State v. Graves

229 N.W.2d 538, 193 Neb. 797, 1975 Neb. LEXIS 1062
CourtNebraska Supreme Court
DecidedMay 15, 1975
Docket39831 and 39832
StatusPublished
Cited by9 cases

This text of 229 N.W.2d 538 (State v. Graves) 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. Graves, 229 N.W.2d 538, 193 Neb. 797, 1975 Neb. LEXIS 1062 (Neb. 1975).

Opinions

Spencer, . J.

Defendants, who waived a jury trial, were convicted of unlawful possession of heroin. They were each sentenced to the custody of the Director of Correctional Services for a period of 2 years. They assign as error: (1) The denial of their pretrial motions to suppress tangible incriminating evidence seized by the police during a search pursuant to a warrant; and (2) in sentencing them to the custody of the Director of Correctional Services rather than to a term of probation. We affirm.

The primary question in this case is the validity of a search warrant based on the affidavit of Melvin M. Berney, which stated in pertinent part: “That he has just and reasonable grounds to believe, and does believe, that there is concealed or kept as hereinafter described, the following property, to-wit: Opium or its derivatives, Cocaine, or any other illegally possessed Drugs, and Instruments for the administering of these drugs either home-made or manufactured.

“That said property is concealed or kept in, on, or about the following described place or person, to-wit: 1538 North 18th Street, Omaha Douglas County, Ne[799]*799braska. A two Story, White, Wooden Framed,. Single Family Dwelling.

“That said property is under the control or custody of Jessie Brown and/or John Doe and/or Jane Doe.

“That the following are the grounds for issuance of a search warrant for said property and the reasons for his belief, to-wit: On 28 June 1973 Federal Bureau of Investigation agent Vic Harvey telephoned Lt. Jack Swanson of the Omaha Police Division and related that agent Harvey has an informant who has proven their reliability in the past by providing information to the F.B.I. that has proven reliable and accurate and this informant stated that a party name Jessie Brown who lives at 1538 North 18th Street is expecting a large shipment of Heroin. This shipment is supposed to arrive sometime today June 28 1973.

“At about 7:30 PM June 28 1973, F.B.I. agent Harvey telephoned Lt. Swanson again and advised Lt. Swanson that this same reliable informant had just called back and stated that Jessie Brown has received the shipment of Heroin and its in the house at 1538 North 18th Street. Officers of the Omaha Police Division have been conducting an investigation into Jessie Brown of 1538 North 18th Street in connection with his Heroin involvement for about the past two weeks. Through the investigations by the Omaha Police Division and through different officers talking to reliable informants that have provided information to the officers in the past that have led to Felony Narcotics Arrests. These informants and these investigations have led the members of the Omaha Police Division, Vice and Narcotics Unit to believe that Jessie Brown is very active in Heroin dealing in the Omaha area and he was expecting a large shipment of Heroin. Through the information by the F.B.I. informant and the Omaha Police investigation, Officers are of the opinion that concealed inside of 1538 North 18th Street is a quantity of Heroin which is contrary to the laws of the State of Nebraska. Due to the fact that 1538 North [800]*80018th Street is a modern dwelling, officers believe that there are toilet facilities inside and if the Police Officers have to announce themselves, the Contraband could be easily destroyed, thus the officers are Requesting that a No Knock Search Warrant be issued.”

A search warrant was issued on the basis of the affidavit. A search pursuant to the warrant resulted in the discovery and seizure of heroin and the arrest of the defendants. At the suppression hearing, Lieutenant Swanson, mentioned in the affidavit, verified the information contained in the affidavit, and elaborated on it by adding the information that the F.B.I. informant had been in the house and had seen the heroin in the house.

Defendants’ first assignment of error is the overruling of the motion to suppress the evidence. Defendants’ motion to suppress is based on Aguilar v. Texas (1964), 378 U. S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723, and Spinelli v. United States (1969), 393 U. S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637. Aguilar is not in point on the facts. The affidavit there was one short paragraph reciting that the police had received reliable information from a credible person and did believe that narcotics were being kept on the premises to be searched, for sale and use contrary to law. The affidavit in the instant case is much more detailed than in Aguilar. That case is not controlling herein.

While the affidavit in Spinelli was more detailed, it was still held to be inadequate. Spinelli, however, has been seriously undermined by United States v. Harris (1971), 403 U. S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723. As we observed in State v. Rice (1972), 188 Neb. 728, 199 N. W. 2d 480: “A reputable legal scholar has stated that Harris ‘appears to go far in the direction of eroding the force of Aguilar and Spinelli.’ 45 Conn. B. «L, note 51, p. 345.” The majority in Harris specifically repudiated Spinelli to the extent that it prohibited the use of a policeman’s knowledge of a suspect’s reputation. Mr. Justice Burger there said: “We cannot conclude [801]*801that a policeman’s knowledge of a suspect’s reputation —something that policemen frequently know and a factor that impressed such a ‘legal technican’ as Mr. Justice Frankfurter — is not a ‘practical consideration of everyday life’ upon which an officer (or a magistrate) may properly rely in assessing the reliability of an informant’s tip. To the extent that Spinelli prohibits the use of such probative information, it has no support in our prior cases, logic, or experience and we decline to apply it to preclude a magistrate from relying on a law enforcement officer’s knowledge of a suspect’s reputation.”

If we correctly gauge defendants’ attack on the affidavit, it is hinged on their contention that because it did not state the informant had actually seen the heroin in the premises, the affidavit must be suppressed. This is not fatal if the tip is corroborated by other information in the hands of the police and if the tip itself as reflected in the affidavit justifies an inference of personal knowledge. Even in Spinelli, the court said: “in the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.”

We held in State v. Glouser (1975), ante p. 190, 226 N. W. 2d 328: “For an affidavit based upon a tip from an informant to be sufficient, the magistrate must be informed of (1) some of the underlying circumstances from which the informant concluded that the narcotics were located where he claimed they were, and (2) some of the underlying circumstances from which the officer concluded that the informant was credible.”

The affidavit establishes that the informant was credible because he had given reliable information in the past. The police knew that Jessie Brown was active in [802]*802heroin in the Omaha area. They knew from other informants he was expecting a large shipment.

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233 N.W.2d 923 (Nebraska Supreme Court, 1975)
State v. Graves
229 N.W.2d 538 (Nebraska Supreme Court, 1975)

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Bluebook (online)
229 N.W.2d 538, 193 Neb. 797, 1975 Neb. LEXIS 1062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-graves-neb-1975.