Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/03/2023 09:10 AM CDT
- 415 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. SIMONS
Cite as 315 Neb. 415
State of Nebraska, appellee, v.
Charles J. Simons, appellant.
___ N.W.2d ___
Filed November 3, 2023. No. S-23-056.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear
error. Whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently
of the trial court’s determination.
2. Constitutional Law: Search and Seizure: Appeal and Error. An
appellate court applies a two-part analysis when reviewing whether a
consent to search was voluntary. As to the historical facts or circumstances leading up to a consent to search, the appellate court reviews
the trial court’s findings for clear error. However, whether those facts
or circumstances constituted a voluntary consent to search, satisfying
the Fourth Amendment, is a question of law, which the appellate court
reviews independently of the trial court. And where the facts are largely
undisputed, the ultimate question is an issue of law.
3. Statutes: Appeal and Error. Statutory interpretation is a question
of law, which an appellate court reviews independently of the lower
court’s determination.
4. Constitutional Law: Search and Seizure. The Fourth Amendment to
the U.S. Constitution and article I, § 7, of the Nebraska Constitution
prohibit unreasonable searches and seizures.
5. Constitutional Law: Search and Seizure: Evidence. Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment
cannot be used in a criminal proceeding against the victim of the illegal
search and seizure.
- 416 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. SIMONS
Cite as 315 Neb. 415
6. Search and Seizure. Whether a search is reasonable is determined by
assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for
the promotion of legitimate governmental interests.
7. Warrantless Searches: Search and Seizure: Probable Cause. While
searches and seizures conducted pursuant to a warrant supported by
probable cause are generally considered reasonable, warrantless searches
are considered per se unreasonable, subject to only a few specific exceptions that must be strictly confined by their justifications.
8. Warrantless Searches: Probable Cause: Probation and Parole. One
exception to the warrant requirement is when special needs, beyond the
normal need for law enforcement, make the warrant and probable-cause
requirements impracticable, and a probation setting is an example of
such a special need.
9. Warrantless Searches. A search undertaken with consent is a recognized exception to the warrant requirement.
10. Constitutional Law: Search and Seizure: Duress. To be effective
under the Fourth Amendment, consent to a search must be a free and
unconstrained choice, and not the product of a will overborne.
11. Warrantless Searches: Duress. Consent for a warrantless search must
be given voluntarily and not as a result of duress or coercion, whether
express, implied, physical, or psychological.
12. Search and Seizure: Waiver: Appeal and Error. If the State fails
to raise the good faith exception to the exclusionary rule on appeal, it
waives it.
13. Sentences: Legislature: Probation and Parole. The power of a court to
impose probation must be strictly construed from the applicable statutes,
because the power to fix criminal punishment is vested in the legislative
branch and probation is a sentence.
14. Statutes: Legislature: Intent. In interpreting a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
15. Statutes: Appeal and Error. An appellate court will not resort to interpretation of statutory language to ascertain the meaning of words which
are plain, direct, and unambiguous.
16. Statutes. An appellate court will not read meaning into a statute that is
not there or read anything direct and plain out of a statute.
17. ____. All statutes in pari materia must be taken together and construed
as if they were one law.
18. ____. To the extent there is a conflict between two statutes, the specific
statute controls over the general statute.
- 417 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. SIMONS
Cite as 315 Neb. 415
19. Criminal Law: Statutes. Penal statutes must be strictly construed and
are considered in the context of the object sought to be accomplished,
the evils and mischiefs sought to be remedied, and the purpose sought
to be served.
20. Constitutional Law: Statutes. Where a statute is susceptible of two
constructions, one of which renders it constitutional, and the other
unconstitutional, it is the duty of the court to adopt the construction
which, without doing violence to the fair meaning of the statute, would
render it valid.
21. Statutes: Words and Phrases. The general rule is that in the construction of statutes, the word “shall” is considered mandatory and inconsist
ent with the idea of discretion.
22. Probation and Parole: Time. The Nebraska Probation Administration
Act expressly authorizes the extension of the original term of probation
under only two circumstances.
23. Sentences: Probation and Parole. Noncompliance to the degree of
absconsion suggests that a probationer has ceased serving his or her
post-release supervision sentence.
24. Probation and Parole: Time. The Nebraska Probation Administration
Act does not authorize an extension of the original probationary term
based on the mere facts that a complaint for revocation has been filed
and the revocation hearing cannot reasonably occur before the end of the
probation term to determine whether a violation occurred.
