State v. Krajicek

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/20/2018 01:12 AM CDT
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Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. KRAJICEK
Cite as 25 Neb. Ct. App. 616
State of Nebraska, appellee, v.
Kurt C. K rajicek, appellant.
___ N.W.2d ___
Filed March 13, 2018. No. A-17-322.
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. Motions to Suppress: Pretrial Procedure: Trial: Appeal and Error.
When a motion to suppress is denied pretrial and again during trial on
renewed objection, an appellate court considers all the evidence, both
from trial and from the hearings on the motion to suppress.
3. Search and Seizure. Application of the good faith exception to the
exclusionary rule is a question of law.
4. Constitutional Law: Search and Seizure: Search Warrants. The
Fourth Amendment to the U.S. Constitution guarantees the right of the
people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures and further provides that no warrants
shall issue but upon probable cause, supported by oath or affirmation,
and particularly describing the place to be searched and the persons or
things to be seized.
5. Constitutional Law: Search Warrants: Probable Cause. The execu-
tion of a search warrant without probable cause is unreasonable and
violates constitutional guarantees.
6. Search Warrants: Affidavits: Probable Cause. A search warrant, to
be valid, must be supported by an affidavit which establishes prob-
able cause.
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7. Search Warrants: Probable Cause: Words and Phrases. Probable
cause sufficient to justify issuance of a search warrant means a fair
probability that contraband or evidence of a crime will be found.
8. Search Warrants: Affidavits: Probable Cause: Appeal and Error.
In reviewing the strength of an affidavit submitted as a basis for find-
ing probable cause to issue a search warrant, an appellate court applies
a totality of the circumstances test. The question is whether, under the
totality of the circumstances illustrated by the affidavit, the issuing mag-
istrate had a substantial basis for finding that the affidavit established
probable cause.
9. Search Warrants: Affidavits: Evidence: Appeal and Error. In evalu-
ating the sufficiency of an affidavit used to obtain a search warrant,
an appellate court is restricted to consideration of the information and
circumstances contained within the four corners of the affidavit, and
evidence which emerges after the warrant is issued has no bearing on
whether the warrant was validly issued.
10. Search Warrants: Affidavits: Probable Cause. The magistrate who is
evaluating a probable cause question must make a practical, common-
sense decision whether, given the totality of the circumstances set forth
in the affidavit before him or her, including the veracity of and basis of
knowledge of the persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found in a
particular place.
11. Probable Cause. Probable cause to search is determined by a standard
of objective reasonableness, that is, whether known facts and circum-
stances are sufficient to warrant a person of reasonable prudence in a
belief that contraband or evidence of a crime will be found.
12. Search Warrants: Probable Cause: Appeal and Error. A magistrate’s
determination of probable cause to issue a search warrant should be paid
great deference by reviewing courts.
13. Search Warrants: Affidavits: Appeal and Error. After-the-fact scru-
tiny by courts of the sufficiency of an affidavit used to obtain a search
warrant should not take the form of a de novo review.
14. Search Warrants: Affidavits: Probable Cause: Appeal and Error.
Where the affidavit before the issuing magistrate contains information
that an appellate court will not consider in a probable cause determina-
tion, the decision of the issuing magistrate is not entitled to such defer-
ence, but, rather, must be reviewed de novo.
15. Constitutional Law: Search and Seizure: Evidence. The Fourth
Amendment does not expressly preclude the use of evidence obtained in
violation of its commands.
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16. Search Warrants: Affidavits: Police Officers and Sheriffs: Evidence:
Search and Seizure. The good faith exception provides that even in the
absence of a valid affidavit to support a search warrant, evidence seized
under the warrant need not be suppressed when police officers act in
objectively reasonable good faith in reliance upon the warrant.
17. Motions to Suppress: Search Warrants: Affidavits: Police Officers
and Sheriffs: Evidence. Evidence may be suppressed if (1) the mag-
istrate 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 mag-
istrate wholly abandoned his or her judicial role, (3) the warrant is based
on an affidavit so lacking in indicia of probable cause as to render offi-
cial 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.
Appeal from the District Court for Douglas County:
K imberly Miller Pankonin, Judge. Affirmed.
Stuart J. Dornan and Jason E. Troia, of Dornan, Troia,
Howard, Breitkreutz & Conway, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Joe Meyer for
appellee.
Moore, Chief Judge, and Inbody and Bishop, Judges.
Bishop, Judge.
After his motion to suppress evidence was overruled and
following a stipulated bench trial, Kurt C. Krajicek was con-
victed in the Douglas County District Court of possession of a
controlled substance and was sentenced to 2 years’ probation.
On appeal, Krajicek challenges the court’s denial of his motion
to suppress evidence obtained as a result of five search war-
rants. We affirm.
FACTUAL BACKGROUND
Krajicek filed a motion to suppress evidence obtained from
the execution of five search warrants, all of which were
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obtained in the county court for Douglas County. The first
search warrant, which Krajicek claims was based on an insuf-
ficient probable cause affidavit, lead to the issuance of all of
the other warrants. We discuss each in turn.
