State v. Cullen, 88-200

• Decision Date: 27 January 1989
• Docket Number: No. 88-200,88-200
• Citation: 434 N.W.2d 546,231 Neb. 57
• Parties: STATE of Nebraska, Appellee, v. Michael W. CULLEN, Appellant.
• Court: Nebraska Supreme Court

Page 546

434 N.W.2d 546

231 Neb. 57

STATE of Nebraska, Appellee, v. Michael W. CULLEN, Appellant.

No. 88-200.

Supreme Court of Nebraska.

Jan. 27, 1989.

Syllabus by the Court

1. Search Warrants: Probable Cause: Affidavits. To invalidate a warrant on grounds that the supporting affidavit was false, the defendant bears the burden of showing that the affiant made a deliberate falsehood or acted with reckless disregard for the truth and that the challenged information was material or necessary to a finding of probable cause.

2. 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.

3. Search Warrants: Probable Cause. Probable cause is a reasonable suspicion founded on articulable facts. 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.

4. Search Warrants: Probable Cause: 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.

Thomas M. Kenney, Douglas County Public Defender, and Timothy P. Burns, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and LeRoy W. Sievers, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

FAHRNBRUCH, Justice.

Michael W. Cullen appeals his jury convictions for first degree sexual assault, use of a weapon in the commission of a felony, and two counts of burglary. We affirm.

For burglary of the sexual assault victim's apartment, Cullen was sentenced to 4 years' imprisonment; for the sexual assault, not less than 10 nor more than 20 years' imprisonment, the sentence to run consecutively to the burglary sentence. Cullen was also sentenced to 1 year's imprisonment for using a deadly weapon to commit a felony, which sentence was ordered to run consecutively to the sexual assault sentence. For burglary of the B.J. Moor apartment, which case was separately docketed but tried with the other charges, Cullen was sentenced to 5 years' imprisonment, that sentence to run concurrently with the other sentences.

Burglary and use of a weapon in the commission of a felony are Class III felonies, punishable by not less than 1 nor more than 20 years in prison, up to a $25,000 fine, or both. First degree sexual assault is a Class II felony, punishable by not less than 1 nor more than 50 years in prison. Neb.Rev.Stat. §§ 28-105, 28-507, 28-319, and 28-1205 (Reissue 1985).

The defendant claims that evidence seized at his residence in Massachusetts should have been suppressed because it was obtained pursuant to an invalid search warrant. The warrant was issued by a Massachusetts magistrate upon the request and accompanying affidavit of a Massachusetts state trooper. A Douglas County, Nebraska, sheriff's investigator worked with the trooper. It is Cullen's contention that the affidavit contained an untrue statement.

To invalidate a warrant on grounds that the supporting affidavit was false, the defendant bears the burden of showing that the affiant made a deliberate falsehood or acted with reckless disregard for the truth and that the challenged information was material or necessary to a finding of probable cause. State v. Hodge and Carpenter, 225 Neb. 94, 402 N.W.2d 867 (1987). See, State v. LeBron, 217 Neb. 452, 349 N.W.2d 918 (1984); Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

On February 22, 1986, a young Omaha woman was forcibly sexually assaulted by a man who broke into her apartment. During the course of the assault, the victim was permitted to go to the bathroom, where the assailant had earlier removed his clothing. She found a checkbook in her assailant's coat pocket. Later, the victim was again permitted to return to the bathroom, where she removed a check from the checkbook and hid it. The check was imprinted with the names "B.J. Moor" and "Carolyn Moor."

The next morning, B.J. Moor, who lived in the same apartment complex as the sexual assault victim, noticed several items, including his wallet and checkbook, missing from his apartment. Because Moor's wallet contained a bank card, Moor called his bank and informed bank personnel of the theft. Moor learned a transaction had been recorded on his account that morning. Moor then called police.

Security officers viewed the video tape of persons using the automatic teller machine that morning. A photograph of the person using Moor's ATM card was obtained. This photograph was included in a six-photo lineup shown to the sexual assault victim. She positively identified the man in the picture obtained from the video camera as her assailant.

The photograph was distributed by the sheriff's department to the media and other law enforcement agencies. A Nebraska state trooper recognized the person in the photograph as her stepdaughter's boyfriend, Cullen. The trooper sent a snapshot of Cullen to the sheriff's office. Another six-photo lineup was arranged and shown to the victim on November 25, 1986. By this time, approximately 9...