Friday, November 10, 2006

Follow up: Nebraska Supreme Court agrees with drug dealer that because the Attorney General did not argue to the Court of Appeals that the Leon good faith exception applied, the court of appeals should not have allowed the search to standState v. Tompkins, 272 Neb. 547 Filed November 9, 2006. No. S-05-212 Justice Connolly a one man roving commission against errors only he can find reverses the court of appeals on admittedly flimsy precedent on when the State must raise a Leon issue: "We have found very little case law directly on point regarding how the good faith exception may be raised; however, one case is instructive. In State v. Ortiz, 257 Neb. 784, 600 N.W.2d 805 (1999), after finding no probable cause for the issuance of a warrant, we explicitly stated that we would not address the Leon good faith exception as it was not raised by the State. However, we did not explain the reason for our decision. We now follow our ruling in Ortiz and provide an explanation for why an appellate court on its own motion cannot consider the good faith exception. "

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