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Nebraska Supreme Court Advance S

296 Nebraska Report

STATE v. HIDALGO

Cite as 296 Neb. 912

State of Nebraska, appellee, v.

Robert Hidalgo, appella

___ N.W.2d ___

Filed June 9, 2017. No. S-16-660.

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. But 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: Search Warrants. The 

Fourth Amendment to the U.S. Constitution guarantees the right of the 

people to be secure in their persons, houses, papers, and effects against 

unreasonable searches and seizures and further provides that no warrants 

shall issue but upon probable cause, supported by oath or affirmation, 

and particularly describing the place to be searched and the persons or 

things to be seized.

3. Constitutional Law: Search Warrants: Probable Cause. The execution of a search warrant without probable cause is unreasonable and 

violates constitutional guarantees.

4. Search Warrants: Affidavits: Probable Cause. A search warrant, to 

be valid, must be supported by an affidavit which establishes probable cause.

5. Search Warrants: Probable Cause: Words and Phrases. Probable 

cause sufficient to justify issuance of a search warrant means a fair 

probability that contraband or evidence of a crime will be found.

6. Search Warrants: Affidavits: Probable Cause: Appeal and Error. 

In reviewing the strength of an affidavit submitted as a basis for finding probable cause to issue a search warrant, an appellate court applies 

a totality of the circumstances test. The question is whether, under the 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/14/2017 01:10 AM CDT
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Cite as 296 Neb. 912

totality of the circumstances illustrated by the affidavit, the issuing magistrate had a substantial basis for finding that the affidavit established 

probable cause.

7. Search Warrants: Affidavits: Evidence: Appeal and Error. In evaluating the sufficiency of an affidavit used to obtain a search warrant, 

an appellate court is restricted to consideration of the information and 

circumstances contained within the four corners of the affidavit, and 

evidence which emerges after the warrant is issued has no bearing on 

whether the warrant was validly issued.

8. Search Warrants: Affidavits: Probable Cause: Appeal and Error. 

When a search warrant is obtained on the strength of an informant’s 

information, the affidavit in support of the issuance of the warrant must 

(1) set forth facts demonstrating the basis of the informant’s knowledge 

of criminal activity and (2) establish the informant’s credibility, or the 

informant’s credibility must be established in the affidavit through a 

police officer’s independent investigation. These two prongs are not 

accorded independent status, but, rather, are better understood as relevant considerations in the totality-of-the-circumstances analysis that 

traditionally has guided probable-cause determinations: a deficiency 

in one may be compensated for, in determining the overall reliability 

of a tip, by a strong showing as to the other, or by some other indicia 

of reliability.

9. Search Warrants: Affidavits. 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.

10. ____: ____. An affidavit in support of the issuance of a search warrant 

must affirmatively set forth the circumstances from which the status of 

the informant can reasonably be inferred.

11. Search Warrants: Motor Vehicles. As a general rule, vehicles located 

on premises described in a warrant may be searched, even if the vehicle 

is not specifically listed in the warrant.

Appeal from the District Court for Douglas County: Dua

C. Dougherty, Judge. Affirmed

Michael J. Wilson and Glenn A. Shapiro, of Schaefer 

Shapiro, L.L.P., for appellant.
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296 Nebraska Report

STATE v. HIDALGO

Cite as 296 Neb. 912

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel,

Kelch, and Funke,

Heavican, C

I. INTRODUCTION

Following a stipulated bench trial, Robert Hidalgo was convicted of one count of possession of a firearm by a prohibited 

person and was sentenced to 3 to 5 years’ imprisonment. He 

appeals. We affirm.

II. FACTUAL BACKGROUND

On July 10, 2015, officers with the Omaha Police Department 

received a Crime Stoppers tip that a Hispanic male named 

“Roberto” was a felon and was in possession of illegal firearms. “Roberto” was described as an active member of the 

“18th Street” gang, was between 30 and 35 years of age, and 

had the nickname “Sporty.” The informant also indicated that 

“Roberto” lived at a particular address in Omaha.

Officers attempted to corroborate this tip. On July 21, 

2015, officers drove by of the address referenced in the Crime 

Stoppers tip. Officers noted approximately six tattooed Hispanic 

males between the ages of 20 and 30 sitting on the porch and 

dressed in loose clothing. According to the affidavit in support 

of the search warrant, the “physical description of the male 

persons had characteristics similar to that of gang members, 

between the clothing, how it was worn and the tattoos.” The 

individuals looked alarmed at the approach of the officers’ 

police cruiser. As such, the officers did not stop.

