Nebraska § 29-814.04 - Search warrant; issuance on written affidavit or oral statement; contents; restriction.

§ 29-814.04. Search warrant; issuance on written affidavit or oral statement; contents; restriction.

If the magistrate or judge is satisfied that probable cause exists for the issuance of a search warrant, as a result of written affidavit or oral statement authorized pursuant to sections 29-814.01 and 29-814.02, the magistrate or judge shall issue the warrant which shall identify the person or place to be searched and the person or property to be seized. The warrant shall be directed to a law enforcement officer of the State of Nebraska or one of its governmental subdivisions, which officer shall be specifically named or described by the title of his or her office in the warrant. The warrant shall state whether the grounds or proper cause of its issuance is a written affidavit, an oral statement, or a combination of both. The warrant shall indicate the name or names of the person or persons whose affidavit or statement has been taken in support thereof. The warrant shall command the officer named in the warrant to search the person or place named for the purpose specified. The warrant shall direct that it be served in the daytime unless the magistrate or judge is satisfied that the public interest requires that it should not be so restricted, in which case the warrant may direct that it may be served at any time. The warrant shall designate the magistrate or judge to whom it shall be returned. For purposes of this section, daytime shall mean the hours from 7 a.m. to 8 p.m. according to local time.

An affidavit in support of a search warrant need not contain a separate statement of facts showing why the public interest requires that the warrant be served at night, in order for the nighttime search to be valid. If the affidavit, read in a commonsense manner and as a whole, reasonably supports the inference that the interests of justice are best served by the authorization of nighttime service of a search warrant, provision for such service in the warrant is proper. State v. Ramirez, 274 Neb. 873, 745 N.W.2d 214 (2008).

A factual basis that shows the reviewing judicial officer that the public interest requires a nighttime search is a prerequisite to the issuance of a warrant authorizing a nighttime search under this section. State v. Fitch, 255 Neb. 108, 582 N.W.2d 342 (1998).

Where the use of the catchall phrase "John and/or Jane Doe" is not based on probable cause that all persons to whom the phrase might be applied will be engaged in illegal activity, the warrant does not satisfy the requirements of this section. State v. Pecha, 225 Neb. 673, 407 N.W.2d 760 (1987).

In order to authorize the issuance of a search warrant for service during the nighttime, the magistrate or judge must only be satisfied from a commonsense reading of the affidavit in support of such issuance that it reasonably supports the inference that the interests of justice are best served by the authorization of such nighttime service. An affidavit in support of the issuance of a search warrant which alleges facts which would lead a reasonable person to believe that a delay in service of the warrant would permit the possible destruction of contraband may be sufficient to authorize immediate nighttime service. State v. Paul, 225 Neb. 432, 405 N.W.2d 608 (1987).

The showing of probable cause necessary to support a search warrant requires only the probability, and not a prima facie showing, of criminal activity, and probable cause is to be evaluated by the collective information of the police as reflected in the affidavit, and is not limited to the firsthand knowledge of the officer who executes the affidavit. State v. Longa, 211 Neb. 356, 318 N.W.2d 733 (1982).

In order to authorize the issuance of a search warrant for service during the nighttime under this section, the magistrate or judge must only be satisfied from a commonsense reading of the affidavit in support of such issuance that it reasonably supports the inference that the interests of justice are best served by the authorization of nighttime service. State v. Moore, 2 Neb. App. 206, 508 N.W.2d 305 (1993).

The receipt of information concerning defendant's drug involvement at 6:45 p.m. from informant under arrest and with access to phones satisfied public interest requirement justifying nighttime execution of search warrant. State v. Flemming, 1 Neb. App. 12, 487 N.W.2d 564 (1992).