Petition for Writ of Certiorari — Peters v. Nebraska

Supreme Court, U.S.

| FILEO

001798 may 31 2008

— OFFICE OP THE CLERK

In The

Supreme Court of the United States

GLEN M. PETERS,

Petitioner,

VS.

STATE OF NEBRASKA,

Respondent.

On Petition For Writ Of Certiorari

To The Supreme Court Of The State Of Nebraska

¢

PETITION FOR WRIT OF CERTIORARI

Davip T. SCHROEDER #13717

Ketty & SCHROEDER

119 W. Koenig Street

P.O. Box 1545

Grand Island, NE 68802

(308) 382-7510

Attorney of Record for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

— a ene BY

QUESTION PRESENTED

Under Nebraska law, prior to the year 1995, it was

legal for the Petitioner to possess firearms with barrels 18

inches long or longer, even though he had prior felony

convictions in 1977 and 1989.

Can the State of Nebraska retroactively apply a 1995

amendment to its law, that now makes it a felony for a

felon to possess any firearms, and use Petitidner’s 1977

and 1989 felony convictions as predicate offenses to con-

vict him of a felony for possessing firearms in 1999 with

barrels longer than 18 inches, even though it was legal for

him to possess them prior to 1995, or is such an applica-

tion Ex Post Facto prohibited under Article I Section 10 of

the United States Constitution?

TABLE OF CONTENTS

Page

fe ee reer ey ery i

Citation of Official Report Below .................. 1

Statement oF Teste iano cckx tn xsccvenescesws 1

Constitutional Prowision. .......6.<ssdedssnseecesenes 2

Statute IWCOlved « o acs 5 605d inks ceadanweeuwsaeseeanes 2

Statement Of (he GOOG os kcncaancassccansessecenes 2

Rinterial FOCW oxi cs ona c 4can denna ee eerenees 2

Federal Question Raised Below .................. 3

Reasons for Granting the Writ.................006. S

I. The Nebraska Supreme Court’s Opinion Directly

Conflicts With The Eighth Circuit’s Ruling in

United States v. Davis And Is Contrary To The Ex

Post Facto Clause Embodied In Article I Section

10 of The United States Constitution ........... 4

Conmchasion . ... 56 ck Suave eee 7

ili

TABLE OF AUTHORITIES

Page

Unrrep States SupREME Court OPINIONS

Calder v. Bull, 3 U.S. (3 Dall) 386, 1 L.Ed 648 (1798) ..... 5

Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96

i rn. cso bbs chi aeeeeseuaseuedeseee 3, 6

Weaver v. Graham, 450 U.S. 24 (1981)............... 5, 6

Court Or APPEALS DECISION

United States v. Davis, 936 F.2d 352 (8th Cir. 1991),

cert. denied, 503 U.S. 908 (1992)................. 1, 4,5

State DECISION

State v. Peters, 261 Neb. 416, 622 N.W.2d 918

Pt Sh Ee icp casctdccbeaeecsS euaweeaen i

CONSTITUTION

Constitution of the United States, Article I, Section

ee da eb eae eddae eae eneeaeen 2, 5

STATUTES.

Neb. Rev. Stat § 28-1206 (Reissue 1995)............. 2,4

SEssSION Laws

Nebraska Session Laws 1978, LB 748, Section 19 ..... 2

Nebraska Session Laws 1995, LB 371, Section 9 ...... 2

RULES

Supreme Court Rule 10(b) .............------2---eee- 1

Kn stn

PETITION FOR WRIT OF CERTIORARI

Glen M. Peters (“Peters”) respectfully prays that a

writ of certiorari issue to review the judgment and opin-

ion of the Supreme Court of the State of Nebraska entered

March 16, 2001, in order to resolve the conflict between

The Nebraska Supreme Court and the Eight Circuit Court

of Appeals on the important issue presented herein.

