State v. Kruse , 303 Neb. 799 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/16/2019 12:06 AM CDT
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. KRUSE
Cite as 303 Neb. 799
State of Nebraska, appellee, v.
Steven C. K ruse, appellant.
___ N.W.2d ___
Filed July 26, 2019. No. S-18-1011.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error. But whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
2. Search and Seizure: Judgments: Appeal and Error. Application of
the good faith exception to the exclusionary rule is a question of law. On
a question of law, an appellate court reaches a conclusion independent of
the court below.
3. Search Warrants: Police Officers and Sheriffs. When a search war-
rant has been issued, the applicability of the good faith exception turns
on whether the officers acted in objectively reasonable good faith in
reliance on the warrant.
4. Search Warrants: Affidavits: Police Officers and Sheriffs: Appeal
and Error. In assessing an officer’s good faith in conducting a search
under the warrant, a reviewing court must look to the totality of the cir-
cumstances surrounding the issuance of the warrant, including informa-
tion not contained within the four corners of the affidavit.
5. Motions to Suppress: Search Warrants: Affidavits: Police Officers
and Sheriffs: Evidence. Under the good faith exception to the exclu-
sionary rule, evidence may be suppressed if (1) the magistrate or judge
in issuing a warrant was misled by information in an affidavit that
the affiant knew was false or would have known was false except for
his or her reckless disregard of the truth, (2) the issuing magistrate
wholly abandoned his or her judicial role, (3) the warrant is based on
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STATE v. KRUSE
Cite as 303 Neb. 799
an affidavit so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable, or (4) the warrant is so
facially deficient that the executing officer cannot reasonably presume
it to be valid.
6. Appeal and Error. As a general rule, a Nebraska appellate court does
not consider an argument or theory raised for the first time on appeal.
7. Judgments: Records: Appeal and Error. Where the record adequately
demonstrates that the decision of a trial court is correct, although such
correctness is based on a ground or reason different from that articulated
by the trial court, an appellate court will affirm.
8. Constitutional Law: Search and Seizure: Proof. The State has the
burden of showing the good faith exception applies to an otherwise
unconstitutional search.
9. Search and Seizure: Police Officers and Sheriffs. The good faith
inquiry is confined to the objectively ascertainable question whether a
reasonably well-trained officer would have known that the search was
illegal despite a magistrate’s authorization.
10. Police Officers and Sheriffs: Presumptions. Officers are assumed to
have a reasonable knowledge of what the law prohibits.
11. Search and Seizure: Probable Cause: Proof: Records: Appeal and
Error. The inquiry into whether the good faith exception applies nor-
mally involves an examination of the same facts as the probable cause
inquiry, and thus in the vast majority of cases, an appellate court will
be able to determine whether the State has met its burden on the exist-
ing record.
12. Search Warrants: Affidavits: Police Officers and Sheriffs: Probable
Cause: Appeal and Error. When evaluating whether a warrant was
based on an affidavit so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable, an appellate court
should address whether the officer, considered as a police officer with
a reasonable knowledge of what the law prohibits, acted in objectively
reasonable good faith in relying on the warrant.
Appeal from the District Court for Seward County, James C.
Stecker, Judge, on appeal thereto from the County Court for
Seward County, C. Jo Petersen, Judge. Judgment of District
Court affirmed.
Gregory C. Damman, of Blevens & Damman, for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
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303 Nebraska R eports
STATE v. KRUSE
Cite as 303 Neb. 799
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
After a stipulated bench trial before the county court, Steven
C. Kruse was convicted of driving under the influence with
a blood alcohol concentration of .15 or higher, first offense.
Kruse appealed to the district court, assigning the county court
erred in overruling his motion to suppress the blood test and
arguing the affidavit supporting the warrant for the blood draw
was insufficient to support a finding of probable cause. The
district court affirmed the conviction, and Kruse now appeals
to this court. We affirm.
I. BACKGROUND
On August 31, 2017, at 5:39 p.m., Seward police officers
Chase Parmer and Bryce Johnson were dispatched to the scene
of an injury accident in Seward, Nebraska. They arrived at the
scene about 2 minutes later and observed two severely damaged
vehicles: a 2002 Hyundai Sonata and a 1999 Mercedes Benz.
