State v. Detweiler

• Court: Nebraska Supreme Court
• Writing for the Court: WHITE; WRIGHT
• Citation: State v. Detweiler, 249 Neb. 485, 544 N.W.2d 83 (Neb. 1996)
• Decision Date: 01 March 1996
• Docket Number: S-95-503,Nos. S-95-420,S-95-520,S-95-585,s. S-95-420
• Parties: STATE of Nebraska, Appellee, V. Randy R. DETWEILER, Appellant. STATE of Nebraska, Appellant, v. Randy R. DETWEILER, Appellee. STATE of Nebraska, Appellee, V. Lucinda H. DETWEILER, Appellant.

Page 83

544 N.W.2d 83

249 Neb. 485

STATE of Nebraska, Appellee,

V.

Randy R. DETWEILER, Appellant.

STATE of Nebraska, Appellant, v. Randy R. DETWEILER, Appellee.

STATE of Nebraska, Appellee,

V.

Lucinda H. DETWEILER, Appellant.

Nos. S-95-420, S-95-503, S-95-585, S-95-520.

Supreme Court of Nebraska.

March 1, 1996.

Syllabus by the Court

1. Motions to Suppress: Appeal and Error. A trial court's ruling on a motion to suppress is to be upheld on appeal unless its findings of fact are clearly erroneous.

2. Search Warrants: Probable Cause. 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 or her, including the veracity of 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.

3. Sentences: Probation and Parole: Appeal and Error. When the State appeals from a sentence, contending that it is excessively lenient, an appellate court reviews the record for an abuse of discretion, and a grant of probation will not be disturbed unless there has been an abuse of discretion by the sentencing court.

4. Search Warrants: Affidavits: Probable Cause: Appeal and Error. After-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's determination of probable cause should be paid great deference by reviewing courts.

5. Search Warrants: Affidavits. When a search warrant is obtained on the strength of an informant's information, the affidavit in support of the issuance of the warrant must (1) set forth facts demonstrating the basis of the informant's knowledge of criminal activity and (2) establish the informant's credibility, or the informant's credibility must be established in the affidavit through a police officer's independent investigation.

6. Search Warrants: Affidavits. The reliability of an informant may be established by showing 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.

7. Search Warrants: Affidavits: Probable Cause. When considering the sufficiency of probable cause based on information supplied by an informant, it is important to distinguish the police tipster, who acts for money, leniency, or some other selfish purpose, from the citizen informant, whose only motive is to help law officers in the suppression of crime.

8. Eyewitnesses: Presumptions. An untested citizen informant who has personally observed the commission of a crime is presumptively reliable.

9. Eyewitnesses. An anonymous tipster's explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles the tip to greater weight than might otherwise be the case.

10. Criminal Law: Final Orders: Judgments: Appeal and Error. Under Neb.Rev.Stat. § 29-2315.01 (Cum.Supp.1994), the State may request review of an adverse decision or ruling in a criminal case after a final order or judgment in the criminal case has been entered. The purpose of this procedure is to provide an authoritative exposition of the law to serve as precedent in future cases.

11. Double Jeopardy. Jeopardy attaches when a judge, hearing a case without a jury, begins to hear evidence as to the guilt of the defendant.

12. Double Jeopardy. The Double Jeopardy Clause protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.

Appeal from the District Court, Seward County; Bryce Bartu, Judge.

David L. Kimble, Seward County Public Defender, for Randy R. Detweiler.

Michael G. Mullally, Seward, for Lucinda H. Detweiler.

C. Jo Petersen, Seward County Attorney, for State in Nos. S-95-420, S-95-503 and S-95-585.

Don Stenberg, Attorney General, and Joseph P. Loudon, Lincoln, for State in No. S-95-520.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

WRIGHT, Justice.

