissible for the police to pursue defendant into a private dwelling. State v. Penas, 200 Neb. 387, 263 N.W.2d 835 (1978). The exercise of the right hereunder to break into a building is subject to the condition that the officer has probable cause to believe the person sought is within the building. State v. Russ, 193 Neb. 308, 226 N.W.2d 775 (1975). Where a peace officer has reasonable cause to believe a sale of narcotics is taking place inside a residence, exigent circumstances may justify his entering the residence to make arrest without prior disclosure of his authority and purpose. State v. Brooks, 189 Neb. 592, 204 N.W.2d 86 (1973). The Fourth Amendment to the United States Constitution prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest except where there are exigent circumstances present. This section noted by the court as being similar to the New York law it found unconstitutional. Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371 (1980).