United States District Court, D. Nebraska
E. Peithman, Jr., Defendant, represented by Korey L. Reiman,
REIMAN LAW FIRM.
A. Elder, Defendant, represented by Richard L. Boucher,
BOUCHER LAW FIRM & Seth W. Morris, BOUCHER LAW FIRM.
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.
Plaintiff, represented by Sara E. Fullerton, U.S.
FINDINGS, RECOMMENDATION, AND ORDER
R. ZWART, Magistrate Judge.
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
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:
Facts within the Warrant Application.
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:
â¢ 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.
â¢ 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.
â¢ 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, ...