State v. Jennings , 305 Neb. 809 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/29/2020 08:07 AM CDT
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. JENNINGS
Cite as 305 Neb. 809
State of Nebraska, appellee, v.
Leandre R. Jennings III, appellant.
___ N.W.2d ___
Filed May 15, 2020. No. S-18-1186.
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 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.
2. Motions to Suppress: Pretrial Procedure: Trial: Appeal and Error.
When a motion to suppress is denied pretrial and again during trial on
renewed objection, an appellate court considers all the evidence, both
from trial and from the hearings on the motion to suppress.
3. Evidence: Appeal and Error. A trial court has the discretion to deter-
mine the relevancy and admissibility of evidence, and such determina-
tions will not be disturbed on appeal unless they constitute an abuse of
that discretion.
4. Search Warrants: Affidavits: Probable Cause: Appeal and Error. In
reviewing the strength of an affidavit submitted as a basis for finding
probable cause to issue a search warrant, an appellate court applies a
totality of the circumstances test.
5. ____: ____: ____: ____. In reviewing the strength of an affidavit sub-
mitted as a basis for finding probable cause to issue a search warrant,
the question is whether, under the totality of the circumstances illus-
trated by the affidavit, the issuing magistrate had a substantial basis for
finding that the affidavit established probable cause.
6. Search Warrants: Probable Cause: Words and Phrases. Probable
cause sufficient to justify issuance of a search warrant means a fair
probability that contraband or evidence of a crime will be found.
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STATE v. JENNINGS
Cite as 305 Neb. 809
7. Verdicts: Juries: Appeal and Error. Harmless error review looks to
the basis on which the jury actually rested its verdict. The inquiry is
not whether in a trial that occurred without the error, a guilty verdict
would surely have been rendered, but whether the actual guilty verdict
rendered was surely unattributable to the error.
8. Judgments: Appeal and Error. A proper result will not be reversed
merely because it was reached for the wrong reason.
9. Search Warrants: Affidavits: Evidence: Appeal and Error. In evalu-
ating the sufficiency of an affidavit used to obtain a search warrant,
an appellate court is restricted to consideration of the information and
circumstances contained within the four corners of the affidavit, and
evidence which emerges after the warrant is issued has no bearing on
whether the warrant was validly issued.
10. Constitutional Law: Search and Seizure: Search Warrants: Probable
Cause. The particularity requirement of the Fourth Amendment protects
against open-ended warrants that leave the scope of the search to the
discretion of the officer executing the warrant, or permit seizure of items
other than what is described.
11. Search Warrants: Search and Seizure. A warrant whose authoriza-
tion is particular has the salutary effect of preventing overseizure and
oversearching.
12. Search Warrants: Police Officers and Sheriffs. A search warrant must
be sufficiently particular to prevent an officer from having unlimited or
unreasonably broad discretion in determining what items to seize.
13. Search Warrants: Evidence: Police Officers and Sheriffs. Absent a
showing of pretext or bad faith on the part of the police or the prosecu-
tion, valid portions of a warrant are severable from portions failing to
meet the particularity requirements.
14. Criminal Law: Appeal and Error. Harmless error jurisprudence rec-
ognizes that not all trial errors, even those of constitutional magnitude,
entitle a criminal defendant to the reversal of an adverse trial result.
15. Convictions: Appeal and Error. It is only prejudicial error, that is,
error which cannot be said to be harmless beyond a reasonable doubt,
which requires that a conviction be set aside.
16. Appeal and Error. When determining whether an alleged error is so
prejudicial as to justify reversal, courts generally consider whether the
error, in light of the totality of the record, influenced the outcome of
the case.
17. Verdicts: Evidence: Appeal and Error. Overwhelming evidence of
guilt can be considered in determining whether the verdict rendered
was surely unattributable to the error, but overwhelming evidence of
guilt is not alone sufficient to find the erroneous admission of evi-
dence harmless.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. JENNINGS
Cite as 305 Neb. 809
Appeal from the District Court for Douglas County:
Kimberly Miller Pankonin, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, for
appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. NATURE OF CASE
Leandre R. Jennings III was convicted of first degree mur-
der, use of a deadly weapon to commit a felony, and posses-
sion of a deadly weapon by a prohibited person. The district
court sentenced Jennings to consecutive terms of imprison-
ment for life, 30 to 40 years, and 40 to 45 years, respectively.
Before trial, Jennings made two motions to suppress evidence
obtained from searches of cell phone records and his residence.
The first motion to suppress was based on cell phone records
obtained pursuant to a provision within the federal Stored
Communications Act, which has since been ruled unconstitu-
tional. In the second motion to suppress, Jennings challenges
the language of several paragraphs in the warrant as violating
the particularity requirements of the Fourth Amendment. The
district court denied these motions, and Jennings renewed the
objections at trial. He now appeals.
II. BACKGROUND
Michael Brinkman was fatally shot during a home inva-
sion in Omaha, Nebraska. Michael’s wife, Kimberly Milius
(Kimberly), and their son, Seth Brinkman, were home during
the invasion. After the investigation led law enforcement to
suspect Jennings, he was arrested. The State charged Jennings
with first degree murder under Neb. Rev. Stat. § 28-303
(Reissue 2016), a Class IA felony; use of a deadly weapon
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305 Nebraska Reports
STATE v. JENNINGS
Cite as 305 Neb. 809
(firearm) to commit a felony under Neb. Rev. Stat. § 28-1205
(Reissue 2016), a Class IC felony; and possession of a deadly
weapon (firearm) by a prohibited person under Neb. Rev. Stat.
§ 28-1206 (Reissue 2016), a Class ID felony. Jennings was
found guilty in a trial by jury.
