State v. Flores

512 N.W.2d 128, 245 Neb. 179, 1994 Neb. LEXIS 36, 1994 WL 41394
CourtNebraska Supreme Court
DecidedFebruary 11, 1994
DocketS-93-373
StatusPublished
Cited by23 cases

This text of 512 N.W.2d 128 (State v. Flores) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Flores, 512 N.W.2d 128, 245 Neb. 179, 1994 Neb. LEXIS 36, 1994 WL 41394 (Neb. 1994).

Opinions

Per Curiam.

The defendant, Salomon C. Flores, appeals his conviction of possession of a controlled substance with intent to distribute. He assigns as error that the district court erred in (1) overruling his motion to suppress, (2) admitting evidence concerning certain alleged sales of cocaine, and (3) admitting testimony contrary to Neb. Rev. Stat. § 29-2262.01 (Reissue 1989). We reverse and remand for further proceedings.

Pursuant to a search warrant, Investigator Chris Rea of the Hall County Sheriff’s Department and Investigator Michael Riley of the Nebraska State Patrol searched apartment No. 317 of the Blackstone Apartments in Grand Island, Nebraska, on December 10,1992. Present in the apartment at the time of the search were Lisa Hank and a male, later identified as Salomon Flores. During the search, Rea found a bag underneath a sink in that apartment, which appeared to contain about an ounce of cocaine. This substance was identified as exhibit 2. Chemist Randy Pendleton of the Nebraska State Patrol stated that he had tested exhibit 2 and found it to be 27.04 grams, slightly less than an ounce, of cocaine. Riley testified that one-eighth of an ounce of cocaine, normally referred to as an “eight-ball,” would sell on the street for anywhere from $200 to $300.

Riley also testified that $830 in currency was found in the apartment. Some additional cash was taken from the right front pocket of the defendant; the remaining currency was found with the cocaine under the bathroom sink. Riley stated that $160 of the currency found in the apartment matched photostatic copies of currency which he had given to a confidential informant earlier on December 10 for the purchase of cocaine. Some of this currency — a $20 bill, which matched one of the $20 bills given by Riley to the confidential informant, and several $1 bills — was found on the defendant.

Flores was charged by information with violation of Neb. Rev. Stat. § 28-416(l)(a) (Cum. Supp. 1992), possession of cocaine with intent to distribute. Prior to trial, the defense filed a motion to suppress the fruits of the search and seizure. The motion was overruled on February 26,1993, and the defendant [182]*182was convicted of the charge following a jury trial on March 16, 1993, from which he appeals.

The defendant first contends that the search was conducted pursuant to an invalid warrant and a supporting affidavit which failed to establish probable cause, and that the court therefore erred in overruling the motion to suppress.

In determining the correctness of a trial court’s ruling on a motion to suppress, an appellate court will uphold the trial court’s factual findings unless those findings are clearly erroneous. State v. White, 244 Neb. 577, 508 N.W.2d 554 (1993); State v. Stott, 243 Neb. 967, 503 N.W.2d 822 (1993).

A search warrant, to be valid, must be supported by an affidavit establishing probable cause, or reasonable suspicion founded on articulable facts. State v. Utterback, 240 Neb. 981, 485 N.W.2d 760 (1992); State v. Armendariz, 234 Neb. 170, 449 N.W.2d 555 (1989).

In evaluating a showing of probable cause necessary to support issuance of a warrant, only probability and not prima facie evidence of criminal activity is required. Probable cause is reasonable suspicion founded on articulable facts. Id.

In determining the sufficiency of an affidavit to show probable cause for the issuance of a warrant, we must look to the totality of the circumstances. This means that if the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying hearsay information, indicate there is a fair probability that evidence of a crime may be found at the place described, the affidavit is sufficient. Id.

Probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant’s own knowledge. Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

A search pursuant to a warrant is presumed to be valid. State v. Vrtiska, 225 Neb. 454, 406 N.W.2d 114 (1987); State v. Bartlett, 199 Neb. 471, 259 N.W.2d 917 (1977).

If police have acted pursuant to a search warrant, the defendant bears the burden of proof that the search or seizure is unreasonable. State v. Vrtiska, supra.

In his motion to suppress, the defendant moved the court to [183]*183suppress the fruits of the search and seizure for the reason that “the search and seizure were made without probable cause or without benefit of a warrant and were unreasonable within the meaning of the 4th Amendment to the United States Constitution and Article I, Section 7 of the Constitution of Nebraska.”

The State first argues that the defendant was required in his motion to make an initial showing of sufficient facts regarding the alleged illegality, and contends that the defendant did not carry this burden in his “boilerplate” motion. Citing State v. Williams, 214 Neb. 923, 336 N.W.2d 605 (1983), the State asserts that a defendant is required to demonstrate that problems with an affidavit are of a particular, specific nature. In Williams, the defendant challenged the validity of the supporting affidavit upon which the arrest warrant was issued. We noted that in Franks v. Delaware, supra, the Supreme Court held that

a criminal defendant may challenge the validity of a search warrant based on an affidavit only if the affidavit contains deliberate falsehoods or statements made with a reckless disregard for the truth. In order to be entitled to a hearing to examine the contents of the affidavit, the challenger must attack only the veracity of the affiant and not of any other informant; he must also make a “substantial preliminary showing,” including allegations of “deliberate falsehood or of reckless disregard for the truth,” supported by an offer of proof. Id. at 171. Moreover, even if the foregoing two requirements are met, no hearing is required if, when the material which is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause.

Williams, 214 Neb. at 926, 336 N.W.2d at 607.

However, the defendant does not contend that the affidavit is untruthful or factually inaccurate, but, rather, that it is insufficient to support a finding of probable cause. The motion to suppress filed in Franks “alleged that the warrant on its face did not show probable cause and that the search and seizure were in violation of the Fourth and Fourteenth Amendments.” [184]*184438 U.S. at 157-58. Franks

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State v. Flores
512 N.W.2d 128 (Nebraska Supreme Court, 1994)

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Bluebook (online)
512 N.W.2d 128, 245 Neb. 179, 1994 Neb. LEXIS 36, 1994 WL 41394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-flores-neb-1994.