- 223 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. GARZA

Cite as 29 Neb. App. 223

State of Nebraska, appellee, v. 

Charles E. Garza, Jr., appellant.

___ N.W.2d ___

Filed December 8, 2020. No. A-19-474.

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 protection is a question of law that an appellate court reviews independently 

of the trial court’s determination.

2. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error.

When a motion to suppress is denied pretrial and again during trial on 

renewed objection, an appellate court considers all the evidence, both 

from trial and from the hearings on the motion to suppress.

3. Jury Instructions: Appeal and Error. Whether jury instructions are 

correct is a question of law, which an appellate court resolves independently of the lower court’s decision.

4. Search and Seizure: Warrantless Searches: Probable Cause: Motor 

Vehicles. As a general rule, automobiles, including containers and packages that may contain the object of a search, may be searched without 

a warrant provided there is probable cause to believe the vehicle contains contraband.

5. ____: ____: ____: ____. Under the automobile exception, a warrantless 

search of a vehicle with probable cause is lawful so long as the vehicle 

is mobile.

6. Search and Seizure: Warrantless Searches: Motor Vehicles. A warrantless search of a vehicle is lawful even after it has been impounded 

and is in police custody.

7. Probable Cause: Words and Phrases. Probable cause is a flexible 

standard which depends on the totality of the circumstances; it does not 

Nebraska Supreme Court Online Library

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

12/08/2020 09:08 AM CST
- 224 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. GARZA

Cite as 29 Neb. App. 223

demand any showing that such a belief be correct or more likely true 

than false, nor does it require the same type of specific evidence of each 

element of an offense as would be needed to support a conviction.

8. ____: ____. Probable cause requires a fair probability that contraband or 

evidence of a crime will be found.

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. 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 

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

probable cause.

11. Search and Seizure: Search Warrants. Observing objects in plain 

view violates no reasonable expectation of privacy, which obviates the 

need for a search warrant.

12. Police Officers and Sheriffs: Search and Seizure: Evidence. A warrantless seizure is justified under the plain view doctrine if (1) a law 

enforcement officer has a legal right to be in the place from which the 

object subject to the seizure could be plainly viewed, (2) the seized 

object’s incriminating nature is immediately apparent, and (3) the officer 

has a lawful right of access to the seized object itself.

13. Police Officers and Sheriffs: Search and Seizure: Probable Cause.

For an object’s incriminating nature to be immediately apparent, the 

officer must have probable cause to associate the property with criminal activity.

14. Search and Seizure: Search Warrants. Any container that may conceal the object of a search authorized by a warrant may be opened 

immediately.

15. Jury Instructions: Proof: Appeal and Error. To establish reversible 

error from a court’s refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct 

statement of the law, (2) the tendered instruction is warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s refusal to 

give the tendered instruction.
- 225 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. GARZA

Cite as 29 Neb. App. 223

16. Jury Instructions: Appeal and Error. All the jury instructions must be 

read together, and if, taken as a whole, they correctly state the law, are 

not misleading, and adequately cover the issues supported by the pleadings and evidence, there is no prejudicial error necessitating reversal.

17. Criminal Law: Jury Instructions. If there is an applicable instruction 

in the Nebraska Jury Instructions, the court should usually give this 

instruction to the jury in a criminal case.

18. Appeal and Error. To be considered by an appellate court, an alleged 

error must be both specifically assigned and specifically argued in the 

brief of the party asserting the error.

Appeal from the District Court for Scotts Bluff County: Leo 

P. Dobrovolny, Judge. Affirmed.

Sarah P. Newell, of Nebraska Commission on Public 

Advocacy, for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Pirtle, Riedmann, and Arterburn, Judges.

Arterburn, Judge.

I. INTRODUCTION

Charles E. Garza, Jr., was convicted in the district court for 

Scotts Bluff County, Nebraska, of possession of methamphetamine, possession with intent to deliver methamphetamine, 

possession with intent to deliver at least 10 grams but less than 

28 grams of methamphetamine, and three counts of possession 

of a firearm by a prohibited person. The questions pending 

before this court are whether the district court erred in denying 

motions to suppress the searches of his car, his home, and his 

recreational vehicle (RV) and whether the court should have 

given Garza’s proposed jury instruction defining “possession.” 

We affirm the judgment of the district court.

