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Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. KRUSE

Cite as 303 Neb. 799

State of Nebraska, appellee, v. 

Steven C. Kruse, appellant.

___ N.W.2d ___

Filed July 26, 2019. No. S-18-1011.

1. Constitutional Law: Search and Seizure: Motions to Suppress: 

Appeal and Error. In reviewing a trial court’s ruling on a motion to 

suppress based on a claimed violation of the Fourth Amendment, an 

appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear 

error. But whether those facts trigger or violate Fourth Amendment 

protections is a question of law that an appellate court reviews independently of the trial court’s determination.

2. Search and Seizure: Judgments: Appeal and Error. Application of 

the good faith exception to the exclusionary rule is a question of law. On 

a question of law, an appellate court reaches a conclusion independent of 

the court below.

3. Search Warrants: Police Officers and Sheriffs. When a search warrant has been issued, the applicability of the good faith exception turns 

on whether the officers acted in objectively reasonable good faith in 

reliance on the warrant.

4. Search Warrants: Affidavits: Police Officers and Sheriffs: Appeal 

and Error. In assessing an officer’s good faith in conducting a search 

under the warrant, a reviewing court must look to the totality of the circumstances surrounding the issuance of the warrant, including information not contained within the four corners of the affidavit.

5. Motions to Suppress: Search Warrants: Affidavits: Police Officers 

and Sheriffs: Evidence. Under the good faith exception to the exclusionary rule, evidence may be suppressed if (1) the magistrate or judge 

in issuing a warrant was misled by information in an affidavit that 

the affiant knew was false or would have known was false except for 

his or her reckless disregard of the truth, (2) the issuing magistrate 

wholly abandoned his or her judicial role, (3) the warrant is based on 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/20/2019 08:06 AM CDT
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STATE v. KRUSE

Cite as 303 Neb. 799

an affidavit so lacking in indicia of probable cause as to render official 

belief in its existence entirely unreasonable, or (4) the warrant is so 

facially deficient that the executing officer cannot reasonably presume 

it to be valid.

6. Appeal and Error. As a general rule, a Nebraska appellate court does 

not consider an argument or theory raised for the first time on appeal.

7. Judgments: Records: Appeal and Error. Where the record adequately 

demonstrates that the decision of a trial court is correct, although such 

correctness is based on a ground or reason different from that articulated 

by the trial court, an appellate court will affirm.

8. Constitutional Law: Search and Seizure: Proof. The State has the 

burden of showing the good faith exception applies to an otherwise 

unconstitutional search.

9. Search and Seizure: Police Officers and Sheriffs. The good faith 

inquiry is confined to the objectively ascertainable question whether a 

reasonably well-trained officer would have known that the search was 

illegal despite a magistrate’s authorization.

10. Police Officers and Sheriffs: Presumptions. Officers are assumed to 

have a reasonable knowledge of what the law prohibits.

11. Search and Seizure: Probable Cause: Proof: Records: Appeal and 

Error. The inquiry into whether the good faith exception applies normally involves an examination of the same facts as the probable cause 

inquiry, and thus in the vast majority of cases, an appellate court will 

be able to determine whether the State has met its burden on the existing record.

12. Search Warrants: Affidavits: Police Officers and Sheriffs: Probable 

Cause: Appeal and Error. When evaluating whether a warrant was 

based on an affidavit so lacking in indicia of probable cause as to render 

official belief in its existence entirely unreasonable, an appellate court 

should address whether the officer, considered as a police officer with 

a reasonable knowledge of what the law prohibits, acted in objectively 

reasonable good faith in relying on the warrant.

Appeal from the District Court for Seward County, James C. 

Stecker, Judge, on appeal thereto from the County Court for 

Seward County, C. Jo Petersen, Judge. Judgment of District 

Court affirmed.

Gregory C. Damman, of Blevens & Damman, for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.
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303 Nebraska Reports

STATE v. KRUSE

Cite as 303 Neb. 799

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Stacy, J.

After a stipulated bench trial before the county court, Steven 

C. Kruse was convicted of driving under the influence with 

a blood alcohol concentration of .15 or higher, first offense. 

Kruse appealed to the district court, assigning the county court 

erred in overruling his motion to suppress the blood test and 

arguing the affidavit supporting the warrant for the blood draw 

was insufficient to support a finding of probable cause. The 

district court affirmed the conviction, and Kruse now appeals 

to this court. We affirm.

