State v. Groves

477 N.W.2d 789, 239 Neb. 660, 1991 Neb. LEXIS 388
Nebraska Supreme Court·Decided December 13, 1991·No. 90-283·Published·Cited by 116 cases

Opinions

Boslaugh, J.

The defendant, Kevin R. Groves, was convicted by a jury of unlawful possession with intent to deliver methamphetamine and possession of a firearm by a felon. He was sentenced to a term of imprisonment of 2 to 4 years on the drug charge and to 13 months on the firearm charge. He has appealed and makes four assignments of error.

In his first assignment of error, the defendant contends that the trial court erred in overruling his motion to suppress evidence discovered during the search conducted on April 29, 1989, at 8104 Bedford Plaza, a claim he preserved by making proper objections at the time of trial. See State v. Britt, 237 Neb. 163, 465 N.W.2d 466 (1991).

On April 20, 1989, Deputy Sheriff William Jackson applied for a warrant to search for methamphetamine; various items [663] associated with the use, manufacture, and sale of drugs; and a 12-gauge pump-action shotgun, cut off at both the barrel and the stock to make it shorter than the legal dimensions. The items to be seized were alleged to be under the control or custody of Groves and concealed or kept at “8032 Bedford Plaza, Omaha, Douglas County, Nebraska, a single story, wood frame, single family dwelling, white in color, and any out buildings on the curtilage, and any vehicles on this property

Deputy Jackson’s affidavit set forth the grounds in support of issuance of the search warrant, alleging that he had been provided information by a confidential informant regarding Groves and the address to be searched. Deputy Jackson checked this information and found it to be true.

The informant had advised Deputy Jackson that he had been inside the residence described as 8032 Bedford Plaza and had observed Groves in possession of more than 2 grams of methamphetamine and a sawed-off 12-gauge shotgun. The informant further advised that Groves was a convicted felon and currently wanted for an active felony arrest warrant. The informant was able to pick out Groves from numerous booking photographs the informant was shown.

Deputy Jackson checked and found that Groves was a convicted felon with prior arrests for drug-related offenses, weapons-related offenses, and assault. Furthermore, Deputy Jackson found that Groves was currently wanted on 10 active warrants, 1 of which was for a felony.

On the basis of Deputy Jackson’s affidavit, a judge of the county court issued the requested search warrant. The search warrant authorized a search of “8032 Bedford Plaza, Omaha, Douglas County, Nebraska, a single story, wood frame single family dwelling, white in color, and any out buildings on the curtilage, and any vehicles on this property____”

On April 29,1989, Deputy Jackson and several other officers executed the search warrant. The defendant was found asleep on a couch in the basement, and during the search of the basement, the officers discovered various items of contraband and a number of loaded weapons in the area immediately surrounding the defendant. The defendant was arrested, and [664] the warrant was returned along with an inventory to the county court on April 29.

The defendant filed a motion to suppress the items seized, alleging, among other things, that the affidavit in support of the search warrant did not state sufficient facts to show probable cause for issuance of the warrant and that the warrant violated the particularity clause of the fourth amendment to the U. S. Constitution because it contained an incorrect address.

The correct street address of the house where the defendant was found and from which the items were seized is 8104 Bedford Plaza. This was not discovered until after the warrant was executed.

At the suppression hearing, Deputy Jackson testified that the confidential informant had shown him the house that was later searched. Deputy Jackson had conducted surveillance of this house for approximately a week prior to obtaining the warrant to search, and he had observed the defendant outside the residence on several occasions.

The residence which was searched is located west of 80th Street on Bedford Plaza, which is a dead-end street with houses located only on the north side of the street. It is a white single-story, wood frame, single-family residence and is the last house on the street.

Deputy Jackson was unable to ascertain the numerical address from his surveillance of the house.

To get the house’s street address which was used in the affidavit, Deputy Jackson used a computer-listed property file. The last house on the street was listed as number 8032.

The house that had been under surveillance and that Deputy Jackson searched was not 8032 Bedford Plaza. The residence at 8032 Bedford Plaza is located directly east of 8104 Bedford Plaza, the residence that was searched, and is a small, one-story, wood frame, green-colored house. The record does not show whether there is a street address posted on the house located at 8032 Bedford Plaza.

Deputy Jackson testified that there was no confusion as to the house where he was going to serve the search warrant. The white one-story house that had been under surveillance was the only house where the officers went to serve the warrant.

[665] The defendant contends that the district court erred in overruling his motion to suppress because Deputy Jackson’s affidavit requesting the search warrant was insufficient to establish probable cause for issuing the search warrant and because the search warrant contained an inaccurate description of the place to be searched.

The defendant alleges that the affidavit was insufficient because the reliability of the informant was not established by the affidavit.

In determining the correctness of a trial court’s ruling on a motion to suppress, this court will uphold a trial court’s findings of fact unless those findings are clearly erroneous. State v. Sneed and Smith, 231 Neb. 424, 436 N.W.2d 211 (1989). In deciding whether the trial court’s findings on a motion to suppress are clearly erroneous, the reviewing court recognizes the trial court as the trier of fact and takes into consideration that the trial court has observed the witnesses testifying regarding the motion. Id.

This court has adopted the “totality of the circumstances” test set forth by the U.S. Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), to determine the sufficiency of an affidavit used to obtain a search warrant. Sneed and Smith, supra. It is only the probability, and not a prima facie showing, of criminal activity which is the standard of probable cause for issuance of a search warrant. Id.

In evaluating probable cause for the issuance of a search warrant, the magistrate must make a practical, commonsense decision whether, given the totality of the circumstances set forth in the affidavit before him, including the veracity 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 duty of the reviewing court is to ensure that' the issuing magistrate had a substantial basis for determining that probable cause existed. Id.

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State v. Groves, 477 N.W.2d 789, 239 Neb. 660, 1991 Neb. LEXIS 388 (Neb. 1991).

477 N.W.2d 789 (State v. Groves) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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