Officers noted and checked the registration on a white 

Nissan Sentra parked in the driveway. The vehicle was registered to Hidalgo and Jacqueline Linares. In addition, the 

utilities at the address listed Linares as the account holder. 

Upon learning these names, officers researched Hidalgo further 

and determined that he was born in May 1987, was a known 
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STATE v. HIDALGO

Cite as 296 Neb. 912

member of the “18th Street” gang, and went by the nickname “Shorty.”

A “trash pull” at the address was completed that night. Two 

relevant items were found in the trash: a piece of mail directed 

to the address referenced in the tip and marijuana stems, seeds, 

and leaves.

Based upon this information, officers obtained a search warrant for

the premises [referenced in the tip and verified by officers in] Omaha, Douglas County, Nebraska, which is 

further described as a white in color one and one half 

story residence with green trim. The unit has a white 

front door which includes a green storm door in front of 

it. The [house] numbers . . . are located at the exterior 

of [the] house on the trim of the covered patio. [The 

house] is located on the west side of [a nearby] intersection . . . .

The affidavit in support of the warrant sought marijuana and 

“all monies, records, weapons and ammunition used to conduct an illegal narcotics operation.”

The search warrant was executed on July 26, 2015, granting 

officers the authority to “search the afore described location 

and/or person(s).” During the search, officers found a firearm 

and marijuana in the residence, as well as another firearm in a 

neighboring yard, which law enforcement believe was placed 

there by one of Hidalgo’s associates just prior to the execution 

of the search warrant. In addition, the Nissan Sentra in the 

driveway of the house was searched and a third firearm was 

recovered from it. Hidalgo later admitted that the firearm in 

the vehicle belonged to him; two associates admitted to owning the other firearms.

Hidalgo had been previously convicted of being an accessory to a felony, a Class IIIA felony. As such, the possession of a firearm by him was unlawful and he was charged 

accordingly. Following a stipulated bench trial, Hidalgo was 

convicted of possession of a firearm by a prohibited person, a 
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STATE v. HIDALGO

Cite as 296 Neb. 912

Class ID felony, and was sentenced to 3 to 5 years’ imprisonment. He appeals.

III. ASSIGNMENTS OF ERROR

Hidalgo assigns that (1) his Fourth Amendment rights were 

violated when his house and vehicle were searched, because 

the application and warrant did not establish probable cause, 

and (2) officers exceeded the scope of the search warrant when 

they searched a vehicle parked outside the house described by 

the search warrant.

IV. 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. 

Regarding historical facts, an appellate court reviews the trial 

court’s findings for clear error. But 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.1

V. ANALYSIS

1. Probable Caus

Hidalgo first argues that the evidence against him should be 

suppressed, because there was no probable cause to support 

the issuance of the search warrant. In arguing this, Hidalgo 

asserts that the affidavit did not sufficiently establish the reliability of the anonymous tip; the corroboration of information 

contained in the tip did not establish reliability, because the 

information confirmed was “innocent details”; an unspecified 

amount of marijuana leaves, seeds, and stems found during a 

trash pull does not establish probable cause; and the good faith 

exception does not apply here.2

1 State v. Hill, 288 Neb. 767, 851 N.W.2d 670 (2014).

2 Brief for appellant at 10.
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Cite as 296 Neb. 912

[2] The Fourth Amendment to the U.S. Constitution guarantees “[t]he right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable searches and 

seizures . . .” and further provides that “no Warrants shall 

issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and 

the persons or things to be seized.” The Nebraska Constitution 

provides similar protection.3

[3-7] The execution of a search warrant without probable 

cause is unreasonable and violates these constitutional guarantees.4

 Accordingly, a search warrant, to be valid, must be 

supported by an affidavit which establishes probable cause.5

Probable cause sufficient to justify issuance of a search warrant means a fair probability that contraband or evidence 

of a crime will be found.6 In reviewing the strength of an 

affidavit submitted as a basis for finding probable cause to 

issue a search warrant, an appellate court applies a “totality 

of the circumstances” test. The question is whether, under the 

totality of the circumstances illustrated by the affidavit, the 

issuing magistrate had a substantial basis for finding that the 

affidavit established probable cause.7 In evaluating the sufficiency of an affidavit used to obtain a search warrant, an 