*

CITATION OF OFFICIAL REPORT BELOW

State v. Peters, 261 Neb. 416, 622 N.W.2d 918 (March

16, 2001) App. A, App. 1 (Nebraska Supreme Court case #

S-00-0404)

STATEMENT OF JURISDICTION

The date of the judgment and opinion sought to be

reviewed was entered on March 16, 2001. It is reprinted in

Appendix A (“App. A”) at page A-1. The date of the

order overruling the motion for rehearing was entered on

May 17, 2001. App. B, A-15.

Statutory provision conferring jurisdiction on this

court to review on writ of certiorari is 28 U.S.C. 1257(a).

Jurisdiction is invoked under United States Supreme

Court Rule 10(b), because Nebraska’s highest court has

decided an important federal question that conflicts with

United States v. Davis, 936 F.2d 352 (8th Cir. 1991).

¢

CONSTITUTIONAL PROVISION

Constitution of the United States of America,

Article I, Section 10

“No state shall .. . pass . . . ex post facto Law”

+

STATUTE INVOLVED

Neb. Rev. Stat. § 28-1206(1) (reissue 1995), prior to

1995 read as follows:

o-oo eee .

“Any person who possesses any firearm with a

barrel less than 18 inches in length . . . and who

has previously been convicted of a felony .. . |

commits the offense of possession of firearms by

a felon...”

(Nebraska Session Laws 1978, LB 748, Section

19) |

In 1995, effective that year, it read and now reads as |

follows:

“any person who possesses any firearm. . . and |

who has previously been convicted of a fel-

ony . . . commits the offense of possession of a |

”

deadly weapon by a felon...

(Nebraska Session Laws 1995, LB 371, Section 9)

+

STATEMENT OF THE CASE

Material Facts

Peters was convicted of felonies in Nebraska in the

years 1977 and 1989. Prior to 1995, under Nebraska Law,

it was legal for him to possess firearms with barrels 18

EEO

inches long or longer. In 1995, Nebraska amended its law

to make it a felony for a felon to possess any firearm. Neb.

Rev. Stat. § 28-1206 (Reissue 1995).

On March 18, 1999, Peters was arrested and charged

with being a felon in possession of firearms. All four of

the firearms that he possessed had barrels longer than 18

inches. Using the 1977 and 1989 convictions as predicate

felonies, he was convicted of being a felon in possession

of those firearms and sentenced to serve a term of not less

than one and not more than three years in the custody of

the Nebraska Department of Corrections. He has

remained free on bail pending the proceedings in the

Nebraska Courts.

Federal Question Raised in Nebraska Courts

The federal question sought to be reviewed was first

raised in the trial court by filing a Plea in Abatement,

Demurer, and Motion to Quash, all directed at the Infor-

mation filed by the State and the sufficiency of the evi-

dence to establish probable cause. The trial court

overruled these filings and Peters preserved his argument

at trial. The Nebraska Supreme Court affirmed the trial

court in State v. Peters, 261 Neb. 416, 622 N.W.2d 918

(Neb. March 16, 2001).

The trial court ruling, in part, stated:

“Ex post facto restrictions do not necessarily pre-

clude the legislature from imposing reasonable restric-

tions upon convicted felons even if such restrictions are

enacted subsequent to the offense for which a defendant

was convicted.”

Transcript of the District Court of Merrick County

Nebraska, at page 16

On direct appeal Peters assigned the following error:

“The Trial Court erred in finding that the 1995

amendment to Neb. Rev. Stat. § 28-1206 (Reissue 1995)

(Laws 1995, LB 371 Section 9) was not ex post facto

prohibited in its application to Peters’ circumstances, and

that his pre-1995 felony convictions could be the basis for

finding him guilty of possessing firearms with barrels

longer than 18 inches after 1995.”

The Nebraska Supreme Court opinion in part stated: ‘

“a

. such amendments are viewed not as further

punishment for the underlying felony or felonies, but as a

future prohibition on a felon’s conduct.” (App. 8)

In his motion for rehearing Peters’ among other

things assigned the following error:

“The court erred in holding that: ’ . . . no violation of

the Ex Post Facto Clause occurred in this case.’ ”

+

REASONS FOR GRANTING THE WRIT

The Nebraska Supreme Court’s Opinion Directly

Conflicts With The Eighth Circuit’s Ruling in United

States v. Davis And Is Contrary To The Ex Post Facto

Clause Embodied In Article I Section 10 of The United

States Constitution.

