State v. Ortiz

• Decision Date: 01 October 1999
• Docket Number: No. S-98-568.,S-98-568.
• Citation: 600 N.W.2d 805,257 Neb. 784
• Parties: STATE of Nebraska, appellee, v. Eddie R. ORTIZ, Jr., appellant.
• Court: Nebraska Supreme Court

600 N.W.2d 805

257 Neb. 784

STATE of Nebraska, appellee, v. Eddie R. ORTIZ, Jr., appellant.

No. S-98-568.

Supreme Court of Nebraska.

October 1, 1999.

Glenn A. Shapiro, of Gallup & Schaefer, Omaha, for appellant.

Don Stenberg, Attorney General, and Ron Moravec, for appellee.

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

MILLER-LERMAN, J.

I. NATURE OF CASE

Eddie R. Ortiz, Jr., was convicted of two counts of unlawful possession with intent to deliver controlled substances and sentenced accordingly. Ortiz appeals from the trial court's order admitting evidence over his objection, which evidence Ortiz claims was obtained in violation of U.S. Const. amend. IV and Neb. Const. art. I, § 7.

As explained more fully below, the canine sniff for illegal drugs which was conducted at the threshold to Ortiz' apartment where Ortiz had a legitimate expectation of some measure of privacy violated the Fourth Amendment and Neb. Const. art. I, § 7. Although a canine may be deployed to test for illegal drugs in some cases, doing so at the threshold of a dwelling on less than reasonable, articulable suspicion is improper. In this case, the information obtained by the alert of the canine must be excised from the affidavit in support of the search warrant. The residue of the affidavit did not amount to probable cause for the issuance of a search warrant, and the contraband seized pursuant to the defective search warrant must, therefore, be suppressed. We conclude on the facts of this case that the search of Ortiz' apartment was constitutionally flawed and that the contraband recovered should have been excluded. We reverse, and remand for a new trial consistent with this opinion.

II. STATEMENT OF FACTS

Sometime during the early evening of August 7, 1997, Omaha police received a telephone call from a concerned citizen (C/C) who told police that she or he "knew of" Ortiz and alleged that Ortiz "has been active in distributing cocaine from his apartment within the past year." Police were given Ortiz' address and a general physical description of Ortiz by C/C. The record indicates that at the time the call was received, Ortiz was not a suspect.

Police verified that Ortiz had lived at the address given by the caller for about 2 years. The police checked their internal records, which showed that Ortiz had a prior conviction in 1991 for possession of a controlled substance, for which he had been sentenced to a 6-month term of imprisonment, and that a concurrent charge had been dismissed. The police records also showed that Ortiz was charged in early 1994 with possession of marijuana and hashish with intent to deliver but that the charges were dropped.

At about 8:45 p.m. on the same evening, police officers took Pogo, a police dog specially trained to detect the scents of marijuana, cocaine, cocaine base, methamphetamine, amphetamine, and heroin into the hallway outside Ortiz' apartment to perform a canine sniff of the area. The officers ran Pogo in the hallway outside Ortiz' apartment, and Pogo "alerted" by the door to Ortiz' apartment.

On August 8, 1997, officers applied for and obtained a "no-knock" daytime search warrant which entitled them to search the interior of Ortiz' apartment. The affidavit and application for search warrant submitted by the police officers read, in pertinent part, as follows:

That the following are the grounds for issuance of a search warrant for said property and the reasons for the Affiant's belief, to-wit:

On Thursday, 7 August 1997 in the evening hours, Affiant Officer LANG was contacted by a concerned citizen, hereafter referred to as the C/C. The C/C advised that he/she knew of an individual by the name of Eddie ORTIZ, described as an Hispanic male, mid-twenties, with a small build, who resides at 809 South 70th Street, Apt. # 6. The C/C stated that ORTIZ is active in distributing cocaine from his apartment. The C/C stated that ORTIZ has been active in distributing cocaine from his apartment within the past year. The C/C who provided this information did not request any type of monetary compensation for providing this information.

. . . .

On Thursday, 7 August 1997 at approximately 2045 hours, Officers KUNZE, LANG, and HENRY of the Narcotics Unit went to the address of 809 South 70th Street, Apt. 6. Officer HENRY is the drug canine handler of POGO who was utilized at the address to detect the presence of narcotics. Officer HENRY ran POGO by the apartment door at which time POGO alerted to the presence of narcotics. Officer HENRY advised that POGO made a positive alert for the presence of narcotics from Apartment # 6.

