State v. Bossow

744 N.W.2d 43

274 Neb. 836

STATE of Nebraska, Appellee, v. Darren L. BOSSOW, Appellant.

No. S-07-099.

Supreme Court of Nebraska.

January 18, 2008.

Kate M. Jorgensen and, on brief, Andrew D. Weeks, of Stratton & Rube, P.C., Norfolk, for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

HEAVICAN, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

Darren L. Bossow was convicted in a jury trial of possession of a controlled substance with intent to manufacture,¹ Bossow appeals, primarily arguing that the district court failed to properly instruct the jury with regard to the "personal use exception" in Neb.Rev.Stat. § 28-401(14) (Cum. Supp.2004). Bossow also asserts that the court erred in denying his motion to suppress evidence obtained from a search of his residence and statements he made to law enforcement officials, and for overruling his motion to reopen his case. For the reasons that follow, we affirm the judgment of the district court.

STATEMENT OF FACTS

ACQUIRING SEARCH WARRANT

On April 20, 2006, Sandra Tighe, an investigator with the Nebraska State Patrol prepared an affidavit for the purpose of securing a search warrant to search "the person of Darren L. Bossow," his two vehicles, and his residence. The first section in Tighe's affidavit contained background information describing her training and experience with the Nebraska State Patrol. This section also included general information relating to marijuana plants — specifically, that marijuana plants "can take up to 22 weeks to mature," "can grow in excess of eight (8) feet tall[,] and can produce up to one (1) pound of illegal usable plant material at the time of harvest." Tighe's affidavit further explained that based on her "training and experience," she knew that "individuals involved in the manufacture or growing of marijuana" may have in their possession, among other things, "firearms and ammunition"; "large amounts of cash . . . from the sales of the marijuana"; "marijuana, packaging materials, processing articles, [or] articles of horticulture . . . on their person(s)."

In the second section of Tighe's affidavit, she explained that she had received a written report from another police officer, who had interviewed Ryan Lindstrom and B.J. Richtig. Lindstrom had informed the officer that on March 18, 2006, he and Richtig had been in Bossow's residence and had seen "a four foot tall marijuana plant and approximately five smaller three inch marijuana plants under a heat lamp in the living room area by the entertainment center." Lindstrom had stated that "all of the plants were potted and well taken care of" and that the larger marijuana plant was in the "`skunk'" stage of the growing process.

Tighe's affidavit stated that on April 3, 2006, Lindstrom, Richtig, and a third person had gone to Bossow's residence, but that Bossow had not been present. Lindstrom had, however, spoken to Bossow's son, who had told Lindstrom that the marijuana plants had been moved to Bossow's bedroom closet. Lindstrom had not seen the marijuana plants on April 3, but the house had a "strong nasty odor of marijuana on the inside while he was present."

Tighe also averred that on April 3, 2006, the police officer had interviewed Richtig and Colin Zuhlke. Richtig confirmed to the officer that he had gone with Lindstrom to Bossow's residence on March 18 and had seen the marijuana plants under a heat lamp in the living room. Richtig had described one of the plants as being 4 feet tall. Zuhlke had told the officer that he had been in Bossow's residence on March 19 and seen "four or five large marijuana plants in the living room between the entertainment center and the wall." Zuhlke had said that the plants were approximately 4 feet tall, potted like houseplants, and under lights. Tighe's affidavit also noted that she had interviewed Zuhlke on April 20, and he had confirmed seeing the marijuana plants in Bossow's residence on March 19.

Tighe's affidavit further stated that Bossow had previously been arrested and that on April 20, 2006, she had reviewed Bossow's Pierce County sheriffs office medical screening form, which had been filled out on April 2. In this form, Bossow had volunteered information that he used marijuana "occasionally and last used marijuana the previous day, April 1, 2006." The remaining sections of Tighe's affidavit provided, among other things, a description of Bossow's physical characteristics, the location of his residence, and a description of Bossow's vehicles.

Based on Tighe's affidavit, the district court issued a warrant to search "[t]he person of Darren Lee Bossow," his vehicles, and his residence.

