State v. Elias , 314 Neb. 494 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/16/2023 09:05 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. ELIAS
Cite as 314 Neb. 494State of Nebraska, appellee, v.
Majdal K. Elias, appellant.
___ N.W.2d ___
Filed June 16, 2023. No. S-22-443.
1. Rules of Evidence: Other Acts: Appeal and Error. An appellate court
reviews for abuse of discretion a trial court’s evidentiary rulings on the
admissibility of a defendant’s other crimes or bad acts under Neb. Evid.
R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2022), or the appli-
cability of the inextricably intertwined doctrine.
2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules; judicial
discretion is involved only when the rules make discretion a factor in
determining admissibility.
3. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
4. 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 histori-
cal 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 indepen-
dently of the trial court’s determination.
Appeal from the District Court for Lancaster County: Lori
A. Maret, Judge. Affirmed.
Chad Wythers, of Wythers Law Firm, for appellant.
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STATE V. ELIAS
Cite as 314 Neb. 494Michael T. Hilgers, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
Following a jury trial, Majdal K. Elias was convicted of
second degree murder, unlawful discharge of a firearm, and
two counts of use of a weapon to commit a felony. On appeal,
Elias challenges the admission of evidence that he had been
the victim of a robbery in the past, had conducted drug deals
after the murder, and had possessed several weapons. Elias fur-
ther challenges cellular telephone information obtained from a
“tower dump.” We affirm.
BACKGROUND
Shooting and Police Investigation.
The charges against Elias stem from the shooting death of
Ali Alburkat on September 29, 2019. Alburkat was a back seat
passenger in a car that was shot at during a drive-by shooting
on North 7th Street near the Links, an apartment complex north
of Interstate 80, in Lincoln, Nebraska.
Alburkat, who was 15 years of age, and three others had
been driving around the parking lot of the Links, searching
for the apartment of a drug dealer they had planned to rob.
The driver of the car in which Alburkat was a passenger had
taken his shirt off and wrapped it around his head to mask
his identity. A silver or gray Ford Explorer began following
them. The two vehicles stopped on North 7th Street so that
the occupants could confront each other, and the driver (and
sole occupant) of the Explorer asked the other driver about his
“mask” and then said something about the occupants of the
car being “busted” before shooting at the car as the Explorer
sped away. Alburkat died from a gunshot wound to his back,
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Nebraska Supreme Court Advance Sheets
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STATE V. ELIAS
Cite as 314 Neb. 494later determined to be inflicted by a 9-mm Glock handgun.
The weapon used to kill Alburkat was never recovered.
Police obtained surveillance footage from security cameras
in the vicinity, which showed the Explorer involved in the
shooting. In early October 2019, officers canvassed the nearby
Links apartment complex and located a similar Explorer, com-
plete with distinctive damage to its “air dam” and registered
to Elias.
By mid-October 2019, a narcotics task force had, coinci-
dentally, learned that Elias was potentially involved in deal-
ing large amounts of marijuana and possibly cocaine around
Lincoln. Several controlled narcotics buys were facilitated
between Elias and a confidential informant. Prior to two
of those buys, Elias visited a residence owned by his aunt
and uncle. According to the testimony of that aunt, Elias
stored marijuana at their home and had also done so at their
prior home.
Another aunt lived with Elias at the Links and had also
lived with Elias previously at a different apartment complex
in Lincoln. According to this aunt, Elias had moved drugs and
other items stored at his aunt and uncle’s prior home into a
garage located at her and Elias’ apartment complex, which was
then burglarized at a loss of approximately $60,000.
After these controlled buys, search warrants were sought
for Elias’ apartment, as well as for his aunt and uncle’s home.
During those searches, large amounts of narcotics, firearms,
and currency were found. Elias was charged separately for
the drug offenses and convicted. Following the arrest of Elias
in late October 2019, which was reported in the news media,
the driver of the car in which Alburkat had been a passenger
informed law enforcement that he believed Elias could be
the shooter.
