State v. Tompkins
| Decision Date | 28 February 2006 |
| Docket Number | No. A-05-212.,A-05-212. |
| Citation | 710 N.W.2d 654,14 Neb. App. 526 |
| Parties | STATE of Nebraska, appellee, v. Andrew TOMPKINS, appellant. |
| Court | Nebraska Court of Appeals |
Brian J. Lockwood, Deputy Scotts Bluff County Public Defender, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
Andrew Tompkins appeals from his convictions and sentences for distribution of a controlled substance on or near a playground, possession of a firearm while in violation of Neb.Rev.Stat. § 28-416(1) (Cum.Supp. 2004) (), and possession of drug paraphernalia. Tompkins contends that the district court erred in failing to sustain his supplemental motion to suppress and his motion for new trial. While we find that the affidavit in support of the search warrant at issue in this case was inadequate to support a finding of probable cause as to Tompkins, we hold that a good faith exception to the suppression rule applies, and therefore, we affirm.
Det. Mark Overman of the Scottsbluff Police Department, who was assigned to a drug crime investigation unit, received an anonymous tip regarding possible drug trafficking at a duplex located in Scottsbluff, Nebraska. The duplex was divided into an upstairs and a downstairs unit, each of which had a separate entrance. The separate entrance for the upstairs apartment, occupied by Jacob Snow, was located at the front of the house, with steps leading to it from the main sidewalk. The separate entrance for the downstairs apartment, occupied by Tompkins, was located by the driveway and had a set of stairs and a railing. Additionally, a common entrance may have existed on the side of the house.
There are differing accounts of when that first tip was provided to Overman, but Overman received the tip "sometime [in] late June or in July [2004]." The first anonymous tipster (Citizen No. 1) contacted Overman by telephone "five or seven" times from the time of the first tip until "sometime in August" and had initially "called for information on what signs to look for [of criminal activity because she] believed there was some type of drug activity going on [at the duplex]."
Citizen No. 1 provided Overman with the name of the upstairs tenant in the duplex, Snow. Overman instructed Citizen No. 1 to "try to get license plate numbers from . . . vehicles," and Citizen No. 1 subsequently provided several license plate numbers from vehicles that had stopped at the duplex. At the time of Citizen No. 1's deposition in November 2004, she had destroyed her record of the license plate numbers. Overman testified at the suppression hearing, "Some of the license plate numbers [belonged] to people that had drug intelligence with the [drug crime investigation u]nit and some did not."
Citizen No. 1 submitted that visitors entered both the upstairs and downstairs apartments of the duplex, but that she did not count or have knowledge of how many people visited Tompkins' downstairs apartment. Citizen No. 1 believed that one visitor was a family member of one of the duplex residents.
Citizen No. 1 provided an account of an incident which occurred at her home on July 21, 2004, where a woman mistakenly came to her door looking for "Paula." Citizen No. 1 informed her that "Paula did not live there." The woman "disagreed with [Citizen No. 1, saying] that she was at the right house," and asked Citizen No. 1 whether she "would sell her a dime bag." Citizen No. 1 informed the woman that "they," perhaps referring to Paula and others, "hang out at Jake's house." We assume that the reference made by Citizen No. 1 to "Jake's house" is alluding to the residence of Snow. Citizen No. 1 reported to Overman that the woman left her door and headed toward the duplex. However, Citizen No. 1 did not watch the woman walk into the residence and therefore did not report to Overman which door the woman may have entered.
Based on the reports of Citizen No. 1, Overman began an independent investigation of Snow and Tompkins. Overman contacted a representative of the duplex's landlord in order to confirm the ownership of the duplex and the identity of the tenants. Overman did not ascertain whether there was a common door to the two units in addition to the separate entrance to each.
Overman's independent investigation included surveillance of the duplex. On one occasion, Overman conducted what he described as "real surveillance," having "[a]ctually [spent] some time watching the place"; Overman also drove by the duplex for surveillance purposes approximately "a dozen" times. Overman's "real surveillance" consisted of parking near the duplex and observing activity there for "[t]wenty to 30 minutes," during which he observed one vehicle arrive with two occupants. On the occasions when Overman simply drove by the duplex, he "never stopped and watched to see if there was stop and go traffic, but [he] would certainly see a number of cars parked there [and] people in and around the place."
