State v. Eary, 89-672

• Decision Date: 04 May 1990
• Docket Number: No. 89-672,89-672
• Citation: 235 Neb. 254,454 N.W.2d 685
• Parties: STATE of Nebraska, Appellee, v. Von O. EARY, Appellant.
• Court: Nebraska Supreme Court

Page 685

454 N.W.2d 685

235 Neb. 254

STATE of Nebraska, Appellee, v. Von O. EARY, Appellant.

No. 89-672.

Supreme Court of Nebraska.

May 4, 1990.

Syllabus by the Court

1. Search Warrants: Probable Cause. In determining probable cause for issuance of a search warrant, the issuing magistrate is to make a practical, commonsense decision whether, given the totality of all the circumstances set forth in the affidavit before him or her, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

2. Search Warrants: Probable Cause: Appeal and Error. The duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Doubtful or marginal cases should be determined largely by the preference to be accorded warrants.

3. 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 a trial court's findings of fact unless those findings are clearly erroneous.

4. Motions to Suppress: Appeal and Error. In making a determination as to a trial court's ruling on a motion to suppress, the Supreme Court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that the trial court has observed the witnesses testifying in regard to such motions.

5. Search Warrants: Probable Cause: Proof: Time. Proof of probable cause justifying the issuance of a search warrant generally must consist of facts so closely related to the time of the issuance of the warrant as to justify a finding of probable cause at that time. However, whether the proof satisfies this test is determined by the circumstances in each case.

6. Controlled Substances: Judicial Notice. A court can take judicial notice that substances such as cocaine may be easily and quickly disposed of by flushing down a drain.

7. Criminal Law: Directed Verdict. In a criminal case a court can direct a verdict only when there is a complete failure of evidence to establish an essential element of the crime charged, or evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained.

8. Controlled Substances: Circumstantial Evidence: Intent. Circumstantial evidence is sufficient to support a finding of guilty of possession of a controlled substance with intent to distribute, deliver, or dispense.

9. Controlled Substances: Circumstantial Evidence: Intent. Possession of a quantity of a controlled substance in a form customarily used for delivery or distribution will support an inference of possession with intent to deliver or distribute.

10. Sentences: Appeal and Error. It is well established that a sentence imposed within statutorily prescribed limits will not be disturbed on appeal absent an abuse of discretion.

Steven Lefler, of Lefler & Flick, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and James H. Spears for appellee.

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

HASTINGS, Chief Justice.

A jury found defendant, Von O. Eary, guilty of count I, unlawful possession with intent to deliver a controlled substance marijuana, and count II, possession of a controlled substance, cocaine. He was sentenced to imprisonment for terms of 4 to 6 years on count I and 1 to 2 years on count II, to be served concurrently.

Defendant has appealed, assigning as error that (1) the trial court overruled defendant's motion to suppress, (2) the trial court failed to sustain defendant's motion for a directed verdict, (3) the trial court imposed excessive sentences, and (4) the trial court failed to grant defendant's motion for mistrial. We affirm.

On November 2, 1988, police officers of the city of Omaha executed a search warrant for room No. 1052 at the New Tower Inn Motel at 7764 Dodge Street in Omaha. Present in the room at the time were the defendant and a Gale Wilkinson. The officers discovered and seized Eary's driver's license, with residue of cocaine on it; a pipe containing residue of crack cocaine; a plastic container containing baking soda, which was described during the trial as a substance that can be used to convert hydrochloride cocaine into crack cocaine; a bottle of rubbing alcohol, about which there was testimony indicating it can be used as a heating device for the ignition of cocaine; a vial containing 20 milligrams of hydrochloride cocaine; a second pipe containing the residue of crack cocaine; a test tube, a spoon, surgical scissors, cotton balls, and cigarette papers; a screwdriver with a white substance on it; a baggie containing 8 grams of marijuana; four plastic bags containing approximately one-quarter pound of marijuana each; writings upon a legal pad and a business card alleged to represent records kept in the course of drug dealing; and over $15,000 in cash, $10,750 of which was found in a brown paper sack.

