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296 Nebraska Report

STATE v. SALVADOR RODRIGUEZ

Cite as 296 Neb. 950

State of Nebraska, appellee, v. Henry

Salvador Rodriguez, appella

___ N.W.2d ___

Filed June 16, 2017. No. S-16-563.

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. Motions to Suppress: Warrantless Searches: Appeal and Error. 

In reviewing a trial court’s denial of a motion to suppress evidence 

obtained by a warrantless search under the emergency doctrine, an 

appellate court employs a two-part standard in which the first part of 

the analysis involves a review of the historical facts for clear error and 

a review de novo of the trial court’s ultimate conclusion that exigent 

circumstances were present. Where the facts are largely undisputed, the 

ultimate question is an issue of law.

3. Rules of Evidence: Other Acts: Appeal and Error. It is within the 

discretion of the trial court to determine relevancy and admissibility of 

evidence of other wrongs or acts under Neb. Evid. R. 404(2), Neb. Rev. 

Stat. § 27-404(2) (Reissue 2016), and the trial court’s decision will not 

be reversed absent an abuse of discretion.

4. Search and Seizure: Warrantless Searches: Proof. Searches without a 

valid warrant are per se unreasonable, subject only to a few specifically 

established and well-delineated exceptions that must be strictly confined 

by their justifications. The State has the burden of showing the applicability of one or more of the exceptions to the warrant requirement.

5. Search and Seizure: Warrants: Police Officers and Sheriffs. In the 

case of entry into a home, a police officer who has obtained neither an 

Nebraska Supreme Court Online Library

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

06/30/2017 01:11 AM CDT
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arrest warrant nor a search warrant cannot make a nonconsensual and 

warrantless entry in the absence of exigent circumstances.

6. Search and Seizure: Words and Phrases. The “emergency doctrine” 

is a category of exigent circumstances. The elements of the emergency 

doctrine are that (1) the police must have reasonable grounds to believe 

there is an immediate need for their assistance for the protection of life 

or property and (2) there must be some reasonable basis to associate the 

emergency with the area or place to be searched.

7. Constitutional Law: Police Officers and Sheriffs. An action is reasonable under the Fourth Amendment, regardless of the individual officer’s 

state of mind, as long as the circumstances viewed, objectively, justify 

the action.

8. Police Officers and Sheriffs: Probable Cause. The presence of an 

emergency, like probable cause, hinges on the reasonable belief of the 

officers in light of specific facts and the inferences derived therefrom, 

not whether, in hindsight, one actually existed.

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

The first element of the emergency doctrine is similar to probable cause 

and asks whether the facts available to the officer at the moment of 

entry warranted a person of reasonable caution to believe that entry 

was appropriate.

10. Search and Seizure: Police Officers and Sheriffs: Burglary. Courts 

generally find sufficient exigent circumstances to justify the warrantless 

entry into a home when a police officer reasonably believes that a burglary is in progress or was recently committed therein.

11. Burglary. A burglary indicates an immediate need to secure the premises because it raises the possibility of danger to an occupant and the 

continued presence of an intruder.

12. Other Acts: Words and Phrases. Neb. Evid. R. 404(2), Neb. Rev. Stat. 

§ 27-404(2) (Reissue 2016), concerns evidence of other crimes, wrongs, 

or acts. Other acts under rule 404(2) are acts that are not part of the 

events giving rise to the present charges.

13. Indictments and Informations: Words and Phrases. The phrase “on or 

about” in an information indicates the date with approximate certainty.

14. Criminal Law: Time: Words and Phrases. The crime of “possession” 

may extend over a period of time if uninterrupted.

15. Criminal Law: Statutes: Words and Phrases. Absent language indicating differently, “possession” within a criminal statute contemplates a 

continuing offense as opposed to a single incident.

16. Criminal Law: Time: Words and Phrases. An offense is continuing if 

set on foot by a single impulse and operated by an unintermittent force, 

however long a time it may occupy; an offense which continues day by 
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day; a breach of the criminal law, not terminated by a single act or fact, 

but subsisting for a definite period and intended to cover or apply to 

successive similar obligations or occurrences.

17. Evidence: Other Acts: Words and Phrases. Evidence of uncharged 

criminal activity is not considered “other crimes” evidence under Neb. 

Evid. R. 404(1)(b), Neb. Rev. Stat. § 27-404(1)(b) (Reissue 2016), if it 

arose out of the same transaction or series of transactions.

18. Records: Appeal and Error. Where allegedly prejudicial remarks of 

counsel do not appear in the bill of exceptions, an appellate court is 

precluded from considering an assigned error concerning such remarks.

