State v. Jolitz, No. 88-372

CourtSupreme Court of Nebraska
Writing for the CourtHASTINGS; CAPORALE
Citation231 Neb. 254,435 N.W.2d 907
Docket NumberNo. 88-372
Decision Date17 February 1989
PartiesSTATE of Nebraska, Appellee, v. Evan C. JOLITZ, Appellant.

Page 907

435 N.W.2d 907
231 Neb. 254
STATE of Nebraska, Appellee,
v.
Evan C. JOLITZ, Appellant.
No. 88-372.
Supreme Court of Nebraska.
Feb. 17, 1989.

Page 908

Syllabus by the Court

1. Constitutional Law: Search and Seizure. If a search is a joint endeavor involving a private person and a state or government official, the search is subject to the constitutional safeguard against an unreasonable search, prohibited by the fourth amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution.

2. Motions to Suppress: Appeal and Error. In reviewing the trial court's ruling on a motion to suppress evidence, the Supreme Court does not reweigh the evidence or resolve conflicts in the evidence.

3. Motions to Suppress: Appeal and Error. The Supreme Court will uphold the trial court's findings of fact on a motion to suppress unless those findings are clearly wrong.

4. Appeal and Error. The Nebraska Supreme Court will not consider assignments of error which are not discussed in the appellant's brief.

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5. Motions to Suppress. On a motion to suppress evidence, the trial court, as the trier of fact, is the sole judge of the credibility of witnesses and the weight to be given to their testimony and other evidence.

6. Search Warrants: Affidavits: Probable Cause. To invalidate a warrant on the ground 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.

7. Search Warrants: Probable Cause. In determining probable cause for issuance of a search warrant, the issuing magistrate must make a practical, commonsense decision whether, given the totality of all the circumstances before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

8. Search Warrants: Probable Cause. Only the probability, and not a prima facie showing, of criminal acitivity is the standard for determining probable cause.

9. Search Warrants: Probable Cause: Appeal and Error. Where a magistrate has found probable cause, the duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

Jerry L. Soucie, Lincoln, for appellant.

Robert M. Spire, Atty. Gen., and Kimberly A. Klein, Lincoln, for appellee.

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

[231 Neb. 255] CAPORALE, Justice.

Following a bench trial, defendant-appellant, Evan C. Jolitz, was adjudged guilty of possessing more than 1 pound of marijuana in violation of Neb.Rev.Stat. § 28-416(5) (Reissue 1985), and was sentenced accordingly. He assigns three errors, which claim the evidence used against him was obtained in violation of the 4th and 14th amendments to the U.S. Constitution and of article I, § 7, of the Nebraska Constitution because the warrants authorizing the search and seizure were based on (1) a prior warrantless and unlawful search and seizure and (2) a false affidavit. We affirm.

The evidence adduced at the hearing on defendant's suppression motion establishes that while off duty, Kevin Stukenholtz, a lieutenant of the Nebraska State Patrol not regularly engaged in narcotics work, gave a hitchhiker, Thomas Mark Hart, three rides in Stukenholtz' personal automobile. Neither man knew the other before these encounters, and the rides occurred while Stukenholtz was on personal trips.

The first episode took place in June 1986, at which time Hart asked Stukenholtz to drive him to Swedeburg. Hart indicated that he hitchhiked all over the country and was coming from Oklahoma. While traveling toward Swedeburg, Hart, unaware that Stukenholtz was with the State Patrol, told Stukenholtz that he was going to visit Jolitz. According to Stukenholtz, Hart said Jolitz grew marijuana and stored it, when harvested, in a freezer or bank vault in an "old bank building" owned by Jolitz and located near his residence. Following Hart's directions, Stukenholtz drove Hart to Jolitz' home in Swedeburg, where he, without seeing anyone else, left Hart off and drove away before Hart entered the house. Stukenholtz then contacted the deputy county attorney about acquiring a search warrant, and also contacted an Investigator Hobbs, whom Stukenholtz knew had investigated the growing and sale of marijuana by Jolitz. Hart, however, claimed he only told Stukenholtz that Jolitz grew marijuana and had some greenhouses, but never mentioned the bank building or that Jolitz stored the marijuana in the basement.

The second encounter occurred in September 1986, at which time Stukenholtz once more drove Hart to Jolitz' residence

Page 910

and [231 Neb. 256] again saw no one else at the premises before he left. On this trip, Hart had asked Stukenholtz to come into the house and smoke some marijuana, which offer Stukenholtz declined. Although Stukenholtz still did not know who the hitchhiker was, he considered anew getting a search warrant, and contacted the deputy county attorney, who said that without corroboration of the hitchhiker's information, there was no basis for obtaining a warrant.

The third incident occurred on May 19, 1987. This time Hart was on his way to Montana when his automobile broke down, so he decided to hitchhike to Jolitz' home. By this time, Stukenholtz recognized the hitchhiker and assumed he was going to Jolitz'. Stukenholtz again did not identify himself as a law enforcement officer and, being interested in getting information to assist in acquiring a search warrant, let Hart generate conversation about Jolitz. Hart indicated he was indeed en route to Jolitz' and discussed "scoring some dope" for Stukenholtz. Stukenholtz indicated to Hart that he was familiar with marijuana and smoked it. They talked about different techniques of growing high-grade marijuana, fertilization, and pollination.

