State v. Williams

STATE OF NEBRASKA, APPELLEE, v. TOMMIE L. WILLIAMS, APPELLANT.

No. A-19-664.

NEBRASKA COURT OF APPEALS

August 4, 2020

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

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).

Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge. Affirmed.

Timothy S. Noerrlinger for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.

PIRTLE, RIEDMANN, and ARTERBURN, Judges.

ARTERBURN, Judge.

INTRODUCTION

Tommie L. Williams appeals from his conviction for possession of methamphetamine following a jury trial in the district court for Lancaster County. He challenges the court's order overruling his motion to suppress and asserts that his trial counsel rendered ineffective assistance. For the reasons that follow, we affirm the decision of the district court.

BACKGROUND

On August 16, 2018, the State charged Williams with three counts arising from an incident that occurred on or about July 21, 2018:

(1) Deliver or with intent to deliver a controlled substance, methamphetamine, a Class II felony, in violation of Neb. Rev. Stat. § 28-416(1)(2)(A) (Reissue 2016); (2) Possess firearm by a prohibited person, a Class ID felony, in violation of Neb. Rev. Stat. § 28-1206(1)(3)(B) (Reissue 2016); and

(3) Possess machine gun, short rifle, or shotgun, a Class IV felony, in violation of Neb. Rev. Stat. § 28-1203 (Reissue 2016).

In an affidavit for a search warrant that was later received by the court as an exhibit, Lincoln Police Officer Trevor Schmidt described the events that took place on July 21, 2018. Schmidt stated that he observed two people riding their bicycles in the alley behind 1516 North 27th Street, an address known to be associated with the use and sale of methamphetamine. Schmidt observed the bicyclists violating traffic laws and conducted a traffic stop, during which one of the bicyclists was identified as Eric Bulkowski. Bulkowski consented to a search of his person, and Schmidt identified a pipe used for smoking methamphetamine in Bulkowski's front left pants pocket. Bulkowski admitted that it was a meth pipe, and a subsequent analysis of a swab of the pipe identified the presence of methamphetamine. Bulkowski was arrested and transported to jail where he waived his Miranda rights and continued speaking with Schmidt.

Schmidt stated in the affidavit for a search warrant that Bulkowski told him that he waited at 1516 North 27th Street for approximately "20 minutes for 'Tim' to arrive for the purpose of purchasing methamphetamine." Bulkowski described "Tim" as a thin, bald-headed, black male, who was approximately 40 to 50 years old. Bulkowski purchased 0.2 grams worth of methamphetamine for $20 from "Tim," which amounted to "one chunk." He said that he had been purchasing 0.2 grams of methamphetamine from "Tim" at least once per day for approximately a month. Bulkowski melted the methamphetamine in his glass pipe and then left the residence.

Bulkowski said that he saw approximately one-eighth of an ounce of methamphetamine in a bag in the small coin pocket of "Tim's" pants on July 21, 2018. He said that he knew from previous meetings that "Tim" stored additional methamphetamine in a diabetic test strip container that usually sat in the open. Bulkowski also said that during his visits to purchase methamphetamine during the month, he had seen "Tim" possess many knives and two handguns, including one that was "an old western six shooter" that was approximately 12 inches long and one that was much smaller. Bulkowski said that he knew both the front and back doors to "Tim's" apartment were barricaded with steel beams.

Schmidt's affidavit states that he then consulted his Department's records management system and learned that Williams, a 53-year-old black male, lived in apartment No. 1 at 1516 North 27th Street. Schmidt stated in his affidavit that Department records, which were based on prior encounters with Williams, showed that he was known to be a source of methamphetamine, known to possess knives and firearms, and known to barricade his front and back doors with steel beams.

Based on the information contained in the affidavit, which was obtained from interviewing Bulkowski and reviewing Department records, Schmidt applied for the issuance of a search warrant for "1516 N. 27th St. #1." Schmidt stated that apartment No. 1 was on the main floor and had both front and back entrances. He outlined numerous items to be seized, including methamphetamine, drug paraphernalia, documentary evidence of the distribution of controlled substances, cell phones, and any proceeds attributable to the sale of controlled substances. Schmidtsought the issuance of a no-knock warrant to be executed with support from the Lincoln Police Department Swat Team.

