State v. Hodge

• Decision Date: 27 March 1987
• Docket Number: Nos. 86-611,86-646,s. 86-611
• Parties: STATE of Nebraska, Appellee, v. Larry HODGE, Appellant. STATE of Nebraska, Appellee, v. Theresa Jane CARPENTER, Appellant.
• Court: Nebraska Supreme Court

Page 867

402 N.W.2d 867

225 Neb. 94

STATE of Nebraska, Appellee, v. Larry HODGE, Appellant.

STATE of Nebraska, Appellee, v. Theresa Jane CARPENTER, Appellant.

Nos. 86-611, 86-646.

Supreme Court of Nebraska.

March 27, 1987.

Syllabus by the Court

1. Search Warrants: Probable Cause: Appeal and Error. The duty of the Supreme Court in determining whether probable cause to issue a search warrant exists is only to ensure that the magistrate had a substantial basis for concluding that such existed.

2. Search Warrants: Probable Cause: Words and Phrases. Probable cause is a reasonable suspicion founded on articulable facts.

3. Search Warrants: Probable Cause. In evaluating the showing of probable cause necessary to support the issuance of a search warrant, only the probability, and not a prima facie showing, of criminal activity is required.

4. Search Warrants: Probable Cause. A search warrant may be issued for a location where it is probable that the property described would be found.

5. Search Warrants: Appeal and Error. In determining the validity of a search warrant, the reviewing court may consider only information brought to the attention of the issuing magistrate.

6. Search Warrants: Probable Cause: Appeal and Error. A magistrate's determination of probable cause should be paid great deference by reviewing courts, and warrants should not be invalidated by interpreting the supporting affidavit in a hypertechnical, rather than a commonsense, manner.

7. Search Warrants: Probable Cause: Affidavits. To invalidate a warrant on grounds that the supporting affidavit was false, the defendant bears the burden of showing that the affiant made a deliberate falsehood or acted with reckless disregard for the truth and that the challenged information was material or necessary to a finding of probable cause.

8. Search Warrants: Probable Cause: Proof. The proof of probable cause which must be made before a search warrant may be issued must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time. Whether the proof satisfies this test is determined by the circumstances in each case.

9. Constitutional Law: Search and Seizure. A person's capacity to claim the protection of article I, § 7, of the Nebraska Constitution as to unreasonable searches and seizures, like its counterpart, the fourth amendment to the U.S. Constitution depends upon whether the person who claims such protection has a legitimate expectation of privacy in the invaded place.

10. Constitutional Law: Search and Seizure. An unreasonable search within the meaning of the fourth amendment occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.

11. Constitutional Law: Search and Seizure. Generally, a person who has relinquished control and vacated the premises has no reasonable expectation of privacy in the premises.

12. Constitutional Law: Search and Seizure. A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his fourth amendment rights infringed.

Hal W. Anderson of Berry, Anderson, Creager & Wittstruck, Lincoln, and Michael T. Brogan of Brogan & Stafford, P.C., Norfolk, for appellants.

Robert M. Spire, Atty. Gen., and Linda L. Willard, Lincoln, for appellee.

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

BOSLAUGH, Justice.

The defendants, Larry Hodge and Theresa Jane Carpenter, were charged in separate informations with possession of marijuana with intent to manufacture, distribute, deliver, or dispense. After a consolidated trial on stipulated facts, they were found guilty. The defendant Hodge was sentenced to 3 to 5 years' imprisonment, with credit for 2 days served. Carpenter was sentenced to 1 to 3 years' imprisonment, also with credit for 2 days served.

On appeal, the defendants attack the constitutionality of a search made on September 29, 1985, claiming that the trial court erred in finding there was probable cause to issue the search warrant and in failing to find the evidence was seized in violation of the defendants' rights under both the U.S. and Nebraska Constitutions. Hodge also claims his sentence was excessive.

On September 28, 1985, Ronald Hilliges, an investigator with the Nebraska State Patrol, obtained a search warrant for the defendants' leased residence, a farmhouse, in Pierce County, Nebraska.

The warrant was issued on the basis of an affidavit by Hilliges, which provided as follows:

Ronald J. Hilliges, being duly sworn, upon oath deposes and says that he is an investigator with the Nebraska State Patrol office in Norfolk, Nebraska.

