State v. Weible, 81-637

• Decision Date: 02 April 1982
• Docket Number: No. 81-637,81-637
• Citation: 317 N.W.2d 920,211 Neb. 174
• Parties: STATE of Nebraska, Appellee, v. Charles WEIBLE, Appellant.
• Court: Nebraska Supreme Court

Page 920

317 N.W.2d 920

211 Neb. 174

STATE of Nebraska, Appellee, v. Charles WEIBLE, Appellant.

No. 81-637.

Supreme Court of Nebraska.

April 2, 1982.

Syllabus by the Court

1. Indictments and Informations. The court, before trial, may in its discretion permit amendment of a criminal information, provided that the amendment does not change the nature or identity of the offense charged or charge a crime other than the one on which the accused has his preliminary examination.

2. Search and Seizure. Searches and seizures inside a home without a warrant are presumptively unreasonable; a search or seizure carried out on a suspect's premises without a warrant is per se unreasonable unless the police can show that it falls within one of the carefully designated exceptions based on the presence of "exigent circumstances."

3. Search and Seizure: Arrests. An arresting officer may search the arrestee's person to discover and remove weapons and to seize evidence to prevent its concealment or destruction, and may also search the area within the arrestee's immediate control.

4. Search and Seizure: Arrests. Absent exigent circumstances, government agents have no right to search a dwelling when the arrest is effectuated outside it.

Vincent Kirby, Norfolk, for appellant.

Paul L. Douglas, Atty. Gen., and Shanler D. Cronk, Lincoln, for appellee.

Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, WHITE, HASTINGS, and CAPORALE, JJ., and BRODKEY, J., Retired.

CAPORALE, Justice.

The defendant-appellant, Charles Weible, was charged in an information filed in the District Court for Wayne County on February 17, 1981, with knowingly and intentionally possessing cocaine with the intent to deliver (count I), possessing marijuana with the intent to deliver (count II), and with possession of cocaine (count III). A trial in this matter was held commencing on June 22, 1981, and the jury found the appellant guilty as charged. Weible was sentenced to terms of 5 to 8 years for possession of cocaine with the intent to deliver; 2 to 5 years for possession of marijuana with the intent to deliver, said sentence to be served consecutively with the sentence imposed in count I; and 1 to 3 years for the possession of cocaine, said sentence to be served concurrent with the sentences imposed in count I and count II.

The appellant's principal assignments of error can be summarized as follows: (1) Whether the complaint filed in the county court was properly amended; (2) Whether the entry of the police into appellant's residence after his arrest was in violation of defendant's constitutional rights; (3) Whether a complete chain of custody of the exhibits seized from the Busskohl residence was established; and (4) Whether the sentences imposed were excessive.

The record reveals that on December 18, 1980, at 10:30 a.m., Officer Robert Wilbur, a special agent with the Bureau of Alcohol, Tobacco and Firearms, learned from an informant that one Dale Busskohl was willing to sell a quantity of cocaine and marijuana to Wilbur and Officer Randy Brunckhorst, an undercover investigator with the Nebraska State Patrol. The officers made arrangements with the informant to meet with Busskohl at 9:30 p.m. that evening at a cafe located in Norfolk, Nebraska. Upon their arrival at the cafe, Wilbur and Brunckhorst were told by Busskohl that he did not have the drugs with him and stated that the officers should contact him at 11:30 p.m. at his residence in Winside, Nebraska. It appears that prior to their departure to the Busskohl residence, the officers arranged a surveillance of the purchase of the controlled substances.

At approximately 11:30 p.m., the officers arrived in Winside and went to the Busskohl residence which was occupied by Busskohl, his girl friend, and several small children. At midnight, Busskohl left the residence and returned 20 minutes later with three bags of a white powder which was subsequently identified as cocaine. It appears that the officers had arranged to purchase 4 ounces of cocaine and 50 pounds of marijuana from Busskohl, and they informed him that no payments would be made for the drugs until after the marijuana had arrived. Thereafter, Brunckhorst agreed to drive Busskohl to another residence in Winside so that Busskohl could check to see if the marijuana had arrived. This residence was subsequently identified to be that owned by the appellant. Busskohl entered the house alone for a brief period before returning to Brunckhorst who had remained in the car. The men returned to the Busskohl residence at 12:45 a.m. the early morning of December 19, 1980. At 1 a.m. Busskohl requested another ride to the appellant's house from Brunckhorst, and as they drove by the house they observed the arrival of a pickup truck and two individuals walking toward the Weible house. According to Brunckhorst, Busskohl told him that these men had the marijuana and that the officer was not to stop at the house. The two men returned to the Busskohl residence; however, at 1:15 a.m. Busskohl left the house alone, allegedly to return to appellant's house to check on the drug deal.