25. Search and Seizure. If consent to a search is granted only in submission
to a claim of lawful authority, the consent is invalid.
26. Double Jeopardy: Evidence: New Trial: Appeal and Error. The
Double Jeopardy Clause does not forbid a retrial so long as the sum of
all the evidence admitted by a trial court, whether erroneously or not,
would have been sufficient to sustain a guilty verdict.
Appeal from the District Court for Madison County: James
G. Kube, Judge. Reversed and vacated, and cause remanded
for further proceedings.
Chelsey R. Hartner, Chief Deputy Madison County Public
Defender, for appellant.
Michael T. Hilgers, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
- 418 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. SIMONS
Cite as 315 Neb. 415
Freudenberg, J.
INTRODUCTION
The defendant appeals from his conviction of possession of
a controlled substance, asserting that the search leading to the
discovery of the controlled substance was unlawful and that the
evidence should have been suppressed. The district court found
the search was lawful because it was conducted pursuant to
the terms of the defendant’s probation, which the district court
had pronounced were extended after the original probation
term before conducting a hearing on an information to revoke
probation. Because the Nebraska Probation Administration Act
(the Act) 1 does not permit the increase of the term of probation
to which the offender was sentenced before a hearing upon
proper notice where the violation of probation is established
by clear and convincing evidence, 2 we reverse and vacate, and
remand for further proceedings.
BACKGROUND
Procedural History
In April 2019, the district court found Charles J. Simons
guilty of felony and misdemeanor charges. Simons was
sentenced to an 18-month probation term commencing on
March 19, 2020. The scheduled end date of his probation was
September 19, 2021. As a condition of probation, Simons
agreed to voluntarily submit to reasonable searches of his
person, residence, and vehicle at the request of his probation officer.
In July 2021, the State filed an “Information for Revocation
of Probation” after Simons was arrested for driving under
the influence of drugs. On August 30, Simons appeared for
arraignment and requested court-appointed counsel, which the
district court granted. The district court scheduled further
1
Neb. Rev. Stat. §§ 29-2246 to 29-2269 (Reissue 2016 & Cum. Supp.
2018).
2
See § 29-2267.
- 419 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. SIMONS
Cite as 315 Neb. 415
arraignment for September 16, only days before the end of
Simons’ term of probation. Before adjourning, the district
court informed Simons he remained on probation subject to his
probation conditions and requirements. Simons responded that
he understood. Simons subsequently requested a continuance
for an additional 30 days, which the district court granted to
October 21.
At the October 2021 hearing, Simons denied the State’s
allegations in the information for revocation of his probation. The district court scheduled an evidentiary hearing for
November. Then the district court, although the end date
of Simons’ sentenced term of probation was past, informed
Simons, “I’m not going to set a bond for you, I’m just going
to remind you that you’re still under the requirements of the
probation order that I entered previously.” Simons responded
that he understood.
In 2021 and 2022, the district court granted several more
motions by Simons to continue the revocation hearing. While
its precise date is not specified in the record, the parties indicated at oral argument that the evidentiary hearing eventually
occurred in January 2023.
Search of Simons’ Bedroom
On January 7, 2022, after the end date of Simons’ original
sentenced term of probation and during the pendency of the
complaint for revocation of probation in connection to the
alleged driving under the influence, two probation officers,
Amy Kraft and Chad Dachtler, went to the house of Simons’
parents where Simons was residing to conduct a probation
search. In testimony at the hearing on the motion to suppress
in this matter, Kraft testified that she believed that Simons
was “ordered to comply with the search” and that a failure to
do so would have resulted in custodial sanctions.
Upon arrival at Simons’ residence, Kraft asked Simons if the
probation officers could come inside the home. Simons agreed.
Once inside, Kraft asked Simons: “‘Why don’t you show
- 420 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. SIMONS
Cite as 315 Neb. 415
me where you stay[?]’” There was no testimony concerning
any verbal response from Simons. Simons escorted Kraft and
Dachtler to his bedroom. Kraft and Dachtler conducted a search
of the bedroom and found marijuana, marijuana paraphernalia,
and a glass pipe with methamphetamine residue inside of it.
Shortly thereafter, law enforcement arrested Simons and seized
the items found in his bedroom.
Possession Charges and Simons’
Motion to Suppress
On February 8, 2022, the State filed a separate information
against Simons, charging him with possession of a controlled
substance, methamphetamine, based on the items found in his
bedroom. Simons moved to suppress all evidence obtained during the search.
