State v. Williams
| Decision Date | 30 September 2003 |
| Docket Number | No. A-02-1060.,No. A-02-1059.,A-02-1059.,A-02-1060. |
| Parties | State of Nebraska, appellee, v. Connie S. Williams, appellant. |
| Court | Nebraska Court of Appeals |
Appeals from the District Court for Douglas County: Gary B. Randall, Judge. Affirmed.
Anthony S. Troia, of Troia Law Offices, and Jason E. Troia, of Gallup & Schaefer, for appellant.
Jon Bruning, Attorney General, and Susan J. Gustafson for appellee.
Connie S. Williams appeals from an order of the district court for Douglas County denying her motion to suppress evidence found in her residence, to wit, methamphetamine and drug paraphernalia. Williams also appeals from the sentence imposed as a result of her conviction for possession with intent to distribute methamphetamine. Prior to this offense, Williams was convicted of possession with intent to distribute marijuana and was on probation when she was charged with the current offense. After being convicted of possession with intent to distribute methamphetamine, Williams was convicted of violating her probation. Williams likewise appeals from the sentence imposed as a result of her conviction for violation of probation. These two cases were consolidated for purposes of this appeal. For the reasons stated herein, we affirm the court's decision to deny Williams' motion to suppress, and we also affirm the sentences imposed for the possession with intent to distribute methamphetamine conviction and the violation of probation conviction.
On November 11, 1999, Williams pled guilty to the charge of possession with intent to distribute marijuana. On April 27, 2000, Williams was sentenced to 24 months of intensive supervised probation.
On August 2, 2000, Omaha police officers applied for a search warrant, asking permission to search the premises located at "1905 "Spring St. #1, Omaha, Douglas County, Nebraska" (Spring Street Property), and permission to search Williams' person. The affidavit attached to the search warrant described the premises as a "white, two-story, house converted into three apartments." The affidavit stated that apartment No. 1 was located on the "front main level floor." The search warrant was granted the same day, and a search of the Spring Street Property was conducted. The police found syringes, a spoon with residue on it, a brown vial, and several "stamp sized" Ziploc bags with dollar signs on them, and three bags of methamphetamine were found inside a Tupperware container. Further facts regarding the warrant and the search will be set forth in the analysis section.
On August 30, 2000, the State filed an information charging Williams with possession with intent to distribute methamphetamine. On February 26, 2001, Williams filed a motion to suppress. A hearing was held on Williams' motion on March 29. The court denied her motion the same day. On August 22, a bench trial was held. The court made a ruling from the bench that the evidence proved beyond a reasonable doubt that Williams was guilty of the crime charged. On August 31, Williams filed a motion for new trial, which was denied on October 25.
On August 29, 2002, Williams was sentenced to 5 to 7 years' imprisonment for possession with intent to distribute methamphetamine. The court also found that based on the finding that Williams was guilty of possession with intent to distribute methamphetamine, she also violated her probation at docket No. 147, page 862. Williams was sentenced to 3 to 5 years' imprisonment for violating her probation. This sentence was ordered to run consecutively to her sentence on the methamphetamine conviction. As mentioned earlier, these two issues were consolidated for purposes of this appeal. This timely appeal followed.
Williams assigns two errors on appeal. First, she contends that the court erred when it denied her motion to suppress. Second, Williams contends that the court abused its discretion when it sentenced her for violating her probation and that the sentence it imposed for her conviction on the charge of possession with intent to distribute methamphetamine was also an abuse of discretion.
A trial court's ruling on a motion to suppress evidence, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. State v. Manning, 263 Neb. 61, 638 N.W.2d 231 (2002); State v. Ildefonso, 262 Neb. 672, 634 N.W.2d 252 (2001). In making this determination, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. Id.
Williams generally contends that the district court erred in not suppressing the evidence gathered after the Spring Street Property was searched. Williams' first specific claim is that the affidavit did not set forth sufficient facts to establish probable cause.
Suppression is an appropriate remedy if (1) the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his or her reckless disregard of the truth, (2) the issuing magistrate wholly abandoned his or her judicial role, (3) the warrant is based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, or (4) the warrant is so facially deficient that the executing officer cannot reasonably presume it to be valid.State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002); State v. Ildefonso, supra. If none of the aforementioned circumstances exist, the evidence should not be suppressed. Id.
A search warrant, to be valid, must be supported by an affidavit which establishes probable cause. Probable cause sufficient to justify issuance of a search warrant means a fair probability that contraband or evidence of a crime will be found. Id.
In reviewing the strength of an affidavit as a basis for finding probable cause to issue a search warrant, we have adopted the totality of the circumstances rule established by the U.S. Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). State v. Faber, supra. The judge who is evaluating the probable cause question must make a practical, commonsense decision. Id. The judge must determine whether, given the totality of the circumstances set forth in the affidavit, including the veracity of 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. Id. The question is whether the issuing magistrate had a substantial basis for finding that the affidavit established probable cause. Id.
Proof of probable cause justifying issuance of a search warrant generally must consist of facts so closely related to the time of issue of the warrant as to justify a finding of probable cause at that time. State v. Ortiz, 257 Neb. 784, 600 N.W.2d 805 (1999). In general, no more than a reasonable time may have elapsed between the occurrence of facts and the issuance of a search warrant based thereon. State v. Faber, supra.
In this case, the affidavit in support of the search warrant for the Spring Street Property and Williams' person was sworn to by Officer Pam Heidzig of the Omaha Police Department. The affidavit relies in part on information provided by a confidential informant (CI). Williams does not argue on appeal that the CI was not credible. The affidavit stated that Heidzig had "reasonable grounds" to believe that there was concealed methamphetamine at the Spring Street Property. The affidavit requested permission for the search warrant to be served during the nighttime hours. Heidzig stated that the methamphetamine might also be located on Williams' person.
The grounds for the search warrant which were provided by Heidzig indicated that a CI contacted Heidzig on July 31, 2000. The CI advised Heidzig that the CI was in the Spring Street Property "within the past 24 hours" and witnessed Williams selling methamphetamine to another party. The CI witnessed this sale take place during the nighttime hours. With regard to the trustworthiness of the CI, Heidzig stated that the CI had provided officers of the Omaha Police Department with The CI was familiar with methamphetamine and how it is packaged for sale. Heidzig further stated that the CI was not on parole, probation, or work release in the State of Nebraska.
Heidzig also conducted an independent investigation with regard to the Spring Street Property. Heidzig checked with the local utility company to see who had control of the Spring Street Property. Heidzig learned that Williams was paying the bills for the Spring Street Property. Heidzig also confirmed that Williams lived at the Spring Street Property.
After reviewing the record, the totality of the circumstances indicates that there was probable cause for the officers to believe there would be methamphetamine on the Spring Street Property. The warrant in this case contained sufficient facts to establish probable cause. This argument is without merit.
Williams next contends that the police exceeded the scope of the search warrant. Williams contends that since the warrant named only "1905 Spring St. #1," the police did not have authority to search a storage area located in the stairwell just outside a bathroom on the first floor. The State argues that the storage area was part of the "curtilage" of the Spring Street Property and that...
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