19. Motions for New Trial: Affidavits: Evidence: Records: Appeal and 

Error. Affidavits in support of a motion for new trial must be offered in 

evidence and preserved in and made a part of a bill of exceptions to be 

considered by an appellate court.

20. Motions for New Trial: Testimony: Affidavits: Records: Appeal 

and Error. An appellate court will not review testimony in the form 

of affidavits used in the trial court on the hearing of a motion for new 

trial, unless such affidavits have been included in and presented by a bill 

of exceptions.

Appeal from the District Court for Sheridan County: Travi

P. O’Gorman, Judge. Affir

Travis Penn, of Penn Law Firm, L.L.C., for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.

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

Kelch, and Funke,

Wright, J.

I. NATURE OF CASE

The defendant appeals from his conviction of possession of 

methamphetamine with intent to deliver. At issue is whether 

the trial court should have suppressed evidence found during a 

search with a warrant that was obtained as a result of observing defaced firearms during a prior warrantless search for a 

possible burglar at the request of a houseguest. Also at issue 

is whether the defendant was prejudiced by the admission, 
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without a limiting instruction, of evidence of his drug use 

around the time specified in the information. The defendant 

argued the drug use was evidence of prior bad acts subject to 

Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue 2016). 

The court concluded the drug use was intrinsic to the crime 

charged. Finally, the defendant argues he was prejudiced by 

comments purportedly made by the prosecutor during closing 

arguments erroneously stating that the defendant owned the 

home he lived in.

II. BACKGROUND

Henry O. Salvador Rodriguez was charged with one count of 

possession of methamphetamine with intent to deliver and one 

count of possession of a defaced firearm, both on or about July 

30, 2014. A jury found Salvador Rodriguez guilty of possessing methamphetamine, in an amount of over 10 grams, with 

intent to deliver. The jury found Salvador Rodriguez not guilty 

of possession of a defaced firearm.

1. Warrantless Sea

Salvador Rodriguez sought suppression of all evidence 

obtained during searches of his place of residence conducted 

pursuant to warrants that were issued based on observations 

during an initial warrantless search. The State asserted that 

the warrantless search was reasonable because of the exigent 

circumstance of a possible intruder in the house. Alternatively, 

the State argued the search was authorized by Lori Ezell, who 

had common authority over the house.

(a) Officer Testimony

Officer Adam Wackler testified that on July 23, 2014, he 

responded to a report of a domestic disturbance between Ezell 

and Gilbert Chavez at the apartment where Chavez lived. 

Wackler had responded previously to similar disturbances at 

that apartment. Wackler suggested that Ezell and Chavez spend 

the night apart, and they agreed.
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Ezell told Wackler that she had the key to a friend’s house 

because she was taking care of the friend’s dog and that she 

stayed there when she was not getting along with Chavez. 

Ezell told Wackler that she had a bedroom at that house and 

that she kept some of her and her children’s things there. Ezell 

said she stayed at the house sometimes for just a day, other 

times for 2 weeks; it depended on the situation.

Ezell explained to Wackler that her friends, whom she identified as Salvador Rodriguez and Rosa Anguiano, were out of 

town. She explained that Salvador Rodriguez and Anguiano 

rented the house, hereinafter referred to as the “Salvador 

Rodriguez house.”

Wackler testified that after making a telephone call, Ezell 

reported to him that Salvador Rodriguez and Anguiano had 

given Ezell permission to stay at their house that night. 

Wackler drove Ezell and one of her children to the Salvador 

Rodriguez house.

A couple of hours later, Wackler received another call from 

Ezell. Wackler had given Ezell his work cell phone number 

to use in case things escalated further between Ezell and 

Chavez that night. Ezell seemed upset. She told Wackler that 

she was afraid an intruder was in the Salvador Rodriguez 

house. Wackler met Ezell and her child on a street corner near 

the house.

Ezell told Wackler that she had gone for a walk with her 

child. When she returned to the Salvador Rodriguez house, 

all the lights were on and she thought she saw somebody in 

the garage looking at her. Ezell reported that she had shut and 

locked the door and had turned off all the lights in the house 

before leaving for their walk.

Ezell told Wackler that she was afraid to go back into the 

house, because she knew Salvador Rodriguez and Anguiano 

were not there. She asked Wackler to come and make sure that 

nobody was inside.

When Officer Clay Heath arrived as backup, Wackler and 

Heath approached the Salvador Rodriguez house and observed 
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that the front door was unlocked and open a crack—though in 

later testimony Wackler described that it was closed but was 

not latched closed.

