State v. Farrell, S-91-545

• Decision Date: 12 March 1993
• Docket Number: No. S-91-545,S-91-545
• Citation: 242 Neb. 877,497 N.W.2d 17
• Parties: STATE of Nebraska, Appellee, v. Robert T. FARRELL, Appellant.
• Court: Nebraska Supreme Court

Page 17

497 N.W.2d 17

242 Neb. 877

STATE of Nebraska, Appellee, v. Robert T. FARRELL, Appellant.

No. S-91-545.

Supreme Court of Nebraska.

March 12, 1993.

Syllabus by the Court

1. Trial. Motions to Suppress. The duty rests on the defendant, after denial of a motion to suppress, to object at trial to the admission of the evidence and to state the specific grounds of the objection if a specific ground is not apparent from the context in which the objection was made.

2. Trial: Evidence: Appeal and Error. Unless the objection to offered evidence be sufficiently specific to enlighten the trial court and enable it to pass upon the sufficiency of such objection and to observe the alleged harmful bearing of the evidence from the standpoint of the objector, no question can be presented therefrom in the court of appeal.

3. Probable Cause: Words and Phrases. Probable cause is defined as a reasonable suspicion founded on articulable facts.

4. Rules of Evidence: Other Acts: Proof. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

5. Evidence: Other Acts: Appeal and Error. In reviewing the admission of prior acts, the reviewing court should consider the relevance of the evidence, the purpose for its introduction, and the probative value balanced against its potential for unfair prejudice.

6. Convictions: Appeal and Error. In reviewing a criminal conviction, it is not the province of an appellate court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the finder of fact, and the verdict of the jury must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

Lawrence G. Whelan, Omaha, for appellant.

Don Stenberg, Atty. Gen., and Joseph P. Loudon, Lincoln, for appellee.

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

GRANT, Justice.

Defendant, Robert T. Farrell, appeals his conviction, after jury trial, of unlawful possession of a controlled substance, methamphetamine. He was sentenced to imprisonment of 20 months to 3 years, with credit for time served. Defendant timely appealed, and, in this court, assigns four errors. He contends that the trial court erred: (1) "by determining the defendant had no standing to attack the 'wiretap' used to satisfy the probable cause requirement necessary for the issuance of the search warrant"; (2) in failing to suppress the evidence of methamphetamine found in the pocket of a pair of shorts defendant put on after his arrest; (3) in failing to suppress testimony or evidence regarding marijuana located at 312 North 54th Street; and (4) in failing to determine that the evidence was insufficient to establish defendant's guilt.

The record shows the facts hereinafter set out. During an investigation in January 1989, the Federal Bureau of Investigation determined that Gary Apker, who was affiliated with the Hell's Angels' motorcycle group, was a prime suspect as a distributor of methamphetamine in the Omaha area. During that investigation in 1989 and 1990, it was discovered that defendant and Sandra Volkir had an association with Apker. Defendant and Volkir had known each other since 1972, had renewed dating in 1987, and had married on May 23, 1990.

Pursuant to federal and state court orders, a wiretap on Gary Apker's telephone and a listening device in Apker's residence were authorized. Apker's telephone communications were intercepted between June 24 and September 7, 1990. Oral communications inside Apker's residence were intercepted by a listening device between August 9 and October 17, 1990. 780 conversations were intercepted. After this electronic surveillance, search warrants were issued for the residence of defendant's wife Sandra Volkir, at 507 South 68th Street in Omaha; and the residence, owned by the estate of defendant's deceased mother at 312 North 54th Street, also in Omaha. Defendant had not lived at the North 54th Street residence after May of 1990 when he moved into Volkir's residence after their daughter was born. Defendant testified at trial that he stayed with Volkir in the master bedroom at the South 68th Street house, and kept his clothes there. He also testified that after he moved in with Volkir, he visited the 54th Street residence on an approximately daily basis to check for newspapers and mail and for security reasons. At the time the search warrants were executed, only a hired housekeeper was staying there.

