State v. Salvador Rodriguez, 296 Neb. 950

Background

On July 23, 2014, police (Officers Wackler and Heath) responded after Lori Ezell — who had a key and was staying at the defendants’ home while the owners were out of town — reported seeing someone in the garage and lights on after she and her child returned from a walk.
Officers entered the unlocked/ajar home to check for an intruder, searched areas where a person could hide, and observed two firearms in plain view; one handgun’s serial number appeared defaced.
Based on the defaced firearm observations, police obtained search warrants (July 30 and Aug 2) and seized approximately 340 grams of methamphetamine from under a basement couch and other locations; defendant was charged with possession with intent to deliver and possession of a defaced firearm.
At trial, Ezell testified (without pretrial notice under Neb. Evid. R. 404) that she and defendant used meth in the basement and that the drugs were kept under the basement couch; defense sought suppression of evidence and later objected to admission/usage of that testimony under Rule 404.
The trial court denied suppression (finding exigent circumstances and/or consent) and admitted Ezell’s testimony as intrinsic to the charged continuing possession offense; defendant was convicted of possession with intent to deliver and appealed, asserting errors as to suppression, admission of drug-use testimony (and lack of limiting instruction), and prosecutorial closing remarks about ownership of the house.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the initial warrantless entry/search constitutional under the emergency (exigent) doctrine?	Officers reasonably believed a burglary/intruder might be present given report of lights on, garage activity, and unlocked/ajar door — emergency justified entry.	Entry was unlawful; facts did not establish an immediate need for assistance or reasonable belief of burglary in progress.	Held: Entry was justified under the emergency doctrine; trial court’s factual findings not clearly erroneous and de novo review supports exigency.
If warrantless search was unlawful, should evidence later seized under warrants be suppressed as fruit of the poisonous tree?	N/A (State argues search lawful; therefore later warrants and seizures valid).	Evidence should be suppressed if initial entry unlawful.	Held: Because initial entry was lawful exigency, later warrants and seizures were not tainted; suppression denied.
Was Ezell’s testimony about prior/other drug use inadmissible under Neb. Evid. R. 404(2) as propensity evidence?	State: testimony was direct/intrinsic evidence of continuing possession around the charged date, not other-acts evidence.	Defendant: testimony described prior bad acts and should have been excluded or admitted only under 404(3) with limiting instruction.	Held: Testimony was intrinsic to continuing-possession charge (not 404 other-acts); admission was not an abuse of discretion and no limiting instruction required.
Did prosecutorial remarks in closing (that defendant owned the house) constitute reversible misconduct?	N/A (State: remarks, if made, were not prejudicial; ownership not outcome-determinative).	Defense: prosecutor misstated ownership and prejudiced jury; trial court overruled objections.	Held: Cannot review because closing argument not in record/bill of exceptions; affidavit outside bill insufficient — issue forfeited.

Key Cases Cited

State v. Eberly, 271 Neb. 893 (discussing emergency doctrine and exigent-circumstances standard)
State v. Perry, 292 Neb. 708 (framework for exigent-circumstances exceptions)
Hill v. Com., 18 Va. App. 1 (officers reasonably may enter when door ajar and burglary possible)
United States v. Selberg, 630 F.2d 1292 (contrasting circumstances where warrantless entry was unreasonable)
U.S. v. Towne, 870 F.2d 880 (continuous possession evidence is intrinsic, not 404(b) other-acts)
State v. Freemont, 284 Neb. 179 (discussed temporal connection and analysis of possession evidence)