Monday, February 20, 2006
Eighth Circuit approves of search warrant for firearms against defendant in Nebraska a protection order case even though defendant did not have an opportunity to challenge the protection order's filingUSA v. Merrill D. Olvey, Jr 052617P.pdf02/14/06 District of Nebraska Gruender, Author, with Bye and Beam, Circuit Judges Defendant filed a request to challenge the protectionorder against him § 42-925, but the paperwork got lost in the jail. He tried to modify the protection order, but sent his lawyer and the court turned him down. Later the FBI obtained a search warrant against him to search for firearms, owning firearms while subject to a protection order violates 18 USC 922. Eighth Circuit holds that even though the defendant might not have been able to challenge the protection order he had a chance to vacate the order under Nebraska courts' inherent authority to vacate orders and under 25-2001. Even if the Magistrate signing the warrant was wrong on interpreting Nebraska law on opening up protectionorder cases, the police could rely on his order under Leon. In this case, law enforcement relied in good faith on the magistrate judge's legal determination that the protection order as modified by the journal entry met the criteria of § 922(g)(8).
Posted by stan_sipple at 5:37 AM