DETAINING AND QUESTIONING BOSSOW

On April 21, 2006, in anticipation of executing the search warrant on Bossow's residence the police officers who were to be involved in the search held a briefing. While the officers were conducting the briefing, an investigator, who was doing surveillance on Bossow's residence, called an officer at the briefing and said that Bossow was leaving his residence. As a result, Trooper Jason Sears was instructed to leave the briefing and detain Bossow until the search warrant had been executed.

Sears saw Bossow's car pull into the parking lot of a gas station and watched Bossow leave his car and enter the gas station. Sears testified that before following Bossow into the building, he noticed that Bossow's car had a cover around the outside of the license plate, such that Sears could not determine whether the car was currently registered. Sears entered the building and informed Bossow that he wanted to talk to Bossow outside, about his license plate. Once outside the building, Bossow identified himself to Sears as "Darren Bossow." But, when Sears asked for a driver's license or other proof of identity, Bossow was, unable to produce any. It was later determined that Bossow's driver's license had been suspended.

Sears informed Bossow that he was going to take Bossow to the sheriffs office to "clear up the registration and his identity" and because there was an investigator at the sheriffs office who wanted to speak to Bossow. On cross-examination, Sears testified that the purposes for "[d]etaining" Bossow were first, to detain him "for the search warrant" and, second, because Bossow "didn't have identification and [Sears] wanted to be sure that was him for sure."

Sears handcuffed Bossow, placed Bossow in his police car, and began driving to the sheriffs office. While driving from the gas station to the sheriff's office, Sears advised Bossow of his Miranda rights.² When they arrived at the sheriffs office, Tighe approached Sears' police car and, while Bossow was still seated in the back of the car, gave Bossow a copy of the search warrant. Tighe testified that after Bossow read the search warrant, Bossow admitted there was a marijuana plant in his house in an upstairs bedroom closet.

Sears took Bossow into the sheriffs office while Tighe and another officer remained outside and searched Bossow's car, which had been brought to the sheriff s office. The officers did not find any drugs or drug paraphernalia in Bossow's car. Following the search of Bossow's car, Tighe returned to the sheriffs office and again advised Bossow of his Miranda rights, after which Bossow signed a waiver of rights form.

Tighe testified that after reading Bossow his Miranda rights, she questioned him about the marijuana plants in his house. Tighe testified that Bossow told her that he had taken approximately eight marijuana seeds from `marijuana that he had purchased and had planted those seeds in a ceramic pot. Bossow further explained that he watered the plants and placed them under a heat lamp to help them grow. On cross-examination, Tighe stated that Bossow told her that he "occasionally" used marijuana and that the marijuana plant was "an experiment" and was for his personal use.

EXECUTION OF SEARCH WARRANT

On April 21, 2006, shortly after Bossow left his residence, police officers executed the search warrant at Bossow's residence. In Bossow's upstairs bedroom closet, police found a ceramic pot containing four marijuana plants, a heat lamp, and a water spray bottle. The marijuana plants had grown to be 3 to 4 feet in height. In other areas of the house, police also found two triple-beam scales and a marijuana pipe.

A police officer who assisted in the search testified that the marijuana plants had a "viable root system" and would "develop and if nurtured or cultivated [would) produce a product." The officer further testified that these plants were not "mature plants," nor were they "robust for this stage" of development. The officer stated that the plants were "about average" and that he had seen worse.

MOTION TO SUPPRESS

The State filed an information charging Bossow with possession of a controlled substance with intent to manufacture pursuant to § 28-416(2)(b). Bossow subsequently filed a motion to suppress all of the evidence seized as a result of the search, and all statements made to law enforcement on April 21, 2006. In support of his motion to suppress, Bossow argued that the search warrant was issued on the basis of an affidavit that failed to establish probable cause because the affidavit contained stale evidence. Bossow also argued that Sears did not have probable cause to detain him on April 21 and that as a result, the incriminating statements he made to law enforcement were not admissible.

Following a hearing, the district court overruled Bossow's motion to suppress. As to the incriminating statements, the court determined that "[i]t does not matter what the officer thought at the time he detained [Bossow]. The fact is that at that time the officer clearly had probable cause to arrest [Bossow] for operating a motor vehicle while his license was suspended." The court determined that Bossow's statements were admissible, based on this probable cause and...