At trial, Kimberly and Seth testified to what they wit-
nessed during the home invasion that lead to Michael’s death.
Kimberly testified that during the early evening of December
23, 2016, Michael, Kimberly, and Seth were at home get-
ting ready to go out to dinner. Both Michael and Seth were
showering in their respective bathrooms. As Michael was get-
ting out of the shower, he asked Kimberly to answer the front
door. Kimberly looked out a window and did not see anyone,
though she did see a white sport utility vehicle parked in
their driveway.
Kimberly opened the front door, and two men with guns,
wearing masks and what appeared to be surgical gloves, forced
their way into the home at gunpoint. One of the men was wear-
ing a “[S]anta” hat. Kimberly asked the men what they wanted,
and they answered, “Money.” Kimberly offered to get her
purse, but one of the men put a gun to her head and backed her
into a corner of the living room. The other man, who was wear-
ing the Santa hat, went down the hallway toward Michael’s
room. Kimberly heard a gunshot, then scuffling sounds and
another gunshot. After the gunshots, the first assailant ordered
Kimberly into the master bedroom. As she entered the room,
she saw Seth strike the second assailant with a shower rod.
Kimberly testified that the second assailant was the same size
as Jennings.
Seth’s testimony described the intruders in a similar fash-
ion. He testified that he was in the shower when he heard his
mother scream. He turned off the shower after he heard “rus-
tling” sounds in the hallway. Seth peeked out of the shower
and then heard a gunshot from the master bedroom. At that
point, Seth grabbed the shower rod off the wall and went into
the master bedroom, where he encountered and attacked the
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STATE v. JENNINGS
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second assailant. During the scuffle, the Santa hat fell off the
second assailant’s head. When the first assailant subsequently
entered the room with Kimberly, he punched Seth and wrestled
the shower rod away from him. The first assailant ordered
Kimberly and Seth “to get down and to shut up.” The second
assailant left the room and returned a short time later with what
appeared to be a white “money bag.” Seth testified that the sec-
ond assailant said something to the first and that they then left,
taking Kimberly’s cell phone with them.
After they left, Kimberly ran to lock the front door and
Seth went to look for Michael. Seth first went to the bathroom
where he had showered, in order to put on his clothes. When
doing so, he noticed that his shorts had some sort of sauce on
them and that there were fast food items on the floor. The items
included a partially eaten piece of “Texas toast,” some “fries,”
and a container of sauce from a Raising Cane’s restaurant.
Seth testified that none of those items were present before the
intruders arrived.
Seth then went to an upstairs bedroom and found the door
was difficult to open. Seth forced the door open and discovered
the door had been blocked by Michael, who was lying on the
floor. Seth called for Kimberly, and she used Seth’s cell phone
to call the 911 emergency dispatch service while Seth tried to
aid Michael.
The first officer on the scene entered the home and found
Michael with Seth, and the officer then requested medical
assistance. An ambulance rushed Michael to the hospital, but
he did not survive. Michael’s autopsy established that the cause
of death was a gunshot wound to the chest.
Kimberly and Seth provided descriptions of the intruders
to law enforcement. During a canvassing of the neighbor-
hood, law enforcement obtained surveillance video from a
neighbor which showed a white sport utility vehicle driving
by the Brinkman residence several times around the time of
the attack. The lead detective viewed the videos and recog-
nized the vehicle as a Dodge Durango. Police also released a
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STATE v. JENNINGS
Cite as 305 Neb. 809
photograph and description of the vehicle to the media seeking
the public’s help in locating the vehicle or suspects.
Members of the forensics team came and collected evidence,
including DNA swabs from the Texas toast, the Raising Cane’s
sauce container, the shower rod, and the Santa hat. Police also
collected three spent shell casings from the residence, later
determined to be .380 caliber.
On January 2, 2017, law enforcement received an anony-
mous telephone call indicating the caller had seen the Durango
in the lot of an apartment complex several days before the
murder. The caller claimed to have observed two black males
exit the vehicle and go to an apartment on the third floor of an
adjoining building. The caller provided the license plate num-
ber on the vehicle.
Police determined that the vehicle belonged to a car rental
company. The records provided by the rental company showed
that from December 13 through 27, 2016, the vehicle was
rented to Carnell Watt. The owner of the rental company office
told police that Watt regularly rents vehicles from that loca-
tion and that she frequently came in with Jennings, whom she
would introduce as her husband.
Police recovered the vehicle from a car rental office in
Detroit, Michigan, and conducted a digital forensics examina-
tion. The Durango was equipped to keep a time-stamped list
of all cell phones which have previously had a Bluetooth con-
nection to the vehicle. Cell phones associated with Watt, her
sister, and Jennings were connected to the Durango during the
dates Watt rented the vehicle. During an interview with Omaha
police, Watt indicated that she lent the Durango to Jennings
during the rental period.
On February 13, 2017, law enforcement personnel received
a response from the Federal Bureau of Investigation’s national
DNA database commonly referred to as “CODIS” inform-
ing them that the DNA swab of the Texas toast included
Jennings as a probable match. Law enforcement then sought
permission from the court to obtain Jennings’ cell site
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STATE v. JENNINGS
Cite as 305 Neb. 809
location information (CSLI) pursuant to a provision within
the Stored Communications Act. Law enforcement sought
records from cell service companies for Jennings. Only the
records obtained from one such company are challenged on
appeal. That company provided Jennings’ cell phone records
and CSLI in response to a court order which showed that
Jennings’ cell phone was in the area of the crime around the
relevant times.
Police also obtained Watt’s cell phone records, which showed
that on the day of the homicide, her cell phone was located in
the area of her place of employment, which is not close to the
location of the homicide. However, the records also showed
that at around 3 p.m. on December 23, 2016, Watt’s cell phone
was briefly in the area of a Raising Cane’s restaurant located
in Council Bluffs, Iowa.
