United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.
January 15, 2019, Magistrate Judge Cheryl R. Zwart made
proposed findings of fact and recommended that
Defendant's motion to suppress and request for an
evidentiary hearing (filing 20) be denied in all respects
(filing 25). Defendant has filed a timely statement of
objections to the findings and recommendation (filing 28). He
argues in a supporting brief (filing 29) that a search
warrant for his residence was not supported by probable
cause, and that he is entitled to a Franks hearing
because of material omissions in the affidavit submitted by
novo review, I find that the findings and recommendation
should be adopted, as modified by this memorandum.
See Fed. R. Crim. P. 59(c).
has been charged with possession of a firearm by a
felon. Police officers found firearms and
ammunition when they executed a search warrant at
Defendant's residence in Ord, Nebraska, on April 3, 2017.
has moved to suppress all evidence obtained as a result of
that search, and also all evidence obtained as a result of a
trash pull that preceded the search of his residence (filing
20). Defendant requested a Franks hearing and in
support thereof presented a copy of the affidavit that was
used to obtain the search warrant (filing 22-1) and his own
affidavit (filing 22-2). A copy of the search warrant was not
submitted as an exhibit.
affidavit for the search warrant was prepared by Officer Paul
Deaver of the Ord City Police Department and was submitted to
the County Court of Valley County, Nebraska. The affidavit
provides information showing that Defendant is a convicted
felon and that his girlfriend, who resides at the same
address in Ord, was known to have purchased a 12-gauge
shotgun on September 14, 2016. Officer Deaver then describes
the trash pull that he and Officer Jessica Sevigny conducted
at that address on April 3, 2017:
On April 3, 2017, JJ Sanitation employee Thaine Horsley drove
the garbage truck to 1114 T Street, Ord, NE 68862, to
retrieve the trash. I personally rode in the cab of the
garbage truck. When the truck arrived at approximately 1140
hours, I saw the trash receptacle placed on the East side of
the garage at 1114 T Street, Ord, NE. I got out of the truck
and physically brought the trash container to the truck.
Thaine Horsley operated the hydraulic levers to have the
garbage dumped into the back of the garbage truck. The five
(5) bags of trash were placed into the back of the garbage
truck. The garbage truck operator Thaine Horsley got back
into the truck and drove it to the Ord Fire Department. I
rode with Horsely [sic] to the Ord Fire Department.
Once at the Ord Fire Department, Officer Sevigny and I
unloaded the trash and carried it into the building. The
above property is located in Valley County Nebraska.
22-1, p. 2 (paragraph numbering omitted)).
discovered during the search of the trash included a ziplock
bag containing plant matter that field tested positive for
marijuana; pieces of other food saver bags that had a
distinct odor of marijuana; several gun parts store
magazines; financial records showing several purchases from
gun parts stores; and an invoice for a parts kit to modify a
Glock or similar firearm (filing 22-1, pp. 2-3). Officer
Deaver requested a no-knock warrant to be served during
nighttime hours which would allow for the search of premises,
buildings, vehicles and persons at 1114 T Street and allow
for the seizure of firearms, gun parts and ammunition,
marijuana and other controlled substances, items associated
with drug distribution and drug paraphernalia, and any
cellular telephones (filing 22-1, p. 4).
affidavit states in pertinent part:
resided at 1114 T Street, Ord, NE, from approximately 2013
until April 5, 2017.
When I resided at 1114 T Street, Ord, NE, the normal weekly
pick-up day for garbage was on Monday. Further, if trash was
to be collected, which wasn't every week but only when
necessary, my girlfriend or I would roll the trash receptacle
from the private property next to my residence to a public
property location (approximately 200ft to the east where
others had placed theirs) for pick-up. If either of us did
not place the trash receptacle at this public property
location the refuse was not intended to be collected that
Initially, during the first fall living there I had noticed,
and caught them while driving through, I expressed to the
driver it was tearing up the driveway, and then was