Simons argued the search was unlawful because it took
place after his probation term had expired. Specifically, Simons
claimed §§ 29-2267 and 29-2268 require a sentencing court to
hold an evidentiary hearing and find a violation before revoking probation or increasing probation requirements. Because no
hearing had occurred at the time of the search and Simons had
not been adjudicated of the allegations in the information for
revocation of his probation, he contended the district court had
no authority to extend the conditions of his probation beyond
the sentenced term that ended on September 19, 2021.
Simons also insisted that he did not freely and voluntarily
consent to the search. When Kraft directed Simons to take
her to his bedroom, Simons claimed he was merely following the instructions of his probation officer, believing he
was required to do so. Simons further argued that even if
Kraft simply requested to search his room, he could not have
refused, because his probation conditions required him to consent and he believed a failure to do so would result in custodial sanctions.
The district court overruled the motion to suppress on the
ground that Simons was still on probation and subject to his
- 421 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. SIMONS
Cite as 315 Neb. 415
probation terms at the time of the search. It reasoned that
§ 29-2267 entitles a probationer to “prompt consideration” by
the sentencing court upon a filing of an information for revocation. Citing State v. Windels 3 and State v. Hernandez, 4 the
court determined the “prompt consideration” requirement is
satisfied if an evidentiary hearing occurs during the probationary period or within a reasonable time thereafter, so long as
it occurs with reasonable promptness, due diligence, or only
a reasonably necessary delay. After considering the length of
the delay in holding the hearing, the reasons for the delay, and
any prejudice to Simons resulting from the delay, the district
court determined that each “delay, or continuance, was made
at [Simons’] request, for his benefit,” and that the hearing was
“rescheduled at a reasonable time, thereafter,” in each instance.
For that reason, the district court found Kraft had authority
under the order of probation to conduct the search.
The district court did not explain how the reasonableness of
the delay in holding the evidentiary hearing on the complaint
for revocation extended Simons’ probation term beyond the
original end date. Rather, it determined only that the delay
was reasonable and that therefore, Simons was still on probation. The district court also noted that at no point in the
various proceedings in which Simons requested continuances
did he move to dismiss or otherwise argue the district court
lacked jurisdiction over the matter. The district court declined
to address whether Simons consented to the search, explaining that resolution of the first issue rendered the question of
consent moot.
Conviction and Sentencing
At a bench trial, the district court found Simons knowingly and intentionally possessed the controlled substance
3
State v. Windels, 244 Neb. 30,
503 N.W.2d 834 (1993).
4
State v. Hernandez, 273 Neb. 456,
730 N.W.2d 96 (2007).
- 422 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. SIMONS
Cite as 315 Neb. 415
methamphetamine, a Class IV felony. It sentenced Simons to a
2-year term of imprisonment with no post-release supervision.
ASSIGNMENTS OF ERROR
Simons assigns the district court erred in (1) overruling his
motion to suppress and (2) sentencing him to a 2-year term
of imprisonment.
STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review. 5
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error. 6 Whether those facts trigger
or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination. 7
[2] An appellate court applies a two-part analysis when
reviewing whether a consent to search was voluntary. 8 As to
the historical facts or circumstances leading up to a consent
to search, the appellate court reviews the trial court’s findings
for clear error. 9 However, whether those facts or circumstances
constituted a voluntary consent to search, satisfying the Fourth
Amendment, is a question of law, which the appellate court
reviews independently of the trial court. 10 And where the
facts are largely undisputed, the ultimate question is an issue
of law. 11
5
State v. Elias, 314 Neb. 494,
990 N.W.2d 905 (2023).
6
Id.
7
See
id.
8
State v. Hammond, ante p. 362, ___ N.W.2d ___ (2023).
9
Id.
10
Id.
11
Id.
- 423 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. SIMONS
Cite as 315 Neb. 415
[3] Statutory interpretation is a question of law, which an
appellate court reviews independently of the lower court’s
determination. 12
ANALYSIS
[4,5] The decisive issue in this appeal is the denial of
Simons’ motion to suppress, which asked the district court
to apply the exclusionary rule to the allegedly unreasonable
search of his bedroom and seizure of the items found within.