Parmer observed a man, later identified as Kruse, slumped over
in the driver’s seat of the Mercedes Benz. The officer’s body
camera depicts this as well. Kruse was subsequently taken via
ambulance to receive medical attention and was not able to
submit to either standardized field sobriety testing or a prelimi-
nary breath test at the scene.
Based on information learned from the accident scene,
Parmer executed an affidavit seeking a search warrant to obtain
a sample of Kruse’s blood. Parmer was identified as the affi-
ant only by his signature. Parmer averred that a search warrant
was being requested for Kruse’s blood because Kruse had been
involved in an “injury vehicle accident” and was suspected of
committing the crime of driving under the influence. Parmer
averred that the alcoholic content of blood will drop, on aver-
age, at a rate of “0.015 per hour” and for that reason, blood
samples are best taken at or near the time of arrest. In support
of the warrant, the affidavit recited the following facts:
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303 Nebraska R eports
STATE v. KRUSE
Cite as 303 Neb. 799
On August 31, 2017, your affiant was on duty for the
Seward Police Department, working the 1100-2100 hour
shift. At approximately 1741 hours, your affiant was dis-
patched to the area of 8th and Jackson Street in Seward,
Seward County, Nebraska, in response to an injury vehicle
accident that was reported. Law Enforcement approached
the vehicle and got an odor of an alcoholic beverage
emitting from his person and inside the vehicle. Rescue
personnel who were tending to Kruse also informed Law
Enforcement that they detected an odor of alcohol emit-
ting from his person.
Upon contact with Kruse, your affiant observed Kruse
to be incoherent and unable to submit to standardized
field sobriety tests or a preliminary breath test since he
was currently being treated by medical personnel on
scene and was subsequently transported to the hospital for
further evaluation.
The county court issued the search warrant, after which
Parmer and Johnson went to the hospital where Kruse was
still being treated for his injuries. Kruse was asked to submit
to a preliminary breath test, and he agreed. That test returned
a result greater than .15 grams of alcohol per 210 milliliters
of breath. Parmer and Johnson then served the search warrant
on Kruse, and two vials of his blood were drawn at 8 p.m.
Testing showed Kruse’s blood alcohol level was .168, over
twice the legal limit. Once Kruse was medically released, he
was arrested for driving under the influence.
1. County Court Proceedings
Subsequently, a complaint was filed charging Kruse with
one count of driving under the influence, .15 or over, a
Class W misdemeanor. Kruse pled not guilty and moved to
suppress all evidence seized as a result of the search warrant.
His motion to suppress challenged the validity of the warrant,
alleging it was “issued on the basis of an affidavit that failed
to establish probable cause that [Kruse] was engaged in crimi-
nal activity.” At the suppression hearing, the search warrant
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and attached affidavit were received into evidence, but no
testimony was offered.
In overruling the motion to suppress, the county court noted
the affidavit was “poorly written in many aspects,” but found
that when “reviewed as a whole,” the affidavit was never-
theless sufficient to establish probable cause that Kruse was
operating a motor vehicle while under the influence of alco-
hol. The county court expressly rejected Kruse’s arguments
that the affidavit was insufficient because: (1) It did not suf-
ficiently identify the affiant; (2) it did not sufficiently identify
the person to be searched; (3) it did not sufficiently identify
the vehicle as a motor vehicle; (4) it did not sufficiently iden-
tify the time or location of any motor vehicle accident; and
(5) it did not sufficiently identify Kruse as the driver of a
motor vehicle.
The county court’s order did not reference the good faith
exception recognized by the U.S. Supreme Court in United
States v. Leon.1 Leon held that even if the affidavit support-
ing the warrant is insufficient, evidence seized pursuant to the
warrant need not be suppressed if officers acted in objectively
reasonable good faith in reliance upon the warrant.2
Thereafter, the parties held a trial on stipulated facts. Exhibits
were received pursuant to the stipulation, and Kruse renewed
his motion to suppress. In an order entered April 17, 2018, the
county court overruled the renewed motion to suppress and
found Kruse guilty of driving under the influence with a blood
alcohol concentration of .15 or higher, first offense. Kruse was
sentenced to 9 months’ probation and his operator’s license
was revoked for 1 year.
