State v. Whitmore

• Decision Date: 13 December 1985
• Docket Number: No. 84-950,84-950
• Parties: STATE of Nebraska, Appellee, v. Randall S. WHITMORE, Appellant.
• Court: Nebraska Supreme Court

Page 150

378 N.W.2d 150

221 Neb. 450

STATE of Nebraska, Appellee, v. Randall S. WHITMORE, Appellant.

No. 84-950.

Supreme Court of Nebraska.

Dec. 13, 1985.

Syllabus by the Court

1. Wiretaps. An application for a wiretap shall include sufficient facts which will support a believable conclusion that reasonable or ordinary investigatory techniques had been tried and had failed, or appeared unlikely to succeed, in obtaining evidence regarding a defendant's illegal activity.

2. Confessions: Miranda Rights. The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

3. Confessions: Miranda Rights. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect amounts to interrogation under Miranda.

4. Confessions: Miranda Rights. Where there is no expectation of an admission and the police conduct is not an attempt to obtain an admission, there is no interrogation.

5. Motions to Suppress: Appeal and Error. Factual findings by the trial court on a motion to suppress will not be overturned on appeal unless clearly wrong, looking at a totality of the circumstances.

6. Confessions: Miranda Rights. A neutral question which falls within the class of brief, spontaneous reactions to the situation then confronting a police officer, and was not designed to obtain evidence to establish guilt, is not interrogation under Miranda.

7. Trial: Testimony: Appeal and Error. Under the harmless error rule, for an error to be prejudicial, it must be demonstrated that the State's case was significantly less persuasive had the disputed testimony been excluded.

8. Sentences: Appeal and Error. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court.

9. Sentences: Appeal and Error. We are not required to disturb an otherwise entirely appropriate sentence solely because someone else was treated more leniently.

Emil M. Fabian and Barbara Thielen of Taylor, Fabian, Thielen & Thielen, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and Lynne R. Fritz, Lincoln, for appellee.

KRIVOSHA, C.J., and WHITE, HASTINGS, CAPORALE and SHANAHAN, JJ.

HASTINGS, Justice.

The defendant, Randall S. Whitmore, was convicted by a jury of five felony counts involving violations of the Nebraska Uniform Controlled Substances Act (Neb.Rev.Stat. §§ 28-401 et seq. (Reissue 1979 & Cum.Supp.1984)). In his appeal to this court he assigns as error: (1) The admission of evidence obtained by claimed illegal wiretaps; (2) The failure to suppress certain statements made by the defendant; (3) Insufficiency of the evidence to support verdicts of guilty; and (4) Excessiveness of the sentences imposed. We affirm.

The violations were alleged to have occurred on or about the November 23, 1981. The wiretap surveillance covered the period of October 21 to December 1, 1981. Whitmore claims, inter alia, that the wiretap order was facially insufficient; that the police officers failed to minimize the intrusiveness of the search; and that the interim reports filed with the district court intentionally or recklessly misrepresented information.

These three issues were disposed of adversely to the defendant in a one-judge opinion, State v. Whitmore, White, and Henderson, 215 Neb. 560, 340 N.W.2d 134 (1983). That opinion was adopted in toto by the court in State v. White, 220 Neb. 527, 371 N.W.2d 262 (1985), and disposes of those issues here.

In this appeal the defendant makes one new argument with regard to the wiretap, i.e., lack of necessity, citing State v. Lane, 211 Neb. 46, 317 N.W.2d 750 (1982). Whitmore asserts that the government must show by facts in its application that there is a retrospective and prospective failure of alternative investigative techniques before a wiretap may issue. See State v. Golter, 216 Neb. 36, 342 N.W.2d 650 (1983).

In Golter this court expounded at length on the necessity requirement embodied in Neb.Rev.Stat. § 86-705(1)(c) and (3)(c) (Reissue 1981). In stating that the purpose of the necessity requirement is not to foreclose a wiretap until every conceivable investigative technique has been exhausted, we went on to say: "Rather, the full and complete statement informs a court of the nature and progress of the investigation, explains the difficulties involved in normal investigative techniques, and assures that a wiretap is not obtained where conventional investigative techniques would be sufficient to expose a crime." 216 Neb. at 42, 342 N.W.2d at 654.