II. BACKGROUND

In January 2017, the Western Nebraska Intelligence 

Narcotics Group (the task force) in Gering, Nebraska, was 
- 226 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. GARZA

Cite as 29 Neb. App. 223

investigating local drug activity and Garza became a target. 

The task force was working with a “cooperating individual” 

(CI), an acquaintance and part-time employee of Garza’s. The 

CI completed two “controlled buys” from Garza in cooperation 

with the task force. Garza was arrested prior to the completion 

of a third controlled buy.

The first controlled buy took place January 16, 2017, outside 

a convenience store in Gering. The CI bought a quarter ounce 

of methamphetamine from Garza for $350. The deal took place 

in Garza’s Honda Accord. The CI was wearing a transmitter, 

and the task force conducted audio and video surveillance for 

the duration of the encounter. The substance purchased by the 

CI was sent to the Nebraska State Patrol Crime Laboratory for 

testing and was confirmed to be methamphetamine.

The second transaction took place on January 20, 2017, 

outside a hospital in Scottsbluff, Nebraska. The CI bought a 

half ounce of methamphetamine from Garza for $700. The 

deal occurred in Garza’s van. The CI was again wearing a 

transmitter, and the task force again conducted audio and video 

surveillance. The substance purchased by the CI was sent to 

the Nebraska State Patrol Crime Laboratory for testing and was 

confirmed to be methamphetamine.

The third transaction was set to take place on February 1, 

2017, outside a bank in Scottsbluff. The CI had arranged to 

buy a full ounce of methamphetamine for $1,400, which was 

twice the going rate for such an amount. Det. James Jackson, a 

sergeant with the Gering Police Department and member of the 

task force at the time, testified that the task force had no intention of allowing the third transaction to take place, because it 

did not want to risk losing such a substantial sum of money. 

Garza’s arrival at the location for the buy was delayed for over 

2 hours. Telephone contact between Garza and the CI indicated Garza claimed to have had a flat tire. During the period 

of time the CI was waiting for Garza to appear, members of 

the task force located the Honda parked at a local motel and 

engaged in surveillance of the Honda. The car did not appear 
- 227 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. GARZA

Cite as 29 Neb. App. 223

to have a flat tire. Members of the task force observed Garza 

go from his car to his motel room, and back to his car. When 

Garza appeared again and got back into the car, the task force 

members who had been conducting surveillance of Garza and 

his car arrested Garza in the motel parking lot.

After Garza was arrested, handcuffed, and taken to the police 

department, the second officer on the scene at the motel was 

instructed to have the Honda towed to the impound lot. The car 

was under observation by another sergeant of the Gering Police 

Department until the tow truck arrived at the motel. The car 

was locked up after it had been towed to the impound lot. The 

other sergeant gave the keys to Jackson, who was at the police 

department by this time in order to interview Garza.

After Jackson interviewed Garza, Jackson applied for a 

search warrant for the Honda in which Garza had been sitting when he was arrested. This was the same car Jackson had 

observed during the first controlled buy made by the CI. After 

obtaining the search warrant, Jackson searched the Honda in 

the impound lot, because it was a secure area. Evidence discovered in the Honda during the search included a plastic bag 

containing approximately 28.7 grams of suspected methamphetamine, found in the console, and Garza’s driver’s license, 

found in the visor. Following the search of the Honda, and as 

part of the ongoing investigation, Jackson applied for and was 

granted a search warrant for the address listed on the driver’s 

license and an RV in which Garza was living, which was 

parked at a nearby campground. Searches of the home and the 

RV turned up a ballistic vest and face mask, numerous firearms 

from gun safes, ammunition, several cell phones, cash, and 

methamphetamine. Garza filed motions to suppress all of the 

evidence seized in the searches of his car, his home, and his RV 

for the reason the supporting affidavits lacked probable cause 

and because the searches exceeded the scope of the warrants. 

The district court overruled all of the motions to suppress prior 

to trial. Garza renewed his motions to suppress at the start of 

the trial, and they were all overruled again.
- 228 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. GARZA

Cite as 29 Neb. App. 223

III. ASSIGNMENTS OF ERROR

Garza assigns as error the district court’s failure to suppress 

evidence seized from Garza’s car, his home, and his RV and the 

court’s failure to utilize his proposed jury instruction regarding 

constructive possession.

