State v. Lytle

• Decision Date: 11 December 1998
• Docket Number: No. S-97-1221,S-97-1221
• Citation: 255 Neb. 738,587 N.W.2d 665
• Parties: of Nebraska, appellee, v. Terry W. LYTLE, appellant.
• Court: Nebraska Supreme Court

Page 665

587 N.W.2d 665

255 Neb. 738

of Nebraska, appellee, v. Terry W. LYTLE, appellant.

No. S-97-1221.

Supreme Court of Nebraska.

Dec. 11, 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, 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. Search Warrants: Affidavits: Probable Cause: Appeal and Error. A search warrant, to be valid, must be supported by an affidavit establishing probable cause, or reasonable suspicion founded upon articulable facts. In evaluating probable cause for the issuance of a search warrant, a magistrate must make a practical, commonsense decision whether, given the totality of the circumstances set forth in the affidavit before the magistrate, including the veracity of 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. The duty of the reviewing court is to ensure that the magistrate issuing a search warrant had a substantial basis for determining that probable cause existed.

3. Search Warrants: Affidavits. When a search warrant is obtained on the strength of an informant's information, the affidavit in support of the issuance of the warrant must (1) set forth facts demonstrating 4. Search Warrants: Affidavits: Appeal and Error. An appellate court is restricted to consideration of the information and circumstances contained within the four corners of the affidavit underlying a search warrant.

the basis of the informant's knowledge of criminal activity and (2) establish the informant's credibility, or the informant's credibility[255 Neb. 739] must be established in the affidavit through a police officer's independent investigation. An affidavit in support of the issuance of a search warrant must affirmatively set forth the circumstances from which the status of the informant can reasonably be inferred.

5. Search Warrants: Affidavits. Among the ways in which the reliability of an informant may be established are by showing in the affidavit to obtain a search warrant that (1) the informant has given reliable information to police officers in the past, (2) the informant is a citizen informant, (3) the informant has made a statement that is against his or her penal interest, and (4) a police officer's independent investigation establishes the informant's reliability or the reliability of the information the informant has given.

6. Search Warrants: Affidavits: Probable Cause. The status of citizen informant cannot attach unless the affidavit used to obtain a search warrant affirmatively sets forth the circumstances from which the existence of the status can reasonably be inferred. When considering the sufficiency of probable cause based on information supplied by an informant, it is important to distinguish the police tipster, who acts for money, leniency, or some other selfish purpose, from the citizen informer, whose only motive is to help law officers in the suppression of crime. Unlike the professional informant, the citizen informant is without motive to exaggerate, falsify, or distort the facts to serve his or her own ends. A citizen informant is a citizen who purports to have been the witness of a crime who is motivated by good citizenship and acts openly in aid of law enforcement.

7. Probable Cause. An anonymous Crimestoppers tip, by itself, is not adequate to support probable cause without further investigation to verify or corroborate the information contained in the tip.

Barbara Thielen, of Fabian & Thielen, Omaha, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

Search warrants authorizing searches of appellant Terry W. Lytle's home and business were issued solely on the basis of a tip provided by an anonymous informant using the "Crime-stoppers" program. Lytle filed a motion to suppress evidence from his home and business pursuant to the search warrants. The trial court denied Lytle's motion to suppress, finding that the magistrate's determination of probable cause was correct. The question presented is whether a tip provided by an anonymous informant using the Crimestoppers program, which is unsupported by other corroborating evidence, is sufficient to support a finding of probable cause for the purpose of issuing a search warrant. Specifically, is such an informant a "citizen informant," such that she/he is presumptively reliable? We conclude that anonymous informants using the Crimestoppers program are not citizen informants and that the search warrant in the instant case was not supported by probable cause. We reverse, and remand with directions to dismiss.

