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Law School Case Brief

State v. Utterback - 240 Neb. 981, 485 N.W.2d 760 (1992)

Rule:

When a search warrant is obtained on the strength of an informant's information, the affidavit in support of the issuance of the search warrant must (1) set forth facts demonstrating the basis of the informant's knowledge of criminal activity and (2) establish the informant's credibility, or the informant's credibility must be established in the affidavit through a police officer's independent investigation. The affidavit must affirmatively set forth the circumstances from which the status of the informant can reasonably be inferred.

Facts:

Defendant was arrested for possession with intent to manufacture, distribute, deliver, or dispense marijuana after police executed a search warrant at defendant's home and found several bags of marijuana and other drug paraphernalia. The search warrant was issued upon the affidavit of a confidential informant. At trial, defendant challenged the sufficient and validity of the affidavit and urged suppression of the evidence seized from his home. The trial court refused to suppress the evidence, and defendant was convicted.

Issue:

Was the affidavit of confidential informant sufficient to determine that there is probable cause for the issuance of a warrant?

Answer:

No.

Conclusion:

The court reversed the ruling of the trial court and held that for a confidential source's information to be credited with making a probable cause determination for the issuance of a warrant, the source had to have been trustworthy and the accusation of criminal activity had to have been made on the basis of information obtained in a reliable way. This test was not met here because the informant had not given reliable information to the police in the past, he was not a citizen informant, he had not made a statement against penal interest, and the police did not establish the informant's reliability through an independent investigation.

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