United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. GERRARD UNITED STATES DISTRICT JUDGE.
matter is before the Court on the defendant's motion to
suppress (filing 28), the Magistrate Judge's findings and
recommendation (filing 56) on the motion to suppress, and the
defendant's objection (filing 60) to the findings and
recommendation. The Court has conducted a supplemental
evidentiary hearing on the motion to suppress and, based on
the evidence presented at that hearing in addition to the
evidence presented before the Magistrate Judge, the Court
will overrule the defendant's objection, adopt the
findings and recommendation, and deny the motion to suppress.
underlying facts of the case are set forth in the Magistrate
Judge's order, filing 56 at 1-4, and the Court's
Memorandum and Order of April 29, 2016, filing 61, and will
not be repeated here. The Court has reviewed the Magistrate
Judge's findings and recommendation de novo, and
has received further evidence relevant to the motion to
suppress. See, 28 U.S.C. § 636(b)(1); Fed. R.
Crim. P. 59(b)(3); NECrimR 59.2(b). The sole issue addressed
at the supplemental hearing was whether the third and final
search of the residence, performed pursuant to the search
warrant obtained by Investigator Kirkley, was an
"independent" source of evidence within the meaning
of the independent source doctrine.
explained in the Court's previous order (filing 61), the
search performed pursuant to the search warrant may be an
independent source of the challenged evidence if the decision
to seek the warrant was not prompted by what was seen during
the second, unlawful entry, and if information obtained
during that entry did not affect the magistrate's
decision to issue the warrant. United States v.
Leveringston, 397 F.3d 1112, 1115 (8th Cir. 2005)
(citing Murray v. United States, 487 U.S. 533
(1988)). In particular, "what counts is whether the
actual illegal search had any effect in producing the
warrant[.]" United States v. Craig, 630 F.3d
717, 722 (8th Cir. 2011) (quoting Murray, 487 U.S.
at 542 n.3). In other words, the question is, if Kirkley had
not entered the residence unlawfully, would police still have
sought a warrant? See Id. And the government is to
present "specific evidence that the officers were not
prompted by allegedly unlawful activity to obtain the
warrant, and [to] seek a finding on that point from the
district court." Leveringston, 397 F.3d at
on the evidence presented at the supplemental hearing, the
Court finds that the government has carried its burden, in
two different ways. First, Kirkley testified that
Sullivan's observations, when related to him, were
sufficient to obtain a search warrant, and that he would have
sought a warrant even had he not been led through the
residence by Sullivan. The Court finds that testimony
credible, and consistent with the testimony of both Sullivan
and Kirkley at the evidentiary hearing before the Magistrate
Judge. See filing 51 at 43, 105. Observations of
fellow officers of the government engaged in a common
investigation are plainly a reliable basis for a warrant
applied for by one of their number. United States v.
Ventresca, 380 U.S. 102, 111 (1965). And, in fact, when
applying for the warrant, Kirkley's affidavit related
Sullivan's observations of the residence instead of his
own. This evidence, the Court finds, sufficiently
demonstrates that Kirkley would have sought and obtained a
search warrant even without his own unlawful search.
Officer Sullivan testified that based on his observations
during the initial, lawful search of the residence, he would
have sought a search warrant had another officer been
unavailable to do so. The Court also finds that testimony
credible, and it implicates the inevitable discovery
doctrine, which is an "extrapolation from the
independent source doctrine." Murray v. United
States, 487 U.S. 533, 539 (1988). Had Kirkley not come
to the scene, Sullivan would have sought the warrant instead,
and the same evidence would have been discovered upon the
execution of that warrant, and because "the tainted
evidence would be admissible if in fact discovered through an
independent source, it should be admissible if it inevitably
would have been discovered." Id.
the evidence shows that had Kirkley not unlawfully searched
the residence, he would nonetheless have obtained the warrant
based on Sullivan's observations, and had Kirkley not
come to the scene at all, Sullivan would have obtained the
warrant instead. This means that the warranted search was an
independent source of the evidence, untainted by
Kirkley's unlawful search, and that the evidence would
have been inevitably discovered in any event. Based upon
those findings, the Court will deny the defendant's
motion to suppress the evidence.
defendant's objection (filing 60) the Magistrate
Judge's findings and recommendation is overruled.
Magistrate Judge's findings and recommendation (filing
56) are adopted.
defendant's motion to suppress (filing 28) is denied.
 The Court previously rejected the
government's argument that Kirkley's search was a
"continuation" of the initial search performed
under exigent ...