D.Neb.: Def could file second motion to suppress on different ground; this one prevails for lack of PC and no GFE

Defendant filed a motion to suppress on one ground and lost. He was not prohibited by law of the case from arguing the different issue of a complete lack of probable cause in a subsequent motion, on which he prevails. In addition, the good faith exception does not apply because of a complete absence of probable cause. United States v. Zelazny, 2016 U.S. Dist. LEXIS 139782 (D.Neb. Oct. 7, 2016):

However, that order does not prevent the court from now finding the warrant lacked probable cause on other grounds. The issue of whether the factual basis provided a sufficient nexus between the Hancock Street residence and the property sought was not at issue in the previous motions to suppress. Neither the magistrate judge nor the court considered the question at that time. Thus it is incumbent upon the court, in the interest of justice, to decide the present motion in limine on the merits.

The affidavit does not support a finding of probable cause. Paragraph 9 sets forth the only nexus between the property sought and the Hancock Street residence—an assertion that Zelazny stopped at the residence for approximately 15-30 minutes on the day of her arrest. See 8:15-mj-00099 (D. Neb, Apr. 9, 2015), Filing No. 1 at 5. The affidavit does not reveal any other connections Zelazny or her crime might have had to the residence; there is no allegation that Zelazny owned or resided there, that she was seen taking anything into or out of the residence, or that she was in the residence at the time she allegedly sent the threatening messages. There is nothing whatsoever in the warrant to suggest why there was a fair probability that the property sought would have been found at the Hancock Street residence.

To admit the evidence obtained in this search would set a dangerous precedent. The thin reasoning of the search warrant affidavit would subject any number of homes to searches merely because, at some juncture in time, a defendant had stepped foot on the premises. It would not matter that the defendant did not own the property, did not stay at the property, committed no crime there, nor left any evidence or contraband there. This result is untenable, and the court can find no case law to support it.

Nor was the search permissible under the good faith exception from Leon. Evidence obtained through good faith reliance upon a search warrant should not be excluded from evidence if that search warrant is later found deficient. Leon, 468 U.S. at 920. But the good faith exception to the exclusionary rule does not apply in every instance. Evidence should be excluded where, as here, the “warrant [is] based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” See id. at 923 (internal quotations omitted). Any reliance on the warrant in this case was unreasonable because of the lack of any nexus between the property sought and the residence to be searched.

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