United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
Michael D. Nelson United States Magistrate Judge
matter is before the Court on the Motion to Suppress Search
and Statement (Filing No. 27) filed by Defendant,
Farrell Mitchell. Defendant filed a brief (Filing No.
30) in support of the motion and the government filed a
brief (Filing No. 35) in opposition. The Court held
an evidentiary hearing on the motion on March 14, 2019.
Defendant was present with his attorney, Donald Schense. The
government was represented by Assistant United States
Attorney, Matt Lierman. No witnesses were called by either
party. Exhibits 1-7 were offered by the government and
received by the Court. A transcript (TR.) of the hearing was
prepared and filed on April 22, 2019. (Filing No.
43). The matter is now fully submitted to the Court. For
the following reasons, the undersigned magistrate judge
recommends that the motion be denied.
September 18, 2018, Defendant was charged in a one-count
Indictment with being a prohibited person in possession of
ammunition following the execution of a search warrant at
Defendant's residence on October 17, 2017. (Filing
No. 1). While Defendant was being served with the arrest
warrant for the charge in the Indictment on October 2, 2018,
officers recovered a handgun that Defendant allegedly tossed
during a pursuit. Subsequently, on October 17, 2018,
Defendant was charged in a Superseding Indictment with two
counts of being a prohibited person in possession of a
firearm and ammunition, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). (Filing No.
15). Defendant seeks to suppress the evidence supporting
the charges in the superseding indictment, arguing that the
evidence seized by law enforcement on October 17, 2017, was
made pursuant to a search warrant that was not supported by
probable cause. Defendant further argues that any statements
he made on the date the search warrant was executed, as well
as statements he made following his arrest one year later,
are derived from the search warrant's execution and are
therefore tainted and should be suppressed.
October 14, 2017, a Nebraska county court judge signed a
no-knock search warrant for a residence at 6912 Florence
Boulevard in Omaha, Nebraska, based upon an affidavit
submitted by Officer Jason Friedrichsen. According to Officer
Friedrichsen's affidavit, officers learned that Defendant
lived at the Florence Boulevard address after encountering
him during the execution of a different search warrant at a
neighboring residence on 24th Street on October 6,
2017. As stated in Officer Friedrichsen's affidavit,
during the execution of that previous warrant, Defendant and
two other individuals were seated in a vehicle outside of the
residence to be searched; two of the individuals were
arrested after officers recovered firearms from their
persons. Defendant was initially detained but released. The
vehicle was registered to a “Brenda Bailey, ” who
officers learned was one of the parties responsible for the
utilities at the Florence Boulevard residence. Officer
Friedrichsen subsequently requested a trash pull at the
Florence Boulevard residence. Law enforcement recovered two
stems that later tested positive for marijuana. Additionally,
within the next seventy-two hours, Officer Friedrichsen was
contacted by a concerned citizen who described Defendant and
reported him as a convicted felon and stated he had a
handgun. Officers ran a criminal records check and confirmed
Defendant's status as a felon and learned that his
previous charges included offenses involving firearms.
Officers also confirmed that Defendant resided at the
Florence Boulevard address. Officer Friedrichsen also had
information that Defendant admitted membership to the
40th Avenue Crips gang. (Ex. 4 at pp. 1-4). Based
upon this information in the affidavit, the county court
judge found that there was probable cause to believe that
marijuana and items used to conduct illegal narcotics
operations, including firearms and ammunition, were concealed
at the Florence Boulevard address and signed the no-knock
search warrant authorizing a search of the premises and
seizure of contraband. (Ex. 4 at pp. 5-7).
executed the warrant at issue in this case on October 17,
2017. Officers found and seized four handguns and various
calibers of live ammunition. (Ex. 4 at pp. 8-11). Four
persons, including Defendant, were at the residence during
the execution of the search warrant. Defendant was arrested
and taken to police headquarters. After being advised of his
Miranda rights, Defendant declined to be interviewed
and signed a Rights Advisory Form (Ex. 2). Defendant agreed
to provide a DNA sample and signed a Consent to Provide DNA
Sample form. (Ex. 3). These events were audially and visually
recorded. (Ex. 6).
one year later, on October 2, 2018, Defendant was arrested
for the charge in the original Indictment. (Ex. 5; Filing
No. 1). Defendant subsequently made statements to law
enforcement, including statements regarding the search
warrant executed at his residence nearly one year earlier.
argues that probable cause did not exist to issue the warrant
and that any evidence, including his statements both in
October 2017 and October 2018, derived from its execution is
tainted and should be suppressed. (TR. 4-5, 9). The
government contends that there was a sufficient showing of
probable cause and that the officers relied in good faith
upon the warrant.
cause to issue a search warrant exists when an affidavit in
support of the warrant sets forth sufficient facts to
establish that there is a fair probability that contraband or
evidence of criminal activity will be found in the particular
place to be searched.” United States v.
