State v. Tompkins

272 Neb. 865

STATE OF NEBRASKA, APPELLEE, v. ANDREW TOMPKINS, APPELLANT.

No. S-05-212.

Supreme Court of Nebraska.

Filed January 12, 2007.

Brian J. Lockwood, Deputy Scotts Bluff County Public Defender, for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

SUPPLEMENTAL OPINION

PER CURIAM.

Case No. S-05-212 is before us on the motion for rehearing filed by the State of Nebraska, appellee, regarding our opinion reported at State v. Tompkins, ante p. 547, 723 N.W.2d 344 (2006). We overrule the motion, but for purposes of clarification, modify the opinion as follows:

That portion of the opinion designated "CONCLUSION," id. at 554, 723 N.W.2d at 349, is withdrawn, and the following language is substituted in its place:

CONCLUSION The Court of Appeals correctly concluded that the search warrant used to obtain certain evidence used against Tompkins was not based on an affidavit with sufficient indicia of probable cause as to Tompkins. However, because the State waived the Leon good faith exception by failing to raise it, the Court of Appeals erred in raising the issue on its own motion and in affirming the judgment of the district court on that basis. The evidence, including that erroneously received, was sufficient to sustain the conviction. Accordingly, Tompkins' convictions should be reversed and he may be given a new trial at which the evidence obtained through the defective search warrant shall not be admissible. See Lockhart v. Nelson, 488 U.S. 33, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988). See, also, State v. Allen, 269 Neb. 69, 690 N.W.2d 582 (2005); State v. Sheets, 260 Neb. 325, 618 N.W.2d 117 (2000), overruled on other grounds, Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We therefore reverse the judgment of the Court of Appeals and remand the cause to that court with directions to reverse the judgment of the district court and remand the cause to that court for a new trial consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

The remainder of the opinion shall remain unmodified.

Former opinion modified.

Motion for rehearing overruled.

Heavican, C.J., not participating.