I. INTRODUCTION

Randy R. and Lucinda H. Detweiler were convicted in a bench trial of manufacturing a controlled substance and possession of a controlled substance with intent to deliver. In addition, they were each charged with failure to affix a drug tax stamp. The record demonstrates that the district court dismissed this charge against Randy, but the record is silent as to the charge against Lucinda. Randy and Lucinda appeal their convictions, which appeals were docketed as Nos. S-95-420 and S-95-520 respectively. The State appeals the dismissal of the drug tax stamp charge against Randy, which appeal was docketed as No. S-95-585. The State also appeals the sentence given to Randy as excessively lenient, which appeal was docketed as No. S-95-503.

II. SCOPE OF REVIEW

A trial court's ruling on a motion to suppress is to be upheld on appeal unless its findings of fact are clearly erroneous. State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994); State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994).

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 or her, including the veracity of 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. State v. Grimes, supra; State v. Garza, 242 Neb. 573, 496 N.W.2d 448 (1993).

When the State appeals from a sentence, contending that it is excessively lenient, an appellate court reviews the record for an abuse of discretion, and a grant of probation will not be disturbed unless there has been an abuse of discretion by the sentencing court. State v. Foral, 236 Neb. 597, 462 N.W.2d 626 (1990).

III. FACTS

On June 24, 1993, Patrick Dorcey, deputy sheriff of the Seward County Sheriff's Department, was told by a confidential informant (CI) that a friend of the CI's had taken photographs inside the Detweiler residence of an "elaborate marijuana growing operation, with lights and a watering system." The CI believed the photographs were taken on June 19 in the upstairs portion of the Detweiler house in a room with a covered north window. The CI also told Dorcey that he had seen individuals who used drugs frequenting the Detweiler residence on numerous occasions, and the CI provided those names to Dorcey.

Dorcey told the CI to instruct his friend to supply Dorcey with the photographs and to make a report. The CI informed Dorcey that the friend did not wish to become involved and would not deal with Dorcey directly. The CI was instructed to send the photographs himself or to have his friend send the photographs directly to Dorcey and make an anonymous report regarding the photographs to Crimestoppers.

Thereafter, an envelope containing photographs matching the description provided by the CI arrived at the Seward County Sheriff's Department. The envelope was sent to Dorcey, but did not bear a return address. The photographs showed several large marijuana plants growing in pots inside a room with covered windows, as well as marijuana hanging to dry.

Subsequently, an individual called Seward County Crimestoppers, acknowledged sending the photographs to Dorcey, and requested a Crimestoppers identification number. On July 3, 1993, the individual again called Crimestoppers, described the photographs, and stated that the photographs were taken by the caller in an upstairs room of the Detweiler residence on June 19. The caller had "observed many different people constantly going in and out of the house and lots of different cars at the Detweiler residence."

Dorcey prepared an affidavit and motion for a search warrant on July 7, 1993, in which he conveyed the information provided by the CI and the Crimestoppers caller, as well as additional information gathered by independent investigation. As a result, a search warrant was issued. That same day, Dorcey and other officers served the warrant and seized a large number of items from locations throughout the house, including marijuana in various forms, drug paraphernalia, a triple-beam scale, a number of lights, and a crude irrigation system. The Detweilers were arrested and charged with three counts each: (1) manufacturing a controlled substance, to wit: marijuana, a Class III felony; (2) possession of marijuana with intent to deliver, a Class III felony; and (3) failure to affix a drug tax stamp, a Class IV felony.

Prior to trial, the Detweilers argued that convictions for possession with intent to deliver and failure to affix a drug tax stamp would violate their Fifth Amendment rights against double jeopardy under Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994). The Detweilers also moved to suppress the evidence seized pursuant to the search warrant. The district court overruled the motions to suppress, but withheld ruling on the double jeopardy issue until sentencing.

Following a bench trial, the Detweilers were convicted of manufacturing a controlled substance and possession with intent to deliver. Prior to sentencing, the district court dismissed the charge of failure to affix a drug tax stamp against Randy Detweiler. No dismissal of the drug tax stamp charge appears in the record regarding Lucinda Detweiler. Randy was sentenced to 4 years' probation, including a jail term of 180 days, with extensive probation...