United States District Court, D. Nebraska
FINDINGS, RECOMMENDATION, AND ORDER
R. Zwart United States Magistrate Judge
Mazzulla seeks to suppress all evidence seized when the
“detached garage at 1421 South Folsom, Lincoln,
Lancaster County, Nebraska” (hereafter “the
Folsom Street garage”) was searched on April 2, 2017
and April 22, 2017. (Filing No. 39 & Filing
No. 54). Defendant argues the warrant applications
submitted by Officer Anthony Gratz of the Lincoln Police
Department fail to support a finding of probable cause
because they do not provide a nexus between the place to be
searched and alleged criminal activity. (Filing No. 55,
at CM/ECF pp. 11-14). Defendant further argues that even
if the applications do support a probable cause finding,
Gratz included false information and concealed material
information when applying for the warrants, and if corrected
to include the omitted information and to remove the false
information, the warrant applications failed to provide a
sufficient showing of probable cause. Defendant argues the
Leon good faith exception (United States v.
Leon, 468 U.S. 897, 916 (1984)), cannot apply because
Gratz misrepresented the facts when applying for the warrant.
(Filing No. 55, at CM/ECF pp. 7-9; 32-35).
Finally, Defendant claims that even assuming the warrants
were valid, the recreational vehicle parked in the garage was
Defendant's home, the warrants did not permit a
residential search, and the officers' search exceeded the
scope authorized by the warrants. (Filing No. 55, at
CM/ECF pp. 27-32).
support of his motion and supplemental motion to suppress,
Defendant submitted Officer Gratz' warrant applications
along with copies of testimony provided before the state
court, LPD records, Nebraska crime laboratory reports, the
affidavit of Mazzulla's former counsel, and video
recordings. Defendant claims this additional information,
when compared to Gratz' affidavits in support of the
applications to search the Folsom Street garage, provides the
threshold showing for a Franks hearing. For the
reasons discussed below, Defendant's motions challenging
the warrants as lacking probable cause and for a
Franks hearing should be denied. However, a hearing
will be held on Defendant's motion to suppress the
evidence found during a search of the recreational vehicle
within the garage.
search warrant and accompanying application is considered
presumptively valid. Franks v. Delaware, 438 U.S.
154, 171 (1978). And even if the judge issued the warrant in
error, evidence seized pursuant to a search warrant will not
be suppressed if the executing officers' reliance upon
the warrant was objectively reasonable. Leon, 468
U.S. at 916. This good-faith exception does not apply when 1)
the judge issuing the warrant was misled by an affiant's
false statements; 2) the issuing judge wholly abandoned his
or her judicial role; 3) the affidavit is so lacking in
indicia of probable cause that official belief in its
existence is entirely unreasonable; or 4) the warrant is so
facially deficient that the officers cannot reasonably
presume it to be valid. Leon, 468 U.S. at 923.
does not argue the issuing judge “rubber-stamped”
Gratz' warrant applications. He argues the affiant
officer misled the issuing judge by concealing material facts
and including false statements in the applications such that
the resulting warrants were not only facially deficient, but
were based on material misrepresentations.
defendant challenges a warrant application, a hearing is not
required unless the defendant makes a threshold showing that
the affiant deliberately misled the judge, and had the judge
known the truth, the application would have been denied for
lack of probable cause.
[T]he challenger's attack must be more than conclusory
and must be supported by more than a mere desire to cross
examine. There must be allegations of deliberate falsehood or
of reckless disregard for the truth, and those allegations
must be accompanied by an offer of proof. They should point
out specifically the portion of the warrant affidavit that is
claimed to be false; and they should be accompanied by a
statement of supporting reasons. Affidavits or sworn or
otherwise reliable statements of witnesses should be
furnished, or their absence satisfactorily explained.
Franks, 438 U.S. at 171. Even assuming the defendant
shows information within the application was false, or that
material information was omitted, the defendant is not
entitled to a hearing unless he first shows that the warrant
application, corrected to remove allegedly false information
and to include allegedly concealed material facts, would not
have supported a finding of probable cause. Franks,
438 U.S. at 170; United States v. Frazier, 280 F.3d
835, 845 (8th Cir. 2002).
challenges the warrant application on its face, arguing there
was no showing of probable cause and no reasonable officer
would have relied on the warrant as authority to search the
garage at issue. “[O]nly 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). But in this
case, Defendant argues the warrant affidavits were misleading
and cannot be relied upon to determine if probable cause
review of the arguments and facts presented in this case, the
undersigned magistrate judge finds outlining the warrant
application as written, and then as corrected to reflect
Defendant's arguments, would be unnecessarily repetitive.
So the statement of facts below will discuss what would have
been presented to the reviewing judge had the four corners of
the warrant application been revised as Defendant suggests.
WARRANT APPLICATIONS As Corrected for Franks Review
warrant applications at issue are dated April 2, 2017 and
April 22, 2017, and both authorize the search of the Folsom
Street garage. (Filing No. 41-1, at CM/ECF p. 4;
Filing No. 41-2 at 12).
April 2, 2017 Warrant Application.
Gratz' April 2, 2017 warrant affidavit, corrected to
add alleged concealed information and to delete alleged false
• The Folsom Street garage is detached and located on
the South side of an alley.
• On April 2, 2017, while investigating illegal
narcotics activity, Gratz contacted Troy D. Utley. Utley had
methamphetamine on his person. Utley, an informant of unknown
reliability, stated his methamphetamine came from Shawndelle
Burke who lived at 1010 South 10th Street, Lincoln, Nebraska
(a substantial distance from the Folsom Street garage), and
Burke had a half-pound of methamphetamine in her possession
earlier that day. Utley stated that during past interactions,
Burke possessed half- to two-pound quantities of
methamphetamine, and “Rod” was Burke's
• Utley stated Rod resided in a utility shop near Folsom
and West A Streets, and at Gratz' request, Utley pointed
out the utility shop-the Folsom Street garage. Utley stated,
"I don't know very much about him (Rod), "
having met him only twice.
• Utley stated Burke was driving a newer red Lincoln
automobile. At 4:00 a.m. on April 2, 2017, while conducting
surveillance, Gratz saw a newer red Lincoln car parked in the
alley behind the Folsom Street garage. Burke was not the
registered owner of this vehicle.
• While conducting surveillance on April 2, 2017, Gratz
also saw Richard D. Scov approach the Folsom Street garage on
a bicycle. Scov entered the garage, left, and was then
stopped by an LPD officer. Prior to the stop, the officer saw
Scov drop some items. The items were retrieved and determined
to be methamphetamine and drug paraphernalia. In response to
questioning, Scov, an informant of unknown reliability,
stated he was coming from Rod ...