On February 16, 2017, law enforcement viewed the surveil-
lance video for December 23, 2016, from the Council Bluffs
Raising Cane’s restaurant in question and observed a white
sport utility vehicle in the drive-through lane of the restaurant
between 3:17 and 3:23 p.m. The video displayed two unidenti-
fiable occupants and a particular item of clothing worn by the
driver. The item worn by the driver was described as a dark
shirt with light stripes.
Using all of the aforementioned information, a detective
applied for a search warrant for a specific address on North
60th Street. The affidavit detailed the description of the
intruders as wearing gloves and masks, noted the various
clothing items described during the intrusion and seen on the
Raising Cane’s surveillance video, indicated that the CSLI
data placed Jennings’ phone near the Brinkman residence
before and after the time of the murder, and specified that the
Nebraska State Patrol had notified Omaha police of a possible
CODIS match to Jennings from one of the items recovered at
the scene. The affidavit also noted that the address Jennings
had provided to his probation officer was on Sprague Street,
but that Jennings also had a vehicle registered in Nebraska
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STATE v. JENNINGS
Cite as 305 Neb. 809
with a North 60th Street address and that a utilities district’s
records showed Watt and Jennings listed as residents there.
The court reviewed all of the information provided by the
detective and issued a search warrant for the North 60th
Street address.
The detective testified to how the search warrant was exe-
cuted at the North 60th Street residence. The Omaha “crime
lab” accompanied him and several officers to the address. After
entry was made, the crime lab took pictures of everything in
the residence before anything was disturbed.
The search warrant contained numbered paragraphs specify-
ing the parameters of the search. The warrant read as follows:
1) Venue Items identifying those parties who either
own or who are in control of the residence [on] North
60th Street, Omaha, Douglas County, Nebraska;
2) The ability to seize and process item(s) of eviden-
tiary value, to include: cellular phone(s), computer(s)
recording device(s) including audio and video, compan-
ion equipment, records, whether stored on paper, mag-
netic media such as tape, cassette, disk, diskettes, or on
memory storage devices such as optical disks, program-
mable instruments such as telephones, “electronic address
books”, or any other storage media, together with indicia
of use, ownership, possession or control of the aforemen-
tioned residence;
3) Any make and model firearm(s) which fires a 380
caliber cartridge . . . ;
4) Unknown brand/size/construction mask which could
be used to conceal the wearers face;
5) Clothing items to include but not limited to grey
hooded sweatshirt, navy blue hooded sweatshirt, blue ath-
letic style warm-up pants with white stripes;
6) Blue or Black in color latex or similar construction
gloves[.]
The evidence recovered from the search of the North 60th
Street residence included photographs of the condition of the
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STATE v. JENNINGS
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residence before it was searched; various documents establish-
ing residency for Watt and Jennings; photographs of clothing
items, some of which items were seized; and photographs of
cell phones along with their retail boxes.
After he was arrested, a buccal swab was taken from
Jennings and compared to the DNA evidence recovered at
the scene. Comparison of the swab taken from the Texas toast
to a buccal swab taken from Jennings after he was arrested
found that Jennings was the probable major contributor to the
DNA detected. A forensic DNA analyst from the University
of Nebraska Medical Center testified that the probability of a
random individual’s matching a DNA profile found within the
major component of the mixture given that Jennings expresses
such a profile is approximately 1 in 123 octillion.
Before trial, Jennings moved to suppress (1) his cell phone
records and (2) evidence obtained from the search of his
residence. Jennings argued that his cell phone records, which
included CSLI, should be suppressed because they were
obtained through a court order under a provision within the
Stored Communications Act, instead of through search war-
rants, and because there was insufficient probable cause to
support a warrant.
Jennings argued that the evidence obtained from the search
of his residence should be suppressed because the search war-
rant was not sufficiently particular and because there was not
probable cause to support it. Specifically, Jennings argued that
the CSLI information and the DNA information provided in the
affidavit should be excluded from the probable cause analysis.
The affidavit in support of the warrant contained information
summarizing the investigation details recounted above and also
reported the call record and CSLI obtained from Jennings’ cell
phone. The affidavit explained that the University of Nerbaska
Medical Center’s human DNA laboratory built a “mainly sin-
gle source male” DNA profile from the piece of Texas toast
and that profile was a probable match in the CODIS system
for Jennings.
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STATE v. JENNINGS
Cite as 305 Neb. 809
At the request of the parties, the district court postponed
ruling on Jennings’ motions to suppress until after the U.S.
Supreme Court issued its ruling in Carpenter v. U.S., 1 which
involved whether a search warrant was required to obtain
CSLI. While Carpenter was pending, law enforcement obtained
search warrants for Jennings’ cell phone records.
On June 22, 2018, the U.S. Supreme Court issued its opin-
ion in Carpenter and held therein that a search warrant was
required to obtain a person’s CSLI. Thereafter, the district
court held additional hearings on Jennings’ motions to sup-
press. In a subsequent written order, the district court denied
Jennings’ motions to suppress. The district court denied
Jennings’ motion to suppress his cell phone records because
although law enforcement’s initial orders were insufficient
under Carpenter, the later search warrants cured that defect.
The district court denied Jennings’ motion to suppress the evi-
dence obtained from the search of his residence because the
search warrant was sufficiently particular and supported by
probable cause. Jennings renewed his objections at trial, and
they were overruled. Several items and photographs obtained
during the search were admitted into evidence over a continu-
ing objection from Jennings.
