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State v. Kruse

Supreme Court of Nebraska

July 26, 2019

State of Nebraska, appellee,
v.
Steven C. Kruse, 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. Search and Seizure: Judgments: Appeal and Error. Application of the good faith exception to the exclusionary rule is a question of law. On a question of law, an appellate court reaches a conclusion independent of the court below.

         3. Search Warrants: Police Officers and Sheriffs. When a search warrant has been issued, the applicability of the good faith exception turns on whether the officers acted in objectively reasonable good faith in reliance on the warrant.

         4. Search Warrants: Affidavits: Police Officers and Sheriffs: Appeal and Error. In assessing an officer's good faith in conducting a search under the warrant, a reviewing court must look to the totality of the circumstances surrounding the issuance of the warrant, including information not contained within the four corners of the affidavit.

         5. Motions to Suppress: Search Warrants: Affidavits: Police Officers and Sheriffs: Evidence. Under the good faith exception to the exclusionary rule, 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 [303 Neb. 800] 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.

         6. Appeal and Error. As a general rule, a Nebraska appellate court does not consider an argument or theory raised for the first time on appeal.

         7. Judgments: Records: Appeal and Error. Where the record adequately demonstrates that the decision of a trial court is correct, although such correctness is based on a ground or reason different from that articulated by the trial court, an appellate court will affirm.

         8. Constitutional Law: Search and Seizure: Proof. The State has the burden of showing the good faith exception applies to an otherwise unconstitutional search.

         9. Search and Seizure: Police Officers and Sheriffs. The good faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite a magistrate's authorization.

         10. Police Officers and Sheriffs: Presumptions. Officers are assumed to have a reasonable knowledge of what the law prohibits.

         11. Search and Seizure: Probable Cause: Proof: Records: Appeal and Error. The inquiry into whether the good faith exception applies normally involves an examination of the same facts as the probable cause inquiry, and thus in the vast majority of cases, an appellate court will be able to determine whether the State has met its burden on the existing record.

         12. Search Warrants: Affidavits: Police Officers and Sheriffs: Probable Cause: Appeal and Error. When evaluating whether a warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, an appellate court should address whether the officer, considered as a police officer with a reasonable knowledge of what the law prohibits, acted in objectively reasonable good faith in relying on the warrant.

          Appeal from the District Court for Seward County, James C. Stecker, Judge, on appeal thereto from the County Court for Seward County, C. Jo Petersen, Judge. Judgment of District Court affirmed.

          Gregory C. Damman, of Blevens & Damman, for appellant.

          Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.

         [303 Neb. 801] Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          STACY, J.

         After a stipulated bench trial before the county court, Steven C. Kruse was convicted of driving under the influence with a blood alcohol concentration of .15 or higher, first offense. Kruse appealed to the district court, assigning the county court erred in overruling his motion to suppress the blood test and arguing the affidavit supporting the warrant for the blood draw was insufficient to support a finding of probable cause. The district court affirmed the conviction, and Kruse now appeals to this court. We affirm.

         I. BACKGROUND

         On August 31, 2017, at 5:39 p.m., Seward police officers Chase Parmer and Bryce Johnson were dispatched to the scene of an injury accident in Seward, Nebraska. They arrived at the scene about 2 minutes later and observed two severely damaged vehicles: a 2002 Hyundai Sonata and a 1999 Mercedes Benz. Parmer observed a man, later identified as Kruse, slumped over in the driver's seat of the Mercedes Benz. The officer's body camera depicts this as well. Kruse was subsequently taken via ambulance to receive medical attention and was not able to submit to either standardized field sobriety testing or a preliminary breath test at the scene.

         Based on information learned from the accident scene, Parmer executed an affidavit seeking a search warrant to obtain a sample of Kruse's blood. Parmer was identified as the affiant only by his signature. Parmer averred that a search warrant was being requested for Kruse's blood because Kruse had been involved in an "injury vehicle accident" and was suspected of committing the crime of driving under the influence. Parmer averred that the alcoholic content of blood will drop, on average, at a rate of "0.015 per hour" and for that reason, blood samples are best taken at or near the time of arrest. In support of the warrant, the affidavit recited the following facts:

[303 Neb. 802] On August 31, 2017, your affiant was on duty for the Seward Police Department, working the 1100-2100 hour shift. At approximately 1741 hours, your affiant was dispatched to the area of 8th and Jackson Street in Seward, Seward County, Nebraska, in response to an injury vehicle accident that was reported. Law Enforcement approached the vehicle and got an odor of an alcoholic beverage emitting from his person and inside the vehicle. Rescue personnel who were tending to Kruse also informed Law Enforcement that they detected an odor of alcohol emitting from his person.
Upon contact with Kruse, your affiant observed Kruse to be incoherent and unable to submit to standardized field sobriety tests or a preliminary breath test since he was currently being treated by medical personnel on scene and was subsequently transported to the hospital for further evaluation.

