State v. Stott
| Decision Date | 06 August 1993 |
| Docket Number | No. S-92-915,S-92-915 |
| Citation | 243 Neb. 967,503 N.W.2d 822 |
| Parties | STATE of Nebraska, Appellee, v. Shannon STOTT, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Motions to Suppress: Appeal and Error. In determining the correctness of a trial court's ruling on a motion to suppress, an appellate court will uphold the trial court's factual findings unless those findings are clearly erroneous.
2. Motions to Suppress: Appeal and Error. In deciding whether a trial court's findings on a motion to suppress are clearly erroneous, a reviewing court recognizes the trial court as the trier of fact and takes into consideration that the trial court has observed the witnesses testifying regarding the motion.
3. Standing: Words and Phrases. "Standing" means that a person has a sufficient legally protectable interest which may be affected in a justiciable controversy, entitling that person to judicial resolution of the controversy.
4. Constitutional Law: Search and Seizure: Standing. The capacity to claim the protection of the Fourth Amendment depends upon whether the person who claims the protection has a legitimate expectation of privacy in the invaded place.
5. Search Warrants: Search and Seizure: Standing. The principle of severability applies with respect to standing and permits a court to address specific locations which a defendant has standing to challenge and disregards those locations which a defendant does not, regardless of whether the locations appeared on one warrant or numerous warrants.
6. Search and Seizure. One has a reasonable or legitimate expectation of privacy in one's own body.
7. Search and Seizure: Standing. One lacks standing to object to the search of another.
8. Search and Seizure. The right to be free from unreasonable searches and seizures is a personal right which cannot be asserted vicariously.
9. Constitutional Law: Search and Seizure: Motor Vehicles: Standing. An occupant of an automobile has a legitimate expectation to be free of unreasonable governmental intrusion so as to give the occupant standing to challenge the stop as violative of his or her Fourth Amendment rights.
10. Constitutional Law: Search and Seizure: Property. While property ownership is a factor to be considered in determining whether an individual's Fourth Amendment rights have been violated, property rights are neither the beginning nor the end of a court's inquiry.
11. Search and Seizure: Property: Proof. A defendant may demonstrate the infringement of his or her own legitimate expectation of privacy by showing that he or she owned the premises or that he or she occupied them and had dominion and control over them by leave of the owner.
12. Search Warrants: 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.
13. Search Warrants: Probable Cause. Search warrants are not invalid merely because they are anticipatory in nature; 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.
14. Search Warrants. In order to be valid, a warrant must particularly describe the places to be searched and persons to be seized.
15. Search Warrants. Particularity in a search warrant is required in order that the executing officer can reasonably ascertain and identify the persons or places authorized to be searched and the things authorized to be seized.
16. Search Warrants. What amounts to sufficient particularity in a search warrant depends upon the facts and circumstances of each case.
17. Constitutional Law: Criminal Law: Trial: Witnesses. The 6th Amendment to the U.S. Constitution, applicable to the states via the 14th Amendment, mandates that in all criminal prosecutions, the accused shall enjoy the right to have compulsory process for obtaining witnesses in his favor.
18. Constitutional Law: Criminal Law: Witnesses: Trial. Compulsory process is guaranteed by Neb. Const. art. I, § 11, which requires that in all criminal prosecutions, the accused shall have the right to have process to compel the attendance of witnesses in his behalf.
19. Constitutional Law: Criminal Law: Witnesses: Trial. The right to compel witnesses is not absolute, but is limited to those witnesses who are material and favorable to the defense.
20. Witnesses: Juries. The determination of the credibility of a witness is a matter within the jury's province.
21. Constitutional Law: Statutes: Appeal and Error. The alleged unconstitutionality of a statute presents a question of law which must be determined by an appellate court independently from the conclusion reached by a trial court.
22. Constitutional Law: Statutes: Presumptions. A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality.
23. Constitutional Law: Statutes: Proof. The burden to clearly demonstrate that a statute is unconstitutional rests upon the party making the claim of unconstitutionality.
