State v. Johnson

• Decision Date: 12 February 1999
• Docket Number: Nos. S-97-632,S-97-633,s. S-97-632
• Citation: 589 N.W.2d 108,256 Neb. 133
• Parties: STATE of Nebraska, appellee, v. Michael E. JOHNSON, appellant.
• Court: Nebraska Supreme Court

Page 108

589 N.W.2d 108

256 Neb. 133

STATE of Nebraska, appellee, v. Michael E. JOHNSON, appellant.

Nos. S-97-632, S-97-633.

Supreme Court of Nebraska.

Feb. 12, 1999.

Syllabus by the Court

1. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable Cause: Judgments: 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. However, to the extent questions of law are involved, an appellate court is obligated to reach conclusions independent of the decisions reached by the courts below.

2. Search Warrants: Affidavits: Probable Cause. The Nebraska Supreme Court has adopted the "totality of the circumstances" rule established by Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), as the basis for determining whether an affidavit is sufficient to establish probable cause for the issuance of a search warrant. Under this standard, the question is whether, considering the totality of the circumstances, the issuing magistrate had a substantial basis for finding that the affidavit established probable cause.

3. Search Warrants: Affidavits: Probable Cause. In order to be valid, a search warrant must be supported by an affidavit establishing probable cause.

4. Case Overruled: Search Warrants: Probable Cause: Constitutional Law. To the extent that our decisions in State v. Lytle, 255 Neb. 738, 587 N.W.2d 665 (1998); State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994); State v. Flores, 245 Neb. 179, 512 N.W.2d 128 (1994); State v. Stott, 243 Neb. 967, 503 N.W.2d 822 (1993); State v. Morrison, 243 Neb. 469, 500 N.W.2d 547 (1993); State v. Farrell, 242 Neb. 877, 497 N.W.2d 17 5. Search Warrants: Affidavits: Evidence: Appeal and Error. In evaluating the sufficiency of an affidavit used to obtain a search warrant, an appellate court is restricted to consideration of the information and circumstances contained within the four corners of the affidavit, and evidence which emerges after the warrant is issued has no bearing on whether the warrant was validly issued.

(1993); State v. Utterback, 240 Neb. 981, 485 N.W.2d 760 (1992); State v. Armendariz, 234 Neb. 170, 449 N.W.2d 555 (1989); State v. Cullen, 231 Neb. 57, 434 N.W.2d 546 (1989); State v. Hodge and Carpenter, 225 Neb. 94, 402 N.W.2d 867 (1987); State v. Abraham, 218 Neb. 475, 356 N.W.2d 877 (1984); State v. Robish, 214 Neb. 190, 332 N.W.2d 922 (1983), and the opinions of the Nebraska Court of Appeals in State v. Nelson, 6 Neb.App. 519, 574 N.W.2d 770 [256 Neb. 134] 1998), and State v. Flemming, 1 Neb.App. 12, 487 N.W.2d 564 (1992), suggest that issuance of a search warrant may be based upon something less than probable cause required by the Fourth Amendment to the U.S. Constitution, they are disapproved.

6. Search Warrants: Affidavits: Police Officers and Sheriffs: Probable Cause. The purpose of the four corners doctrine is to require a police officer seeking a search warrant to include in the affidavit all information he or she possesses bearing on the probable cause determination at the time of issuance of the warrant, thus preventing supplementation of that information if the warrant is subsequently challenged.

7. Search Warrants: Probable Cause: Proof: Time. Proof of probable cause justifying 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.

8. Search Warrants: Affidavits: Police Officers and Sheriffs: Evidence: Search and Seizure. The good faith exception recognized in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), provides that even in the absence of a valid affidavit to support a search warrant, evidence seized pursuant thereto need not be suppressed where police officers act in objectively reasonable good faith in reliance upon the warrant.

9. Search Warrants: Affidavits: Police Officers and Sheriffs: Probable Cause. In regard to a police officer's reasonable reliance on an invalid warrant, the test for reasonable reliance is whether the affidavit was sufficient to create disagreement among thoughtful and competent judges as to the existence of probable cause. This is an objective standard of reasonableness, which requires officers to have a reasonable knowledge of what the law prohibits.

