State v. Armendariz
| Decision Date | 29 December 1989 |
| Docket Number | No. 89-215,89-215 |
| Citation | 449 N.W.2d 555,234 Neb. 170 |
| Court | Nebraska Supreme Court |
| Parties | STATE of Nebraska, Appellee, v. John J. ARMENDARIZ, Appellant. |
Syllabus by the Court
1. Search Warrants: Probable Cause. Probable cause for the issuance of a search warrant is reasonable suspicion founded on articulable facts.
2. Search Warrants: Probable Cause: Affidavits. If the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying hearsay information, indicate that there is a fair probability that evidence of a crime may be found at the place described, the affidavit is sufficient.
3. Search Warrants. A search warrant designated as authorizing a nighttime search may lawfully be served in the daytime.
4. Search Warrants: Controlled Substances: Judicial Notice. A court may take judicial notice that substances such as cocaine may be easily disposed of by flushing down a drain, justifying the issuance of a no-knock search warrant.
Thomas M. Kenney, Douglas County Public Defender, and Timothy P. Burns, for appellant.
John J. Armendariz, pro se.
Robert M. Spire, Atty. Gen., and Kenneth W. Payne, for appellee.
This is an appeal from the judgment of conviction and sentence for the offense of possession of a controlled substance, cocaine, Neb.Rev.Stat. § 28-416(3) (Cum.Supp.1988). The appellant was sentenced to the maximum term for a Class IV felony, 20 months' to 5 years' imprisonment, and given credit for 95 days spent in custody prior to sentencing.
The appellant, pro se, and his counsel assign various errors, some relating to the issuance and execution of a search warrant for the premises at 1901 Park Avenue, apartment No. 2, Omaha, Nebraska; a certain 1966 Chevrolet Impala automobile; and the persons of John J. Armendariz and a female companion named Annette. Other assignments by the appellant, pro se, relate to the alleged incompetence of trial counsel.
The assignments are: (1) The affidavit was insufficient to establish probable cause for the search; (2) the warrant authorizing a nighttime search was executed in the daytime hours; (3) the use of a no-knock warrant in this case was constitutionally prohibited and not authorized by the statute; (4) defense counsel failed to inquire as to the credibility of the confidential informant whose information was relied on by the police and the issuing court; and (5) the evidence was insufficient to support the conviction. We will consider the errors in order.
In evaluating showing of probable cause necessary to support issuance of a warrant, only probability and not prima facie evidence of criminal activity is required. Probable cause is reasonable suspicion founded on articulable facts. State v. Cullen, 231 Neb. 57, 434 N.W.2d 546 (1989). In State v. Duff, 226 Neb. 567, 412 N.W.2d 843 (1987), we noted that the Aguilar- Spinelli tests for sufficiency of an affidavit were abandoned in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), in favor of the totality of circumstances test. This court defined this test as meaning that if the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying hearsay information, indicate that there is a fair probability that evidence of a crime may be found at the place described, the affidavit is sufficient.
With the above considerations in mind, we consider the sufficiency of the affidavit. The affidavit, dated November 2, 1988, describes the places and persons to be searched and recites that within 48 hours of November 1, Omaha Police Sergeant Mark T. Langan was contacted by a confidential informant (previously reliable and responsible for a number of controlled purchases of cocaine). The informant observed the appellant and Annette conducting possible drug transactions. The informant advised Langan that the appellant sells cocaine exclusively during nighttime hours because of limited surveillance opportunities.
Surveillance was established on appellant, identifying his place of residence. Surveillants observed appellant's meeting with a male at a restaurant parking lot and observed him and his female companion enter an apartment complex at 67th and Grover Streets, and from there go to an outside pay phone at 60th and Grover Streets. From the pay phone, the appellant drove to 29th and Jackson Streets, where Annette left the car. Later, Annette returned to the car, which then left the scene.
The informant again contacted Langan and stated that he had observed appellant in the described car with a quantity of prepackaged cocaine and that appellant had access to additional amounts of cocaine and was selling it in the Omaha area. The informant also observed appellant with a large amount of currency, which, the informant said, appellant stated was made through his cocaine sales.
On a third occasion, the informant again contacted Langan. The informant advised Langan that appellant had told him that he had a quantity of cocaine for sale at the searched address. The three contacts and observations were made within 72 hours of the affidavit and warrant. In addition, two previous anonymous callers informed police that appellant was a cocaine dealer.
The affidavit also recites a previous conviction for possession of a controlled substance in 1979. The affidavit requested that a no-knock warrant be issued, since the narcotics could be easily destroyed. It further requested a nighttime warrant. The county court issued the warrant, and the same was executed on November 2, 1988. In the search, the officers recovered from the apartment a substance later identified at trial as cocaine.
As to the first assignment, the totality of the circumstances support the trial court's finding that there was a fair probability that evidence of a crime would be found at the place to be searched....
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