State v. Sams ( 2013 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
STATE V. SAMS
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
ROBBIE J. SAMS, APPELLANT.
Filed September 17, 2013. No. A-13-095.
Appeal from the District Court for Douglas County: J RUSSELL DERR, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and Leslie E. Cavanaugh for
appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
INBODY, Chief Judge, and IRWIN and RIEDMANN, Judges.
IRWIN, Judge.
I. INTRODUCTION
Robbie J. Sams appeals an order of the district court for Douglas County, Nebraska,
denying his motion to suppress evidence obtained as a result of the execution of a search
warrant. On appeal, Sams asserts that the affidavit submitted in support of the warrant was not
sufficient to demonstrate probable cause. He also asserts that the district court erred in finding
that even if the affidavit was insufficient, the search would be sustainable under the good faith
exception. We find no merit to Sams’ assertion concerning the sufficiency of the affidavit, and
we affirm.
II. BACKGROUND
After a bench trial, Sams was convicted on a charge of manufacturing, distributing, or
possessing with intent to distribute a controlled substance. The charge arose out of evidence
discovered through the execution of a search warrant, demonstrating that Sams was engaged in a
substantial “marijuana grow operation” in a Douglas County, Nebraska, residence.
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The issues raised on appeal in this case concern the sufficiency of the affidavit of Deputy
Jason Mass of the Douglas County Sheriff’s Department, sworn on behalf of Mass’ request for
issuance of a search warrant. The affidavit was submitted, and the warrant issued, in late
September 2011.
According to his affidavit, Mass had then been employed by the Douglas County
Sheriff’s Department for approximately 10 years and had been working in the narcotics division
for approximately 3½ years. Mass recounted his training and certification as a narcotics officer.
Mass attested in his affidavit that he was contacted by the Drug Enforcement Agency
(DEA) concerning a tip the DEA had received about an alleged marijuana grow operation in a
Douglas County residence. After receiving the tip, the DEA began conducting surveillance of the
residence and identified Sams as a person involved with the residence.
In late July 2011, the DEA had served an administrative subpoena on the Omaha Public
Power District, seeking records of electrical usage by the subject residence and three similar
residences in the same geographic area. Mass’ affidavit included details about the size of each of
the four residences, as well as the details of each residence’s electrical usage. The results
demonstrated that the electrical usage at the subject residence during the previous 6 months was
more than twice that of each of the other residences, and was actually approximately four times
that of one of the residences. Mass attested in his affidavit that he was aware, through classes and
training concerning the growing and cultivation of marijuana, that residences containing a
marijuana grow operation experience an increased rate of electrical consumption. The DEA
served another administrative subpoena on the Omaha Public Power District in late August 2011,
and the results of that subpoena indicated that the subject residence had an even higher rate of
electrical consumption during the period of time following the first subpoena.
Mass attested in his affidavit that he coordinated a “trash pull” of the subject residence
with the residence’s waste management company in late September 2011. Mass located stems
and leaves that field tested positively as marijuana, venue items connecting Sams to the
residence, and a copy of “Rosebud magazine,” a publication concerning hydroponic growing, in
the trash from the subject residence.
Mass attested in his affidavit that, based on the above information, he had reason to
believe that evidence of an illegal marijuana grow operation would be found inside the residence,
and he requested a search warrant for such evidence.
A magistrate issued a search warrant, finding that Mass’ affidavit demonstrated probable
cause that evidence of an illegal marijuana grow operation would be discovered inside the
residence. Mass, along with fellow officers, executed the search warrant and discovered
numerous marijuana plants in varying stages of growth, growing equipment, firearms, and venue
items connecting Sams to the residence. Mass testified that the evidence discovered indicated
that the marijuana grow operation in this residence was “ten times larger than the normal
marijuana grows” that local law enforcement encounters.
Prior to trial, Sams filed a motion seeking to suppress all evidence seized as a result of
execution of the search warrant. Sams sought suppression on the basis that Mass’ affidavit was
insufficient to establish probable cause because he had provided no information concerning the
source of the tip received by the DEA and had not demonstrated the reliability of the source or
the basis for the source’s knowledge. The trial court concluded that the affidavit demonstrated
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probable cause, based on the investigation of the DEA and Mass, and overruled the motion to
suppress. In so ruling, the court also concluded that even if the affidavit had been lacking, the
subsequent search was supported by the officers’ good faith reliance on the issued search
warrant.
III. ASSIGNMENTS OF ERROR
On appeal, Sams has assigned two errors. First, he asserts that the district court erred in
denying his motion to suppress on the basis of the alleged insufficiency of the affidavit in
support of the search warrant. Second, he asserts that the court erred in alternatively finding that
the search was supported by good faith.
IV. ANALYSIS
1. SUFFICIENCY OF AFFIDAVIT
Sams first challenges the sufficiency of Mass’ affidavit to demonstrate probable cause to
support the issuance of a search warrant. Sams’ argument on appeal is based on the assertion that
the affidavit was insufficient because it did not include sufficient information about the tip
received by the DEA to establish the tip’s reliability or the tipster’s source of knowledge.
Because the affidavit included sufficient information about the subsequent investigation to
demonstrate probable cause without regard to the tip or the reliability of the tipster, we find this
assignment of error to be meritless.
In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of
the Fourth Amendment, we apply a two-part standard of review. State v. Wiedeman, 286 Neb.