IV. STANDARD OF REVIEW

[1,2] 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 protection is a question of law 

that an appellate court reviews independently of the trial court’s 

determination. State v. Hartzell, 304 Neb. 82, 933 N.W.2d 441 

(2019). When a motion to suppress is denied pretrial and again 

during trial on renewed objection, an appellate court considers 

all the evidence, both from trial and from the hearings on the 

motion to suppress. Id.

[3] Whether jury instructions are correct is a question of 

law, which an appellate court resolves independently of the 

lower court’s decision. State v. Lee, 304 Neb. 252, 934 N.W.2d 

145 (2019).

V. ANALYSIS

1. Search Warrants

(a) Search of Honda

Garza objects to the search of his Honda, because the search 

was beyond the scope of the warrant and was not made in 

good faith. The warrant itself authorized only the search of 

the “above described cellular phone,” and the warrant was 

issued prior to the decision in State v. Stelly, 304 Neb. 33, 

932 N.W.2d 857 (2019), which held that detailed information in a supporting affidavit cured any defect in the warrant 

resulting from a scrivener’s error in misidentifying the item 

to be searched. Garza argues a search which is not described 

in the warrant is not a search made in good faith, because a 
- 229 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. GARZA

Cite as 29 Neb. App. 223

“well-trained officer would have known that the search authorized was limited to the cellular phone described therein.” 

Brief for appellant at 19. Garza posits that “in all likelihood, 

law enforcement prepared the warrant language,” and that 

while sloppy, “they should be held to their own language in 

order to discourage future errors and minimize the discretion 

afforded to the executing officer.” Id. at 20.

Garza goes on to suggest that even if this court finds the 

methamphetamine and driver’s license were properly seized, 

the affidavit in support of the warrant lacks probable cause, 

because law enforcement is relying on an unreliable inform

ant with ulterior motives. Garza argues the CI was a “police 

tipster,” someone who acts for money, leniency, or some 

other selfish purpose, rather than a “citizen informer,” whose 

only motive is to help law enforcement in the suppression of 

crime. Id. at 21. Garza argues the affidavit never described 

the “‘controlled buy’” process, nor did it contain any information about whether or not Jackson witnessed the buys or 

complied with the controlled buy protocols as some evidence 

of the CI’s credibility. Id. at 22. Finally, he contends that the 

affidavit does not describe how the things to be seized were 

connected to any criminal activity or why they would be found 

in the Honda.

[4,5] While we do not agree with Garza’s assertions, we 

find that the totality of the evidence adduced at the suppression hearing and at trial establishes that even if the affidavit were insufficient, the police possessed adequate probable 

cause to search the Honda without obtaining a search warrant. 

Garza was arrested while in his car in the motel parking lot, 

following surveillance by law enforcement, at a time when 

he was late for the third controlled buy. Law enforcement 

expected Garza to have an ounce of methamphetamine in his 

possession, ready to sell to the CI for $1,400. Under these 

circumstances, when it is reasonable to believe evidence relevant to the crime of arrest may be found in a vehicle, the 

U.S. Supreme Court has established an independent exception 

for a warrantless search of a vehicle’s passenger compartment 
- 230 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. GARZA

Cite as 29 Neb. App. 223

due to circumstances unique to the vehicle context. As a general rule, automobiles, including containers and packages that 

may contain the object of a search, may be searched without 

a warrant provided there is probable cause to believe the 

vehicle contains contraband. See United States v. Ross, 456 

U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). Under the 

automobile exception, a warrantless search of a vehicle with 

probable cause is lawful so long as the vehicle is mobile. See 

State v. Seckinger, 301 Neb. 963, 920 N.W.2d 842 (2018). Our 

Supreme Court has held:

In light of the overwhelming weight of authorities, 

we hold that the requirement of ready mobility for the 

automobile exception is met whenever a vehicle that is 

not located on private property is capable or apparently 

capable of being driven on the roads or highways. This 

inquiry does not focus on the likelihood of the vehicle’s 

being moved under the particular circumstances and is 

generally satisfied by the inherent mobility of all operational vehicles. It does not depend on whether the defend

ant has access to the vehicle at the time of the search 

or is in custody, nor on whether the vehicle has been 

impounded. The purpose of the ready mobility requirement is to distinguish vehicles on public property from 

fixed, permanent structures, in which there is a greater 

reasonable expectation of privacy.