While requiring a showing of failure of alternative means, necessity

"does not require the exhaustion of all other possible or reasonable avenues of investigation. It does not, in fact, require that other methods even be tried if the application demonstrates other procedures are unlikely to succeed or are too dangerous.... '... It is sufficient that the government show that other techniques are impractical under the circumstances and that it would be unreasonable to require pursuit of those avenues of investigation. The government must, however, fully explain ... the basis for such a conclusion.' ..."

Id. at 41, 342 N.W.2d at 653-54 (quoting State v. Kolosseus, 198 Neb. 404, 253 N.W.2d 157 (1977)).

Defendant argues that the affidavits in support of the issuance of search warrants did not contain necessary facts regarding the investigative technique or surveillance. The affidavit of October 21, 1981, does indeed contain statements of a conclusory nature which recited that surveillance had been tried and had failed with no hope of future success.

However, there are facts recited throughout the affidavit in support of that conclusion. It is stated that surveillance of the large apartment building at 2560 Marcy Street was difficult because it was not possible for the individual doing the surveillance to remain stationary and watch the front door without detection. Additionally, it was claimed, observing a party to enter the complex would not reveal to which apartment that individual was going.

At another point in the affidavit it was recited that in attempting surveillance of the defendant's farm home located near Louisville, it was not possible to have either a fixed or moving surveillance. This was because officers were not able to get close enough to the farmhouse to see any activity that would disclose narcotic transactions. This was explained as being due to the close proximity of trees and growing crops to the farmhouse. The affidavit also contained a recitation of attempts by various law enforcement officials to place the defendant under surveillance while driving his car, which was unsuccessful because of the erratic manner of his driving, i.e., changing directions, driving down alleys, and suddenly stopping to see if someone was following him.

The use of informants was employed to gain detailed information regarding the defendant's drug activities. However, one or more of the informants who identified defendant as their source of drugs did not want to become involved in the investigation and would not agree to testify against defendant.

There were facts recited in the affidavit from which it could be concluded that pen registers would not be productive. One of the critical phone numbers was used only for recording incoming messages and was not used to dial out. A pen register, it was stated, could not be used because it did not record incoming calls.

Considering all of the affidavits in support of the various applications, we are convinced that they supported a believable conclusion that reasonable or ordinary investigatory techniques had indeed been tried and had failed, or appeared unlikely to succeed, in obtaining evidence regarding the defendant's illegal drug trafficking. That is all the law requires.

Defendant's second assignment of error has to do with the ruling of the trial court which refused to quash an admission made by the defendant absent Miranda warnings. This admission had to do with the defendant's ownership of certain keys which included keys to a 1971 brown Plymouth Valiant automobile and a toolbox located in the trunk.

On November 23, 1981, the police searched that particular automobile, pursuant to a search warrant. The warrant had been issued on the strength of an affidavit which recited in substance that, according to informants, this particular automobile was used by the defendant and John White to cache illicit drugs, and which, although registered in the name of a fictitious Mark Salem, was nevertheless owned by the defendant. The search revealed several items which, upon analyzation, were found to be controlled substances. It was necessary for the State to somehow tie the defendant into the ownership or use and control of this automobile. Its attempt to do so is the crux of defendant's objection.

On November 23, 1981, the police executed a search warrant permitting the search of the defendant's person and the premises at 2722 North 64th Street. The premises were entered by way of the front door through a glass panel that had been kicked out. The defendant was placed under arrest, which was on the strength of probable cause, without the issuance of an arrest warrant. He was not given Miranda warnings.

Nevertheless, the officers asked the defendant if he was the owner of a specific set of keys found on the dresser in the room in which defendant was located, and he answered that he was. Two of the keys were found to fit the trunk and door lock of the 1971 Valiant, and one fit a toolbox in the trunk. Because the admission as to ownership of the...