State v. Short

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/10/2021 08:08 AM CST
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. SHORT
Cite as 310 Neb. 81State of Nebraska, appellee, v.
Marcus L. Short, appellant.
___ N.W.2d ___
Filed September 17, 2021. No. S-19-415.
1. Judgments: Speedy Trial: Appeal and Error. Generally, a trial court’s
determination as to whether charges should be dismissed on speedy trial
grounds is a factual question which will be affirmed on appeal unless
clearly erroneous.
2. Pretrial Procedure: Appeal and Error. Trial courts have broad dis-
cretion with respect to sanctions involving discovery procedures, and
their rulings thereon will not be reversed in the absence of an abuse
of discretion.
3. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to sup-
press evidence 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 indepen-
dently of the trial court’s determination.
4. Search Warrants: Affidavits: Probable Cause: Appeal and Error.
An appellate court reviews the trial court’s findings as to whether the
affidavit supporting the warrant contained falsehoods or omissions and
whether those were made intentionally or with reckless disregard for the
truth for clear error. An appellate court reviews de novo the determina-
tion that any alleged falsehoods or omissions were not necessary to the
probable cause finding.
5. ____: ____: ____: ____. After-the-fact scrutiny by courts of the suf-
ficiency of an affidavit should not take the form of de novo review.
Instead, a judge’s determination of probable cause to issue a search war-
rant should be paid great deference by reviewing courts.
6. Search and Seizure. Application of the good faith exception to the
exclusionary rule is a question of law.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. SHORT
Cite as 310 Neb. 817. Constitutional Law: Speedy Trial. The right to a speedy trial is unique
from other rights enshrined in the U.S. Constitution for the protection
of the accused because there is a societal interest in providing a speedy
trial, which exists separate from, and at times in opposition to, the inter-
ests of the accused.
8. Speedy Trial: Witnesses. The deprivation of the right to a speedy trial
may work to the accused’s advantage when adverse witnesses become
unavailable or their memories fade over time.
9. Speedy Trial: Presumptions. Until there is some delay that is presump-
tively prejudicial, there is no necessity for inquiry into the other factors
that go into the balance in determining if the right to a speedy trial has
been violated.
10. Constitutional Law: Speedy Trial. Counsel cannot seek and obtain
continuances to give the defense more time to be ready for trial because
of the government’s dilatory behavior and then, after the fact, reverse
course and claim that the indictment should be dismissed on the ground
that the defendant’s right to a speedy trial under the U.S. Constitution
has been infringed because of that behavior.
11. Speedy Trial. A defendant cannot claim the loss of the fundamental
right to a speedy trial through the inherent delays of a process the
defendant has called upon—even if that process was to vindicate another
fundamental right.
12. Constitutional Law: Speedy Trial: New Trial: Appeal and Error.
Absent extraordinary circumstances, an appellate court does not con-
sider the entire period of time beginning with the original charge or
arrest in computing the length of the delay when there has been a mis-
trial. Instead, the constitutional speedy trial analysis focuses only on the
period after the mandate for a new trial and the subsequent retrial.
13. Speedy Trial. Only misconduct involving deliberate delay tactics
designed to circumvent the right to a speedy trial is an extraordinary
circumstance warranting consideration of the period of delay before
a mistrial.
14. Constitutional Law: Speedy Trial: Presumptions. A delay of a year or
more is the benchmark commonly recognized as presumptively prejudi-
cial in a constitutional speedy trial analysis.
15. Speedy Trial: Verdicts: Sentences. The more complex and serious the
crime, the longer a delay might be tolerated, because society also has
an interest in ensuring that longer sentences are rendered upon the most
exact verdicts possible.
16. Constitutional Law: Prosecuting Attorneys: Evidence. A defendant
has a constitutionally protected privilege to request and obtain from the
prosecution evidence that is either material to the guilt of the defendant
or relevant to the punishment to be imposed.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. SHORT
Cite as 310 Neb. 8117. Police Officers and Sheriffs: Prosecuting Attorneys: Evidence.
Police conduct resulting in suppression of favorable material evidence
is imputed to the prosecution.
18. Due Process: Motions for Continuance: Evidence. There is no due
process violation when the defendant has had an opportunity to request a
continuance to adequately prepare the defense in light of evidence that,
while disclosed late, is ultimately disclosed before the end of trial.
19. Constitutional Law: Speedy Trial. The Fifth Amendment has only a
limited role to play in protecting against oppressive delay in the crimi-
nal context.
