State v. Beeken
| Decision Date | 04 August 1998 |
| Docket Number | Nos. A-97-879,A-97-880,s. A-97-879 |
| Citation | 585 N.W.2d 865,7 Neb.App. 438 |
| Parties | STATE of Nebraska, appellee, v. Stanley W. BEEKEN, Sr., appellant. STATE of Nebraska, appellee, v. Stanley W. BEEKEN, Jr., appellant. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable Cause: Appeal and Error. A trial court's ruling on a motion to suppress, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. In making this determination, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses.
2. 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.
3. Constitutional Law: Search and Seizure: Warrantless Searches. It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable and that a search or seizure carried out without a warrant is per se unreasonable, unless the police can show that it falls within one of the carefully designated exceptions based on the presence of exigent circumstances.
4. Search and Seizure: Warrants: Police Officers and Sheriffs. A police officer who has obtained neither an arrest warrant nor a search warrant cannot make a nonconsensual and warrantless entry into a suspect's home in the absence of exigent circumstances.
5. Criminal Law: Words and Phrases. Exigent circumstances means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.
6. Search Warrants: Probable Cause: Appeal and Error. In evaluating the validity of a search warrant, the duty of a reviewing court is to ensure that the magistrate issuing the warrant had a substantial basis for determining that probable cause existed.
7. Probable Cause: Words and Phrases. Probable cause means a fair probability that contraband or evidence of a crime will be found.
8. Search Warrants: Probable Cause. In evaluating the showing of probable cause necessary to support the issuance of a search warrant, only the probability, and not a prima facie showing, of criminal activity is required.
9. Search Warrants: Probable Cause: Controlled Substances. The odor of a controlled substance does not justify a warrantless search but can be probable cause for a search warrant.
10. Search Warrants: Affidavits: Probable Cause. When an affidavit for a search warrant contains lawfully obtained facts sufficient to establish probable cause, the fact that the affidavit also contains illegally obtained facts does not invalidate the warrant.
11. Evidence. The independent source doctrine allows the admission of legally obtained evidence, notwithstanding the fact that the government had previously obtained illegal evidence, provided the lawful evidence was genuinely obtained independently of the illegal evidence.
12. Search Warrants: Affidavits: Probable Cause. Although an affidavit to obtain a search warrant contains tainted information, it can still support a finding of probable cause if the tainted information is excised.
Rae Ann Schmitz, Scottsbluff, for appellants.
Don Stenberg, Attorney General, and Mark D. Raffety for appellee.
A neighbor and a police officer smelled the odor of burning marijuana coming from the duplex of Stanley Beeken, Sr. (Beeken), and Stanley Beeken, Jr. This led to an investigation that resulted in Beeken and Beeken, Jr., both being convicted of possession of drug paraphernalia, in violation of Neb.Rev.Stat. § 28-441 (Reissue 1995), an infraction, with the first offense penalty being a fine of not more than $100. Beeken, Jr., was also convicted of possession of less than 1 ounce of marijuana, second offense, in violation of Neb.Rev.Stat. § 28-416 (Reissue 1995), the penalty for which is a fine of $200 and possible imprisonment not to exceed 5 days. The Beekens allege that the county court erred in refusing to suppress evidence obtained by a search of their residence because the police officer's entry into the house before a warrant was applied for was neither a protective sweep nor justified by exigent circumstances. The Beekens argue that the search warrant later obtained was a product of the illegal entry and not supported by probable cause. The Beekens allege that the district court erred in affirming the county court's judgments and sentences. We conclude that even if the warrantless search was illegal, the police officer's detection of the odor of burning marijuana was probable cause for a search warrant of the home and that under the independent source doctrine, the evidence seized pursuant to the warrant was admissible and sufficient to support the convictions. We affirm.
On February 23, 1996, at approximately 4:17 p.m., Sgt. Dwight Pruss of the Sidney Police Department received an anonymous telephone call. The caller told Pruss her address, that she lived in a duplex, and that "there had been quite a bit of stop and go traffic [at the adjoining duplex] the last few days between the hours of 2:30 and 4:30 ...." The caller stated that she smelled the odor of marijuana coming from a doorway shared by the two duplexes.
Officer Keith A. Andrew of the Sidney Police Department testified that he was an experienced narcotics investigator. Andrew testified in person, but his affidavit that was part of the application for the search warrant was introduced and used as evidence of the facts it contained. The court allowed Andrew to be cross-examined on the information in the affidavit. The parties treated the affidavit as part of Andrew's direct testimony, and no error is assigned with regard to this procedure. Summarizing Andrew's testimony is difficult unless the information in the affidavit is treated as part of his direct testimony, and we shall do so.
On February 23, 1996, Andrew went to the address given by the caller. He found that a doorway connected the caller's duplex with the adjoining duplex. Andrew did not smell anything coming from the duplex upon arrival. Andrew then knocked on the door of the duplex adjoining the caller's duplex. Beeken answered the door, stepped outside at Andrew's request, and closed the door behind him. Andrew could smell a strong odor of burning marijuana as the screen door shut behind Beeken. Andrew advised Beeken of the report received by the police department. He then asked Beeken if anyone had been smoking marijuana in the duplex. Andrew testified that Beeken replied "not to his knowledge" and told Andrew that he had just returned from work. Andrew advised Beeken that Andrew could presently smell the odor of burning marijuana and asked if he could search the duplex. Beeken stated he would have to check with his son, Beeken, Jr., and returned to the residence. A few minutes later, Beeken came out of the duplex, and Andrew again asked permission to search the residence. Beeken stated he could not give permission to search the residence until he contacted his "roommate ." Andrew then informed Beeken that if Andrew did not obtain consent to search, he intended to secure the occupants and contact the county attorney's office to obtain a search warrant. Beeken said he would again attempt to call his roommate and returned inside the duplex. Andrew testified that at that time, he thought someone was, or recently had been, smoking marijuana in the duplex.
After Beeken went inside, Andrew heard what sounded like a door slamming and observed the shadow of someone running or moving very quickly to the back of the duplex. Andrew jumped off the porch, ran to the rear of the duplex, and observed a man he knew as Zachary Rauner stuffing something into his pocket. Andrew testified that Rauner stated, " '[I]t's mine and I'll give it to you, I was leaving so nobody would get in trouble.' " Andrew patted Rauner down, found two marijuana pipes and a wooden case, and arrested Rauner.
After arresting Rauner, Andrew began knocking on the door of the Beeken duplex. Andrew testified that he continued knocking but that no one answered the door for approximately 5 minutes. When Beeken eventually answered the door, Andrew advised him that all occupants needed to exit the residence as Andrew was securing the premises and attempting to obtain a search warrant. Beeken, Beeken, Jr., and Dennis Peters exited the duplex. Andrew stated that Beeken, Jr., and Peters both had very red eyes and that based on his training and experience, he believed they were under the influence of narcotics. The occupants of the duplex were "secured and patted down." The county attorney and deputy county attorney arrived and directed the police to "secure the premise and to meet them at their office for a search warrant affidavit."
Andrew and a Trooper Pleiss of the Nebraska State Patrol then performed a "protective sweep" to "make sure nobody else was inside the house continuing to destroy evidence as we were leaving to go get an affidavit completed." Andrew testified that while he observed no persons inside the duplex, he did observe a "small silver colored roach clip, with suspected marijuana...
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