appellate court is restricted to consideration of the information and circumstances contained within the four corners of 

the affidavit, and evidence which emerges after the warrant 

is issued has no bearing on whether the warrant was validly issued.8

3 Neb. Const. art. I, § 7.

4 State v. Hill, supra note 1.

5 Id.

6 Id.

7 Id.

8 Id.
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STATE v. HIDALGO

Cite as 296 Neb. 912

(a) Anonymous Tip

[8] When a search warrant is obtained on the strength of an 

informant’s information, the affidavit in support of the issuance of the warrant must (1) set forth facts demonstrating the 

basis of the informant’s knowledge of criminal activity and (2) 

establish the informant’s credibility, or the informant’s credibility must be established in the affidavit through a police 

officer’s independent investigation.9 These two prongs are not 

accorded “independent status,” but, rather, are

better understood as relevant considerations in the 

totality-of-the-circumstances analysis that traditionally 

has guided probable-cause determinations: a deficiency in 

one may be compensated for, in determining the overall 

reliability of a tip, by a strong showing as to the other, or 

by some other indicia of reliability.10

[9,10] 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.11 An affidavit in support of the issuance 

of a search warrant must affirmatively set forth the circumstances from which the status of the informant can reasonably 

be inferred.12

Hidalgo and the State agree that this falls under the fourth 

scenario—that a police officer’s independent investigation 

9 State v. Lytle, 255 Neb. 738, 587 N.W.2d 665 (1998), overruled on other 

grounds, State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999). 

10 Illinois v. Gates, 462 U.S. 213, 233, 103 S. Ct. 2317, 76 L. Ed. 2d 527 

(1983).

11 Id.

12 Id.
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establishes the informant’s reliability or the reliability of the 

information the informant has given. Hidalgo argues that the 

officers were not able to corroborate all parts of the tip—in 

particular, the portion suggesting that he was a felon in possession of illegal firearms—and this was sufficient to render 

the entire tip unreliable.

We turn first to Hidalgo’s claim that the entire tip must be 

corroborated. Hidalgo offers no case law to support this assertion. Nebraska case law suggests differently. We held in State 

v. Vermuele13 that “[t]here is no requirement that the ‘crime’ 

itself be corroborated or verified in order to justify probable 

cause for a warrantless search . . . .”

We also disagree with Hidalgo’s contention that all law 

enforcement did was confirm innocent details. The record 

shows that law enforcement conducted an investigation in 

order to identify “Roberto.” Officers were able to establish that 

the utilities at the address noted by the informant listed Linares 

as the account holder and that Linares, along with Hidalgo, 

owned the white Nissan Sentra in the driveway of the house. 

The vehicle registration indicated that Hidalgo’s first name was 

Robert; the informant provided the name “Roberto” in the tip. 

Robert and Roberto are similar, which supports the reliability 

of the tip.

Once learning the name “Hidalgo,” the officers, through 

their work in the gang suppression unit, identified Hidalgo as a 

known member of the “18th Street” gang, as the informant had 

indicated, and had the nickname “Shorty.” “Shorty” is similar 

to “Sporty,” the nickname provided by the tipster.

In addition, when officers drove by the property, they noted 

a group of Hispanic men between the ages of 20 and 30 on the 

porch. The tipster indicated that “Roberto” was Hispanic and 

was between the age of 30 and 35. This information, along 

13 State v. Vermuele, 234 Neb. 973, 982, 453 N.W.2d 441, 447 (1990). See, 

also, State v. Dussault, 193 Neb. 122, 225 N.W.2d 558 (1975).
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Cite as 296 Neb. 912

with the fact that Hidalgo could be considered a Hispanic 

name, further supports the reliability of the tip.

(b) Marijuana

Hidalgo argues that the marijuana leaves, stems, and seeds 

alone were insufficient to support the issuance of the search 

warrant in this case.