First Affidavit and Search Warrant—
Krajicek’s Residence.
On August 13, 2015, Investigator Kevin Finn of the Nebraska
State Patrol presented a county court judge with an “Affidavit
and Application for Issuance of a Search Warrant” (Affidavit
#1) for a single family dwelling located at a specified address
on Pinkney Street in Omaha, Nebraska (residence).
In his affidavit and application for a search warrant, Finn set
forth the grounds for issuance of the warrant as follows:
On August 12, 2015 your affiant received information
from Investigator Smoot #309 of the Nebraska State
Patrol that Kurt Krajicek . . . is in possession of, using
and distributing anabolic steroids from his residence.
Your affiant was also informed Krajicek is renting the
house and has a live in girlfriend . . . . Your affiant con-
ducted a computer check of Krajicek and identified his
primary address of . . . Pinkney St.
Your affiant verified the refuse pickup date was August
13, 2015. Investigators with the commercial interdic-
tion unit conducted surveillance on the residence and
observed a refuse bin filled with multiple trash bags sit-
ting next to the roadside curb. Your affiant contacted an
employee with Deffenbaugh [I]ndustries who agreed to
assist with collection of the trash. Inv. Lutter observed a
pickup belonging to Deffenbaugh [I]ndustries collect the
trash from the residence and followed the vehicle to a
meeting location. The garbage was handed over to your
affiant and Lutter. Investigators returned to the Nebraska
State Patrol Omaha office and conducted a search of the
contents. Located within the trash were five syringe nee-
dles, two empty vials with the labeling of “[s]omatropin
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(rDNA origin) for injection”, miscellaneous papers of
venue and miscellaneous papers believed to be relating to
13th [S]treet Brickhouse liquor establishment.
Your affiant conducted research of somatropin and
determined it to be on a Drug Enforcement Administration
list as a human growth hormone and discovered through
DEA sources; as part of the 1990 Anabolic Steroids
Control Act, the distribution and possession, with the
intent to distribute, of hGH “for any use other than the
treatment of a disease or other recognized medical condi-
tion, pursuant to the order of a physician” is a violation of
Nebraska state statute 28-416.
Furthermore your affiant examined the two bottles
of [s]omatropin and observed no indication of a valid
prescription for Krajicek or identifiable numbers. Your
affiant observed the bottles to be written in an unknown
language similar to that of Japanese or Chinese writ-
ing, along with the previously described [E]nglish label-
ing. Your affiant believes these containers to be illegally
obtained from another country.
Based on training and experience your affiant is aware
that subjects involved in the sale and distribution of con-
trolled substance[s] will maintain product records and
money associated with the distribution of a controlled
substance at their residence. [Y]our affiant believes that
there is probable cause to believe and does believe that
evidence of the distribution of controlled substance[s]
will be located at . . . Pinkney St[.], Omaha[,] Douglas
County[,] Nebraska.
Finn stated that he had just and reasonable grounds to believe,
and did believe, that being concealed or kept in, on, or about
the residence (including all outbuildings and vehicles on the
property) was the following:
Anabolic steroids, marijuana, cocaine, heroin, metham-
phetamine, and/or other controlled substances, parapher-
nalia associated with the use, possession, manufacture,
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and/or distribution of anabolic steroids, marijuana, cocaine,
heroin, methamphetamine, and any other controlled sub-
stances, records, ledgers, [U]nited [S]tates currency,
money orders, address books, telephones, computers,
electronic or digital storage devices used to store informa-
tion and/or papers reflecting names, addresses, telephone
numbers of customers, associates, and co-­ conspirators,
plus receipts indicating a conspiracy to sell anabolic ste-
roids, marijuana, cocaine, heroin, methamphetamine, and
any other controlled substances.
He requested a warrant authorizing a daytime search.
The county court judge authorized the search warrant, as
requested, on August 13, 2015.
Finn executed the search warrant on August 18, 2015, and
recovered “40 grams of marijuana,” “122 vials of various
size and brands of unknown type drugs,” “2 containers with
unknown tary substance,” “[m]iscellaneous items of drug par-
aphernalia,” “[m]iscellaneous documents/papers of venue,”
“[t]wo keys to safety deposit box,” “[s]ix cellular phones,” and
“United States Currency $10,000.” Finn filed a “Return and
Inventory” of the search warrant on August 20.
Second Affidavit and Search Warrant—
Safety Deposit Box.
On August 18, 2015, Finn presented a county court judge
with an “Affidavit and Application for Issuance of a Search
Warrant” (Affidavit #2) for a safety deposit box at a bank in
Omaha. In his affidavit and application for a search warrant,
Finn set forth the information from Affidavit #1. He further
stated that during the search of the Pinkney Street residence
on August 18, a set of keys belonging to a safety deposit
box were located. Finn stated that “[b]ased on training and
experience [he] is aware that subjects involved in the sale and
distribution of controlled substance[s] will maintain product
records and money associated with the distribution of a con-
trolled substance in safety deposit boxes.” The list of property
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he believed was being concealed or kept in the safety deposit
box was the same as described in Affidavit #1. Finn stated that
“said property is under the control or custody” of Krajicek. He
requested a warrant authorizing a daytime search.
