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State v. Mata9/5/2003
ove his boots. Rawalt had told Mata to "go ahead and take off," and Mata had asked if he could make a call for someone to come and pick him up. Rawalt and Kinsey then asked for Mata's boots, and Kinsey offered to give Mata a ride or allow Mata to call for a ride. Kinsey testified that Mata "had no problem with" the request for his boots "and immediately took the boots off and gave them to me." Adam's blood was found on Mata's boots.
[19-21] The district court concluded that Mata gave consent to the seizure of the boots. The right to be free from an unreasonable search and seizure, as guaranteed by the 4th and 14th Amendments to the U.S. Constitution and by article I, § 7, of the Nebraska Constitution, may be waived by the consent of the citizen. State v. Dallmann, 260 Neb. 937, 621 N.W.2d 86 (2000). 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. Consent must be given voluntarily and not as the result of duress or coercion, whether express, implied, physical, or psychological. State v. Tucker, 262 Neb. 940, 636 N.W.2d 853 (2001). Voluntariness of consent to search is a question of fact to be determined from all the circumstances. Id.
Mata argues that his consent was not voluntary, because it was given at the conclusion of an involuntary interrogation. This argument is without merit. First, we note that Mata's contention that he was subjected to custodial interrogation was rejected above. Furthermore, as noted by the district court, Mata surrendered his boots after he had been told that the interview was over and that he should go. The record supports the court's factual determination that given all the circumstances, Mata gave voluntary consent to the seizure of his boots. Mata's second assignment of error is without merit.
(c) Necropsy of Dog
As previously noted, during the execution of the search warrant on the evening of March 16, 1999, Monica was asked to remove a dog from the residence. The next day, Rawalt spoke to Monica and told her that police had decided to x-ray the dog and that the dog might be euthanized. Monica told Rawalt that the dog was at Cruz' house. Monica testified that Rawalt told her why police wanted to check the dog, and Monica told Rawalt to " o ahead" and check the dog, and that she did not want the dog back. The dog was seized from Cruz' residence without a warrant. Police took the dog to be x-rayed, and a bone was seen in the digestive tract of the dog. It was determined that the only way to retrieve the bone was to euthanize the dog.
Kinsey testified that he had been uncertain whether the dog belonged to Monica or to her son and that he had learned that the dog belonged to Monica's son. The transcript of Monica's interview with Kinsey contains references to her son's feeding "his" dog. Monica testified expressly that Mata had given the dog to her son and that Mata fed the dog "now and then, but he really didn't pay attention to it."
The district court found that Mata had purchased the dog, but had given the dog to Monica's son, and that Monica, as the mother of her son, had the legal right to dispose of the dog. The court also determined that because Mata neither owned the dog nor had an expectation of privacy regarding the dog, Mata had no standing to contest its seizure. We note, although it is not contested by the State, that privately owned animals are "effects" subject to the protections of the Fourth Amendment. See Altman v. City of High Point, N.C., 330 F.3d 194 (4th Cir. 2003) (collecting cases).
[23-25] Before one may challenge a nonconsensual search without a warrant, one must have standing
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