The affidavit for the issuance of the warrant was signed by two police officers and alleged that they had reasonable grounds to believe that cocaine and marijuana, drug administering instruments, and records and moneys pertaining to an illegal narcotics operation would be found.

This belief was based on information furnished to the police by various individuals. One such individual, identified as "Source #1," was a confidential informant who the police affiants alleged had proven to be reliable in the past. Source #1 had provided information and had made purchases of narcotics under the supervision of the narcotics unit which had resulted in the issuance of 10 search warrants and numerous arrests.

Source #1, on July 7, 1988, advised a lieutenant of the Omaha Police Division that a party by the name of Von Eary was dealing cocaine in the Omaha area and received his supply from a party in Phoenix, Arizona. The source had observed Eary in possession of 2 pounds of cocaine while Eary was living in an apartment in Omaha.

The informant, on July 20, 1988, provided the same lieutenant with two phone numbers, one in the name of Gale and the other in the name of a male party named R.J. Gale was alleged to be working at a lounge in Omaha and was alleged to be dealing "8-ball" quantities of drugs, and R.J. was alleged to be dealing unknown quantities of drugs which were directly supplied by Eary.

In checking one of the phone numbers, a member of the police department found it to be subscribed to by R.J. Riggs. The police records showed that on March 14, 1983, information was received that Richard J. Riggs was dealing illicit narcotics in the Omaha area and was living at that time in Fremont, Nebraska.

On October 25, 1988, the police received information from an employee at the New Tower Inn Motel concerning a suspicious party staying at the motel. The informing party stated that a man identifying himself as Von Eary stayed at the motel October 22, 23, and 24 and that he paid for his room in cash on a daily basis, refused maid service, and made numerous local and some long-distance phone calls. After Eary checked out of the motel, employees found in the room a small eyeglass case which contained a small quantity of what they suspected to be marijuana. Eary later returned to the motel and claimed the case.

The list of phone numbers called by Eary included one of the two numbers that were earlier furnished by Source #1, who stated that "a party by the name of Gale would be contacted at that number by Von Eary, arranging the sale of cocaine." On November 2, 1988, one of the police affiants learned that the phone number was listed to a G. Wilkinson in Fremont, Nebraska.

On November 1, 1988, another police affiant was contacted by the front desk manager of the Ramada Inn Airport Motel. That person stated that a suspicious party by the name of Von Eary checked into the motel on October 29, 1988, stayed October 30 and 31, and was scheduled to check out on November 1. The manager was suspicious of Eary because he paid cash for his room on a daily basis, requested that his room not be cleaned by maid service, and made numerous local calls and one long-distance call. The manager also stated that on October 30 they had to wake Eary up at 1 o'clock in the afternoon to see if he was going to stay another night.

On November 2, 1988, a police officer contacted the Ramada desk manager and was supplied with several phone numbers that Eary had called. One of the numbers called was the one Source #1 had indicated was in the name of R.J., who was being supplied cocaine by Eary.

Another police officer was contacted on November 1, 1988, by the management of the New Tower Inn Motel concerning a party by the name of Von Eary, who registered on November 1, paid cash for his room, and used an "instant cash card" for identification. It was also discovered that the same phone number for R.J. had been called on November 2, presumably by Eary.

The officers making the affidavit also stated that based on numerous past narcotics investigations made by them within the last year, they have found that narcotics dealers frequently will pay for motel rooms in cash, will extend their stays day-by-day with cash payments, and will frequently refuse maid service so as to prevent observation of drug activities.

The motion to suppress sought to challenge the admissibility of evidence seized during the execution of the search warrant issued on the basis of the foregoing affidavit. The only evidence introduced at the hearing on this motion was the affidavit, the search warrant, and the inventory and return for the physical evidence discovered.

Under the first assignment of error, the defendant contends that the affidavit requesting the search warrant lacked probable cause and that the no-knock...