The county court judge authorized the search warrant, as
requested, on August 18, 2015.
Finn executed the search warrant on August 18, 2015, and
recovered “United States currency . . . eight hundred twenty
one, one hundred dollar bills” and “[p]ackaging material.”
Finn filed a “Return and Inventory” of the search warrant on
August 20.
Third Affidavit and Search Warrant—
Krajicek’s Office.
On August 19, 2015, Finn presented a county court judge
with an “Affidavit and Application for Issuance of a Search
Warrant” (Affidavit #3) for a basement office belonging to
Krajicek “located on the west side of address . . . S. 13 St[.]”
in Omaha. In his affidavit and application for a search warrant,
Finn set forth the information from Affidavit #1 and Affidavit
#2. He further stated the search of the Pinkney Street residence
on August 18
resulted in the arrest of Krajicek for possession of approx-
imately 122 vials of various sizes and brands of an
unknown liquid believed to be anabolic steroids, $10,000
United States currency believed to be related to the distri-
bution of a controlled substance, approximately 30 grams
of marijuana and various types of drug paraphernalia
relating to the marijuana and vials.
And during the search of Krajicek’s safety deposit box on
August 18, investigators “located an additional $82,100 in
United States Currency believed to be obtained through illegal
distribution of controlled substances.”
Finn stated that he discovered through further investigation
that Krajicek is the owner of a specified business and has an
office located at “S. 13 [S]treet.” He provided details of how
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STATE v. KRAJICEK
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he learned about Krajicek’s office, which included a mention
of “13th [S]treet [B]rickhouse” (which had previously been
referenced in relation to items found in the “trash pull” of
the residence).
Finn stated that “[b]ased on training and experience [he] is
aware that subjects involved in the sale and distribution of con-
trolled substance[s] will maintain product records and money
associated with the distribution of a controlled substance in
various locations.” The list of property he believed was being
concealed or kept in the office was the same as described
in Affidavit #1. Finn stated that “said property is under the
control or custody” of Krajicek and/or a named business. He
requested a warrant authorizing a daytime search.
The county court judge authorized the search warrant, as
requested, on August 19, 2015.
Finn executed the search warrant on August 19, 2015, and
recovered “[m]iscellaneous documents and items of venue”
and a “Dell laptop computer and bag.” Finn filed a “Return and
Inventory” of the search warrant on August 20.
Fourth and Fifth Affidavits and Search Warrants—
Electronic Devices.
On September 25, 2015, Finn presented a county court
judge with two “Affidavit[s] and Application[s] for Issuance
of a Search Warrant” (Affidavits #4 and #5) for the electronic
devices seized in previous searches of the Pinkney Street resi-
dence and Krajicek’s office, and being held by the Nebraska
State Patrol; any data on these items would be recovered by a
computer forensic analyst. In his affidavits and applications for
search warrants, Finn set forth the information from Affidavit
#1, Affidavit #2, and Affidavit #3. He further described items
found in each of the previous searches of the residence, safety
deposit box, and office.
Finn said he knew that
in prior cases, computers, computer equipment, cellu-
lar phones, and digital media were seized and found to
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contain evidence establishing ownership of the digital
devices, involvement in criminal activity and ownership
or use of any Internet service accounts, to include but not
limited to, social media accounts, cloud storage accounts,
email accounts, credit card accounts, telephone accounts,
correspondence and other identification documents.
He included numerous pages detailing how he knew the above.
He believed the “computers and/or digital devices/information/
files” more fully described in the attachments would depict
criminal activity involving the possession and/or possession
with intent to deliver a controlled substance in violation of
Nebraska law.
The county court judge authorized the fourth and fifth
search warrants, as requested, on September 25, 2015. Finn
executed the search warrants on September 26 and recovered
a “White Dell laptop computer” with a specified serial number
and a “Black Samsung Verizon Cell Phone”; any data on these
items would be recovered by a computer forensic analyst.
He filed a “Return and Inventory” of the search warrants on
October 5.
PROCEDURAL BACKGROUND
On September 18, 2015, Krajicek was charged with pos-
session of a controlled substance, a Class IV felony, in the
Douglas County District Court.
On December 18, 2015, Krajicek filed a motion to sup-
press all “physical evidence and all testimony in connec-
tion therewith” obtained as a result of the execution of
the search warrants. Krajicek alleged the searches and sei-
zures of evidence from his residence, safety deposit box,
and office were unreasonable, unlawful, and violated one or
more of his Fourth Amendment rights under the federal and
Nebraska Constitutions. He alleged (1) “Any purported physi-
cal evidence or property taken from [him] or his residence
was unreasonably, illegally and unconstitutionally seized by
law enforcement officers without first obtaining a valid arrest
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or search warrant, and was done without probable cause”; (2)
the search warrants authorizing the search of his residence,
safety deposit box, and office “were invalid because they were
based on Affidavits so lacking in indicia of probable cause as
to render official belief in its existence entirely unreasonable”;
(3) the affidavits for the search warrants did not set forth “suf-
ficient facts which could have supported the Affiant’s conclu-
sion that there was probable cause to believe that particular
items of evidence, including safety deposit boxes, office or
electronic devices, would be found at or within the above
mentioned places at the time of the execution of the war-
rant”; (4) “[t]he scope of said searches exceeded the scope
of the searches authorized within the search warrants, and
therefore said searches were general and illegal as explor-
atory searches”; and (5) “[t]he search warrants lacked par-
ticularity with respect to the persons or things to be searched,
items to be seized, and the manner and time for execution of
the searches.”