Both search warrants were executed on October 17, 1990, at 7:00 a.m. After knocking on the door and receiving no response, officers forcibly entered the home on South 68th Street. Once inside, the officers heard a barking dog behind a locked bedroom door and forced their way into the room. Inside the room they found the defendant standing nude at the foot of the bed, near a window. Sandra Volkir was in the bed beneath some covers, and their baby was in a crib. In another bedroom, officers found Volkir's sister. After the officers handcuffed defendant, he requested permission to dress. An officer asked him what he needed, and the defendant responded by nodding toward a pair of shorts on the floor of the bedroom. The officer picked up the pair of shorts, asked if they were what defendant wanted; and, after receiving an affirmative response, helped the defendant to don them.

All the persons found in the home were taken to the living room. Once there, two of the officers overheard the defendant whisper to Volkir, "I've got it." Later, defendant requested to use the bathroom. At that time an officer conducted a search of the defendant and, in the right front pocket of the shorts, found a small plastic bag containing a substance later determined to be methamphetamine.

One of the deputy sheriffs who entered the bedroom where the defendant and Volkir were found had noticed at that time that the screen of the window by which the defendant was standing, was pushed out and torn. At approximately 1 p.m. the officer searched outside the house, and directly below the window of the bedroom where the defendant was seized, the officer found a plastic container and several plastic "baggies" later determined to contain methamphetamine residue. The officer also noticed the ground directly beneath the window was covered with a fine, white powder.

In the bedroom where the defendant was seized, the officers discovered $3200 in a shoe box in the closet, several bongs for marijuana consumption, and several small scales. On top of the dresser in the bedroom, the officers found a sifter and phone guard, and on the chest of drawers, two bottles of inositol powder, a cutting agent for methamphetamine. In the chest of drawers, the officers found several plastic bags containing a powdery residue, a snow seal, two small spoons, and a metal box. Other items found in the home included a bag of marijuana and several marijuana pipes. At trial, testimony presented by the State explained the usage of these items, for purposes of using, selling, or distributing methamphetamine.

The house on North 54th Street was searched at approximately the same time. A woman serving as a housekeeper resided at this location. The officers executing the search warrant there found a quantity of marijuana in a desk located on the second floor. In a bathroom adjacent to the defendant's bedroom in that house, an officer discovered a snow seal containing methamphetamine in a false bottomed can.

Defendant was charged with unlawfully and knowingly or intentionally possessing methamphetamine. He filed motions to suppress any statements made by him and any evidence seized pursuant to the search warrants. After an evidentiary hearing, the court overruled his motions. The trial was later held and a verdict of guilty was returned.

Defendant's first assignment of error contends that the trial court erred in determining the defendant had no standing to attack the 'wiretap' at the Apker residence. The court need not address this issue if it finds that the defendant failed to properly preserve the issue for appellate review.

We first note that defendant's filed motion to suppress on this issue sought an order suppressing the evidence

because of an illegal search and seizure; that the evidence was not in plain view; and that there was no probable cause based upon an insufficient affidavit; and if there was probable cause to search ... there was no probable cause to arrest, absent a warrant; that this was done in violation of the common law, the Nebraska State Constitution at Sec. 7, Art. 1, the United States Constitution at Article 4 of the Amendments.

At the pretrial hearing on this motion, the State offered the search warrants for each of the houses searched and the affidavit in support of each warrant. Defendant had no objection to the receipt of that evidence for the purposes of the hearing, and the trial court received the warrants and affidavits as evidence at the hearing. The State offered no other evidence at the pre-trial hearing.

Defendant then informed the court that he wanted to present evidence as to the information relied on by a United States district judge and a Douglas County district judge in issuing the order allowing electronic surveillance of Gary Apker. The prosecuting attorney contended that such evidence was not relevant

for purposes of this particular hearing. The purpose of this hearing is whether or not probable cause existed for the issuance of the warrants.... This hearing is not scheduled for ... [judging] the procedural correctness of any and all wiretaps that were involved through the federal...