The Nebraska Supreme Court’s judgment and opin-

ion in this case has decided an important federal question

in a way that conflicts with the decision of the United

a a Se

States Court of Appeals for the 8th Circuit in United States

v. Davis 936 F.2d 352 (8th Cir. 1991), cert. denied, 503 U.S.

908 (1992). In Davis, the Defendant was convicted of a

felony. Later a new statute was passed barring felons

from carrying firearms for ten years after their release

from prison. The question was whether this new bar on

firearms possession constituted an ex post facto law as

applied to a person convicted of a felony prior to the

enactment of the firearm statute. The 8th Circuit con-

cluded that it was a forbidden ex post facto law, because,

as applied, the new statute plainly increased the punish-

ment for a past offense. In Peters, Nebraska’s highest

court has concluded that a new bar on firearms posses-

sion by a felon enacted in 1995 can retroactively be

applied to pre-1995 convictions.

“No state shall... pass... ex post facto law”.

Constitution of the United States, Article I, Section 10. The

Nebraska decision is also contrary to fundamental princi-

ples established by this court, going back to Calder v. Bull,

3 U.S. (3 Dall) 386, 1 L.Ed. 648 (1789). If a law is applied

retrospectively, that is, it applies to events occurring

before its enactment to the disadvantage of the offender

affected by it, that law falls within the ex post facto

prohibition. A law is retrospective if it changes the legal

consequences of acts completed before its effective date.

An ex post facto law is one which alters the situation to

the disadvantage of the accused. Weaver v. Graham, 450

U.S. 24 (1981), Miller v. Florida, 482 U.S. 423, 107 S.Ct.

2446, 96 L.Ed.2d 351 (1987).

As a result of Mr. Peters’ 1977 and 1989 convictions,

he lost his right to possess firearms with barrels less than

18 inches in length. However, he had a vested right under

Nebraska law to possess firearms with barrels 18 inches

long or longer. Applying the 1995 amendment to the 1977

and 1989 convictions, would take away that right, to

Peters’ disadvantage and therefore the law falls within

the ex post facto prohibition. If the 1995 amendment were

to be applied retrospectively, it would change the legal

consequences of the acts which gave rise to his prior

convictions and would definitely alter the situation to his

disadvantage.

“[C]entral to the ex post facto prohibition is a con-

cern for ‘the lack of fair notice and governmental

restraint when the legislature increases punishment

beyond what was prescribed when the crime was con-

summated’ Weaver, 450 U.S. at 30.” Miller v. Florida, 482

U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) citing

Weaver v. Graham, 450 U.S. 24 (1981). Since the 1995

amendment changes the legal consequences of acts com-

pleted before its’ effective date, it is ex post facto prohib-

ited.

CONCLUSION

For the above reasons, Petitioner prays that this court

grant the Petition for Certiorari and upon consideration

of the briefs and argument reverse the Nebraska Supreme

Court.

Respectfully submitted

Davip T. SCHROEDER #13717

Ketty & SCHROEDER

119 W. Koenig Street

P.O. Box 1545

Grand Island, NE 68802-1545

Ph. (308) 382-7510

Fax: (308) 382-7513

Attorney of Record for Petitioner

One ae eRe

App. 1

Nebraska Supreme Court

STATE OF NEBRASKA, APPELLEE, V.

GLEN M. Peters, APPELLANT.

__N.W.2d___

Filed March 16, 2001. No. S-00-404.

Appeal from the District Court for Merrick County:

MicHaeL Owens, Judge. Affirmed.

David T. Schroeder, of Kelly & Schroeder, for appel-

lant.

Don Stenberg, Attorney General, and Kimberly A.

Klein, for appellee.

HeEnpry, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN,

McCormack, and Miiter-LerMan, JJ.

CONNOLLY, J.

Following a bench trial in district court, Glen M.