A suppression hearing was held on February 9, 2016. In lieu
of in-court testimony, the challenge on the motion to suppress
was confined to “the four corners of the documents.” Five
exhibits, containing the certified copies of the affidavits and
search warrants issued and executed, along with the return and
inventory for each, were received into evidence without objec-
tion. Krajicek argued that the initial affidavit, Affidavit #1, was
lacking in probable cause because the information provided by
an Investigator Smoot did not establish direct observation or
information coming from a reliable informant and there was
no evidence as to when the information was obtained. Krajicek
further argued there was no evidence linking the trash that
was at the curb to him or somebody at his residence. Krajicek
argued that without probable cause on the first affidavit, the
rest “basically fall from a domino effect.”
In an order filed on June 3, 2016, the district court overruled
Krajicek’s motion to suppress after finding that four of the five
search warrants were valid and supported by probable cause
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and that the good faith exception applied to the searches under
all five warrants.
The district court found search warrant Affidavit #1 provided
sufficient information and details to establish probable cause
to believe evidence of a crime would be found at Krajicek’s
residence because the materials found during the trash pull cor-
roborated the information provided by Investigator Smoot and
were otherwise “entirely independent and sufficient grounds
for a finding of probable cause.”
The court found search warrant Affidavit #2 did not provide
sufficient information and details to establish probable cause
to believe evidence of a crime would be found in the safety
deposit box because the affidavit did not provide information
as to where the set of keys were located during the search of
the residence, how the keys were linked to Krajicek, if and
how the officers determined the safety deposit box belonged
to Krajicek, and how the affiant, Finn, believed Krajicek “is
involved in the sale and distribution of controlled substance[s]
where he would be maintaining product records and money
associated with this distribution in a safety deposit box.”
Affidavit #2 did not include the various items located during
the search of Krajicek’s residence, such as the 40 grams of
marijuana, 122 vials of various sizes and brands of unknown
drugs, miscellaneous items of drug paraphernalia, 6 cellular
phones, and $10,000 in cash which could be indicative of drug
dealing behavior. “Affidavit #2 only includes that during the
search of the residence, officers located a set of keys belong-
ing to a safety deposit box.” Thus, in reviewing the affidavit
“only on the four corners,” the court concluded probable cause
to search the safety deposit box was not established. The court
noted that the search warrant for the safety deposit box would
have had sufficient probable cause if the affiant, Finn, had not
left out the other items retrieved in the execution of the search
warrant on Krajicek’s residence.
The court found search warrant Affidavit #3 provided suf-
ficient information and details to establish probable cause
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to believe evidence of a crime would be found at Krajicek’s
office because, “[u]nlike in Affidavit #2, Affidavit #3 does
include information from the affiant of the full results of the
search of [Krajicek’s] home . . . .” All previous information
from Affidavit #1 and Affidavit #2 was also included in this
affidavit, as well as how the affiant, Finn, linked Krajicek to
his work address.
The court found search warrant Affidavits #4 and #5 pro-
vided sufficient information and details to establish probable
cause to believe evidence of a crime would be found on the
recovered electronics. Affidavits #4 and #5 included all infor-
mation contained in the previous affidavits and noted what
items were found during the execution of the first, second, and
third search warrants. And the affidavits provided more than
10 pages of explanation for the link between electronic devices
and criminal activity.
The court further found that the five search warrants did
not exceed the scope of the probable cause in each warrant,
that the warrants did not lack the particularity required by the
Fourth Amendment, and that the good faith exception applied
to the searches under all five warrants. The district court over-
ruled Krajicek’s motion to suppress “in all respects.”
A stipulated bench trial was held on December 14, 2016, at
which Krajicek preserved the issues concerning his motion to
suppress. In an order filed on January 6, 2017, Krajicek was
convicted of possession of a controlled substance and was later
sentenced to 2 years’ probation.
Krajicek appeals.
ASSIGNMENT OF ERROR
Krajicek assigns the district court erred in denying his
motion to suppress evidence.
STANDARD OF REVIEW
[1,2] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
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an appellate court applies a two-part standard of review. State
v. Baker, 298 Neb. 216, 903 N.W.2d 469 (2017). Regarding
historical facts, an appellate court reviews the trial court’s find-
ings for clear error, but whether those facts trigger or violate
Fourth Amendment protections is a question of law that an
appellate court reviews independently of the trial court’s deter-
mination. State v. Baker, supra. When a motion to suppress is
denied pretrial and again during trial on renewed objection, an
appellate court considers all the evidence, both from trial and
from the hearings on the motion to suppress. Id.
