United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon, Senior United States District Judge
matter is before the court on defendant Danielle
Zelazny's motion in limine to exclude all evidence
obtained by the government during a search of the premises at
1308 Hancock Street in Bellevue, Nebraska, on April 9, 2015.
Filing No. 107. Zelazny asserts the search warrant
was not supported by probable cause, and that the United
States v. Leon, 468 U.S. 897 (1984), good faith
exception does not apply. Filing No. 108. For the
reasons stated herein, the court grants Zelazny's motion.
Fourth Amendment of the United States Constitution prohibits
unreasonable searches and seizures and provides that a
warrant may not be issued without probable cause. U.S.
Const. amend. IV. To determine whether probable cause
exists to support a search warrant we look at the totality of
the circumstances. United States v. Seidel, 677 F.3d
334, 337 (8th Cir. 2012). A warrant is supported by probable
cause if there is a fair probability that contraband or
evidence of a crime will be found in the place to be
searched. Id. There must be evidence of a nexus
between the contraband and the place to be searched before a
warrant may properly issue. United States v. Perry,
531 F.3d 662, 665 (8th Cir. 2008). Generally speaking,
evidence gained from a fourth- amendment violation may not be
used against a defendant at trial. United States v.
Quezada, 448 F.3d 1005 (8th Cir. 2006).
affidavit supporting the search warrant in this case asserted
5. On April 8, 2015, affiant officer was contacted by a
reliable Confidential Source (CS) who advised he/she was
receiving several threatening text and picture messages via
his/her mobile telephone. CS is currently in Nebraska and was
receiving the threatening messages while in Omaha, Nebraska.
CS advised the source of the threatening messages was a
person known him/her as Danielle ZELAZNY as identified by the
telephone number (402) 595-0900 (DEVICE) as well as pictures
of her which the CS received. The first picture shows ZELAZNY
pointing a gun at the camera, while the second photo shows
ZELAZNY holding the gun barrel close to her face and she
appears to be blowing the would be smoke away from the tip of
6. Next, the content of the messages make reference to Ryan
FRANKS and Esther DURHAM being arrested for miscellaneous
counts of drug trafficking. Afterwards, a plain message with
the word, “snitch” was received. According to CS,
he/she received over 100 messages from the DEVICE between
10:00 pm on April 7, 2015 and 2:00 pm on April 8, 2015.
Federal charges are currently pending against Franks and
Durham in Case Number 8:14CR371. The CS provided information
to DEA in that resulted in the arrest and indictment of
Franks and Durham.
7. On April 8, 2015, affiant applied for and was granted a
search warrant to track the location of the DEVICE which is
believed to be in ZELAZNY's possession.
8. On April 9, 2015, Affiant officer began monitoring the GPS
information from the DEVICE while a surveillance team
attempted to locate ZELAZNY. About 0915 hours, ZELAZNY was
located at 708 North 114th Street, which is Harry's Smoke
and Vapor Shop in Omaha, Nebraska. ZELAZNY was positively
identified by Special Agent Timothy Starmer as ZELAZNY was
getting into her vehicle. The vehicle is a black 2000
Chevrolet Blazer, which is registered to her in the State of
Nebraska (TWL-675). As ZELAZNY left the shop, the
surveillance team began following her vehicle. At about 0945
hours, ZELAZNY drove past the CS's residence, but did not
stop. The CS vehicle was not parked in the front of the
residence as it normally would be at that time.
9. At approximately 1230, on April 9, 2015, surveillance
officers followed ZELAZNY to the residence located at 1308
Hancock Street, Bellevue, NE. ZELAZNY entered the residence
and then departed between 1245 and 1300. Upon leaving the
residence ZELAZNY was stopped by law enforcement officer in
the vicinity of Highway 370 and Golden Blvd in Bellevue and
arrested. During the arrest, law enforcement smelled the odor
of burnt marijuana and subsequently searched the vehicle. Law
enforcement found a mason jar full of marijuana in
ZELAZNY'S purse which was located in the passenger
compartment of the vehicle.
8:15-mj-00099 (D. Neb, Apr. 9, 2015), Filing No. 1 at 3-5.
Property to be seized under the warrant included firearms,
controlled substances, a cellular telephone, text messages,
evidence of who used or owned the cellular telephone,
photographs on the telephone, and records of internet
history. Id. at 14.
preliminary matter, the government argues this issue has
already been decided. Filing No. 109 at 2-3. Zelazny
previously filed motions before the magistrate judge to
suppress three warrants, including the one at issue here.
Filing No. 39, 39-2, 39-4. Specifically, Zelazny had
argued that the warrant at issue contained no factual basis
establishing the reliability and credibility of the
confidential source, and that it contained several incorrect
facts regarding the location of the vehicle and of the
cellular telephone. See Filing No. 39-2 at 1-2. The
magistrate recommended denial of the motion to suppress
because the apparently inadvertent misstatements of fact did
not mislead the magistrate in issuing the warrant. Filing
No. 53 at 5-6. The magistrate judge indeed found there
was probable cause for the issuance of the warrant.
Id. at 6. This court adopted the magistrate
judge's findings and recommendation in their entirety.
Filing No. 54.
that order does not prevent the court from now finding the
warrant lacked probable cause on other grounds. The issue of
whether the factual basis provided a sufficient nexus between
the Hancock Street residence and the property sought was not
at issue in the previous motions to suppress. Neither the
magistrate judge nor the court considered the question at
that time. Thus it is incumbent upon the court, in the
interest of justice, to decide the present motion in limine
on the merits.
affidavit does not support a finding of probable cause.
Paragraph 9 sets forth the only nexus between the property
sought and the Hancock Street residence- an assertion that
Zelazny stopped at the residence for approximately 15-30
minutes on the day of her arrest. See 8:15-mj-00099
(D. Neb, Apr. 9, 2015), Filing No. 1 at 5. The affidavit does
not reveal any other connections Zelazny or her crime might
have had to the residence; there is no allegation that
Zelazny owned or resided there, that she was seen taking
anything into or out of the residence, or that she was in the
residence at the time she allegedly sent the threatening
messages. There is nothing whatsoever in the warrant to
suggest why there was a fair probability that the property
sought would have been found at the Hancock Street residence.
admit the evidence obtained in this search would set a
dangerous precedent. The thin reasoning of the search warrant
affidavit would subject any number of homes to searches
merely because, at some juncture in time, a defendant had
stepped foot on the premises. It would not matter that the
defendant did not own the property, did not stay at the
property, committed no crime there, nor left ...