Peters appeals his conviction of being a felon in posses-

sion of a firearm under Neb.Rev.Stat. § 28-1206 (Reissue

1995). Before 1995, § 28-1206 did not apply to firearms

with barrels in excess of 18 inches in length. But in 1995,

§ 28-1206 was amended to apply to all firearms. Peters

argues that at the time of his previous convictions under

§ 28-1206, he was allowed to possess a firearm with a

barrel longer than 18 inches and that his conviction under

the amended § 28-1206, which now forbids possession of

any firearm, violates the Ex Post Facto Clauses of the U.S.

and Nebraska Constitutions. Peters also argues that the

district court should have sustained his motion to sup-

press evidence because the affidavit in support of the

App. 2

warrant and evidence at trial did not support a nighttime

search or show the credibility of a citizen informant.

We determine that although Peters’ previous felonies

occurred before § 28-1206 was amended, there was no

violation of the Ex Post Facto Clauses because § 28-1206

was not applied retroactively and was not further punish-

ment for the earlier convictions. We further determine

that the affidavit in support of the search warrant sup-

ported the issuance of a warrant to be served without

notice and at any time. Accordingly, we affirm.

BACKGROUND

“On March 13, 1999, Sgt. Richard N. Miller prepared

an affidavit in support of a search warrant to be executed

on Peters’ residence. The affidavit stated that on March 8,

1999, Merrick County Deputy Sheriff Brian M. Stobbe was

in Palmer, Nebraska, investigating a dogbite. The affi-

davit stated that while conducting the investigation, a

citizen informant informed Stobbe that based on the

informant’s personal knowledge, Peters had various

items of stolen property, which the informant described

in detail. These stolen items included tools. The affidavit

stated that the informant also told Stobbe that Peters had

marijuana, that he was selling various controlled sub-

stances, and that he had various weapons. The informant

told Stobbe that one of Peters’ “hobbies” was to go out on

the front porch and shoot a high-powered rifle at a stop

sign located on the northwest corner of Highway 92 and

Worms Road. The affidavit stated that Miller had further

been advised that Peters would not hesitate to shoot at

law enforcement officers.

App. 3

In the affidavit, Miller stated that he verified that

tools had been stolen from a construction site on Worms

Road and that during the course of his duties, he had

observed where the stop sign described by the informant

had been shot. Miller stated that a background check

showed that Peters was a convicted felon and had been

previously charged with being a felon in possession of a

firearm and with giving false information on an applica-

tion for a handgun permit. In-addition, Peters had a

_ criminal history of discharging firearms within city

limits, kidnapping, and false imprisonment. Miller stated

in the affidavit that he has known the informant for

approximately 8 years and that the informant had given

reliable information in the past, including one time when

Miller was able to obtain a search warrant based on

information that later proved to be reliable. Miller then

stated that based on his training and experience, he was

aware that persons involved in drug- and weapons-

related crimes often arm themselves with weapons and

sometimes use those weapons against police and others.

Miller stated that such people would also conceal or

destroy evidence if given time and that very important

factors in raids involving weapons and drugs are surprise

and speed. Miller stated that identification eliminates

surprise and provides persons within a residence time to

take actions that would require reaction by officers. Mil-

ler then requested a no-knock search warrant to be served

at any time.

The county court issued a warrant that could be

served at any time and without notice. Five days later, on

March 18, 1999, at 5:39 a.m., the warrant was executed.

During the search, law enforcement officers seized four

App. 4

firearms with barrel lengths over 18 inches. As a result,

Peters was charged by information with being a felon in

possession of a firearm. Peters was also charged with two

counts of possession of stolen property, which were later

dismissed.

Peters filed a demurrer, plea in abatement, and

motion to quash, all of which contended that the charge

of being a felon in possession of a firearm violated his

rights under the Ex Post Facto Clauses of the U.S. and

Nebraska Constitutions. Peters also filed a motion to

suppress.

