State v. Cortis
| Decision Date | 25 January 1991 |
| Docket Number | 89-661,Nos. 89-660,s. 89-660 |
| Parties | , 59 USLW 2468 STATE of Nebraska, Appellee, v. Steven A. CORTIS, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Criminal Law: Pretrial Procedure: Motions to Suppress: Appeal and Error. In a criminal trial, after a pretrial hearing and order overruling a defendant's motion to suppress evidence, the defendant must object at trial to admission of the evidence which was the subject of the suppression motion in order to preserve the question for appeal.
2. Constitutional Law: Search and Seizure. Capacity to claim the protection of the fourth amendment depends upon whether the person who claims the protection of the amendment has a legitimate expectation of privacy in the invaded place.
3. Constitutional Law: Search and Seizure. A subjective expectation of privacy is legitimate if it is one that society is prepared to recognize as reasonable.
4. Search and Seizure: Standing. Whether an accused has asserted an interest in the property seized is a factor in determining whether he or she has standing to challenge a search under which that property has been seized.
5. Pretrial Procedure: Motions to Suppress: Standing: Testimony. At a suppression hearing, a defendant may testify as to an interest in property such as to give him standing, and his or her testimony cannot be used against him at trial.
6. Motions to Suppress: Appeal and Error. In determining the correctness of a trial court's ruling on a motion to suppress, the Supreme Court will uphold the trial court's findings of fact unless those findings are clearly wrong.
7. Search and Seizure: Standing: Case Overruled. The holding in State v. Schrader, 196 Neb. 632, 244 N.W.2d 498 (1976), that one charged has automatic standing to contest a search and seizure where an element of the crime charged is possession, is overruled.
8. Arrests: Warrants: Probable Cause: Affidavits: Proof. To invalidate an arrest warrant on the grounds that the supporting affidavit was false, the defendant bears the burden of showing that the affiant made a deliberate falsehood or acted with a reckless disregard for the truth. Even if the foregoing is met, the arrest may be upheld if after the offending material is disregarded, there remains sufficient content in the affidavit to support a finding of probable cause.
9. Arrests: Warrants: Probable Cause: Affidavits. In determining whether probable cause exists for the issuance of an arrest warrant, the issuing magistrate is to make a commonsense decision whether, given the totality of the circumstances set forth in the affidavit before him or her, including the veracity and basis of knowledge of the persons supplying the hearsay information, there is a fair probability that the defendant was implicated in the crime.
10. Warrants: Probable Cause: Affidavits: Appeal and Error. A magistrate's determination of probable cause should be paid great deference by reviewing courts, and warrants should not be invalidated by interpreting the supporting affidavit in a hypertechnical, rather than a commonsense, manner.
11. Search Warrants: Probable Cause: Appeal and Error. The duty of the Supreme Court in determining whether probable cause to issue a search warrant exists is only to ensure that the magistrate had a substantial basis for concluding that such existed.
12. Trial: Rules of Evidence: Testimony: Proof: Appeal and Error. Error may not be predicated upon a ruling of a trial court excluding testimony of a witness unless the substance of the evidence to be offered by the testimony was made known to the trial judge by offer or was apparent from the context within which the questions were asked.
13. Witnesses: Impeachment: Prior Statements. A witness may not be impeached by producing extrinsic evidence of collateral facts to contradict the first witness' assertions about those facts. A witness' prior inconsistent statement may be used to impeach the witness only on matters relevant to and otherwise admissible on some issue in the case tried.
14. Trial: Evidence: Appeal and Error. A trial court's ruling on the relevancy of evidence will not be disturbed on appeal unless there has been an abuse of discretion.
15. Criminal Law: Controlled Substances: Intent. It shall be unlawful for any person knowingly or intentionally to possess with intent to manufacture, distribute deliver, or dispense a controlled substance.
16. Criminal Law: Conspiracy: Intent. A person shall be guilty of criminal conspiracy if, with intent to promote or facilitate the commission of a felony, he or another person with whom he conspired commits an overt act in pursuance of a conspiracy.
17. Convictions: Appeal and Error. In determining the sufficiency of the evidence to support a finding of guilt in a criminal case, this court does not resolve conflicts in the evidence, determine the plausibility of explanations, or weigh the evidence. Those matters are for the finder of fact, whose findings must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support them.
18. Verdicts: Appeal and Error. On a claim of insufficiency of evidence, the Supreme Court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence. Only where evidence lacks sufficient probative force as a matter of law may the Supreme Court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.
19. Convictions: Circumstantial Evidence. One accused of a crime may be convicted on the basis of circumstantial evidence if, viewed as a whole, the evidence establishes the guilt of the defendant beyond a reasonable doubt.
20. Conspiracy: Circumstantial Evidence: Proof. A conspiracy need not be established by direct evidence of acts charged, but may, and generally must, be proved by a number of indefinite acts, conditions, and circumstances which vary according to the purposes to be accomplished.
