State v. Barker
| Decision Date | 30 September 2003 |
| Docket Number | No. A-02-1271.,A-02-1271. |
| Parties | State of Nebraska, appellee, v. Roger W. Barker, appellant. |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Buffalo County: John P. Icenogle, Judge. Affirmed.
Charles D. Brewster, of Brewster Law Offices, for appellant.
Jon Bruning, Attorney General, and Mark D. Raffety for appellee.
Roger W. Barker appeals his conviction and sentence for manufacturing a controlled substance. The primary issues are whether a search warrant was invalid such that certain evidence should have been suppressed and that certain expert testimony lacked sufficient foundation.
On April 9, 2002, Investigator Buck Boje of the Nebraska State Patrol in Broken Bow was contacted by Investigator Lee Jacobsen of the Nebraska State Patrol in Kearney. Investigator Jacobsen had received surveillance tapes from the Target department store located in Kearney. The surveillance tapes showed three individuals entering the store on April 8 at approximately 9 p.m. The individuals entered separately, and each purchased boxes of Sudafed (pseudoephedrine) and then exited the store and got into one vehicle. The license plate number on the vehicle was identified as belonging to the Downing family of Broken Bow. Investigator Boje was able to identify two of the individuals on the tapes as being Joshua Curlile and Ryan Downing. The third individual was later identified as Jerron Ruzicka.
On April 11, 2002, Investigator Boje individually contacted both Curlile and Downing and requested that they come to the State Patrol office in Broken Bow to discuss the events of April 8. When asked, Downing denied being present at the Target store until after being confronted with the surveillance tapes. He also denied going anywhere with Curlile after being at the Target store. Curlile, however, told Investigator Boje and another officer that on April 8, he, along with Downing and Ruzicka, had purchased lithium batteries and approximately 20 boxes of Sudafed from the Target, K mart, Wal-Mart, and Dollar General stores in Kearney. He indicated that the items were to be used in making methamphetamine. Curlile also stated that in the early morning hours of April 9, he, Downing, and Ruzicka went to "Roger's" house, which was located approximately 10 miles south of Ravenna, Nebraska, in Buffalo County, where they "cooked" and consumed methamphetamine. The house was later identified as belonging to Barker. Curlile gave a handwritten statement recounting the above facts. Curlile also reached a plea agreement that day with the Custer County Attorney that his pending charges for second degree forgery and misdemeanor drug paraphernalia be dropped. However, the record is unclear whether the plea agreement was made before or after he provided the information.
After Curlile gave his statement to Investigator Boje, he accompanied Investigator Boje to Grand Island, where they met with Investigator Wendy Brehm. Curlile recounted his story to Investigator Brehm, who then prepared an affidavit and a search warrant for Barker's residence. The affidavit did not state that the charges against Curlile were dropped in exchange for his statement; nor did it mention that Downing had given a statement that was different from Curlile's. The Buffalo County judge found probable cause and issued the search warrant.
On April 12, 2002, various law enforcement officers executed the search warrant on Barker's residence. When the warrant was executed, Barker was not present, but Ruzicka and another individual were at the residence. During the execution of the warrant, several items, including lithium battery casings, were seized from the residence and surrounding property. Some of the items seized were known to be used in the production of methamphetamine. Other items contained a white substance which was identified as methamphetamine. Barker was arrested shortly thereafter.
Barker was charged in the district court for Buffalo County under Neb. Rev. Stat. § 28-416 (Cum. Supp. 2002) with one count of manufacturing a controlled substance and one count of possession of a controlled substance with the intent to deliver. As mentioned above, the controlled substance here was methamphetamine, classified under Neb. Rev. Stat. § 28-405(c)(3) [Schedule II] (Supp. 2001). Under § 28-416(2)(b), any person who knowingly or intentionally manufactures, distributes, delivers, or dispenses a Schedule II controlled substance is guilty of a Class III felony, with some exceptions not applicable to this case.
At the close of the State's evidence in Barker's jury trial, his counsel moved for a directed verdict on the charge of possession of a controlled substance with the intent to deliver on the ground that the State had failed to establish intent to distribute. The motion was granted. Barker's counsel also moved for a directed verdict on the charge of manufacturing a controlled substance on the ground that the State had failed to establish a prima facie case. The motion was denied. Counsel later renewed his motion for a directed verdict on the same ground, which renewed motion was also denied. The jury found Barker guilty of manufacturing a controlled substance. Barker's counsel moved for a new trial on the grounds that the court had overruled Barker's motion to suppress evidence and that the State had failed to show evidence of manufacture. The motion was denied. Barker was sentenced to a prison term of 3 to 5 years. Barker appeals.
We consolidate Barker's first three assignments of error into one issue: the adequacy of the affidavit which determines the validity of the search warrant.
We also consolidate Barker's fourth and fifth assignments of error into a second issue: whether the trial court properly admitted expert testimony from witnesses concerning clandestine methamphetamine laboratories and chemical testing of suspected methamphetamine, allegedly without sufficient foundation under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
While a determination of probable cause to issue a warrant must be reviewed de novo on appeal, we must continue to afford great deference to the magistrate's determination. State v. Wyatt, 6 Neb. App. 586, 575 N.W.2d 411 (1998), overruled on other grounds, State v. Davidson, 260 Neb. 417, 618 N.W.2d 418 (2000). The duty of an appellate court in determining whether probable cause existed at the time a search warrant was issued is to ensure that the county judge had a substantial basis for finding that the affidavit established probable cause. See, State v. Utterback, 240 Neb. 981, 485 N.W.2d 760 (1992); State v. Duff, 226 Neb. 567, 412 N.W.2d 843 (1987). Moreover, an appellate court is restricted to consideration of the information and circumstances contained within the four corners of the underlying affidavit. State v. March, 265 Neb. 447, 658 N.W.2d 20 (2003). Evidence which emerges after a warrant is issued has no bearing on whether the warrant was validly issued. Id.
Whether a witness is qualified as an expert is a preliminary question for the trial court. State v. Campbell, 260 Neb. 1021, 620 N.W.2d 750 (2001). A trial court is allowed discretion in determining whether a witness is qualified to testify as an expert, and unless the court's finding is clearly erroneous, such a determination will not be disturbed on appeal. Id. A person may qualify as an expert by virtue of either formal training or actual practical experience in the field. Id.
The Nebraska Supreme Court has adopted the "totality of the circumstances" rule established by Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), as the basis for determining whether an affidavit is sufficient to establish probable cause for the issuance of a search warrant. State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999), overruled on other grounds, State v. Davidson, supra. See State v. Jackson, 255 Neb. 68, 685 N.W.2d 317 (1998). Under this standard, the question is whether, under the totality of the circumstances, the issuing magistrate had a "substantial basis" for finding that the affidavit established probable cause. State v. Detweiler, 249 Neb. 485, 544 N.W.2d 83 (1996). 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. State v. Jackson, supra.
When a search warrant is obtained on the strength of information received from an informant, the affidavit in support of the issuance of the warrant must set forth facts demonstrating the basis of the informant's knowledge of criminal activity. The affidavit must also either establish the informant's credibility or set forth a police officer's independent investigation of the information supplied by the informant. State v. Ortiz, 257 Neb. 784, 600 N.W.2d 805 (1999).
[T]he reliability of an informant may be established . . . 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 [or] (4) a police officer's independent investigation establishes the informant's reliability or the reliability of the information the informant has given.
(Citations omitted.) State v. Utterback, 240 Neb. 981, 988, 485 N.W.2d 760, 768 (1992), disapproved on other grounds, State v. Johnson, supra.
The affidavit in support of the issuance of the search warrant herein set...
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