Harry Stickelman, the defendant, and appellant herein, appeals to this court from his conviction by the District Court for Lincoln County, Nebraska, for possessing more than 1 pound of marijuana in violation of Neb. Rev. Stat. §28-416(5) (Reissue 1979), and his subsequent sentence by the court to 90 days’ imprisonment in the Lincoln County jail with credit granted for 22 days the defendant spent in jail following his arrest. The case was tried to the court pursuant to appellant’s waiver of trial by jury on November 7, 1979. We affirm.
His principal assignment of error on appeal to this court is that the District Court erred in overruling his motion to suppress evidence seized pursuant to a federal search warrant, which appellant contends was not issued pursuant to probablе cause to believe that the property described in the warrant was in the residence to be searched at the time the warrant was issued. He further contends that the magistrate who signed the federal search warrant was unable to make an independent determination that probable cause existed to believe that the evidence desсribed in the warrant was in the residence to be searched at the time the warrant was issued. He also assigns as error that the State failed to prove beyond a reasonable doubt at the trial that the appellant was guilty of possession of marijuana, and also that the evidence was insufficient *431 to establish that appellant was in control of the premises where the marijuana was seized. Finally, he contends that the District Court erred in admitting evidence at the trial, over appellant’s objection, with insufficient foundation for the admissibility of such evidence.
By way of factual background, it appears that on July 31, 1979, Agent William H. Petersen, Jr., of the Bureau of Alcohol, Tobacco and Firearms filed an affidavit in the U.S. Magistrate’s office in Omaha, Nebraska, for the purpose of obtaining a federal search warrant. In his affidavit, Petersen alleged that at 3:30 a.m. on July 25, 1979, gunshots were heard in the village of Brady, Nebraska. According to Lincoln County Deputy Sheriff Don Knudsen, who heard the shots, they sounded like gunfire from an automatic weapon and he identified the shots as such. Deputy Knudsen based his identification upon his 5 years’ experience in the Nebraska National Guard where he had handled automatic firearms in his capacity as an infantryman. The deputy described the shots as coming from the area in town in which the defendant’s mobile home was located.
During his investigation of the occurrence, Deputy Knudsen interviewed Mrs. Susie Hoaglund and Mrs. Janet Miesbauer, neighbors of the defendant. Both women informed Officer Knudsen that they had been awakened by the sound of gunfire which came from the direction of the Stickelman residence. They stated that the bursts had occurred in even, rapid succession of about “10 to 12 shots, in which each shot was fired ‘before the last one quit echoing.’” In addition, Officer Knudsen stated that he had been told by Delora Stickelman, the defendant’s ex-wife, that Stickelman was in possession of an “AR-16” automatic weapon. The defendant’s former mother-in-law, Ola Maxine Connelley, was also reported as stating that the defendant had an “Army-type weapon” at his residence.
*432 On July 29, 1979, the defendant was arrested after he barricaded himself insidе the house of his former father-in-law. At the time he was arrested, Stickelman was armed with a semi-automatic weapon, which was seized, but no automatic firearm was found at this time.
On July 30, 1979, Agent Petersen was contacted by Deputy Knudsen and Marvin Holscher of the Lincoln County Attorney’s office, in order to obtain a warrant to search the premises of a Champion mоbile home located on the west 75 feet of Lots 7 through 12, Block 19, in Brady, Lincoln County, Nebraska, for an automatic weapon and other firearms. Agent Petersen ran several checks on defendant’s criminal record and was advised that Stickelman had been convicted of a felony in 1977, for which he had been sentenced to 1 year in the Nebraska Penal and Correctional Complex; that as a convicted felon, the defendant had never applied for or been granted relief from disability as it pertains to felons possessing firearms. In this connection, see 26 U.S.C. § 5861(d); and also 18 U.S.C. § 922(h), which makes it unlawful for a person who has been convicted of a crime punishable by imprisonment for a term exceeding 1 yeаr to receive or possess an unregistered firearm.
On the basis of the statements and information set forth in Petersen’s affidavit, the magistrate issued the search warrant, and the police executed it on the same day. Entry to the mobile home was made by a key furnished by defendant’s ex-wife. Although no automatic weapon was found at the residence, the law enforcement officers found rounds of both live and spent ammunition of various calibers “laying all around the area in the living room.” The officers also found marijuana being cultivated in a bedroom, the walls and ceiling of which were lined with aluminum foil, and with plastic on the floor and grow lights hanging from the ceiling. In a spare bedroom, they found a large plastic bag containing approximately 5 pounds of marijuana, and also assorted pills and a scale. Ten growing *433 marijuana plants were also found in a garden outside the mobile home.
The rule is well established that, in evaluating the showing of probable cause necessary to support a search warrant, only the probability, and not a prima facie showing, of сriminal activity is the standard of probable cause.