In addition to the identification of Elias and the match of
Elias’ Explorer to the Explorer driven by the shooter, law
enforcement also obtained a court order under 18 U.S.C.
§ 2703(d) (2018) and the Nebraska equivalent, Neb. Rev.
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STATE V. ELIAS
Cite as 314 Neb. 494Stat. § 86-2,106 (Reissue 2014), for a “tower dump.” Tower
dumps include phone numbers for all cell phones that accessed
towers near a requested address during a particular timeframe.
This information was obtained within a few days of the
shooting. The requesting officer testified at the hearing on
the motion to suppress that because the information was not
retained by cell phone carriers for more than 10 or so days, it
needed to be obtained as soon as possible, even though it might
not be needed for a period of time.
Once Elias was arrested, law enforcement was able to search
for his phone number in this data. In doing so, it was deter-
mined that Elias was in the vicinity of North 7th Street during
the same time as the cell phone locations of the victims of the
shooting. Moreover, the evidence produced from the tower
dump was consistent with the surveillance video obtained from
the security cameras near the scene of the shooting.
The State’s theory of the defense was that Elias had previ-
ously lost $60,000 in a burglary and was concerned that the
occupants of Alburkat’s car were at the Links to rob him. Elias
was charged with second degree murder, unlawful discharge
of a firearm, and two counts of use of a firearm to commit
a felony.
Pretrial Motions.
Prior to trial, Elias filed several motions in limine and a
motion to suppress. As to the motions in limine, Elias asked
the district court to exclude, on the basis of Neb. Evid. R. 404,
Neb. Rev. Stat. § 27-404 (Cum. Supp. 2022) (Rule 404),
all evidence related to his attempted purchase of a murder
weapon, his possession of other weapons, and any evidence
that he was distributing illegal narcotics. Following a hearing,
the district court concluded that the evidence was relevant
to Elias’ motive for the shooting—his concern about being
burglarized or robbed—and further found that the State had
proved by clear and convincing evidence that events sur-
rounding the drug and gun possession evidence sought to be
excluded did occur.
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STATE V. ELIAS
Cite as 314 Neb. 494In his motion to suppress, Elias sought the suppression of
the data obtained from the tower dump of the cellular tow-
ers near the location of the shooting. Following a suppression
hearing, the district court also denied the motion to sup-
press, stating:
Based on the evidence presented here today, I do find that
specifically with regard to the tower dump, I find it illus-
trative and compelling that in Carpenter versus United
States the court, as [counsel for the State] has pointed out,
specifically states, “We do not express a view on matters
not before us, real time, [cell site location information]
or tower dumps.” Specifically, I think that’s what we
have here.
I also find that tower dumps—I mean, the Fourth
Amendment is supposed to protect a person’s right to
privacy. It doesn’t mean that you’re not doing something
behind the closed door of your bedroom, it just means
that I can’t find out what that is. And, when the tower
dump was applied for and received, there was noth-
ing identifying, in that information, that would have
told anybody, without further information, that any of
that information from that tower dump belonged to . . .
Elias. In a sense, the door to that bedroom was closed
and it remained closed until additional evidence was
gathered that allowed that first investigative tool to
become useful.
I find that having not done that tower dump, that that
information would have disappeared and law enforcement
wouldn’t have been able to have used that, which is the
reason we have the state statute and the federal statute
giving law enforcement that additional tool of being able
to locate, find, bring to just[ice] those persons who are
committing crimes.
At the time of the tower dump, the defendant wasn’t
even a person of interest.
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STATE V. ELIAS
Cite as 314 Neb. 494It’s very fact specific. Carpenter is, and I’m going to
overrule the motion to suppress.
Following a jury trial, Elias was convicted of second degree
murder, unlawful discharge of a firearm, and two counts of
use of a weapon to commit a felony. He was sentenced to
60 to 80 years’ imprisonment for second degree murder, 10
to 20 years’ imprisonment for unlawful discharge of a fire-
arm, and 10 to 20 years’ imprisonment on each count of use
of a weapon to commit a felony, with all sentences to be
served consecutively.
