State v. Davidson

618 N.W.2d 418

260 Neb. 417

STATE of Nebraska, appellee, v. Richard DAVIDSON, appellant.

No. S-99-076.

Supreme Court of Nebraska.

September 29, 2000.

Jerry J. Fogarty, Deputy Hall County Public Defender, Grand Island, for appellant.

Don Stenberg, Attorney General, and Ronald D. Moravec, Plattsmouth, for appellee.

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

GERRARD, J.

FACTUAL AND PROCEDURAL BACKGROUND

Richard Davidson was arrested pursuant to an arrest warrant which had been issued by a county court judge as a result of Davidson's failure to pay a judgment and costs pursuant to a prior conviction or to appear and show cause why Davidson should not be committed to jail for nonpayment of the same. The arrest warrant was not accompanied by an affidavit or other sworn document establishing probable cause for the arrest.

When the warrant was executed, as Davidson was being handcuffed, the arresting officers observed that Davidson's left hand was clenched. Davidson was ordered to unclench his hand; when Davidson obeyed, a cellophane package was discovered containing a white powdery substance. The substance later tested positive for methamphetamine.

Davidson was charged with possession of a controlled substance, to which he pled not guilty. Davidson moved to suppress the methamphetamine, arguing that the arrest warrant was invalid. The district court overruled the motion based upon its determination that the arresting officers executed the warrant in good faith and that the face of the warrant did not indicate that the warrant was invalid. After a bench trial on stipulated facts, Davidson was convicted of possession of a controlled substance.

Davidson appealed to the Nebraska Court of Appeals, assigning that the district court erred in overruling his motion to suppress and in admitting the methamphetamine into evidence over his objection. The Court of Appeals determined that the arrest warrant was invalid, being unsupported by an affidavit establishing probable cause. See State v. Davidson, 9 Neb. App. 9, 607 N.W.2d 221 (2000). The Court of Appeals acknowledged authority from other jurisdictions stating that a warrant may be valid if the face of the warrant reflects the fact that it was issued based upon the personal knowledge of the issuing magistrate or judge, but the Court of Appeals determined:

In the present case, there is simply no evidence in the record upon which we can assess the validity of the warrant at issue. The face of the warrant does not include any statements which indicate that the warrant was issued upon the personal knowledge of the issuing judge or that the issuing judge was the same judge whom Davidson failed to appear in front of. There is no supporting affidavit or any other sworn testimony upon which we can assess whether there was probable cause for issuing the warrant. Although we recognize that in these cases where warrants are issued for failure to appear or pay a judgment and costs, the lack of an affidavit may be overcome by the presence of some evidence upon which we can adjudge the validity of the warrant; no such evidence exists in the present case. As a result, we conclude that the State failed to establish that the search in the present case was the result of a valid legally issued warrant.

Id. at 14-15, 607 N.W.2d at 226.

The Court of Appeals further determined that there was no evidence in the record otherwise establishing the reasonableness of the search or that the "good faith" exception to the warrant requirement could be applied. Id. Accordingly, the Court of Appeals reversed the judgment and remanded the cause with directions to the district court to grant the motion to suppress and to conduct further proceedings consistent with the Court of Appeals' opinion. Id. This court sustained the State's petition for further review.

ASSIGNMENTS OF ERROR

The State assigns, renumbered and restated, that the Court of Appeals erred in (1) determining that the arrest warrant should have been supported by an affidavit establishing probable cause, (2) applying the wrong standard of review to determine whether the arresting officers were acting in good faith upon the warrant, and (3) finding that the "good faith" exception was inapplicable.

STANDARD OF REVIEW

In reviewing a trial court's ruling on a motion to suppress, an appellate court reviews the ultimate determination of probable cause de novo and reviews the findings of fact made by the trial court for clear error, giving due weight to the inferences drawn from those facts by the trial court. State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000); State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997). In making the determination as to factual questions, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. State v. Tucker, 257 Neb. 496, 598 N.W.2d 742 (1999).