2. A ppeal to District Court
Kruse appealed to the district court, assigning only that
the county court erred in overruling his motion to suppress.
1
United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677
(1984).
2
Id.
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Cite as 303 Neb. 799
Before the district court, Kruse argued the affidavit was
insufficient to support a finding of probable cause because it
lacked (1) information regarding the identity of the affiant, (2)
information regarding the affiant’s training and experience, (3)
information that the referenced accident occurred on a high-
way or private property open to public access, (4) specificity
as to the nature of the injury accident, (5) the identity of the
officer who approached and smelled the odor of alcohol, (6)
the identity of the person who smelled of alcohol, (7) facts
showing that anyone was driving a motor vehicle, (8) facts
showing the time of the contact, and (9) facts showing that
Kruse was driving.
The court addressed each of these grounds individually, and
found none had merit. The court acknowledged the affidavit
was “thin on detail,” but it concluded, applying a totality of
the circumstances test,3 that the affidavit supported a finding of
probable cause. Alternatively, the district court held the Leon
good faith exception applied, because the officers acted reason-
ably in relying on the warrant.
Kruse timely appealed the district court’s affirmance, and we
moved the case to our docket on our own motion.
II. ASSIGNMENTS OF ERROR
Kruse assigns, renumbered and restated, that the district
court erred in (1) finding the affidavit was sufficient to support
probable cause and (2) applying the Leon good faith exception
to the search warrant requirement.
III. STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.4
Regarding historical facts, an appellate court reviews the trial
3
See State v. Hildago, 296 Neb. 912, 896 N.W.2d 148 (2017).
4
Id.
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court’s findings for clear error.5 But whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination.6
[2] Application of the good faith exception to the exclu-
sionary rule is a question of law.7 On a question of law,
an appellate court reaches a conclusion independent of the
court below.8
IV. ANALYSIS
Kruse argues that several deficiencies in Parmer’s affidavit
rendered it insufficient to support a finding of probable cause.
These are the same deficiencies he argued to both the county
and district courts. When reviewing the affidavit, the county
court remarked that it was “poorly written in many aspects,”
and the district court agreed that it was “thin on detail.” We
agree with those characterizations. But we do not engage in a
detailed discussion of whether the affidavit was sufficient to
support a finding of probable cause,9 because we conclude that,
even if the affidavit was deficient, the district court properly
applied the Leon good faith exception.10
1. Good Faith Exception
Kruse argues the evidence should be suppressed because
it was obtained in violation of the Fourth Amendment. But
the Fourth Amendment does not expressly preclude the use
5
Id.
6
Id.
7
State v. Hatfield, 300 Neb. 152, 912 N.W.2d 731 (2018).
8
Id.
9
See Carey v. City of Hastings, 287 Neb. 1, 11, 840 N.W.2d 868, 876
(2013) (“[a]n appellate court is not obligated to engage in an analysis that
is not necessary to adjudicate the case and controversy before it”).
10
See State v. Hill, 288 Neb. 767, 851 N.W.2d 670 (2014) (recognizing
court can analyze good faith exception before analyzing whether Fourth
Amendment violated).
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of evidence obtained in violation of its commands.11 Thus,
the exclusion of evidence obtained in violation of the Fourth
Amendment is “‘not a personal constitutional right.’”12 Rather,
the exclusionary rule operates as a judicially created rem-
edy designed to safeguard Fourth Amendment rights generally
through its deterrent effect.13
Because of the deterrent purpose of the exclusionary rule, the
U.S. Supreme Court has recognized a number of circumstances
in which the rule does not apply. In Leon, the Court reasoned
the exclusionary rule is designed to deter police misconduct,
rather than to punish the errors of judges and magistrates, and
thus concluded a good faith exception to the exclusionary rule
should apply when police officers act in objectively reasonable
good faith in reliance upon a search warrant.14 The Court has
subsequently held the good faith exception also applies when
police conduct a search in reasonable reliance on a subse-
quently invalidated statute,15 when police conduct a search in
reasonable reliance on binding appellate precedent,16 and when
police reasonably rely on erroneous information in a database
maintained by judicial employees.17
[3-5] In a case such as this where a warrant was issued,
the applicability of the good faith exception turns on whether
the officers acted in objectively reasonable good faith in reli-
ance on the warrant. In assessing an officer’s good faith in
11
State v. Hoerle, 297 Neb. 840, 901 N.W.2d 327 (2017).