ASSIGNMENTS OF ERROR
Elias assigns that the district court erred in (1) admitting
evidence of his character, specifically information that (a) he
conducted drug deals after the murder, (b) he was the victim
of a robbery, and (c) he owned firearms, and (2) holding that
the cell phone tower dump was not a search and subject to the
protections of the Fourth Amendment.
STANDARD OF REVIEW
[1] An appellate court reviews for abuse of discretion a trial
court’s evidentiary rulings on the admissibility of a defendant’s
other crimes or bad acts under Rule 404(2) or the applicability
of the inextricably intertwined doctrine. 1
[2,3] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such
rules; judicial discretion is involved only when the rules
make discretion a factor in determining admissibility. 2 Where
the Nebraska Evidence Rules commit the evidentiary ques-
tion at issue to the discretion of the trial court, an appellate
court reviews the admissibility of evidence for an abuse
of discretion. 3
1
See State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019).
2
Id.3
Id.- 500 -
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STATE V. ELIAS
Cite as 314 Neb. 494[4] In reviewing a trial court’s ruling on a motion to sup-
press 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
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination. 5
ANALYSIS
Rule 404.
In his first assignment of error, Elias assigns that the dis-
trict court erred in (1) admitting evidence of his character,
specifically information that (a) he conducted drug deals after
the murder, (b) he was the victim of a robbery, and (c) he
owned firearms.
Elias timely challenged the preceding evidence under Rule
404. A hearing under Rule 404(3) was held, after which the
court, applying the applicable clear and convincing evidence
standard, concluded that the events in question had occurred
and were admissible to show Elias’ motive for the shooting that
led to Alburkat’s death.
The State argued, and the court found, that Elias had previ-
ously been the victim of a burglary and currently possessed
large sums of money and large quantities of illegal narcot-
ics. Elias owned multiple weapons, and the State posited that
Elias was concerned that Alburkat’s car posed a threat to him,
particularly given that the car and its occupants were driv-
ing around the parking lot of the Links apartment complex
(because they were apparently lost) and with a driver who had
a shirt wrapped around his face in a makeshift mask (because
they apparently intended to rob someone else).
4
State v. Jennings, 305 Neb. 809, 942 N.W.2d 753 (2020).
5
Id.- 501 -
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STATE V. ELIAS
Cite as 314 Neb. 494At trial, the State offered the testimony of a law enforce-
ment officer who helped execute the search warrants in Elias’
case. Elias objected to the content of the officer’s testimony
in connection with the motion in limine. Specifically, the offi-
cer testified that on at least two occasions, Elias had engaged
in the sale of illegal narcotics to a police informant, and that
several search warrants were executed with respect to Elias’
home, another home that Elias had continuing access to, and
Elias’ car. The officer testified that during the execution of
the warrants, illegal narcotics, cash, and multiple firearms
were discovered.
At the time the officer began to testify, Elias sought
and was granted a continuing objection to the testimony.
Following the officer’s testimony, at least seven other wit-
nesses also testified that Elias owned multiple firearms or
that large quantities of illegal narcotics were found in Elias’
home, as well as in areas under Elias’ control in his aunt and
uncle’s home. Elias failed to object to any of that testimony
or other evidence.
Neb. Rev. Stat. § 25-1141 (Reissue 2016) provides:
Where an objection has once been made to the admis-
sion of testimony and overruled by the court it shall be
unnecessary to repeat the same objection to further testi-
mony of the same nature by the same witness in order to
save the error, if any, in the ruling of the court whereby
such testimony was received.
We addressed a similar situation in State v. Castillas 6; there,
the defendant sought and obtained a “continuing objection”
during the direct examination of three witnesses, but failed to
object or renew his objection during the testimony of a fourth.
We held that under § 25-1141, the defendant had waived his
objection to the testimony at issue.
