State v. Kuek

State of Nebraska, appellant, v. Nyir G. Kuek, appellee.

No. A-21-465

Court of Appeals of Nebraska

August 17, 2021

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Douglas County: Marlon A. Polk Judge. Reversed and remanded for further proceedings.

Donald W. Klein, Douglas County Attorney, and Amy G. Jacobsen for appellant.

Thomas C. Riley, Douglas County Public Defender, for appellee.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

WELCH JUDGE.

INTRODUCTION

The State appeals the order of the Douglas County District Court granting the motion to suppress filed by Nyir G. Kuek, a pretrial detainee jailed at the Douglas County Department of Corrections (DCDC). For the reasons set forth herein, I reverse and remand for further proceedings.

STATEMENT OF FACTS

In August 2019, Kuek was charged by information with two counts of first degree murder, two counts of use of a firearm to commit a felony, and possession of a deadly weapon by a prohibited person. Thereafter, the information was amended to add two additional counts of tampering with a witness or informant.

Kuek filed a motion to suppress the October 27, 2020, search of his jail cell at the DCDC alleging that the search was unconstitutional because (1) the search warrant authorized a general search and did not specify with particularity the items law enforcement believed to be located inside the cell to be searched; (2) "police conducted a general search and exceeded the authority granted in the search warrant"; (3) the affidavit in support of the search warrant did not set forth sufficient probable cause to believe that specific items of an evidentiary nature related to a criminal offense were located inside the cell to be searched; and (4) the search warrant and affidavit in support thereof did not state with particularity the items to be seized. At the April 2021 suppression hearing, the court allowed Kuek to add an additional ground for suppression--that the search of Kuek's cell preceded the court-authorized search warrant.

During the suppression hearing, the State called one witness to testify--David Preston, the detective assigned to the investigation of Kuek. Preston testified that, on October 27 2020, he sought a search warrant to search Kuek's cell. Prior to getting the search warrant, Preston talked to Sergeant Kristin Banning at DCDC to confirm the name of Kuek's cellmate and informed her that he would be obtaining a search warrant for papers in Kuek's cell that related to witness tampering. Preston testified that it was normal procedure to include the cellmate of the subject in the warrant "so that you can have a more thorough exercising of the warrant. And a lot of times in these cells from my understanding, it's not a very large area, so it would be hard to determine whose items are [whose]." Preston advised Banning that he was "only looking for paper documents, letters, notes, [and] things of that nature." He also asked Banning what the procedure or process was for a search warrant after which Banning advised him that

she would check multiple cells in addition to Kuek's cell because this was normal procedure for them to just randomly check cells. So they would check -- I believe they did three cells that day, . . . [Kuek's] cell being one of those, and it was just to make it look like they were doing normal procedures.

Preston testified that he did not direct Banning to actually search Kuek's cell to find needed items; he just told her to seize everything that would be covered by the search warrant which was paperwork. According to Preston,

[my] understanding was that in the past, this was a procedure that had been conducted between the Omaha Police Department and Douglas County Corrections when executing this type of warrant, and part of the reason for that was to prevent, like, any potential information or whatever . . . our warrant would cover being destroyed or anything like that. So more or less, representatives of Douglas County Corrections were more or less detaining and protecting and not so much actually searching. And because it was in a controlled inmate populated area, that we as officers were not permitted to go into that area ourselves.

Preston testified that it was his understanding that one of the normal jail procedures was to perform searches to look for contraband. Preston also acknowledged that it was his understanding that Banning was going to check Kuek's cell prior to his obtaining the search warrant.

After Preston's conversation with Banning, he obtained a search warrant for the search of Kuek's cell. The affidavit and application for a search warrant and the search warrant were received into evidence. The October 27, 2020, affidavit in support of obtaining the search warrant provided, in part:

On October 16, 2020[, ] . . . Preston . . . conducted an interview with [a named] inmate . . . who advised that KEUK . . . had confided in him that KEUK was conspiring to kill FANT, Eric to prevent FANT from testifying in KUEK's homicide trial that was scheduled to being at the beginning of November 2020.

[Preston] conducted follow up on the information that was provided by [the named inmate] and discovered that KUEK was relaying information about FANT . . . over the jail phone calls to parties that were not incarcerated. KUEK would often speak in the Nuer language in the attempt to prevent investigating officer from understanding what he was talking about.

[Preston] also intercepted information over the jail phone calls that KUEK was attempting to mail out letters containing information on FANT . . . and that KUEK was receiving mail through other inmates [sic] data numbers that contained information on FANT. . . .

On October 27, 2020[, Preston] contacted Sergeant BANNING . . . of Douglas County Corrections to inquire about the cellmate of KUEK. Banning advised that KEUK was currently cell mates with PERRY. . . .

[Preston] has had past experience with inmates communicating with outside parties through mailed letters instead of communicating via telephone as the inmates are aware that their phone calls are recorded and monitored. [Preston] has reason to believe and does believe that . . . KUEK . . . is attempting to conspire to tamper with a witness and that KUEK . . . is communicating with parties both inside and outside of Douglas County Corrections to prevent witness FANT . . . from testifying to the homicides [with which Kuek is charged. Preston] further believes that KUEK . . . is communicating via letters sent and received by posted mail as well as through written communication within the jail.

The affidavit in support of a search warrant also advised that "said property is under the control or custody of . . . BANNING within the [DCDC]." The Douglas County Court granted the search warrant the same day authorizing the search and seizure of:

1. Any received mail in the possession of KUEK . . . or found within the housing unit and/or cell occupied by KUEK . . . .

2. Any and all items of paper bearing printed and/or handwritten words or numbers in the form of notes, lyrics, letters, envelopes, journals, kites, books etc. which are in the possession of KUEK . . . or found within the housing unit and/or cell occupied by KUEK . . . .

The search warrant also authorized the search and seizure of any of the aforementioned items in the possession of Kuek's cellmate or found within the housing unit and/or cell occupied by Kuek's cellmate.

Banning removed items from Kuek's cell approximately a half hour before Preston arrived at the DCDC with the search warrant. Preston testified that it was his understanding that this procedure was to prevent anyone from tampering with the evidence while the search was being conducted. Upon arriving at DCDC, Preston obtained the items that had been taken from Kuek's cell. Preston testified that, as far as he was concerned, the search warrant was for the purpose of being able to take the seized items from Banning. Preston explained:

My understanding was that this would be similar to . . . where we would be preparing to search a residence, where maybe we have done some type of protective sweep and then we hold the residence while the warrant is being drafted. And then after that point, we then do our search. We hold a residence like that to prevent the destruction or tampering with any potential evidence that could be collected during the execution of the warrant.

So my understanding is that this process was conducted in this way to prevent the tampering or obstruction of any potential evidence while we were . . . getting our warrant processed, executed and completed.

Preston also testified that "in my experience as an investigator, I've held property or held residences or vehicles waiting for a warrant to be signed by a judge. I've never . . . had that be an issue in the past." After obtaining the seized items from Banning, Preston and another detective processed those documents retaining those that they "thought potentially [were] pertinent to [their] investigation" regarding witness tampering and returning approximately 80 percent of the documents to Kuek.

In an order dated June 3, 2021, the district court granted Kuek's motion to suppress. Specifically, the district court held:

Here you have a warrantless search initiated by a non-correctional official (Det. Preston) for non-correctional security related reasons. Had [DCDC] officials initiated the search of . . . Kuek's cell then . . . Kuek, regardless of his pre-trial detainee status, would not have a constitutional challenge. United States v. Cohen 796 F.2d 20, 24 (2nd Cir. 1986).

In addition, [Kuek's] cell was

...