12
Davis v. United States, 564 U.S. 229, 236, 131 S. Ct. 2419, 180 L. Ed. 2d
285 (2011), quoting Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L.
Ed. 2d 1067 (1976).
13
Hoerle, supra note 11.
14
Leon, supra note 1; State v. Tompkins, 272 Neb. 547, 723 N.W.2d 344
(2006), modified on denial of rehearing 272 Neb. 865, 727 N.W.2d 423
(2007).
15
Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987).
16
Davis, supra note 12.
17
Arizona v. Evans, 514 U.S. 1, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995).
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conducting a search under the warrant, a reviewing court must
look to the totality of the circumstances surrounding the issu-
ance of the warrant, including information not contained within
the four corners of the affidavit.18 Evidence may be suppressed
if (1) the magistrate or judge in issuing a warrant was misled
by information in an affidavit that the affiant knew was false
or would have known was false except for his or her reckless
disregard of the truth, (2) the issuing magistrate wholly aban-
doned his or her judicial role, (3) the warrant is based on an
affidavit so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable, or (4) the
warrant is so facially deficient that the executing officer cannot
reasonably presume it to be valid.19
Kruse argues that the good faith exception should not apply
in this case for two reasons. First, he contends the State did
not raise the good faith exception before the county court and
it was error for the district court to consider the exception for
the first time on appeal.20 Second, he contends the good faith
exception does not apply to the facts of this case, because
the warrant was based on an affidavit so lacking in indicia
of probable cause as to render official belief in its existence
entirely unreasonable. Notably, Kruse does not argue that
any issues of fact exist as to whether the exception applies,
but instead limits his arguments to the stipulated evidence in
the record.
2. R aising Good Faith on A ppeal
We first address Kruse’s argument that the district court
erred in considering the good faith exception for the first time
18
See Tompkins, supra note 14.
19
Id.
20
See, In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018);
State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015) (appellate courts
generally do not consider arguments and theories raised for first time on
appeal).
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on appeal. As noted, the county court was the trial court in this
proceeding, and the district court was acting as an intermediary
appellate court. As a general rule, an appellate court will not
consider an argument or theory that is raised for the first time
on appeal.21
Our record does not allow us to conclusively determine
whether Kruse is correct that the good faith exception was
not argued before the county court. The parties presented their
arguments to the county court in briefs, and those briefs are not
in our record. However, Kruse conceded during oral argument
before this court that the issue of good faith was raised by the
State before the district court sitting as an appellate court.
We thus assume the first time the Leon good faith exception
was raised in this case was while it was pending before the dis-
trict court on appeal. And we consider the question presented
to be whether it was proper for the district court, under those
circumstances, to consider and apply the exception.
(a) State v. Tompkins
Kruse argues the district court erred in considering the good
faith argument when it was not raised to the trial court. He
relies on State v. Tompkins,22 in which we considered whether
it was appropriate for the Nebraska Court of Appeals to con-
sider, sua sponte, whether the good faith exception applied.
In Tompkins, the defendant argued the affidavit used to obtain
a search warrant lacked sufficient probable cause. The State
disagreed, but did not raise the good faith exception to the dis-
trict court. The district court found the affidavit was sufficient,
and the defendant appealed. The Court of Appeals found the
affidavit was insufficient, but then, on its own, considered and
applied the good faith exception even though the State had not
raised it on appeal. On further review, we held this was error.
We framed the question as “whether an appellate court can
21
Id.
22
Tompkins, supra note 14.
