# Petition for Writ of Certiorari — Peters v. Nebraska

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 952

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1880%3A1. Public record. Not legal advice.