State v. Boye, A-16-545

Background

On Jan 2, 2015, police executed a search warrant at a Furnas Street residence occupied by Jesse Boye, his ex-wife Tracie, and his father; methamphetamine and drug paraphernalia were found in the common area and in the bedroom Boye shared with Tracie.
Boye was charged with possession of methamphetamine with intent to deliver (Class II felony) and alleged as a habitual criminal; he moved to suppress the seized evidence as violating the Fourth Amendment.
At a suppression hearing, officers testified the warrant targeted firearm parts after a December 30 disturbance; during execution officers observed drugs in plain view and found scales, baggies, residue, and paraphernalia in the bedroom.
Tracie testified she and Boye had been selling methamphetamine to support themselves; Boye denied ownership of the drugs and said the bedroom items belonged to Tracie.
The district court denied the suppression motion, a jury convicted Boye of possession with intent to deliver, the trial court found him a habitual criminal, and sentenced him to 10–12 years (to run consecutively to another sentence). Boye appealed.

Issues

Issue	Boye's Argument	State's Argument	Held
Denial of motion to suppress evidence	Warrant search exceeded authority; seized drugs not authorized by warrant	Drugs were in plain view and found in areas officers could lawfully search under warrant for firearm parts	Suppression issue waived because Boye failed to renew Fourth Amendment objection at trial; motion denial not preserved
Cross-examination of State witness (Tracie) about plea/sentencing	Defense should be allowed to probe Tracie's bias/possible plea/sentencing concessions to test credibility	Disclosure of the class/penalty of Tracie’s disposition would reveal Boye’s charge level; court limited inquiry to avoid opening door to other information	Court properly limited questioning; defense chose not to pursue other credibility lines; no error shown
Sufficiency of the evidence for intent to deliver	Amount of meth consistent with personal use; officer testimony inconsistent	Evidence of multiple baggies, scale, packaging, and Tracie’s testimony about selling supported intent to deliver	Viewing evidence in prosecution’s favor, a rational juror could find intent to deliver; conviction affirmed
Excessive sentence / consecutive habitual terms	Consecutive habitual sentences produce disproportionate punishment (combined long term)	Each sentence is discrete; the 10-year minimum was mandatory and within statutory limits; consecutive sentencing is discretionary	Sentence (10–12 years, consecutive) is within statutory limits and not an abuse of discretion

Key Cases Cited

State v. Jones, 293 Neb. 452, 878 N.W.2d 379 (standard for reviewing sufficiency of evidence in criminal convictions)
State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (preservation rule: must renew suppression objection at trial to preserve Fourth Amendment claim)
State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (sentencing review: abuse of discretion standard and factors to consider)
State v. Nevels, 235 Neb. 39, 453 N.W.2d 579 (minim um portion of indeterminate sentence measures severity)
State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (pronounced sentence controls when written order differs)
State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (pronounced terms prevail over truth-in-sentencing advisements)
State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (consecutive habitual sentence with mandatory term not cruel or unusual)