III. ASSIGNMENTS OF ERROR
Jennings assigns that the district court erred in denying
his two motions to suppress, in violation of his constitutional
rights. First, Jennings assigns that obtaining the cell phone
records and CSLI from the court order pursuant to a provi-
sion within the Stored Communications Act was held to be
unconstitutional by Carpenter and that the district court erred
by concluding that the subsequent warrant cured the consti-
tutional violation. Second, Jennings assigns that the denial of
the motion to suppress the evidence obtained from the search
of his residence was error because the affidavit to support the
1
Carpenter v. U.S., ___ U.S. ___, 138 S. Ct. 2206, 201 L. Ed. 2d 507
(2018).
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warrant was insufficient and the warrant itself lacked the par-
ticularity required by the U.S. Constitution.
IV. STANDARD OF REVIEW
[1] 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. 2
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. 3
[2] When a motion to suppress is denied pretrial and again
during trial on renewed objection, an appellate court considers
all the evidence, both from trial and from the hearings on the
motion to suppress. 4
[3] A trial court has the discretion to determine the relevancy
and admissibility of evidence, and such determinations will
not be disturbed on appeal unless they constitute an abuse of
that discretion. 5
[4-6] In reviewing the strength of an affidavit submitted as
a basis for finding probable cause to issue a search warrant,
an appellate court applies a totality of the circumstances test. 6
The question is whether, under the totality of the circum-
stances illustrated by the affidavit, the issuing magistrate had
a substantial basis for finding that the affidavit established
probable cause. 7 Probable cause sufficient to justify issuance
of a search warrant means a fair probability that contraband or
evidence of a crime will be found. 8
2
State v. Brye, 304 Neb. 498, 935 N.W.2d 438 (2019).
3
Id.
4
State v. Baker, 298 Neb. 216, 903 N.W.2d 469 (2017).
5
Id.
6
State v. Goynes, 303 Neb. 129, 927 N.W.2d 346 (2019).
7
Id.
8
Id.
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STATE v. JENNINGS
Cite as 305 Neb. 809
[7] Harmless error review looks to the basis on which the
jury actually rested its verdict. The inquiry is not whether in
a trial that occurred without the error, a guilty verdict would
surely have been rendered, but whether the actual guilty ver-
dict rendered was surely unattributable to the error. 9
V. ANALYSIS
Jennings correctly asserts that seizure of his cell phone
records and CSLI under a provision within the Stored
Communications Act was a violation of his Fourth Amendment
rights. However, the fact that the relevant provision of the
Stored Communications Act was not determined to be uncon-
stitutional until 18 months after the order in this case leads us
to conclude that the exclusion of the evidence is subject to the
good faith exception established in Illinois v. Krull. 10 Thus,
the district court correctly denied Jennings’ motion to suppress
related to the cell phone records and CSLI. Jennings’ asser-
tion that the information obtained from the seizure of the cell
phone records and CSLI should be excluded from a probable
cause analysis concerning the residential search warrant fails
for the same reasons. We find that the record supports the dis-
trict court’s determination that the warrant was supported by
probable cause. We also find that a majority of the provisions
in the residential search warrant met the particularity require-
ments of the Fourth Amendment and that the masks, gloves,
cell phones, and documents showing Jennings’ occupancy
were seized in accordance with these requirements. Assuming
without deciding that the photographs taken by law enforce-
ment of the interior of the residence, including photographs
of items not specified in the warrant, were seized pursuant
to invalid portions of the warrant, their admission was harm-
less error.
9
State v. Thompson, 301 Neb. 472, 919 N.W.2d 122 (2018).
10
See Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364
(1987).
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STATE v. JENNINGS
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1. Motion to Suppress Cell
Phone Records and CSLI
Under Carpenter, the State conducted a search in violation
of the Fourth Amendment when it used a court order pursu-
ant to a provision within the federal Stored Communications
Act, rather than a warrant, to acquire Jennings’ cell phone
records and CSLI. 11 However, the fact that Jennings’ Fourth
Amendment rights were violated does not mean the district
court erred in denying the motion to suppress. 12 In addressing a
nearly identical scenario, we recently observed that “the exclu-
sionary rule is to be a ‘last resort’ and not a ‘first impulse.’” 13
We find that exclusion of the CSLI evidence is not the
appropriate remedy for the violation of Jennings’ Fourth
Amendment rights.
The exclusion of evidence obtained in violation of the
Fourth Amendment is not itself a constitutional right. 14 Rather,
it is a remedy designed to deter constitutional violations by
law enforcement. 15 Thus, in situations where the exclusion
as a remedy would not deter law enforcement, several excep-
tions to the exclusionary rule have been recognized. 16 One of
those exceptions to the exclusionary rule applies to evidence
11
See Carpenter v. U.S., supra note 1.
12
See, Herring v. United States, 555 U.S. 135, 141, 129 S. Ct. 695, 172 L.
Ed. 2d 496 (2009) (explaining that application of exclusionary rule is not
“a necessary consequence of a Fourth Amendment violation”); State v.
Brown, 302 Neb. 53, 921 N.W.2d 804 (2019), cert. denied ___ U.S. ___,
139 S. Ct. 2680, 204 L. Ed. 2d 1080.
13
State v. Brown, supra note 12, 302 Neb. at 60, 921 N.W.2d at 811 (citing
Hudson v. Michigan, 547 U.S. 586, 126 S. Ct. 2159, 165 L. Ed. 2d 56
(2006)).
14
Davis v. United States, 564 U.S. 229, 131 S. Ct. 2419, 180 L. Ed. 2d 285
(2011) (citing Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d
1067 (1976)).
15
See State v. Hoerle, 297 Neb. 840, 901 N.W.2d 327 (2017).
16
See, Davis v. United States, supra note 14; Illinois v. Krull, supra note 10;
United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677
(1984); State v. Hoerle, supra note 15.
