State v. Salvador Rodriguez, 296 Neb. 950

Background

On July 23, 2014, officer Wackler responded to a domestic complaint involving Lori Ezell; Ezell said she had permission to stay at and a key to the home rented by Salvador Rodriguez and Rosa Anguiano.
Later that day Ezell returned from a walk, observed lights on and someone in the garage, and called police; officers found the front door unlocked and conducted a warrantless sweep for any intruder.
During the sweep officers saw two firearms in plain view, one with an apparently defaced serial number; those observations formed the basis for a search warrant obtained July 30, 2014.
Warrant searches of the house recovered approximately 340 grams of methamphetamine (under a basement couch) and drug paraphernalia; defendant was charged with possession with intent to deliver and possession of a defaced firearm.
At trial Ezell testified (without prior 404 notice) that she and Rodriguez used methamphetamine in the basement and that drugs were kept under the couch; the court admitted this testimony as intrinsic to the charged possession offense and declined to give a limiting instruction.
Closing-argument remarks allegedly saying Rodriguez “owned” the house were raised post-trial by affidavit; no transcript or offer of proof of closing argument was preserved in the bill of exceptions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the initial warrantless entry/sweep was unlawful and required suppression of evidence discovered later	Warrantless entry was justified by exigent circumstances (possible burglary/intruder) or by Ezell’s authority to consent	The sweep was a nonconsensual, warrantless entry into a home absent exigent circumstances; subsequent warrants were fruit of the poisonous tree	The sweep was reasonable under the emergency doctrine (possible burglary); suppression was denied
Whether Ezell’s testimony about drug use was inadmissible prior-bad-acts evidence under Neb. Evid. R. 404(2)	Testimony showed continuous possession and use connected to the charged possession offense (intrinsic evidence)	Testimony was prior-bad-acts propensity evidence and required 404 process and limiting instruction	Court held the evidence was intrinsic to the possession charge (continuing offense) and admissible
Whether a limiting instruction was required for the drug-use testimony	Not required because testimony was direct evidence of the charged crime	Required to prevent misuse as propensity evidence under Rule 404(2)	No limiting instruction required; defendant not entitled because evidence was intrinsic
Whether prosecutor’s closing remarks (that defendant owned the house) were misconduct and prejudicial	Remarks (if made) were not outcome-determinative; ownership was not dispositive	Remarks were false and prejudicial; trial counsel objected and was overruled	Not reviewable — no record/transcript or offer of proof in bill of exceptions; allegation supported only by affidavit and thus not considered

Key Cases Cited

State v. McCumber, 295 Neb. 941 (standard of review for motions to suppress)
State v. Eberly, 271 Neb. 893 (emergency doctrine/exigent circumstance standards)
State v. Modlin, 291 Neb. 660 (suppression review principles)
State v. Parnell, 294 Neb. 551 (trial court discretion on relevancy/admissibility)
State v. Rocha, 295 Neb. 716 (warrant requirement exceptions)
State v. Perry, 292 Neb. 708 (emergency doctrine application)
State ex rel. Zander v. District Court, 180 Mont. 548 (officer may search where facts support belief burglary in progress)
Hill v. Com., 18 Va. App. 1 (possible burglary justifies immediate entry to secure premises)
United States v. Selberg, 630 F.2d 1292 (contrast case where warrantless entry was unreasonable)
U.S. v. Towne, 870 F.2d 880 (continuous possession makes temporally separate observations intrinsic rather than other-acts evidence)