Wackler and Heath entered and proceeded to clear the house 

by looking “anywhere that a person could fit.” They did not 

find anyone in the house. When looking in closets, however, 

Wackler and Heath observed two firearms in plain view. In the 

closet of the kitchen, they observed a shotgun that appeared to 

have the barrel cut off. In the closet of the master bedroom, 

they saw a pistol.

Concerned that someone might be hiding in the house who 

would have access to the weapons, Wackler and Heath made 

sure that the pistol did not have ammunition. They picked it 

up to clear the chamber. In doing so, they found that the pistol’s serial number appeared to have been partially scratched 

off. They returned the pistol and continued their search. It was 

unclear whether Wackler and Heath picked up the shotgun in 

the kitchen.

After ensuring that no one was in the Salvador Rodriguez 

house, Wackler and Heath returned the keys to Ezell. Anguiano 

called Wackler later that night to ask if the house had been 

broken into. Wackler reported that because Ezell did not see 

anything out of place, he did not think so. Wackler confirmed 

with Anguiano that Ezell had permission to stay in the house.

(b) Ezell’s Testimony

Ezell testified that she stayed at the Salvador Rodriguez 

house at least once a week, when she and Chavez would “get 

into it.” She had a bedroom there where she and her children 

slept when they stayed the night. She kept some of her and 

her children’s possessions in that bedroom and had a key to 

the house.

Ezell repeatedly testified that she moved into the Salvador 

Rodriguez house approximately 1 week prior to July 23, 2014. 

But in other testimony, she seemed to indicate that she moved 

into the Salvador Rodriguez house on July 23.
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After moving in, Ezell considered herself a “permanent resident” insofar as she was living there and had all of her and her 

children’s belongings there. She described those belongings as 

clothing, toiletries, medicines, and a crib. Salvador Rodriguez 

and Anguiano told her to “make it like it was [her] own home.” 

She further affirmed that she had “free rein over the entire 

house.” Ezell said she was a “guest” inasmuch as she did not 

pay any bills or rent.

Ezell testified that a couple of hours after Wackler responded 

to the domestic disturbance report, she called Wackler because 

she thought an intruder was inside the Salvador Rodriguez 

house. Salvador Rodriguez and Anguiano were out of town all 

that week. Ezell and her children had gone to get ice cream. 

When they returned, she noticed that a light was on and the 

garage door was open, but she did not think anything of it right 

away. One of her children wanted to go back to get more ice 

cream, and when they exited the house, they saw Ezell’s van 

with all the doors open, including the back hatch. She had left 

all the van doors closed. One of her children screamed that 

someone was in the garage. Ezell testified that she also saw 

someone in the garage.

Sometime after Wackler and Heath searched the house 

and found no intruders, Ezell called Salvador Rodriguez and 

Anguiano. Ezell testified that neither gave her any indication that she did not have authority to ask the police to check 

if there was an intruder in the house. Salvador Rodriguez 

reportedly told her, “‘It’s okay. I had someone go check on 

the house.’”

(c) Subsequent Searches

On July 30, 2014, Wackler and Heath obtained a warrant to 

search the Salvador Rodriguez house, based on their observations of the defaced firearms. A water bill confirmed Salvador 

Rodriguez and Anguiano as the residents, either the owners or 

the renters, of the house. At trial, Wackler testified that photographs inside the home, as well as other documents, such as 
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checkbooks and tax documents, identified Salvador Rodriguez 

and Anguiano as the residents of the house.

When conducting the search pursuant to the warrant, 

Wackler and Heath found what appeared to be methamphetamine under a couch in the basement. On August 2, 2014, 

Wackler and Heath obtained another warrant, to search for 

drugs and drug paraphernalia. In the search conducted pursuant to this second warrant, they found more methamphetamine 

under the couch in the basement, as well as underneath a basement sink.

(d) Trial Court’s Order

The court overruled the motion to suppress. The court 

found that Wackler was called to a domestic dispute between 

Ezell and Chavez and that Ezell had Wackler take her to the 

Salvador Rodriguez house. The court found that Ezell advised 

Wackler that she was housesitting for Salvador Rodriguez and 

Anguiano, had a key to the premises, stayed there off and 

on when she and Chavez were fighting, and had a room at 

the house.

The court found that after a couple of hours, Ezell called 

Wackler and reported that upon her return from a walk, the 

lights of the residence were on and she thought she saw someone in the garage. Ezell told Wackler that she had shut off 

all the lights and locked the door before going for her walk. 

Ezell was frantic, very upset, and scared. She asked Wackler to 

check the house to make sure no one was inside.