ANALYSIS

VALIDITY OF ARREST WARRANT

The State's first assignment of error addresses the Court of Appeals' determination that the arrest warrant should have been supported by an affidavit establishing probable cause. This determination is critical, because it is undisputed that the search of Davidson took place without a search warrant. If police have acted without a search warrant, the State has the burden to prove that the search was conducted under circumstances substantiating the reasonableness of such search or seizure. State v. Childs, 242 Neb. 426, 495 N.W.2d 475 (1993); State v. Vermuele, 241 Neb. 923, 492 N.W.2d 24 (1992). In this case, the warrantless search is valid only if made incidental to a lawful arrest. See State v. Buckman, 259 Neb. 924, 613 N.W.2d 463 (2000).

The validity of the arrest warrant turns on whether the county court had probable cause to issue the warrant pursuant to which Davidson was arrested. See, U.S. Const. amend. IV; Neb. Const. art. I, § 7. Generally, in determining whether probable cause exists for the issuance of an arrest warrant, the issuing magistrate is to make a commonsense decision whether, given the totality of the circumstances set forth in the affidavit before him or her, including the veracity and basis of knowledge of the persons supplying the hearsay information, there is a fair probability the defendant was implicated in the crime. State v. Tucker, supra; State v. Cortis, 237 Neb. 97, 465 N.W.2d 132 (1991).

Here, however, there is no affidavit supplying probable cause. In most instances, the lack of a sufficient affidavit or other supporting document establishing probable cause means that the warrant is invalid. See, generally, Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999). The State argues that the information establishing probable cause can be found in the warrant itself, which provides, in relevant part:

On March 13, 1998, this defendant was convicted and sentenced to pay judgment(s) and costs of $61.64. The full amount has not been paid, leaving a balance due of .[sic] The defendant requested an extension of time to pay the judgment(s) and costs, and was ordered to pay in full on or before April 15, 1998, or appear before this court to show cause why he/she should not be committed to jail for non-payment of judgment(s) and costs as ordered.

The defendant has failed to pay the judgment(s) and costs and further has failed to show cause why he/she should not be committed to jail for non-payment of judgment(s) and costs as ordered.

It is ordered that you immediately arrest the defendant and comply with one of the following:

1. Defendant may be released upon payment....

2. Deliver the defendant to the jailer of Hall County to stand committed to the Hall County Jail to serve his/her judgment(s) and costs at the rate provided by law.

The warrant bears the signature of the county court judge. The State argues, in essence, that the failure to pay a fine or to appear in court is a violation, the commission of which is within the personal knowledge of the court. Since the information establishing probable cause is already in the possession of the court, the State asserts that no affidavit is required. Davidson argues, on the other hand, that because there was no proof that the county court judge had "personal knowledge" of his alleged nonpayment or failure to appear to show cause, the federal and state Constitutions require the county court to have a sworn statement of probable cause in order to issue the arrest warrant. Both Davidson and the State are partially correct; thus, we granted further review in this case to clarify the circumstances under which a county judge may issue an arrest warrant based on personal knowledge.

The Court of Appeals acknowledged, as do we, that other jurisdictions have recognized that the lack of an affidavit may be overcome by other competent evidence in the record upon which the validity of the warrant may be judged. For example, if the face of the warrant reflects the fact that it was issued based upon the personal knowledge of the issuing magistrate or judge or has a complaint attached which sets forth in sworn form the facts upon which the allegation of the defendant's failure to appear is based, the warrant's validity may be judged without an available affidavit. See, e.g., McGrain v. Daugherty, 273 U.S. 135, 157, 47 S.Ct. 319, 71 L.Ed. 580 (1927) (courts "may order commitments without other proof than their own knowledge of the occurrence"); State v. Noble, 314 Or. 624, 842 P.2d 780 (1992); Kosanda v. State, 727 S.W.2d 783 (Tex. App.1987) (affidavit not required if facts supporting probable cause occur in presence of court).

The "personal knowledge" exception to the affidavit requirement recognizes the commonsense notion that there is no point in a judge executing an affidavit when that judge has...