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obtained by police in objectively reasonable reliance on a stat-
ute later found to be unconstitutional. 17
When the police applied for the court order on February 14,
2017, for Jennings’ cell phone records and CSLI from the cell
service companies, they were making a request pursuant to
a federal statute that had not yet been ruled unconstitutional.
Law enforcement obtained the CSLI without first securing
a warrant supported by probable cause, but did so as autho-
rized by 18 U.S.C. § 2703(d) (Supp. V 2017) of the Stored
Communications Act. It cannot be said that by doing so, law
enforcement relied on a statute that was clearly unconstitu-
tional. As we noted recently in State v. Brown, 18 many courts
have held, as we did in State v. Jenkins, 19 that the Stored
Communications Act did not violate the Fourth Amendment.
Carpenter was decided nearly 18 months after the application
for the records in this case. 20
[8] We find that law enforcement made the request in objec-
tively reasonable reliance on the Stored Communications Act
and did not have reason to believe that the relevant provision
of the act was unconstitutional. On these facts, exclusion of the
cell phone records and the CSLI obtained under the court order
would not serve as a deterrent to future Fourth Amendment
violations by law enforcement, and its application is unwar-
ranted. Thus, we conclude, albeit for reasons different from
those articulated by the district court, that it did not err by
denying Jennings’ motion to suppress the cell phone records
and CSLI. A proper result will not be reversed merely because
it was reached for the wrong reason. 21 We need not address the
validity of the subsequent warrants that Jennings asserts failed
to cure the Fourth Amendment violation.
17
State v. Brown, supra note 12.
18
Id.
19
State v. Jenkins, 294 Neb. 684, 884 N.W.2d 429 (2016).
20
Carpenter v. U.S., supra note 1.
21
In re Estate of Odenreider, 286 Neb. 480, 837 N.W.2d 756 (2013).
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2. Motion to Suppress Evidence Recovered
From Search of Residence
Jennings argues that the evidence recovered from the search
of the North 60th Street residence should have been suppressed
because the warrant lacked probable cause and, in the alter-
native, the warrant violated the particularity requirements of
the Nebraska and U.S. Constitutions. The Fourth Amendment
provides that warrants may not be granted “but upon prob-
able cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things
to be seized.” The Nebraska Constitution, under article I, § 7,
similarly provides that “no warrant shall issue but upon prob-
able cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the person or thing to
be seized.”
(a) Probable Cause
In reviewing the strength of an affidavit submitted as a basis
for finding probable cause to issue a search warrant, an appel-
late court applies a totality of the circumstances test. 22 The
question is whether, under the totality of the circumstances
illustrated by the affidavit, the issuing magistrate had a sub-
stantial basis for finding that the affidavit established prob-
able cause. 23 Probable cause sufficient to justify issuance of
a search warrant means a fair probability that contraband or
evidence of a crime will be found. 24
[9] In evaluating the sufficiency of an affidavit used to
obtain a search warrant, an appellate court is restricted to
consideration of the information and circumstances contained
within the four corners of the affidavit, and evidence which
emerges after the warrant is issued has no bearing on whether
the warrant was validly issued. 25
22
State v. Goynes, supra note 6.
23
Id.
24
Id.
25
Id.
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Because Jennings’ CSLI had been obtained pursuant to a
federal statute that a reasonable law enforcement officer would
believe to be constitutional, we disagree with Jennings’ argu-
ment that the statements in the affidavit supporting the resi-
dential search warrant, which referred to the cell phone records
and CSLI obtained from the cell service company, should not
be considered in a probable cause determination because they
were fruit of the poisonous tree. Law enforcement officers
were including in the affidavit in support of the residential
search warrant all the information available to them and had no
reason to believe that any of the information had been obtained
in violation of Jennings’ Fourth Amendment rights. Moreover,
it was objectively reasonable for a law enforcement officer
to believe that the cell phone information obtained from the
court order was relevant and usable in future affidavits pertain-
ing to the same investigation. Because a good faith exception
applies to the initial court order, the same exception applies to
the use of the cell phone records and the CSLI in the subse-
quent affidavit. 26
We also disagree with Jennings’ contention that the state-
ment in the supporting affidavit about the possible DNA
match to Jennings in the CODIS system was too vague to be
properly relied upon to support a finding of probable cause.
The portion of the affidavit concerning the DNA match reads
as follows:
On January 23rd 2017 Investigators were notified of
a mainly single source male DNA profile [which] was
located from testing of EV#20.
On January 27th 2017 the UNMC Human DNA
Laboratory submitted their findings to the Nebraska State
Patrol for CODIS entry and search.
On February 13, 2017 Investigators were notified of
a possible CODIS identification to the submitted sample
[which] was that belonging to [Jennings].
26
See, United States v. Leon, supra note 16; State v. Brown, supra note 12.
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Jennings asserts that in order to include these statements in
the probable cause analysis, we must make the impermissible
assumption that the magistrate was familiar with CODIS and
its limitations. Moreover, Jennings points out that the language
of “possible CODIS identification” does not give details of the
probability supporting the match.
But this is not how appellate courts review findings of prob-
able cause in a warrant. We have long applied the same stan-
dard set forth by the U.S. Supreme Court in Illinois v. Gates. 27
When the Court adopted the totality of the circumstances test,
it also explained that “‘courts should not invalidate warrant[s]
by interpreting affidavit[s] in a hypertechnical, rather than a
commonsense, manner.’” 28 We examine the affidavit using a
commonsense approach to determine whether the magistrate
had a substantial basis for concluding that a search would
uncover evidence of wrongdoing; the Fourth Amendment
requires no more. 29
We will not assume that a magistrate judge is unaware
of the meaning of acronyms and abbreviations. We decline
to assume that the magistrate judge did not know what the
CODIS system is and then relied on information that he or
she did not understand. The statements in the affidavit did not
have the scientific detail provided by an expert witness at trial,
but the Fourth Amendment does not require such a technical
level of detail. The statements provided a link between the
Texas toast found at the crime scene and a DNA sample from
Jennings on file in the CODIS database. Using a commonsense
approach, we find that the statements about the DNA evidence
were clear enough to be properly considered in the probable
cause analysis.
