State v. Morrison
| Decision Date | 21 May 1993 |
| Docket Number | No. S-91-977,S-91-977 |
| Parties | STATE of Nebraska, Appellee, v. William M. MORRISON, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Search Warrants: Affidavits: Evidence: Probable Cause: Appeal and Error. A search warrant, to be valid, must be supported by an affidavit establishing probable cause, or reasonable suspicion founded on articulable facts. The duty of an appellate court in determining whether probable cause existed at the time a search warrant was issued is to ensure that the magistrate had a substantial basis for concluding that probable cause did in fact exist. Moreover, an appellate court is restricted to consideration of the information and circumstances contained within the four corners of the underlying affidavit. Evidence which emerges after the warrant is issued has no bearing on whether a warrant was validly issued.
2. Constitutional Law: Search and Seizure. While the Fourth Amendment protects a person's privacy interest in the contents of personal luggage, a canine sniff requires neither opening the luggage nor exposing noncontraband items and is not an unconstitutional search.
3. Motions to Suppress: Appeal and Error. A trial court's ruling on a motion to suppress will be upheld on appeal unless the trial court's findings of fact are clearly erroneous.
4. Motions to Suppress: Appeal and Error. In reviewing a trial court's findings on a suppression motion, an appellate court recognizes the trial court as the finder of fact and takes into consideration that the trial court has observed the witnesses testifying in regard to such motion.
5. Search and Seizure: Search Warrants: Motions to Suppress: Proof. A defendant who seeks to suppress evidence obtained pursuant to a search warrant has the burden of establishing that the search warrant is invalid so that evidence secured thereby may be suppressed.
6. Search Warrants: Affidavits: Probable Cause: Judges: Appeal and Error. The role of an appellate court is to determine whether the affidavit used to obtain a search warrant, when supplemented by the omitted material, would provide a magistrate or judge with a substantial basis for concluding that probable cause existed for the issuance of the warrant.
7. Search and Seizure: Controlled Substances: Judicial Notice. The Nebraska Supreme Court has taken judicial notice that substances such as LSD may be easily and quickly disposed of by merely flushing them down a toilet or drain.
8. Search and Seizure: Search Warrants: Probable Cause: Words and Phrases. An anticipatory search warrant is one that is issued before the item to be seized has arrived at the place to be searched. The fact that the contraband is not presently located at the place described in the warrant is immaterial, so long as there is probable cause to believe that it will be there when the search warrant is executed.
9. Motions for Mistrial: Appeal and Error. The decision as to whether to grant a motion for mistrial is a matter within the discretion of the trial court, and such a ruling will be upheld absent an abuse of that discretion.
10. Motions for Mistrial: Proof: Appeal and Error. A mistrial is properly granted when an event occurs during the course of a trial which is of such a nature that its damaging effects cannot be removed by proper admonition or instruction to the jury and would thus result in preventing a fair trial. Egregiously prejudicial statements of counsel, the improper admission of prejudicial evidence, and the introduction to the jury of other incompetent matters are examples of occurrences which may constitute such events. Error cannot ordinarily be predicated on the failure to grant a mistrial if an objection or motion to strike the improper material is Daniel W. Ryberg, Omaha, for appellant.
sustained and the jury is admonished to disregard such material. The defendant must prove that the alleged error actually prejudiced him, rather than creating only the possibility of prejudice.
Don Stenberg, Atty. Gen., and Kimberly A. Klein, Lincoln, for appellee.
The State of Nebraska contends that the Nebraska Court of Appeals in State v. Morrison, 243 Neb. 469, 1 NCA 2262 (1992), erred in holding that evidence obtained pursuant to a no-knock search warrant should have been suppressed by the district court for Douglas County. Further review was granted by this court.
We agree with the State's position, reverse the judgment of the Court of Appeals, and remand the cause with direction to reinstate William M. Morrison's convictions and sentences.
Morrison was convicted by a district court jury of unlawful possession with intent to deliver LSD (lysergic acid diethylamide) and with unlawful possession of a controlled substance, psilocybin. He was sentenced to not less than 3 nor more than 5 years in prison for possession with intent to deliver LSD, and to not less than 1 1/2 nor more than 5 years in prison for possession of a controlled substance, the sentences to run concurrently.
