State v. Salvador Rodriguez
296 Neb. 950
| Neb. | 2017Background
- On July 23, 2014, officer Wackler responded to a domestic disturbance involving Lori Ezell, who said she had permission to stay at a house rented by Salvador Rodriguez and Rosa Anguiano and kept belongings and a key there.
- Ezell called later that day fearing an intruder after she and her child returned and observed lights on, an open garage, and her van doors open; she asked police to check the house.
- Officers entered the unlocked house, conducted a protective sweep of places a person could hide, and observed two firearms in plain view; one pistol’s serial number appeared partially scratched off.
- Based on the altered firearms, officers obtained a warrant on July 30, 2014, and subsequent searches pursuant to warrants uncovered approximately 340 grams of methamphetamine under a basement couch and other locations.
- Rodriguez was charged with possession of methamphetamine with intent to deliver and possession of a defaced firearm; convicted of the meth offense and acquitted of the firearm charge. He appealed, arguing (1) the initial warrantless entry/search was unlawful, (2) testimony about his prior drug use was inadmissible other-acts evidence and lacked a limiting instruction, and (3) prosecutorial misconduct in closing argument.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Rodriguez) | Held |
|---|---|---|---|
| Validity of initial warrantless entry/search | Entry was justified by exigent circumstances (possible burglary/intruder) and/or consent via Ezell | Entry was nonconsensual and lacked exigent circumstances, so evidence was fruit of unlawful search | Warrantless protective sweep justified under emergency/burglary-in-progress reasoning; suppression denied |
| Admissibility of Ezell’s testimony about drug use under house basement | Testimony was direct evidence of ongoing possession contemporaneous with charged period (intrinsic), not "other acts" | Testimony was prior bad-acts evidence under Neb. Evid. R. 404(2) and required pretrial notice and a 404(3) hearing | Court held testimony was intrinsic to the charged, continuing possession offense and admissible |
| Failure to give limiting instruction on drug-use testimony | No limiting instruction necessary because testimony was intrinsic; jury instruction not required | Lack of limiting instruction allowed jury to use evidence for propensity, prejudicing Rodriguez | No reversible error; limiting instruction not required for intrinsic evidence |
| Prosecutorial misstatement in closing (that Rodriguez owned the house) | Even if misstated, ownership was not material and did not prejudice jury | Misstatement was prejudicial and defense corrected it at trial; warrants new trial | Not reviewable on appeal because closing argument not in bill of exceptions and supporting affidavit was not part of the record; no relief granted |
Key Cases Cited
- State v. McCumber, 295 Neb. 941 (appellate review standard for Fourth Amendment suppression rulings)
- State v. Eberly, 271 Neb. 893 (emergency doctrine/exigent-circumstances protective sweep analysis)
- State v. Perry, 292 Neb. 708 (police entry exigency principles)
- U.S. v. Towne, 870 F.2d 880 (continuing possession: evidence of possession on dates other than charged date can be intrinsic)
- State v. Freemont, 284 Neb. 179 (discussion of when possession evidence is intrinsic versus other-acts evidence)