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reach the Leon good faith exception without the State’s having
raised the issue,” and we held, for “policy reasons,” that when
the State fails to assert the good faith exception on appeal, it
waives it.23
We reasoned in Tompkins that when the State fails to raise
the Leon good faith exception on appeal, the defendant is
denied an opportunity to argue against its application. In assert-
ing this rationale, we generally acknowledged that “requiring
the State to raise the good faith issue at the appellate level does
not place an onerous burden on the State,” because “the inquiry
into good faith normally involves an examination of the same
facts as the probable cause inquiry,” and thus the State needs to
“do little more than assert good faith to have it considered by
the appellate court.”24 But we nevertheless found the defendant
should have an opportunity to argue against the application of
the exception, and he or she is prevented from doing so if the
court raises the issue sua sponte.25
Our subsequent cases have recognized that the holding in
Tompkins was narrow and only prevents an appellate court
from raising the good faith exception on its own motion. In
State v. Nielsen,26 the defendant relied on Tompkins and argued
the State could not argue the good faith exception on appeal,
because it had not raised the argument to the trial court. We
rejected this argument by noting that the record showed the
State had raised the exception to the trial court. We then
explained in dicta:
Although we do not reach the State’s argument that
raising good faith for the first time on appeal is sufficient,
[the defendant’s] contrary premise seems unconvincing.
Our decision in State v. Tompkins declined to answer
the precise question. We recognize that the State has the
23
Id. at 548-49, 723 N.W.2d at 346.
24
Id. at 553, 723 N.W.23d 349.
25
See id.
26
State v. Nielsen, 301 Neb. 88, 917 N.W.2d 159 (2018).
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burden of showing that the good faith exception applies.
In Tompkins, we stressed that an appellate court on its
own motion cannot consider the good faith exception. .
. . But we also said that “at the appellate level, the State
has ample opportunity to raise the Leon good faith excep-
tion.” This would suggest that in order for an appellate
court to consider the good faith exception, the State can
raise it either at the trial court or on appeal.27
In State v. Henderson,28 we again emphasized the narrow
holding in Tompkins. In Henderson, the defendant argued his
appellate counsel was ineffective for not arguing that Tompkins
prevented the State from arguing the good faith exception for
the first time on his direct appeal. We found the record did not
factually support the defendant’s assertion, because his own
counsel had argued against the applicability of the good faith
exception at trial. And although we did not reach the issue
argued by the defendant, we again noted that Tompkins “does
not answer the question of whether the State may raise the
good faith exception for the first time on appeal.”29
Because the record before us does not show whether the
good faith argument was raised to the trial court, but does
show it was raised to the appellate court, we must determine
whether, in this case, it was proper for the appellate court to
consider the State’s argument that the good faith exception
applies. In doing so, we necessarily address issues not consid-
ered by Tompkins.
(b) Existing Record Is Sufficient
to Determine Good Faith
[6,7] We also do so in light of well-recognized propositions
of law. As a general rule, a Nebraska appellate court does
not consider an argument or theory raised for the first time
27
Id. at 93, 917 N.W.2d at 163, quoting Tompkins, supra note 14.
28
State v. Henderson, 301 Neb. 633, 920 N.W.2d 246 (2018).
29
Id. at 659, 920 N.W.2d at 267.
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on appeal.30 This is primarily so because a trial court cannot
commit error regarding an issue that was never presented to it
or submitted for its disposition.31 At the same time, however,
where the record adequately demonstrates that the decision of
a trial court is correct, although such correctness is based on
a ground or reason different from that articulated by the trial
court, an appellate court will affirm.32
[8-10] The State has the burden of showing the good faith
exception applies to an otherwise unconstitutional search.33 We
have said that the good faith inquiry is confined to the objec-
tively ascertainable question whether a reasonably well-trained
officer would have known that the search was illegal despite
a magistrate’s authorization.34 Officers are assumed to have a
reasonable knowledge of what the law prohibits.35 In assessing
the good faith of an officer conducting a search warrant, an
appellate court must look to the totality of the circumstances
surrounding the issuance of the warrant, including information
not contained within the four corners of the affidavit.36
[11] As we explained in Tompkins, the inquiry into whether
the good faith exception applies “normally involves an exami-
nation of the same facts as the probable cause inquiry,”37 and
thus in the vast majority of cases, an appellate court will be
able to determine whether the State has met its burden on the
existing record. This is one of those cases. As noted, although
Kruse argues the good faith exception does not apply to this
case, he does not argue that any issues of fact exist as to
30
See Ortega, supra note 20.