State v. Rocha, 295 Neb. 716, 755, 890 N.W.2d 178, 207 

(2017).

[6] Moreover, a warrantless search of a vehicle is lawful 

even after it has been impounded and is in police custody. See 

Michigan v. Thomas, 458 U.S. 259, 102 S. Ct. 3079, 73 L. Ed. 

2d 750 (1982). Here, Garza was arrested in his car in a public 

parking lot. The car was then towed to a police impound lot 

where it was searched.

[7,8] Probable cause is a flexible standard which depends 

on the totality of the circumstances. State v. Seckinger, supra. 

It does not demand any showing that such a belief be correct 
- 231 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. GARZA

Cite as 29 Neb. App. 223

or more likely true than false. State v. Au, 285 Neb. 797, 

829 N.W.2d 695 (2013). Nor does it require the same type 

of specific evidence of each element of an offense as would 

be needed to support a conviction. State v. Brewer, 190 Neb. 

667, 212 N.W.2d 90 (1973). What is required is a “fair probability” that contraband or evidence of a crime will be found. 

See State v. Goynes, 303 Neb. 129, 139, 927 N.W.2d 346, 353 

(2019), cert. denied ___ U.S. ___, 140 S. Ct. 545, 205 L. Ed. 

2d 345. Based on the totality of the evidence adduced at the 

hearing on the motion to suppress and at trial, we find that 

probable cause to search Garza’s Honda existed at the time of 

the search and that the automobile exception to the warrant 

requirement applied. Therefore, though we do not limit our 

analysis to the information provided in the affidavit for the 

search warrant of the Honda, we find that the district court did 

not err in denying the motion to suppress the evidence found 

inside it.

The affidavit in support of the warrant and the testimony at 

trial detail the controlled buys completed in January 2017. A 

controlled buy was described by Jackson at trial as an operation where law enforcement controls as many variables as 

possible. Before sending a CI to buy drugs, the CI is searched 

to be sure the CI does not have any money, contraband, or 

weapons on his or her person. A recording device is affixed 

to the person of the CI, and the CI is given “pre-recorded buy 

money,” which means law enforcement has made photocopies 

of the money for comparison purposes in case the money is 

never recovered. If a car is involved, the CI’s car is searched 

as well. Then law enforcement follows the CI and surveils the 

CI’s activities while the buy is underway. Once a purchase has 

been made, the CI is searched again for any money and the 

drugs. If drugs have been purchased, the drugs are retrieved 

and sent to the laboratory for testing to be sure the items purchased under the controlled conditions are actually controlled 

substances. The testimony of Jackson and the affidavit in support of the warrant specifically described the two controlled 
- 232 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. GARZA

Cite as 29 Neb. App. 223

buys occurring during the 2 weeks prior to Garza’s arrest on 

February 1, 2017.

[9] The January 16, 2017, controlled buy took place in the 

Honda, which encounter was videotaped by law enforcement. 

Jackson confirmed the license plate on the car was actually the 

Honda Accord which was registered to Garza. When the buy 

was complete, the CI was searched by Jackson, the recording 

device was removed from his person, and the drugs were taken 

from him. The CI did not have any of the prerecorded money 

left after making the buy. By the time the February 1 controlled 

buy was underway, the CI had proved to be reliable. 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. Manning, 263 

Neb. 61, 638 N.W.2d 231 (2002). The affidavit and testimony 

make clear that reliable information had already been given 

to law enforcement by the CI. And, law enforcement independently corroborated the January 2017 buys with surveillance. 

The “ruse” for the February 1 controlled buy was to have 

Garza meet the CI at a bank while the CI was in Scottsbluff 

having his income taxes prepared. The purchase was to be an 

ounce of methamphetamine in exchange for $1,400. Audio 

surveillance made it clear the CI was having trouble persuading Garza to come to the bank where video surveillance was 

in place. Jackson then decided to send two other investigators 

to Garza’s location and arrest him there. The other investigators had located Garza sitting in his car in a motel parking lot. 

