United States District Court, D. Nebraska
FINDINGS, RECOMMENDATION, AND ORDER
CHERYL R. ZWART UNITED STATES MAGISTRATE JUDGE
The defendant has moved to suppress all evidence seized during the execution of a warrant on July 8, 2015. (Filing No. 28). For the reasons discussed below, the motion to suppress should be denied.
The relevant facts from the hearing testimony, warrant application, and warrant are as follows:
On July 8, 2015, the Grand Island Emergency Center received a phone call regarding a possible overdose at 1413 Hagge Avenue in Grand Island, Nebraska. Grand Island Police Department (“GIPD”) Officers Ryan Sullivan and Loren Crouch were called to the scene at 2:31 a.m. The officers knocked on the front door and did not receive a response from inside the residence. After attempting to contact Kreifels (the residence’s owner) to gain consent to enter; checking for other ways to gain entry; and speaking with their supervisor; the officers forcibly entered the residence at 3:11 am.
Once inside, the officers navigated their way through the home until they found a nonresponsive woman in the living room. They called for emergency medical services (“EMS”) at 3:15 am. The woman stirred after Sullivan performed a sternum rub, but she was otherwise nonresponsive. Within the living room the officers noticed a strong smell of burnt marijuana. They observed a marijuana bong and container with a green, leafy substance believed to be marijuana in plain sight near the coffee table. Numerous pills of differing kinds were scattered across the floor, ottoman, and laptop computer located near the woman. Sullivan has been an officer with GIPD for 5 years; Crouch has been with GIPD for around a year. Both have training and experience with marijuana and drug-related materials.
The Grand Island Fire Department (“GIFD”) arrived at 3:21 am. Paramedic, Tanner Greenough took over patient care. In an effort to safely administer care, Greenough asked the officers to search the residence for any pill bottles that help identify what the woman ingested and any other prescription medication she may be taking. Greenough testified that treatment varies depending on what was ingested, and many medications conflict. That is, knowing what the woman had ingested is vital to administering proper treatment, and the patient safety is compromised when the substance ingested is not identified. Although there were many pills found in the living area, since many pills have a similar appearance, EMS and the officers were unable to identify them by sight alone.
Sullivan and Crouch did not observe, and were not able to find, pill bottles in the living room. They subsequently searched other locations in the home where they believed medication could be found. They looked in the bathroom, bedroom, and a set of open shelves in the hallway. Within the bedroom, officers observed many items believed to be drug related in plain sight. Officers saw a clear plastic container holding a green, leafy substance under the bed. On top of the dresser the officers observed a large digital scale with a plastic bowl on top containing a green, leafy residue which smelled like marijuana; a marijuana pipe; a jar containing a small amount of marijuana; and a marijuana grinder. Sullivan opened the top dresser drawer and saw a few pills in a bag. They observed some pills and rolling papers on a bookshelf. Near the bookshelf they found a clear plastic container holding pill bottles. The officers also saw bags containing a green, leafy residue. On the hallway shelves, the officers saw two clear containers containing a green, leafy residue.
After the officers walked through the residence, Sullivan handed the pill bottles found in the bedroom to Greenough. Greenough also collected the pills scattered in the living room for potential identification. Greenough was at the residence treating the woman for around 20 minutes and the ambulance departed at 3:43. Crouch followed the ambulance to the hospital and Sullivan remained at the house.
Due to the numerous items found indicating drug trafficking, the GIPD decided to request the guidance of the Central Nebraska Drug and Safe Street Task Force (“CNDSSTF”). Sergeant Atwell, a supervisor with the CNDSSTF, sent a task force investigator to assess the evidence. Investigator Kirkley, a drug investigator with the GIPD attached to the CNDSSTF, was called to the scene. Kirkley has completed more than 40 hours of narcotics investigator training. GIPD frequently contacts Kirkley in situations of drug-related activity, seeking his advice and input as to whether the GIPD should conduct a drug investigation.
Sullivan remained at the house and was joined by several other officers including Officers Riley and Renz who secured the property by sitting near the entrance. Kirkley arrived at 5:00 am and spoke with Sullivan. Sullivan reported what had happened and what he had observed. Sullivan then guided Kirkley through the residence, directing him to the items Sullivan and Crouch had seen and informing Kirkley of his conclusions regarding the items. Kirkley observed the items, took notes, and made his own conclusions. Kirkley was at the residence approximately 15 minutes.
Kirkley drafted the affidavit and warrant application. Within the application, Kirkley describes the GIPD’s involvement at the location, including the reasoning for the initial search. Kirkley discussed his involvement as arriving on the scene, receiving a report, and being led through the residence. He does not claim that he found the drug-related items or that his observations were independent of Sullivan’s; all information regarding the items found are discussed as being found by Crouch and Sullivan during the initial search and recognized by them based on their independent training and experience. (See Exh. 28). Judge Wetzel of the County Court of Hall County Nebraska concluded that probable cause was shown and a search warrant was issued around 8:30 a.m.
“It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is ‘per se unreasonable’” and is “‘subject only to a few specifically established and well-delineated exceptions.’” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). It is also well settled that an exception to the warrant requirement exists for searches conducted during exigent or emergency circumstances. Mincey v. Arizona, 437 U.S. 385 (1978); United States v. Valencia, 499 F.3d 813, 815 (8th Cir. 2007). In emergency situations, the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe a person within is in need of immediate aid. ...