State v. Wyatt, A-97-128
| Decision Date | 03 March 1998 |
| Docket Number | No. A-97-128,A-97-128 |
| Citation | 6 Neb.App. 586,575 N.W.2d 411 |
| Parties | STATE of Nebraska, Appellee, v. David WYATT, Appellant. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Motions to Suppress: Probable Cause: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress, an appellate court reviews the ultimate determination of probable cause de novo and reviews the findings of fact made by the trial court for clear error, giving due weight to the inferences drawn from those facts by the trial court.
2. Search Warrants: Probable Cause: Appeal and Error. While a determination of probable cause to issue a warrant must be reviewed de novo on appeal, an appellate court must afford great deference to a magistrate's determination.
3. Search Warrants: Affidavits: Probable Cause: Appeal and Error. In reviewing the strength of an affidavit as a basis for finding probable cause to issue a search warrant, under 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), the question is whether under the totality of the circumstances, the issuing magistrate had a substantial basis for finding that an affidavit established probable cause.
4. 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 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.
5. Search Warrants: Affidavits. The reliability of an informant may be established by showing that (1) the informant has given reliable information to the police officers in the past, (2) the informant is a citizen informant, (3) the informant has made a statement that is against his or her penal interest, or (4) a police officer's independent investigation 6. Search Warrants: Affidavits. A showing of reliability is not needed to establish the veracity of information in an affidavit in support of the issuance of a search warrant when the information comes from an average citizen rather than a confidential informant who is usually involved in criminal activity.
establishes the informant's reliability or the reliability of the information the informant has given.
7. Search Warrants: Affidavits: Probable Cause: Appeal and Error. A magistrate's determination of probable cause should be paid great deference by reviewing courts. After-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.
8. Search Warrants: Affidavits: Probable Cause. In evaluating probable cause for the issuance of a search warrant, a magistrate must make a practical, commonsense decision whether given the totality of the circumstances set forth in the affidavit before him or her, including the veracity of and basis of knowledge of the person supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
9. Evidence: Search Warrants: Police Officers and Sheriffs. Under the good faith exception established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), evidence obtained by officers acting in reasonable reliance on a search warrant that was issued by a neutral and detached magistrate but later found to be invalid is nonetheless admissible.
10. Search Warrants: Affidavits: Probable Cause: Police Officers and Sheriffs. The test for reasonable reliance on a search warrant is whether an affidavit would create disagreement among thoughtful and competent judges as to the existence of probable cause; the test is an objective standard of reasonableness which requires officers to have a reasonable knowledge of what the law prohibits.
11. Controlled Substances: Words and Phrases. Neb.Rev.Stat. § 28-401(14) (Reissue 1995) defines manufacture as the production, preparation, propagation, compounding, or processing of a controlled substance, except that manufacture shall not include the preparation or compounding of a controlled substance by an individual for his or her own use.
12. Controlled Substances: Proof. It shall not be necessary for the state to negate any exemption or exception set forth in Neb.Rev.Stat. ch. 28, art. 4 (Reissue 1995), in any complaint, information, indictment or other pleading or in any trial, hearing, or other proceeding under the provisions of this article, and the burden of proof of any such exemption or exception shall be upon the person claiming its benefit.
13. Controlled Substances: Proof. A defendant bears the burden of proving that his or her activity falls within the personal use exemption defined in Neb.Rev.Stat. § 28-401(14) (Reissue 1995).
14. Convictions: Appeal and Error. In determining the sufficiency of the evidence to sustain a criminal conviction, it is not the province of the appellate court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the finder of fact, and a verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.
Russel L. Jones, of Clough, Dawson & Piccolo, North Platte, for appellant.
Don Stenberg, Attorney General, and Jennifer S. Liliedahl, for appellee.
David Wyatt was convicted in a bench trial of manufacturing marijuana and was sentenced to 60 days' probation. He appeals his conviction, alleging that the district court improperly denied his motion to suppress and that there was insufficient evidence to convict him.
On October 3, 1995, the North Platte Police Department received a report from Vicki Colonna-Valdivia that she had seen a glass bong full of water and a cellophane wrapper with marijuana in it on top of the refrigerator in the residence of David Wyatt. Colonna-Valdivia explained that she was Wyatt's landlord and had attempted to evict him on two occasions in August and September. She told Investigator Matt Phillips that Wyatt was supposed to be out of the residence by October 1 and that on October 3, she went to the residence to check to see if he had vacated it. This is when she saw the bong and marijuana. She also stated that she had observed large amounts of vehicular traffic coming and going from Wyatt's residence at all hours of the day and night and that this traffic would generally stop for only 5 to 10 minutes before leaving.
Based upon the above-mentioned information set forth in an affidavit by the police department, a search warrant was issued by a Lincoln County judge. The police executed the warrant at Wyatt's residence at 2:24 p.m. on October 3, 1995. No one answered when the police officers knocked on the door, so they entered the residence through a door on the east side of the residence which was open when they arrived.
Based upon the evidence seized, the State subsequently charged Wyatt with manufacturing a controlled substance, to wit, marijuana. Wyatt filed a motion to suppress "[a]ny and all evidence acquired as a result of the search" of his residence, alleging that there was insufficient probable cause to issue the warrant. The trial court overruled the motion after a suppression hearing, finding that under State v. Detweiler, 249 Neb. 485, 544 N.W.2d 83 (1996), Colonna-Valdivia was a citizen informant and, thus, that she and the information she supplied were sufficiently reliable to establish probable cause for the warrant to be issued.
At a bench trial, Wyatt made a continuing objection to the evidence seized because of the alleged illegality of the search warrant. It was stipulated that Colonna-Valdivia was unavailable to testify, but that if she was called, she would testify to the statements contained in the search warrant and would identify Wyatt as her tenant. Phillips testified that the information contained in the search warrant was what was told to him in the morning of October 3, 1995, and that he obtained a search warrant to search Wyatt's residence at 1001 West 19th, North Platte, Nebraska, based upon that information. Phillips testified that he then served the warrant on Wyatt's residence in the afternoon of October 3. He and other officers knocked on the front door, and when nobody answered, they entered the residence through a side door which was open. Once inside, he found a glass bong, Zig-Zag papers, postage scales, brass filters, roach clips, a stone "tooter," two brass pipes, other drug paraphernalia, and .4 grams of marijuana including seeds in a cellophane wrapper on top of the refrigerator. He also discovered the healthy, immature marijuana plant pictured in exhibit 2 growing in a 5-gallon bucket in the washroom.
Nebraska State Patrol forensic drug chemist Victor Sterup testified that he analyzed the materials found on the refrigerator and in the growing plant found in the washroom and that both were indeed marijuana but did not appear to come from the same plant.
The trial court found Wyatt guilty, and he timely appealed to the Nebraska Court of Appeals.
Wyatt's assignments of error are that the district court erred in (1) overruling his motion to suppress and (2) convicting him upon insufficient evidence.
In reviewing a trial court's ruling on a motion to suppress, an appellate court reviews the ultimate determination of probable cause de novo and reviews the findings of fact made by the trial court for clear error, giving due weight to the inferences drawn from those facts by the trial court. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997); State v. Kinney, 6 Neb.App. 102, 572 N.W.2d 383 (1997)....
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