When Garza was arrested in his car, it was reasonable to expect 

he would have an ounce of methamphetamine ready for sale, 

because a sale had been negotiated and was expected to take 

place near the bank.
- 233 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. GARZA

Cite as 29 Neb. App. 223

Our analysis of the facts contained in the record, along with 

the facts establishing the credibility of the CI, were sufficient 

to establish probable cause to search the Honda. We believe 

there was sufficient information present for law enforcement 

to believe there was a fair probability that contraband or evidence of a drug crime would be found in the car at the time of 

Garza’s arrest. See State v. Goynes, 303 Neb. 129, 927 N.W.2d 

346 (2019), cert. denied ___ U.S. ___, 140 S. Ct. 545, 205 L. 

Ed. 2d 345. See, also, Riley v. California, 573 U.S. 373, 134 S. 

Ct. 2473, 189 L. Ed. 2d 430 (2014). Accordingly, the search of 

the Honda was supported by sufficient probable cause and the 

district court was not clearly wrong in denying the motion to 

suppress the evidence found in the Honda.

Finally, we address Garza’s argument that the scope of the 

search exceeded that authorized by the search warrant. Having 

found that the officers had probable cause to search the Honda 

and that the automobile exception to the warrant requirement 

applies, the allowable scope of the search is not determined by 

the warrant, but by the nature of the contraband or evidence of 

a crime that was being searched for. Here, there is no evidence 

that the search went beyond the Honda or its contents, all of 

which was supported by probable cause.

(b) Search of Schmid Drive Residence

Garza argues the affidavit for a warrant to search his residence on Schmid Drive did not provide probable cause, the 

seizure of firearms from the residence went beyond the scope 

authorized by the search warrant, and the opening of the gun 

safe found in the residence required a separate warrant.

(i) Probable Cause

The search of the Honda resulted in the discovery of Garza’s 

driver’s license, which identified the Schmid Drive address as 

his residence. Garza confirmed this was his address during his 

interview with Jackson at the Gering Police Department after 

his arrest on February 1, 2017. Jackson’s affidavit in support 

of a search warrant for the residence included all of the past 
- 234 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. GARZA

Cite as 29 Neb. App. 223

information regarding the controlled buys made from Garza, 

the arrangements for the buy of an ounce of methamphetamine, 

and the ultimate discovery of 28.7 grams of methamphetamine 

in his car on February 1. The affidavit, drafted on February 

2, also recounts that the original CI reported to Jackson that 

Garza’s girlfriend, Carmen Scott, had spoken to him about getting Garza out of jail. The CI reported Scott knew there was a 

safe at the address which contained at least $3,000 and more 

methamphetamine. The CI reported Scott talked about selling 

the methamphetamine in order to get Garza out of jail. The CI 

reported Scott knew two of the numbers in the combination 

to the safe but did not have the other two. Jackson was also 

aware one of the investigators working on the case listened to 

a jail telephone call between Scott and Garza. During the call, 

Garza reported his mother and brother had the combination to 

the safe. Scott told Garza she had already asked them for the 

combination to no avail. Garza went on to tell Scott there was 

“something in the blue truck that would help” her. Jackson 

was aware that Garza owned a “blue Volvo Semi truck.” The 

information reported by the CI was corroborated by the jail 

telephone call. Jackson concluded his affidavit by indicating 

he had probable cause to believe evidence in the form of “illegal drugs, plastic bags, digital scales, pay/owe sheets, cellular 

phones, and US Currency” were located at the Schmid Drive 

residence “and inside a safe inside the residence.”

[10] The Nebraska Supreme Court set out the standard for 

reviewing the strength of an affidavit for a search warrant in 

State v. Goynes, 303 Neb. 129, 927 N.W.2d 346 (2019), cert. 

denied ___ U.S. ___, 140 S. Ct. 545, 205 L. Ed. 2d 345. The 

court stated:

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 
- 235 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. GARZA

Cite as 29 Neb. App. 223

established probable cause. Probable cause sufficient to 

justify issuance of a search warrant means a fair probability that contraband or evidence of a crime will be found. 

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.

Id. at 138-39, 927 N.W.2d at 353-54.

Applying the standards defined by Goynes, we believe probable cause has been established by the affidavit in support of 

the warrant. The address of the house was confirmed by Garza 

during his interview after his driver’s license was located in the 

Honda. The methamphetamine found in the car was consistent 

with the amount to be sold in the February 1, 2017, controlled 

buy. The CI had proved reliable following two completed controlled buys and his report of a conversation with Garza’s girlfriend about the contents of a safe at the house as evidence of 

criminal activity was independently confirmed by law enforcement. Applying the totality of the circumstances test, we agree 

with the district court that a fair probability existed that contraband or evidence of a crime would be found in the residence. 