While parked near the duplex conducting surveillance, Overman was approached by Citizen No. 2, who inquired about Overman's presence in the neighborhood. Overman informed Citizen No. 2 that he was conducting surveillance on the duplex. Citizen No. 2 reported to Overman that "there was a lot [of] in and out traffic, that there were a lot of stop and go people running in and out, that there appeared to be a bouncer at the door [of the duplex]." Citizen No. 2 indicated that he thought there was a bouncer because "[someone] was meeting a person on the front lawn [and] had a golf club and seemed to greet people as if he were — keeping them from the front door, keeping them from going in." He specified that the bouncer "was on the steps or in the front yard."
On another occasion, Citizen No. 2 notified Overman of an incident where a person "had driven down the street, passed the [duplex], parked on another street, walked back to the [duplex], was there for 10 to 15 minutes, left and walked back up the other street." Citizen No. 2 reported the license plate number of this person's vehicle to Overman.
Citizen No. 2 also reported that he had seen four vehicles stop at the duplex during a 20-minute time period, "pull[ing] up [to the duplex] facing the wrong way in the street." "[T]he passenger would run inside. . . the house and then come back out 10 or 15 minutes later." When asked whether these visitors entered through the front door, which leads to Snow's upstairs unit, Citizen No. 2 replied that he had seen one person go through that door and was unable to see or recall where the other visitors entered the house.
On August 20, 2004, as part of Overman's independent investigation, he collected the garbage that had been placed on the duplex's curb for regularly scheduled pickup. Overman accompanied the driver of an empty city refuse collection truck to the duplex, where one garbage receptacle had been placed out for collection. The contents of the collected garbage were at least three separate bags containing garbage, two of which were separately attributable to Snow and Tompkins through venue items within, and garbage that was not separated into bags but loose in the garbage receptacle.
On August 26, 2004, Overman requested the issuance of a search warrant through an "Affidavit in Support of Search Warrant." Overman's affidavit contained a paragraph of background information describing his training and experience with the Scottsbluff Police Department, specifically with drug investigation and drug law enforcement, and a paragraph describing the duplex and relating the fact that its two separate units were occupied individually by Snow and Tompkins. Other pertinent portions of the affidavit are detailed below.
On the same date, a search warrant was issued and subsequently executed. The warrant authorized a search of Snow, Tompkins, their vehicles, and the duplex property for "`marijuana, drug related paraphernalia, scales, monies that are the result of marijuana sales, packaging material, police scanners, firearms, records of transactions of marijuana purchases and records of contacts with persons that sell or purchase marijuana.'"
On September 2, 2004, the State filed an information charging Tompkins with one count of distribution of a controlled substance on or near a playground, one count of possession of a firearm while in violation of § 48-416(1), and one count of possession of drug paraphernalia. The charges against Tompkins were based on evidence and statements obtained as a result of the search of his residence and a finding that his residence was located within 1,000 feet of a school.
On October 1, 2004, Tompkins filed a motion to suppress all evidence seized and statements obtained as a result of the August 26 search. In a supplemental motion to suppress he filed on October 21, Tompkins alleged that in seeking the search warrant, "[Overman] made a deliberate falsehood and/or acted with reckless disregard for the truth" and that "omissions in the affidavit used to obtain the search warrant [were] misleading because the facts contained in the omitted material tend[ed] to weaken or damage the inferences which [could] logically be drawn." Tompkins made 19 arguments in support of suppression, including arguments that "[Overman] did insufficient investigation and did not set forth in his affidavit what specific door the `stop and go' traffic was going into" and that "[t]he information was skewed in an attempt to establish probable cause for both the upstairs and downstairs apartments, when in fact if there was probable cause at all, it was for the upstairs apartment."
On December 23, 2004, the court held a hearing on Tompkins' supplemental motion to suppress. Tompkins asserted...
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