The court found that once Heath arrived as backup, the officers approached the house and noticed the lights were on and 

that the door was unlocked and not entirely shut. They entered 

the house and searched the house only in locations where it 

was reasonable that a person could hide.

In the closet of the master bedroom, the officers saw a 

revolver. The court found that for their safety, Wackler and 

Heath decided to clear the handgun of any ammunition. In 

doing so, they noticed that the serial number had been altered 
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or filed and that it was defaced. After clearing the bedroom, 

the officers searched a closet in the kitchen that was large 

enough for a person to hide in. Inside, they found a shotgun 

that appeared to have been altered.

The trial court concluded that the warrantless search at 

issue was reasonable under the Fourth Amendment either as a 

search undertaken with consent or as a search conducted under 

exigent circumstances. With regard to its conclusion that the 

search was undertaken with consent, the court reasoned that 

Wackler had a reasonable basis to conclude that Ezell had 

common authority over the house at that time. With regard to 

the exigent circumstances, the court reasoned that Wackler had 

reasonable grounds to believe that there was an emergency and 

that the clearing of the guns found during the search did not 

exceed the scope of the exigency.

(e) Evidence Seized During Searches

The motion to suppress was overruled. The evidence adduced 

at trial showed that a total of approximately 340 grams of 

methamphetamine was seized during a search of the Salvador 

Rodriguez house. From the master bedroom, the officers also 

seized the pistol and drug paraphernalia; they did not find the 

sawed-off shotgun.

2. Prior Drug 

The prosecution offered testimony by Ezell describing 

Salvador Rodriguez’ drug usage and how he kept methamphetamine under the basement couch and provided the drug 

to her and other guests. No notice was filed by the State prior 

to trial advising Salvador Rodriguez that it intended to adduce 

any evidence of prior bad acts under rule 404(2), and Salvador 

Rodriguez did not file any pretrial motions concerning the 

possible admission of prior bad acts. No hearing pursuant to 

rule 404(3) was conducted outside the presence of the jury to 

determine whether the State proved by clear and convincing 

evidence that a prior crime, wrong, or act occurred.
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Ezell testified, without objection, that she and Salvador 

Rodriguez used methamphetamine together in the basement of 

the Salvador Rodriguez house as follows:

Q[.] Once you became friends with [Anguiano] 

did you also get to know [Salvador Rodriguez] better 

as well?

A[.] Yes.

Q[.] In what way?

A[.] We both shared a habit that we used together.

Q[.] Well, let’s talk about that. You said you shared a 

habit that you used together. What do you mean by that?

A[.] We both used meth.

. . . .

Q[.] And when you began using methamphetamine, 

how did it happen that you started using it?

A[.] The owners of the plant first offered it to me at a 

party. And that’s when I very first started using it.

Q[.] And you said that you and [Salvador Rodriguez] 

shared in that habit. What did you mean by that?

A[.] After I got to know him a little better, I found out 

that he also smoked meth and so we would smoke meth 

together.

Q[.] And where would you typically do that?

A[.] At his house.

Q[.] Where at in the house?

A[.] In the basement.

When the prosecutor proceeded after this questioning to 

ask if other people smoked methamphetamine with Ezell and 

Salvador Rodriguez, defense counsel objected for the first 

time. Defense counsel objected on the ground that the line of 

questioning violated rule 404. The court sustained the objection, but denied defense counsel’s motion to strike Ezell’s 

testimony that she and Salvador Rodriguez smoked methamphetamine together.

When the prosecutor pursued further questioning about 

Ezell’s and Salvador Rodriguez’ drug usage, the attorneys 
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approached the bench for an off-the-record discussion. 

Questioning about drug usage after that was focused on the 

summer of 2014. Defense counsel made a continuing objection to “any evidence regarding past use of drugs” as being in 

violation of [rule 404]. The court overruled the objection.

Ezell then testified that two or three times a week she 

smoked methamphetamine with Salvador Rodriguez in his 

basement. Other people were sometimes present. The methamphetamine that anyone used in the basement always came from 

underneath the basement couch.

Ezell also testified that she once saw Anguiano with a large 

amount of cash. Ezell testified that on the day of the “raid” 

on the house, Salvador Rodriguez admitted to her that law 

enforcement would find large quantities of methamphetamine 

there, because he was a dealer.

After the State’s case in chief, defense counsel called several character witnesses who testified generally as to Salvador 

Rodriguez’ good character and testified that Salvador Rodriguez 

was not a drug user or abuser.