According to Stukenholtz, Hart told Stukenholtz about the marijuana Jolitz produced and

talked about how good it was, high quality, Evan's ability to grow dynamite pot, as he put it. He talked about Evan's schooling, how informed he was in growing marijuana, how impressed he was with his greenhouse and his operation, and how he and Evan were close friends and that for marijuana work, that Evan always gave him free pot and that when he was out of money, that Evan always took care of him in the way of marijuana.

Stukenholtz planned to drop Hart off at Jolitz' and then proceed to Wahoo, as he had done the past two times. However, when they got to Jolitz', Hart said Jolitz was not home, as Jolitz' automobile was not there and it was a little early for Jolitz to be home from work, and said, "I'll run in and get us some pot, if you can give me a ride to Wahoo." Once again, according to Stukenholtz, Hart said he was going to get the marijuana in the bank building. Stukenholtz parked around a [231 Neb. 257] bend, facing east, away from Jolitz' house. Hart got out, went directly west of the vehicle to the bank building, and disappeared from Stukenholtz' sight, going south down along the east side of the building. Stukenholtz remained in his automobile, where his view of the east side was obscured by a cabin adjacent to the east side of the bank building. Hart entered the bank building through a closed but unlocked window on the east side of the bank, the side next to the...

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4 practice notes
  • State v. Bradley, No. 89-360
    • United States
    • Supreme Court of Nebraska
    • October 19, 1990
    ...argued in an appellant's brief. Accordingly, we do not consider the six unargued assignments of error last listed above. State v. Jolitz, 231 Neb. 254, 435 N.W.2d 907 (1989); State v. Broadstone, 233 Neb. 595, 447 N.W.2d 30 None of the 11 summarized assignments of error properly before us h......
  • State v. Sardeson, Nos. 88-382
    • United States
    • Supreme Court of Nebraska
    • March 24, 1989
    ...court's findings of fact unless those findings are clearly erroneous. State v. Hoer, 231 Neb. 336, 436 N.W.2d 179 (1989); State v. Jolitz, 231 Neb. 254, 435 N.W.2d 907 (1989); State v. Abdouch, 230 Neb. 929, 434 N.W.2d 317 (1989). Further, in determining whether a trial court's findings on ......
  • State v. Marshall, No. A-94-449
    • United States
    • Court of Appeals of Nebraska
    • March 7, 1995
    ...misleading or in reckless disregard of whether such omissions made the affidavit misleading. See, Reivich, supra; State v. Jolitz, 231 Neb. 254, 435 N.W.2d 907 (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 Our independ......
  • Ritchie v. Walker Mfg. Co., No. 91-1307
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 21, 1992
    ...employer. See Jackson v. Metropolitan Page 1121 Edison Co., 419 U.S. 345, 349, 95 S.Ct. 449, 452, 42 L.Ed.2d 477 (1974); State v. Jolitz, 231 Neb. 254, 435 N.W.2d 907, 911-12 The district court then decided that Nebraska's statutory right to privacy, see Neb.Rev.Stat. § 20-203 (1988), did n......
4 cases
  • State v. Bradley, No. 89-360
    • United States
    • Supreme Court of Nebraska
    • October 19, 1990
    ...argued in an appellant's brief. Accordingly, we do not consider the six unargued assignments of error last listed above. State v. Jolitz, 231 Neb. 254, 435 N.W.2d 907 (1989); State v. Broadstone, 233 Neb. 595, 447 N.W.2d 30 None of the 11 summarized assignments of error properly before us h......
  • State v. Sardeson, Nos. 88-382
    • United States
    • Supreme Court of Nebraska
    • March 24, 1989
    ...court's findings of fact unless those findings are clearly erroneous. State v. Hoer, 231 Neb. 336, 436 N.W.2d 179 (1989); State v. Jolitz, 231 Neb. 254, 435 N.W.2d 907 (1989); State v. Abdouch, 230 Neb. 929, 434 N.W.2d 317 (1989). Further, in determining whether a trial court's findings on ......
  • State v. Marshall, No. A-94-449
    • United States
    • Court of Appeals of Nebraska
    • March 7, 1995
    ...misleading or in reckless disregard of whether such omissions made the affidavit misleading. See, Reivich, supra; State v. Jolitz, 231 Neb. 254, 435 N.W.2d 907 (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 Our independ......
  • Ritchie v. Walker Mfg. Co., No. 91-1307
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 21, 1992
    ...employer. See Jackson v. Metropolitan Page 1121 Edison Co., 419 U.S. 345, 349, 95 S.Ct. 449, 452, 42 L.Ed.2d 477 (1974); State v. Jolitz, 231 Neb. 254, 435 N.W.2d 907, 911-12 The district court then decided that Nebraska's statutory right to privacy, see Neb.Rev.Stat. § 20-203 (1988), did n......

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