Therefore, we find no error in the court’s finding that probable 

cause existed for the search of the house.

(ii) Scope of Warrant

Garza argues the seizure of the firearms at the house 

exceeded the scope of the warrant. His argument is twofold. 

First, he argues that firearms were not included as items to 

be seized in the original warrant for the search of the house. 

Second, he argues that the warrant authorizing the search of 

the house was not sufficient to authorize a search of a safe 

found within the house. We note that during the course of trial, 

evidence was adduced regarding weapons that were found in 

a bedroom in the house and in a gun safe located in the basement of the house. Garza was charged and tried for being a 
- 236 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. GARZA

Cite as 29 Neb. App. 223

felon in possession of two firearms found in the gun safe (an 

SKS rifle and an “AR[-]15 style rifle”) and two guns found 

in a gun safe in his RV (a handgun and a shotgun). He was 

found guilty as to both guns found in the RV and the AR-15 

style rifle found in the house, but was found not guilty as to 

the SKS rifle. He was not tried as to any of the remaining guns 

found elsewhere in the residence. All of the guns found in the 

residence and RV were seized, however, and evidence was presented thereon during trial.

[11-13] We first address the seizure of firearms that were 

not contained in the gun safe. Observing objects in plain view 

violates no reasonable expectation of privacy, which obviates 

the need for a search warrant. Horton v. California, 496 U.S. 

128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990). A warrantless seizure is justified under the plain view doctrine if (1) 

a law enforcement officer has a legal right to be in the place 

from which the object subject to the seizure could be plainly 

viewed, (2) the seized object’s incriminating nature is immediately apparent, and (3) the officer has a lawful right of access 

to the seized object itself. State v. Borst, 281 Neb. 217, 795 

N.W.2d 262 (2011); State v. Vyhnalek, 19 Neb. App. 904, 814 

N.W.2d 768 (2012). For an object’s incriminating nature to be 

immediately apparent, the officer must have probable cause to 

associate the property with criminal activity. State v. Keup, 265 

Neb. 96, 655 N.W.2d 25 (2003).

The Supreme Court has held that “‘“dealers in narcotics 

keep firearms on their premises as tools of the trade almost 

to the same extent as they keep scales, glassine bags, cutting equipment and other narcotics equipment.”’” State v. 

Groves, 239 Neb. 660, 676, 477 N.W.2d 789, 800 (1991) 

(quoting United States v. Milham, 590 F.2d 717 (8th Cir. 

1979)). The Groves court also held that in drug-related prosecutions, evidence relating to guns in a defendant’s possession is relevant. Because law enforcement was investigating 

crimes involving the distribution of narcotics, the incriminating nature of firearms would have been readily apparent to the 
- 237 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. GARZA

Cite as 29 Neb. App. 223

officers lawfully in the home pursuant to the search warrant. 

Seizing the weapons as relevant evidence of illegal drug activity was not unreasonable and did not violate Garza’s Fourth 

Amendment rights.

With regard to the firearms found within the gun safe, several issues must be considered. First, we note that two separate 

affidavits and search warrants relate to the contents of the safe. 

In the first affidavit, the affiant provided specific information 

related from the CI about the presence of methamphetamine in 

the safe. The CI reported that Garza’s girlfriend had told him 

that the safe contained $3,000 cash and methamphetamine, all 

of which could be utilized to bond Garza out of jail. Therefore, 

while the warrant did not specifically authorize the officers to 

search the safe, the safe certainly constituted a place within the 

residence where contraband could be found.

Once the safe was found, Jackson completed an additional 

affidavit for a search warrant. In that affidavit, all of the facts 

contained in the first warrant to search the house were listed. 

The affidavit then included information on what the search 

of the house had revealed to that point, including a bag of 

suspected methamphetamine found on the refrigerator in the 

kitchen, which tested positive in a presumptive test, and the 

guns in the upstairs bedroom. The affidavit also related that a 

safe had been found in the basement. The affidavit requested 

that the police be allowed to further search the house and 

specifically included the safe as something to be searched for, 

among other items, illegal drugs, currency, firearms, ammunition, and items related to firearms such as holsters, gun 

cases, and body armor. A second warrant was issued. It added 

ammunition, body armor, and gun cases to the list of items to 

be obtained, but did not specifically include firearms. In addition, the search warrant itself does not specifically authorize 

the search of the safe, but instead lists only the Schmid Drive 

residence as the place to be searched. While it appears that the 

sole reason law enforcement sought the search warrant was as 

a precautionary step to obtain permission to search the safe, 
- 238 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. GARZA

Cite as 29 Neb. App. 223

the warrant itself is no more specific than the original warrant 

as to the location to be searched.

