State v. Utterback
| Decision Date | 02 July 1992 |
| Docket Number | No. S-90-905,S-90-905 |
| Citation | 240 Neb. 981,485 N.W.2d 760 |
| Parties | STATE of Nebraska, Appellee, v. Randall UTTERBACK, 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 a trial court's findings of fact unless those findings are clearly wrong.
2. Motions to Suppress: Appeal and Error. In deciding whether the trial court's findings on a motion to suppress are clearly erroneous, the 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. Search Warrants: Affidavits: Probable Cause. A search warrant, to be valid, must be supported by an affidavit establishing probable cause, or reasonable suspicion founded on articulable facts.
4. Search Warrants: Evidence: Motions to Suppress. A motion to suppress is the appropriate remedy to exclude evidence which has been obtained through an invalid search warrant.
5. Search Warrants: Affidavits. When a search warrant is obtained on the strength of an informant's information, the affidavit in support of the issuance of the search warrant must (1) set forth facts demonstrating the basis of the informant's knowledge of criminal activity and (2) establish the informant's credibility, or the informant's credibility must be established in the affidavit through a police officer's independent investigation. The affidavit must affirmatively set forth the circumstances from which the status of the informant can reasonably be inferred.
6. Search Warrants: Affidavits: Probable Cause. To determine the sufficiency of an affidavit used to obtain a search warrant, this jurisdiction has adopted the "totality of the circumstances" test. The issuing magistrate must make a practical, commonsense decision whether, given the totality of the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of the persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
7. Search Warrants: Probable Cause: Appeal and Error. The duty of an appellate court in determining whether probable cause existed at the time a search warrant was issued is to ensure that the magistrate had a substantial basis for concluding that probable cause did in fact exist.
8. Search Warrants: Affidavits: Evidence: Appeal and Error. An appellate court is restricted to consideration of the information and circumstances contained within the four corners of the affidavit underlying a search warrant. Evidence which emerges after the warrant is issued has no bearing on whether a warrant was validly issued.
9. Search Warrants: Affidavits: Probable Cause. To credit a confidential source's information in making a probable cause determination, the affidavit should support an inference that the source was trustworthy and that the source's accusation of criminal activity was made on the basis of information obtained in a reliable way.
10. Criminal Law: Words and Phrases. A citizen informant is defined as a citizen who purports to be the victim of or to have been the witness of a crime who is motivated by good citizenship and acts openly in aid of law enforcement.
11. Criminal Law: Words and Phrases. A citizen informant is distinguished from a mere informer who gives a tip to law enforcement officers that a person is engaged in the course of criminal conduct.
12. Criminal Law: Words and Phrases. Experienced "stool pigeons" or persons criminally involved or disposed are not regarded as citizen informants because they are generally motivated by something other than good citizenship.
13. Search Warrants: Affidavits. The status of a citizen informant cannot attach unless the affidavit used to obtain a search warrant affirmatively sets forth the circumstances from which the existence of the status can reasonably be inferred.
14. Criminal Law: Probable Cause. An admission by an informant that he or she participated in the crime about which the informant is informing carries its own indicia of reliability, since people do not lightly admit a crime and place critical evidence in the hands of police.
15. Controlled Substances. The act of purchasing marijuana is not a statutorily proscribed act in Nebraska.
16. Criminal Law: Words and Phrases. An accessory to a felony is one who, with the intent to interfere with, hinder, delay, or prevent the discovery, apprehension, prosecution, conviction, or punishment of another for an offense, (1) harbors or conceals the other; (2) provides or aids in providing a weapon, transportation, disguise, or other means of effecting escape or avoiding discovery or apprehension; (3) conceals or destroys evidence of the crime or tampers with a witness, informant, document, or other source of information, regardless of its admissibility in evidence; (4) warns the other of impending discovery or apprehension other than in connection with an effort to bring another into compliance with the law; (5) volunteers false information to a peace officer; or (6) by force, intimidation, or deception obstructs anyone in the performance of any act which might aid in the discovery, detection, apprehension, prosecution, conviction, or punishment of such person.
17. Conspiracy: Words and Phrases. A conspirator is one who, with the intent to promote or facilitate the commission of a felony, agrees with one or more persons that they will engage in or solicit the conduct of a felony.
18. Aiding and Abetting: Words and Phrases. An aider and abettor is a person who aids, abets, procures, or causes another to commit any offense and may be prosecuted and punished as if such person were the principal offender.
19. Aiding and Abetting. When the guilt of one party is excluded by the terms of the statute, it follows that such a participant cannot be held punishable as being an aider or abettor of the offense.
20. Search Warrants: Probable Cause: Evidence: Motions to Suppress: Police Officers and Sheriffs. In the absence of probable cause to support a search warrant, the evidence seized need not be suppressed where the police acted in objectively reasonable good faith reliance upon the warrant.
21. Search Warrants: Affidavits. For an affidavit based on a tip from an informant to be sufficient to support the issuance of a search warrant, the affidavit must set out some of the underlying circumstances from which the affiant concluded that the informant was credible or his information was reliable.
22. Search Warrants: Affidavits: Probable Cause: Judges: Appeal and Error. The deference accorded to a magistrate's finding of probable cause neither precludes inquiry into the knowing or reckless falsity of the affidavit on which that determination was based nor precludes inquiry as to whether the issuing magistrate or judge was misled by omissions from the affidavit.
23. Search Warrants: Affidavits: Judges: Motions to Suppress. Suppression is an appropriate remedy if the magistrate or judge issuing the search warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth, or if the magistrate or judge was misled by omissions in the affidavit.
24. Search Warrants: Affidavits: Probable Cause: Judges: Appeal and Error. The role of the reviewing court is to determine whether the affidavit used to obtain a search warrant, when corrected and supplemented by the omitted material, would provide a magistrate or judge with a substantial basis for concluding that probable cause existed for the issuance of the warrant.
25. Search Warrants: Affidavits. Omissions in an affidavit used to obtain a search warrant are considered to be misleading when the facts contained in the omitted material tend to weaken or damage the inferences which can logically be drawn from the facts as stated in the affidavit.
26. Search Warrants: Affidavits: Police Officers and Sheriffs: Prisoners: Plea Bargains. The fact that a police officer affiant seeking a search warrant fails to disclose to a magistrate or county judge that an informant is incarcerated at the time he makes statements incriminating another Vard R. Johnson of Broom, Johnson, Fahey & Clarkson, Omaha, for appellant.
person does not alone automatically vitiate the search warrant, nor does the failure to disclose that the informant was cooperating under a plea agreement.
Don Stenberg, Atty. Gen., and Barry Waid, Lincoln, for appellee.
Arguing that the evidence used to convict him was obtained from his home pursuant to an invalid search warrant, Randall Utterback appeals his conviction and 2- to 4-year prison sentence for possession with intent to manufacture, distribute, deliver, or dispense marijuana.
Utterback assigns as error the failure of the trial court (1) to suppress physical and visual evidence obtained at the defendant's home pursuant to an invalid search warrant, and (2) to place the defendant on probation.
We reverse Utterback's conviction and direct the district court for Dodge County to dismiss the charges against the defendant.
In determining the correctness of a trial court's ruling on a motion to suppress, an appellate court will uphold a trial court's findings of fact unless those findings are clearly wrong. State v. Groves, 239 Neb. 660, 477 N.W.2d 789 (1991). In deciding whether the trial court's findings on a motion to suppress are clearly erroneous, the 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. Id.
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