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Nebraska Supreme Court Announces Probation Search Unlawful When Conducted After Original Term Expired and Before Hearing on Extending Term

by Matthew Clarke

The Supreme Court of Nebraska held that a term of probation cannot be extended beyond its expiration date based on the mere fact that an Information for Revocation of Probation (“IRP”) had been filed and a revocation hearing could not reasonably be scheduled prior to the expiration date. Thus, it held, methamphetamine discovered pursuant to a search conducted after the expiration date and under the purported authority of the terms of probation had to be suppressed as the search was not voluntary and no search warrant was obtained.

Charles J. Simons was sentenced to serve an 18-month term of probation. About two months before the term was to expire, the State filed an IRP because Simons had been arrested for driving under the influence of drugs. Less than three weeks before the term was due to expire, Simons was arraigned in court and requested a court-appointed attorney. The request was granted.

Three days prior to the expiration date, the court held a second arraignment, during which it informed Simons that he would remain on probation. Two days after the expiration date, the court granted Simons a requested 30-day continuance.

The revocation hearing was not held for another 15 months. Shortly before the revocation hearing, two probation officers went to the house owned by Simons’ parents where he was residing to conduct a probation search. One of them testified that Simons had been “ordered to comply with the search” and would have been arrested had he not done so. Simons permitted the search and led the probation officers to his bedroom, where they found marijuana, marijuana paraphernalia, and a glass pipe with methamphetamine residue in it.

The State filed an information against Simons for possession of methamphetamine. He filed a motion to suppress the methamphetamine in which he argued that the search was unlawful because Neb. Rev. Stat. §§ 29-2267 and 29-2268 require a revocation hearing be held before probation is revoked or the requirements of its terms increased. Further, he contended that he did not freely or voluntarily consent to the search.

The court denied the motion, concluding that Simmons was still on probation when the search occurred. It ruled that Simmons was only entitled to “prompt consideration” upon a filing of an information for revocation, citing State v. Windels,503 N.W.2d 834 (Neb. 1993), and State v. Hernandez, 730 N.W.2d 96 (Neb. 2007). Simmons was subsequently convicted in a bench trial and sentenced to two years’ imprisonment followed by post-release supervision.

Aided by Chief Deputy Madison County Public Defender Chelsey R. Hartner, Simmons timely appealed. The state Supreme Court held that § 29-2263(1) requires that a court specify the term of probation when sentencing a defendant to probation. Further, § 29-2263(4) states that, upon completion of the term, “the probationer shall be relieved of any obligations imposed by order of the court and shall have satisfied the sentence.”

The Court has expanded § 29-2263(5), which permits the sentencing court to add to the original term when a probationer absconds, to include failure to comply with the terms of probation. State v. Phillips, 924 N.W.2d 699 (Neb. 2019). However, § 29-2267(1) plainly prohibits an increase in the probation terms prior to affording the probationer proper notice and a hearing and establishing the violation by clear and convincing evidence. Thus, the mere filing of an information is insufficient to justify increasing the term. Therefore, at the time of the search, Simmons was no longer on probation and the methamphetamine must be suppressed as he did not freely and voluntarily consent to the search, the Court ruled.

Accordingly, the Court reversed Simons’ conviction, vacated the sentence, and remanded for further proceedings. See: State v. Simons, 996 N.W.2d 607 (Neb. 2023).  

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State v. Simons



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