         The county court issued the search warrant, after which Parmer and Johnson went to the hospital where Kruse was still being treated for his injuries. Kruse was asked to submit to a preliminary breath test, and he agreed. That test returned a result greater than .15 grams of alcohol per 210 milliliters of breath. Parmer and Johnson then served the search warrant on Kruse, and two vials of his blood were drawn at 8 p.m. Testing showed Kruse's blood alcohol level was .168, over twice the legal limit. Once Kruse was medically released, he was arrested for driving under the influence.

         1. County Court Proceedings

         Subsequently, a complaint was filed charging Kruse with one count of driving under the influence, .15 or over, a Class W misdemeanor. Kruse pled not guilty and moved to suppress all evidence seized as a result of the search warrant. His motion to suppress challenged the validity of the warrant, alleging it was "issued on the basis of an affidavit that failed to establish probable cause that [Kruse] was engaged in criminal activity." At the suppression hearing, the search warrant [303 Neb. 803] and attached affidavit were received into evidence, but no testimony was offered.

         In overruling the motion to suppress, the county court noted the affidavit was "poorly written in many aspects," but found that when "reviewed as a whole," the affidavit was nevertheless sufficient to establish probable cause that Kruse was operating a motor vehicle while under the influence of alcohol. The county court expressly rejected Kruse's arguments that the affidavit was insufficient because: (1) It did not sufficiently identify the affiant; (2) it did not sufficiently identify the person to be searched; (3) it did not sufficiently identify the vehicle as a motor vehicle; (4) it did not sufficiently identify the time or location of any motor vehicle accident; and (5) it did not sufficiently identify Kruse as the driver of a motor vehicle.

         The county court's order did not reference the good faith exception recognized by the U.S. Supreme Court in United States v. Leon.[1] Leon held that even if the affidavit supporting the warrant is insufficient, evidence seized pursuant to the warrant need not be suppressed if officers acted in objectively reasonable good faith in reliance upon the warrant.[2]

         Thereafter, the parties held atrial on stipulated facts. Exhibits were received pursuant to the stipulation, and Kruse renewed his motion to suppress. In an order entered April 17, 2018, the county court overruled the renewed motion to suppress and found Kruse guilty of driving under the influence with a blood alcohol concentration of .15 or higher, first offense. Kruse was sentenced to 9 months' probation and his operator's license was revoked for 1 year.

         2. Appeal to District Court

         Kruse appealed to the district court, assigning only that the county court erred in overruling his motion to suppress. [303 Neb. 804] Before the district court, Kruse argued the affidavit was insufficient to support a finding of probable cause because it lacked (1) information regarding the identity of the affiant, (2) information regarding the affiant's training and experience, (3) information that the referenced accident occurred on a highway or private property open to public access, (4) specificity as to the nature of the injury accident, (5) the identity of the officer who approached and smelled the odor of alcohol, (6) the identity of the person who smelled of alcohol, (7) facts showing that anyone was driving a motor vehicle, (8) facts showing the time of the contact, and (9) facts showing that Kruse was driving.

         The court addressed each of these grounds individually, and found none had merit. The court acknowledged the affidavit was "thin on detail," but it concluded, applying a totality of the circumstances test, [3] that the affidavit supported a finding of probable cause. Alternatively, the district court held the Leon good faith exception applied, because the officers acted reasonably in relying on the warrant.

         Kruse timely appealed the district court's affirmance, and we moved the case to our docket on our own motion.

         II. ASSIGNMENTS OF ERROR

         Kruse assigns, renumbered and restated, that the district court erred in (1) finding the affidavit was sufficient to support probable cause and (2) applying the Leon good faith exception to the search warrant requirement.

         III. STANDARD OF REVIEW

         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.[4]Regarding historical facts, an appellate court reviews the trial [303 Neb. 805] court's findings for clear error.[5] 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.[6]

         Application of the good faith exception to the exclusionary rule is a question of law.[7] On a question of law. an appellate court reaches a ...


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