6
State v. Castillas, 285 Neb. 174, 182, 826 N.W.2d 255, 263 (2013),
disapproved on other grounds, State v. Lantz, 290 Neb. 757, 861 N.W.2d
728 (2015). See, also, State v. Pope, 305 Neb. 912, 943 N.W.2d 294(2020).
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STATE V. ELIAS
Cite as 314 Neb. 494In the same way, Elias’ objection, on the basis of Rule 404,
was timely as to the initial testimony, and a continuing objec-
tion was sought. But in order to preserve the objection to the
evidence at issue, that objection needed to be renewed with
each new witness. It was not. As such, Elias has waived his
objection to the evidence as presented through the testimonies
of the other witnesses.
But even if Elias had preserved that objection, we would
find no error in the admission of the challenged testimony. The
evidence in question—Elias’ status as the victim of a robbery,
Elias’ actions in selling illegal narcotics, and Elias’ ownership
of firearms—was challenged by a motion in limine filed by
Elias on the basis of Rule 404. Rule 404(2) states:
Evidence of other crimes, wrongs, or acts is not admis-
sible to prove the character of a person in order to show
that he or she acted in conformity therewith. It may, how-
ever, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
As noted above, a hearing was held at which the State
offered evidence in which the district court determined the
State had proved, by clear and convincing evidence, that the
“crime[], wrong[], or act[]” had been committed by Elias
and that the evidence was admissible to show Elias’ motive.
Moreover, the jury was instructed to this effect prior to
its deliberations.
Elias challenges the admissibility of that evidence to prove
his motive. He contends that the evidence of the postmur-
der drug deals was insufficient evidence of the existence of
a motive to shoot someone, especially where that murder
occurred prior to the drug deals offered into evidence. Elias
further argues that assuming his status as the victim of a
burglary could have motivated him to seek out retaliation,
that motivation was not dependent on whether he was a drug
dealer or on what was stolen. Finally, Elias argues that his
possession of firearms only encourages the jury to conclude
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STATE V. ELIAS
Cite as 314 Neb. 494that he is a drug dealer who owns guns and therefore must
be punished.
We disagree that this evidence was not relevant to show
Elias’ motive. The State’s theory was that Elias was suspi-
cious of Alburkat and his companions because of Elias’ own
experiences, namely that he had been burglarized of about
$60,000 in property. The State asserted that Elias, because
of his drug dealing, was in control of significant amounts
of cash and narcotics and that further, he possessed guns,
including one in a magnetic box affixed to the bottom of his
vehicle, because he was concerned about becoming a vic-
tim, yet again, of a burglary. Elias’ arguments in opposition
are unpersuasive.
There is no merit to Elias’ first assignment of error.
Cell Tower Dump.
Elias next assigns that the district court erred in denying his
motion to suppress data obtained via the warrant for a tower
dump. We conclude that on these facts, the tower dump in
question was not a search. As such, this assignment of error is
likewise without merit.
A tower dump is “a download of information on all the
devices that connected to a particular cell site during a par-
ticular interval.” 7 Our analysis of the propriety of a tower
dump must begin with the U.S. Supreme Court’s decision in
Carpenter v. U.S. 8 Carpenter held that individuals do have
a reasonable expectation of privacy in the record of physical
movements captured by cell site location information (CSLI)
and that a warrant supported by probable cause generally
must be obtained in advance of law enforcement acquiring
such records. 9
7
Carpenter v. U.S., ___ U.S. ___, 138 S. Ct. 2206, 2220, 201 L. Ed. 2d 507(2018).
8
Carpenter, supra note 7.
9
Id. See State v. Brown, 302 Neb. 53, 921 N.W.2d 804 (2019).
