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State v. Krajicek

Court of Appeals of Nebraska

March 13, 2018

State of Nebraska, appellee,
v.
Kurt C. Krajicek, appellant.

         1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error, but whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.

         2. Motions to Suppress: Pretrial Procedure: Trial: Appeal and Error. When a motion to suppress is denied pretrial and again during trial on renewed objection, an appellate court considers all the evidence, both from trial and from the hearings on the motion to suppress.

         3. Search and Seizure. Application of the good faith exception to the exclusionary rule is a question of law.

         4. Constitutional Law: Search and Seizure: Search Warrants. The Fourth Amendment to the U.S. Constitution guarantees the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and further provides that no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

         5. Constitutional Law: Search Warrants: Probable Cause. The execution of a search warrant without probable cause is unreasonable and violates constitutional guarantees.

         6. Search Warrants: Affidavits: Probable Cause. A search warrant, to be valid, must be supported by an affidavit which establishes probable cause.

         [25 Neb.App. 617] 7. Search Warrants: Probable Cause: Words and Phrases. Probable cause sufficient to justify issuance of a search warrant means a fair probability that contraband or evidence of a crime will be found.

         8. Search Warrants: Affidavits: Probable Cause: Appeal and Error. In reviewing the strength of an affidavit submitted as a basis for finding probable cause to issue a search warrant, an appellate court applies a totality of the circumstances test. The question is whether, under the totality of the circumstances illustrated by the affidavit, the issuing magistrate had a substantial basis for finding that the affidavit established probable cause.

         9. Search Warrants: Affidavits: Evidence: Appeal and Error. In evaluating the sufficiency of an affidavit used to obtain a search warrant, an appellate court is restricted to consideration of the information and circumstances contained within the four corners of the affidavit, and evidence which emerges after the warrant is issued has no bearing on whether the warrant was validly issued.

         10. Search Warrants: Affidavits: Probable Cause. The magistrate who is evaluating a probable cause question must make a practical, common-sense decision whether, given the totality of the circumstances set forth in the affidavit before him or her, including the veracity of and basis of knowledge of the persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

         11. Probable Cause. Probable cause to search is determined by a standard of objective reasonableness, that is, whether known facts and circumstances are sufficient to warrant a person of reasonable prudence in a belief that contraband or evidence of a crime will be found.

         12. Search Warrants: Probable Cause: Appeal and Error. A magistrate's determination of probable cause to issue a search warrant should be paid great deference by reviewing courts.

         13. Search Warrants: Affidavits: Appeal and Error. After-the-fact scrutiny by courts of the sufficiency of an affidavit used to obtain a search warrant should not take the form of a de novo review.

         14. Search Warrants: Affidavits: Probable Cause: Appeal and Error. Where the affidavit before the issuing magistrate contains information that an appellate court will not consider in a probable cause determination, the decision of the issuing magistrate is not entitled to such deference, but, rather, must be reviewed de novo.

         15. Constitutional Law: Search and Seizure: Evidence. The Fourth Amendment does not expressly preclude the use of evidence obtained in violation of its commands.

         [25 Neb.App. 618] 16. Search Warrants: Affidavits: Police Officers and Sheriffs: Evidence: Search and Seizure. The good faith exception provides that even in the absence of a valid affidavit to support a search warrant, evidence seized under the warrant need not be suppressed when police officers act in objectively reasonable good faith in reliance upon the warrant.

         17. Motions to Suppress: Search Warrants: Affidavits: Police Officers and Sheriffs: Evidence. Evidence may be suppressed if (1) the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his or her reckless disregard of the truth, (2) the issuing magistrate wholly abandoned his or her judicial role, (3) the warrant is based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, or (4) the warrant is so facially deficient that the executing officer cannot reasonably presume it to be valid.

         Appeal from the District Court for Douglas County: Kimberly Miller Pankonin, Judge. Affirmed

          Stuart J. Dornan and Jason E. Troia, of Dornan, Troia, Howard, Breitkreutz & Conway, P.C., L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Joe Meyer for appellee.

          Moore, Chief Judge, and Inbody and bishop, Judges.

          Bishop, Judge.

         After his motion to suppress evidence was overruled and following a stipulated bench trial, Kurt C. Krajicek was convicted in the Douglas County District Court of possession of a controlled substance and was sentenced to 2 years' probation. On appeal, Krajicek challenges the court's denial of his motion to suppress evidence obtained as a result of five search warrants. We affirm.

         FACTUAL BACKGROUND

         Krajicek filed a motion to suppress evidence obtained from the execution of five search warrants, all of which were [25 Neb.App. 619] obtained in the county court for Douglas County. The first search warrant, which Krajicek claims was based on an insufficient probable cause affidavit, lead to the issuance of all of the other warrants. We discuss each in turn.

         First Affidavit and Search Warrant- Krajicek's Residence.

         On August 13, 2015, Investigator Kevin Finn of the Nebraska State Patrol presented a county court judge with an "Affidavit and Application for Issuance of a Search Warrant" (Affidavit #1) for a single family dwelling located at a specified address on Pinkney Street in Omaha, Nebraska (residence).

         In his affidavit and application for a search warrant, Finn set forth the grounds for issuance of the warrant as follows:

On August 12, 2015 your affiant received information from Investigator Smoot #309 of the Nebraska State Patrol that Kurt Krajicek . . . is in possession of, using and distributing anabolic steroids from his residence. Your affiant was also informed Krajicek is renting the house and has a live in girlfriend . . . . Your affiant conducted a computer check of Krajicek and identified his primary address of . . . Pinkney St.
Your affiant verified the refuse pickup date was August 13, 2015. Investigators with the commercial interdiction unit conducted surveillance on the residence and observed a refuse bin filled with multiple trash bags sitting next to the roadside curb. Your affiant contacted an employee with Deffenbaugh [I]ndustries who agreed to assist with collection of the trash. Inv. Lutter observed a pickup belonging to Deffenbaugh [I]ndustries collect the trash from the residence and followed the vehicle to a meeting location. The garbage was handed over to your affiant and Lutter. Investigators returned to the Nebraska State Patrol Omaha office and conducted a search of the contents. Located within the trash were five syringe needles, two empty vials with the labeling of "[s]omatropin [25 Neb.App. 620] (rDNA origin) for injection", miscellaneous papers of venue and miscellaneous papers believed to be relating to 13th [S]treet Brickhouse liquor establishment.
Your affiant conducted research of somatropin and determined it to be on a Drug Enforcement Administration list as a human growth hormone and discovered through DEA sources; as part of the 1990 Anabolic Steroids Control Act, the distribution and possession, with the intent to distribute, of hGH "for any use other than the treatment of a disease or other recognized medical condition, pursuant to the order of a physician" is a violation of Nebraska state statute 28-416.
Furthermore your affiant examined the two bottles of [s]omatropin and observed no indication of a valid prescription for Krajicek or identifiable numbers. Your affiant observed the bottles to be written in an unknown language similar to that of Japanese or Chinese writing, along with the previously described [E]nglish labeling. Your ...

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