Thursday, March 27, 2008

Nebraska Supreme Court remands defendant's methamphetamine possession conviction to Sarpy County District Court to find whether the police incidentally seized narcotics following a valid arrest or whether the defendant voluntarily consented to further police searching of his residence. State v. Gorup, S-07-450, 275 Neb. 280 Sarpy County and Bellevue law enforcement staked out the defendant's residence and arrested him as he exited the apartment. The police observed knives on a table and entered the apartment although the defendant was outside the premises at all times. The police then seized a closed zippered shaving kit case and asked the defendant's permission to open it. The police found methamphetamine. "The district court found that the protective sweep of Gorup’s apartment was unlawful and that the search incident to a valid arrest might have been unlawful. It concluded, however, that the warrantless search of the black zippered case was lawful under the inevitable discovery doctrine because Gorup’s consent was voluntary The district court reached the issue of the validity of Gorup’s consent, but it did not definitively determine whether the search incident to a valid arrest exception applied. If the district court had concluded that the first search was valid, it would not have needed to analyze the validity of Gorup’s consent to the subsequent search. Where a search following an illegal entry is justified based on alleged consent, a court must determine whether that consent was voluntary, and in addition, the court must determine whether the illegal entry tainted that consent. U.S. v. Robeles-Ortega, 348 F.3d 679 (7th Cir. 2003). the court erred in failing to consider the appropriate factors to determine whether the search was an exploitation of the prior illegality. The district court should have considered the above factors in determining whether Gorup’s consent was obtained by the exploitation of the detectives’ prior search. T hus, we remand the cause for consideration of such factors. See Brown v. Illinois, 422 U.S. 590, 95 S . Ct. 2254, 45 L. E d. 2d 416 (1975){proximity of illegal search to confession or consent, flagrancy of conduct, intervening events determine whether illegal search taints subsequent confession or consent to search}

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