Despite the shortcomings of the warrant, we find that the 

warrants authorizing the search of the house also authorized 

the search of the safe found in the house. In United States 

v. Ross, 456 U.S. 798, 820-21, 102 S. Ct. 2157, 72 L. Ed. 2d 

572 (1982), the Court stated:

A lawful search of fixed premises generally extends to 

the entire area in which the object of the search may be 

found and is not limited by the possibility that separate 

acts of entry or opening may be required to complete 

the search. Thus, a warrant that authorizes an officer to 

search a home for illegal weapons also provides authority 

to open closets, chests, drawers, and containers in which 

the weapon might be found. . . . When a legitimate search 

is under way, and when its purpose and its limits have 

been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home . . . 

must give way to the interest in the prompt and efficient 

completion of the task at hand.

[14] The Court went on to explain that any container that 

may conceal the object of a search authorized by a warrant 

may be opened immediately. In State v. Salas, 237 Neb. 546, 

466 N.W.2d 790 (1991), the court, applying the foregoing language from Ross, held that officers were not required to seek 

a subsequent search warrant in order to search a locked box 

for narcotics. The search warrant for the premises in which the 

locked box was found was sufficient to authorize the search 

of the box. Here, Jackson took the step of seeking a second 

warrant for the safe. We do not read the warrant which failed 

to list the safe specifically as an indication that the judge was 

denying the police access to the safe. We find, under the facts 

of this case, that by authorizing the police to search the entire 

premises at the Schmid Drive residence, the court did authorize a search of any containers within that residence, including 

the safe located in the basement. Once the safe was opened, 
- 239 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. GARZA

Cite as 29 Neb. App. 223

the firearms located inside were in plain view, were immediately recognized as tools associated with narcotics trafficking, 

and were subject to seizure. The district court was not clearly 

wrong in overruling Garza’s motion to suppress the search of 

the Schmid Drive residence and the safe contained therein.

(c) Search of RV

Garza argues the search of his RV was also illegal for many 

of the same reasons he believes the search of his residence was 

illegal—that probable cause for the search was lacking and 

opening the safe from the RV required a separate warrant.

(i) Probable Cause

The affidavit in support of the application for a warrant 

to search the RV contained all of the facts already known to 

law enforcement and contained in the affidavits in support of 

the warrants for searches of the Honda and the Schmid Drive 

residence. The affidavit also contained additional facts discovered following the search of the home in order to establish 

probable cause for the search of the RV. Jackson reported that 

law enforcement noticed surveillance cameras affixed to the 

Schmid Drive residence and directed toward the street. Once 

inside the home, law enforcement discovered methamphetamine in a plastic bag on top of the refrigerator and four rifles 

in a bedroom. Jackson also reported that during the search 

of the home, Garza’s girlfriend, Scott, was standing a block 

away from the home watching the scene. Jackson approached 

Scott and asked her about the blue truck mentioned in the jail 

telephone call. Scott reported Garza had left her some clothes 

in the blue truck. Scott also told Jackson that she and Garza 

were living in an RV, which was parked at a nearby campground. Jackson specifically identified the RV by its license 

plate number and lot space. Jackson was given authority to 

search for “[i]llegal drugs, plastic bags, digital scales, pay/owe 

sheets, cellular phones, US currency, firearms, ammunition, 

body armor, holsters, gun cases, [and] surveillance systems.” 
- 240 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. GARZA

Cite as 29 Neb. App. 223

Again, applying the flexible totality of the circumstances and 

“fair probability that contraband or evidence of a crime will 

be found” standards as described in State v. Goynes, 303 Neb. 

129, 139, 927 N.W.2d 346, 353 (2019), cert. denied ___ U.S. 

___, 140 S. Ct. 545, 205 L. Ed. 2d 345, we believe the affidavit contained sufficient probable cause that contraband would 

be found in the RV. We therefore believe there was sufficient 

probable cause for the warrant to issue.