27
Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).
See, also, State v. Detweiler, 249 Neb. 485, 544 N.W.2d 83 (1996).
28
Illinois v. Gates, supra note 27, 462 U.S. at 236 (quoting United States v.
Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965)).
29
See State v. Detweiler, supra note 27.
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Moreover, in addition to the CSLI and DNA information
discussed above, the affidavit in support of the search war-
rant recounted several important details from the investiga-
tion. Law enforcement recounted the eyewitness statements
about the clothing worn by the assailants, the presence of the
food left at the scene, the description of the white sport utility
vehicle in the driveway, the video obtained from the neigh-
bor’s house depicting a white Durango driving by multiple
times, and the information obtained from the anonymous tip
which led the authorities to question the car rental company
and trace the vehicle to Watt. The affidavit further recounted
that Watt had stated in an interview with the Omaha police
that she allowed Jennings to use the Durango rented in her
name. Police also described the surveillance video acquired
from the Raising Cane’s restaurant in Council Bluffs showing
a white Durango go through the drive-through lane during the
time that Watt’s and Jennings’ cell phones show them to be in
the area. The CSLI recovered from the court order indicated
that Jennings’ cell phone was in an area near the Brinkman
residence before and after the murder. We find, under the total-
ity of the circumstances, that there was sufficient information
contained within the affidavit to support the court’s finding of
probable cause to issue the warrant for the search of the North
60th Street residence.
(b) Particularity Requirement
Jennings alternatively argues that all evidence from the
residential search should have been suppressed because the
language contained in paragraphs 1, 2, and 5 of the warrant
violated the particularity requirement of the U.S. and Nebraska
Constitutions. The evidence recovered from the search of the
North 60th Street residence includes various documents estab-
lishing residency for Watt and Jennings, clothing items, vari-
ous types of gloves, and two cell phones. Photographs of the
two cell phones along with their retail boxes were also taken
and admitted into evidence. Law enforcement also took photo-
graphs of the condition of the residence before it was searched,
which were entered into evidence.
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[10,11] In addition to the requirement of probable cause,
the Fourth Amendment contains a particularity requirement. 30
The particularity requirement of the Fourth Amendment pro-
tects against open-ended warrants that leave the scope of the
search to the discretion of the officer executing the warrant, or
permit seizure of items other than what is described. 31 A war-
rant whose authorization is particular has the salutary effect of
preventing overseizure and oversearching. 32
[12] We have held that “a warrant must be sufficiently par-
ticular to prevent the officer from having unlimited or unrea-
sonably broad discretion in determining what items to seize.” 33
In determining whether a warrant is sufficiently particular, we
find the factors listed by this court in State v. Baker 34 to be
applicable. Those are (1) whether the warrant communicates
objective standards for an officer to identify which items may
be seized, (2) whether there is probable cause to support the
seizure of the items listed, (3) whether the items in the warrant
could be more particularly described based on the information
available at the time the warrant was issued, and (4) the nature
of the activity under investigation. 35 The majority of jurisdic-
tions utilize the same or similar factors. 36
30
State v. Henderson, 289 Neb. 271, 854 N.W.2d 616 (2014); State v.
Sprunger, 283 Neb. 531, 811 N.W.2d 235 (2012).
31
State v. Henderson, supra note 30 (citing U.S v. Clark, 754 F.3d 401 (7th
Cir. 2014)).
32
Id.
33
State v. Baker, supra note 4, 298 Neb. at 228-29, 903 N.W.2d at 478.
34
State v. Baker, supra note 4.
35
See, id.; State v. Tyler, 291 Neb. 920, 870 N.W.2d 119 (2015). See, also,
U.S. v. Sigillito, 759 F.3d 913 (8th Cir. 2014); United States v. Spilotro,
800 F.2d 959 (9th Cir. 1986).
36
See, U.S. v. Sanjar, 876 F.3d 725 (5th Cir. 2017); U.S. v. Sigillito, supra
note 35; U.S. v. Kuc, 737 F.3d 129 (1st Cir. 2013); U.S. v. Rosa, 626 F.3d
56 (2d Cir. 2010); U.S. v. Sells, 463 F.3d 1148 (10th Cir. 2006); U.S. v.
Blakeney, 942 F.2d 1001 (6th Cir. 1991); United States v. Spilotro, supra
note 35. See, also, State v. Hughes, 433 So. 2d 88 (La. 1983); State v.
Jackson, 150 Wash. 2d 251, 76 P.3d 217 (2003).