I. BACKGROUND

On August 31, 2017, at 5:39 p.m., Seward police officers 

Chase Parmer and Bryce Johnson were dispatched to the scene 

of an injury accident in Seward, Nebraska. They arrived at the 

scene about 2 minutes later and observed two severely damaged 

vehicles: a 2002 Hyundai Sonata and a 1999 Mercedes Benz. 

Parmer observed a man, later identified as Kruse, slumped over 

in the driver’s seat of the Mercedes Benz. The officer’s body 

camera depicts this as well. Kruse was subsequently taken via 

ambulance to receive medical attention and was not able to 

submit to either standardized field sobriety testing or a preliminary breath test at the scene.

Based on information learned from the accident scene, 

Parmer executed an affidavit seeking a search warrant to obtain 

a sample of Kruse’s blood. Parmer was identified as the affiant only by his signature. Parmer averred that a search warrant 

was being requested for Kruse’s blood because Kruse had been 

involved in an “injury vehicle accident” and was suspected of 

committing the crime of driving under the influence. Parmer 

averred that the alcoholic content of blood will drop, on average, at a rate of “0.015 per hour” and for that reason, blood 

samples are best taken at or near the time of arrest. In support 

of the warrant, the affidavit recited the following facts:
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303 Nebraska Reports

STATE v. KRUSE

Cite as 303 Neb. 799

On August 31, 2017, your affiant was on duty for the 

Seward Police Department, working the 1100-2100 hour 

shift. At approximately 1741 hours, your affiant was dispatched to the area of 8th and Jackson Street in Seward, 

Seward County, Nebraska, in response to an injury vehicle 

accident that was reported. Law Enforcement approached 

the vehicle and got an odor of an alcoholic beverage 

emitting from his person and inside the vehicle. Rescue 

personnel who were tending to Kruse also informed Law 

Enforcement that they detected an odor of alcohol emitting from his person.

Upon contact with Kruse, your affiant observed Kruse 

to be incoherent and unable to submit to standardized 

field sobriety tests or a preliminary breath test since he 

was currently being treated by medical personnel on 

scene and was subsequently transported to the hospital for 

further evaluation.

The county court issued the search warrant, after which 

Parmer and Johnson went to the hospital where Kruse was 

still being treated for his injuries. Kruse was asked to submit 

to a preliminary breath test, and he agreed. That test returned 

a result greater than .15 grams of alcohol per 210 milliliters 

of breath. Parmer and Johnson then served the search warrant 

on Kruse, and two vials of his blood were drawn at 8 p.m. 

Testing showed Kruse’s blood alcohol level was .168, over 

twice the legal limit. Once Kruse was medically released, he 

was arrested for driving under the influence.

1. County Court Proceedings

Subsequently, a complaint was filed charging Kruse with 

one count of driving under the influence, .15 or over, a 

Class W misdemeanor. Kruse pled not guilty and moved to 

suppress all evidence seized as a result of the search warrant. 

His motion to suppress challenged the validity of the warrant, 

alleging it was “issued on the basis of an affidavit that failed 

to establish probable cause that [Kruse] was engaged in criminal activity.” At the suppression hearing, the search warrant 
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and attached affidavit were received into evidence, but no 

testimony was offered.

In overruling the motion to suppress, the county court noted 

the affidavit was “poorly written in many aspects,” but found 

that when “reviewed as a whole,” the affidavit was nevertheless sufficient to establish probable cause that Kruse was 

operating a motor vehicle while under the influence of alcohol. The county court expressly rejected Kruse’s arguments 

that the affidavit was insufficient because: (1) It did not sufficiently identify the affiant; (2) it did not sufficiently identify 

the person to be searched; (3) it did not sufficiently identify 

the vehicle as a motor vehicle; (4) it did not sufficiently identify the time or location of any motor vehicle accident; and 

(5) it did not sufficiently identify Kruse as the driver of a 

motor vehicle.