10. Motions to Suppress: Search Warrants: Affidavits: Police Officers and Sheriffs: Evidence. Under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), suppression of evidence remains appropriate if (1) the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his or her reckless disregard of the truth, (2) the issuing magistrate wholly abandoned his or her judicial role, (3) the warrant is based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, or (4) the warrant is so facially deficient that the executing officer cannot reasonably presume it to be valid.

11. Motions to Suppress: Search Warrants: Affidavits: Evidence. The good faith exception recognized in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), does not preclude suppression where the issuing magistrate was misled by omissions in an affidavit. Omissions in an affidavit used to obtain a search warrant are considered to be misleading when the facts contained in the omitted material tend to weaken or damage the inferences which can logically be drawn from the facts as stated in the affidavit.

Thomas A. Fitch, of Fitch & Tott Law Firm, South Sioux City, for appellant.

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

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ., and CHEUVRONT, D.J.

STEPHAN, J.

In these consolidated appeals, we granted the State's petition for further review of a decision by the Nebraska Court of Appeals which reversed Michael E. Johnson's convictions for possession with intent to distribute a controlled substance (methamphetamine and cocaine) and unauthorized possession of a controlled substance (diazepam), based upon that court's determination that a search warrant for Johnson's home was not supported by probable cause and that the fruits of the search were therefore not admissible. State v. Johnson, 6 Neb.App. 817, 578 N.W.2d 75 (1998). Finding no error, we affirm the judgment of the Court of Appeals in both cases.

FACTUAL AND PROCEDURAL BACKGROUND

The pertinent facts are set forth in detail in the opinion of the Court of Appeals and are summarized here only to the extent necessary for our consideration of the issues raised in the petition for further review. At approximately 11:25 p.m. on May 19, 1995, police officers arrested Johnson in South Sioux City, Nebraska, pursuant to an arrest warrant on charges of failing to pay child support. Officer Terry Ivener conducted a pat-down search incident to the arrest and felt a small, cylindrical object in one of Johnson's pockets, which Johnson identified as a knife. Ivener retrieved the object, which was a small, clear plastic vial with a black lid containing several small, off-white "rocks." Chemical field tests performed at the scene of the arrest confirmed Ivener's suspicion that the vial contained methamphetamine. The police officers then searched Johnson's vehicle, which he had occupied immediately prior to his arrest, and found a plastic bag containing two small paper packets which Ivener suspected to be "snow seals," commonly used as containers for controlled substances. Johnson's billfold was searched and found to contain an empty snow seal and $269.50 in cash.

Within hours after arresting Johnson, Ivener prepared an affidavit and complaint for a warrant to search Johnson's home for controlled substances, drug paraphernalia, currency, weapons, and other items generally associated with illicit drug trafficking. The affidavit described Johnson's arrest and the seizure of the vial "containing a substance later identified ... as methamphetamine." However, the quantity of the substance was not stated in the affidavit. The affidavit also recited the discovery of the snow seals, which Ivener characterized on the basis of his training and experience as "an item used for the sale of controlled substances." The affidavit concluded with the following statements:

6. I am aware from my training and experience and from information received from other law enforcement officers that individuals frequently keep controlled substances on their persons; as well as at their residence.

7. I am aware from my training and experience, and from information received from other law enforcement officers, that individuals involved in the possession, use and distribution of controlled substances use paraphernalia to ingest the controlled substance and that this paraphernalia is retained by the individual for the [sic] future use and that this paraphernalia retains residue of the controlled substance.

8. I am aware that Michael E. Johnson is a person known to have engaged in the use and sale of controlled substances. I am further aware that Michael E. Johnson has previously been convicted of drug charges. I know that Michael E. Johnson lives at 3401 El Dorado Way, South Sioux City, Dakota County, Nebraska as I have been to his home on service calls on at least three separate occasions.

9. Based upon my knowledge and training in...