State v. Brennen

• Decision Date: 12 October 1984
• Docket Number: No. 83-777,83-777
• Citation: 356 N.W.2d 861,218 Neb. 454
• Parties: STATE of Nebraska, Appellee, v. Kenneth E. BRENNEN, Appellant.
• Court: Nebraska Supreme Court

Page 861

356 N.W.2d 861

218 Neb. 454

STATE of Nebraska, Appellee, v. Kenneth E. BRENNEN, Appellant.

No. 83-777.

Supreme Court of Nebraska.

Oct. 12, 1984.

Syllabus by the Court

1. Wiretaps. Although interceptions of telephonic communications need not cease upon the obtaining of a described communication, unless the order authorizing them so provides, they must cease when the objective of the authorization has been achieved, whether the order authorizing them so states or not, and in no event may the interceptions extend beyond 30 days.

2. Convictions: Appeal and Error. In reviewing whether there is sufficient evidence to support a conviction, this court neither determines the plausibility of explanations nor weighs the evidence, such matters being for the trier of fact; the conviction must be sustained if, viewing the evidence most favorably to the State, there is sufficient evidence to support it.

3. Controlled Substances: Evidence. Evidence that an accused has physical or constructive possession of a drug with knowledge of its presence and its character as a controlled substance is sufficient to support a finding of possession.

4. Controlled Substances: Evidence. Although one's mere presence at a place where narcotics are found is not sufficient to prove possession, proof of guilty knowledge may be made by evidence of acts, declarations, or conduct of the accused from which the inference may be fairly drawn that he knew of the existence and nature of the narcotics at the place where they were found.

5. Controlled Substances: Evidence. Ordinarily, when narcotics or contraband materials are found on a defendant's premises, the evidence of unlawful possession is deemed sufficient to sustain a conviction in the absence of any other reasonable explanation for its presence.

James Martin Davis of Dolan, Davis & Gleason, Omaha, for appellant.

Paul L. Douglas, Atty. Gen., and Lynne R. Fritz, Asst. Atty. Gen., Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, and SHANAHAN, JJ.

CAPORALE, Justice.

Defendant, Kenneth E. Brennen, appeals from the convictions, following a bench trial, and concurrent sentences of imprisonment for a period of 1 year on each of two counts of unlawful possession of controlled substances, to wit, cocaine and hashish. He questions the validity of the interceptions of certain telephonic conversations and the sufficiency of the evidence. We affirm.

The relevant facts concerning the interceptions are set forth in State v. Brennen, 214 Neb. 734, 336 N.W.2d 79 (1983) (Brennen I ), a single-judge opinion which determined that the district court erred in suppressing evidence seized as a result of the interceptions.

The first five of the issues presented by the seven errors Brennen assigns to the interceptions were dealt with in Brennen I. These issues are whether the interceptions were routinely employed and undertaken too early in the ongoing drug investigation, whether there was probable cause to undertake them, whether they were minimized sufficiently, whether interceptions of confidential communications were avoided, and the State's failure to file written reports. With respect to those issues we adopt the reasoning and rationale set forth in Brennen I and find the assignments of error presenting those issues to be without merit.

The remaining two assignments of error dealing with the interceptions concern themselves with whether the interceptions were defective in that they were not conducted in accordance with the termination provisions of the relevant statutes and were of excessive duration. Since these two issues overlap, we deal with them together.

Two provisions of Neb.Rev.Stat. § 86-705 (Reissue 1981) bear upon the termination of interceptions. Section 86-705(6) states in relevant part:

No order entered under this section may authorize or approve the interception of any wire or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days.... Every order and extension thereof shall contain a provision that the authorization to intercept ... must terminate upon attainment of the authorized objective, or in any event in thirty days.

Section 86-705(4) reads in relevant part:

Each order authorizing or approving the interception of any wire or oral communication shall specify ... (e) the period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.

