State v. Robish

• Decision Date: 29 April 1983
• Docket Number: No. 82-292,82-292
• Parties: STATE of Nebraska, Appellee, v. John S. ROBISH, Appellant.
• Court: Nebraska Supreme Court

Page 922

332 N.W.2d 922

214 Neb. 190

STATE of Nebraska, Appellee, v. John S. ROBISH, Appellant.

No. 82-292.

Supreme Court of Nebraska.

April 29, 1983.

Syllabus by the Court

1. Search Warrants. Affidavits for search warrants must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. Technical requirements of elaborate specificity once exacted under common-law pleadings have no proper place in this area.

2. Search Warrants: Probable Cause. In evaluating the showing of probable cause necessary to support a search warrant, only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.

3. Search Warrants: Probable Cause. Probable cause exists where the facts and circumstances within the officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.

Ralph A. Smith, Omaha, for appellant.

Paul L. Douglas, Atty. Gen., and Dale A. Comer, Asst. Atty. Gen., Lincoln, for appellee.

KRIVOSHA, C.J., BOSLAUGH, McCOWN, WHITE, HASTINGS, and CAPORALE, JJ., and COLWELL, District Judge, Retired.

KRIVOSHA, Chief Justice.

The appellant, John S. Robish, having waived a jury trial, was convicted following a bench trial of one count of possession of cocaine, in violation of Neb.Rev.Stat. § 28-416(3) (Reissue 1979), and one count of possession of marijuana with intent to deliver, in violation of Neb.Rev.Stat. § 28-416(1)(a) (Reissue 1979). Following the preparation of a presentence report, Robish was sentenced to imprisonment on count I for a period of 3 years, and on count II for not less than 3 nor more than 5 years, the sentences to be served concurrently. He was also fined $10,000 on count II.

He assigns two errors: one, that the trial court erred in failing to suppress evidence which was obtained as a result of an allegedly illegal search warrant, and, two, that the sentence is excessive. For reasons more particularly set out herein, we believe that both assignments are without merit and the conviction and sentence should be affirmed.

Robish's principal complaint with regard to the search warrant is based upon a rather involved argument to the effect that the affidavit upon which the search warrant was issued was obtained on the basis of false and misleading information. Appellant alleges in his brief at 9: "The 'affidavit and application' which was used to convince the judge to issue the search warrant in question, was made up almost entirely of material misstatements. Simply put, the vast majority of those things which were set out in the affidavit as being facts were not true." While there does exist a dispute over the veracity of the affidavit used to obtain the search warrant, there is little or no dispute over the material facts in the case.

On August 5, 1981, Officer Joseph Nepodal of the vice and narcotics unit of the Omaha Police Department received a tip from an unidentified informant advising that Robish would be receiving a large shipment of marijuana. Officer Nepodal met with the informant for approximately 15 minutes on August 5 and for 25 minutes on August 7. On August 13, 1981, the informant contacted Officer Nepodal and told him that the shipment had arrived. Police then set up surveillance around Robish's house and observed people leaving the residence. One was carrying a large cardboard box and another a bag of some sort. The two drove off in separate cars, both of which were stopped by the police. The car with the box was driven by Robish's brother, Ron Robish, and the car with the bag was driven by another, who it appears had no involvement in the case. Ron Robish's vehicle was searched pursuant to a search warrant which had earlier been obtained, and the marijuana was found in a box in his car. The parties dispute who said what to whom about the existence of marijuana at the Robish house, but apparently Ron Robish advised Sgt. Jack O'Donnell that there may be 30 pounds of marijuana still in the Robish home.

Reports from the various officers came to Lt. Robert Olson of the Omaha Police Department, who was supervising the investigation. Olson and other police personnel then prepared an application and affidavit seeking to obtain a search warrant for the Robish residence and two vehicles owned by Robish. The affidavit itself was signed by Officer Richard Griffith of the Omaha Police Department, although Griffith appeared to have no personal knowledge of the contents of the affidavit. In fact, Griffith's affidavit did not represent that he had personal knowledge, but only that he had just and reasonable grounds to believe that there was concealed or kept on the Robish property marijuana and cocaine. The basis for his belief was the information given to Lieutenant Olson by Officer Nepodal and the various other officers who observed the house and stopped the two vehicles.

Meanwhile, Robish was arrested when he was seen leaving his home. At the police station he told Sergeant O'Donnell where to find marijuana in the house and where to find cocaine in one of the cars. Armed with the search warrant, the police found marijuana in the basement of the house and cocaine in the car.

In attempting to determine whether the affidavit submitted by Officer Griffith was sufficient to justify the issuance of the warrant or was invalid, as claimed by Robish, we are bound by certain basic principles heretofore articulated both by this court and by the federal courts. In State v. Payne, 201 Neb. 665, 668, 271 N.W.2d 350, 352 (1978), we said: "It has been well established that affidavits for search warrants ... must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. Recital of some of the...