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STATE V. ELIAS
Cite as 314 Neb. 494In reaching its conclusion, the Court in Carpenter
expressed concerns over the voluminous nature of the loca-
tion data at issue there—noting that such data “provides an
all-encompassing record of the holder’s whereabouts[, and
such] time-stamped data provides an intimate window into a
person’s life, revealing not only his particular movements, but
through them his ‘familial, political, professional, religious,
and sexual associations.’. . . These location records ‘hold for
many Americans the “privacies of life.”’” 10 But the Court
also noted that its decision was a “narrow one” and did not
“express a view on matters not before us: real-time CSLI or
‘tower dumps.’” 11
Factual scenarios similar to Elias’ were presented by United
States v. Walker 12 and United States v. Rhodes. 13 In Walker, the
court distinguished Carpenter, noting:
Here, the orders capture [CSLI] not for one targeted
individual for an extended time, chronicling that indi-
vidual’s private life for days, but rather capture [CSLI]
for a particular place at a limited time. In this manner,
the privacy concerns underpinning the court’s holding in
Carpenter do not come into play here, where the search
for data focuses not on “the whole of [an individual’s]
physical movements” but rather on the data that was left
behind at a particular time and place by virtue of cell
phone tower locations. . . . Instead, the [CSLI] tower
dump information gathered here is more akin to “con-
ventional surveillance techniques” and tools, such as
security cameras and fingerprint collections, which cap-
ture data from every individual who came into contact
10
Carpenter, supra note 7, 138 S. Ct. at 2217.
11
Id., 138 S. Ct. at 2220.
12
United States v. Walker, No. 2:18-CR-37-FL-1, 2020 WL 4065980(E.D.N.C. July 20, 2020).
13
United States v. Rhodes, No. 1:19-CR-73-AT-LTW, 2021 WL 1541050(N.D. Ga. Apr. 20, 2021).
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STATE V. ELIAS
Cite as 314 Neb. 494with the crime scene in the manner revealed by the tech-
nology at issue. . . .
In light of the significant differences between a tower
dump [CSLI] and long term CSLI targeted at the whole
of an individual’s movements, as highlighted by the
court’s decision in Carpenter, the court finds no basis
for attaching a Fourth Amendment interest to tower
dump [CSLI]. 14
And in Rhodes:
The Government’s application sought identifying infor-
mation for all phones within the radius of twelve differ-
ent towers on twelve separate days for specific, limited
identified hours as well as the telephone numbers each
of those phones called or were called by, the date, time,
and duration of each communication and the type of
communication (i.e., whether text or phone call). The
twelve identified cell towers serviced cell phone com-
munications made in the radius of the commercial sites
where the robberies at issue had occurred in the time
frame between October 19, 2017 and July 28, 2018 in
metropolitan Atlanta. At the time that the Government
pursued this application, it already had collected a sig-
nificant amount of information regarding the common
patterns identified in the robberies conducted by one or
more individual suspects who appeared to frequently be
using a silver Nissan car for transportation. . . .
Data on calls made by hundreds of individuals from
the cell tower dumps was collected in the process of
the Government’s search for information that might
be of assistance in the Government’s investigation and
identification of the suspect(s) who may have com-
mitted the robberies. The Magistrate Judge found that
“the cell site information collected by the Government
here merely showed the location at which a device
14
Walker, supra note 12, 2020 WL 4065980 at *8.
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Cite as 314 Neb. 494accessed a cellular network at a particular time” to
determine if it “corresponded with the dates, times, and
locations of the robberies.” . . . The information col-
lected did not track Defendant’s or others’ movements in
detail over a lengthy period of time or the substance of
their communications.
....
. . . The specific facts presented in this matter portray a
sufficiently limited investigation and intrusion; the Court
concludes that the Government did not need a warrant
to obtain the information at issue. The Court specifically
declines to reach the question of whether this would
be true in connection with other applications for cell
tower dumps. 15
As was true in Walker and Rhodes, this case is distinguish-
able from Carpenter. The concerns present in Carpenter—
where law enforcement had access to well over 100 days of
CSLI data, including almost 13,000 location points cataloging
the defendant’s movements, averaging 101 data points per
day—are not present here. The data at issue here captured a
single snapshot of data at a limited place—the cell phone tower
nearest to the scene of the shooting—and for a limited time—
just 30 minutes total, beginning 15 minutes prior to the shoot-
ing and ending 15 minutes after—arguably narrower even than
the data obtained in Walker and Rhodes and, particularly in
light of its use in conjunction with security footage from sur-
rounding properties, more akin to “conventional surveillance
techniques,” as referenced by the court in Walker.
