State v. Davis

• Citation: 483 N.W.2d 554,240 Neb. 631
• Decision Date: 08 May 1992
• Docket Number: No. S-90-1023,S-90-1023
• Parties: STATE of Nebraska, Appellee, v. Maurice T. DAVIS, Appellant.
• Court: Supreme Court of Nebraska

Page 554

483 N.W.2d 554

240 Neb. 631

STATE of Nebraska, Appellee, v. Maurice T. DAVIS, Appellant.

No. S-90-1023.

Supreme Court of Nebraska.

May 8, 1992.

Syllabus by the Court

1. Convictions: Appeal and Error. In reviewing a criminal conviction, an appellate court must view the evidence in the light most favorable to the prevailing party.

2. Convictions: Appeal and Error. An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such matters are for the finder of fact, and the verdict will be affirmed, in the absence of prejudicial error, if properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.

3. Motions to Suppress: Appeal and Error. When reviewing a motion to suppress, an appellate court will not reweigh or resolve conflicts in the evidence, but will uphold the trial court's findings unless they are clearly erroneous.

4. Confessions: Evidence: Proof. To be admissible in evidence, an accused's statement, confession, or admission must have been freely and voluntarily made. The State bears the burden of proving that a defendant's statement was voluntarily made, and not the product of any promise or inducement, before the statement is admissible.

5. Confessions: Appeal and Error. Voluntariness is determined by the totality of the circumstances, and a determination by the trial judge that an admission was made voluntarily will not be overturned on appeal absent an abuse of discretion.

Thomas M. Kenney, Douglas County Public Defender, and Brian S. Munnelly, Omaha, for appellant.

Don Stenberg, Atty. Gen., and Kimberly A. Klein, Lincoln, for appellee.

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

GRANT, Justice.

After trial to the court, sitting without a jury, defendant-appellant, Maurice T. Davis, was convicted of possession with intent to deliver a controlled substance (crack cocaine), in violation of Neb.Rev.Stat. § 28-416(5)(a) (Reissue 1989). After a presentence investigation, defendant was sentenced to 5 to 6 years in the Department of Correctional Services, with credit of 226 days being given on such sentence.

Defendant timely appealed, and in this court assigns three errors, contending that the trial court erred (1) in overruling defendant's motion to suppress physical evidence seized, (2) in overruling defendant's motion to suppress statements made by the defendant, and (3) in convicting defendant, where the evidence was insufficient to support his conviction. We affirm.

In reviewing a criminal conviction, an appellate court must view the evidence in the light most favorable to the prevailing party. State v. Red Kettle, 239 Neb. 317, 476 N.W.2d 220 (1991). The appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such matters are for the finder of fact, and the verdict will be affirmed, in the absence of prejudicial error, if properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Timmerman, 240 Neb. 74, 480 N.W.2d 411 (1992). Viewed in that light, the record shows the following:

In early 1990, Omaha police were investigating defendant's possible involvement in cocaine distribution in the North Omaha area. A confidential informant had supplied information that defendant was a dealer who received his supplies from Kansas City.

On February 19, 1990, police drafted an affidavit in support of an application for a search warrant. That affidavit first detailed specific activities which caused police to suspect defendant's participation in drug activity. The affidavit then set forth specific information which police received from a confidential informant.

Four weeks prior to defendant's arrest, the confidential informant identified defendant and told police officers that defendant was then involved in distributing cocaine. On February 7, 1990, the informant stated the defendant had received 5 ounces of cocaine from Kansas City and that defendant was using workers at a residence at 3305 North 40th Avenue in Omaha to distribute crack cocaine for him. On February 13, the informant told police that defendant had asked the informant to accompany him to Kansas City to pick up another purchase of cocaine and transport it back to Omaha.

The informant had seen "several ounces" of crack in defendant's possession and at 4115 North 42nd Street, where defendant lived with his mother. Less than 48 hours before defendant was arrested the informant had, under police supervision, purchased cocaine from defendant.

On February 19, 1990, the defendant, driving a cream-colored Chevrolet Impala, went to 4115 North 42nd Street while the house was under surveillance. Defendant entered the home and left a few minutes later. The police stopped the car and a drug detection dog brought to the scene "alerted" to the odor of cocaine during a "perimeter" survey of the car. Defendant consented to a search of the vehicle. The search turned up no evidence of drugs or drug dealing. Defendant was arrested for suspicion of possession of a controlled substance and taken to police headquarters.

At headquarters, defendant waived his Miranda protections and agreed to speak with the officers. Sgt. William Agnew then briefly questioned defendant. Defendant specifically stated that there would not be any drugs in his bedroom and that he would be surprised if police found cocaine at his mother's home.

The police finished drafting the affidavit, obtained a search warrant for 4115 North 42nd Street, and returned there to execute the warrant. Pursuant to the order of Sergeant Agnew, the defendant was taken with the police at that time. Agnew testified this was done because "I wanted him to be present at the house."

Police entered the locked residence by using a key on defendant's key chain, after defendant requested that his key be used. On entering the home, defendant indicated that his room was the northeast bedroom on the main floor. The subsequent search of the residence uncovered over 54 grams of cocaine, a portion of which was found in a tennis shoe in defendant's bedroom, and $1,400 in U.S. currency. Defendant was charged with possession with intent to deliver a controlled substance.

At the suppression hearing, defendant, asserting the search warrant was invalid, moved to suppress all physical evidence. Defendant also moved to suppress all statements made to police because they had been coerced and made without the defendant's being advised of his Miranda protections. The court overruled both motions.

At trial, both the evidence and the statements were objected to, the objections were overruled, and the evidence was received. Thus, defendant has properly preserved the issues for appeal. See State v. Hall, 237 Neb. 169, 465 N.W.2d 150 (1991).

In his first assignment of error, appellant asserts that "[t]he District Court erred in overruling the Defendant's motion to suppress physical evidence seized as a result of the search by Omaha police on February 19, 1990."

When reviewing a motion to suppress, an appellate court will not reweigh or resolve conflicts in the evidence, but will uphold the trial court's findings unless they are clearly erroneous. State v. Groves, 239 Neb. 660, 477 N.W.2d 789 (1991). In making this determination, the trial court is the trier of fact, and the reviewing court takes into consideration that the trial court has observed the witnesses testifying regarding the motion to suppress. Id.

Defendant's motion to suppress all physical evidence obtained from the search of 4115 North 42nd Street contended that there was no probable cause for the granting of the warrant; that the affidavit upon which the warrant was granted was insufficient; that the warrant was defective on its face; that the warrant was not executed according to its terms; and that the search was made prior to, and not incident to, a lawful arrest, and without probable cause.

In State v. Groves, 239 Neb. at 665, 477 N.W.2d at 794-95, this court stated:

This court has adopted the "totality of the circumstances" test set forth by the U.S. Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), to determine the sufficiency of an affidavit used to obtain a search warrant. [Citation omitted.] It is only the probability, and not a prima facie showing, of criminal activity which is the standard of probable cause for issuance of a search warrant. [Citation omitted.]

In evaluating probable cause for the issuance of a search warrant, the magistrate must make a practical, commonsense decision whether, given the totality of the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of the persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. [Citation omitted.] The duty of the reviewing court is to ensure that the issuing magistrate had a substantial basis for determining that probable cause existed. [Citation omitted.]

Defendant contends that "the information [within the affidavit] was not 'reasonably trustworthy under the circumstances, because of the almost total lack of accurate, detailed information concerning the informer's reliability.' " Brief for appellant ...