The county court’s order did not reference the good faith 

exception recognized by the U.S. Supreme Court in United 

States v. Leon.1 Leon held that even if the affidavit supporting the warrant is insufficient, evidence seized pursuant to the 

warrant need not be suppressed if officers acted in objectively 

reasonable good faith in reliance upon the warrant.2

Thereafter, the parties held a trial on stipulated facts. Exhibits 

were received pursuant to the stipulation, and Kruse renewed 

his motion to suppress. In an order entered April 17, 2018, the 

county court overruled the renewed motion to suppress and 

found Kruse guilty of driving under the influence with a blood 

alcohol concentration of .15 or higher, first offense. Kruse was 

sentenced to 9 months’ probation and his operator’s license 

was revoked for 1 year.

2. Appeal to District Court

Kruse appealed to the district court, assigning only that 

the county court erred in overruling his motion to suppress. 

1 United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 

(1984).

2 Id.
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Before the district court, Kruse argued the affidavit was 

insufficient to support a finding of probable cause because it 

lacked (1) information regarding the identity of the affiant, (2) 

information regarding the affiant’s training and experience, (3) 

information that the referenced accident occurred on a highway or private property open to public access, (4) specificity 

as to the nature of the injury accident, (5) the identity of the 

officer who approached and smelled the odor of alcohol, (6) 

the identity of the person who smelled of alcohol, (7) facts 

showing that anyone was driving a motor vehicle, (8) facts 

showing the time of the contact, and (9) facts showing that 

Kruse was driving.

The court addressed each of these grounds individually, and 

found none had merit. The court acknowledged the affidavit 

was “thin on detail,” but it concluded, applying a totality of 

the circumstances test,3 that the affidavit supported a finding of 

probable cause. Alternatively, the district court held the Leon

good faith exception applied, because the officers acted reasonably in relying on the warrant.

Kruse timely appealed the district court’s affirmance, and we 

moved the case to our docket on our own motion.

II. ASSIGNMENTS OF ERROR

Kruse assigns, renumbered and restated, that the district 

court erred in (1) finding the affidavit was sufficient to support 

probable cause and (2) applying the Leon good faith exception 

to the search warrant requirement.

III. STANDARD OF REVIEW

[1] In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, 

an appellate court applies a two-part standard of review.4

Regarding historical facts, an appellate court reviews the trial 

3 See State v. Hildago, 296 Neb. 912, 896 N.W.2d 148 (2017).

4 Id.
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Cite as 303 Neb. 799

court’s findings for clear error.5 But whether those facts trigger or violate Fourth Amendment protections is a question of 

law that an appellate court reviews independently of the trial 

court’s determination.6

[2] Application of the good faith exception to the exclusionary rule is a question of law.7

 On a question of law, 

an appellate court reaches a conclusion independent of the 

court below.8

IV. ANALYSIS

Kruse argues that several deficiencies in Parmer’s affidavit 

rendered it insufficient to support a finding of probable cause. 

These are the same deficiencies he argued to both the county 

and district courts. When reviewing the affidavit, the county 

court remarked that it was “poorly written in many aspects,” 

and the district court agreed that it was “thin on detail.” We 

agree with those characterizations. But we do not engage in a 

detailed discussion of whether the affidavit was sufficient to 

support a finding of probable cause,9 because we conclude that, 

even if the affidavit was deficient, the district court properly 

applied the Leon good faith exception.10

1. Good Faith Exception

Kruse argues the evidence should be suppressed because 

it was obtained in violation of the Fourth Amendment. But 

the Fourth Amendment does not expressly preclude the use 

5 Id.

6 Id.

7 State v. Hatfield, 300 Neb. 152, 912 N.W.2d 731 (2018).

8 Id.

9 See Carey v. City of Hastings, 287 Neb. 1, 11, 840 N.W.2d 868, 876 

(2013) (“[a]n appellate court is not obligated to engage in an analysis that 

is not necessary to adjudicate the case and controversy before it”).

10 See State v. Hill, 288 Neb. 767, 851 N.W.2d 670 (2014) (recognizing 

court can analyze good faith exception before analyzing whether Fourth 

Amendment violated).
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of evidence obtained in violation of its commands.11 Thus, 

the exclusion of evidence obtained in violation of the Fourth 

Amendment is “‘not a personal constitutional right.’”12 Rather, 

the exclusionary rule operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally 

through its deterrent effect.13

Because of the deterrent purpose of the exclusionary rule, the 

U.S. Supreme Court has recognized a number of circumstances 

in which the rule does not apply. In Leon, the Court reasoned 

the exclusionary rule is designed to deter police misconduct, 

rather than to punish the errors of judges and magistrates, and 

thus concluded a good faith exception to the exclusionary rule 

should apply when police officers act in objectively reasonable 

good faith in reliance upon a search warrant.14 The Court has 

subsequently held the good faith exception also applies when 

police conduct a search in reasonable reliance on a subsequently invalidated statute,15 when police conduct a search in 

reasonable reliance on binding appellate precedent,16 and when 

police reasonably rely on erroneous information in a database 

maintained by judicial employees.17

[3-5] In a case such as this where a warrant was issued, 

the applicability of the good faith exception turns on whether 

the officers acted in objectively reasonable good faith in reliance on the warrant. In assessing an officer’s good faith in 

