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State v. Sams

Court of Appeals of Nebraska

September 17, 2013

State of Nebraska, appellee,
v.
Robbie J. Sams, appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Douglas County: J Russell Derr, Judge.

Thomas C. Riley, Douglas County Public Defender, and Leslie E. Cavanaugh for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

Inbody, Chief Judge, and Irwin and Riedmann, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Irwin, Judge.

I. INTRODUCTION

Robbie J. Sams appeals an order of the district court for Douglas County, Nebraska, denying his motion to suppress evidence obtained as a result of the execution of a search warrant. On appeal, Sams asserts that the affidavit submitted in support of the warrant was not sufficient to demonstrate probable cause. He also asserts that the district court erred in finding that even if the affidavit was insufficient, the search would be sustainable under the good faith exception. We find no merit to Sams' assertion concerning the sufficiency of the affidavit, and we affirm.

II. BACKGROUND

After a bench trial, Sams was convicted on a charge of manufacturing, distributing, or possessing with intent to distribute a controlled substance. The charge arose out of evidence discovered through the execution of a search warrant, demonstrating that Sams was engaged in a substantial "marijuana grow operation" in a Douglas County, Nebraska, residence.

The issues raised on appeal in this case concern the sufficiency of the affidavit of Deputy Jason Mass. of the Douglas County Sheriff's Department, sworn on behalf of Mass' request for issuance of a search warrant. The affidavit was submitted, and the warrant issued, in late September 2011.

According to his affidavit, Mass. had then been employed by the Douglas County Sheriff's Department for approximately 10 years and had been working in the narcotics division for approximately 3½ years. Mass. recounted his training and certification as a narcotics officer.

Mass attested in his affidavit that he was contacted by the Drug Enforcement Agency (DEA) concerning a tip the DEA had received about an alleged marijuana grow operation in a Douglas County residence. After receiving the tip, the DEA began conducting surveillance of the residence and identified Sams as a person involved with the residence.

In late July 2011, the DEA had served an administrative subpoena on the Omaha Public Power District, seeking records of electrical usage by the subject residence and three similar residences in the same geographic area. Mass' affidavit included details about the size of each of the four residences, as well as the details of each residence's electrical usage. The results demonstrated that the electrical usage at the subject residence during the previous 6 months was more than twice that of each of the other residences, and was actually approximately four times that of one of the residences. Mass. attested in his affidavit that he was aware, through classes and training concerning the growing and cultivation of marijuana, that residences containing a marijuana grow operation experience an increased rate of electrical consumption. The DEA served another administrative subpoena on ...


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