Stobbe. Miller, and Peters testified at the hearing on

the motion to suppress. Stobbe testified that he had not

had any prior contact with the informant. Stobbe did not

try to independently verify what the informant told him,

but instead gave all the information to Miller. Miller

testified that he had known the informant for 8 years and

that he spoke personally with the informant before exe-

cuting the search warrant. When asked about the inform-

ant’s reputation in the community for truthfulness and

veracity, Miller responded that the informant had a

mixed reputation for truthfulness, with some people find-

ing him very likeable and truthful, while others disliked

him and would call him a liar. Miller testified that he

asked for a no-knock warrant that could be served at any

time due to the high probability that Peters had weapons

in his house and the possibility that he could use those

weapons against police officers. Miller stated that he was

also concerned that evidence could be disposed of or

hidden.

App. 5

Miller admitted that he waited 5 days after getting

the information on Peters to ask for a warrant. Miller

stated that the delay was due to other responsibilities

within his office. Miller also admitted that while he

received the warrant on March 13, 1999, he did not exe-

cute it until March 18. Miller testified that the reason for

the delay was because his office was getting the State

Patrol involved in the case. Miller testified that he saw no

urgency that the evidence would be removed or hidden

during this timeframe. Rather, Miller stated that his con-

cern was that the warrant should be executed before

Peters became aware of it. Miller stated that he was

concerned that if Peters was not surprised, a weapon

could be used against the officers.

Peters testified that he had previously been convicted

of a felony in 1976 for burglary and another in 1989 for

being a felon in possession of a firearm. (The record

shows that although Peters was charged in 1976, he was

convicted in 1977.) Peters admitted that he had previ-

ously been charged with other crimes.

The district court overruled the motion to suppress,

having earlier overruled the demurrer, motion to quash,

and plea in abatement. At the arraignment, Peters elected

to stand mute, and the court entered a plea of not guilty

on his behalf. A bench trial was held, during which Peters

renewed the objections made in his previous motions. At

the end of the State’s evidence, Peters made a motion to

dismiss because the firearms had barrels over 18 inches in

length and his prior convictions took place during a time

when a person convicted of a felony could possess fire-

arms with barrels over that length. Peters did not present

any evidence, and the district court found him guilty and

App. 6

sentenced him to incarceration for 12 months to 3 years.

Peters appealed, and we granted his motion to bypass.

ASSIGNMENTS OF ERROR

Peters assigns, rephrased, that the district court erred

in overruling his demurrer, plea in abatement, motion to

quash, and motion to suppress.

STANDARD OF REVIEW

A trial court’s ruling on a motion to suppress evi-

dence, apart from determinations of reasonable suspicion

to conduct investigatory stops and probable cause to

perform warrantless searches, is to be upheld on appeal

unless its findings of fact are clearly erroneous. In making

this determination, an appellate court does not reweigh

the evidence or resolve conflicts in the evidence, but,

rather, recognizes the trial court as the finder of fact and

takes into consideration that it observed the witnesses.

State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999).

To the extent questions of law are involved, an appel-

late court is obligated to reach conclusions independent

of the decisions reached by the courts below. State v.

Burdette, 259 Neb. 679, 611 N.W.2d 615 (2000); State v.

Baue, 258 Neb. 968, 607 N.W.2d 191 (2000).

— +... ———— —

App. 7

ANALYSIS

Ex Post Facto CLAUSES

Peters contends that at the time of his previous fel-

ony convictions, § 28-1206 allowed him to possess a fire-

arm with a barrel longer than 18 inches and that thus, his

conviction under § 28-1206 as amended, which now for-

bids possession of any firearm, violates the Ex Post Facto

Clauses of the U.S. and Nebraska Constitutions. Before

1995, § 28-1206 (Reissue 1989) stated: “(1) Any person

who possesses any firearm with a barrel less than eigh-

teen inches in length . . . and who has previously been

convicted of a felony or who is a-fugitive from justice

commits the offense of possession of firearms by a felon

or a fugitive from justice.” Operative September 9, 1995,

§ 28-1206 was amended to read: “(1) Any person who

possesses any firearm . . . and who has previously been

convicted of a felony or who is a fugitive from justice

commits the offense of possession of a deadly weapon by

a felon or a fugitive from justice.”