At the jury instruction conference, defense counsel conceded that he was not arguing that the evidence of Salvador 

Rodriguez’ drug usage with Ezell was inadmissible. Defense 

counsel asked for a jury instruction that would ensure the jury 

would use the evidence for its independent relevance and not 

for propensity reasoning. The trial court denied the request and 

did not instruct the jury on the proper purpose for which it 

could consider the evidence of Salvador Rodriguez’ drug use. 

The court reasoned that the drug use was not prior bad acts, but 

instead was an integral part of and contributed to the factual 

setting of the crime charged.

3. Closing Argume

No record was made of closing arguments. Neither did 

Salvador Rodriguez make an offer of proof concerning any 

statements allegedly made during closing arguments. In a 

motion for new trial, defense counsel alleged that the prosecutor 
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stated in closing arguments that Salvador Rodriguez “‘owned’” 

the house where the methamphetamine was found. The motion 

further alleged that defense counsel’s objections to such testimony were overruled. Defense counsel attached to the motion 

an affidavit averring that the factual allegations in the motion 

for new trial were true.

The jury was instructed that “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. During deliberations, the jury asked, “Is there any other 

evidence that [Salvador Rodriguez] had leased or rented the 

house?” and “Does ownership/lease equate to liability?” The 

court answered that the jury had received all the evidence and 

must refer to the jury instructions.

III. ASSIGNMENTS OF ERROR

Salvador Rodriguez assigns that the trial court erred when 

it (1) overruled his motion to suppress evidence gained as a 

result of the warrantless search of his residence, (2) allowed 

evidence of past methamphetamine use, (3) gave no limiting 

instruction concerning for what limited purpose the evidence 

of past methamphetamine use was allowed, and (4) overruled 

his objection during closing arguments to the State’s comments 

that he owned the house where he lived.

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

1 State v. McCumber, 295 Neb. 941, 893 N.W.2d 411 (2017).
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[2] In reviewing a trial court’s denial of a motion to suppress 

evidence obtained by a warrantless search under the emergency 

doctrine, an appellate court employs a two-part standard in 

which the first part of the analysis involves a review of the 

historical facts for clear error and a review de novo of the trial 

court’s ultimate conclusion that exigent circumstances were 

present.2 Where the facts are largely undisputed, the ultimate 

question is an issue of law.3

[3] It is within the discretion of the trial court to determine 

relevancy and admissibility of evidence of other wrongs or 

acts under rule 404(2), and the trial court’s decision will not be 

reversed absent an abuse of discretion.4

V. ANALYSIS

Three basic issues are raised in this appeal. First, Salvador 

Rodriguez asserts that the court should have suppressed the 

physical evidence found in his home, because it was the fruit 

of a warrantless search. Second, Salvador Rodriguez argues he 

was prejudiced by the lack of a limiting instruction concerning 

what he contends was evidence of prior bad acts within the 

purview of rule 404. Lastly, Salvador Rodriguez argues there 

was prosecutorial misconduct during closing arguments when 

the prosecutor falsely stated Salvador Rodriguez owned the 

home where he resided.

1. Motion to Suppress Evidence 

in Warrantless Se

[4] Searches without a valid warrant are per se unreasonable, subject only to a few specifically established and 

well-delineated exceptions that must be strictly confined by 

their justifications.5 The State has the burden of showing the 

2 See State v. Eberly, 271 Neb. 893, 716 N.W.2d 671 (2006).

3 State v. Modlin, 291 Neb. 660, 867 N.W.2d 609 (2015).

4 State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).

5 See, State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017); State v. Perry, 

292 Neb. 708, 874 N.W.2d 36 (2016).
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applicability of one or more of the exceptions to the warrant requirement.6

[5] In the case of entry into a home, a police officer who has 

obtained neither an arrest warrant nor a search warrant cannot 

make a nonconsensual and warrantless entry in the absence of 

exigent circumstances.7 The trial court found that the search 

of the Salvador Rodriguez house was justified by the exigent 

circumstance of a possible burglary in progress and by being, 

regardless, consensual.

The question presented on appeal is whether the trial court 

was correct in determining that the warrantless search was constitutional because a reasonable officer would have believed 

either that (1) a burglary was in progress or (2) Ezell had 

authority to consent to the search. The parties do not dispute 

that if the warrantless search was unreasonable, the court 

should have suppressed evidence of the items seized during 

subsequent searches pursuant to warrants based on the items 

observed during the warrantless search. The parties do not 

dispute that if the warrantless search was reasonable, any handling of the weapons in plain view in order to ensure officer 

safety was within the proper scope of the search.