The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution prohibit unreasonable
searches and seizures. 13 Under the exclusionary rule, evidence
obtained in violation of the Fourth Amendment generally cannot be used in a criminal proceeding against the victim of the
illegal search and seizure. 14
[6,7] Whether a search is reasonable is determined by
assessing, on the one hand, the degree to which it intrudes
upon an individual’s privacy and, on the other, the degree to
which it is needed for the promotion of legitimate governmental interests. 15 While searches and seizures conducted pursuant
to a warrant supported by probable cause are generally considered reasonable, 16 warrantless searches are considered per
se unreasonable, subject to only a few specific exceptions that
must be strictly confined by their justifications. 17
[8] One exception to the warrant requirement is “when
‘special needs,’ beyond the normal need for law enforcement, make the warrant and probable-cause requirement
12
See State v. Schmaltz, 304 Neb. 74,
933 N.W.2d 435 (2019).
13
State v. Degarmo,
305 Neb. 680,
942 N.W.2d 217 (2020).
14
In re Interest of Corey P. et al.,
269 Neb. 925,
697 N.W.2d 647 (2005).
15
Samson v. California,
547 U.S. 843,
126 S. Ct. 2193,
165 L. Ed. 2d 250
(2006).
16
State v. Craven,
253 Neb. 601,
571 N.W.2d 612 (1997).
17
See, State v.
Degarmo, supra note 13; State v. Smith,
279 Neb. 918,
782
N.W.2d 913 (2010).
- 424 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. SIMONS
Cite as 315 Neb. 415
impracticable.” 18 A probation setting is an example of such a
special need. 19 This court has held that “‘conditions in probation orders requiring the probationer to submit to warrantless searches, to the extent they contribute to the rehabilitation process and are done in a reasonable manner, are valid
and constitutional.’” 20
[9-11] Another recognized exception to the warrant requirement is a search undertaken with consent. 21 To be effective
under the Fourth Amendment, consent to a search must be a
free and unconstrained choice, and not the product of a will
overborne. 22 Consent must be given voluntarily and not as a
result of duress or coercion, whether express, implied, physical, or psychological. 23
Simons argues that because the search was conducted after
the expiration of the term of probation to which he had been
sentenced, he was not subject to conditions of probation at
the time of the search, and that accordingly, the special-needs
exception to the warrant requirement did not apply. Because
18
Griffin v. Wisconsin,
483 U.S. 868, 873,
107 S. Ct. 3164,
97 L. Ed. 2d 709
(1987).
19
See State v. Green,
287 Neb. 212,
842 N.W.2d 74 (2014). See, also, Samson
v.
California, supra note 15; United States v. Knights,
534 U.S. 112,
122
S. Ct. 587,
151 L. Ed. 2d 497 (2001); Griffin v.
Wisconsin, supra note 18;
William E. Ringel, Searches and Seizures, Arrests and Confessions § 17:8
(2d ed. July 2023 update); 24 C.J.S. Criminal Procedure and Rights of
Accused § 2372 (2016).
20
State v. Green, supra note 19, 287 Neb. at 222, 842 N.W.2d at 86 (quoting
State v. Morgan,
206 Neb. 818,
295 N.W.2d 285 (1980), disapproved on
other grounds, State v. Hammond, supra note 8). See, also, Samson v.
California, supra note 15; United States v.
Knights, supra note 19; Griffin
v.
Wisconsin, supra note 18; State v. Colby,
16 Neb. App. 644,
748 N.W.2d
118 (2008); Ringel, Searches and Seizures, Arrests and Confessions, supra
note 19; 24 C.J.S., supra note 19; Annot.,
99 A.L.R.5th 557 (2002).
21
See, State v.
Degarmo, supra note 13; State v. Schriner,
303 Neb. 476,
929
N.W.2d 514 (2019).
22
State v.
Degarmo, supra note 13.
23
Id.
- 425 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. SIMONS
Cite as 315 Neb. 415
the probation officers asked to see his room under their apparent authority of the district court’s pronouncement that he was
still bound by the conditions of his probation, he argues he did
not voluntarily consent to the search.
The State argues that Simons was still subject to the conditions of probation at the time of the search despite its being
conducted after the term set forth in the district court’s original
order, because the district court had not issued an order releasing Simons from probation. It takes no position on appeal on
voluntary consent.
[12] The State did not raise before the district court the good
faith exception to the exclusionary rule. Similarly, it has not
raised the good faith exception on appeal. We have held that
if the State fails to raise the good faith exception on appeal, it
waives it. 24
Thus, our resolution of whether the district court erred in
denying Simons’ motion to suppress is limited to determining whether the search and seizure was reasonable under the
Fourth Amendment to the U.S. Constitution and article I, § 7,
of the Nebraska Constitution. We hold that at the time of the
search, Simons was no longer subject to the probation conditions imposed under his original sentence, because the term
had ended. Therefore, the special-needs exception to the warrant requirement did not apply. We also hold that Simons did
not voluntarily consent to the search.