21. Conspiracy. A person can be found guilty of conspiracy when his or her sole coconspirator has not been charged with conspiracy.
22. Conspiracy. When a conspiracy has been proved, a conspirator's acts and declarations in furtherance of the conspiracy are the acts and declarations of all conspirators.
23. Criminal Law: Intent: Circumstantial Evidence: Proof. When an element of a crime involves existence of a defendant's mental process or other state of mind of an accused, such elements involve a question of fact and may be proved by circumstantial evidence.
Robert B. Deck, Sioux City, Iowa, for appellant.
Robert M. Spire, Atty. Gen., and Kenneth W. Payne, Alliance, for appellee.
Steven A. Cortis appeals his bench trial convictions in the Dakota County District Court for possession with intent to manufacture a controlled substance and for conspiracy. We affirm.
Cortis' four assignments of error combine to assert that the trial court erred in (1) failing to suppress certain evidence obtained as a result of improper search and arrest warrants, (2) limiting impeachment of a witness, and (3) finding that the evidence was sufficient to convict the defendant of the offenses charged.
An unidentified person telephoned the Dakota County sheriff's office on May 21, 1988, and spoke with Doug Johnson, a Nebraska State Patrol narcotics investigator. The informant, later determined to be Colene Barker, informed Johnson that she had knowledge that someone was growing marijuana in Dakota County, that this individual was not acting alone, and that the informant was concerned about the individual "getting into trouble." Barker had never previously acted as a confidential informant.
On May 23, 1988, Barker met with the Dakota County Attorney regarding a problem she was having with neighbors. At that time, she informed the county attorney that one Nancy Brown was growing marijuana. On that same day, Barker also spoke to Johnson, at the South Sioux City Police Department. Barker told Johnson that Brown, who resided in Homer, Nebraska, in a rented house, had several marijuana plants growing in her home and that Brown's boyfriend, Steve, was the "brains" behind the operation. Barker was a coworker and friend of Brown's. It was later discovered that Steve Cortis, the defendant, was Brown's boyfriend. Barker provided Johnson with a map of Brown's residence and information on the location where the dried marijuana was being stored and how it was being stored. Johnson did not investigate Barker's background and had no further contact with her prior to serving the search warrant on the Brown residence.
Based upon the information provided by Barker and independent knowledge possessed by Johnson, an affidavit and complaint for a search warrant was sworn to before a clerk magistrate. A search warrant for Brown's home was obtained and executed at 2:45 p.m. on May 23, 1988.
At the time of the search, Brown was home alone. A strong odor of marijuana pervaded the house. In a room adjacent to Brown's bedroom, law enforcement officers discovered plastic buckets containing 12 growing marijuana plants arranged beneath a grow light, a timing device to operate the grow light, chemicals used for growing plants, a fan, an incubator for starting immature marijuana plants, and a sprayer. The windows in the room in which the growing marijuana plants were discovered were covered by blankets. In another room, officers discovered processed marijuana in a bucket and cut marijuana in plastic and burlap bags. Testing performed at the Nebraska State Patrol Criminalistics Laboratory verified that the evidence seized was, in fact, marijuana. Officers also discovered a book entitled "Cannabis Alchemy" in Brown's bedroom.
Two spiral notebooks were also seized from Brown's dwelling. When Brown was not at home, the notebooks were kept on the...
To continue reading
Request your trial
-
State v. Wiedeman
...Interpretation 10 (2008). See, also, e.g., Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001); State v. Cortis, 237 Neb. 97, 465 N.W.2d 132 (1991); State v. Harms, 233 Neb. 882, 449 N.W.2d 1 (1989). 26.U.S. v. Jones, 132 S.Ct. at 949. 27. See, Ferguson v. Charleston,......
-
State v. Dannebohm
...of that case.").Still, the Court of Appeals cited three cases to support its holding. All are distinguishable. In State v. Cortis , 237 Neb. 97, 465 N.W.2d 132 (1991), the guest had stayed overnight on prior occasions, but the host had not seen the guest for two or three weeks before the se......
-
Alston v. State
...when the search was conducted. There was no evidence that he maintained control over the apartment. Similarly, in State v. Cortis, 237 Neb. 97, 465 N.W.2d 132 (1991), the Supreme Court of Nebraska held that a guest who had stayed overnight "[a] couple times" at his girlfriend's apartment, b......
-
State v. Lowery, A–14–721.
...State v. Conklin, 249 Neb. 727, 545 N.W.2d 101 (1996) ; State v. Cody, 248 Neb. 683, 539 N.W.2d 18 (1995) ; State v. Cortis, 237 Neb. 97, 465 N.W.2d 132 (1991) ; State v. Walker, 236 Neb. 155, 459 N.W.2d 527 (1990).Importantly, however, an overnight guest's legitimate expectation of privacy......