We conclude that the exigent circumstance of a possible 

burglary in progress justified the warrantless search, and we 

need not address the alternative basis from the trial court’s 

order that Ezell had authority to consent to the search.

[6] The “‘emergency doctrine’” is a category of exigent circumstances.8

 The elements of the emergency doctrine are that 

(1) the police must have reasonable grounds to believe there 

is an immediate need for their assistance for the protection of 

life or property and (2) there must be some reasonable basis to 

associate the emergency with the area or place to be searched.9

6 State v. Perry, supra note 5.

7 See State v. Eberly, supra note 2.

8 See id. at 900, 716 N.W.2d at 677.

9 See id.
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The first element considers whether there were reasonable 

grounds to find an emergency, and the second element considers the reasonableness of the scope of the search.10 Salvador 

Rodriguez focuses only on the first element and argues that 

reasonable police officers would not have had grounds under 

these facts to believe there was an immediate need for their 

assistance for the protection of life or property.

[7-9] An action is reasonable under the Fourth Amendment, 

regardless of the individual officer’s state of mind, as long as 

the circumstances viewed, objectively, justify the action.11 The 

presence of an emergency, like probable cause, hinges on the 

reasonable belief of the officers in light of specific facts and 

the inferences derived therefrom, not whether, in hindsight, one 

actually existed.12 The first element of the emergency doctrine 

is similar to probable cause and asks whether the facts available to the officer at the moment of entry warranted a person 

of reasonable caution to believe that entry was appropriate.13

[10,11] Courts generally find sufficient exigent circumstances to justify the warrantless entry into a home when a 

police officer reasonably believes that a burglary is in progress 

or was recently committed therein.14 A burglary indicates an 

immediate need to secure the premises, because it raises the 

possibility of danger to an occupant and the continued presence 

of an intruder.15

In State ex rel. Zander v. District Court,

16 the court found 

that an officer reasonably believed a burglary might be in 

progress in a house after a neighbor reported that he knew 

10 See id.

11 See id.

12 See id.

13 See State v. Eberly, supra note 2.

14 See id. See, also, Annot., 64 A.L.R.5th 637 (1998) (and cases cited 

therein).

15 See State v. Eberly, supra note 2.

16 State ex rel. Zander v. District Court, 180 Mont. 548, 591 P.2d 656 (1979).
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no one was at home, he saw someone tampering with a window in the home, and the door to the home was always kept 

locked. The investigating officer found no signs of tampering 

at the window, but after knocking on the door and receiving 

no response, the officer found the door unlocked when he 

tested the handle.17 The court concluded it was reasonable for 

the officer, believing a burglar might be hiding in the house, 

to search without a warrant those areas of the house where a 

burglar might be hiding.18

In Hill v. Com.,

19 the court similarly found that officers reasonably believed a burglar might be in a house that was the 

subject of a warrantless search. A neighbor reported that the 

occupant of the house had been out of town for 2 days and 

that the front door of his house was open. When the officers 

arrived, they observed that the front door was ajar approximately 12 to 15 inches and that no one answered the door 

when they rang the doorbell and knocked on the storm door.20

The court found that under such circumstances, it was reasonable to search without a warrant those places inside the house 

where a burglar might hide.21

The court in Hill explained that the situation of a possible 

burglary in progress required prompt action and an immediate, 

warrantless entry. It was the officers’ duty to determine if the 

house had been burglarized, to apprehend any burglar, and to 

resecure the premises.22 It would have been impractical, the 

court noted, for one officer to go for a warrant while the other 

attempted to secure the premises from all sides.23

17 Id.

18 Id.

19 Hill v. Com., 18 Va. App. 1, 441 S.E.2d 50 (1994). See, also, e.g., Love v. 

State, 290 Ga. App. 486, 659 S.E.2d 835 (2008).

20 Hill v. Com., supra note 19.

21 Id.

22 Id.

23 Id.
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In contrast to State ex rel. Zander and Hill, in United States 

v. Selberg,

24 the court held there were insufficient facts for a 

reasonable officer to believe that warrantless entry was appropriate. The neighbor who called the police saw the occupant 

leave the door open when he left, observed that the door 

remained open the following day, and observed that the occupant’s car was still gone. No occupant answered to knocks on 

the door.25 The court found that under such facts, the warrantless search of the home was unreasonable.26

We find no clear error in the trial court’s findings concerning the historical facts. Ezell told Wackler that Salvador 

Rodriguez and Anguiano, who leased the house, were out of 

town, and that she and her child were the only occupants in 

the house before they went for a walk. Ezell told Wackler that 

when they left for their walk, they turned off all the lights in 

the house and locked the doors. Ezell told Wackler that when 

they returned, they saw someone in the garage and all the 

lights in the house were on. Wackler and Heath confirmed that 

the lights of the house were on, and they found that the front 

door of the house was unlocked and not entirely shut.