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As these factors make apparent, the level of particular-
ity that is required depends on the nature of the items under
investigation. Further, whether a warrant violates the particu-
larity clause must be determined in light of the language as
a whole. 37
In two cases, we found clauses under the circumstances that
deemed authorizing the search of “any and all firearms” to be
sufficiently particular. In Baker, we held that such a clause was
sufficiently particular to enable the searching officers to iden-
tify the property authorized to be seized. 38 We upheld a similar
challenge in State v. Tyler 39 to the seizure of a gunlock found
during a residential search where the warrant read in part: “‘1)
Any and all firearms, and companion equipment to include but
not limited to ammunition, holsters, spent projectiles, spent
casings, cleaning kits/cases and boxes, paperwork, and the
like.’” Prior to seeking the warrant, the police had determined
that there were approximately 20 different firearms capable
of using the type of cartridge recovered from the scene of a
shooting. 40 We determined that this paragraph was sufficiently
particular because the scope of the search was not left to the
discretion of the officers. We also explained that the nature
of the activity under investigation justifies its scope. When
police are investigating a murder that occurred with a gun and
there is a range of firearms fitting the known characteristics of
the murder weapon, it is sufficient to describe the items to be
searched for as “[a]ny and all firearms . . . .’” 41
In contrast, in State v. Henderson, 42 we found that the
clause of a warrant authorizing the search for “‘[a]ny and all
information’” contained in a cell phone was unconstitutional
37
See Stanford v. Texas, 379 U.S. 476, 85 S. Ct. 506, 13 L. Ed. 2d 431
(1965).
38
State v. Baker, supra note 4.
39
State v. Tyler, supra note 35, 291 Neb. at 934, 870 N.W.2d at 130.
40
State v. Tyler, supra note 35.
41
See id. at 934, 870 N.W.2d at 130.
42
State v. Henderson, supra note 30, 289 Neb. at 276-77, 854 N.W.2d at 625.
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because the warrant did not identify a particular crime or rel-
evant evidence intended to be recovered from the cell phone.
We held that a warrant for the search of the contents of a cell
phone must be sufficiently limited in scope to allow a search
of only that content that is related to the probable cause that
justifies the search. We also held that the catchall provision
of the warrant authorizing the search of “‘any other informa-
tion that can be gained from the internal components and/or
memory Cards’” was insufficiently particular to satisfy the
Fourth Amendment even when it was preceded by a particular
list of electronics. 43
In other cases, we have found to be insufficiently particular
language in a warrant permitting the search for “‘additional
stolen property.’” 44 We have also found insufficiently particular
language permitting the personal search of any “‘John and/or
Jane DOE’” 45 present during a residential search.
(i) Paragraph 1: Venue Items
We disagree with Jennings’ argument that the warrant pro-
vision allowing for the search and seizure of “[v]enue items
identifying those parties who either own or who are in con-
trol of the residence” is too broad to satisfy the particularity
requirements set forth above. The facts of the case demonstrate
that there was a need for law enforcement to be able to estab-
lish a link between items found at the address and Jennings.
Similarly to our finding in Tyler, we find that the venue items
provision is sufficiently particular in light of the nature of the
activity under investigation. 46
Although “[v]enue items” in the warrant at issue described
a category of items, rather than a specific item to be seized,
that does not mean paragraph 1 violates the particularity
43
Id. at 277, 854 N.W.2d at 625.
44
State v. LeBron, 217 Neb. 452, 457, 349 N.W.2d 918, 922 (1984).
45
Compare State v. Pecha, 225 Neb. 673, 676, 407 N.W.2d 760, 763 (1987),
with State v. Johnson, 243 Neb. 758, 502 N.W.2d 477 (1993).
46
State v. Tyler, supra note 35.
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requirements of the Fourth Amendment. The description sets
forth objective standards by which executing officers can dif-
ferentiate items subject to seizure from those that are not. It is
the nature of venue items that they cannot be predicted with
specificity. Law enforcement understands that items contain-
ing an address linked with the suspect’s name are indicative of
venue. The items that can be seized pursuant to such a venue
items clause are clearly only those items which on their face
establish ownership, occupancy, or control of the location
being searched.
Photographs of the items admitted under paragraph 1
included a cell phone replacement claim, an energy bill, a
Social Security card, a credit card billing envelope, and a tax
form. Each item had the common trait of containing a ship-
ping label demonstrating that Watt or Jennings received mail
and used the North 60th Street address as their residence. The
warrant was not constitutionally deficient based on paragraph
1, and the denial of Jennings’ motion to suppress as it relates
to exhibits 390 through 398 seized and admitted as venue items
was properly denied.
(ii) Paragraph 2: Cell Phones
Paragraph 2, in contrast, has multiple deficiencies under the
particularity provision of the Fourth Amendment. It states:
The ability to seize and process item(s) of evidentiary
value, to include: cellular phone(s), computer(s) recording
device(s) including audio and video, companion equip-
ment, records, whether stored on paper, magnetic media
such as tape, cassette, disk, diskettes, or on memory stor-
age devices such as optical disks, programmable instru-
ments such as telephones, “electronic address books”,
or any other storage media, together with indicia of use,
ownership, possession or control of the aforementioned
residence[.]
First, the entire paragraph is grammatically vague. It is unclear
how the first clause relates to the second clause listing elec-
tronic items. It is equally unclear why the paragraph ends with
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a clause discussing “indicia of use, ownership, possession or
control.” Second, the warrant provides no indication of what
it means to “seize and process item(s) of evidentiary value.”
It is unclear if that statement is limited to the list of specific
electronic media that follows or leaves the search and seizure
of items to the discretion of the executing officers. For these
reasons, we find the statement, “[t]he ability to seize and proc­
ess item(s) of evidentiary value, to include: . . .” to be uncon-
stitutionally vague.
[13] However, this does not end our inquiry, insofar as the
paragraph also listed particular items to be seized. Absent a
showing of pretext or bad faith on the part of the police or the
prosecution, valid portions of a warrant are severable from por-
tions failing to meet the particularity requirements. 47
Paragraph 2 contained a sufficiently particular list of spe-
cific electronic media items that included cell phones. This list
is severable from the insufficiently particular language con-
tained in the first clause of the paragraph. The probable cause
provided by the affidavit supported looking for electronic
records that could contain information that establishes owner-
ship, occupancy, or control over the residence being searched.
