United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Joseph F. Bataillon Senior United States District Judge
This matter is before the court on the parties' objections, Filing Nos. 39 and 41, to the Findings and Recommendation ("F&R") of the United States Magistrate Judge, Filing No. 35, F&R; Filing No. 38, Hearing Transcript ("Hr'g Tr.") at 128-138, on the defendant's motion to suppress, Filing No. 23. The defendant has been charged with being an addict in possession of a firearm, that is, a Bushmaster XM15-E2S rifle, in violation of 18 U.S.C. § 922(g)(3). Filing No. 1, Indictment. The defendant moves to suppress the firearm he is accused of possessing, which was found in a search authorized by a search warrant allegedly based on evidence found in an improper protective sweep.
Pursuant to 28 U.S.C. § 636(b)(1)(A), the court has conducted a de novo determination of those portions of the F&R to which the parties object. United States v. Lothridge, 324 F.3d 599, 600-01 (8th Cir. 2003). The court has reviewed the record including the transcript of the hearing, and the exhibits, including a DVD recording of the police encounter. Filing No. 38, Hr'g Tr.; Filing No. 33, Exhibit List, Hr'g Ex. 16, DVD.
The facts are stated in the magistrate judge's F&R and will be repeated only as necessary to the court's opinion. Filing No. 35, F&R (incorporating statements made on the record); Filing No. 38, Hr'g Tr. at 55-62. An evidentiary hearing was held on October 7, 2015. Filing No. 38, Hr'g Tr. Law enforcement officers Aaron Hanson, Mark Matuza, Kenneth Fortune, Troy Liebe, and Brooks Riley testified at the hearing. Id. at 4-51, 54-118. The magistrate judge found their testimony credible. Id. at 128. The court has reviewed the audio recording and finds it essentially corroborates the officers' testimony. Filing No. 33, Exhibit List, Ex. 16, audio recording.
At the hearing, Sergeant Hanson testified that he and other officers were executing a misdemeanor warrant on the defendant at 3323 North 40th Street in Omaha, Nebraska, on April 23, 2015. Id. at 5. The officers had information regarding the defendant’s gang affiliation, criminal history, and other events involving the defendant and the residence, including a "shots fired" call, a vehicle pursuit, and the recovery of a ballistic vest. Id. at 7-10. The officers also had familiarity with the defendant's reported involvement with firearms and the criminal histories of his associates. Id. at 10-12. The officers had received information that the defendant lived at the house on North 40th Street in Omaha, Nebraska. Id. The officers saw him through the window as they approached the residence. Id. at 5-6, 14-16; see also Hr'g Ex. 16, audio recording at 21:26:31.
The officers stepped onto the front porch and knocked but did not receive an immediate response. Hr'g Tr. at 16-17; Ex. 16, audio recording at 21:26:57 to 21:28:00. A female answered the door and at first denied that the defendant was at the residence. Hr'g Tr. at 17-18. Shortly thereafter, the defendant emerged from the house carrying a child. Id. at 19. Sergeant Hanson testified that at that point he smelled a strong odor of marijuana in the house. Id. The officer can be heard on the audio recording stating that that he smelled marijuana. Ex. 16, audio recording at 21:28:33. Hanson testified that at the time he smelled the marijuana he determined he would seek a search warrant to search for marijuana and drug-related items. Id. at 21. He can be heard on the audio recording mentioning securing the premises and getting a warrant and later states "we're going to get a warrant." Ex. 16, audio recording at 21-29:16 to 21:30:29; 21:31: 25.
Meanwhile, officers on the side of the house heard sounds emanating from the area of the side door. Filing No. 38, Hr'g Tr. at 96-98, 112-113. The officers believed that someone was barricading the door or preparing to open it and relayed that information via radio to the other officers. Id. at 17, 56, 98-99. Officer Riley testified that he also was at a side door and heard rustling against the door, which he believed was someone either going to exit or barricading. Id. at 113. However, both Officers Liebe and Riley testified that they observed no one exit the rear of the house. Id. at 107, 113.
Lieutenant Mark Matuza testified that he also smelled a “very strong” or “tremendously strong” odor of marijuana from within the residence. Id. at 56-57. Officer Fortune testified that he could smell marijuana from the foot of the stairs leading to the front door. Id. at 77-78.