11 State v. Hoerle, 297 Neb. 840, 901 N.W.2d 327 (2017).

12 Davis v. United States, 564 U.S. 229, 236, 131 S. Ct. 2419, 180 L. Ed. 2d 

285 (2011), quoting Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. 

Ed. 2d 1067 (1976).

13 Hoerle, supra note 11.

14 Leon, supra note 1; State v. Tompkins, 272 Neb. 547, 723 N.W.2d 344 

(2006), modified on denial of rehearing 272 Neb. 865, 727 N.W.2d 423 

(2007).

15 Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987).

16 Davis, supra note 12.

17 Arizona v. Evans, 514 U.S. 1, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995).
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conducting a search under the warrant, a reviewing court must 

look to the totality of the circumstances surrounding the issuance of the warrant, including information not contained within 

the four corners of the affidavit.18 Evidence may be suppressed 

if (1) the magistrate or judge in issuing a warrant was misled 

by information in an affidavit that the affiant knew was false 

or would have known was false except for his or her reckless 

disregard of the truth, (2) the issuing magistrate wholly abandoned his or her judicial role, (3) the warrant is based on an 

affidavit so lacking in indicia of probable cause as to render 

official belief in its existence entirely unreasonable, or (4) the 

warrant is so facially deficient that the executing officer cannot 

reasonably presume it to be valid.19

Kruse argues that the good faith exception should not apply 

in this case for two reasons. First, he contends the State did 

not raise the good faith exception before the county court and 

it was error for the district court to consider the exception for 

the first time on appeal.20 Second, he contends the good faith 

exception does not apply to the facts of this case, because 

the warrant was based on an affidavit so lacking in indicia 

of probable cause as to render official belief in its existence 

entirely unreasonable. Notably, Kruse does not argue that 

any issues of fact exist as to whether the exception applies, 

but instead limits his arguments to the stipulated evidence in 

the record.

2. Raising Good Faith on Appeal

We first address Kruse’s argument that the district court 

erred in considering the good faith exception for the first time 

18 See Tompkins, supra note 14.

19 Id.

20 See, In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018); 

State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015) (appellate courts 

generally do not consider arguments and theories raised for first time on 

appeal).
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on appeal. As noted, the county court was the trial court in this 

proceeding, and the district court was acting as an intermediary 

appellate court. As a general rule, an appellate court will not 

consider an argument or theory that is raised for the first time 

on appeal.21

Our record does not allow us to conclusively determine 

whether Kruse is correct that the good faith exception was 

not argued before the county court. The parties presented their 

arguments to the county court in briefs, and those briefs are not 

in our record. However, Kruse conceded during oral argument 

before this court that the issue of good faith was raised by the 

State before the district court sitting as an appellate court.

We thus assume the first time the Leon good faith exception 

was raised in this case was while it was pending before the district court on appeal. And we consider the question presented 

to be whether it was proper for the district court, under those 

circumstances, to consider and apply the exception.

(a) State v. Tompkins

Kruse argues the district court erred in considering the good 

faith argument when it was not raised to the trial court. He 

relies on State v. Tompkins,

22 in which we considered whether 

it was appropriate for the Nebraska Court of Appeals to consider, sua sponte, whether the good faith exception applied. 

In Tompkins, the defendant argued the affidavit used to obtain 

a search warrant lacked sufficient probable cause. The State 

disagreed, but did not raise the good faith exception to the district court. The district court found the affidavit was sufficient, 

and the defendant appealed. The Court of Appeals found the 

affidavit was insufficient, but then, on its own, considered and 

applied the good faith exception even though the State had not 

raised it on appeal. On further review, we held this was error. 