31
See State v. Simnick, 279 Neb. 499, 779 N.W.2d 335 (2010).
32
See State v. Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005).
33
See Nielsen, supra note 26.
34
State v. Henderson, 289 Neb. 271, 854 N.W.2d 616 (2014).
35
Id.
36
Id.
37
Tompkins, supra note 14, 272 Neb. at 553, 723 N.W.2d at 349.
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whether the exception applies, but instead limits his arguments
to the proved or admitted facts in the record.
Under similar circumstances, other jurisdictions have found
that the applicability of the good faith exception recognized
in Leon and its progeny may be raised for the first time on
direct appeal. In United States v. Sager,38 a federal district
court reversed the convictions of two defendants, reasoning
the evidence used against them was seized pursuant to a war-
rant based on an insufficient affidavit, and remanded the mat-
ter for a new trial. Shortly thereafter, the U.S. Supreme Court
decided Leon, and the government petitioned for rehearing.
Upon granting rehearing, the Eighth Circuit found Leon was
the applicable law, and reasoned it could determine whether
the good faith exception announced in Leon applied without
conducting further proceedings. In doing so, the Eighth Circuit
expressly reasoned that Leon involves issues of objective rea-
sonableness, not subjective good faith, and further found that
all the facts necessary to such a determination had been “fully
ventilated.”39 It also emphasized that the defendants did not
“suggest any new fact relevant to [the analysis] that is not
already in the record.”40
In U.S. v. Gomez 41 a defendant contended evidence seized as
a result of a traffic stop should have been suppressed. The dis-
trict court denied his motion, relying on U.S. v. Harrison.42 On
appeal, the Second Circuit found the U.S. Supreme Court had
abrogated Harrison in Rodriguez v. U.S.43 and that the district
court should have applied Rodriguez and found the stop was
unconstitutional. But it allowed the government to raise the
38
United States v. Sager, 743 F.2d 1261 (8th Cir. 1984).
39
Id. at 1265.
40
Id.
41
U.S. v. Gomez, 877 F.3d 76 (2d Cir. 2017).
42
U.S. v. Harrison, 606 F.3d 42 (2d Cir. 2010).
43
Rodriguez v. U.S., ___ U.S. ___, 135 S. Ct. 1609, 191 L. Ed. 2d 492
(2015).
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good faith exception on appeal, in part because “‘the argument
presents a question of law and there is no need for additional
fact-finding.’”44
In State v. Schmidt,45 the defendant moved to suppress the
results of a warrantless blood test and the trial court denied
his motion. While the case was pending on appeal, the U.S.
Supreme Court held in Birchfield v. North Dakota 46 that the
Fourth Amendment does not permit warrantless blood tests.
The State then sought to assert the applicability of the good
faith exception for the first time on appeal. The Kansas Court
of Appeals noted the defendant had not pointed to any dis-
puted facts or made any argument why the good faith excep-
tion could not be addressed on direct appeal. The court thus
held the State’s good faith argument could be invoked for
the first time on appeal, because although it was a newly
asserted theory, it involved only a question of law that was
based on proved or admitted facts and was determinative of
the case.47
Although this court did not confront the issue as directly
as the court in Schmidt, we have also considered the good
faith exception in a post-Birchfield case, and it was also
raised by the State for the first time on appeal. In State v.
Hatfield,48 the defendant was convicted in county court of
driving under the influence based in part on a warrantless
blood draw. He appealed to the district court. After appellate
briefing in the district court was concluded, the U.S. Supreme
Court decided Birchfield, and the defendant then asked the
district court to apply that decision. It did so, finding that
44
Gomez, supra note 41, 877 F.3d at 95, quoting Bogle-Assegai v.
Connecticut, 470 F.3d 498 (2d Cir. 2006).
45
State v. Schmidt, 53 Kan. App. 2d 225, 385 P.3d 936 (2016).
46
Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d
560 (2016).