Essentially, the interception order and amended order provided that interceptions would be valid for a total of one 30-day period and were not to automatically terminate when the described communications were first obtained. Brennen argues that the failure to require termination as soon as the described communications were first obtained constitutes a violation of § 86-705(6), making a distinction between the issues of duration and termination. It is Brennen's position that even though interceptions can last for as long as 30 days, they must terminate sooner if the objective of the authorization has been achieved. This is a correct statement of the law, as far as it goes. See United States v. Cafero, 473 F.2d 489 (3d Cir.1973). However, there is more to the law than that. Brennen ignores § 86-705(4), the language of which the orders parrot. Obviously, to say that interceptions must terminate as soon as the objective of the authorization has been achieved is different than saying that interceptions must terminate as soon as the described communication has been obtained. It may take more than the interception of a single described communication to accomplish the objective of an authorization. Thus, the statutory scheme is that although interceptions need not cease upon the obtaining of a described communication, unless the order authorizing them so provides, they must cease when the objective of the authorization has been achieved, whether the order so states or not, and in no event may the interceptions extend beyond 30 days. See United States v. Cafero, supra.

Brennen argues that the failure of the orders to require by their own language that the interceptions terminate upon attainment of the authorized objective makes them fatally defective. Although there are cases which support that point of view, State v. Maloof, 114 R.I. 380, 333 A.2d 676 (1975), and Johnson v. State, 226 Ga. 805, 177 S.E.2d 699 (1970), we do not find them persuasive. We, as did Judge Hastings in his single-judge opinion in State v. Whitmore, White, and Henderson, 215 Neb. 560, 340 N.W.2d 134 (1983), accept and adopt the reasoning of United States v. Cafero, supra, and the line of cases cited in Whitmore, White, and Henderson that substantial, but not strict, compliance with the statutes is required. That is to say, the interceptions must be conducted in such a manner as not to violate substantive rights.

There is no showing the statutory scheme for intercepting telephonic communications was violated. Therefore, the record fails to sustain the last two assignments of error relating to the interceptions.

Having disposed of the issues dealing with the validity of the interceptions, we turn our attention to Brennen's last assignment of error by which he claims that the evidence is not sufficient to support a conviction on either count. In reviewing this question we neither determine the plausibility of explanations nor weigh the evidence, such matters being for the trier of fact. The conviction must be sustained if, viewing the evidence most favorably to the State, there is sufficient evidence to support it. State v. Miner, 216 Neb. 309, 343 N.W.2d 899 (1984); State v. Pierce and Wells, 215 Neb. 512, 340 N.W.2d 122 (1983).

The record establishes that pursuant to a search warrant, police officers stopped a vehicle owned by Brennen, which was being operated by his paramour. The officers proceeded with Brennen's vehicle to his residence. Access to the residence was then obtained through the use of the garage door opener located in the vehicle. Among the items found by the officers while executing the search warrant at Brennen's residence was a glass vial located in a duffelbag in the bedroom closet. The vial contained a white powder residue, which was subsequently tested and found to be cocaine. In addition, the officers found a plastic container of hashish under the coffee table in the living room. Although the paramour had been sharing Brennen's residence for about 3 weeks, she told the police officers that she knew nothing of any drugs or dealings in drugs by Brennen.

Evidence that an accused has physical or constructive possession of a drug with knowledge of its presence and its character as a controlled substance is sufficient to support a finding of possession. State v. Foster, 196 Neb. 332, 242 N.W.2d 876 (1976). It has also been held that, although one's mere presence at a place where narcotics are found is not sufficient to prove possession, proof of guilty knowledge may be made by evidence of acts, declarations, or conduct of the accused from which the inference may be fairly drawn that he knew of the existence and nature of the narcotics at the place where they were found. State v. Coca, 216 Neb. 76, 341 N.W.2d 606 (1983); State v. Bartlett, 194 Neb. 502, 233 N.W.2d 904 (1975). It is well established that, ordinarily, when narcotics or contraband materials are found on a defendant's premises, the evidence of unlawful possession is deemed sufficient to sustain a conviction in the absence of any other reasonable explanation for its presence. State v. Matthews, 205 Neb. 709, 289 N.W.2d 542 (1980); State v. Britt, 200 Neb. 601, 264 N.W.2d 670 (1978). State v. Matthews, supra, held the evidence sufficient to support the jury's finding that the defendant possessed a controlled substance...