Simons Was Not Subject to
Conditions of Probation
After the expiration of the term of probation originally
imposed and before the hearing on the State’s complaint
for revocation could be held, the district court pronounced
Simons was “still under the requirements of the probation
order that [it] entered previously.” In effect, without making a
24
See, State v. Kruse, 303 Neb. 799,
931 N.W.2d 148 (2019); State v.
Tompkins, 272 Neb. 547,
723 N.W.2d 344 (2006), modified on denial of
rehearing 272 Neb. 865,
727 N.W.2d 423 (2007).
- 426 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. SIMONS
Cite as 315 Neb. 415
finding that Simons had violated the conditions of his probation, the district court pronounced that Simons’ original sentence had been modified to enlarge the probationary term for
an indeterminate period, pending the evidentiary hearing on
the State’s complaint for revocation. In denying the motion to
suppress, the court reiterated Simons was bound by his conditions of probation after his original probationary term, reasoning that there was a pending information for revocation and
that the delay in conducting the evidentiary hearing to determine whether Simons had violated probation was reasonable.
[13] The power of a court to impose probation must be
strictly construed from the applicable statutes, because the
power to fix criminal punishment is vested in the legislative
branch and probation is a sentence. 25 The question thus presented is whether the Act provides that the timely filing of
a complaint for revocation extends the probation beyond its
original term for a reasonable period until the evidentiary hearing on the complaint can be held.
[14-20] In construing the relevant provisions of the Act,
we are governed by familiar principles. We must determine
and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense. 26 We will not
resort to interpretation of statutory language to ascertain the
meaning of words which are plain, direct, and unambiguous. 27
Similarly, we will not read meaning into a statute that is not
there or read anything direct and plain out of a statute. 28 All
statutes in pari materia must be taken together and construed
25
See, State v. Kennedy,
299 Neb. 362,
908 N.W.2d 69 (2018); State v.
Kantaras,
294 Neb. 960,
885 N.W.2d 558 (2016); State v. Lynch,
223 Neb.
849,
394 N.W.2d 651 (1986).
26
See State v. Rieger,
270 Neb. 904,
708 N.W.2d 630 (2006).
27
See State v. Godek,
312 Neb. 1004,
981 N.W.2d 810 (2022).
28
See
id.
- 427 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. SIMONS
Cite as 315 Neb. 415
as if they were one law. 29 To the extent there is a conflict
between two statutes, the specific statute controls over the
general statute. 30 Penal statutes must be strictly construed
and are considered in the context of the object sought to be
accomplished, the evils and mischiefs sought to be remedied,
and the purpose sought to be served. 31 Where a statute is
susceptible of two constructions, one of which renders it constitutional, and the other unconstitutional, it is the duty of the
court to adopt the construction which, without doing violence
to the fair meaning of the statute, would render it valid. 32
[21] Section 29-2263(1) provides that when a court sentences
an offender to probation, it “shall specify the term,” which,
for a felony, is a maximum of 5 years. Section 29-2263(4)
continues, “Upon completion of the term of probation, or the
earlier discharge of the probationer, the probationer shall be
relieved of any obligations imposed by the order of the court
and shall have satisfied the sentence for his or her crime.” The
general rule is that in the construction of statutes, the word
“shall” is considered mandatory and inconsistent with the idea
of discretion. 33
[22,23] The Act expressly authorizes the extension of the
original term of probation under only two circumstances. The
first circumstance is under § 29-2263(5), which states that
“[w]henever a probationer disappears or leaves the jurisdiction of the court without permission, the time during which he
or she keeps his or her whereabouts hidden or remains away
from the jurisdiction of the court shall be added to the original
term of probation.” We have explained that noncompliance
29
State v. Jedlicka,
305 Neb. 52,
938 N.W.2d 854 (2020).
30
State v. Thompson,
294 Neb. 197,
881 N.W.2d 609 (2016).
31
State v.
Godek, supra note 27.
