State v. McKnight

STATE OF NEBRASKA, APPELLANT, v. DELONTA A. MCKNIGHT, APPELLEE.

No. A-15-301.

NEBRASKA COURT OF APPEALS

August 25, 2015

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: 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: PETER C. BATAILLON, Judge. Affirmed.

Donald W. Kleine, Douglas County Attorney, Michael W. Jensen, and Sean P. Lynch for appellant.

Thomas C. Riley, Douglas County Public Defender, and Cindy A. Tate for appellee.

BISHOP, Judge.

The State of Nebraska brings this appeal to one judge of this court, pursuant to Neb. Rev. Stat. § 29-824 (Reissue 2008), alleging that the trial court erred in granting Delonta A. McKnight's motion to suppress all evidence obtained as a result of the execution of a search warrant of his residence. I affirm.

BACKGROUND

On November 20, 2014, an officer with the Omaha Police Department presented a judge of the county court for Douglas County with an "Affidavit and Application for Issuance of a Search Warrant" for a residence located at an address on North 38th Street, Omaha, Douglas County, Nebraska ("subject address").

In his affidavit and application for a search warrant, the affiant officer set forth the grounds for issuance of the warrant. The affiant officer stated that he received an anonymous narcoticscomplaint concerning the subject address. He stated that "[t]he complaint advised there was constant short term foot and vehicle traffic, indicative of narcotics sales, occurring at [that address]." The affiant officer further indicated that on November 19, 2014, he and two other officers proceeded to the above address shortly before 8 a.m. (which the affiant officer noted was the regular day for trash pickup in that particular neighborhood). When the officers arrived at the above address, they observed several bags of trash adjacent to the curbside in front of the address, in the grass area between the street and sidewalk. The officers retrieved three bags of trash, took them to a secured location, and searched them.

The affiant officer further stated that during the search of the trash bags, the officers found: (1) a .1 g marijuana roach; (2) a venue item addressed to Fred J. Pecha at the subject address; and (3) a venue item address to the "Resident" of the subject address. The affiant officer also consulted with representatives of the Metropolitan Utilities District and the Omaha Public Power District, both of whom stated that McKnight was the current subscriber for services at the subject address on November 19. The affiant officer stated in his affidavit that McKnight had a history of weapons charges and was currently bound over on a gun charge.

According to the affidavit, officers submitted the marijuana roach to the Eastern Nebraska Forensic Lab for testing. The affiant officer received a report that the marijuana roach tested positive for marijuana.

The affiant officer stated that he had reason to believe, and did believe, that if the court authorized a search warrant for the subject address, that officers would "obtain evidence for the offense of possession of a controlled substance, which is a violation of the state statutes of the State of Nebraska."

The affiant officer stated that the property being sought in the search warrant was:

Marijuana, its derivatives and administering instruments, whether homemade or manufactured, possession of which is illegal per Nebraska State Statutes. All monies, records, equipment, materials, keys, electronic storage devices (ie: computers, PDAs, cellular phones, etc.), weapons and ammunition used to conduct illegal narcotics operation. Venue items identifying the occupants of [the subject address].

The affiant officer requested a "No Knock" search warrant because:

Due to the small amounts of Marijuana being sold and used at [the subject address], Affiant Officer . . . knows from past experience that if officers were to knock and announce their presence and purpose, the evidence being sought could easily be destroyed by flushing it down the toilet, sink and/or by swallowing it.

The county court judge authorized the search warrant, as requested, on November 20, 2014.

Officers executed the search warrant on November 20, 2014, and recovered: venue items for McKnight, a stolen loaded Remington handgun, a .45 caliber 20 round magazine with ammunition, an additional .45 caliber magazine, a box of .40 caliber ammunition, a marijuana roach, loose marijuana, cell phones, additional ammunition and magazines, a rifle, empty gun boxes, and venue items for other individuals. The affiant officer filed a "Return and Inventory" of the search warrant on November 21.