In our de novo review, we agree with the trial court that 

these facts, taken together with rational inferences therefrom, 

reasonably warranted an immediate intrusion of the Salvador 

Rodriguez house into areas where a burglar might be hiding. 

The officers had reasonable grounds to believe that there was 

an emergency requiring an immediate warrantless search of 

the house. The trial court did not err in overruling Salvador 

Rodriguez’ motion to suppress.

2. Drug Use as Prior B

Salvador Rodriguez’ second assignment of error concerns Ezell’s testimony that she smoked methamphetamine 

24 United States v. Selberg, 630 F.2d 1292 (8th Cir. 1980). See, State ex rel. 

Zander v. District Court, supra note 16; Hill v. Com., supra note 19.

25 United States v. Selberg, supra note 24.

26 Id.
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with Salvador Rodriguez and other guests and that Salvador 

Rodriguez provided the methamphetamine which he kept underneath his basement couch. Salvador Rodriguez argues that the 

court committed error because the testimony was admitted as 

intrinsic evidence rather than as other acts evidence admitted 

for a proper purpose under rule 404(3). Specifically, he argues 

he was prejudiced by a lack of an instruction to the jury to 

consider the evidence only for its proper purpose.

[12] We find no error in the trial court’s determination that 

Ezell’s testimony was direct evidence of the crime charged and 

thus outside the purview of rule 404. Rule 404(2) concerns 

“[e]vidence of other crimes, wrongs, or acts.” Other acts under 

rule 404(2) are acts that are not part of the events giving rise to 

the present charges.27

Salvador Rodriguez was charged with possession of methamphetamine with intent to deliver “on or about” July 30, 

2014, the date when officers found methamphetamine underneath Salvador Rodriguez’ basement couch. Defense counsel 

objected to Ezell’s testimony that during the summer of 2014, 

she had observed Salvador Rodriguez in possession of methamphetamine which he kept underneath the basement couch.

[13-16] The phrase “on or about” in an information indicates the date with approximate certainty.28 Furthermore, the 

crime of “possession” may extend over a period of time if 

uninterrupted.29 Absent language indicating differently, “possession” within a criminal statute contemplates a continuing 

offense as opposed to a single incident.30 There is no indication 

27 U.S. v. Gorman, 312 F.3d 1159 (10th Cir. 2002). See State v. Cullen, 292 

Neb. 30, 870 N.W.2d 784 (2015). See, also, e.g., U.S. v. Carboni, 204 F.3d 

39 (2d Cir. 2000); U.S. v. Kinshaw, 71 F.3d 268 (8th Cir. 1995); U.S. v. 

Soliman, 813 F.2d 277 (9th Cir. 1987); U.S. v. Fortenberry, 971 F.2d 717 

(11th Cir. 1992).

28 See State v. Metzger, 199 Neb. 186, 256 N.W.2d 691 (1977).

29 State v. Williams, 211 Neb. 650, 319 N.W.2d 748 (1982).

30 See id.
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the Legislature intended that possession of methamphetamine 

should always be a single incident rather than a continuing 

offense. An offense is continuing if

“set on foot by a single impulse and operated by an 

unintermittent force, however long a time it may occupy; 

an offense which continues day by day; a breach of the 

criminal law, not terminated by a single act or fact, but 

subsisting for a definite period and intended to cover or 

apply to successive similar obligations or occurrences.”31

[17] In U.S. v. Towne,

32 the court held that evidence of the 

defendant’s possession of a pistol on days other than the date 

described in the information charging him with being a felon 

in unlawful possession of a pistol was not evidence of other 

acts within the meaning of Fed. R. Evid. 404(b), the federal 

equivalent to our rule 404(2). The continuous possession of the 

gun, the court explained, constituted a single offense. And evidence of uncharged criminal activity is not considered “‘other 

crimes’” evidence under that rule if it “‘arose out of the same 

transaction or series of transactions.’”33

Justice Cassel in his concurring opinion in State v. 

Freemont34 discussed several analogous cases holding that 

evidence of possession on dates other than those specified 

in the information is direct evidence of the charged crime of 

possession rather than other acts evidence.35 The defendant in 

Freemont was charged with second degree murder. In addition, 

31 Id. at 655, 319 N.W.2d at 751, quoting 22 C.J.S. Criminal Law § 1 (1961).

32 U.S. v. Towne, 870 F.2d 880 (2d Cir. 1989). Compare U.S. v. Bowie, 232 

F.3d 923 (D.C. Cir. 2000) (affirmative evidence that is not same item 

previously observed).

