State v. Johnson

• Decision Date: 21 April 1998
• Docket Number: Nos. A-97-632,A-97-633,s. A-97-632
• Citation: 578 N.W.2d 75,6 Neb.App. 817
• Parties: STATE of Nebraska, Appellee, v. Michael E. JOHNSON, Appellant.
• Court: Nebraska Court of Appeals

Page 75

578 N.W.2d 75

6 Neb.App. 817

STATE of Nebraska, Appellee, v. Michael E. JOHNSON, Appellant.

Nos. A-97-632, A-97-633.

Court of Appeals of Nebraska.

April 21, 1998.

Syllabus by the Court

1. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable Cause: Appeal and Error. A trial court's ruling on a motion to suppress evidence, 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. In making this determination, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses.

2. Judgments: Appeal and Error. On questions of law, an appellate court has an obligation to reach conclusions independent of the decisions reached by the court below.

3. Search Warrants: Probable Cause: Appeal and Error. In evaluating the validity of a search warrant, the duty of a reviewing court is to ensure that the magistrate issuing the warrant had a substantial basis for finding the existence of a fair probability that evidence of a crime or contraband would be found.

4. Search Warrants: Affidavits: Evidence: Appeal and Error. An appellate court is restricted to consideration of the 5. Search Warrants: Affidavits: Probable Cause. To be valid, a search warrant must be supported by an affidavit establishing probable cause, or reasonable suspicion found on articulable facts.

information and circumstances contained within the four corners of the affidavit underlying a search warrant. Evidence which emerges after the warrant is issued has no bearing on whether the warrant was validly issued.

6. Search and Seizure: Search Warrants: Probable Cause. Searches conducted pursuant to warrants supported by probable cause are generally considered to be reasonable.

7. Search and Seizure: Search Warrants: Motions to Suppress: Proof. A defendant seeking to suppress evidence seized in a search of his or her home pursuant to a search warrant has the burden of establishing that the search was improper and that the fruits of the search should be suppressed.

8. Search Warrants: Probable Cause. Probable cause to believe that a person has committed a crime previously and elsewhere is not, by itself, adequate to secure a search warrant for the person's home or another place.

9. Constitutional Law: Search and Seizure. General searches simply to find evidence of any crime are constitutionally impermissible.

10. Search Warrants: Affidavits. A search warrant should not be invalidated by interpreting the supporting affidavit in a hypertechnical, rather than a commonsense, manner.

11. Search Warrants: Probable Cause: Police Officers and Sheriffs: Hearsay. Probable cause for a search warrant may be founded on a law enforcement officer's personal knowledge, on hearsay, or on information from an informant. If the information is in the nature of hearsay or is otherwise beyond the officer's personal knowledge, it must be supported with indicia of the source's reliability.

Thomas A. Fitch, of Fitch & Tott Law Firm, Lincoln, for appellant.

Don Stenberg, Attorney General, and Ronald D. Moravec, Plattsmouth, for appellee.

MILLER-LERMAN, C.J., and IRWIN and INBODY, JJ.

MILLER-LERMAN, Chief Judge.

In these consolidated appeals, Michael E. Johnson (Johnson) appeals from the orders of the Dakota County District Court denying his motions to suppress physical evidence seized pursuant to a search warrant and the subsequent introduction of that evidence over objection at the consolidated trial. Case No. A-97-632 pertains to the information charging Johnson with possession with intent to distribute a controlled substance, identified as both methamphetamine and cocaine. Case No. A-97-633 pertains to the information charging Johnson with unlawful possession of a controlled substance, diazepam.

The judgment of the district court in case No. A-97-632 is reversed and the cause remanded for proceedings consistent with this opinion. The judgment of the district court in case No. A-97-633 is reversed and the cause remanded with directions to dismiss.

FACTS

A warrant for the arrest of Johnson for failure to pay child support was issued on May 17, 1995. The warrant was made known to law enforcement officials the following day. On May 19, 1995, at approximately 11:25 p.m., South Sioux City, Nebraska, police officers Robert Johnson (Officer Johnson) and Terry Ivener were patrolling city streets, and they observed Johnson driving his car.