BACKGROUND

Officer Robert C. Laney received a telephone call from an anonymous person who stated that Lytle was storing stolen Harley-Davidson motorcycles in the garage at his residence and using stolen motorcycle parts at his shop, One-Stop Motorcycles. The anonymous person also indicated that there would be some Harley-Davidsons that properly belonged to Lytle stored with the stolen ones. The anonymous person indicated that Another anonymous person, believed to be the same person that called Laney, later called Sgt. William Connelly through Crimestoppers. This anonymous person reiterated the information that had been given to Laney by the previous anonymous person, with the addition of some detail concerning the types of Harley-Davidsons stored at the two locations.

she/he had called before and nothing had been done and that she/he wanted something done. She/he indicated that the stolen motorcycles had been in Lytle's garage for 8 months. The anonymous person gave Laney no information as to how she/he was aware of these facts. Laney suggested that the anonymous person call the Crimestoppers program.

Laney drafted an affidavit and application for issuance of a search warrant based on the above telephone calls. The affidavit and application stated:

The complaint and affidavit of Officer Robert C. Laney # 1206, on this 19 day of SEPTEMBER, 1996, who, being first duly sworn, upon oath says:

he has just and reasonable grounds to believe, and does believe that there is concealed or kept as hereinafter described, the following property, to wit:

A 1992 Or 93 Maroon or Brown HARLEY DAVIDSON with silver panels and gold pinstripes and full touring equipment believed to be stolen.

A 1992 or 93 Silver HARLEY DAVIDSON FAT BOY thought to have been stolen in late summer of [sic] fall of 1995.

A 1985 to 90 Black HARLEY DAVIDSON Sportster thought to have been stolen out of state along with other stolen motorcycles and motorcycle parts[,] false identification tags, titles, numbers, and/or implements, tools, and materials for fabricating same.

That said property is concealed or kept in, on, or about the following described places or person(s), to wit:

# 1 6309 Boyd St. a tan single story family dwelling with the front door facing to the north with the numbers 6309 to the left of the front door and a detached single car garage with lean on addition built on to the rear of the garage. The garage is sitting to the south east of the house.

# 2 1125 NORTHWEST RADIAL HIGHWAY, OMAHA, DOUGLAS COUNTY NEBRASKA, doing business as ONE STOP MOTORCYCLE SHOP. The business name is painted on a sign which is hung on the front door of 1125 NORTHWEST RADIAL HIGHWAY. The building is a single garage tan in color with a stucco finish. The numbers 1125 appear on the left side of the front door[.] To the left or North of the front door is a roll up garage door facing west toward NORTHWEST RADIAL HIGHWAY. The address 1125 is adjoined to a two story tan stucco building which has the address of 1123 NORTHWEST RADIAL HIGHWAY.

That said property is under the control or custody of

LYTLE,Terry, W.

W/M, DOB 5-12-50

5'10' 150 Lbs.

Data # ...

SSN # ...

the following are the grounds for issuance of a search warrant for said property and the reasons for his belief to wit:

Omaha Police Sgt. CONNELLY # 832 took a crime stoppers tip from an anonymous source who said they [sic] had personal knowledge that within the past forty eight hours, concealed in an addition to a detached garage to the rear of 6309 Boyd St, Omaha Douglas County NE were several stolen HARLEY DAVIDSON Motorcycles. The caller said that a party by the name of LYTLE, TERRY who lives at that address has stored the stolen HARLEY DAVIDSON MOTORCYCLES at that location under a large blue tarp. The caller said that LYTLE pays unknown parties up to two thousand dollars for each HARLEY DAVIDSON MOTORCYCLE that they steal for him. The caller went on to say that LYTLE uses these motorcycles for parts at LYTLES motorcycle shop which is ONE-STOP MOTORCYCLE PARTS at 1125 NORTHWEST RADIAL HIGHWAY.

The caller also said that LYTLE has been doing this for several years.

The Omaha Police Department Auto Theft Unit has numberous [sic] unrecovered stolen Harley Davidson Motorcycles on file.

The Omaha Police Division, in 1982, began a Crime Stoppers Program. This program is a[sic] one by which the Omaha Police Division obtains information from the public about various Crimes and Fugitives in an effort to solve crimes reported to the Police, apprehend Fugitives, and recover stolen property. Since the inception of this program in 1982 over 1600 felony arrests have been made which cleared over 3155 reported...