State v. Flores

Decision Date11 February 1994
Docket NumberNo. S-93-373,S-93-373
PartiesSTATE of Nebraska, Appellee, v. Salomon C. FLORES, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Motions to Suppress: Appeal and Error. In determining the correctness of a trial court's ruling on a motion to suppress, an appellate court will uphold the trial court's factual findings unless those findings are clearly erroneous.

2. Search Warrants: Affidavits: Probable Cause. A search warrant, to be valid, must be supported by an affidavit establishing probable cause, or reasonable suspicion founded on articulable facts.

3. Search Warrants: Probable Cause: Words and Phrases. In evaluating a showing of probable cause necessary to support issuance of a search warrant, only probability and not prima facie evidence of criminal activity is required. Probable cause is reasonable suspicion founded on articulable facts.

4. Search Warrants: Affidavits: Probable Cause: Appeal and Error. In determining the sufficiency of an affidavit to show probable cause for the issuance of a search warrant, an appellate court looks to the totality of the circumstances. This means that if the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying hearsay information, indicate there is a fair probability that evidence of a crime may be found at the place described, the affidavit is sufficient.

5. Search Warrants: Affidavits: Probable Cause: Hearsay. Probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant's own knowledge.

6. Search and Seizure: Search Warrants: Presumptions. A search pursuant to a warrant is presumed to be valid.

7. Search and Seizure: Search Warrants: Proof. If police have acted pursuant to a search warrant, the defendant bears the burden of proof that the search or seizure is unreasonable.

8. Search Warrants: Affidavits: Probable Cause. Generally, if there is no question as to the accuracy of the facts alleged in an affidavit for a search warrant, it is not necessary to specify the items that are missing in order for a defendant to challenge the affidavit as insufficient to establish probable cause.

9. Search Warrants: Affidavits. In order to determine the sufficiency of an affidavit used to obtain a search warrant, this jurisdiction has adopted the "totality of the circumstances" test as 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).

10. Search Warrants: Affidavits: Probable Cause. The issuing 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.

11. 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 search 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.

12. Search Warrants: Probable Cause. 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.

13. Search Warrants: Affidavits. Among the ways in which the reliability of an informant may be established are by showing in the affidavit to obtain a search warrant 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.

14. Rules of Evidence: Words and Phrases. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

15. Criminal Law: Trial: Juries: Evidence: Appeal and Error. In a jury trial of a criminal case, whether an error in admitting or excluding evidence reaches a constitutional dimension or not, an erroneous evidential ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.

16. Controlled Substances: Evidence: Circumstantial Evidence: Proof. Constructive possession of an illegal substance may be proved by direct or circumstantial evidence and may be shown by the accused's proximity to the substance at the time of arrest or by a showing of dominion over the substance.

17. Controlled Substances: Circumstantial Evidence: Intent. Circumstantial evidence may support a finding that a defendant intended to distribute, deliver, or dispense a controlled substance in the defendant's possession.

18. Controlled Substances: Circumstantial Evidence: Intent. Circumstantial evidence to establish that possession of a controlled substance was with intent to distribute or deliver may consist of the quantity of the substance, the equipment and supplies found with it, the place it was found, the manner of packaging, and the testimony of witnesses experienced and knowledgeable in the field.

Gerard A. Piccolo, Hall County Public Defender, for appellant.

Don Stenberg, Atty. Gen., and James A. Elworth, Lincoln, for appellee.

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

PER CURIAM.

The defendant, Salomon C. Flores, appeals his conviction of possession of a controlled substance with intent to distribute. He assigns as error that the district court erred in (1) overruling his motion to suppress, (2) admitting evidence concerning certain alleged sales of cocaine, and (3) admitting testimony contrary to Neb.Rev.Stat. § 29-2262.01 (Reissue 1989). We reverse and remand for further proceedings.

Pursuant to a search warrant, Investigator Chris Rea of the Hall County Sheriff's Department and Investigator Michael Riley of the Nebraska State Patrol searched apartment No. 317 of the Blackstone Apartments in Grand Island, Nebraska, on December 10, 1992. Present in the apartment at the time of the search were Lisa Hank and a male, later identified as Salomon Flores. During the search, Rea found a bag underneath a sink in that apartment, which appeared to contain about an ounce of cocaine. This substance was identified as exhibit 2. Chemist Randy Pendleton of the Nebraska State Patrol stated that he had tested exhibit 2 and found it to be 27.04 grams, slightly less than an ounce, of cocaine. Riley testified that one-eighth of an ounce of cocaine, normally referred to as an "eight-ball," would sell on the street for anywhere from $200 to $300.

Riley also testified that $830 in currency was found in the apartment. Some additional cash was taken from the right front pocket of the defendant; the remaining currency was found with the cocaine under the bathroom sink. Riley stated that $160 of the currency found in the apartment matched photostatic copies of currency which he had given to a confidential informant earlier on December 10 for the purchase of cocaine. Some of this currency--a $20 bill, which matched one of the $20 bills given by Riley to the confidential informant, and several $1 bills--was found on the defendant.

Flores was charged by information with violation of Neb.Rev.Stat. § 28-416(1)(a) (Cum.Supp.1992), possession of cocaine with intent to distribute. Prior to trial, the defense filed a motion to suppress the fruits of the search and seizure. The motion was overruled on February 26, 1993, and the defendant was convicted of the charge following a jury trial on March 16, 1993, from which he appeals.

The defendant first contends that the search was conducted pursuant to an invalid warrant and a supporting affidavit which failed to establish probable cause, and that the court therefore erred in overruling the motion to suppress.

In determining the correctness of a trial court's ruling on a motion to suppress, an appellate court will uphold the trial court's factual findings unless those findings are clearly erroneous. State v. White, 244 Neb. 577, 508 N.W.2d 554 (1993); State v. Stott, 243 Neb. 967, 503 N.W.2d 822 (1993).

A search warrant, to be valid, must be supported by an affidavit establishing probable cause, or reasonable suspicion founded on articulable facts. State v. Utterback, 240 Neb. 981, 485 N.W.2d 760 (1992); State v. Armendariz, 234 Neb. 170, 449 N.W.2d 555 (1989).

In evaluating a showing of probable cause necessary to support issuance of a warrant, only probability and not prima facie evidence of criminal activity is required. Probable cause is reasonable suspicion founded on articulable facts. Id.

In determining the sufficiency of an affidavit to show probable cause for the issuance of a warrant, we must look to the totality of the circumstances. This means that if the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying hearsay information, indicate there is a fair probability that evidence of a crime may be found at the place described, the affidavit is sufficient. Id.

Probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant's own knowledge. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

A search pursuant to a warrant is presumed to be valid. State v. Vrtiska, 225 Neb. 454, 406 N.W.2d 114 (1987); State v....

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