32
In re Adoption of Yasmin S.,
308 Neb. 771,
956 N.W.2d 704 (2021).
33
Lincoln Cty. Bd. of Equal. v. Western Tabor Ranch Apts.,
314 Neb. 582,
991 N.W.2d 889 (2023).
- 428 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. SIMONS
Cite as 315 Neb. 415
to the degree of absconsion suggests that a probationer has
ceased serving his or her post-release supervision sentence. 34
The second circumstance encompasses all noncompliance
with conditions of probation short of absconsion. In § 29-2268,
the Act specifies possible consequences that are to be determined after notice and hearing and a finding by clear and
convincing evidence that the probationer violated a condition of probation. Section 29-2267(1) plainly states that the
court “shall not . . . increase the probation requirements
imposed on the probationer, except after a hearing upon proper
notice where the violation of probation is established by clear
and convincing evidence.” Permitted dispositions include that
“[t]he probationer’s term of probation be extended, subject
to the provisions of section 29-2263.” 35 Other possible consequences range from receiving a “reprimand and warning” 36
to revocation of probation and the imposition on the offender
of a new sentence as might have been originally imposed for
the crime. 37
Some other states’ probation statutes expressly provide for
the extension of the probationary term upon a showing, in the
manner set forth by statute, of reasonable cause to believe the
probationer has committed a probation violation. 38 Such extension lasts until the court rules, within a reasonable period,
on the alleged violation. 39 We are unaware of any statutory
scheme under which the mere filing of a complaint for revocation expressly extends the probationary period.
The Act has no provision expressly providing a procedure under which the probationary period will be extended
34
State v. Phillips,
302 Neb. 686,
924 N.W.2d 699 (2019).
35
§ 29-2268(3)(e).
36
§ 29-2268(3)(a).
37
§ 29-2268(1).
38
See, e.g., Diaz v. State,
306 So. 3d 1150 (Fla. App. 2020); People v.
Simmons,
169 Misc. 2d 223,
643 N.Y.S.2d 919 (1996).
39
See
id.
- 429 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. SIMONS
Cite as 315 Neb. 415
during the pendency of a hearing on a complaint for revocation. Nevertheless, the State believes § 29-2264 implies an
automatic extension of the probation term whenever a complaint for revocation is filed and the hearing thereon cannot
reasonably be held before the original end date.
Section 29-2264(1) states that whenever the probationer
“satisfactorily completes the conditions of his or her probation for the entire period . . . , the sentencing court shall
issue an order releasing the offender from probation.” Section
29-2264 continues, describing the notice of the restoration of
voting rights and the process of restoring other civil rights
through the pardon process—rights apparently tied to the
order of release.
The State believes this obligation by § 29-2264(1) to issue
an order “releasing the offender from probation” means that,
conversely, probationers remain subject to the obligations
imposed by the original probation order until the court affirm
atively issues that order. The State goes on to suggest this
effect differs based on whether a complaint for revocation has
been filed against the probationer. Relying on our opinion in
State v. Kennedy, 40 the State asserts this is because the filing of
the complaint for revocation presumes the probationer has not
“satisfactorily completed” the conditions of probation. 41
The State’s reliance on Kennedy is misplaced. Kennedy
addressed the permissible dispositions following a finding
by clear and convincing evidence that a probationer violated
a condition of probation. Noting that the power of the trial
court is narrowly prescribed by the provisions of the Act, we
said in Kennedy that upon finding by clear and convincing
evidence that there was a violation of post-release supervision,
the district court lacked the power to discharge the probationer
before the end of the probation term “‘unsatisfactorily.’” 42
40
State v.
Kennedy, supra note 25.
41
Brief for appellee at 18.
42
State v.
Kennedy, supra note 25,
299 Neb. at 370,
908 N.W.2d at 75.
- 430 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. SIMONS
Cite as 315 Neb. 415
We acknowledged the trial court had the general statutory
authority under § 29-2263 to “‘discharge a probationer at any
time,’” but we refused to equate the probationer’s “‘discharge’”
with the probation’s being “‘terminated unsatisfactorily.’” 43
We said § 29-2263 generally governs a court’s power to
impose, modify, and discharge a person from probation and
post-release supervision, while § 29-2268 specifically governs violations of probation and post-release supervision and
thus is the more specific statute. We explained that an early
“discharge” results in “satisfying the sentence imposed” and
“cannot be reconciled with ‘unsatisfactorily’ completing the
sentence.” 44 Therefore, once the court found a violation of
post-release supervision, the court was not empowered to
invoke the early discharge provisions of § 29-2263(2). Doing
so was excessively lenient.
Kennedy did not address whether a defendant has “satisfactorily complete[d]” 45 the conditions of probation for the entire
period when the probation term has ended and revocation
proceedings are pending but no violation has yet been shown.
