State v. Parmar

• Decision Date: 31 March 1989
• Docket Number: No. 88-505,88-505
• Citation: 231 Neb. 687,437 N.W.2d 503
• Parties: STATE of Nebraska, Appellee, v. Leroy J. PARMAR, Appellant.
• Court: Nebraska Supreme Court

Page 503

437 N.W.2d 503

231 Neb. 687

STATE of Nebraska, Appellee, v. Leroy J. PARMAR, Appellant.

No. 88-505.

Supreme Court of Nebraska.

March 31, 1989.

Syllabus by the Court

1. Probable Cause: Words and Phrases. Probable cause is a flexible, commonsense standard. It merely requires that the facts available to the officer would warrant one of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.

2. Search Warrants: Appeal and Error. In determining the validity of a search warrant, the reviewing court may consider only information brought to the attention of the issuing magistrate.

3. Search Warrants: Affidavits: Probable Cause. The test for reasonable reliance on a search warrant is whether the affidavit was sufficient to create disagreement among thoughtful and competent judges as to the existence of probable cause.

4. Search Warrants: Affidavits: Probable Cause: Police Officers and Sheriffs. The test in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), for good-faith reliance is an objective test, and it is based solely on facts presented to the magistrate. Thus, facts subjectively relied upon by the affiant but excluded from the affidavit do not establish that an officer acted in objectively reasonable reliance upon a subsequently invalidated search warrant.

5. Search Warrants: Probable Cause: Police Officers and Sheriffs. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), creates an exception to the exclusionary rule only when officers have acted in objectively reasonable reliance on the ruling of a judge or magistrate.

Thomas M. Kenney, Douglas County Public Defender, and Brian S. Munnelly, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and Kenneth W. Payne, Alliance, for appellee.

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

GRANT, Justice.

Defendant-appellant, Leroy J. Parmar, was convicted by a jury in the district court for Douglas County of murder in the first degree in violation of Neb.Rev.Stat. § 28-303(2) (Reissue 1985), commonly called felony murder. He was sentenced to life imprisonment. Defendant timely appealed to this court, alleging only one error: that the trial court erred in overruling defendant's motion to suppress certain "evidence seized from the Defendant's residence; namely, a brown wooden-handled pneumatic pump action BB gun." Although we conclude that the trial court erred in admitting this BB gun into evidence, the error was harmless beyond a reasonable doubt. We therefore affirm defendant's conviction and sentence.

The facts supporting defendant's conviction are as follows. The victim, Frederick Cox, lived in apartment 10, 3453 Ames Avenue, Omaha, in a four-building apartment complex. Defendant resided in apartment 16, 3455 Ames Avenue, Omaha, with Lanetta Harrington. Michelle Carrigan lived in apartment 15, 3455 Ames Avenue, Omaha, with Lanetta Harrington's sister, Joyce Harrington, and a man named Truman Stevenson. The apartments were all in the same complex.

The record shows that on the evening of April 15, 1987, Cox received $1,000 cash from his ex-wife pursuant to a property settlement agreement in the divorce proceeding between those parties. The receipt of this money was shown by a receipt signed by Cox and given to his ex-wife. The next morning, Cox rode to work with his friend, Thomas Tyron. Tyron testified that Cox called him at home later that morning, telling Tyron that "he had his good fortune with him" and that he wanted to leave work early. Tyron picked Cox up from work at 11 a.m. The two men rode around for awhile, and Cox paid some debts he owed. Tyron then took Cox to the store, where he purchased groceries and alcohol. The two men spent the day socializing and drinking at various places and returned to the apartment complex at about 4:10 p.m. Tyron left Cox's apartment at about 6 p.m. Cox and others continued to celebrate Cox's "good fortune."

Michelle Carrigan first met Cox between 5 and 6 p.m. on April 16 in the hallway of his apartment building. Later that evening, Carrigan and Lanetta Harrington went to Cox's apartment. After some conversation, Harrington left and Carrigan engaged in an act of prostitution with Cox. Cox pulled some money from underneath the mattress and paid Carrigan, who observed at that time that Cox had hidden what appeared to be a "lot of money ... [m]aybe a thousand," underneath his mattress. Cox invited Carrigan to stop back later.

Carrigan returned to her apartment and talked with a group of people, including Joyce Harrington, Truman Stevenson, and Lanetta Harrington. She told Lanetta about Cox's money. Defendant eventually joined the group, and, as the evening progressed, the subject of Cox's money came up again.