(ii) Scope of Warrant

Garza argues that there was no evidence in the affidavit that 

supported probable cause that any weapons previously found 

were linked to criminal activity on Garza’s part. He argues the 

seizure of weapons from the RV, and from the gun safe in the 

RV specifically, was beyond the scope of the warrant, because 

probable cause was lacking to authorize a specific seizure of 

weapons. We previously concluded that firearms are regarded 

as tools of the trade in drug enterprises and that a warrant for 

drug activity is likely to result in the discovery of weapons. 

And because weapons were discovered during the search of 

the home, it was reasonable for law enforcement to conclude 

additional weapons could be found in the search of the RV. We 

believe that there was probable cause to include weapons in the 

warrant for the RV and that the warrant specifically identified 

weapons and ammunition as evidence to be seized. We are not 

persuaded the seizure of the weapons was not supported by 

probable cause or was beyond the scope of the warrant.

Relying on the same rationale for the search of the safe at the 

residence, we do not believe a separate warrant was required 

for the RV gun safe. See, United States v. Ross, 456 U.S. 798, 

102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982); State v. Salas, 237 

Neb. 546, 466 N.W.2d 790 (1991). We have found no authority, nor has Garza directed us to any, which establishes greater 

protections for safes in RVs than safes in homes. The district 

court was not clearly wrong in denying the motion to suppress 

evidence found in the RV.
- 241 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. GARZA

Cite as 29 Neb. App. 223

2. Jury Instruction

[15,16] Garza argues the district court erred by rejecting his 

proposed instruction on constructive possession related to the 

firearms. To establish reversible error from a court’s refusal 

to give a requested instruction, an appellant has the burden to 

show that (1) the tendered instruction is a correct statement 

of the law, (2) the tendered instruction is warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s 

refusal to give the tendered instruction. State v. Parnell, 294 

Neb. 551, 883 N.W.2d 652 (2016). All the jury instructions 

must be read together, and if, taken as a whole, they correctly 

state the law, are not misleading, and adequately cover the 

issues supported by the pleadings and evidence, there is no 

prejudicial error necessitating reversal. Id.

[17] Utilizing NJI2d Crim. 4.2, the district court instructed 

the jury: “Possession of a thing means either knowingly having it on one’s person, or knowing of its presence and having 

the right to exercise dominion and control over it.” Garza 

argues the district court erred in omitting his additional language defining “constructive possession” as proof of ownership, dominion, or control over the contraband itself, coupled 

with the intent to exercise control over the same. Garza emphasizes that the given instruction does not emphasize adequately 

the required intent. We note, however, that the instructions 

included a separate instruction which does define “intent.” 

Moreover, the elements instruction as to each of the firearms 

charges required the jury to find beyond a reasonable doubt 

that Garza possessed each firearm “knowingly and intentionally.” Garza relies on State v. Garza, 256 Neb. 752, 592 

N.W.2d 485 (1999), and State v. Garcia, 216 Neb. 769, 345 

N.W.2d 826 (1984), for this additional language, but neither 

case says the additional language requested is required. If there 

is an applicable instruction in the Nebraska Jury Instructions, 

the court should usually give this instruction to the jury in a 

criminal case. State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 

203 (2014). See, also, State v. Castellanos, 26 Neb. App. 310, 
- 242 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. GARZA

Cite as 29 Neb. App. 223

918 N.W.2d 345 (2018) (affirming use of NJI2d Crim. 4.2 

defining “possession”). We find that the district court did not 

err by failing to give Garza’s proposed instruction.

[18] Garza also argues he was prejudiced when his lawyer’s 

argument to the jury about reading the instructions together 

in order to find “intent to exercise dominion and control” 

was met with “incredulity” by the court and derision by the 

prosecutor. Brief for appellant at 52, 54. However, Garza does 

not assign this action by the court as error. To be considered 

by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party 

asserting the error. Adair Holdings v. Johnson, 304 Neb. 

720, 936 N.W.2d 517 (2020). Therefore, we do not consider 

this argument.

VI. CONCLUSION

We find no error in the district court’s determinations that 

Garza’s motions to suppress should be overruled. We also find 

no error in the district court’s refusal to give Garza’s proposed 

instruction regarding constructive possession. Accordingly, the 

judgment of the district court is affirmed.

Affirmed.