We framed the question as “whether an appellate court can 

21 Id.

22 Tompkins, supra note 14.
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reach the Leon good faith exception without the State’s having 

raised the issue,” and we held, for “policy reasons,” that when 

the State fails to assert the good faith exception on appeal, it 

waives it.23

We reasoned in Tompkins that when the State fails to raise 

the Leon good faith exception on appeal, the defendant is 

denied an opportunity to argue against its application. In asserting this rationale, we generally acknowledged that “requiring 

the State to raise the good faith issue at the appellate level does 

not place an onerous burden on the State,” because “the inquiry 

into good faith normally involves an examination of the same 

facts as the probable cause inquiry,” and thus the State needs to 

“do little more than assert good faith to have it considered by 

the appellate court.”24 But we nevertheless found the defendant 

should have an opportunity to argue against the application of 

the exception, and he or she is prevented from doing so if the 

court raises the issue sua sponte.25

Our subsequent cases have recognized that the holding in 

Tompkins was narrow and only prevents an appellate court 

from raising the good faith exception on its own motion. In 

State v. Nielsen,

26 the defendant relied on Tompkins and argued 

the State could not argue the good faith exception on appeal, 

because it had not raised the argument to the trial court. We 

rejected this argument by noting that the record showed the 

State had raised the exception to the trial court. We then 

explained in dicta:

Although we do not reach the State’s argument that 

raising good faith for the first time on appeal is sufficient, 

[the defendant’s] contrary premise seems unconvincing. 

Our decision in State v. Tompkins declined to answer 

the precise question. We recognize that the State has the 

23 Id. at 548-49, 723 N.W.2d at 346.

24 Id. at 553, 723 N.W.23d 349. 

25 See id.

26 State v. Nielsen, 301 Neb. 88, 917 N.W.2d 159 (2018).
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burden of showing that the good faith exception applies. 

In Tompkins, we stressed that an appellate court on its 

own motion cannot consider the good faith exception. . 

. . But we also said that “at the appellate level, the State 

has ample opportunity to raise the Leon good faith exception.” This would suggest that in order for an appellate 

court to consider the good faith exception, the State can 

raise it either at the trial court or on appeal.27

In State v. Henderson,

28 we again emphasized the narrow 

holding in Tompkins. In Henderson, the defendant argued his 

appellate counsel was ineffective for not arguing that Tompkins 

prevented the State from arguing the good faith exception for 

the first time on his direct appeal. We found the record did not 

factually support the defendant’s assertion, because his own 

counsel had argued against the applicability of the good faith 

exception at trial. And although we did not reach the issue 

argued by the defendant, we again noted that Tompkins “does 

not answer the question of whether the State may raise the 

good faith exception for the first time on appeal.”29

Because the record before us does not show whether the 

good faith argument was raised to the trial court, but does 

show it was raised to the appellate court, we must determine 

whether, in this case, it was proper for the appellate court to 

consider the State’s argument that the good faith exception 

applies. In doing so, we necessarily address issues not considered by Tompkins.

(b) Existing Record Is Sufficient 

to Determine Good Faith

[6,7] We also do so in light of well-recognized propositions 

of law. As a general rule, a Nebraska appellate court does 

not consider an argument or theory raised for the first time 

27 Id. at 93, 917 N.W.2d at 163, quoting Tompkins, supra note 14.

28 State v. Henderson, 301 Neb. 633, 920 N.W.2d 246 (2018).

29 Id. at 659, 920 N.W.2d at 267.
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on appeal.30 This is primarily so because a trial court cannot 

commit error regarding an issue that was never presented to it 

or submitted for its disposition.31 At the same time, however, 

where the record adequately demonstrates that the decision of 

a trial court is correct, although such correctness is based on 

a ground or reason different from that articulated by the trial 

court, an appellate court will affirm.32

[8-10] The State has the burden of showing the good faith 

exception applies to an otherwise unconstitutional search.33 We 

have said that the good faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained 

officer would have known that the search was illegal despite 

a magistrate’s authorization.34 Officers are assumed to have a 

reasonable knowledge of what the law prohibits.35 In assessing 

the good faith of an officer conducting a search warrant, an 

appellate court must look to the totality of the circumstances 

surrounding the issuance of the warrant, including information 

not contained within the four corners of the affidavit.36

[11] As we explained in Tompkins, the inquiry into whether 

the good faith exception applies “normally involves an examination of the same facts as the probable cause inquiry,”37 and 