47
Schmidt, supra note 45.
48
Hatfield, supra note 7.
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Birchfield rendered the blood draw unlawful and inadmis-
sible, and reversed, and remanded for a new trial. The State
filed an exception proceeding, arguing the district court sit-
ting as an appellate court had erred in reversing the convic-
tion without considering whether the good faith exception
applied. We agreed. We noted that application of the good
faith exception to the exclusionary rule is a question of law
on which an appellate court reaches a conclusion independent
of the court below.49 We then concluded, citing our decision
in State v. Hoerle,50 that the good faith exception applied to
a warrantless pre-Birchfield blood draw, and we applied that
exception to conclude the blood evidence in Hatfield was
admissible. We thus sustained the State’s exception, reversed
the district court’s order, and remanded the matter for further
proceedings.
These cases illustrate that when the applicability of the
good faith exception involves examination of the same basic
facts as the probable cause inquiry, an appellate court gener-
ally is able, as part of its de novo review, to determine the
legal question of good faith on the existing record. Because
we conclude this is such a case, we find no merit to Kruse’s
argument that the Leon good faith exception could not be
considered on appeal because it was not first raised before the
trial court. We emphasize, however, that the record may not
always be sufficient to allow an appellate court to determine
the applicability of the good faith exception when it is raised
for the first time on appeal. For that reason, it is advisable to
raise the exception to the trial court whenever it is consid-
ered applicable.
We turn now to Kruse’s argument that the good faith excep-
tion does not apply here because the warrant was based on an
affidavit so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable.
49
Id.
50
Hoerle, supra note 11.
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3. Good Faith Exception A pplies
[12] When evaluating whether the warrant was based on an
affidavit so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable, an appel-
late court should address whether the officer, considered as a
police officer with a reasonable knowledge of what the law
prohibits, acted in objectively reasonable good faith in relying
on the warrant.51 The “good-faith inquiry is confined to the
objectively ascertainable question whether a reasonably well
trained officer would have known that the search was illegal
despite the magistrate’s authorization.”52 Officers are assumed
to “have a reasonable knowledge of what the law prohibits.”53
In assessing the good faith of an officer’s conducting a search
under a warrant, an appellate court must look to the totality
of the circumstances surrounding the issuance of the warrant,
including information not contained within the four corners of
the affidavit.54
Here, the record shows Officers Parmer and Johnson
responded to the scene of a motor vehicle accident and found
Kruse unresponsive behind the wheel of one of two cars at
the scene. Johnson smelled alcohol on Kruse’s breath and
noticed that Kruse’s eyes appeared bloodshot and watery.
Emergency medical personnel treating Kruse at the scene told
the officers that Kruse had the odor of alcohol on his breath,
and Parmer observed Kruse to be incoherent. Based on this
information, the officers believed there was probable cause
to conclude Kruse had been operating a motor vehicle under
the influence of alcohol, and they applied for a search warrant
to obtain a sample of Kruse’s blood to test his blood alcohol
content. The affidavit submitted in support of the warrant did
not expressly state that Kruse was the driver of one of the
51
State v. Sprunger, 283 Neb. 531, 811 N.W.2d 235 (2012).
52
Leon, supra note 1, 468 U.S. at 922 n.23.
53
Id., 468 U.S. at 920 n.20.
54
Tompkins, supra note 14.
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vehicles involved in the accident, but the officers reasonably
believed him to be so, and reasonably believed he had been
drinking alcohol prior to the accident. A county court judge
issued the search warrant, and officers proceeded to the hospi-
tal where they promptly executed the warrant.
Under the totality of the circumstances in this case, we
find the officers acted in objectively reasonable good faith in
reliance upon the search warrant. We conclude that the Leon
good faith exception applies and that there was no need to
exclude the blood evidence seized pursuant to the warrant.
The district court did not err in affirming the judgment of the
county court.
V. CONCLUSION
We do not decide whether the affidavit in this case was
sufficient to support a finding of probable cause, because we
conclude that, even assuming the warrant was invalid, the
Leon good faith exception applied and that exclusion of the
blood evidence was not required. Accordingly, we affirm the
decision of the district court.
A ffirmed.