Kennedy also in no way addressed the implications of a court’s
obligations under § 29-2264(1) to issue an order releasing the
offender from probation. Kennedy is inapposite to the present appeal.
While the State wishes to draw a distinction, there is nothing in the plain language of § 29-2264 supporting the idea
that a probationer against whom a complaint for revocation
has been filed is still subject to the obligations of probation
after completion of the term up until the court issues an order
of release, while a probationer against whom no complaint for
revocation has been filed is not. The State could argue that the
court cannot issue the order releasing the probationer in the
event the conditions of probation for the entire period were
43
Id. at 369,
908 N.W.2d at 74.
44
Id. at 370,
908 N.W.2d at 75.
45
§ 29-2264(1).
- 431 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. SIMONS
Cite as 315 Neb. 415
not completed “satisfactorily,” as contemplated by § 29-2264(1),
but its fundamental premise that a probationer remains subject
to the conditions of probation beyond the original term until
the court affirmatively issues an order releasing the probationer is equally applicable to those probationers against whom
no allegations of probation violations have been made. This
would mean that all probationers remain bound by the conditions of their probation until the court could evaluate whether
to issue an order releasing them.
Other civil rights may be affected by the failure to “releas[e]”
the probationer in accordance with § 29-2264(1), but reading
§ 29-2264 together with the mandate of § 29-2263(4) that
“the probationer shall be relieved of any obligations imposed
by the order of the court” “[u]pon completion of the term
of probation,” we cannot conclude that probationers are, by
default, still subject to the obligations imposed by the original
probation order after the term has expired up until the court
issues an order of “release.” Furthermore, permitting the automatic extension of the probationary term until an order releasing the defendant under § 29-2264—even if this extension
somehow only occurred when an information for revocation
has been filed—would directly conflict with the mandate of
§ 29-2267(1) that “[t]he court shall not . . . increase the probation requirements imposed on the probationer, except after a
hearing upon proper notice where the violation of probation is
established by clear and convincing evidence.” The “requirements imposed on the probationer” 46 include both the “term”
that must be specified in the sentence pursuant to § 29-2263(1)
and the “conditions” that, pursuant to § 29-2262(1), the court
shall attach as it deems necessary. To increase the duration of
probation for any length of time beyond the original term is to
increase its requirements.
The State asserts that if we do not read the Act as automatically extending the term of probation until the revocation
46
§ 29-2267(1).
- 432 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. SIMONS
Cite as 315 Neb. 415
hearing can reasonably occur, probationers like Simons will
obtain a “windfall” 47 by refusing to comply with the terms
of their probation and may “avoid facing any consequences
of a revocation proceeding by simply continuing the revocation proceeding past the original probation expiration date.” 48
We disagree.
The State, like the district court, conflates the offender’s
obligations under the original term of probation with the
court’s continuing jurisdiction to punish the offender for a
violation of probation following an evidentiary hearing on a
timely complaint to revoke. It is well established that a court
may impose consequences for a probation violation, including revocation and resentencing or extending the probationary term, after the end of the probationary period, so long as
under § 29-2267 and principles of due process, the revocation
occurs with reasonable promptness. 49 It does not follow from
this precedent that the probation term is extended after the end
of the probationary period until the revocation hearing occurs
with reasonable promptness. To the contrary, our precedent
regarding the continuing jurisdiction of the court to revoke
probation presumes that there has been an “end of the probationary term” 50 and that “the term had ended.” 51
Whether the probationer requests a continuance of the
revocation hearing is of no consequence to the court’s power
pursuant to § 29-2267 to extend or revoke probation once
it finds by clear and convincing evidence a violation has
occurred. The possible punishment for violating probation
is the same. Continuances simply delay the hearing of the
47
Brief for appellee at 18.
48
Id. at 18-19
49
State v.
Hernandez, supra note 4. See, State v.
Windels, supra note 3; State
v. White,
193 Neb. 93,
225 N.W.2d 426 (1975); State v. Holiday,
182 Neb.
229,
153 N.W.2d 855 (1967), modified
182 Neb. 410,
155 N.W.2d 378.
50
State v.
Windels, supra note 3,
244 Neb. at 33,
503 N.W.2d at 836.
51
State v.
White, supra note 49,
193 Neb. at 94,
225 N.W.2d at 427.
- 433 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. SIMONS
Cite as 315 Neb. 415
revocation complaint, the possible finding of a violation, and
the issuance of the sentence in the event a violation is found.
