NOT DESIGNATED FOR PERMANENT PUBLICATION
Appeal from the District Court for Lancaster County: Jodi Nelson, Judge.
Thomas R. Lamb, of Anderson, Creager & Wittstruck, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and George R. Love for appellee.
Irwin, Pirtle, and Bishop, Judges.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Jariel A. Pittman was convicted by the district court for Lancaster County of being in possession of a controlled substance and being a habitual criminal. As a result of his convictions, Pittman was sentenced to 10 to 20 years' imprisonment. Pittman appeals from his convictions and his sentence. On appeal, Pittman alleges that the district court erred in overruling his motion to suppress evidence obtained as a result of the execution of a search warrant; in finding sufficient evidence to support his convictions for possession of a controlled substance and for being a habitual criminal; and in imposing an excessive sentence.
Upon our review, we find no merit to Pittman's assertions on appeal. Accordingly, we affirm his convictions and sentence.
The State filed a criminal complaint charging Pittman with being in possession of a controlled substance pursuant to Neb. Rev. Stat. § 28-416(3) (Cum. Supp. 2012) and with being a habitual criminal pursuant to Neb. Rev. Stat. § 29-2221 (Reissue 2008). The possession charge stems from an incident which occurred in March 2012.
Evidence adduced at trial revealed that on the night of March 20, 2012, members of the Lincoln-Lancaster County narcotics task force executed a search warrant at an apartment building located at 1609 D Street in Lincoln, Nebraska. The task force entered apartment No. 10 and immediately observed Pittman and another individual rush toward the bathroom. Officers followed Pittman into the bathroom, where they observed him to be trying to dispose of items by flushing them down the toilet. Officers handcuffed Pittman and searched him. During the search of Pittman, a clear plastic baggie containing a white, rock-like substance was located in his right front pants pocket. This substance was later determined to be 5.21 grams of cocaine. In Pittman's left front pants pocket, a small baggie of marijuana was found. In addition, after removing Pittman from the bathroom, officers observed in the toilet a clear plastic baggie that they believed had contained narcotics and a metal pipe, which appeared to have been used to ingest narcotics.
After officers searched Pittman, he was taken to the police station for further questioning. During this questioning, Pittman did not deny that he had been in possession of cocaine. Rather, he explained that the cocaine was not his, but that approximately an hour prior to the search of the apartment, someone had given him the cocaine to hold. He did not provide any reason to explain why the person had asked him to hold the cocaine or why he chose to do so.
Prior to trial, Pittman filed a motion to suppress all of the evidence obtained as a result of the search warrant executed at 1609 D Street, apartment No. 10, including evidence of the cocaine found in his pants pocket. Pittman argued that the affidavit to support issuance of the search warrant was not sufficient and that, as a result, the search warrant was not valid. A hearing was held on the allegations in Pittman's motion to suppress. After the hearing, the district court overruled Pittman's motion, finding that "there was sufficient probable cause contained within the affidavit for the issuance of a search warrant."
At trial, Pittman did not testify or offer any other evidence in his defense. In fact, Pittman did not cross-examine the State's witnesses. Instead, Pittman repeatedly renewed his motion to suppress all of the State's evidence as a result of his belief that such evidence was seized pursuant to an invalid search warrant and should be suppressed. The district court overruled Pittman's objections and, ultimately, found Pittman guilty of being in possession of a controlled substance.
After the trial, the district court held a hearing to determine whether Pittman was a habitual criminal. At this hearing, the State offered three exhibits to prove that Pittman had been previously convicted of two felony offenses and that he had served a term of more than 1 year in prison for each of the convictions. The district court found Pittman to be a habitual criminal and sentenced him to 10 to 20 years' imprisonment.
Pittman appeals from his convictions and sentence here.
III. ASSIGNMENTS OF ERROR
On appeal, Pittman assigns four errors, which we have consolidated to three assigned errors for our review. First, Pittman alleges that the district court erred in overruling his motion to suppress evidence that was obtained as a result of the search warrant executed at 1609 D Street, apartment No. 10, on March 20, 2012. Next, Pittman alleges that there was insufficient evidence to support his convictions for being in possession of a controlled substance and being a habitual criminal. Finally, Pittman alleges that the district court erred in imposing an excessive sentence.
