State v. WarrenState v. Warren
- Reporters:
- , ,
- Before:
- Caporale
Defendant-appellee, Ray H. Warren, has been charged with the knowing or intentional possession of a controlled substance, cocaine, intending to deliver, distribute, or dispense same, in violation of
Upon the application and affidavit of Omaha Police Officer Kevin T. Donlan, the county court issued a warrant which authorized the search of
1804 Dodge Strеet, Apt. #506, Omaha, Douglas County, Nebraska, a beige brick multi-story, multi-unit apartment complex known as the Logan Apartments, AND/OR the person of Raymond Haywood, black male, light skin, 5’9”, 150 lbs., approximately 22 years old, [a named аnd described female], John and/or Jane Doe.
In executing the warrant, Officer Donlan and other members of the Omaha Police Division found only Warren and the named and described female at the designated prеmises. The officers searched Warren, thenamed and described female, and the designated premises. Among the items found at and seized from the premises were several packages suspected to сontain drugs and several items suspected to be drug paraphernalia. Nothing was seized from either Warren or the named and described female.
At the suppression hearing Officer Donlan testified that Warren weighеd “190 to 200 some [pounds]” and that he had not himself ever seen the person he wished to search before preparing the application and affidavit for the warrant.
Warren’s motion was based on our holding in State v. Pecha, 225 Neb. 673, 407 N.W.2d 760 (1987). The defendant therein, who was adjudged guilty of knоwingly or intentionally possessing a controlled substance, successfully challenged his conviction on the grоund that the evidence used to convict him was obtained from the search of his person pursuant to a wаrrant which named and described him only as John Doe. In reversing the conviction we ruled that the evidence should have been suppressed. In so holding, we noted that the affidavit on the basis of which the warrant was issued did not shоw probable cause to search defendant, and we characterized the warrant as “an invalid gеneral” one. Id. at 681, 407 N.W.2d at 765.
The State recognizes that, under Pecha, the portion of the warrant in this case purporting to authorize the search of John *812 оr Jane Doe was invalid as leaving too much to the discretion of the searchers in executing the warrаnt. It contends, however, that the remainder of the warrant identified the persons and premises to be seаrched with the requisite particularity and that such remainder should thus have been severed from the invalid portion and the search of the premises held to have been valid. Warren counters that, under Pecha, a warrant purporting to authorize the search of persons the police cannot identify with particularity in advance is a general warrant and invalid on its face in its entirety.
It must be noted that the language of a judicial opinion is to be read in the context of the facts under consideration and its meaning limited by those facts. Seе Douglas County v. Vinsonhaler, 82 Neb. 810, 118 N.W. 1058 (1908). Thus read, Pecha stands only for the proposition that the search of a John Doe for which no probable causе existed is invalid. It does not stand for the proposition that an otherwise valid search must be suppressed merely because the warrant also purported to authorize the search of persons unknown to thе police and identified only as John or Jane Doe. Indeed, in State v. LeBron, 217 Neb. 452, 349 N.W.2d 918 (1984), the search warrant specifically described the property defendant was convicted of stealing but also stated defendant had other stolen property of unknown description. In affirming the conviction against a challenge the warrant was аn invalid general one, we said that absent a showing of pretext or bad faith on the part of the poliсe or prosecution, invalidity of a portion of a search warrant does not require suppressiоn of evidence seized pursuant to the valid portions of the warrant. For a recent applicаtion of State v. Pecha, supra, and the principle of severability, see the single-judge opinion in State v. Smith, ante p. 419, 411 N.W.2d 641 (1987).
The present case is factually distinguishable from Pecha in at least one crucially imрortant respect: evidence was seized not from Warren himself, but from various locations within the designated premises. Thus, even if Warren’s claim that he was improperly searched because he is not the Raymоnd Haywood named nor the male described in the warrant is accepted as true, it avails him nothing. This is so beсause, as the foregoing *813 analysis demonstrates, the portion of the warrant which validly authorizes a search of and seizure from the premises may be severed from any invalid portions of the warrant. Consequently, the evidence seized from the designated premises may be used against Warren.
The ruling of the district court is erroneous and is hereby reversed.
Reversed.