The U.S. Const. art. I, § 10, and Neb. Const. art. I,

§ 16, provide that no ex post facto law shall be passed.

Under this prohibition, a legislature may not enact any

law which imposes a punishment for an act which was

not punishable at the time it was committed. State v.

Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986). Furthermore,

a law which purports to apply to events that occurred

before the law’s enactment, and which disadvantages a

defendant by creating or enhancing penalties that did not

exist when the offense was committed, is an ex post facto

law. State v. Gray, 259 Neb. 897, 612 N.W.2d 507 (2000).

App. 8

The overwhelming majority of courts, however, hold

that a conviction under a statute forbidding possession of

a firearm by a person convicted of a felony does not

violate the Ex Post Facto Clause even when the felony or

felonies for which the defendant was convicted took

place before the statute was enacted. See, U.S. v. Mitchell,

209 F.3d 319 (4** Cir.2000) (citing cases); U.S. v. Brady, 26

F.3d 282 (2d Cir.1994); Finley v. State, 282 Ark. 146, 666

S.W.2d 701 (1984); Landers v. State, 250 Ga. 501, 299 S.E.2d

707 (1983); State v. Swartz, 601 N.W.2d 348 (lowa 1999);

State v. Williams, 358 So.2d 943 (La.1978); People v. Tice,

220 Mich.App. 47, 558 N.W.2d 245 (1996); Dodson v. Com.,

23 Va.App. 286, 476 S.E.2d 512 (1996).

Likewise, it has been held that the Ex Post Facto

Clause is not violated when, at the time of the defen-

dant’s underlying felony conviction, the statute prohib-

ited possession of particular kinds of firearms but the

defendant is convicted under an amendment to the stat-

ute that prohibits the possession of any firearm. People v.

Mills, 6 Cal.App.4th 1278, 8 Cal.Rptr.2d 310 (1992); State v.

Vainio, 466 A.2d 471 (Me.1983); Hand v. State, 107 Nev.

577, 816 P.2d 468 (1991); State v. Lamb, 110 Or.App. 146,

822 P.2d 143 (1991); State v. Schmidt, 100 Wash.App. 297,

996 P.2d 1119 (2000). See, also, State v. Olvera, 191 Ariz.

75, 952 P.2d 313 (Ariz. App. 1997) (not ex post facto

violation when amended statute increased number of

crimes constituting felonies). Generally, such amend-

ments are viewed not as further punishment for the

underlying felony or felonies, but as a future prohibition

on a felon’s conduct. See id.

Peters bases his argument primarily on U.S. v. Davis,

936 F.2d 352 (8th Cir.1991), and the dissenting opinion in

App. 9

People v. Mills, supra, contending that the amendment to

§ 28-1206 acted to retroactively punish him for his 1977

and 1989 felony convictions. In Davis, the Eighth Circuit

Court of Appeals discussed the application of a Minne-

sota statute that lengthened the time prohibiting felons

from possessing firearms and its effect on a restoration of

civil rights law. The court concluded that an application

of the amendment to a conviction that took place before

the amendment increased the defendant’s punishment by

delaying restoration of his or her civil rights. Davis, how-

ever, did not involve a conviction for possession of a

firearm by a felon. Thus, the lowa Supreme Court deter-

mined that Davis was inapplicable in cases involving

statutes forbidding possession of a firearm by a felon.

State v. Swartz, supra. See, also, U.S. v. O'Neal, 180 F.3d

115 (4th Cir.1999) (disagreeing with Davis); Forster v.

Pierce County, 99 Wash.App. 168, 991 P.2d 687 (2000)

(concluding that Davis court’s discussion of Minnesota

law was dictum and disagreeing with case to extent that

it found Minnesota law applied to past conduct).

We conclude that Davis is neither persuasive nor

applicable to Peters’ case. Instead, we agree with the

overwhelming majority of jurisdictions that hold the Ex

Post Facto Clauses are not violated under circumstances

such as those in Peters’ case. Although § 28-1206 as

amended -applies to Peters only because he has the status

of a convicted felon and he acquired that status before the

amendment, § 28-1206 applies to events that occur after

its effective date. See People v. Mills, supra. In this case,

the event, possession of a firearm by a person convicted

of a felony, took place after the effective date of the

App. 10

amendment, and the amendment was not retroactive. See

id.

