State v. Marshall, A-94-449
| Decision Date | 07 March 1995 |
| Docket Number | No. A-94-449,A-94-449 |
| Parties | STATE of Nebraska, Appellee, v. Michael A. MARSHALL, Appellant. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Motions to Suppress: Appeal and Error. In determining the correctness of a trial court's ruling on a suppression motion an appellate court will accept the factual determinations and credibility choices made by the trial court unless, in light of all the circumstances, such findings are clearly erroneous.
2. Motions to Suppress: Appeal and Error. In determining whether a trial court's findings on a motion to suppress are clearly erroneous, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses.
3. Search Warrants: Probable Cause: Appeal and Error. The duty of the reviewing court is to ensure that the judge issuing a search warrant had a substantial basis for determining that probable cause existed.
4. Search and Seizure: Search Warrants: Presumptions. A search pursuant to a warrant is presumed to be valid.
5. Search Warrants: Affidavits. In determining the sufficiency of an affidavit used to obtain a search warrant, Nebraska has adopted the "totality of the circumstances" test formulated by the U.S. Supreme Court.
6. Search Warrants: Affidavits: Probable Cause. In issuing a search warrant, a judge must make a practical, commonsense decision whether, given the totality of the circumstances set forth in the affidavit before him or her, including the veracity 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.
7. 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 search warrant must (1) set forth facts demonstrating the basis of the informant's knowledge of criminal activity and (2) establish the informant's credibility, or the informant's credibility must be established in the affidavit through a police officer's independent investigation.
8. Search Warrants: Affidavits. An affidavit reciting that an undisclosed informant had given reliable information to the police in the past is sufficient to establish reliability for the purposes of issuing a search warrant.
9. Search Warrants: Affidavits: Presumptions: Proof. There is a presumption of validity with respect to the affidavit supporting the search warrant. In order to overcome this presumption, the defendant bears the burden of demonstrating that the affidavit was false.
10. Search Warrants: Affidavits: Probable Cause: Proof. In order to invalidate a warrant, it must be shown that the affiant made a deliberate falsehood or acted with reckless disregard for the truth, and it must be demonstrated that the challenged material is "material" or necessary to a finding of probable cause.
11. Search Warrants: Affidavits: Proof. Defendants who allege that warrant affidavits contain material falsehoods or omissions must establish that the challenged information contained in the affidavit was deliberately false or made in reckless disregard of the truth or that the information was omitted intentionally or deliberately. Negligent or innocent mistakes are not sufficient to support such a challenge.
12. Search Warrants: Affidavits: Proof. To invalidate a search warrant on grounds that the supporting affidavit contains material falsehoods or omissions, the defendant bears the burden of showing that the affiant omitted facts with the intent to make the affidavit misleading or in reckless disregard of whether such omissions made the affidavit misleading.
Thomas M. Kenney, Douglas County Public Defender, and Kelly S. Breen, Omaha, for appellant.
Don Stenberg, Atty. Gen., and James A. Elworth, Lincoln, for appellee.
Appellant, Michael A. Marshall, argues that evidence used to convict him was obtained from his home pursuant to an invalid search warrant. His motion to suppress physical evidence and statements was denied. He appeals his conviction for possession with intent to manufacture, distribute, deliver, or dispense base cocaine (crack) in a quantity of less than 10 grams, a violation of Neb.Rev.Stat. § 28-416(1)(a) (Cum.Supp.1994). This crime is a Class II felony and is punishable by 1 to 50 years' imprisonment. Neb.Rev.Stat. § 28-105 (Reissue 1989). Marshall was sentenced to serve a term of imprisonment of 4 to 8 years.
Marshall claims that the district court erred in (1) failing to suppress evidence obtained as a result of an invalid search warrant because (a) the informant's reliability was not established and (b) there were omissions of material fact and (2) prohibiting Marshall from questioning a police officer at the suppression hearing about the amount of money paid to a confidential informant whose information was used in the search warrant.
In determining the correctness of a trial court's ruling on a suppression motion, an appellate court will accept the factual determinations and credibility choices made by the trial court unless, in light of all the circumstances, such findings are clearly erroneous. State v. DeGroat, 244 Neb. 764, 508 N.W.2d 861 (1993); State v. White, 244 Neb. 577, 508 N.W.2d 554 (1993). In determining whether a trial court's findings on a motion to suppress are clearly erroneous, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994); State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994).
The duty of the reviewing court is to ensure that the judge issuing a search warrant had a substantial basis for determining that probable cause existed. Grimes, supra.
A search pursuant to a warrant is presumed to be valid. State v. Flores, 245 Neb. 179, 512 N.W.2d 128 (1994). In determining the sufficiency of an affidavit used to obtain a search warrant, Nebraska has adopted the "totality of the circumstances" test formulated by the U.S. Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See State v. Utterback, 240 Neb. 981, 485 N.W.2d 760 (1992). According to this test, the issuing judge must make a practical, commonsense decision whether, given the totality of the circumstances set forth in the affidavit before him or her, including the veracity 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. Id.
At approximately 11 p.m. on September 27, 1993, officers of the Omaha police narcotics unit, together with members of the emergency response unit, executed a search warrant at 1816 North 32d Street, Omaha, Nebraska. Present in the residence were several adults and two children. Marshall and a female codefendant were found in the basement of the residence, which appeared to be used as a separate living area. It contained a living room area with appropriate furniture and appliances, such as televisions and a stereo. Also in the basement was a bedroom area with dressers and a bed. A search of the basement disclosed the presence of 3 grams of crack cocaine concealed underneath the carpet and another one-half gram of crack cocaine in a plastic bag lying on top of one of the appliances. A physical search of Marshall revealed $1,530 contained in his right front pants pocket and an additional $421 in his left front pants pocket. Some of the other items revealed in the search were 2 mobile phones, 2 digital pagers, 35 rounds of 9-mm ammunition, and 4 venue items relating to Marshall. Marshall was subsequently arrested, and after being advised of his Miranda rights, he gave a statement admitting that the cocaine was his, stating, " 'It's mine, all mine.' " When questioned about the money found on his person, he denied that it was revenue from drug sales. During the interview, Marshall stated that his sole source of income was approximately $400 in monthly disability benefits.
The warrant which the officers executed authorized the search for cocaine; instruments for administering cocaine; and venue items such as keys, moneys, and records. The sworn affidavit executed by the two police officers obtaining the search warrant stated in relevant part:
The complaint and affidavit of [the police officers], on this 27th day of September 1993, who, being first duly sworn, upon oath says [sic]:
That he has [sic] just and reasonable grounds to believe, and does believe that there is concealed or kept as hereinafter described, the following property, to-wit: Cocaine, its' [sic] derivatives, all administering instruments whether homemade or manufactured. Venue items such as keys that would identify the person in control of 1816 N. 32 Street, Omaha, Douglas County, Nebraska. Also, monies and records used to conduct an illegal narcotics operation.
....
That the following are the grounds for issuance of a search warrant for said property and the reasons for his [sic] belief, to-wit: On Monday, 27 September 1993, affiant officers were contacted by a confidential reliable informant, in the early evening hours of today's date. In speaking with the C/I, the C/I informed affiant officers of a cocaine distribution operation eminating [sic] out of the address of 1816 N. 32 Street, Omaha, Nebraska. C/I advised affiant officers that he/she had observed a black female party known to the C/I as [codefendant's name]. The C/I further stated that [codefendant] is the resident of 1816 N....
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