United States v. Jeffery Kosiba

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No. 96-2381
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Nebraska.
Jeffery Kosiba, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 23, 1996
Filed: November 15, 1996
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Before MAGILL, BRIGHT, and MURPHY, Circuit Judges.
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PER CURIAM.
Jeffery Kosiba appeals from his conviction for possession with intent
to distribute methamphetamine within 1,000 feet from a school. The
district court1 denied Kosiba’s motion to suppress evidence seized from his
apartment. Following that ruling, Kosiba pleaded guilty reserving the
right to appeal the district court's denial of his suppression motion. We
affirm.
I. Background
On July 18, 1995, a confidential informant told Officer Dawn McKain,
a veteran of the Omaha, Nebraska police department, that
1
The Honorable Thomas M. Shanahan, United States District
Judge for the District of Nebraska.
Jeffery Kosiba possessed one-half ounce of methamphetamine. The informant
said he saw drugs and drug paraphernalia in the living room of Kosiba’s
apartment and that Kosiba was dealing drugs.
Using standard language, McKain prepared an application and affidavit
(McKain affidavit) for a "no-knock" search warrant pursuant to Neb. Rev.
Stat. § 29-411 (Reissue 1989). McKain’s affidavit described the drug
paraphernalia seen in Kosiba's apartment, but failed to mention the amount
of drugs in his possession. McKain requested a "No Knock Search Warrant
. . . because officers know from past experience that if they were to
announce their presence and purpose the evidence being sought could easily
be destroyed by flushing it down a toilet or sink, or by swallowing it."
(Add. at 36a.) A county judge issued a search warrant authorizing a no-
knock entry.
On July 27, 1995, before executing the search warrant, McKain learned
from the informant that Kosiba had replenished his drug supply with
marijuana and approximately one and one-half ounces of methamphetamine.
In addition, the informant told McKain that Kosiba had several handguns,
assault rifles and a shotgun in his small apartment.
Later that day, the police executed the search warrant without
knocking and announcing their presence. The search uncovered
methamphetamine in various places throughout the apartment, drug
paraphernalia, three pounds of marijuana packaged for sale, a shotgun and
ammunition for several types of guns.
The district court analyzed the search under the fourth amendment,
determined that exigent circumstances justifying the no-knock entry existed
when the officers executed the search warrant and denied Kosiba’s motion
to suppress the evidence. Kosiba pleaded guilty but reserved his right to
appeal.
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II. Discussion
Kosiba argues that the issuance of the no-knock warrant resulted
in an unreasonable search and seizure because McKain's affidavit consisted
of "boilerplate language" relating to the destructibility of evidence and
the officer's experience. Kosiba contends that the good faith exception
recognized in United States v. Leon, 468 U.S. 897 (1984), does not apply
because the issuing judge merely rubber-stamped the officer's request and
because the police failed to act in good faith. Kosiba does not dispute
that probable cause existed to issue the warrant.
"A district court's decision to deny a motion to suppress evidence
seized pursuant to a search warrant will not be reversed unless it is
`unsupported by the evidence, based on an erroneous view of the applicable
law or we are left with a firm conviction that a mistake has been made.'"
United States v. Phillips, 88 F.3d 582, 585 (8th Cir. 1996) (quoting United
States v. Edmiston, 46 F.3d 786, 788 (8th Cir. 1995)). The exclusionary
rule does not apply to "evidence obtained in objectively reasonable
reliance on a . . . search warrant . . . ." Leon, 468 U.S. at 922. If,
however, the affidavit and application for the warrant were "’so lacking
in indicia of probable cause as to render official belief in its existence
entirely unreasonable[,]’" the exclusionary rule applies. Id. at 923
(quoting Brown v. Illinois, 422 U.S. 590, 610-11 (1975)). "[T]he proper
standard . . . is whether the state officials complied with Nebraska law
and the Fourth Amendment, or, under Leon, had an objectively reasonable
basis to believe they were complying with Nebraska law and the Fourth
Amendment, in applying for and issuing the no-knock warrant." United
States v. Moore, 956 F.2d 843, 848 (8th Cir. 1992).
Nebraska law authorizes no-knock warrants to prevent the destruction
of drugs. Id. at 848; see Neb. Rev. Stat. § 29-411. In addition, the
Nebraska Supreme Court allows issuing judges to
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take judicial notice of the inherent destructibility of small quantities
of drugs. Id. at 848-49 (citing State v. Meyer, 311 N.W.2d 520, 524 (Neb.
1981)).
In Moore, an officer requested a no-knock warrant relying "upon his
general experience in averring that a no-knock warrant was needed to
prevent destruction of the suspected drugs." Id. at 848. The officer,
however, "did not present particular information about the potential for
rapid destruction . . . ." Id. at 848-49. This court held that the
officer and the judge who authorized the no-knock entry acted in an
objectively reasonable manner under Nebraska law because the affidavit
suggested the suspect possessed easily disposable quantities. Id. at 849
(noting that affidavit described drugs as packaged for sale).
As in Moore, Officer McKain's affidavit neglected to present
particular information about the destructibility of the drugs, but included
references suggesting easily disposable quantities of methamphetamine. The
affidavit stated that the informant saw narcotics for sale, hypodermic
needles and scales. Search warrants such as this one have been approved
by Nebraska case law. See State v. Eary, 454 N.W.2d 685 (Neb. 1990); State
v. Armendariz, 449 N.W.2d 555 (Neb. 1989); State v. Meyer, 311 N.W.2d 520
(Neb. 1981). Thus the officers could reasonably rely on the Nebraska
warrant.
Additionally, the no-knock execution of the warrant did not violate
the fourth amendment. Under the fourth amendment, exigent circumstances,
such as preventing the destruction of evidence and protecting officer
safety, justify no-knock entries to execute a search warrant. Wilson v.
Arkansas, 115 S. Ct. 1914, 1918-19 (1995). Exigent circumstances existed
when the police executed the search warrant at Kosiba's apartment.
Officers believed Kosiba possessed several weapons and an easily disposable
quantity of drugs in a small apartment. Thus, the officers reasonably
believed that knocking and announcing their presence before entering
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Kosiba's apartment could endanger their safety or result in the destruction
of evidence.
III. Conclusion
The district court properly denied the motion to suppress the
evidence. We affirm the conviction.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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