Neither was the amendment to § 28-1206 an increase

in punishment for Peters’ prior felonies. Nothing in

§ 28-1206 indicates that it was enacted as a form of

retroactive punishment. Rather, § 28-1206 is located in the

statutory sections defining offenses against public health

and safety. As one court has noted, a statutory amend-

ment prohibiting felons from possessing any firearm may

be enacted “ ‘to lessen “a high potential of danger to the

public” and to reduce the “probability that the convicted

individual would continue his criminal activity.” ... ‘”

State v. Vainio, 466 A.2d at 475. The court further stated

“ “t]he Legislature could justifiably conclude there was a

need for [more] gun control legislation in the case of

convicted criminals.’ ” Id. See, also, State v. Olvera, supra

(overview of legislative scheme showed intent to restrict

firearm possession to protect public instead of to punish

for past offense).

We hold that § 28-1206 punishes Peters for the speci-

fic conduct of possession of a firearm by a person previ-

ously convicted of a felony. It does not punish Peters for

the underlying felony. Peters’ status as a felon makes the

law applicable to him, but the legal consequences of his

past conduct were not changed. Thus, the crime for

which Peters was punished was not for the earlier felo-

nies, but for the new and separate crime of which the

prior felony convictions are an element. See, People v.

Mills, 6 Cal.App.4th 1278, 8 Cal.Rptr.2d 310 (1992); Hand

v. State, 107 Nev. 577, 816 P.2d 468 (1991); People v. Tice,

220 Mich.App. 47, 558 N.W.2d 245 (1996); Dodson v. Com.,

23 Va.App. 286, 476 S.E.2d 512 (1996). Accordingly, we

App. 11

determine that no violation of the Ex Post Facto Clause

occurred in this case.

MotTIOoNn To Suppress

Peters next contends that the trial court erred in

overruling his motion to suppress because the affidavit in

support of the search warrant did not show a factual

basis for a nighttime search. In particular, Peters argues

that the affidavit did not support any urgency permitting

a nighttime search and points to the fact that the warrant

was not executed until 5 days after it was issued.

Neb.Rev.Stat. § 29-814.04 (Reissue 1995) provides in part:

The warrant shall direct that it be served in the

daytime unless the magistrate or judge is satis-

fied that the public interest requires that it

should not be so restricted, in which case the

warrant may direct that it may be served at any

time. The warrant shall designate the magistrate

or judge to whom it shall be returned. For pur-

poses of this section, daytime shall mean the

hours from 7 a.m. to 8 p.m. according to local

time.

We have said that “’ “[i]f the affidavit, read in a

common sense manner and as a whole reasonably sup-

ports the inference that the interests of justice are best

served by the authorization of nighttime service, provi-

sion for such service in the warrant is proper.” ‘” State v.

Fitch, 255 Neb. 108, 114, 582 N.W.2d 342, 347 (1998),

quoting State v. Paul, 225 Neb. 432, 405 N.W.2d 608 (1987).

In executing a warrant, Neb.Rev.Stat. § 29-815 (Reis-

sue 1995) requires that it be executed and returned within

10 days after its date. State v. Swift, 251 Neb. 204, 556

App. 12

N.W.2d 243 (1996). We have also stated, however, that “it

does not follow that compliance with the legislatively

imposed time limit will in every instance result in a valid

search.” Id. at 211, 556 N.W.2d at 249. Whether a delay in

executing a search warrant is unconstitutional depends

on whether the probable cause recited in the affidavit still

exists at the time of the execution of the warrant - that is,

whether it is still likely that the items sought will be

found in the place to be searched. Id.

Miller’s affidavit stated that based on his training

and experience, persons involved in drug- and weapons-

related crimes often arm themselves with weapons and

sometimes use those weapons against police and others.