Good Faith.
Even if this tower dump implicated the Fourth Amendment,
we find that the order under 18 U.S.C. § 86-2,106 allow-
ing the dump was executed in good faith. Application of the
good faith exception to the exclusionary rule is a question of
15
Rhodes, supra note 13, 2021 WL 1541050 at *1-2.
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Cite as 314 Neb. 494law. 16 The U.S. Supreme Court has explained that to trigger the
exclusionary rule, police conduct must be sufficiently deliber-
ate that exclusion can meaningfully deter such conduct and
sufficiently culpable that such deterrence is worth the price
paid by the justice system, because exclusion serves to deter
deliberate, reckless, or grossly negligent conduct, or in some
circumstances, recurring or systemic negligence. 17 The good
faith exception is applicable to an affidavit that fails to sat-
isfy the substantial basis test to support probable cause, when
police officers act in objectively reasonable good faith in reli-
ance upon the warrant. 18
The good faith inquiry is confined to the objectively ascer-
tainable question of whether a reasonably well-trained offi-
cer would have known that the search was illegal despite a
magistrate’s authorization. 19 In assessing the good faith of
an officer’s conducting a search under a warrant, an appel-
late court must look to the totality of the circumstances sur-
rounding the issuance of the warrant, including information
not contained within the four corners of the affidavit. 20 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 prohib-
its, acted in objectively reasonable good faith in relying on
the warrant. 21
“If the reviewing court is ‘able to identify in the aver-
ring officer’s affidavit some connection, regardless of
16
State v. Short, 310 Neb. 81, 964 N.W.2d 272 (2021).
17
Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496(2009).
18
Short, supra note 16.
19
Id.20
Id.21
Id.- 508 -
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Cite as 314 Neb. 494how remote it may have been’—‘some modicum of evi-
dence, however slight’—‘between the criminal activity at
issue and the place to be searched,’ then the affidavit is
not bare bones and official reliance on it is reasonable.” 22
The affidavit in support of the order seeking the tower dump
contained “some modicum of evidence” between the shooting
near the Links apartment complex and the request for a tower
dump of the cell tower nearest that scene. In its affidavit, law
enforcement averred the current state of the law on these types
of requests. And, while some CSLI is entitled to protection
under the Fourth Amendment, the U.S. Supreme Court has not
spoken with respect to the facts presented by this case. In this
respect, we see obvious parallels between this case and State v.
Brown. 23 There, we applied the good faith exception in a case
where the State, before Carpenter was issued, obtained CSLI
via a court order under the federal Stored Communications Act
rather than a warrant. We thus conclude that law enforcement
was entirely reasonable in its reliance on the order obtained
under 18 U.S.C. § 86-2,106.
We need not and do not opine here on the question of
whether a tower dump might, in different circumstances, impli-
cate the Fourth Amendment. But we find it does not apply
here. As Carpenter reminds us, and as Justice Frankfurter
noted in connection with new innovations in airplanes and
radios, courts must tread carefully “to ensure that we do not
‘embarrass the future.’” 24 Elias’ second assignment of error is
without merit.
CONCLUSION
The decision of the district court is affirmed.
Affirmed.
22
Id. at 135, 964 N.W.2d at 314.
23
Brown, supra note 9.
24
Carpenter, supra note 7, 138 S. Ct. at 2220 (quoting Northwest Airlines v.
Minnesota, 322 U.S. 292, 64 S. Ct. 950, 88 L. Ed. 1283 (1944)).