Probationers do not get punished less because of the delays;
the potential punishment is merely postponed. While the
delays are presumably for the purpose of adequately preparing
for the hearing, if the court believes the probationer is seeking
a continuance for an improper purpose, it will decline to grant
it. Moreover, our opinion does not suggest that the district
court would be unable to impose bond conditions for the probationer’s release from jail following an arrest and probable
cause determination on the alleged probation violation. There
is no windfall, as the State suggests.
[24] We hold that the Act does not authorize an extension
of the original probationary term based on the mere facts that
a complaint for revocation has been filed and the revocation
hearing cannot reasonably occur before the end of the probation term to determine whether a violation occurred. The
district court’s pronouncement that Simons was still under the
requirements of the prior probation order was of no effect.
Simons was not obligated under the conditions of probation to
permit the search here at issue.
Did Simons Voluntarily
Consent to Search?
The State, as mentioned, does not argue on appeal that
Simons voluntarily consented to the search, and the district court made no findings pertaining to voluntary consent.
Nevertheless, the circumstances surrounding the search are
not in dispute. Because the question of voluntary consent was
presented below 52 and whether undisputed historical facts
constitute voluntary consent is a question of law, 53 we address
the consent exception to the warrant requirement.
52
See State v. Thomas, 303 Neb. 964,
932 N.W.2d 713 (2019) (appellate
court will not consider issue not presented to or passed upon by trial
court).
53
State v.
Degarmo, supra note 13.
- 434 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. SIMONS
Cite as 315 Neb. 415
[25] If consent is “granted only in submission to a claim
of lawful authority,” the consent is invalid. 54 We agree with
the court in State v. Guzman, 55 which held that submitting
to a probation officer’s show of authority is coerced by the
possibility that the probationer would be arrested for a violation of probation if he did not cooperate. Here, the evidence
is undisputed that the district court told Simons he was still
bound by the conditions of his sentenced probation after the
completion of his term of probation and that the probation
officers went to Simons’ house to conduct a probation search.
It is also undisputed that a failure to comply with a probation
search could have resulted in custodial sanctions. We find that
under these circumstances, Simons did not voluntarily consent
to the search.
The search of Simons’ bedroom was unreasonable, and the
items found therein should have been suppressed. We therefore
reverse Simons’ conviction for possession of a controlled substance, methamphetamine, and vacate his sentence. Because
we reverse the conviction and vacate the sentence, we do not
address Simons’ assignment of error alleging the district court
imposed an excessive sentence.
Sufficiency of Evidence
[26] We must now determine whether double jeopardy bars
a retrial. We hold it does not. The Double Jeopardy Clause
does not forbid a retrial so long as the sum of all the evidence
admitted by a trial court, whether erroneously or not, would
have been sufficient to sustain a guilty verdict. 56
54
Schneckloth v. Bustamonte, 412 U.S. 218, 233,
93 S. Ct. 2041,
36 L. Ed.
2d 854 (1973). See Bumper v. North Carolina,
391 U.S. 543,
88 S. Ct.
1788,
20 L. Ed. 2d 797 (1968).
55
State v. Guzman,
164 Or. App. 90,
990 P.2d 370 (1999).
56
State v. McCulloch,
274 Neb. 636,
742 N.W.2d 727 (2007). See, Lockhart
v. Nelson,
488 U.S. 33,
109 S. Ct. 285,
102 L. Ed. 2d 265 (1988); State
v. Edwards,
286 Neb. 404,
837 N.W.2d 81 (2013); State v. Merchant,
285 Neb. 456,
827 N.W.2d 473 (2013); State v. Borst,
281 Neb. 217,
795
N.W.2d 262 (2011); State v. Rogers,
277 Neb. 37,
760 N.W.2d 35 (2009).
- 435 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. SIMONS
Cite as 315 Neb. 415
Kraft, Simons’ probation officer, testified at trial that she
found marijuana and a glass pipe containing methamphetamine
residue in Simons’ bedroom during a search of his residence.
While this evidence was improperly admitted, we consider all
the evidence in our double jeopardy analysis. Because the evidence presented at trial is sufficient to sustain the conviction
of possession of a controlled substance, methamphetamine,
double jeopardy does not bar a second trial. Thus, we remand
the cause back to the district court for further proceedings consistent with this opinion.
CONCLUSION
For the foregoing reasons, we reverse Simons’ conviction, vacate the sentence, and remand the cause for further
proceedings.
Reversed and vacated, and cause remanded
for further proceedings.