The search for and seizure of the specifically listed electronic
items did not violate Jennings’ Fourth Amendment rights.
Thus, the two cell phones were properly seized and the picture
of a specific cell phone was properly admitted into evidence as
exhibit 406.
(iii) Paragraphs 4 and 6: Masks and Gloves
Paragraphs 4 and 6 specified certain clothing items to be
searched for and seized. The detail provided in the warrant
was based on the descriptions of the intruders provided by
victims Kimberly and Seth. Photographs were taken of latex
gloves and gardening gloves pursuant to paragraph 6. In addi-
tion, a box of latex gloves was physically seized pursuant to
47
See State v. LeBron, supra note 44. See, also, U.S. v. Sigillito, supra
note 35.
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paragraph 6. These photographs and the box of gloves were
admitted into evidence as exhibits 352 through 356 and 528.
Photographs of masks found in the residence were taken under
paragraph 4 and entered into evidence as exhibits 361 through
365. Jennings does not claim on appeal that either of these
paragraphs violated the particularity requirements of the U.S.
and Nebraska Constitutions. As such, the motion to suppress
was correctly denied as to exhibits 352 through 356, 361
through 365, and 528.
(iv) Paragraph 5: Clothing Items
Paragraph 5 provided for a categorical search for cloth-
ing followed by a list of the specific items described in the
affidavit. Photographs of several clothing items were taken
under this paragraph and admitted into evidence as exhibits
376 through 386. Exhibits 376 through 379, 385, and 386 were
properly admitted as items specifically described in paragraph
5. Thus, we find that the motion to suppress was correctly
denied as to exhibits 376 through 379, 385, and 386.
Not including the photographs of the items particularly
listed in the warrant as discussed above, 56 additional pho-
tographs of the interior of the residence were admitted into
evidence. These photographs depicted the general condition of
the residence prior to the search. Included in the set of pho-
tographs were pictures of the retail boxes for two cell phones
and two shirts that were hanging on a laundry rack in a util-
ity room.
Jennings argues that these items were seized pursuant to
the insufficiently particular clause “[c]lothing items,” which
is similar to the clause authorizing seizure of “‘footwear [and]
clothing” which the 10th Circuit has held violates the par-
ticularity requirements of the Fourth Amendment. 48 Assuming
without deciding that the admission of these photographs vio-
lates the particularity clause, we find their admission to be
harmless error.
48
See U.S. v. Sells, supra note 36, 463 F.3d at 1152.
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[14-17] Harmless error jurisprudence recognizes that not all
trial errors, even those of constitutional magnitude, entitle a
criminal defendant to the reversal of an adverse trial result. 49 It
is only prejudicial error, that is, error which cannot be said to
be harmless beyond a reasonable doubt, which requires that a
conviction be set aside. 50 When determining whether an alleged
error is so prejudicial as to justify reversal, courts generally
consider whether the error, in light of the totality of the record,
influenced the outcome of the case. 51 In other words, harmless
error review looks to the basis on which the jury actually rested
its verdict. The inquiry is not whether in a trial that occurred
without the error, a guilty verdict would surely have been
rendered, but whether the actual guilty verdict rendered was
surely unattributable to the error. 52 Overwhelming evidence of
guilt can be considered in determining whether the verdict ren-
dered was surely unattributable to the error, but overwhelming
evidence of guilt is not alone sufficient to find the erroneous
admission of evidence harmless. 53
The photographs of the shirts appear to be relevant in that
the shirts are similar to clothing worn by the individual in the
Raising Cane’s restaurant surveillance video. The pictures of
the cell phone boxes showing serial numbers were never linked
to any element of the crime and appear to have no evidentiary
value; thus, no prejudice resulted from their admission. And,
given the body of overwhelming evidence of guilt properly
admitted, the jury’s verdict was surely unattributable to the
two shirts.
Excluding these 56 photographs, the jury was presented
with a large body of evidence upon which it could base the
verdicts. DNA evidence on the Texas toast showed a major
49
State v. Thompson, supra note 9.
50
Id.
51
Id.
52
Id.
53
State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).
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contributor profile that matched Jennings’ DNA information
saved within the CODIS system. Subsequent comparison of
the swab taken from the Texas toast to a buccal swab taken
from Jennings after he was arrested indicated that Jennings
was the probable major contributor of the DNA found at the
Brinkman residence. The probability of a random individual’s
matching a DNA profile found within the major component
of the mixture given that Jennings expresses such a profile is
approximately 1 in 123 octillion. Jennings’ CSLI data placed
his cell phone near the area of the crime both before and after
the time of the murder. The white Durango was traced to Watt,
and Watt subsequently gave a statement to Omaha police
indicating that she lent the vehicle to Jennings. Moreover, the
Bluetooth records from the Durango showed Jennings’ cell
phone was connected to the Durango several times through-
out the rental period. Further, the CSLI for Watt and Jennings
placed both of their cell phones in the area of the Raising
Cane’s restaurant in Council Bluffs during the same timeframe
the surveillance video shows a white Durango go through the
drive-through lane.
The jury’s verdicts were surely unattributable to the admis-
sion of the photographs taken of the Jennings’ residence before
the search. Accordingly, the admission of such evidence was
harmless error.
VI. CONCLUSION
We find that the district court correctly denied both motions
to suppress. The cell phone records and CSLI were properly
admitted as a part of the good faith exception to the exclusion-
ary rule. The affidavit provided probable cause for the issuance
of a warrant to search the North 60th Street residence. The
material evidence found from the search of the residence was
properly admitted under sections of the warrant that were con-
stitutionally valid. The balance of the evidence admitted was
harmless error even if it were determined to be inadmissible.
We affirm the judgment of the district court.
Affirmed.