Ivener stated that Johnson's car entered traffic and traveled directly behind the officers' police car. Officer Johnson was driving the police car. He slowed its speed and pulled over to the right, allowing Johnson to pass the police car. Both officers observed Johnson as he passed, and they visually confirmed his identity. Officer Johnson activated the police car's overhead emergency lights, and Johnson stopped his car after turning right at the next intersection.

Officer Johnson proceeded to make radio contact with Frank Peck, a Nebraska State Patrol officer in the vicinity who had a drug-sniffing dog with him. Meanwhile, Ivener exited the police car and approached Johnson's car. Johnson produced identification and exited his car. Ivener told Johnson that he was being placed under arrest and directed Johnson to place his hands on the car's trunk so that Ivener could conduct a pat-down search of Johnson's person.

Johnson complied with Ivener's request. Ivener testified that he felt a small, cylindrical object in one of Johnson's pockets. Johnson claimed the item was a knife. Ivener testified that "[i]t didn't feel like any knife that I've ever felt before." Upon Johnson's continued assertion that the object was a knife, Ivener handcuffed Johnson, reached into Johnson's pocket, and retrieved the object, which was a small, clear plastic vial with a black lid containing several small, off-white "rocks."

Ivener's suspicion that the rocks were methamphetamine was confirmed by chemical field tests performed at the site of the arrest. Johnson was placed in the rear seat of the police car, and Ivener proceeded to assist Peck in searching Johnson's car. Peck and Ivener were aided in their search by Peck's dog, which was specially trained to alert to the scent of narcotics. The dog alerted at the front seat of Johnson's vehicle, and the officers found a plastic baggie which contained two small paper packets. Ivener testified that he suspected the packets to be "snow seals," a commonly used means of containing methamphet-amine and other drugs. The contents of each packet were subjected to a chemical field test at the arrest site, which indicated the contents to be methamphetamine. The total combined weight of the methamphetamine found in Johnson's car was less than 1 gram. Ivener testified at the suppression hearing that the amount found in the snow seals in Johnson's car, which was found to be .53 of a gram, was consistent with personal use. At trial, Nebraska State Patrol Investigator James Kelly also testified that the cumulative total of the methamphetamine found in Johnson's car and in the vial in Johnson's pocket was consistent with personal use.

An empty snow seal was discovered in Johnson's billfold. The search of Johnson's billfold also yielded $269.50 in cash. Ivener testified that he found nothing else on Johnson's person or in Johnson's car which he suspected of being related to illegal drug activity.

Later, in the early morning hours of May 20, 1995, Ivener prepared a complaint and affidavit for a warrant to search Johnson's home. In the affidavit, Ivener described Johnson's arrest several hours earlier, including finding the snow seals in Johnson's car and billfold. Ivener did not allege in his affidavit that the amounts of methamphetamine discovered in Johnson's car and on his person were consistent with distribution. In the affidavit, Ivener swore that "I am aware that Michael E. Johnson is a person known to have engaged in the use and sale of controlled substances [and] that Michael E. Johnson has previously been convicted of drug charges." In the affidavit, Ivener claimed that based on his training and experience and from information received from other law enforcement officers, he was aware that "individuals frequently keep controlled substances on their persons ... as well as at their residence [sic]." Ivener also claimed to be aware that "individuals involved in the possession, use and distribution of controlled substances use paraphernalia to ingest the controlled substance[;] that this paraphernalia is retained by the individual for ... future use[;] and that this paraphernalia retains residue of the controlled substance." Ivener also stated that he had been to Johnson's home on "service calls" at least three times in the past. Ivener requested a warrant to search Johnson's home as soon as possible, to be served during "the hours of darkness" so as "to avoid any possibility of destruction of evidence."

Based upon Ivener's affidavit, the magistrate issued a search warrant which allowed officers to search Johnson's home for the following:

Controlled Substances including but not limited to cocaine, methamphetamine and marijuana; drug paraphernalia, homemade Upon obtaining the warrant, Ivener and other officers proceeded to search Johnson's home at 2 a.m. on May 20, 1995. The officers seized numerous items from Johnson's home, including a small quantity of cocaine; a triple-beam scale; precut small squares of glossy paper alleged to be unused snow seals; a jewelry catalog with glossy pages containing photographs and lettering consistent with those on the unused snow seals; two pairs of scissors; a razor blade and a small, black glass board; and drug paraphernalia. The officers also seized tablets...