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United States v. Hansen

United States District Court, D. Nebraska

January 15, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
EDWARD R. HANSEN, Defendant.

          FINDINGS, RECOMMENDATION, AND ORDER

          Cheryl R. Zwart, United States Magistrate Judge

         Defendant has filed a motion to suppress evidence obtained during the search of his residence pursuant to a warrant. Defendant argues the warrant application included evidence the affiant officer found when the officer examined the garbage in Defendant's trash container sitting next to his garage, this trash pull violated Defendant's Fourth Amendment rights, and absent the information unlawfully seized during the trash pull, the warrant application lacks a showing of probable cause. Defendant further argues that the officers cannot rely on the Leon good faith exception as a defense to suppression. (Filing No. 20).

         For the reasons discussed before, the motion to suppress should be denied.

         STANDARD OF REVIEW

         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, ” and probable cause is assessed “from the viewpoint of a reasonably prudent police officer acting in the circumstances of a particular case.” United States v. Reinholz, 245 F.3d 765, 776 (8th Cir. 2001). “The determination of whether or not probable cause exists to issue a search warrant is to be based upon a common-sense reading of the entire affidavit.” United States v. Seidel, 677 F.3d 334, 338 (8th Cir. 2012) (internal quotations omitted).

[T]he Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants. . . must be tested and interpreted by . . . courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

United States v. Ventresca, 380 U.S. 102, 108 (1965).

         FACTS OF RECORD

         1. The warrant application.

         The affiant officer, Officer Paul Deaver of the Ord Police Department, submitted the warrant application to a judge in Valley County, Nebraska, on April 3, 2017. The warrant affidavit states:

         Prior to April 3, 2017, Deaver had contact with Edward R. Hansen, who resides with his girlfriend, Jessica L. Proskocil, at a residence in Ord, Nebraska. The officer knew Hansen had a felony record for attempted possession with intent to distribute illegal drugs.

         On April 3, 2017, the affiant officer reviewed a Firearms Transaction Record which confirmed that Proskocil lived with Hansen and indicated Proskocil purchased a twelve-gauge shotgun on September 14, 2016.

         In April of 2017, JJ Sanitation provided the garbage hauling services for Defendant's residence. On April 3, 2017, Officer Jessica Sevigny rode as a passenger in the garbage truck. The truck drove to Hansen's residence, arriving there at 11:40 a.m. Officer Sevigny saw Hansen's trash receptacle on the east side of the garage, retrieved the trash container and brought it to the truck. The five trash bags within the ...


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