33 See U.S. v. Towne, supra note 32, 870 F.2d at 886.

34 State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012) (Cassel, J., 

concurring).

35 See, U.S. v. Dorsey, 677 F.3d 944 (9th Cir. 2012); U.S. v. Adams, 604 F.3d 

596 (8th Cir. 2010); United States v. Mitchell, 613 F.2d 779 (10th Cir. 

1980).
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he was charged with use and possession of a deadly weapon. 

Justice Cassel reasoned that evidence that the defendant had 

been seen a week prior with a gun similar to the one used in 

the shooting bore directly on an element of the possession 

charge and therefore was not other acts evidence. Noting that 

the crime of possession stated in the information was committed “‘on or about’” the date specified, he concluded that the 

evidence of the possession days before was “not so removed 

in time as to lose its temporal connection to the charged date 

of possession.”36

The majority in Freemont held that the evidence of the 

defendant’s possession of a gun before the date specified in 

the information was other acts evidence. But we failed to 

discuss the concept of continuing possession. We have since 

explained that our holding in Freemont is limited to circumstances where the offense of possession is entirely different 

from the most serious charged offense.37 That is not the situation presented here.

We find the reasoning in Towne38 is applicable to this case. 

Ezell’s testimony supports the inference that in July 2014, 

Salvador Rodriguez gradually consumed with his acquaintances 

a stash of methamphetamine that he kept in his basement.

In the objected-to testimony, Ezell did not testify that 

Salvador Rodriguez had committed on unrelated occasions 

the crime of possession of methamphetamine with intent to 

deliver, such that he had the character trait of being the type 

of person who possesses methamphetamine with intent to 

deliver. Rather, Ezell’s testimony was direct evidence that on 

or about July 30, 2014, Salvador Rodriguez was engaged in a 

series of transactions constituting the crime of possession of 

36 State v. Freemont, supra note 34, 284 Neb. at 212, 213, 817 N.W.2d at 

303, 304 (Cassel, J., concurring).

37 State v. Cullen, supra note 27.

38 U.S. v. Towne, supra note 32.
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methamphetamine with intent to deliver. This is not other acts 

evidence. Ezell’s testimony did not require an intermediate 

propensity inference in order for the trier of fact to have concluded based on that testimony that Salvador Rodriguez committed the crime charged. The court did not err in overruling 

defense counsel’s rule 404 objection.

3. Comments in Closing Argu

[18] Salvador Rodriguez asserts there was prosecutorial misconduct in closing arguments. But the closing arguments were 

not recorded in the bill of exceptions. It is the law in Nebraska 

that, where allegedly prejudicial remarks of counsel do not 

appear in the bill of exceptions, this court is precluded from 

considering an assigned error concerning such remarks.39 We 

mentioned in State v. Harris40 that counsel could have made an 

offer or proof when closing arguments were not in the record. 

But here, the only “evidence” of the statements made in closing arguments is an affidavit attached to the motion for new 

trial in which the defense attorney avers that the factual allegations in the motion are true.

[19,20] It has long been the law of this state that affidavits 

in support of a motion for new trial must be offered in evidence 

and preserved in and made a part of a bill of exceptions to be 

considered by this court.41 This court will not review testimony 

in the form of affidavits used in the trial court on the hearing 

of a motion for new trial, unless such affidavits have been 

included in and presented by a bill of exceptions.42

Salvador Rodriguez argues he was unfairly prejudiced 

when the prosecutor said in closing arguments that Salvador 

39 State v. Harris, 205 Neb. 844, 290 N.W.2d 645 (1980).

40 See id.

41 Metschke v. Department of Motor Vehicles, 186 Neb. 197, 181 N.W.2d 

843 (1970), overruled on other grounds, State v. Perez, 235 Neb. 796, 457 

N.W.2d 448 (1990).

42 Id.
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Rodriguez owned the house where the methamphetamine was 

found. Defense counsel averred that in his closing arguments, 

he corrected this and told the jury that Salvador Rodriguez 

was only a tenant and had no legal ownership in the house. 

Even assuming the prosecution made the statements alleged, 

the prosecutor’s remarks were not misconduct and Salvador 

Rodriguez was not prejudiced. The ownership of the house was 

not decisive of any issue in the case, and there was no allegation that the prosecutor told the jury that ownership of the residence was relevant to the crimes charged. We find no merit to 

this last assignment of error.

VI. CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court.

Affirmed