On July 21, 2018, the county court for Lancaster County issued a search warrant in accordance with Schmidt's request. Schmidt executed the warrant of Williams' residence on the same day and inventoried the property seized. The evidence seized included a large mirror with methamphetamine residue, a diabetic test strip bottle with methamphetamine, scales, a marijuana pipe, a meth bong, a revolver, a shotgun, and ammunition.

On January 28, 2019, Williams filed a motion to suppress the evidence that was seized pursuant to the search warrant executed on July 21, 2018. Williams alleged that the facts provided were insufficient for the court to issue a search warrant, that Schmidt's affidavit and application for a search warrant did not provide probable cause for the issuance of a search warrant, that the scope of the search exceeded the scope authorized by the warrant, and that the search and seizure were unreasonable, unlawful, and violated Williams' constitutional protections.

The court held a hearing on Williams' motion to suppress on February 1, 2019. The State called Schmidt, and the court received as exhibit 1 Schmidt's affidavit for a search warrant, the search warrant itself, the search warrant return, and the inventory and receipt of seized property. Williams offered no evidence.

Schmidt testified at the suppression hearing that he completed the affidavit for a search warrant of Williams' residence after speaking with Bulkowski, who had purchased methamphetamine from Williams. Schmidt said that he did not "recall how in-depth" they looked into Bulkowski's background but that many of his statements were corroborated by reviewing Department records from prior contacts with Williams. Schmidt testified that Williams matched the physical description that Bulkowski provided of the man from whom he bought methamphetamine that day. He acknowledged, however, that Bulkowski referred to Williams as "Tim" even though his first name is Tommie. Schmidt testified that he believed Bulkowski responded to his questions truthfully because he was speaking against his own penal interests and because their records confirmed many of the details he provided. Records that identified Williams as possessing firearms and selling methamphetamine from that address were made within the year before Schmidt accessed them. Additionally, Schmidt said that he presented a photo of Williams that did not display his name or any other identifying information, and Bulkowski confirmed that the man in the photo was the man he knew as "Tim."

Schmidt described Williams' residence as being apartment No. 1 in a house that was divided into three apartments. Although Schmidt testified that he did not recall whether Bulkowski ever specifically identified "apartment number one," he said that Bulkowski described Williams' apartment sufficiently for it to be identified as apartment No. 1 in conjunction with existing Department reports. Schmidt said that he did not recall a "Tim" being listed as a resident of any of the other apartments according to the Department records. On cross-examination, Schmidt acknowledged that it was possible that other apartments in the house could have been the one to which Bulkowski referred.

After the court granted a search warrant for Williams' residence, Schmidt said that he and another officer first took Williams into custody before they knocked on his door. A woman removed the barricades from inside the residence, and Schmidt and other officers executed thesearch warrant around 6:30 p.m. on July 21, 2018, leaving a copy of the warrant. They observed methamphetamine in plain sight almost immediately upon entry.

Two guns were seized from Williams' residence: a shotgun cut down to a length of approximately 13 inches and "an old school or very old style revolver," according to Schmidt. Schmidt testified that the revolver they seized seemed to conform with Bulkowski's description while the sawed-off shotgun did not. Schmidt acknowledged that Bulkowski told them that the firearms were in Williams' bedroom, but they were actually found in the bathroom ceiling tiles. Schmidt also acknowledged on cross-examination that he "made an error" and "forgot to add the part about the weapons" to his application for a search warrant.

On March 19, 2019, the court overruled Williams' motion to suppress. In ruling from the bench, the court noted that a citizen informant who personally observed the commission of a crime is presumptively reliable and that probable cause is evaluated by the collective information known by investigators, including information obtained from an informant. The court found that the search warrant contained sufficient facts demonstrating Bulkowski's knowledge of Williams' criminal activity and referred to Bulkowski as a citizen informant whose information was subsequently established by independent investigation. The court further found that it was reasonable for officers to search places, including the ceiling tiles, where controlled substances and related items could be found and that such a search led to the...