1. Search Warrant
Pittman alleges that the district court erred in overruling his motion to suppress all of the evidence obtained as a result of the search warrant executed at 1609 D Street, apartment No. 10, on March 20, 2012. Specifically, Pittman argues that the search warrant was invalid because the affidavit in support of the search warrant contained "material misrepresentations" and omissions and the affiant officer acted with reckless disregard for the truth. See brief for appellant at 14. Based upon our review of the record, we conclude that the district court did not err in overruling Pittman's motion to suppress and that Pittman's arguments to the contrary are without merit.
The possession of a controlled substance charge against Pittman was based on evidence seized, pursuant to a search warrant, during a March 20, 2012, search of 1609 D Street, apartment No. 10. During the execution of the search warrant, police officers searched Pittman and found 5.21 grams of cocaine in his pants pocket.
The affidavit in support of the search warrant to search 1609 D Street, apartment No. 10, was signed by Lincoln Police Investigator Timothy Cronin. Investigator Cronin has been a Lincoln police officer for approximately 12 years, and in March 2012, he was assigned to the Lincoln-Lancaster County narcotics task force. In the first paragraph of his affidavit, Investigator Cronin detailed his extensive training and background with narcotics investigations. The remainder of his lengthy affidavit describes the investigation that led up to the search of 1609 D Street, apartment No. 10.
Although we understand that the affidavit is extensive, we reprint much of the language contained within it in order to provide context to our analysis of Pittman's assertions regarding the sufficiency of that affidavit:
On 2-23-12 Investigator Sorensen and your affiant were in the area of 11th/E and observed a vehicle driving in the area. Investigators followed this vehicle and observed it to stop at numerous locations that are all currently being investigated for the sale of narcotics. After this vehicle left these locations [the occupants of the vehicle] were observed to pick up a[n] unknown [male individual] and then travel directly to the alley parking lot of 1609 D. Street. At that time the . . . driver [of the vehicle] and unknown [male] entered the rear of 1609 D. Street and left a few minutes later with the [unknown] male walking away and the [driver] returning to his car. Investigators continued to follow the car to 911 S. 11th Street w[h]ere [a passenger] exited the vehicle and was immediately contacted by Investigator Mayo. Investigator Mayo located .1 grams of crack cocaine on the ground where [the passenger] was contacted. During this same time Investigator Sorensen and your affiant continued to follow the vehicle and contacted it at 1100 W.C Street. As the vehicle parked [the driver] was contacted by your affiant. [The driver] was observed to cup his hand under his seat while Investigator Sorensen approached from the passenger side. [The driver] failed to respond to Investigators commands then drove his vehicle into our vehicle. He was then pulled out of his vehicle. Investigator Sorensen located .3 grams of crack cocaine directly where [the driver] had his hand placed in the vehicle.
On 2-28-12 a concerned citizen contacted your affiant and stated that suspicious activity has been occurring at 1609 D. Street . . . . They stated specifically that numerous individuals would arrive at the rear of 1609 D. Street and shout to a third story window for "Joe". An older [African American male] would then come down from the [southeast] corner third floor and allow the individuals into the complex. A short time later these individuals would leave. The concerned citizen stated this has occurred several times over the past few months. The majority of these contacts were in the evening hours.
On 3-6-12 Investigator Mayo and your affiant conducted surveillance at 1328 E. Street and observed 2 [unknown male individuals] leave and drive to the rear parking lot of 1609 D. Street. Both males entered the building and both left a few minutes later. They returned to 1328 E. Street where they were contacted by Investigator Mayo and your affiant as they parked their vehicle. Investigator Mayo contacted the passenger of the vehicle . . . who was observed to shove his right hand between the seat and the door. Once [the passenger] opened the door Investigator Mayo observed in plain view a white rock (.2 ...