United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge
matter is before the court on remand from the United States
Court of Appeals for the Eighth Circuit (“Eighth
Circuit”) for additional findings in connection with
the defendant's motion to suppress, Filing No.
13. See Filing No. 46, Eighth Circuit Opinion.
The defendant has been charged with unlawful possession of a
machinegun in violation of 18 U.S.C. §§
922(o) and 924(a)(2), and being an unlawful addict or
user of a controlled substance in possession of a weapon in
violation of § 922(g)(3).
Eighth Circuit reversed, in part, this court's
suppression of evidence seized in a search of the
defendant's home on December 18, 2014. The facts are set
forth in the Eighth Circuit Opinion and in this court's
earlier order and need not be repeated here, except as
necessary to this ruling. See Filing No.
46, Eighth Circuit Opinion at 1-3; Filing No.
32, Memorandum and Order at 1-8.
law enforcement officers were investigating a suspected
marijuana growing operation. Thinking he did not have enough
evidence for a search warrant, Nebraska State Patrol
(“NSP”) Narcotics Investigator Richard Lutter
conducted a “knock and talk” at the
defendant's house at 1915 South 8th St. in Omaha,
Nebraska, on December 18, 2014. When the defendant opened the
door, the contact officer smelled an overwhelming odor of
marijuana. They entered the defendant's house and
performed a protective sweep, finding guns, paraphernalia,
and several marijuana plants. They then sought and obtained a
court earlier found the defendant's motion to suppress
should be granted. Filing No. 32, Memorandum and
Order at 25. The government appealed and the Eighth Circuit
reversed in part. Filing No. 46, Eighth Circuit
Opinion at 6-8. The Eighth Circuit found that suppression
based on the law enforcement officers' warrantless entry
into the defendant's home was improper because “the
officers' belief [the defendant] consented to their entry
was objectively reasonable.” Id. at 5. It
found, however, that “a protective sweep in the absence
of an arrest or reasonable suspicion of dangerous individuals
was clearly illegal, ” and remanded for a determination
of whether the independent source doctrine applies in this
case. Id. at 7.
the independent source doctrine, the exclusionary rule is
inapplicable where the evidence was acquired through a source
independent of the tainted search.” Id.
(quoting United States v. Brooks, 715 F.3d 1069, 1075
(8th Cir. 2013)). The Eighth Circuit stated that
“[t]o determine whether a warrant including tainted
information is an independent source, this court asks
‘first, would the police have applied for the warrant
had they not acquired the tainted information; and second, do
the application affidavits support probable cause after the
tainted information has been redacted from them.'”
Id. (quoting United States v. Swope, 542 F.3d
609, 613 (8th Cir. 2008)). Specifically, “[t]he
district court must ‘explicitly find that the agents
would have sought a warrant if they had not earlier'
performed the unconstitutional sweep.” Id.
(quoting Murray v. United States, 487 U.S. 533, 542
court held a hearing on the motion on October 19, 2016. The
parties agree that the issue can be resolved on the record,
including the warrant application and a videotape of the law
enforcement encounter at the defendant's home on December
18, 2016. See Hearing Exhibits (“Hr'g
Exs.”) 1 and 2.
Affidavit and Application for Issuance of a Search Warrant,
Investigator Lutter states he had conducted surveillance
beginning in June of 2014 of the premises located at 1915
South 8th Street, Omaha, Nebraska, for the possible criminal
act of manufacturing marijuana. Hr'g Ex. 1. Investigator
Lutter has been employed by NSP since 1991 and has been a
Narcotics Investigator since 1994. He has undergone over 900
hours of training in drug trafficking investigation and has
been involved in over 1100 drug-trafficking investigations.
He states that during intermittent surveillance of the
premises, he observed items consistent in the manufacturing
of marijuana on the property-a large number of planting pots,
CO2 metal compressed air containers, and multiple large
plastic barrels. As a result of his experience with the drug
interdiction unit, he was aware that compressed CO2 is
commonly used in the manufacturing of marijuana and that
large plastic barrels are used in indoor marijuana growing
operations. He was also aware that clandestine grow
operations will have multiple planting pots associated with
Lutter was able to identify the owner of the property as
Joshua W. Rodriguez. As part of his investigation, he checked
defendant Rodriguez's criminal history and determined
that Rodriguez had prior arrests for possession of a
controlled substance and for carrying a concealed weapon. He
was also aware that Rodriguez has a Nebraska issued concealed
Lutter stated in the affidavit that he had attempted to
locate and examine the refuse from the residence but found
that the resident guarded the material placing it out just
prior to pick up or not placing anything out at all.
Investigator Lutter obtained and reviewed the utilities usage
records of the Rodriguez residence, along with two unrelated
residences for comparison, and determined that the home's
electrical usage was more than four times that of the
comparison locations. He stated that he was aware that the
excessive use of power is consistent with the operation of a
clandestine grow operation.
Investigator Lutter stated that he conducted surveillance of
Rodriguez on December 10, 2014. He observed Rodriguez leaving
his residence in a white Toyota, registered in his name at
the 8th Street residence. Rodriguez was later stopped by NSP
Trooper Prante for a traffic violation and was issued a
warning. Officer Lutter noted that Rodriguez did not stop at
any point until contacted by Trooper Prante. Investigator
Lutter spoke to Trooper Prante at the conclusion of the
traffic stop and was informed that Rodriquez had been issued
a warning and the vehicle was searched due to plain odor.
Trooper Prante told Investigator Lutter that he had detected
the overwhelming distinct odor of raw or unburnt marijuana.
He also told Investigator Lutter that no contraband was
located during the search but that two weapons were found on
Lutter also related in the affidavit that Trooper Prante told
him the overwhelming distinct odor of marijuana quickly
dissipated from the vehicle and moved with Rodriquez as
Rodriquez exited the vehicle. Investigator Lutter states in
the affidavit that as a result of his training and experience
he was aware that locations containing indoor marijuana
growing operations commonly have an overwhelming odor of
marijuana on the property and people leaving the locations
will carry the odor on their persons and clothing. He also
related that when he contacted Rodriguez at the residence on
December 18, 2014, he detected a strong odor of marijuana as
the door opened.
this court again reviewed the videotape of the December 18,
2014, encounter. Hr'g Ex. 2. The videotape shows that
after entering the defendant's home, Investigator Lutter
tells the defendant that there is a strong smell of marijuana
in the house. Investigator Lutter states “I have no
evidence to support a charge as of right now, um, but I
believe I have enough evidence to support applying for a
search warrant, whether or not the Judge would grant that
search warrant or not is going to be up to the Judge, it
always is, but based on twenty years of experience I believe
I have enough to secure a search warrant for the
residence.” See Ex. 1 at ...