The Honorable Thomas M. Shanahan, United States District 1

Judge for the District of Nebraska.

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No. 96-2381

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the District

* of Nebraska.

Jeffery Kosiba, *

* [UNPUBLISHED]

Appellant. *

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 Submitted: October 23, 1996

 Filed: November 15, 1996

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Before MAGILL, BRIGHT, and MURPHY, Circuit Judges.

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PER CURIAM.

Jeffery Kosiba appeals from his conviction for possession with intent

to distribute methamphetamine within 1,000 feet from a school. The

district court denied Kosiba’s motion to suppress evidence seized from his 1

apartment. Following that ruling, Kosiba pleaded guilty reserving the

right to appeal the district court's denial of his suppression motion. We

affirm.

I. Background

On July 18, 1995, a confidential informant told Officer Dawn McKain,

a veteran of the Omaha, Nebraska police department, that
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Jeffery Kosiba possessed one-half ounce of methamphetamine. The informant

said he saw drugs and drug paraphernalia in the living room of Kosiba’s

apartment and that Kosiba was dealing drugs. 

Using standard language, McKain prepared an application and affidavit

(McKain affidavit) for a "no-knock" search warrant pursuant to Neb. Rev.

Stat. § 29-411 (Reissue 1989). McKain’s affidavit described the drug

paraphernalia seen in Kosiba's apartment, but failed to mention the amount

of drugs in his possession. McKain requested a "No Knock Search Warrant

. . . because officers know from past experience that if they were to

announce their presence and purpose the evidence being sought could easily

be destroyed by flushing it down a toilet or sink, or by swallowing it."

(Add. at 36a.) A county judge issued a search warrant authorizing a noknock entry. 

On July 27, 1995, before executing the search warrant, McKain learned

from the informant that Kosiba had replenished his drug supply with

marijuana and approximately one and one-half ounces of methamphetamine.

In addition, the informant told McKain that Kosiba had several handguns,

assault rifles and a shotgun in his small apartment.

Later that day, the police executed the search warrant without

knocking and announcing their presence. The search uncovered

methamphetamine in various places throughout the apartment, drug

paraphernalia, three pounds of marijuana packaged for sale, a shotgun and

ammunition for several types of guns. 

The district court analyzed the search under the fourth amendment,

determined that exigent circumstances justifying the no-knock entry existed

when the officers executed the search warrant and denied Kosiba’s motion

to suppress the evidence. Kosiba pleaded guilty but reserved his right to

appeal.
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II. Discussion

 Kosiba argues that the issuance of the no-knock warrant resulted

in an unreasonable search and seizure because McKain's affidavit consisted

of "boilerplate language" relating to the destructibility of evidence and

the officer's experience. Kosiba contends that the good faith exception

recognized in United States v. Leon, 468 U.S. 897 (1984), does not apply

because the issuing judge merely rubber-stamped the officer's request and

because the police failed to act in good faith. Kosiba does not dispute

that probable cause existed to issue the warrant.

"A district court's decision to deny a motion to suppress evidence

seized pursuant to a search warrant will not be reversed unless it is

`unsupported by the evidence, based on an erroneous view of the applicable

law or we are left with a firm conviction that a mistake has been made.'"

United States v. Phillips, 88 F.3d 582, 585 (8th Cir. 1996) (quoting United

States v. Edmiston, 46 F.3d 786, 788 (8th Cir. 1995)). The exclusionary

rule does not apply to "evidence obtained in objectively reasonable

reliance on a . . . search warrant . . . ." Leon, 468 U.S. at 922. If,

however, the affidavit and application for the warrant were "’so lacking

in indicia of probable cause as to render official belief in its existence

entirely unreasonable[,]’" the exclusionary rule applies. Id. at 923

(quoting Brown v. Illinois, 422 U.S. 590, 610-11 (1975)). "[T]he proper

standard . . . is whether the state officials complied with Nebraska law

and the Fourth Amendment, or, under Leon, had an objectively reasonable

basis to believe they were complying with Nebraska law and the Fourth

Amendment, in applying for and issuing the no-knock warrant." United

States v. Moore, 956 F.2d 843, 848 (8th Cir. 1992). 

Nebraska law authorizes no-knock warrants to prevent the destruction

of drugs. Id. at 848; see Neb. Rev. Stat. § 29-411. In addition, the

Nebraska Supreme Court allows issuing judges to
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take judicial notice of the inherent destructibility of small quantities

of drugs. Id. at 848-49 (citing State v. Meyer, 311 N.W.2d 520, 524 (Neb.

1981)). 

In Moore, an officer requested a no-knock warrant relying "upon his

general experience in averring that a no-knock warrant was needed to

prevent destruction of the suspected drugs." Id. at 848. The officer,

however, "did not present particular information about the potential for

rapid destruction . . . ." Id. at 848-49. This court held that the

officer and the judge who authorized the no-knock entry acted in an

objectively reasonable manner under Nebraska law because the affidavit

suggested the suspect possessed easily disposable quantities. Id. at 849

(noting that affidavit described drugs as packaged for sale). 

As in Moore, Officer McKain's affidavit neglected to present

particular information about the destructibility of the drugs, but included

references suggesting easily disposable quantities of methamphetamine. The

affidavit stated that the informant saw narcotics for sale, hypodermic

needles and scales. Search warrants such as this one have been approved

by Nebraska case law. See State v. Eary, 454 N.W.2d 685 (Neb. 1990); State

v. Armendariz, 449 N.W.2d 555 (Neb. 1989); State v. Meyer, 311 N.W.2d 520

(Neb. 1981). Thus the officers could reasonably rely on the Nebraska

warrant.

Additionally, the no-knock execution of the warrant did not violate

the fourth amendment. Under the fourth amendment, exigent circumstances,

such as preventing the destruction of evidence and protecting officer

safety, justify no-knock entries to execute a search warrant. Wilson v.

Arkansas, 115 S. Ct. 1914, 1918-19 (1995). Exigent circumstances existed

when the police executed the search warrant at Kosiba's apartment.

Officers believed Kosiba possessed several weapons and an easily disposable

quantity of drugs in a small apartment. Thus, the officers reasonably

believed that knocking and announcing their presence before entering
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Kosiba's apartment could endanger their safety or result in the destruction

of evidence.

III. Conclusion

The district court properly denied the motion to suppress the

evidence. We affirm the conviction. 

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.