State v. Paul
| Decision Date | 15 May 1987 |
| Docket Number | No. 86-744,86-744 |
| Citation | 225 Neb. 432,405 N.W.2d 608 |
| Parties | STATE of Nebraska, Appellee, v. John L. PAUL, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Search Warrants: Affidavits. In order to authorize the issuance of a search warrant for service during the nighttime under Neb.Rev.Stat. § 29-814.04 (Reissue 1985), the magistrate or judge must only be satisfied from a commonsense reading of the affidavit in support of such issuance that it reasonably supports the inference that the interests of justice are best served by the authorization of such nighttime service.
2. Search Warrants: Affidavits. An affidavit in support of the issuance of a search warrant which alleges facts which would lead a reasonable person to believe that a delay in service of the warrant would permit the possible destruction of contraband may be sufficient to authorize immediate nighttime service.
Leonard P. Vyhnalek, North Platte, for appellant.
Robert M. Spire, Atty. Gen., and Laura L. Freppel, Lincoln, for appellee.
The defendant has appealed his convictions in the district court for Dawson County, Nebraska, of possession of a controlled substance with intent to distribute, possession of a controlled substance, and possession of a firearm by a felon.
The defendant has assigned as error the district court's (1) overruling the defendant's motion to suppress evidence, (2) finding that the affidavit in support of the issuance of the search warrant was adequate, (3) finding that the search warrant was valid, and (4) overruling of defendant's motion for a new trial. The only argument made in the defendant's brief, however, is that the court erred in overruling the defendant's motion to suppress because the affidavit in support of the issuance of the search warrant did not present sufficient facts to justify a nighttime search. Accordingly, we will address only that issue. Because we find that the facts in the affidavit in support of the issuance of the search warrant were sufficient to justify a nighttime search, we affirm the judgment of the district court.
The facts relevant to the issuance of the search warrant are as follows. Just after midnight on December 3, 1985, Investigator Mashek presented an affidavit to Judge Kaufman in order to obtain a search warrant. The affidavit provided in part as follows:
That [your affiant] has just and reasonable grounds to believe, and does believe, upon information, that there is concealed or kept as hereinafter described, the following property, to-wit: Marijuana and or Drug Paraphenalia [sic], that said property is concealed or kept in, on, or about the following described place or person, to-wit: A two story bluish gray with white trim wood frame house at 312 East Sixth street in Lexington, Dawson County, Nebraska, that said property is under the control or custody of John Paul, that the following are the grounds for issuance of a search warrant for said property and the reasons for his belief, to-wit: your affiant was serving a warrant for Florentino Robles and was advised by Florentino Robles father that Florentino Robles would be at John Paul's residence. Approximately ten minutes later on December 2, 1985 at 2215 your affiant went to 312 East 6th Street in Lexington, Dawson County, Nebraska which was identified by Trooper Parish as the residence of John Paul. Your affiant observed that residence to be a two story bluish gray wood frame house with white trim.
Your affiant went to the north door and knocked. A white male answered the front door and your affiant asked subject if a Florentino Robles was at this residence. The male subject advised that he was not at the house. While talking with the subject, your affiant detected a strong odor of burnt marijuana coming from inside the residence.
WHEREFORE, he prays that a search warrant may issue according to law.
On the actual search warrant itself, after the words "This warrant shall be served:" the words "In the Daytime" were scratched out, and the words "At Any Time" were typed in. Nothing in the record indicates who did this scratching out and inserting of the time the warrant could be served. The warrant was served at about 2:20 a.m. on December 3, 1985. The evidence seized during this search provided the basis for the defendant's convictions.
The defendant brought a motion to suppress the evidence seized during this search, a hearing was held, and the motion was overruled. The case proceeded to trial, and the court found the defendant guilty on the three charges previously listed.
The defendant's argument on appeal raises a question of first impression in Nebraska, namely, What is required by Neb.Rev.Stat. § 29-814.04 (Reissue 1985) before a search warrant can direct that the...
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State v. Rowe
...justify issuance of a "no-knock" warrant. However, reading the affidavit "in a common sense manner and as a whole," State v. Paul, 225 Neb. 432, 405 N.W.2d 608, 610 (1987) (quoting People v. Mardian, 47 Cal.App.3d 16, 35, 121 Cal.Rptr. 269, 281 (1975)), we conclude that the magistrate had s......
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State v. Ramirez
...Woods, supra note 30. 50. See Bates, supra note 30. 51. State v. Fitch, 255 Neb. 108, 582 N.W.2d 342 (1998). See, also, State v. Paul, 225 Neb. 432, 405 N.W.2d 608 (1987). 52. Peters, supra note 17; Fitch, supra note 51; Paul, supra note 51. 53. State v. Kelley, 265 Neb. 563, 658 N.W.2d 279......
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80 Hawai'i 1, State v. Richardson
...is a danger that the evidence sought will be disposed of." (Footnote, citation, and quotation marks omitted.)); State v. Paul, 225 Neb. 432, 435, 405 N.W.2d 608, 610 (1987) ("[I]n the affidavit there must be sufficient facts showing that the public interest requires nighttime In our view, t......
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