[3] Application of the good faith exception to the exclusion-
ary rule is a question of law. State v. Hill, 288 Neb. 767, 851
N.W.2d 670 (2014).
ANALYSIS
Probable Cause for Search Warrants.
Krajicek argues, “The first search warrant obtained demands
all of the attention in this case. The other four stemmed from
the first and would not have been granted without the results
of the first search warrant having been served.” Brief for appel-
lant at 9. He claims, “The other four search warrants [were]
fruits of the poisonous tree.” Id. at 17.
Krajicek contends, “The first search warrant authorizing
search of the residence . . . was based on an affidavit so lack-
ing in indicia of probable cause as to render official belief in
its existence entirely unreasonable.” Id. at 9. More specifically,
Krajicek argues as follows: There was no explanation as to
how Smoot came into possession of the information relayed;
the affidavit does not specifically mention that the trash was
from Krajicek’s address, although he says such can be inferred
in the context of the document; and “‘miscellaneous papers
of venue’” were not further described to connect the trash to
Krajicek or his girlfriend or to the address on Pinkney Street.
Id. at 13.
The information contained within the four corners of
the affidavit was so lacking in indicia of probable cause
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because it was wholly void of the classification of the
source, was wholly void of the basis for the information
provided by the source, involved nothing more from the
source other than a bare bones allegation, and the single
trash pull . . . coupled with the affiant’s research only
yielded items that were entirely consistent with legal pos-
session of a controlled substance.
Id. at 11. Krajicek asserts that “[a] suspicion to continue the
investigation is not the equivalent of probable cause to justify
intrusion into one’s home.” Id. at 9.
[4-9] The Nebraska Supreme Court has recently stated:
The Fourth Amendment to the U.S. Constitution guar-
antees “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreason-
able searches and seizures . . . ” and further provides that
“no Warrants shall issue, but upon probable cause, sup-
ported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to
be seized.” The Nebraska Constitution provides simi-
lar protection.
The execution of a search warrant without probable
cause is unreasonable and violates these constitutional
guarantees. Accordingly, a search warrant, to be valid,
must be supported by an affidavit which establishes prob-
able cause. Probable cause sufficient to justify issuance of
a search warrant means a fair probability that contraband
or evidence of a crime will be found. In reviewing the
strength of an affidavit submitted as a basis for finding
probable cause to issue a search warrant, an appellate
court applies a “totality of the circumstances” test. The
question is whether, under the totality of the circum-
stances illustrated by the affidavit, the issuing magistrate
had a substantial basis for finding that the affidavit estab-
lished probable cause. In evaluating the sufficiency of
an affidavit used to obtain a search warrant, an appellate
court is restricted to consideration of the information and
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circumstances contained within the four corners of the
affidavit, and evidence which emerges after the warrant
is issued has no bearing on whether the warrant was val-
idly issued.
State v. Hidalgo, 296 Neb. 912, 917, 896 N.W.2d 148, 153
(2017).
[10,11] The magistrate who is evaluating a probable cause
question must make a practical, commonsense decision
whether, given the totality of the circumstances set forth in
the affidavit before him or her, including the veracity of and
basis of knowledge of the persons supplying hearsay informa-
tion, there is a fair probability that contraband or evidence
f a crime will be found in a particular place. State v.
Holguin, 14 Neb. Ct. App. 417, 708 N.W.2d 295 (2006). Probable
cause to search is determined by a standard of objective rea-
sonableness, that is, whether known facts and circumstances
are sufficient to warrant a person of reasonable prudence
in a belief that contraband or evidence of a crime will be
found. Id.
[12-14] A magistrate’s determination of probable cause to
issue a search warrant should be paid great deference by
reviewing courts. State v. Bossow, 274 Neb. 836, 744 N.W.2d
43 (2008). After-the-fact scrutiny by courts of the sufficiency
of an affidavit used to obtain a search warrant should not take
the form of a de novo review. Id. However, where the affida-
vit before the issuing magistrate contains information that an
appellate court will not consider in a probable cause determi-
nation, the decision of the issuing magistrate is not entitled to
such deference, but, rather, must be reviewed de novo. State v.
Lee, 265 Neb. 663, 658 N.W.2d 669 (2003).
We first consider whether Affidavit #1, for the search of the
residence on Pinkney Street, contained probable cause to sup-
port the issuance of a warrant. In his probable cause affidavit,
Finn said Smoot told him that Krajicek was in possession of,
using, and distributing anabolic steroids from his residence.
However, Finn’s affidavit made no representation as to how
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Smoot got this information, e.g. whether it was from his own
observations, from investigation, or from an informant.
