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United States v. Hansen

United States District Court, D. Nebraska

March 19, 2019

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

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.

         On 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 law enforcement.

         Upon de novo review, I find that the findings and recommendation should be adopted, as modified by this memorandum. See Fed. R. Crim. P. 59(c).

         I. DISCUSSION

         Defendant has been charged with possession of a firearm by a felon.[1] Police officers found firearms and ammunition when they executed a search warrant at Defendant's residence in Ord, Nebraska, on April 3, 2017.

         Defendant 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.

         The 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.

         (Filing 22-1, p. 2 (paragraph numbering omitted)).

         Items 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).

         Defendant's affidavit states in pertinent part:

         I 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 week.
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 ...

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