State v. Flores ( 1994 )

Hastings, C.J.,

concurring.

I concur in the judgment of the court. However, I would have found the issuance of the search warrant to be proper. The supporting affidavit stated that the

[a]ffiant has received numerous intelligence reports from the Grand Island Police Department and Hall County Sheriff’s Office that a subject [known] as “Carpo” is heavily involved in the sale of cocaine. Intelligence information indicates this subject’s true identify [sic] to be Salomon Flores residing at the Blackstone Apartments, #317, Grand Island, Nebraska.

Observations of fellow officers of the government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number. State v. Huggins, 186 Neb. 704, 185 N.W.2d 849 (1971).

In addition, the affidavit states that “Ron York from the State Probation Office advised affiant Lisa Hanks [sic] resides at the Blackstone Apartments, #317, with an individual known as ‘Carpo’. York advised affiant Lisa Hanks (sic) had stated ‘Carpo’ sells cocaine from the apartment.” One of the ways in which reliability of an informant may be established is by showing in the affidavit that the informant has made a statement that is against his or her penal interest. State v. Utterback, 240 Neb. 981, 485 N.W.2d 760 (1992). Neb. Rev. Stat. § 29-2262(2)(h) (Cum. Supp. 1992) provides that when a court sentences an offender to probation, a court may require the offender as a condition of probation “[t]o refrain from frequenting unlawful or disreputable places or consorting with disreputable persons.” Knowingly living with a person whom the probationer believes to be unlawfully distributing drugs certainly qualifies as a violation of subsection (2)(h) above.

Nor was the information received by law enforcement officials from Lisa Hank inadmissible as being in violation of Neb. Rev. Stat. § 29-2262.01 (Reissue 1989). Hank was indeed on probation at the time of these events. However, § 29-2262.01 prohibits the use of evidence obtained from a person on probation only while he or she was “acting as an undercover agent or employee of any law enforcement agency.” Hank was neither.

In my view, the information set forth above was sufficient to support a “reasonable suspicion founded on articulable facts” within the meaning of State v. Utterback, 240 Neb. at 984, 485 N.W.2d at 766.

Boslaugh, J., and Grant, J., Retired, join in this concurrence.