This is similar to State v. Holguin, supra, wherein as part of
a probable cause affidavit to search, the affiant officer said that
another officer, who was a drug investigator and a member of a
drug task force, had intelligence that the defendant was travel-
ing back and forth between Greeley, Colorado, and Scottsbluff,
Nebraska, while transporting cocaine. The defendant appealed
his conviction for aiding and abetting in the manufacture of
a controlled substance other than marijuana, premising one
of his assignments of error on the trial court’s denial of his
motion to suppress. On appeal, this court said:
Although observations by a fellow officer engaged in a
common investigation are a reliable basis for a search
warrant, State v. Bockman, 11 Neb. Ct. App. 273, 648 N.W.2d
786 (2002), [the drug investigator’s] “intelligence” regard-
ing [the defendant’s] transportation of cocaine was not
explained in [the affiant officer’s] statement in the affida-
vit as being [the drug investigator’s] personal knowledge
from firsthand observation, from investigation, or from
informants. The affidavit simply does not explain how
[the drug investigator] obtained this “intelligence”—for
example, from an informant who had been shown to be
reliable. See State v. Lytle, 255 Neb. 738, 587 N.W.2d
665 (1998) (discussing how reliability of various types
of informant is established), disapproved in part on other
grounds, State v. Johnson, 256 Neb. 133, 589 N.W.2d 108
(1999). Thus, the affidavit reveals no “underlying circum-
stances” supporting the assertion that [the defendant] was
transporting cocaine between Greeley and Scottsbluff.
See State v. Huggins, 186 Neb. 704, 706, 185 N.W.2d
849, 851 (1971) (affidavit may be based on hearsay and
need not reflect direct observations of affiant so long as
magistrate is informed of some of underlying circum-
stances supporting affiant’s conclusions). Although, in
general, no special showing of reliability is necessary
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where the affidavit indicates the source of information to
be a law enforcement officer, see State v. Bockman, supra,
there must be some basis revealed in the affidavit beyond
the fact that one officer informed another, who then made
the affidavit. See State v. Jackson, 255 Neb. 68, 582
N.W.2d 317 (1998) (affidavit should include veracity and
basis of knowledge of persons supplying hearsay informa-
tion). Because [the affiant officer] asserted what [the drug
investigator], another officer, knew, some basis for [the
drug investigator’s] “intelligence” about [the defendant]
had to be in the affidavit. Without such basis, the magis-
trate could not properly evaluate the statement that [the
drug investigator] had “intelligence” that [the defendant]
was transporting cocaine.
State v. Holguin, 14 Neb. Ct. App. 417, 424-25, 708 N.W.2d 295,
303 (2006). Similarly, without knowing the basis for Smoot’s
information, neither the issuing magistrate, the suppression
hearing judge, nor this court can consider his bare bones
statement.
The suppression hearing judge in this case acknowledged
that there was no information as to when or how Smoot
obtained his information, but said the information was cor-
roborated by Finn’s independent investigation, i.e., the trash
pull. We agree. Besides the statement from Smoot, the remain-
ing pertinent information in the affidavit was that Finn con-
ducted a “computer check of Krajicek” and identified his
primary address as the address on Pinkney Street, which was
for a single-family dwelling. Finn “verified the refuse pickup
date was August 13, 2015. Investigators . . . observed a refuse
bin filled with multiple trash bags sitting next to the roadside
curb.” A trash pull was done with the help of “Deffenbaugh
[I]ndustries.” Another investigator observed “Deffenbaugh
[I]ndustries collect the trash from the residence” and fol-
lowed the vehicle to a meeting place. The trash was handed
over to that investigator and Finn. A search of the contents of
the trash revealed five syringe needles, two empty vials with
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the labeling of “[s]omatropin (rDNA origin) for injection,”
“miscellaneous papers of venue,” and “miscellaneous papers
believed to be relating to 13th [S]treet Brickhouse liquor
establishment.”
Krajicek claims that “[a]lthough the [trash pull] paragraph
does not specifically mention that trash was pulled from the
address of . . . Pinkney Street[,] arguably it can be inferred in
the context of the document as a whole.” Brief for appellant
at 12. He further claims, “The ‘miscellaneous papers of venue’
were not further described to connect the trash to Krajicek
or his girlfriend or to the address of . . . Pinkney Street.” Id.
at 13.
We find that as to both claims, practical commonsense infer-
ences can be made that the trash pulled was sitting next to the
curb in front of the address for which the search warrant was
sought and that the “miscellaneous papers of venue” would
have indicated that same address. And the affidavit reflects the
address was for a single-family dwelling.