Busskohl subsequently returned to his house at 1:40 a.m. in the company of the appellant and one Vernon Sarha. Busskohl and Sarha were carrying large boxes which contained garbage bags filled with blocks of marijuana weighing approximately 50 pounds, and the appellant carried a scale. The marijuana was taken into the kitchen and Busskohl retrieved the three bags of cocaine which he had placed in a bedroom. The officers had $16,000 in cash, which they placed on the kitchen table, and Brunckhorst performed a field test on the cocaine while the marijuana was being weighed. Brunckhorst asked Busskohl if the cocaine was still for sale at $2,400 an ounce, at which time Busskohl turned to the appellant, who nodded his head, whereupon Busskohl answered affirmatively. The total price for the substances in the house was computed to be $23,450; however, the officers informed Busskohl that they did not have enough money to purchase all of the drugs. Upon being informed of this Busskohl, Sarha, and the appellant went into the nearby living room to discuss how the purchase of the drugs was to be made. While the three men were in the living room, Officer Brunckhorst left the kitchen and went outside to his car and signaled to the surveillance team to go into the house. As the police entered into the Busskohl residence, the appellant attempted to escape by running from the house; however, he was apprehended by several officers. Before he could be secured, appellant reached into a pocket and threw a package containing a white powder, subsequently identified as cocaine, under a nearby police van. An additional bag of cocaine and a snorting device was found on the appellant during a search of his person after his arrest.

After the arrest of the appellant at 2 a.m. on the morning of December 19, 1980, Officer Brunckhorst directed several law enforcement agents to secure the Weible house while he proceeded to Wayne, Nebraska, to obtain a search warrant for the premises. The record reveals that the officers sent to the Weible house entered the residence and conducted a protective sweep, examining the rooms to determine whether anyone was in the house. The police found three individuals at the residence; however, they appeared to have had no connection with the instant drug dealing, and they were allowed to leave. The officers remained in the residence until 4:45 a.m., when Officers Brunckhorst and Wilbur returned with the search warrant. The officers contend that they conducted the search of the Weible house after the delivery of the warrant; however, there is testimony on the part of the Wayne County attorney and associate county judge that the search warrant was not delivered to the law enforcement officers until 5 a.m. on December 19, 1980.

In count I and count III of the complaint filed against the appellant in the county court on January 12, 1981, reference is made to cocaine being a controlled substance derived from "cocoa." Upon observing that the word coca had been misspelled in both counts, counsel for the appellant moved that the counts be dismissed. The State, however, made a motion for leave to amend instanter by interlineation to correct the spelling error, which motion was sustained by the court. Thereafter, appellant's counsel moved that the complaint be dismissed for want of reverification, which motion was overruled and which appellant contends was error.

It is well established in this jurisdiction that the court, before trial, may in its discretion permit amendment of a criminal information, provided that the amendment does not change the nature or identity of the offense charged or charge a crime other than the one on which the accused has his preliminary examination. State v. Costello, 199 Neb. 43, 256 N.W.2d 97 (1977); State v. Gascoigen, 191 Neb. 15, 213 N.W.2d 452 (1973). In the present case, the amendment of the complaint was made for the sole purpose of correcting the misspelling of the word coca. The remainder of the complaint clearly charges the appellant with knowingly and intentionally possessing or possessing with the intent to deliver the controlled substance of cocaine. There has been no showing on the part of the appellant that he was in any way prejudiced by the amendment or that it changed the nature of the offense with which he was charged. Rather, the record clearly shows that counsel for appellant admitted he had not been misled by the misspelling appearing in the complaint. We conclude that the correction of the complaint was one of form which did not in any way alter the substance of the offenses with which appellant was charged. See Annot., 17 A.L.R.3d 1181 (1968). The appellant's contention is without merit.

The appellant also contends that the search of his house by the law enforcement agents was unlawful and that the admission of evidence discovered...