20. Criminal Law: Pretrial Procedure. Discovery in a criminal case is
generally controlled by either a statute or a court rule.
21. Criminal Law: Courts. When a court sanctions the government in a
criminal case for its failure to obey court orders, it must use the least
severe sanction that will adequately punish the government and secure
future compliance.
22. Pretrial Procedure: Dismissal and Nonsuit. Dismissal as a sanction
for a discovery violation is only appropriate where less drastic alterna-
tives are not available.
23. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
24. Search Warrants: Affidavits: Probable Cause. To determine whether
a warrant was issued upon probable cause, a court generally limits its
review to the four corners of the affidavit.
25. Affidavits: Evidence. An exception to the limitation of the court’s
review to the four corners of the affidavit is where the defendant makes
a preliminary proffer of falsity warranting an evidentiary hearing.
26. Affidavits: Probable Cause: Hearsay. Probable cause may be founded
upon hearsay as well as upon information within the affiant’s own
knowledge that sometimes must be garnered hastily.
27. Search Warrants: Affidavits: Probable Cause: Police Officers and
Sheriffs: Presumptions: Proof. While there is a presumption of valid-
ity with respect to the affidavit supporting the search warrant, that pre-
sumption may be overcome and a search warrant may be invalidated if
the defendant proves the affiant officer knowingly and intentionally, or
with reckless disregard for the truth, included in the affidavit false or
misleading statements that were necessary, or material, to establishing
probable cause.
28. Search Warrants: Affidavits: Probable Cause. Omissions in an affida-
vit used to obtain a search warrant are considered to be misleading when
the facts contained in the omitted material tend to weaken or damage
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. SHORT
Cite as 310 Neb. 81the inferences which can logically be drawn from the facts as stated in
the affidavit.
29. Search Warrants: Probable Cause: Police Officers and Sheriffs:
Evidence: Proof. If the defendant successfully proves, by a prepon-
derance of the evidence, that the police knowingly and intentionally,
or with reckless disregard for the truth, included a false or misleading
statement or omitted information material to a probable cause finding,
then the court examines whether the evidence obtained from the warrant
and search was fruit of the poisonous tree.
30. Search and Seizure: Affidavits. Mere negligence in preparing the affi-
davit will not lead to suppression, as the purpose of the exclusionary
rule is to deter misconduct.
31. Search Warrants: Affidavits: Probable Cause: Police Officers and
Sheriffs. Observations by fellow officers engaged in a common inves-
tigation are a reliable basis for a warrant, 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.
32. 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 in the
item to be searched.
33. Constitutional Law: Search Warrants: Probable Cause. The Fourth
Amendment’s express requirement of particularity for a search warrant
is closely related to its express requirement of probable cause.
34. Search Warrants: Affidavits: Probable Cause. A warrant affidavit
must always set forth particular facts and circumstances underlying the
existence of probable cause, so as to allow the magistrate to make an
independent evaluation of probable cause.
35. Criminal Law: Search and Seizure: Evidence. The nexus between the
alleged crimes and the article to be searched does not need to be based
on direct observation; it can be found in the type of crime, the nature
of the evidence sought, and the normal inferences as to where such evi-
dence may be found.
36. Probable Cause: Police Officers and Sheriffs. Probable cause may
be based on commonsense conclusions about human behavior, and due
weight should be given to inferences by law enforcement officers based
on their experience and specialized training.
37. Affidavits: Police Officers and Sheriffs. Wholly conclusory state-
ments by a law enforcement officer affiant that the affiant has reliable
information and reason to believe evidence of a crime will be found in a
particular place are insufficient.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. SHORT
Cite as 310 Neb. 8138. Constitutional Law: Probable Cause: Words and Phrases. “Probable
cause” is a term of art in Fourth Amendment jurisprudence that is
defined as a practical, nontechnical conception that deals with the fac-
tual and practical considerations of everyday life on which reasonable
and prudent people, not legal technicians, act.
39. Search Warrants: Affidavits: Probable Cause. The fundamental ques-
tion in a challenge to an affidavit for lack of probable cause is whether,
under the totality of the circumstances illustrated by the affidavit, the
issuing magistrate had a substantial basis for finding that the affidavit
established probable cause.
40. ____: ____: ____. The magistrate who is evaluating the probable cause
question must make a practical, commonsense decision whether, given
the totality of the circumstances set forth in the affidavit, including the
veracity of and basis of knowledge of the persons supplying hearsay
information, there is a fair probability that contraband or evidence of a
crime will be found in a particular place.