On December 3, 2014, McKnight was charged with possession of a stolen firearm, a Class III felony, in the Douglas County District Court.

On December 19, 2014, McKnight filed a motion to suppress all evidence obtained as a result of the execution of the search warrant. McKnight also moved to suppress all statements he made to law enforcement at the time of the search. In support of his motion, McKnight alleged: (1) the affidavit accompanying the request for the search warrant did not contain sufficient information to establish probable cause to believe a crime or evidence of a crime would be found in the residence, and therefore the search of the residence violated McKnight's constitutional rights; (2) any statements made by him were given without him having been informed of his Miranda rights; (3) his statements were the fruits of a custodial interrogation occurring as the direct result of an unlawful search and arrest and as such are "fruits of the poisonous tree"; and (4) the searches of his person and residence were without consent.

A suppression hearing was held on February 6, 2015. The district court noted that the only issue was whether there was probable cause for the search warrant. No testimony was given. The district court received into evidence exhibit 1, which contained the "Affidavit and Application for Issuance of a Search Warrant," the search warrant, the "Return and Inventory," and "The Omaha Police Department Receipt and Inventory."

In an order dated March 27, 2015, the district court granted McKnight's motion to suppress. Citing United States v. Sumpter, 669 F.2d 1215, 221 (8th Cir. 1982), the district court found that "[t]he manner in which the marijuana roach and the venue evidence were found is not an issue for this Court" because "police may seize evidence from a defendant's garbage, and the evidence is sufficient to find probable cause, so long as the garbage is seized in an area where sanitation services would regularly collect it." The district court stated that the main issue was whether the evidence itself was enough to establish probable cause for the purpose of obtaining a warrant. The district court stated:

The criteria for a search warrant is probable cause. The probable cause here is whether there are drugs being sold, not whether there is minimal personal use. Otherwise, what is the relevance of the alleged "constant short term foot and vehicle traffic." That alone is insufficient to achieve probable cause as there was no reliability of this complaint. Unlike with a confidential informant, an individual submitting an anonymous tip has no demonstrable basis of knowledge or veracity. The fact that there is foot traffic at night at Defendant's residence does not in and of itself indicate that Defendant was distributing narcotics in his residence. There could be a host of other reasons for this type of traffic. Thus, without more, the granting of a search warrant would be improper.

The only other evidence of drug use was the trash search, which found .1 of a gram of marijuana. As noted above, .1 gram is 1/300 of an ounce. This Court does not believe that is enough for probable cause of drug activity as required by the U.S. Constitution.

The district court found that such a small amount of marijuana (which according to the court was more indicative of personal use than of narcotic distribution), even in conjunction with the anonymous complaint, was insufficient to provide probable cause for the search warrant.

Accordingly, the district court sustained McKnight's motion to suppress. The State has appealed to one judge of this court.

ASSIGNMENTS OF ERROR

The State assigns that the district court erred in (1) finding that the Affidavit for the search warrant of McKnight's residence lacked probable cause to justify the issuance of a warrant, and (2) not finding that the execution of the search warrant was pursuant to the officers' good faith reliance on the search warrant.

STANDARD OF REVIEW

In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, we apply a two-part standard of review. State v. Hill, 288 Neb. 767, 851 N.W.2d 670 (2014). Regarding historical facts, we review the trial court's findings for clear error. Id. But whether those facts trigger or violate Fourth Amendment protections is a question of law that we review independently of the trial court's determination. Id.

Application of the good faith exception to the exclusionary rule is a question of law. Id.

ANALYSIS

The State argues that the district court erred in finding that the affidavit in support of the search warrant lacked probable cause to justify the issuance of a warrant. More specifically, the State argues that the district court erred in finding that (1) the locating of a marijuana roach in the trash standing alone would not justify the issuance of a search warrant, and (2) that locating the marijuana roach in the trash by law enforcement was not sufficient corroboration of the anonymous tip.

The Fourth Amendment to the U.S. Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . ."

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