Spinelli v. United States,
In the present case, the information in the affidavit for the search warrant contained not only the observations made by Deputy Knudsen, but also those made by the defendant’s ex-wife and neighbors. On the basis of this information, we believe it is reasonable to conclude that probable cause existed for the belief that the defendant was probably in possession of an automatic weapon or other firearms, and therefore in violation of the federal statutes which prohibit their possession by a convicted felon. In passing on the validity of a search warrant, this court has held that observations by fellow officers engaged in a common investigation are a reliable basis for a warrant and that probable cause is to be evaluated by the collective information of the police as reflected in the affidavit, and is not limited to the firsthand knowledge of the officer who executes the affidavit.
State v. Huggins,
The defendant contends, however, thаt the search warrant issued in this case should be suppressed because it was issued on the basis of a “misleading” affidavit. Specifically, the defendant alleges that the evidence presented at the District Court hearing on his motion to suppress was inaccurate and incomplete, such that the federal magistrate was prevented from making an independent determination as to the issue of probable cause. The defendant challenges the description given by his ex-wife of the weapon he possessed, which was referred to in the affidavit as an “AR-16” automatic weapon. At trial, his wife denied making this statement but admitted that the defendant had been in possession of an “AR-15” semi-automatic weapon. The defendant also challenges the description of the area of town from which Deputy Knudsen heard the gunshots, and claims that the description made was inconsistent with the location of his residence.
In
Franks v. Delaware,
In discussing the defendant’s burden of proof, the Supreme Court in Franks v. Delaware, supra at 171, stated: “There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the аffiant, not of any nongovernmental informant.” (Emphasis supplied.)
The record in this case establishes that on November 6, 1979, a hearing was held before the District Court on the defendant’s motion to suppress the evidence seized pursuant to the federal search warrant. It is clear that Stickelman had the burden of establishing the falsehood of the affidavit at the hеaring. A perusal of the record of the hearing held in this case makes it clear that the defendant had failed to do so. The state *436 ments in the affidavit which the defendant challenged were not those made by the affiant, Agent Petersen, but were those of Stickelman’s ex-wife and Deputy Knudsen. The defendant also failed to allege or establish that the challеnged information contained in the affidavit was “deliberately false or made in reckless disregard of the truth.” Defendant’s contention in his brief that the affidavit contained misleading inaccuracies or omissions is not supported under the standards set forth in Franks v. Delaware, supra. Finally, we note that in denying the defendant’s pretrial motion to suppress, the trial court specifically found that the inaccuracies contained in Peterson’s affidavit were not material and held that even without them there was still ample information to support the issuance of the search warrant. The court was correct in overruling the defendant’s motion to suppress the evidence and in finding that probable cause existed for the issuance of the federal search warrant.
The defendant also contends that the evidence introduced at trial was insufficient to support the trial court’s finding that he was in possession of the marijuana seized from the mobile home. Stickelman maintains that the testimony introduced at trial did not establish that he was in control of the premises where the marijuana was seized. In support of this proposition, the defendant cites
State v. Klutts,
In the present case, however, testimony of three different sources clearly establishes that the premises searched was the residence of the defendant. First, the defendant’s ex-wife, Delora Stickelman, testified that although she did not live with the defendant, she knew that he resided in a Champion mobile home as described in the warrant and as the residence which was searched on July 31, 1979. In addition, she testified that she had provided the law enforcement officers with the key with which they were able to enter the mobile home. Second, Deputy Knudsen and the defendant’s neighbors further testified that the trailer searched was the residence of the defendant. Finally, Officer James N. Avery of the Nebraska State Patrol testified that he participated in the search of the premises and had observed telephone bills and other mail addressed to the defendant.
The evidence in this case is more than sufficient to establish the defendant’s actual or constructive possession of the marijuana seized at the mobile home. In determining the sufficiency of evidence necessary to sustain a conviction, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the trier of fact and the verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.
State v. Carter,
As his final allegation of error, the defendant claims that the trial court erred in admitting certain exhibits at trial because the State failed to еstablish a complete chain of custody of the marijuana. The defendant cites our decision in
State v. Bobo,
In the present case, the facts are readily distinguishable from those set out in State v. Bobo. The testimоny reveals that the marijuana was seized by Agent Petersen who took the exhibits to his motel room in North Platte, Nebraska. The defendant challenges the fact that Agent Petersen kept the evidence in his locked motel room when he left to eat a meal. On August 1, 1979, Agent Petersen delivered the exhibits to Investigators Avery and Ball. However, at trial the two investigators disаgreed on the date the exchange was made. Investigator Avery testified that he received the exhibits on August 1, 1979. In any event, the exhibits were then turned over to the State Patrol laboratory, whose chemists tested the substance on August 16,1979. It appears from the evidence that transfers of the exhibits from Agent Petersen to Investigator Avery, thence to Investigator Ball, аnd then to the chemists all took place at the State Patrol office in North Platte, Nebraska.
The rule is well established that a trial court’s determination of the admissibility of physical evidence will not ordinarily be overturned except for a clear
*439
abuse of discretion. See,
State v. Torrence,
The judgment of the District Court must be affirmed.
Affirmed.