41. ____: ____: ____. Where the circumstances are detailed, where reasons
for crediting the source of information is given, and where the magis-
trate has found probable cause to exist, the court should not invalidate
the affidavit in a hypertechnical manner.
42. Affidavits: Probable Cause. Reasonable minds frequently may dif-
fer on the question whether a particular affidavit establishes prob-
able cause.
43. Probable Cause: Police Officers and Sheriffs. Law enforcement can-
not only rely on the general ubiquitous presence of cell phones in daily
life, or an inference that friends or associates most often communicate
by cell phone, as a substitute for particularized information to support
probable cause that a specific device contains evidence of a crime.
44. ____: ____. To support probable cause, statements based on law enforce-
ment expertise and experience must be accompanied by particular facts
and circumstances such that, under the totality of the circumstances,
including commonsense conclusions about human behavior, there is a
substantial basis for concluding evidence of a crime will be found on the
phone or phone information searched.
45. Search Warrants: Probable Cause. What will constitute sufficient
particularized information to support probable cause that a cell phone
or cell phone information searched will contain evidence of a crime
depends upon the nature and circumstances of the crime and what is
sought in the warrant.
46. Criminal Law. It can be generally recognized that cell phones tend to
accompany their users everywhere, and thus, it may be inferred that a
suspect’s cell phone probably accompanied the suspect at the time of
the crime.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. SHORT
Cite as 310 Neb. 8147. Search Warrants: Probable Cause: Affidavits. A warrant may be
considered so lacking in indicia of probable cause if the applicant files
merely a bare bones affidavit, one which contains only wholly conclu-
sory statements and presents essentially no evidence outside of such
conclusory statements.
48. Search and Seizure: Police Officers and Sheriffs. To trigger the exclu-
sionary rule, police conduct must be sufficiently deliberate that exclu-
sion can meaningfully deter such conduct and sufficiently culpable that
such deterrence is worth the price paid by the justice system, as exclu-
sion serves to deter deliberate, reckless, or grossly negligent conduct, or
in some circumstances recurring or systemic negligence.
49. Search Warrants: Affidavits: Police Officers and Sheriffs: Probable
Cause. The good faith exception is applicable to an affidavit that fails
to satisfy the substantial basis test to support probable cause, when
police officers act in objectively reasonable good faith in reliance upon
the warrant.
50. Search Warrants. A purpose of the particularity requirement for a
search warrant is to prevent the issuance of warrants on loose, vague, or
doubtful bases of fact.
51. Constitutional Law: Search and Seizure: Search Warrants: Police
Officers and Sheriffs. 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
permits seizure of items other than what is described.
52. Constitutional Law: Search Warrants: Police Officers and Sheriffs.
To satisfy the particularity requirement of the Fourth Amendment, a
warrant must be sufficiently definite to enable the searching officer to
identify the property authorized to be seized.
53. Search Warrants. The degree of specificity required in a warrant
depends on the circumstances of the case and on the type of items
involved.
54. Search Warrants: Probable Cause: Evidence. A search warrant may
be sufficiently particular even though it describes the items to be seized
in broad or generic terms if the description is as particular as the sup-
porting evidence will allow, but the broader the scope of a warrant, the
stronger the evidentiary showing must be to establish probable cause.
55. Search and Seizure: Search Warrants: Probable Cause. 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 prob-
able cause that justifies the search.
56. Criminal Law: Police Officers and Sheriffs: Evidence. Officers can-
not predict where evidence of a crime will be located in a cell phone
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. SHORT
Cite as 310 Neb. 81or call records or in what format, such as texts, videos, photographs,
emails, or applications.
57. ____: ____: ____. There is no way for law enforcement to know where
in the digital information associated with cell phones it will find evi-
dence of the specified crime.
58. Constitutional Law: Search Warrants. The most important constraint
in preventing unconstitutional exploratory rummaging is that the war-
rant limit the search to evidence of a specific crime, ordinarily within
a specific time period, rather than allowing a fishing expedition for all
criminal activity.
59. Constitutional Law: Search and Seizure. A brief examination of all
electronic data associated with a cell phone is usually necessary in order
to find where the information to be seized is located, and sucn examina-
tion is reasonable under the Fourth Amendment.
60. Constitutional Law: Warrantless Searches: Search and Seizure.
Warrantless searches and seizures are per se unreasonable under the
Fourth Amendment, subject only to a few specifically established and
well-delineated exceptions, which must be strictly confined by their
justifications.