The affidavit stated that such people would also conceal

or destroy evidence if given time and that very important

factors in raids involving weapons and drugs are surprise

and speed. The affidavit also stated that identification.

eliminates surprise and provides persons within a resi-

dence time to take actions that would require reaction by

officers. The affidavit further stated that Miller had been

advised that Peters would not hesitate to shoot at law

enforcement officers. Thus, the affidavit provided infor-

mation showing that the execution of the warrant at a

time when surprise and speed could be accomplished,

such as at night and without knocking, could serve to

protect the safety of the officers involved.

Although the warrant was not executed until 5 days

after it had been issued, the record shows that the proba-

ble cause recited in the affidavit still existed at the time of

the execution of the warrant. The concern in this case was

not of destruction of contraband. Rather, it was for the

safety of law enforcement officers involved. Thus,

ici a aa aie ana ty |

App. 13

although Miller testified that there was no urgency in

executing the warrant immediately upon receiving it,

there was some concern for the officers’ safety. Further,

the record indicates that the time taken between receiving

and executing the warrant was necessary. in order for the

local law enforcement officers to arrange for the involve-

ment of the State Patrol in the matter. We determine that

the delay of 5 days in executing the warrant did not act to

make the search unconstitutional. Accordingly, we con-

clude that the interests of justice are best served by the

authorization of nighttime service.

Peters’ final contention is that the trial court erred in

overruling his motion to suppress because the affidavit in

support of the search warrant did not establish the

informant’s credibility. Peters further contends that evi-

dence at the suppression hearing showed that the inform-

ant was reputed to be dishonest.

Among the ways in which the reliability of an

informant may be established are by showing in the

affidavit to obtain a search warrant that (1) the informant

has given reliable information. to police officers in the

past, (2) the informant is a citizen informant, (3) the

informant has made a statement that is against his or her

penal interest, and (4) a police officer’s independent

investigation establishes the informant’s reliability or the

reliability of the information the informant has given.

State v. Edmonson, 257 Neb. 468, 598 N.W.2d 450 (1999).

Although the affidavit labels the informant as a citi-

zen informant, it does not set out facts to show why that

label was used. The status of a citizen informant cannot

attach unless the affidavit used to obtain a search warrant

App. 14

affirmatively sets forth circumstances from which the

informant’s status as a citizen informant can reasonably

be inferred. Id. Neither does the affidavit set forth any

specific statements the informant made against his or her

penal interest.

The affidavit did, however, provide information

regarding the credibility of the informant. Although testi-

mony at the suppression hearing indicated that the

informant’s reputation for honesty was mixed, the affi-

davit stated that Miller had known the informant for 8

years and that the informant had provided law enforce-

ment with reliable information in the past. Further, the

affidavit showed the manner in which an independent

investigation verified information provided by the

informant. Under these circumstances, we conclude that

the affidavit sufficiently established the informant’s cred-

ibility to support the issuance of a search warrant.

CONCLUSION

We hold that although Peters’ previous felonies

occurred before § 28-1206 was amended, there was no

violation of the Ex Post Facto Clauses because § 28-1206

was not applied retroactively and was not further punish-

ment for the earlier convictions. We further hold that the

affidavit in support of the search warrant supported the

issuance of a warrant to be served without notice and at

any time. Accordingly, we affirm.

AFFIRMED.

App. 15

NEBRASKA SUPREME COURT

AND NEBRASKA COURT OF APPEALS

OFFICE OF THE CLERK

P.O. BOX 98910

2413 STATE CAPITOL BUILDING

LINCOLN, NE 68509

(402) 471-3731

May 17, 2001

David T. Schroeder

KELLY SCHROEDER LAW FIRM

119 W. Koenig Street

P.O. Box 1545

Grand Island, NE 68802 1545

IN CASE OF: S-00-0404, State v. Glen M. Peters

Appellant/Motion for Rehearing & Brf filed

03/23/01 has been reviewed by the court and the fol-

lowing order entered: Motion of appellant for rehearing

overruled.

Respectfully,

CLERK OF THE SUPREME

COURT

AND COURT OF APPEALS