Officer Hanson testified that he secured the premises and performed a protective sweep for the safety of the officers and to prevent destruction of evidence. Id. at 12, 21-23. In the course of that sweep, the officers noticed wood shavings and insulation on the floor beneath a trapdoor to the attic. Id. at 114. Officer Hanson testified that he heard a noise coming from the attic and thought a person could be hiding there. Id. at 36. Officer Riley also testified he heard a noise from the attic hatch. Id. at 115. Officer Hanson can be heard on the audio recording stating "how much you want to bet we're going to find a gun up there." Ex. 16, 21:34:17 to 21:34:22. The officers later entered and searched the attic and found weapons in the insulation of the attic. Id. at 37; see Ex. 9, photograph.
The affidavit in support of the application for a warrant relates the following: the subscriber of utilities for the residence located at 3323 North 40th Avenue was a convicted felon with a history of forgery, crack cocaine possession and felony shoplifting. Hr'g Ex. 11, Affidavit and Application for the Issuance of a Search Warrant at 1, 3. Officer Hanson had received information about the whereabouts of a wanted person from a concerned citizen, who had provided him with accurate information in the past. Id. at 2. The citizen had observed a vehicle pull up to the residence located at 3323 N. 40th Street and had seen the defendant, Jermaine Finley, Jr., enter the residence. Id. Finley was known to the North Gang Unit of the Omaha Police Department as a member of the 44th Avenue Crip gang who had an outstanding domestic violence warrant for his arrest. Id. Finley was a known gang member because he wore gang colors, associated with gang members and was involved in gang-related crimes. Id. Officers had prior knowledge that he had a history of firearm possession and marijuana possession. Id. at 3. The affidavit further relates that uniform patrol officers approached the residence to execute the warrant and officers Fortune, Kerrie Orozco and Hanson could smell the distinct odor of marijuana emanating from the open front door. Id. at 2. Two known 44th Avenue Crip gang members, Greg Bahati and Dionte Dortch, exited the residence. Id. Affiant officers had prior knowledge that Bahati and Dortch were convicted felons with a history of assault, firearm possession, controlled substance possession and probation violations. Id. at 3. Bahati was then on bond for possession with intent to deliver crack cocaine. Id. The affiants reported they believed there was a possibility they would find marijuana in the residence due to the strong odor of marijuana emanating from the residence. Id. Their belief that they would locate firearms was based in part on the gang history of the occupants and in part on the firearms that had been found in the attic. Id. Both detectives who signed the affidavit had several years of experience with the gang unit and were familiar with the smell of marijuana through training and experience. Id.
At the close of the hearing, the magistrate judge found that the circumstances did not justify a protective sweep and recommended that the defendant's motion to suppress be granted with respect to the items identified in the protective sweep that had been set out in the search warrant and affidavit. See Filing No. 38, Hr'g Tr. at 132. Because the defendant exited the house and was arrested outside, the magistrate judge found there was no lawful basis for a protective sweep of the inside of the house. Id. He found the officers and occupants were in no immediate danger and the officers could have secured the perimeter, applied for a search warrant, and then entered the premises. Id. He stated that "under the circumstances of cases like this, if a protective sweep were allowed and were permissible constitutionally to enter a home, that the protective sweep would trump or literally swallow the requirement that a search warrant be required to enter someone's home." Id.
However, he found that, with all of the evidence gained by the protective sweep excised from the warrant application and affidavit, there remained sufficient information to establish probable cause for a search warrant. Id. at 133. He also found the officers' decision to seek a search warrant was not based on any illegally obtained evidence. Id. Further, the magistrate judge found that even if the affidavit was insufficient, the officers "were acting in good faith in the belief that this search warrant was a valid search warrant" and the evidence was admissible under the good-faith exception outlined in United States v. Leon, 468 U.S. 897, 921-22 (1984). Id. at 135.
The government objects to the magistrate judge's conclusion that the combination of factors known to and observed by the officers did not amount to an exigency sufficient to justify the protective sweep that preceded the application for the search warrant. The defendant objects to the magistrate judge's finding that the evidence was admissible under the independent source doctrine, notwithstanding the finding that the protective sweep was improper. The defendant ...