61. Constitutional Law: Arrests: Search and Seizure. In the case of a
lawful custodial arrest, a full search of a person is not only an exception
to the Fourth Amendment’s warrant requirement, but is also a reasonable
search under that amendment.
62. Arrests: Search and Seizure: Probable Cause. A search incident to
an arrest can be made before an arrest as long as probable cause for the
arrest exists before the search.
63. ____: ____: ____. It does not matter that a defendant is not formally
placed under arrest until after a search, so long as the fruits of the search
are not necessary to support probable cause to arrest.
64. Warrantless Searches: Probable Cause: Police Officers and Sheriffs.
Probable cause to support a warrantless arrest exists only if law enforce-
ment has knowledge at the time of the arrest, based on information that
is reasonably trustworthy under the circumstances, which would cause a
reasonably cautious person to believe that a suspect has committed or is
committing a crime.
65. Arrests: Probable Cause: Police Officers and Sheriffs. Under the col-
lective knowledge doctrine, the existence of probable cause justifying a
warrantless arrest is tested by the collective information possessed by all
the officers engaged in a common investigation.
Appeal from the District Court for Douglas County: Horacio
J. Wheelock, Judge. Affirmed.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. SHORT
Cite as 310 Neb. 81Thomas C. Riley, Douglas County Public Defender, for
appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. INTRODUCTION
The defendant challenges the district court’s denial of a
motion to dismiss with prejudice or for absolute discharge
based on late disclosures of discovery information resulting
in delays the defendant argues implicated his speedy trial
rights. The defendant also challenges the admission of evi-
dence at trial obtained from the searches of his residence, cell
phones, call records, and cell site location information on the
ground that the searches violated his Fourth Amendment rights.
Specifically, the defendant asserts that the seizure of his cell
phones was pursuant to an unlawful arrest and the information
contained thereon would not have been inevitably discovered;
the warrant for the search of his residence was based on an
affidavit containing falsities and material omissions; the war-
rants for the searches of his cell phones, call records, and
cell site location information were supported by affidavits
that failed to support probable cause; and the warrants for the
searches of his cell phones, call records, and cell site location
information lacked particularity. We affirm.
II. BACKGROUND
Marcus L. Short’s convictions stem from three separate
incidents that were tried together in two trials after the first
trial resulted in a mistrial. Following a retrial, Short was con-
victed of murder in the first degree, a Class IA felony; use
of a firearm to commit a felony, a Class IC felony; and two
counts of possession of a firearm by a prohibited person, each
a Class ID felony, in relation to the death of Garion Johnson.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. SHORT
Cite as 310 Neb. 81Short was acquitted on the murder charge relating to the death
of Deprecia Neelon and the accompanying use of a firearm to
commit a felony charge. Short was sentenced to life imprison-
ment for Johnson’s murder and 49 to 50 years’ imprisonment
on each of the other convictions to be served consecutively
with the life sentence.
1. Shootings
The charges stemmed from three separate shootings on sepa-
rate days, August 5, 6, and 8, 2015, suspected to be perpetrated
by Short, Preston Pope, and Shadow Harlan. Neelon was killed
on August 6. Johnson was suspected to be the target in all three
shootings and was ultimately killed on August 8. Johnson was
Neelon’s boyfriend’s cousin.
(a) August 5, 2015
At approximately 6:35 p.m. on August 5, 2015, Johnson
was sitting in a white Chevy Impala outside of Neelon’s resi-
dence when an individual walked up and fired a gun at him.
Johnson was able to run away as the shooter chased him. One
­.45-caliber spent shell casing and a tennis shoe were recovered
at the scene. Two witnesses identified a photograph of Pope as
the shooter.
(b) August 6, 2015
In the early evening hours on August 6, 2015, someone inten-
tionally set the outside of Neelon’s residence on fire. While
Neelon was outside investigating and attempting to put the fire
out, she was shot seven times and died at the scene.
That same night, an anonymous tip came in regarding a per-
son named “Shadow” telling people that he had been involved
in a shooting a few blocks away. Officers responded to the
address provided in the tip, which was a couple blocks from
the Neelon residence, and apprehended Harlan as he tried to
flee from the residence. Harlan matched witnesses’ descriptions
of the shooter and was wearing the same clothes described by
witnesses when he was apprehended.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. SHORT
Cite as 310 Neb. 81Witnesses observed multiple individuals quickly leave the
area after the Neelon shooting in two separate vehicles: an
older blue van and a white sedan. Officers later located and
attempted a traffic stop of a van matching the description
on August 14, 2015. Pope fled the traffic stop and was later
arrested in the area where the van was located. The van was
registered to Pope’s mother, but she told officers that Pope
used it.