193, ___ N.W.2d ___ (2013); State v. Sprunger, 283 Neb. 531, 811 N.W.2d 235 (2012).
Regarding historical facts, we review the trial court’s findings for clear error. But whether those
facts trigger or violate Fourth Amendment protections is a question of law that we review
independently of the trial court’s determination. State v. Wiedeman, supra; State v. Sprunger,
supra.
The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska
Constitution guarantee against unreasonable searches and seizures. State v. Wiedeman, supra.See State v. Sprunger, supra. The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the person or things to be seized.
See, State v. Wiedeman, supra. See, also, State v. Sprunger, supra.
In reviewing the strength of an affidavit submitted as a basis for finding probable cause to
issue a search warrant, an appellate court applies a totality of the circumstances test. Id. The
question is whether, under the totality of the circumstances illustrated by the affidavit, the issuing
magistrate had a substantial basis for finding that the affidavit established probable cause. State
v. Wiedeman, supra. Probable cause sufficient to justify issuance of a search warrant means a fair
probability that contraband or evidence of a crime will be found. State v. Sprunger, supra.
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In evaluating the sufficiency of an affidavit to obtain a search warrant, an appellate court
is restricted to consideration of the information and circumstances contained within the four
corners of the affidavit. Id. Our review is guided by the principle that sufficient information must
be presented to the magistrate to allow that official to determine probable cause. Id.
In the present case, Sams based his argument to the trial court, and bases his argument to
this court, largely on an assertion that Mass’ affidavit was insufficient to establish probable cause
because there was insufficient evidence adduced in the affidavit to demonstrate the source and
reliability of the tip that first led the DEA and the Douglas County Sheriff’s Department to begin
investigating this case. We find this argument, however, to be meritless because the affidavit,
under a totality of the circumstances analysis, clearly includes sufficient relevant information to
establish probable cause. The affidavit does not depend on the reliability of the initial tipster,
because it sets forth entirely independent and sufficient grounds for a finding of probable cause.
Sams asserts that the present case is comparable to the situation presented in State v.
Shock, 11 Neb. App. 451, 653 N.W.2d 16 (2002). We find that the present case, however, is
markedly distinguishable. In State v. Shock, supra, a law enforcement officer swore out an
affidavit in support of issuance of a search warrant and the affidavit included assertions about the
defendant’s prior criminal history, information about a Crimestoppers tip, and information about
the results of a trash pull performed at the subject residence. On appeal, this court found that the
information about the defendant’s criminal history was misrepresented, which misrepresentation
was made at least with reckless disregard for its truth, and that the materials found during the
trash pull were not sufficiently demonstrated to be connected to criminal activity. With respect to
the Crimestoppers tip, this court found that the affidavit was insufficient to establish the
reliability of the tipster.
The present case is markedly distinguishable, however, because unlike the affidavit in
State v. Shock, supra, where we essentially found that each major portion of information
proffered to demonstrate probable cause was lacking, the information in this case outside of the
reference to an anonymous tip that caused the DEA to begin investigating is sufficient to
demonstrate probable cause. If the affidavit had never indicated that the DEA began its
investigation because of a tip, and merely began by indicating that the DEA had investigated, the
information gleaned from that investigation and set forth in the affidavit demonstrates probable
cause.
Mass’ affidavit in this case included information establishing that the DEA had
conducted surveillance of the residence and identified Sams as a person involved with the
residence. The DEA had also served two different administrative subpoenas on the Omaha
Public Power District, the results of which demonstrated that the electrical usage at the subject
residence during the first 6 months of 2011 was more than twice that of each of other
comparably sized residences in the geographic vicinity, and was actually approximately four
times that of one of the residences. During July 2011, the electrical usage at the subject residence
was even higher. Mass attested that he was aware, through classes and training, that residences
containing marijuana grow operations experience an increased rate of electrical consumption.
Unlike the factual information in the affidavit in State v. Shock, supra, this information was not
erroneous or misleading, and there were assertions directly tying the information to a belief that
evidence of an illegal marijuana grow operation would be found inside the residence.
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In addition, the information in Mass’ affidavit concerning the results of the trash pull
revealed that Mass located stems and leaves that field tested positive as marijuana. Unlike the
potentially innocuous items located in the trash pull in State v. Shock, 11 Neb. App. 451, 653
N.W.2d 16 (2002), the fact that actual marijuana was located in the trash of the subject residence
in the present case supported a belief that evidence of an illegal marijuana grow operation would
be found inside the residence.
Although it is true that there is no information in the affidavit to reveal the source of the
tip that led the DEA to begin its investigation in this case, and it is true that there is no
information to establish the basis of knowledge or reliability of the tipster in this case, the
assertions in the affidavit in support of the search warrant clearly sufficed to demonstrate
probable cause. The lack of information about the tip in State v. Shock, supra, was meaningful
because there the other information in the affidavit was insufficient to demonstrate probable
cause. Sams’ assigned error concerning the sufficiency of the affidavit to support the search
warrant is without merit.
2. GOOD FAITH
In light of our conclusion above, finding that the affidavit submitted in support of
issuance of the search warrant was sufficient to demonstrate probable cause, we need not further
address the officers’ good faith reliance on the warrant.
V. CONCLUSION
We find that the affidavit submitted in support of the request for a search warrant
demonstrated probable cause to believe that evidence of an illegal marijuana grow operation
would be found inside the residence. Sams’ assertions on appeal are without merit, and we
affirm.
AFFIRMED.
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