We acknowledge that Nebraska’s case law on this issue
is distinguishable. See State v. Tompkins, 14 Neb. Ct. App. 526,
710 N.W.2d 654 (2006), reversed on other grounds 272 Neb.
547, 723 N.W.2d 344, modified on denial of rehearing 272
Neb. 865, 727 N.W.2d 423 (2007) (trash set out for collec-
tion outside duplex with two units, one of which was occu-
pied by defendant, that contained marijuana evidence but not
venue items or other indicia of ownership or possession did
not provide probable cause to issue warrant to search defend­
ant and his unit for marijuana evidence; trash could not be
affirmatively attributed to defendant). However, other juris-
dictions have found that when a trash can is located in front
of or behind a residence, inferences that the trash can and its
contents originated from the residence can be made. See, U.S.
v. Gary, 528 F.3d 324 (4th Cir. 2008) (officer’s failure to state
in affidavit for search warrant on defendant’s residence that
both trash cans marked and unmarked with house number
were present directly behind defendant’s residence and that
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trash bags removed by officer were from two cans, rather
than in trash can marked with subject house number, did not
defeat probable cause and void search warrant on defendant’s
residence; while possible that trash in cans behind residence
was not generated by defendant, most likely scenario was that
trash cans placed directly behind home were used by those
who lived there, regardless of whether there were two trash
cans located behind home, rather than one; probable cause
reinforced by fact that letter addressed to subject house num-
ber was found inside trash bags); State v. Bordner, 53 S.W.3d
179 (Mo. App. 2001) (although officers did not see who put
trash bags in front of defendant’s house, bags’ being in front of
house on day designated for trash pick up and previous reports
that defendant had been making methamphetamine gave court
reasonable basis for inferring that bags’ contents had origi-
nated inside defendant’s house). But, see, State v. Malone,
50 Kan. App. 2d 167, 323 P.3d 188 (2014) (there was not
sufficient link between contraband and residence when trash
recovered from curb in front of residence, but police found
contraband in one trash bag and information concerning occu-
pancy of residence in separate bag); People v. Burmeister, 313
Ill. App. 3d 152, 728 N.E.2d 1260, 245 Ill. Dec. 903 (2000)
(affiant officer failed to describe indices of residency in trash;
held police may not presume that evidence they discover in
curbside trash originated from nearest residence; when police
discover recently deposited curbside contraband, magistrate
may issue warrant to search resident’s home if officer’s com-
plaint describes eyewitness account of resident dumping trash
for collection).
As the U.S. Supreme Court stated, “‘In dealing with prob-
able cause, . . . as the very name implies, we deal with prob-
abilities. These are not technical; they are the factual and
practical considerations of everyday life on which reasonable
and prudent men, not legal technicians, act.’” Illinois v. Gates,
462 U.S. 213, 231, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).
As such, under a totality of the circumstances approach,
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practical commonsense inferences can be made that the trash
pulled was sitting next to the curb in front of the address on
Pinkney Street for which the search warrant was sought and
that the “miscellaneous papers of venue” would have indi-
cated that same address.
As to the somatropin found in the trash pull, Krajicek does
not contest that somatropin is a controlled substance; instead,
he simply argues that it can be obtained legally and that there
was no probable cause to believe the somatropin recovered
in the trash pull was obtained illegally. Specifically, Krajicek
argues Finn’s research “only yielded items that were entirely
consistent with legal possession of a controlled substance.”
Brief for appellant at 11. We disagree. Initially, we note that
Finn’s statement that he believed the somatropin was obtained
illegally from another country, based on “an unknown lan-
guage” appearing on the vials along with English, did not
contain sufficient foundation for his belief. However, there
was other evidence establishing probable cause to believe
that the somatropin was obtained illegally. During the trash
pull, Finn found five syringe needles and two empty vials
with the labeling of “‘[s]omatropin (rDNA origin) for injec-
tion.’” Finn’s research of somatropin revealed the substance
was on “the Drug Enforcement Administration list as a human
growth hormone” and that as part of “the 1990 Anabolic
Steroids Control Act, the distribution and possession, with the
intent to distribute, of hGH ‘for any use other than the treat-
ment of a disease or other recognized medical condition, pur-
suant to the order of a physician’ is a violation of Nebraska
state statute 28-416.” Finn examined the somatropin found in
the trash and “observed no indication of a valid prescription
for Krajicek or identifiable numbers.” Based on the fact that
there was no indication of a valid prescription for Krajicek
or “identifiable numbers” on the somatropin, there was prob-
able cause to believe that the drugs were obtained illegally
and that evidence of criminal activity would be found in
the residence.
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For the reasons stated above, under the totality of the cir-
cumstances illustrated by the affidavit, we find the issuing
magistrate had a substantial basis for finding that Affidavit
#1 established probable cause for a search of the residence.
Because we find there was probable cause to support the war-
rant for the residence, the remaining warrants were not fruit of
the poisonous tree.
However, we, like the district court, note that the warrant
for the safety deposit box was not supported by a sufficient
probable cause affidavit. Affidavit #2 only contained the infor-
mation from Affidavit #1, and then said that in the search of
the residence, they found safety deposit box keys. Affidavit
#2 did not include the other items located during the search of
Krajicek’s residence, such as the 40 grams of marijuana, 122
vials of various sizes and brands of unknown drugs, miscel-
laneous items of drug paraphernalia, 6 cellular phones, and
$10,000 in cash which could be indicative of drug dealing
behavior. Thus, in reviewing the affidavit “only on the four
corners,” we determine that probable cause to search the safety
deposit box was not established. However, as discussed below,
we find that the good faith exception applies to the search of
the safety deposit box.
Good Faith Exception.