Proell, 485 F.3d 427, 430 (8th Cir.
2007)(internal quotation marks omitted)(quoting
United States v. Davis, 471 F.3d 938, 946 (8th Cir.
2006)). When relying on an affidavit to establish probable
cause, “the probable cause determination must be based
upon only that information which is found within the four
corners of the affidavit.” United States v.
Stults, 575 F.3d 834, 843 (8th Cir. 2009).
“Search warrant [a]pplications and affidavits should be
read with common sense and not in a grudging, hyper technical
fashion.” United States v. Ryan, 293 F.3d
1059, 1061 (8th Cir. 2002)(quotations and citations
omitted). An issuing judge's determination of probable
cause “should be paid great deference by reviewing
courts.” United States v. Mutschelknaus, 592
F.3d 826, 828 (8th Cir. 2010).
perhaps minimally sufficient, the undersigned magistrate
judge finds that Officer Friedrichsen's affidavit
provided probable cause for the issuance of the search
warrant. First, the affidavit states that law
enforcement's trash pull outside the Florence Boulevard
residence resulted in the seizure of confirmed marijuana
stems. The Eighth Circuit has concluded that “items
found in a trash pull, standing alone, may be sufficient to
establish probable cause.” United States v.
Thurmond, 782 F.3d 1042, 1044 (8th Cir.
2015)(citing United States v. Briscoe, 317
F.3d 906, 908 (8th Cir. 2003)(holding that recovery
of marijuana seeds and stems from a defendant's garbage
“were sufficient stand-alone evidence to establish
probable cause.”)). As recognized by the Eighth
Circuit, “not only does the presence of discarded
marijuana stems and seeds reasonably suggest that ongoing
marijuana consumption or trafficking is occurring within the
premises, but the simple possession of marijuana seeds is
itself a crime under both federal and state law.”
Briscoe, 317 F.3d at 908.
affidavit also included information passed along to officers
from an anonymous citizen that Defendant was a convicted
felon in possession of a handgun. The affidavit did not
contain details regarding the identity of the citizen or how
the citizen acquired that information. However, the
citizen's statement was at least partly independently
corroborated by officers when they ran a records check and
confirmed Defendant's status as a convicted felon.
Additionally, officers had recently encountered Defendant
during the execution of a different search warrant and
arrested two individuals with firearms, one of which was
stolen. See United States v. Reed, 921 F.3d 751, 757
(8th Cir. 2019)(finding warrant was supported by
probable cause where warrant application included information
from “anonymous citizen” because the information
was corroborated by other sources); United States v.
Buchanan, 574 F.3d 554, 562 (8th Cir. 2009)(concluding
an informant can be reliable “if the information he or
she supplies is at least partially corroborated by other
sources.”). The vehicle that the individuals were using
was registered to one of the parties responsible for the
utilities at the Florence Boulevard residence. Officers also
had information that Defendant claimed to be affiliated with
the 40th Avenue Crips gang. Considering the
totality of the above information known to officers, the
undersigned magistrate judge finds that the affidavit
established a “fair probability” that contraband
or evidence of a crime would be found at the Florence
even if the affidavit in support of the search warrant was
insufficient to establish probable cause, the undersigned
magistrate judge finds that the law enforcement officers
relied in good faith upon the warrant. An exception to the
exclusionary rule applies where officers rely on a warrant in
good faith. United States v. Hessman, 369 F.3d 1016,
1019-20 (8th Cir. 2004)(citing United States v.
Leon, 468 U.S. 897, 922 (1984)). “In the absence
of an allegation that the magistrate abandoned his detached
and neutral role, suppression is appropriate only if the
officers were dishonest or reckless in preparing their
affidavit or could not have harbored an objectively
reasonable belief in the existence of probable cause.”
Leon, 468 U.S. at 920. “In the ordinary case,
an officer cannot be expected to question the
magistrate's probable-cause determination or his judgment
that the form of the warrant is technically
sufficient.” United States v. Perry, 531 F.3d
662, 665 (8th Cir. 2008)(quoting Leon, 468
U.S. at 921). The record in this case does not
establish that law enforcement officers engaged in any
dishonest or reckless behavior in obtaining the warrant. Nor
does Defendant argue (and the record does not support) that
the issuing magistrate abandoned her detached and neutral
role. Under the totality of the circumstances, law
enforcement officers could have a reasonable belief that
probable cause for the issuance of the warrant existed, and
thus the evidence obtained from its execution does not need
to be suppressed.
contends that any statements he made in October 2017 and in
October 2018 are fruit of the deficient warrant. As discussed
above, because the undersigned magistrate judge finds that
probable cause existed for the issuance of the search
warrant, on which officers reasonably relied in good faith,
any statements Defendant made as a result of the
warrant's execution do not need to be suppressed as
tainted fruit. Upon consideration, IT IS HEREBY
RECOMMENDED to Chief ...