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United States v. Elder

United States District Court, D. Nebraska

August 12, 2016

UNITED STATES OF AMERICA, Plaintiffs,
v.
SHARON A. ELDER, Defendants.

          Allen E. Peithman, Jr., Defendant, represented by Korey L. Reiman, REIMAN LAW FIRM.

          Sharon A. Elder, Defendant, represented by Richard L. Boucher, BOUCHER LAW FIRM & Seth W. Morris, BOUCHER LAW FIRM.

          Jacie L. Sanne, Defendant, represented by John C. Vanderslice, FEDERAL PUBLIC DEFENDER'S OFFICE.

          Cornerstone Plaza, Defendant, represented by Richard L. Boucher, BOUCHER LAW FIRM & Seth W. Morris, BOUCHER LAW FIRM.

          USA, Plaintiff, represented by Sara E. Fullerton, U.S. ATTORNEY'S OFFICE.

          FINDINGS, RECOMMENDATION, AND ORDER

          CHERYL R. ZWART, Magistrate Judge.

         Defendant Elder has moved to suppress any and all evidence obtained from the execution of a search warrant issued on April 23, 2015. (Filing No. 112). Elder claims the search of her business, Island Smokes, located at 1075 North 33rd Street, Lincoln, Nebraska, was not supported by probable cause and the search conducted pursuant to that warrant violated her Fourth Amendment rights. She additionally claims statements were gathered before and after her arrest in violation of her Fifth Amendment rights. For the following reasons, as to the Fourth Amendment claims, the motion to suppress should be denied. An evidentiary hearing will be held on the Fifth Amendment claims.

         Fourth Amendment Claim

         The challenged search of Island Smokes was conducted pursuant to a warrant. Therefore, "only that information which is found within the four corners of the [warrant] affidavit may be considered in determining the existence of probable cause." United States v. Solomon, 432 F.3d 824, 827 (8th Cir. 2005)(citations omitted). The relevant facts from warrant application are as follows:

         a) Facts within the Warrant Application.

         In April of 2015, the Lincoln Police Department was investigating the sale and distribution of products that were causing medical emergencies and/or overdoses in the Lincoln area. In mid-April of 2015, officers were dispatched to the following medical emergencies:

• A man, Mininick, was found unresponsive and in need of medical care. He later informed officers he purchased products called "Mr. Big Shot" and "Platinum" at Island Smokes.
• A woman reported her boyfriend was having an adverse effect to a "K2" product called "Mr. Big Shot." The woman said her boyfriend purchased the product at a smoke shop near 33rd and Y streets, the location of Island Smokes. She stated he smoked the product with a glass pipe. A package of "Mr. Big Shot" and an unopened package of "New Joker" were seized as evidence.
• Officers were dispatched to a medical call in which a man, Sully, was vomiting and not alert. On the scene, they found the man in a semi-conscious state, unable to communicate, and unable to stand. An opened package of "Mr. Big Shot" was found on his person along with a smoking pipe that appeared to contain "potpourri" in the bowl. Sully's companion, Baum, ...

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