Carrigan testified that she and defendant talked about how much money Cox might have had. Carrigan further testified that she and defendant discussed a specific plan to take the money. The plan was that Carrigan would go knock on Cox's door. When Cox opened the door, defendant and Lanetta Harrington would rush in, causing Carrigan to be pushed into Cox. In the process, defendant and Harrington would tie him up and rob him. The act was designed to make it appear that Carrigan did not have anything to do with the robbery.

Carrigan later joined Lanetta Harrington and defendant at their apartment and saw that defendant and Harrington had some extension cord, rope, and pieces of cutoff panty hose. Carrigan testified that defendant "got together" a BB gun, extension cord, and the nylons.

The three carried out the plan at about 2 on the morning of April 17. Carrigan knocked on the door. When Cox answered, defendant and Harrington rushed up from the stairs and pushed Carrigan into the apartment. As defendant and Harrington wrestled with Cox, a woman named Valerie Washington came out of the bedroom and asked what was going on. Carrigan said she did not know. Washington left, followed by Carrigan.

Carrigan went back to her own apartment, but eventually returned to Cox's apartment. She went to the bedroom and saw Lanetta Harrington tying Cox's legs. Carrigan testified that defendant was "down by the top of Mr. Cox" but the bed obstructed her view. Carrigan told them they should get out. She left Cox's apartment and went into the parking lot, where she saw Ronnie Franks, a part-time caretaker, picking up glass.

Valerie Washington testified that she had gone to Cox's apartment for a drink late on the night of April 16, possibly after midnight. While she was in the apartment, someone knocked on the door. Cox answered the door, said it was Michelle Carrigan, and told Washington to go in the back room. As he started to open the door, some people pushed their way in. Carrigan was knocked onto the couch, and defendant and Lanetta Harrington came in. Washington testified that defendant "pounded Fred Cox on the coffee table and to the ground." Although defendant and Harrington had panty hose over their faces, Washington testified that she recognized them because she knew them. Washington did not remember seeing them carrying anything. As Washington ran to her own apartment, she saw Franks cleaning the parking lot. She later returned to the parking lot and saw defendant and Harrington come out of Cox's building.

Ronnie Franks testified that while he was picking up glass late on the night of April 16, he saw Valerie Washington, two other women, and a man out in the parking lot. Franks stated that the man "had some gloves and he had a little gun, a rifle, some type rifle." Franks identified defendant in court as the man he had seen in the parking lot and testified he knew defendant as the man who lived in apartment 16.

Thomas Tyron returned to Cox's apartment complex at 6:30 on the morning of April 17 to take Cox to work. Tyron took his wife to work and returned to Cox's apartment and knocked on the door again, to no avail. He called Cox's employer and determined that Cox had not gone to work that morning. Tyron went home and called Cox's employer again. After another unsuccessful trip to Cox's apartment, Tyron and a friend, Thomas Jeffrey, went to look for Cox.

Tyron and Jeffrey went back to Cox's apartment at 11 a.m. There was no response to their knocking, and they could not find the landlord to let them in. Tyron and Jeffrey returned to Cox's apartment at noon. There was still no response to their knocking on the door. Both men then looked through a crack in the doorframe and saw that the living room was in disarray. They jimmied the door with a knife and entered the apartment.

Jeffrey testified that the apartment was "all disarrayed" and that it appeared there had been a struggle. The couch was overturned, the coffee table broken, lamps were on the floor, and the refrigerator door was open.

Jeffrey went into the bedroom, examined the dresser, and then saw Cox's feet over by the bed. Jeffrey called Tyron into the bedroom. They observed that Cox had been bound at the arms and ankles and that the body was "cold and sticky." The body was wedged between the bed and the wall, with the face turned down into the carpet.

Dr. Wayne Roffman, a pathologist, performed an autopsy of Cox's body on April 18. He noted that Cox had a long history of heart disease and was of the opinion that Cox died of "anoxia associated with asphyxiation in association with coronary artery disease." Dr. Roffman was of the opinion that the death was due to a combination of factors and that the information he had concerning the condition and position of the body was consistent with "positional asphyxiation." The doctor explained that because Cox was intoxicated and had been bound face down on a carpet in a confined area, he was unable to move to a position where he could breathe.

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