24. Trial: Witnesses: Prisoners: Depositions. Under appropriate circumstances, depositions may be substituted for the live testimony of imprisoned witnesses.
25. Criminal Law: Trial: Testimony. The right to present relevant testimony may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.
26. Constitutional Law: Criminal Law: Testimony. The compulsory process clause guarantees a criminal defendant the right to offer material and favorable testimony.
Benjamin P. King of Reed & King Law Office, for appellant.
Don Stenberg, Atty. Gen. and Kimberly A. Klein, for appellee.
Pursuant to verdict, the defendant-appellant, Shannon Stott, was adjudged guilty of attempting to distribute a controlled substance, marijuana, in violation of Neb.Rev.Stat. § 28-201 (Reissue 1989), Neb.Rev.Stat. § 28-405(c)(10) [Schedule I] (Cum.Supp.1990), and Neb.Rev.Stat. § 28-416 (Cum.Supp.1992); distributing the substance, in violation of § 28-416; and conspiring to deliver the substance, in violation of § 28-416 and Neb.Rev.Stat. § 28-202 (Reissue 1989). Stott asserts, in summary, that the district court erred in (1) failing to suppress certain evidence which he claims was obtained pursuant to an illegal warrant and (2) failing to find Neb.Rev.Stat. § 25-1233 (Reissue 1989) violative of the Sixth Amendment to the federal Constitution in that it limits a criminal defendant's access to the testimony of certain prisoner witnesses. We affirm.
On March 10, 1992, Nebraska State Patrol Investigator Scott L. Kendall received a telephone call from a confidential informant who told Kendall that he, the informant, had traveled to Denver with Stott, where they met one Russ, later determined to be Russell Robbins, and purchased one-fourth pound of marijuana before returning to Scottsbluff, Nebraska. The informant also advised Kendall that he had arranged to buy one-half ounce of marijuana from Stott at approximately 2:30 p.m. that same day.
After being fitted with a listening device and furnished money to make the purchase, the informant proceeded to Stott's residence. Upon Stott's later arrival, the informant went with Stott to the latter's bedroom, where the informant told Stott that he wanted one-half ounce of marijuana "for a gal's brothers." The informant then purchased one-half ounce of marijuana divided into two bags represented to each contain one-fourth ounce of marijuana.
During this March 10 transaction, the informant inquired about purchasing one- fourth pound of marijuana. Stott told the informant that Robbins would be arriving in Scottsbluff from Denver on either March 12 or March 14.
After learning that Robbins would in fact be arriving in Scottsbluff on the morning of March 12, the informant contacted Kendall. The informant was again fitted with a listening device and was given $500 for the purchase of the marijuana.
Robbins arrived at Stott's residence, where the informant was also present, on the evening of March 12. Stott, driving the informant's automobile and accompanied by the informant, then left for the residence of Stott's sister; Robbins followed in his pickup truck. At approximately 9 p.m., the two vehicles were stopped on a Scottsbluff street by a State Patrol officer, at which time Stott remarked to the informant that " 'we've been narked off.' " Kendall saw Stott "reaching, bending down a little bit like he was hiding something" in the automobile. A search of the area in which Stott had apparently concealed an object produced a baggie of marijuana. A search of Stott incident to his arrest revealed $800 in cash, including five $100 bills matching those Kendall had given the informant.
Robbins' pickup was subsequently secured and searched, revealing approximately 7 pounds of marijuana, plastic bags, and a digital scale.
A search of Stott's residence uncovered a piece of paper with Robbins' address and telephone number secreted in a planter.
With those facts in mind, we turn our attention to Stott's summarized assignments of error.
In his first summarized assignment of error, Stott claims the district court erred in refusing to suppress evidence seized during the March 12 searches. Stott argues that the search warrant was fatally flawed in two respects. First, he claims that at the time the search warrant was issued, there was not probable cause to justify its issuance. Second, he alleges that the warrant was invalid for overbreadth.
We begin by once again recalling that in determining the correctness of a trial court's ruling on a motion to suppress, an appellate court will uphold the trial court's factual findings unless those findings are...
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