State v. Groves
| Decision Date | 13 December 1991 |
| Docket Number | No. 90-283,90-283 |
| Citation | 477 N.W.2d 789,239 Neb. 660 |
| Parties | STATE of Nebraska, Appellee, v. Kevin R. GROVES, Appellant. |
| Court | Nebraska 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, this court will uphold a trial court's findings of fact unless those findings are clearly erroneous.
2. Motions to Suppress: Appeal and Error. In deciding whether the trial court's findings on a motion to suppress are clearly erroneous, the reviewing court recognizes the trial court as the trier of fact and takes into consideration that the trial court has observed the witnesses testifying regarding the motion.
3. Search Warrants: Affidavits. This court has adopted the "totality of the circumstances" test 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), to determine the sufficiency of an affidavit used to obtain a search warrant.
4. 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.
5. 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, 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.
6. Search Warrants: Probable Cause: Appeal and Error. The duty of the reviewing court is to ensure that the issuing magistrate had a substantial basis for determining that probable cause existed.
7. Search Warrants. An error in the street address of the place to be searched is not per se fatal to the validity of a warrant.
8. Search Warrants: Police Officers and Sheriffs. The test to determine the sufficiency of a search warrant's description is whether the place to be searched is described with sufficient particularity so as to enable the executing officer to find and identify the location with reasonable effort, and whether there is any reasonable probability that another site might mistakenly be searched.
9. Search Warrants. Factors to be considered in determining the validity of a warrant inaccurately describing the place to be searched are whether the place which was intended to be searched has previously been under surveillance or was being surveilled while the warrant was obtained and whether other parts of the description which are correct limit the property to be searched to one place.
10. Search Warrants. Evidence which emerges after the warrant is issued has no bearing on whether a warrant was validly issued.
11. Motions to Suppress: Search Warrants: Police Officers and Sheriffs. Evidence seized pursuant to a defective search warrant is not subject to being suppressed where the warrant is executed by officers who acted in good faith and reasonably believed that they were executing a valid warrant.
12. 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 of each case.
13. Search Warrants: Time. In general, no more than a reasonable time may have elapsed between the occurrence of facts and the issuance of a search warrant based thereon.
14. Motions for Mistrial: Appeal and Error. The decision as to whether to grant a motion for mistrial is a matter within the discretion of the trial court, and such a ruling will be upheld absent an abuse of that discretion.
15. Motions for Mistrial: Appeal and Error. Ordinarily, error cannot be predicated on the failure to grant a mistrial if an objection or motion to strike the improper material is sustained and the jury is admonished to disregard such material.
16. Proof: Appeal and Error. The defendant must prove that the alleged error actually prejudiced him, rather than creating only the possibility of prejudice.
17. Rules of Evidence: Other Acts: Proof. Neb.Rev.Stat. § 27-404(2) (Reissue 1989) provides that 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.
18. Rules of Evidence: Other Acts: Proof. Neb.Rev.Stat. § 27-404(2) (Reissue 1989) is an inclusionary rule permitting the use of relevant other crimes or acts for all purposes except proving that the defendant acted in conformity with his character.
19. Controlled Substances: Evidence: Weapons. In drug-related prosecutions, evidence relating to guns in a defendant's possession is relevant.
20. Prior Convictions: Habitual Criminals: Proof: Right to Counsel: Waiver. To prove a prior conviction for enhancement purposes and for habitual criminal proceedings, the State need only establish that at the time of the prior conviction, the defendant had or waived counsel.
Thomas M. Kenney, Douglas County Public Defender and Brian S. Munnelly, Omaha, for appellant.
Robert M. Spire, Atty. Gen. and Kimberly A. Klein, Lincoln, for appellee.
The defendant, Kevin R. Groves, was convicted by a jury of unlawful possession with intent to deliver methamphetamine and possession of a firearm by a felon. He was sentenced to a term of imprisonment of 2 to 4 years on the drug charge and to 13 months on the firearm charge. He has appealed and makes four assignments of error.
In his first assignment of error, the defendant contends that the trial court erred in overruling his motion to suppress evidence discovered during the search conducted on April 29, 1989, at 8104 Bedford Plaza, a claim he preserved by making proper objections at the time of trial. See State v. Britt, 237 Neb. 163, 465 N.W.2d 466 (1991).
On April 20, 1989, Deputy Sheriff William Jackson applied for a warrant to search for methamphetamine; various items associated with the use, manufacture, and sale of drugs; and a 12-gauge pump-action shotgun, cut off at both the barrel and the stock to make it shorter than the legal dimensions. The items to be seized were alleged to be under the control or custody of Groves and concealed or kept at "8032 Bedford Plaza, Omaha, Douglas County, Nebraska, a single story, wood frame, single family dwelling, white in color, and any out buildings on the curtilage, and any vehicles on this property...."
Deputy Jackson's affidavit set forth the grounds in support of issuance of the search warrant, alleging that he had been provided information by a confidential informant regarding Groves and the address to be searched. Deputy Jackson checked this information and found it to be true.
The informant had advised Deputy Jackson that he had been inside the residence described as 8032 Bedford Plaza and had observed Groves in possession of more than 2 grams of methamphetamine and a sawed-off 12-gauge shotgun. The informant further advised that Groves was a convicted felon and currently wanted for an active felony arrest warrant. The informant was able to pick out Groves from numerous booking photographs the informant was shown.
Deputy Jackson checked and found that Groves was a convicted felon with prior arrests for drug-related offenses, weapons-related offenses, and assault. Furthermore, Deputy Jackson found that Groves was currently wanted on 10 active warrants, 1 of which was for a felony.
On the basis of Deputy Jackson's affidavit, a judge of the county court issued the requested search warrant. The search warrant authorized a search of "8032 Bedford Plaza, Omaha, Douglas County, Nebraska, a single story, wood frame single family dwelling, white in color, and any out buildings on the curtilage, and any vehicles on this property...."
On April 29, 1989, Deputy Jackson and several other officers executed the search warrant. The defendant was found asleep on a couch in the basement, and during the search of the basement, the officers discovered various items of contraband and a number of loaded weapons in the area immediately surrounding the defendant. The defendant was arrested, and the warrant was returned along with an inventory to the county court on April 29.
The defendant filed a motion to suppress the items seized, alleging, among other things, that the affidavit in support of the search warrant did not state sufficient facts to show probable cause for issuance of the warrant and that the warrant violated the particularity clause of the fourth amendment to the U.S. Constitution because it contained an incorrect address.
The correct street address of the house where the defendant was found and from which the items were seized is 8104 Bedford Plaza. This was not discovered until after the warrant was executed.
At the suppression hearing, Deputy Jackson testified that the confidential informant had shown him the house that was later searched. Deputy Jackson had conducted surveillance of this house for approximately a week prior to obtaining the warrant to search, and he had observed the defendant outside the residence on several occasions.
The residence which was searched is located west of 80th Street on Bedford Plaza, which is a dead-end street with houses located only on the north side of the street. It is a white single-story, wood frame, single-family residence and is the last house on the street.
Deputy Jackson was unable to...
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