Evidence adduced at a pretrial suppression hearing reflects that on March 26, 1991, Gerald Vajgert, a U.S. postal inspector, removed an Express Mail package addressed to William Morrison from the mail stream. Based upon his training and experience in detecting and intercepting packages containing illegal controlled substances, Vajgert withheld the package from the mail stream because (1) the package was from a known "source state" for drugs, i.e., California; (2) the package was going from an individual to an individual; (3) the labels on the package were handwritten; and (4) the ZIP Code on the return address differed from the ZIP Code of the mailing post office.
Vajgert arranged for the package to be "presented" to "Bush," a trained and experienced drug detection dog from the Omaha Police Division (OPD). Bush found where the package was hidden and started barking, scratching, and biting, which indicated the presence of contraband. After obtaining a federal warrant to search the package, Vajgert opened the package and discovered it contained approximately 2,064 hits of LSD. Vajgert described the LSD as being on 3- by 3-inch-square sheets of absorbent paper with 100 hits to the sheet.
Following this discovery, Vajgert contacted OPD's narcotics division and arranged a controlled delivery of the package. In preparation for delivery of the package to Morrison, OPD Officer Stephen Sanchelli removed from the package all but 200 hits of LSD. He testified that this action was taken so that if the drugs got away from the officers, as some had in the past, a lesser amount of controlled substances would "hit the street." Sanchelli stated that even if the 200 hits were flushed away, there were still approximately 1,800 hits preserved.
On March 27, 1991, Sanchelli applied to a Douglas County Court judge for a warrant to search Morrison's residence based on the findings during the search of the package. In his affidavit, Sanchelli stated that the "package containing the 2,064 hits of LSD will be delivered" to Morrison at his address in Omaha. A no-knock search warrant was requested because, as stated in the affidavit, "[o]fficers know through past experience that if they were to announce themselves or their purpose that evidence being sought could be easily destroyed by flushing it down the toilet or sink." The Douglas County Court judge issued the requested warrant, authorizing officers to "enter [Morrison's] premises ... without Shortly after a postal inspector delivered the package to Morrison, officers kicked in or rammed the door to Morrison's apartment. Morrison was arrested and charged with possession of a controlled substance, LSD, with intent to deliver. Morrison was also charged with possession of psilocybin, a controlled substance which was found by police in Morrison's apartment when police searched it. Based solely on his objection relating to the factors used by Vajgert to intercept suspicious packages, Morrison filed a motion to suppress all physical evidence seized by officers and all statements made by Morrison to law enforcement officers. After an evidentiary hearing, the motion was overruled. In his motion to suppress, Morrison made no complaint regarding the no-knock search warrant issued by the Douglas County Court judge.
knocking or announcing their authority...."
Following a jury trial, Morrison was found guilty on both counts with which he was charged, and he was subsequently sentenced.
Morrison appealed his convictions to the Court of Appeals, claiming that the trial court erred in (1) overruling Morrison's motion to suppress evidence, (2) failing to permit Morrison to examine the prosecuting attorney on her vindictiveness and in permitting amendment of the information, (3) permitting hearsay testimony, and (4) overruling Morrison's motion for a mistrial based on prosecutorial misconduct. The Court of Appeals reversed Morrison's convictions after determining that service of the search warrant by a no-knock entry was improper under the circumstances of this case and that the evidence obtained thereby should have been suppressed. The Court of Appeals stated that the inference to be drawn from Sanchelli's affidavit, i.e., that all 2,064 hits of LSD were to be delivered to Morrison and were at risk of ready destruction, was misleading. The court reasoned that issuance of a no-knock search warrant would have been unlikely had the issuing judge been aware that most of the evidence had already been detained at police headquarters and half of the remaining evidence was taped to the inside of the package. The Court of Appeals concluded that the district court erred in overruling the motion to suppress evidence seized following the service of the no-knock search warrant. We granted the State's petition for further review of the cause.
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