thus in the vast majority of cases, an appellate court will be 

able to determine whether the State has met its burden on the 

existing record. This is one of those cases. As noted, although 

Kruse argues the good faith exception does not apply to this 

case, he does not argue that any issues of fact exist as to 

30 See Ortega, supra note 20.

31 See State v. Simnick, 279 Neb. 499, 779 N.W.2d 335 (2010).

32 See State v. Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005).

33 See Nielsen, supra note 26.

34 State v. Henderson, 289 Neb. 271, 854 N.W.2d 616 (2014).

35 Id.

36 Id.

37 Tompkins, supra note 14, 272 Neb. at 553, 723 N.W.2d at 349.
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whether the exception applies, but instead limits his arguments 

to the proved or admitted facts in the record.

Under similar circumstances, other jurisdictions have found 

that the applicability of the good faith exception recognized 

in Leon and its progeny may be raised for the first time on 

direct appeal. In United States v. Sager,

38 a federal district 

court reversed the convictions of two defendants, reasoning 

the evidence used against them was seized pursuant to a warrant based on an insufficient affidavit, and remanded the matter for a new trial. Shortly thereafter, the U.S. Supreme Court 

decided Leon, and the government petitioned for rehearing. 

Upon granting rehearing, the Eighth Circuit found Leon was 

the applicable law, and reasoned it could determine whether 

the good faith exception announced in Leon applied without 

conducting further proceedings. In doing so, the Eighth Circuit 

expressly reasoned that Leon involves issues of objective reasonableness, not subjective good faith, and further found that 

all the facts necessary to such a determination had been “fully 

ventilated.”39 It also emphasized that the defendants did not 

“suggest any new fact relevant to [the analysis] that is not 

already in the record.”40

In U.S. v. Gomez41 a defendant contended evidence seized as 

a result of a traffic stop should have been suppressed. The district court denied his motion, relying on U.S. v. Harrison.

42 On 

appeal, the Second Circuit found the U.S. Supreme Court had 

abrogated Harrison in Rodriguez v. U.S.43 and that the district 

court should have applied Rodriguez and found the stop was 

unconstitutional. But it allowed the government to raise the 

38 United States v. Sager, 743 F.2d 1261 (8th Cir. 1984).

39 Id. at 1265.

40 Id.

41 U.S. v. Gomez, 877 F.3d 76 (2d Cir. 2017).

42 U.S. v. Harrison, 606 F.3d 42 (2d Cir. 2010).

43 Rodriguez v. U.S., ___ U.S. ___, 135 S. Ct. 1609, 191 L. Ed. 2d 492 

(2015).
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good faith exception on appeal, in part because “‘the argument 

presents a question of law and there is no need for additional 

fact-finding.’”44

In State v. Schmidt,

45 the defendant moved to suppress the 

results of a warrantless blood test and the trial court denied 

his motion. While the case was pending on appeal, the U.S. 

Supreme Court held in Birchfield v. North Dakota46 that the 

Fourth Amendment does not permit warrantless blood tests. 

The State then sought to assert the applicability of the good 

faith exception for the first time on appeal. The Kansas Court 

of Appeals noted the defendant had not pointed to any disputed facts or made any argument why the good faith exception could not be addressed on direct appeal. The court thus 

held the State’s good faith argument could be invoked for 

the first time on appeal, because although it was a newly 

asserted theory, it involved only a question of law that was 

based on proved or admitted facts and was determinative of 

the case.47

Although this court did not confront the issue as directly 

as the court in Schmidt, we have also considered the good 

faith exception in a post-Birchfield case, and it was also 

raised by the State for the first time on appeal. In State v. 

Hatfield,

48 the defendant was convicted in county court of 

driving under the influence based in part on a warrantless 

blood draw. He appealed to the district court. After appellate 

briefing in the district court was concluded, the U.S. Supreme 

Court decided Birchfield, and the defendant then asked the 

district court to apply that decision. It did so, finding that 

44 Gomez, supra note 41, 877 F.3d at 95, quoting Bogle-Assegai v. 

Connecticut, 470 F.3d 498 (2d Cir. 2006).

45 State v. Schmidt, 53 Kan. App. 2d 225, 385 P.3d 936 (2016).

46 Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 

560 (2016).