Affiant states that he had received information from a confidential informant that Larry Hodge had sold marijuana in pound or larger quantities during 1982. Affiant was at that time uncertain as to the reliability and truthfulness of the informant so he began to monitor the activity of Larry Hodge.

In November of 1984 affiant, together with other law enforcement officials, observec [sic] approximately 600 cultivated marijuana plants that had been grown and harvested near the Stanton County residence that was then occupied by Larry Hodge. Also observed and found by affiant were hand tillage tools, fertilizer, fertilizer containers and remnants of the cultivated plants at the marijuana patch.

Affiant was informed that Larry Hodge and Jane Carpenter, who resided in the Stanton County farmshouse [sic] with Larry Hodge, moved out of that residence sometime during June 1985. Despite that fact that Larry Hodge moved from the residence, he continued to pay rent on the residence until approximately September 1, 1985.

Affiant further states that after the lease was terminated on or about September 1, 1985, he personally viewed the Stanton County residence that had been occupied by Larry Hodge. The house contained a stairway door that was padlocked which led to the attic. The attic contained leaves and pieces of marijuana wire was strung in the attic for drying, nylon screening was used for drying, and a plastic bag containing approximately one quarter ounce of marijuana was found.

Affiant further states that the acreage and area surrounding the Stanton County farmhouse then occupied by Larry Hodge had been monitored again since late spring in 1985. Affiant observed marijuana being grown and cultivated near the farmhouse occupied by Larry Hodge. The marijuana plants were weeded and the male plants were removed from the patch during the summer. Affiant further states that the marijuana plants were still growing in the aforementioned patch when observed on Wednesday morning, September 25, 1985. However, when affiant observed the patch on Friday afternoon, September 27, 1985, the plants had been harvested.

Affiant further states that a well defined path from the house, that was formerly occupied by Larry Hodge, to the marijuana patch was observed. Also an alternate path that appeared to be more secluded but which crossed a marshy wet area of property from the house to the marijuana patch was observed by affiant.

Affiant further states that Larry Hodge and Jane Carpenter moved from the Stanton County residence to a Pierce County farmstead residence that is now leased by Larry Hodge and that is located on the real estate described as the Southeast Quarter of the Southeast Quarter (SE 1/4SE 1/4) of Section Eleven (11), Township Twenty-five (25) North, Range Two (2) West of the 6th P.M., Pierce County, Nebraska.

Affiant, therefore, believes that the following items will be found within the farmstead residence leased by Larry Hodge that is located on the real estate described as the SE 1/4SE 1/4 11-25-2 Pierce County, Nebraska: or the out-buildings or surrounding area of the farmstead residence of Larry Hodge heretofore described; or any motor vehicle owned by Larry Hodge; or any motor vehicle owned by Jane Carpenter:

1. Evidence of marijuana harvesting tools

2. Plastic bags for storing marijuana similar to that found in the vacated Stanton County residence

3. Literature on the cultivation of marijuana

4. Tools used in the cultivation of marijuana

5. Records or documents relating to transactions dealing with the sale of marijuana including telephone numbers of possible buyers

6. Marijuana seeds

7. Drying racks used for drying marijuana

8. Marijuana plants and marijuana leaves

9. Processed marijuana

10. Nylon screening similar to that found in the vacated Stanton County residence.

Affiant further believes that since the heretofore described items of property are easily movable or easily destroyed, said items of property may be moved or hidden in a different location, or destroyed, if not seized without further delay, and, therefore, request that a Search Warrant be issued and be authorized to be served at any time.

The warrant was served on the defendants at their Pierce County residence on September 29, 1985. A large quantity of marijuana was seized from the home and surrounding outbuildings. As a result, the defendants were charged with possession of a controlled substance with intent to manufacture, distribute, deliver, or dispense.

Both defendants filed motions to suppress the evidence seized as a result of the search. After a consolidated hearing on February 10, 1986, the motions to suppress were overruled. At trial the issues raised in the motions to suppress were preserved by timely objections to the offered evidence.

The defendants maintain the articles seized were improperly admitted in evidence because the affidavit in support of the warrant was wholly defective, lacked sufficient foundation for issuance of the warrant, and appeared to contain information obtained as the result of an earlier illegal search.

Although it contained certain inaccuracies, the defendants have not attacked the...