State v. Graham
| Decision Date | 07 July 2000 |
| Docket Number | No. S-99-1235.,S-99-1235. |
| Citation | 614 N.W.2d 266,259 Neb. 966 |
| Parties | STATE of Nebraska, appellee, v. Donnie GRAHAM, appellant. |
| Court | Nebraska Supreme Court |
Kelly J. Werts, of Fankhauser, Nelsen & Werts, P.C., Humboldt, for appellant.
Don Stenberg, Attorney General, and Marie Colleen Clarke, for appellee.
Donnie Graham appeals his convictions of two counts of distributing marijuana in violation of Neb.Rev.Stat. § 28-416(1)(a) (Reissue 1995). Graham asserts that the district court for Pawnee County erred in denying his motion to suppress and in failing to find that he had been entrapped. We affirm.
Investigator Philip Dittbrenner was assigned to the Southeast Area Drug Enforcement Task Force, which covers a six-county area in southeast Nebraska, including Pawnee County. In May 1998, Dittbrenner was working with a confidential informant who agreed to introduce Dittbrenner to persons who might be selling illegal drugs. The informant received a fee of $50 to $100 each time he provided adequate information that led to persons who were selling drugs. Pursuant to such agreement, the informant identified Graham as a person he had known for some time who had dealt in cocaine, methamphetamine, and marijuana sales.
On May 6, 1998, Dittbrenner and the informant went to Graham's home in Pawnee City so that the informant could introduce Dittbrenner to Graham and Dittbrenner could attempt to purchase drugs from Graham. Dittbrenner and the informant arrived at Graham's home in the early afternoon without notice or invitation. The informant introduced Dittbrenner to Graham as "Bill" and falsely told Graham that he worked for "Bill" in a construction business. Neither the informant nor Dittbrenner revealed Dittbrenner's true identity as an investigator. Graham invited Dittbrenner and the informant into his home.
Dittbrenner and the informant remained in Graham's home for approximately 45 minutes to an hour, talking with Graham. During that time, the three individuals drank beer, Graham offered Dittbrenner marijuana to smoke, and Dittbrenner simulated smoking the marijuana. Toward the end of the visit, Dittbrenner asked Graham whether he had any marijuana to sell. Graham replied that at the time, all he had was a small baggie of marijuana that he would sell to Dittbrenner for $10. Dittbrenner purchased the baggie and inquired whether he could get more marijuana. Graham told Dittbrenner he would attempt to find some more marijuana, but no specific plan was made at that time.
The next day, May 7, 1998, the informant called Graham to inquire as to an additional purchase of marijuana. Graham advised the informant and Dittbrenner that he could get them a quarter ounce of marijuana, but that they would need to travel to get it. Dittbrenner and the informant went to Graham's house, then proceeded with Graham to the home of Lynn deKoning in rural Pawnee County. On the way, Dittbrenner gave Graham $50, which was the agreed-upon price for the quarter ounce of marijuana. When they arrived at the deKoning residence, Dittbrenner and the informant waited in the car. Graham went to the house and brought out an individual he introduced to Dittbrenner and the informant as "Lynn." Graham and Lynn went into the residence, and a short time later, Graham returned to the car and handed Dittbrenner a baggie which, Dittbrenner estimated, contained approximately a quarter ounce of marijuana.
The baggies given by Graham to Dittbrenner were sent to the Nebraska State Patrol Criminalistics Laboratory for analysis. Testing revealed that both baggies contained marijuana.
Graham was arrested, and a preliminary hearing was held in the county court for Pawnee County on December 3, 1998. The county court found that the State had submitted sufficient evidence to establish probable cause that the two charged offenses of distributing marijuana had been committed and that reasonable grounds existed to believe Graham had committed those offenses. Graham was bound over to district court for trial on the charges.
Graham asserted that Dittbrenner's entry into his home on May 6, 1998, using a confidential informant and a false identity to obtain Graham's consent to enter violated his right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the U.S. Constitution and by Neb. Const. art. I, § 7.
Graham waived jury trial, and on July 28, 1999, the matter came on for hearing on the motion to suppress and for bench trial. For purposes of the motion and trial, the parties stipulated that the testimony of Dittbrenner at the preliminary hearing would be admitted and received into evidence, and Graham waived further cross-examination of Dittbrenner. Graham waived foundation for the admission of the Nebraska State Patrol Criminalistics Laboratory reports, provided that such reports would not be admitted into evidence if the court sustained his motion to suppress. At the bench trial, Graham argued a defense of entrapment, asserting that the record did not show any predisposition on his part to commit the crimes charged. The State argued in response that there was no entrapment, as Graham had not resisted Dittbrenner's request to purchase marijuana.
On August 11, 1999, the district court entered a ruling denying Graham's motion to suppress and, with respect to the substance of the charges, found Graham guilty of both counts of distributing marijuana in violation of § 28-416(1)(a). On October 14, the district court sentenced Graham to imprisonment for not less than 36 months and not more than 60 months on each count to run concurrently. Graham appealed the denial of the motion to suppress and his convictions.
Graham asserts that the district court erred in (1) denying his motion to suppress and (2) failing to find that he had been entrapped.
A trial court's ruling on a motion to suppress based on the Fourth Amendment, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000). In making a determination whether a trial court's ruling on a motion to suppress is to be upheld, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes that the trial court is the finder of fact and takes into consideration that it observed the witnesses. Id.
Regarding questions of law, an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below. State v. Reeves, 258 Neb. 511, 604 N.W.2d 151 (2000).
Motion to Suppress.
Graham asserts that the district court erred in denying his motion to suppress evidence obtained as the result of Dittbrenner's entry into his home on May 6, 1998. Graham argues that such governmental entry into his home which was gained by use of false pretenses on the part of the State's agent violated his right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the U.S. Constitution and by Neb. Const. art. I, § 7. Because we conclude that the Fourth Amendment and Neb. Const. art. I, § 7, are not implicated by the undisputed facts, we affirm the district court's denial of Graham's motion to suppress.
We note that in its ruling on Graham's motion to suppress, the district court did not articulate its specific findings but simply stated that "[t]he court finds that the defendant's Motion to Suppress should be overruled." We have directed that "district courts shall articulate in writing or from the bench their general findings when denying or granting a motion to suppress." State v. Osborn, 250 Neb. 57, 67, 547 N.W.2d 139, 145 (1996). We noted in Osborn that the degree of specificity required would vary from case to case. In the instant case, the district court's articulation of the specific basis of its denial of Graham's motion to suppress would have been helpful to our review on appeal. However, the only evidence offered and received for the district court's consideration of Graham's motion to suppress was Dittbrenner's testimony from the preliminary hearing. Because there is no conflict in the evidence relevant to the motion, we are able to review the district court's ultimate determination of the motion to suppress from the record in this case. Accordingly, we proceed to consideration of the merits of the motion to suppress.
The uncontroverted evidence establishes that based on the informant's identification of Graham as a person who dealt in illegal drugs, Dittbrenner arranged to meet Graham. Dittbrenner used a false identity to gain Graham's consent to enter his house. After Dittbrenner and the informant had been inside Graham's house for some time, Graham voluntarily offered them some marijuana to smoke. When Dittbrenner later asked to purchase some marijuana from Graham, Graham readily offered to sell what he had and agreed to try to locate more. The following day, Graham again readily responded to Dittbrenner's request by accepting Dittbrenner's $50 and taking Dittbrenner to a location where Graham obtained marijuana, which he then sold to Dittbrenner. Under the facts of this case, there was neither a search nor a seizure...
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