Tuesday, January 17, 2006

Nebraska Court of Appeals (J.Sievers) throws out search warrant for drugs in a hotel room under exception to Leon good faith rule: "the warrant is based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." State v. Holguin, 14 Neb. App. 417 January 17, 2006. No. A-05-091. Scottsbluff police officers stopped a suspect for having expired plates. Police searched the vehicle and found contraband and a hotel room key. The suspect refused to allow police to search the hotel room. Another undercover officer had "intelligence"that the other occupant of the hotel room was a drug dealer, but did not obtain this information through reliable informants or his own observations. The Scottsbluff court upheld the search warrant after police found drugs and accessories. The Court of Appeals reverses, holding that even under US v Leon, explained in State v. Edmonson, 257 Neb. 468, 485-86, 598 N.W.2d 450, 463 (1999). , the police officer's affidavit of probable cause so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." because the affidavit is so clearly lacking in indicia of probable cause on its face, being what has frequently been called a "'bare bones'" affidavit in previously decided cases, see U.S. v. Koons, 300 F.3d 985, 991 (8th Cir. 2002) ("bare bones" affidavit is one which relies on uncorroborated tips or mere suspicion). Without the "intelligence" or "further information," Mendoza and Montanez are only tenuously connected by a motel room key and nothing else. While Ewing's "intelligence" or "further information" may have been such that he could reasonably believe that room No. 11 probably contained evidence of drug trafficking, the problem is that no basis for reliance on that belief is found anywhere in the record, and the standard is an objective one for a police officer with a reasonable knowledge of what the law prohibits, rather than a subjective one of what Ewing knew but did not disclose in the suppression hearing or in the affidavit. The fact that Mendoza, a cocaine dealer, has a key to a motel room does not make it probable that evidence of cocaine trafficking will be in that motel room, particularly when it is not registered to him, and the police, at least on the record before us, had no knowledge or even reason to believe--prior to the execution of the warrant--that Montanez or room No. 11 was involved with Mendoza's cocaine selling activities. For the Leon good faith exception to apply in the instant case, it must be "probable" from the totality of the circumstances that the officers objectively and reasonably believed that incriminating evidence would be found in room No. 11. In short, this case reveals a failure of proof, not "bad faith" by the officers. Therefore, the good faith exception does not apply here and the trial court erred in overruling Montanez' motion to suppress. Court remands for a new trial, because the evidence admitted even if erroneous provided enough evidence to convict. The Double Jeopardy Clause does not forbid retrial so long as the sum of the evidence offered by the State and admitted by the trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict. State v. Allen, 269 Neb. 69, 690 N.W.2d 582 (2005).

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