Hidalgo cites United States v. Elliott14 to support his contention that the marijuana evidence was insufficient. In Elliott, 

the federal district court held that a small amount of discarded 

marijuana cigarettes and stems was evidence of past use and 

insufficient to “render[] the continued presence of contraband 

reasonably probable.”15

Hidalgo also directs us to State v. McKnight,

16 a recent 

unpublished opinion of a single-judge panel of the Nebraska 

Court of Appeals. That opinion concluded that a 0.1-gram 

marijuana roach was insufficient to support a search warrant 

seeking evidence of a larger narcotics operation. In reaching 

that conclusion, the court noted that the affidavit in support 

of the warrant did not sufficiently establish the reliability of 

an anonymous tip in that case. The court also noted that the 

defendant’s prior gun charges were not something the court 

could consider because they were only charges and not convictions and the timeframe of those charges was not stated in 

the affidavit.

While these cases might suggest that marijuana alone is 

insufficient to establish probable cause, other cases find to the 

contrary, noting that the possession of marijuana was illegal 

under state and federal law.17

14 United States v. Elliott, 576 F. Supp. 1579 (S.D. Ohio 1984).

15 Id. at 1582.

16 State v. McKnight, No. A-15-301, 2015 WL 5025473 (Neb. App. Aug. 25, 

2015) (selected for posting to court website).

17 See U.S. v. Briscoe, 317 F.3d 906 (8th Cir. 2003). See, also, U.S. v. 

Allebach, 526 F.3d 385 (8th Cir. 2008).
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STATE v. HIDALGO

Cite as 296 Neb. 912

In any case, the marijuana evidence found in the trash was 

not the only evidence supporting probable cause. Rather, the 

issuing court was also entitled to consider the Crime Stoppers 

tip, which detailed Hidalgo’s alleged possession of weapons. 

There was sufficient probable cause to support the issuance 

of the warrant, and as such, there is no merit to Hidalgo’s 

first assignment of error. Because we find there was probable 

cause to support the warrant, we need not reach Hidalgo’s 

arguments regarding the good faith exception to the warrant requirement.

2. Vehicle Se

Hidalgo also argues that the warrant issued in this case 

was specific as to describing his house, but did not include 

his vehicle, and that as such, officers violated his Fourth 

Amendment rights when his white Nissan Sentra was searched. 

During police questioning, Hidalgo admitted that the firearm 

found in the vehicle belonged to him.

[11] As a general rule, vehicles located on premises described 

in a warrant may be searched, even if the vehicle is not specifically listed in the warrant.18 This includes vehicles parked in a 

driveway (as this one was) or in a garage.19 One court reasoned 

in part:

[A] car parked in a garage is just another interior container, like a closet or a desk. If, as in this case, the trunk 

or glove compartment is not too small to hold what the 

search warrant authorizes the police to look for, they can 

search the trunk and the glove compartment.20

The warrant would not, however, cover a vehicle parked on a 

nearby street, even if police knew that the vehicle belonged to 

the occupant of the described premises.21

18 2 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth 

Amendment § 4.10(c) (5th ed. 2012) (citing cases).

19 Id.

20 U.S. v. Evans, 92 F.3d 540, 543 (7th Cir. 1996).

21 2 LaFave, supra note 18.
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STATE v. HIDALGO

Cite as 296 Neb. 912

We agree with Hidalgo that the warrant did not explicitly 

provide that vehicles found on the property could be searched. 

But we do not find that such failure requires suppression of 

the search of Hidalgo’s vehicle. The vehicle was parked in the 

driveway of the house described in the warrant. During the 

hearing on the motion to suppress, one officer testified that 

the vehicle was located about 10 feet from the front steps of 

the house and was not separated from the house by a fence or 

other obstruction.

Moreover, in the portion of the warrant authorizing a 

no-knock warrant, the issuing court specifically noted that 

“individuals involved in gang activity often will possess, 

maintain or store weapons and ammunition in the residence, 

building or vehicle used during the facilitation of illegal 

narcotics operations.” Thus, the officers and issuing judge 

envisioned that weapons could be concealed in vehicles on 

the property. The Eighth Circuit has held that the search of a 

vehicle not explicitly listed in a warrant was covered under the 

scope of the warrant where facts in the affidavit indicated the 

defendant’s connection to the vehicle in question.22

We conclude that the vehicle search was valid under the 

warrant and that there is no merit to Hidalgo’s second assignment of error.

VI. CONCLUSION

The district court did not err in denying the motion to 

suppress. As such, there was sufficient evidence to support 

Hidalgo’s conviction. Accordingly, we affirm.

Affirmed

22 See U.S. v. Pennington, 287 F.3d 739 (8th Cir. 2002).