47 Schmidt, supra note 45.

48 Hatfield, supra note 7.
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Birchfield rendered the blood draw unlawful and inadmissible, and reversed, and remanded for a new trial. The State 

filed an exception proceeding, arguing the district court sitting as an appellate court had erred in reversing the conviction without considering whether the good faith exception 

applied. We agreed. We noted that application of the good 

faith exception to the exclusionary rule is a question of law 

on which an appellate court reaches a conclusion independent 

of the court below.49 We then concluded, citing our decision 

in State v. Hoerle,

50 that the good faith exception applied to 

a warrantless pre-Birchfield blood draw, and we applied that 

exception to conclude the blood evidence in Hatfield was 

admissible. We thus sustained the State’s exception, reversed 

the district court’s order, and remanded the matter for further 

proceedings.

These cases illustrate that when the applicability of the 

good faith exception involves examination of the same basic 

facts as the probable cause inquiry, an appellate court generally is able, as part of its de novo review, to determine the 

legal question of good faith on the existing record. Because 

we conclude this is such a case, we find no merit to Kruse’s 

argument that the Leon good faith exception could not be 

considered on appeal because it was not first raised before the 

trial court. We emphasize, however, that the record may not 

always be sufficient to allow an appellate court to determine 

the applicability of the good faith exception when it is raised 

for the first time on appeal. For that reason, it is advisable to 

raise the exception to the trial court whenever it is considered applicable.

We turn now to Kruse’s argument that the good faith exception does not apply here because the warrant was based on an 

affidavit so lacking in indicia of probable cause as to render 

official belief in its existence entirely unreasonable.

49 Id.

50 Hoerle, supra note 11.
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3. Good Faith Exception Applies

[12] When evaluating whether the warrant was based on an 

affidavit so lacking in indicia of probable cause as to render 

official belief in its existence entirely unreasonable, an appellate court should address whether the officer, considered as a 

police officer with a reasonable knowledge of what the law 

prohibits, acted in objectively reasonable good faith in relying 

on the warrant.51 The “good-faith inquiry is confined to the 

objectively ascertainable question whether a reasonably well 

trained officer would have known that the search was illegal 

despite the magistrate’s authorization.”52 Officers are assumed 

to “have a reasonable knowledge of what the law prohibits.”53

In assessing the good faith of an officer’s conducting a search 

under a warrant, an appellate court must look to the totality 

of the circumstances surrounding the issuance of the warrant, 

including information not contained within the four corners of 

the affidavit.54

Here, the record shows Officers Parmer and Johnson 

responded to the scene of a motor vehicle accident and found 

Kruse unresponsive behind the wheel of one of two cars at 

the scene. Johnson smelled alcohol on Kruse’s breath and 

noticed that Kruse’s eyes appeared bloodshot and watery. 

Emergency medical personnel treating Kruse at the scene told 

the officers that Kruse had the odor of alcohol on his breath, 

and Parmer observed Kruse to be incoherent. Based on this 

information, the officers believed there was probable cause 

to conclude Kruse had been operating a motor vehicle under 

the influence of alcohol, and they applied for a search warrant 

to obtain a sample of Kruse’s blood to test his blood alcohol 

content. The affidavit submitted in support of the warrant did 

not expressly state that Kruse was the driver of one of the 

51 State v. Sprunger, 283 Neb. 531, 811 N.W.2d 235 (2012).

52 Leon, supra note 1, 468 U.S. at 922 n.23.

53 Id., 468 U.S. at 920 n.20.

54 Tompkins, supra note 14.
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vehicles involved in the accident, but the officers reasonably 

believed him to be so, and reasonably believed he had been 

drinking alcohol prior to the accident. A county court judge 

issued the search warrant, and officers proceeded to the hospital where they promptly executed the warrant.

Under the totality of the circumstances in this case, we 

find the officers acted in objectively reasonable good faith in 

reliance upon the search warrant. We conclude that the Leon

good faith exception applies and that there was no need to 

exclude the blood evidence seized pursuant to the warrant. 

The district court did not err in affirming the judgment of the 

county court.

V. CONCLUSION

We do not decide whether the affidavit in this case was 

sufficient to support a finding of probable cause, because we 

conclude that, even assuming the warrant was invalid, the 

Leon good faith exception applied and that exclusion of the 

blood evidence was not required. Accordingly, we affirm the 

decision of the district court.

Affirmed.