Another paragraph in the affidavit, not repeated here, described Pogo's training, the adequacy of which is not relevant to our resolution of the appeal. The affidavit also included the results of the officers' records check and the fact that Ortiz had resided at the apartment since July 1, 1995.

Based on the affidavit offered by police, on August 8, 1997, a Douglas County Court judge issued a warrant authorizing the officers to search Ortiz' apartment for cocaine and related paraphernalia, cash, and weapons. Shortly thereafter, the police officers executed the warrant. Within Ortiz' apartment, the officers found one-quarter of an ounce of cocaine and $6,300 in a kitchen drawer, 4 ounces of marijuana and $11,000 in a freezer, and a notebook containing records of suspected drug transactions.

Ortiz was not present when the officers searched his apartment. After the officers concluded the search, they left a business card with a telephone number at which they could be reached. The police kept Ortiz' apartment under surveillance for an unspecified period, but Ortiz did not appear, and the police subsequently abandoned the surveillance.

Ortiz voluntarily presented himself to police on August 18, 1997. He was charged with possession of cocaine with intent to deliver, a Class II felony in violation of Neb.Rev.Stat. § 28-416(1)(a) (Reissue 1995) (count I), possession of marijuana with intent to deliver, a Class III felony in violation of § 28-416(1)(a) (count II), and possession of money/currency used to facilitate the distribution of illegal narcotics, a Class IV felony in violation of § 28-416(16) (count III).

Ortiz filed a motion to suppress all of the evidence seized from his apartment, claiming, inter alia, that the search warrant was not supported by probable cause. The district court for Douglas County overruled the motion on November 6, 1997, finding that the affidavit police submitted in support of the search warrant adequately described Pogo's training and reliability as a drug-sniffing canine and that Pogo's alert in the hallway outside of Ortiz' apartment door provided police with probable cause to obtain the search warrant.

On December 23, 1997, the charges against Ortiz were tried to the court on stipulated facts, with a standing objection by Ortiz to all of the evidence seized from his apartment. The prosecution subsequently withdrew count III, the charge of possession of funds used to facilitate the distribution of illegal drugs. The trial court found Ortiz guilty of counts I and II. On June 3, 1998, Ortiz was sentenced to a term of 3 to 5 years' imprisonment on count I and a term of 2 to 3 years' imprisonment on count II, to be served consecutively.

III. ASSIGNMENT OF ERROR

Restated, Ortiz claims on appeal that the trial court erred in admitting into evidence the items seized from his apartment as a result of the police search.

IV. STANDARD OF REVIEW

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. State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999). 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. Id.

V. ANALYSIS

1. PROBABLE CAUSE TO ISSUE SEARCH WARRANT

A search warrant, to be valid, must be supported by an affidavit which establishes probable cause. State v. Johnson, supra.

"Probable cause" sufficient to justify issuance of a search warrant means a fair probability that contraband or evidence of a crime will be found. State v. Craven, 253 Neb. 601, 571 N.W.2d 612 (1997). Proof of probable cause justifying issuance of a search warrant generally must consist of facts so closely related to the time of issuance of the warrant as to justify a finding of probable cause at that time. State v. Johnson, supra. Probable cause to search is determined by a standard of objective reasonableness, that is, whether known facts and circumstances are sufficient to warrant a person of reasonable prudence in a belief that contraband or evidence of a crime will be found. State v. Craven, supra.

In reviewing the strength of an affidavit submitted as a basis for finding probable cause to issue a search warrant, an appellate court applies a "totality of the circumstances" rule whereby the question is whether, under the totality of the circumstances illustrated by the affidavit, the issuing magistrate had a substantial basis for finding that the affidavit established probable cause. State v. Detweiler, 249 Neb. 485, 544 N.W.2d 83 (1996). As a general rule, an appellate court is restricted to consideration of the information and circumstances found within the four corners of the affidavit. State v. Johnson, supra.

A search conducted pursuant to a search warrant supported by probable cause is generally considered to be reasonable, and it is a defendant's burden to prove that the search...