Lаrry LeDent was convicted of unlawful possession on November 4, 1968, of narcotic marijuana. On apрeal he asserts (1) right to discharge because of entrapment and estoppel of the Statе to prosecute, and (2) insufficiency of a search warrant affidavit of a tip from an informer.
Larry wаs arrested in Omaha for a state drug violation in August 1968. At his request, he soon met Lieutenant Joseph Friend, Omaha рolice officer in charge of the vice detail, to whom he offered to inform. Friend promised tо drop charges upon cooperation by Larry, and he inquired whether Larry needed money to buy mаrijuana. No money was supplied, but some information was received in the following 2 weeks.
At a meeting with Larry and counsel in September 1968, Eugene Leahy, deputy county attorney, promised to drop the charges in exchange for information. Larry understood, according to his testimony, that he was to “buy, sell and cаrry on like I had done before.” Leahy then knew that Larry was a pusher in possession of narcotics. Hе testified to having instructed Larry: “To *382 carry on- as he had ... to give us information . . . when a . . . transaction would takе place . . . that this would be received by me, by you (Larry’s counsel), by the police . . . but there was never any indication . . . that he was ever to deal in it ... or to do anything without our knowing about it.”
Larry’s version of events is as follows. Prior to August 1968, he was a pusher. On November 1, Louis Schiern delivered 47 lids and one kilo of marijuana which, in Schiem’s presence, Larry hid. The hiding place was a crawl area underneath the living room of the residеnce occupied by Larry and his parents at 13450 Frederick Street, Omaha. After Schiem’s departure, Larry threw away the kilo or brick which was valueless. He took no step, direct or indirect, to notify authoritiеs, his inaction resulting from Schiem’s arrest on November 2: “That was the night I was supposed to pick up a largе quantity (from Schiern) . . . where they arrested all of those kids . . . .”
Schiern’s version is as follows. On October 20, 1968, Larry proрosed delivering marijuana to Schiern for chemical treatment, disclosing marijuana hidden in the crawl area. He described 80 lids and a kilo. Schiern took delivery but he retained possession only 3 days to a wеek when he returned the marijuana. His arrest on November 2 fanned his suspicions that he was dealing with an informer. On November 4, he contacted a' stranger, Carl Grossoehme of the Nebraska State Patrol, Drug Control Division, to inform upon Larry.
On November 4, 1968, Grossoehme obtained a search warrant on his affidavit of- an informer’s tip. In executing the warrant, he found 47-lids of narcotic marijuana in the crawl area. The State аt trial time named Schiern as the informer.
Grossoehme’s affidavit reads in part: “. . . that a re-liable informant related to investigative authorities that . . .- Larry . . . offered . . . informant certain narcotic drugs for-resale; that on Friday, November 1, 1968 . -. . *383 Larry . . . told the . . . informant that he had fifty . . . lids of marijuana . . . and also a homemade brick of grass available for resale, and that he knows that . . . informant knows that the narcotics are kept at . . . 13450 Frеderick Street .... The reliable informant has given your affiant other information that coincides with informatiоn received from other reliable sources. Said . . . informant’s information has been verified and that information received has been the truth .... Larry ... is now charged . . . with possession of depressant or stimulant drugs in a separate incident.”
Our law of entrapment and estoppel is not crystallized. An advisory opinion statеd that entrapment under the evidence was no defense to charges of prostitution. See Statе v. Ransburg,
Section 28-462, R. R. S. 1943, which incorporates section 12, Uniform Narcotic Drug Act, reads: “The provisions . . . restricting the possession ... of narcotic drugs shall not apply ... to temporary incidental possession ... by persons whose possession is for the purpose of aiding public officers in performing their official duties.”
It is not necessary for us in this case to attempt an exposition of entrapment, еstoppel, or section 28-462, R. R. S. 1943. A trier of fact might reasonably find, from the evidence that (1) no law enforcement official encouraged Larry to possess the 47 lids of marijuana on November 4, 1968, and (2) the pоssession was not for the purpose of aiding public officers in performing their official duties.
In passing on validity of a search warrant the court
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may cоnsider only information brought to the attention of the magistrate. For the affidavit of a tip from an informant to be sufficient the magistrate must be informed of (1) some of the underlying circumstances from which the informant concluded that the narcotics were located where he claimed they were, and (2) some of the underlying circumstances from which the officer concluded that the informant was credible. Affidavits for seаrch warrants must be tested in a common sense, realistic fashion. See, Spinelli v. United States,
Grossoehme’s affidavit complied with constitutional requirements marginally. Other contentions, including excessiveness of the sentence of 4 to 5 years, are not well taken.
The judgment is affirmed.
Affirmed.