Initially, we note that Krajicek contends the State has the
burden to show the good faith exception applies. Then he
says that at the suppression hearing, the State offered no evi-
dence beyond the affidavits, warrants, and inventory returns
and made no argument as to good faith. However, Krajicek’s
claim that the State made no argument as to good faith is
not supported by the record. At the conclusion of the sup-
pression hearing, the parties were given time to submit legal
briefs. And in its order on Krajicek’s motion to suppress, the
court said, “The State argues that as an alternative to its argu-
ment that the search warrants were supported by probable
cause, the warrants are still valid because the ‘Leon’ good
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faith exception applies.” Clearly, the State made an argument
regarding the good faith exception.
[15] Krajicek further argues the good faith exception does
not save the search warrants. The Fourth Amendment does not
expressly preclude the use of evidence obtained in violation
of its commands. State v. Hoerle, 297 Neb. 840, 901 N.W.2d
327 (2017). The exclusionary rule “‘operates as “a judicially
created remedy designed to safeguard Fourth Amendment
rights generally through its deterrent effect, rather than a per-
sonal constitutional right of the party aggrieved.”’” State v.
Hoerle, 297 Neb. at 847, 901 N.W.2d at 332. Thus, a Fourth
Amendment violation does not necessarily mean that the exclu-
sionary rule applies. State v. Hoerle, supra.
[16,17] Because the exclusionary rule should not be applied
to objectively reasonable law enforcement activity, the U.S.
Supreme Court created a good faith exception to the rule. Id.
[T]he good faith exception to the exclusionary rule [was]
first recognized in United States v. Leon[, 468 U.S. 897,
104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)]. The good faith
exception provides that even in the absence of a valid affi-
davit to support a search warrant, evidence seized under
the warrant need not be suppressed when police officers
act in objectively reasonable good faith in reliance upon
the warrant. Evidence may be suppressed if (1) the mag-
istrate or judge in issuing a warrant was misled by infor-
mation 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 an affidavit so lacking in indicia of probable cause as
to render official belief in its existence entirely unrea-
sonable, or (4) the warrant is so facially deficient that
the executing officer cannot reasonably presume it to be
valid. In Leon, the Supreme Court noted that “an assess-
ment of the flagrancy of the police misconduct constitutes
an important step in the calculus” of the exclusionary
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rule. The Court recently provided further guidance on this
point, writing in Herring v. United States[, 555 U.S. 135,
144, 129 S. Ct. 695, 702, 172 L. Ed. 2d 496 (2009)]: “To
trigger the exclusionary rule, police conduct must be suf-
ficiently deliberate that exclusion can meaningfully deter
it, and sufficiently culpable that such deterrence is worth
the price paid by the justice system. . . . [T]he exclusion-
ary rule serves to deter deliberate, reckless, or grossly
negligent conduct, or in some circumstances recurring or
systemic negligence.”
State v. Nuss, 279 Neb. 648, 656-57, 781 N.W.2d 60, 68 (2010).
Krajicek limits his good faith argument to the third situation
noted above in Nuss, specifically that the warrant for the resi-
dence was based on an affidavit so lacking in indicia of prob-
able cause as to render official belief in its existence entirely
unreasonable. Although we previously found that the search of
the residence was supported by a probable cause affidavit, we
note that even if probable cause was lacking, the good faith
exception would have applied. In particular, we note that the
case law regarding the inference of a nexus between a trash
can and a particular residence has been decided differently
by different jurisdictions, and Finn and the issuing magistrate
would have no way of knowing how Nebraska courts would
rule. See State v. Nuss, supra (holding good faith exception
applied because it was not clear under Nebraska law that
labeling intercepted computer images as child pornography
was insufficient, standing alone, to establish probable cause
to search for evidence of visual depiction of sexually explicit
conduct involving minors). Accordingly, under the totality of
the circumstances in this case, Finn acted in objectively rea-
sonable good faith in reliance upon the warrant. We find that
the good faith exception applies and that the evidence recov-
ered pursuant to the warrant for the residence should not be
suppressed or excluded.
As to the search warrant for the safety deposit box, as
noted by the district court, there would have been sufficient
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probable cause if Finn had not left out the other items
retrieved during the execution of the search warrant of the
residence (i.e., 40 grams of marijuana, 122 vials of various
sizes and brands of unknown drugs, miscellaneous items of
drug paraphernalia, 6 cellular phones, and $10,000 in cash
which could be indicative of drug dealing behavior); which
information Finn did include in the subsequent affidavits.
This was not the type of deliberate, reckless, or grossly neg-
ligent conduct which the exclusionary rule serves to deter.
Under the totality of the circumstances in this case, Finn
acted in objectively reasonable good faith in reliance upon the
warrant. Accordingly, we, like the district court, find that the
good faith exception applies and that the evidence recovered
pursuant to the warrant for the safety deposit box should not
be suppressed or excluded.
CONCLUSION
For the reasons stated above, we find the district court did
not err in denying the motion to suppress. The judgment of the
district court is affirmed.
A ffirmed.