Evidence recovered at the Neelon residence included a black
knit glove and three .45-caliber spent shell casings. A pricetag
from a pair of jersey gloves was found in the alley about a
block away from the Neelon residence.
A fingerprint lifted from the pricetag was matched to Short.
Further DNA testing also revealed that Short could not be
excluded as a partial profile contributor to DNA found on the
inside of the glove.
(c) August 8, 2015
Johnson was at the residence of his girlfriend, Mikayla
Finley, on Fontenelle Boulevard on the morning of August 8,
2015. Finley told officers that she told Johnson to move her
white Chevy Impala into the garage. When Johnson was out-
side moving the Impala into the garage, Finley heard noises
she believed were gunshots. Johnson reversed the vehicle,
circled through neighboring yards, and crashed into the garage
of a nearby residence, all while shots were being fired at
the Impala.
Finley told officers that she saw two males standing around
her Impala and that one made eye contact with her. She pro-
vided a general description of him to police, but was unable to
identify anyone when she was presented with a photographic
lineup that day.
Witnesses, including Finley, described the shooters. Both
wore dark clothing, and one was described as a Black male, in
his late teens, approximately 5 feet 8 inches tall, and dressed in
a black hoodie or a black hoodie with a red “N” on it.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. SHORT
Cite as 310 Neb. 81A witness reported a suspicious white Monte Carlo with
white and blue dealership plates parked in the area that morn-
ing on 41st Street. Another witness reported seeing two Black
males dressed in black hoodies and black sweatpants walk-
ing fast through yards, from the direction of where he heard
gunshots and a crash, and subsequently heading south on 41st
Street. Seconds later, this witness saw what appeared to be a
white Monte Carlo speed north on 41st Street. A police detec-
tive lived in that area, and video surveillance from his house
showed a white Chevy Monte Carlo that traveled south on
Fontenelle Boulevard at 9:48 a.m.
Evidence recovered from the scene included four .45-caliber
spent shell casings. Law enforcement believed the shooting
was related to the August 5 and 6, 2015, shootings.
Detectives were provided the description of the white Chevy
Monte Carlo and Short’s name, whose fingerprint matched the
fingerprint found on the pricetag near the Neelon residence.
At 1:31 p.m., law enforcement arrived at Short’s last known
address at 4268 Binney Street. There they discovered, parked in
the driveway, a white Chevy Monte Carlo with white and blue
“paper plates” and in-transits for “M.S.” in the window.
2. Search of Short’s Residence
Det. Ryan Hinsley drafted an affidavit for a search warrant
of 4268 Binney Street, and he joined law enforcement already
at the residence at 4:17 p.m. on August 8, 2015, with the
signed search warrant.
(a) Affidavit
In the affidavit for the search warrant, Hinsley stated officers
had just and reasonable grounds to believe that certain types of
property would be found at 4268 Binney Street and requested
permission to seize items from the house and from the Monte
Carlo in the driveway, as well as the ability to process any
areas that may contain a DNA profile or fingerprints.
Items of interest to be seized included venue items iden-
tifying those parties either who owned or who were in
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STATE v. SHORT
Cite as 310 Neb. 81control of the residence and the white Chevy Monte Carlo with
­in-transits and dealer paper plates; firearms; ammunition; any
companion equipment for firearms; cell phones; computers;
audio and video equipment; storage media; and “[a]ny and all
clothing or property believed to have been worn and/or used
during the commission of the assault, to include, but not lim-
ited to a black hoodie with a red ‘N’ on it along with a black
bandana with white design and a red bandana.”
Pertaining to the just and reasonable grounds for believing
such evidence would be found at the residence, the affida-
vit described:
On Tuesday, August 4, 2015, Omaha Police Department
Officers received a radio call to [the Neelon residence]
for an attempted felony assault. The victim was identified
as JOHNSON, Garion [date of birth] 06/. . ./1996 who
was uncooperative at the time.
On Wednesday, August 5, 2015, Omaha Police Depart­
ment Officers received a radio call to [the Neelon resi-
dence] for a shooting. The victim in that incident later
died from her injuries. During that investigation, Omaha
Police Department Crime lab recovered a glove from
the scene and from that glove obtained a fingerprint that
was found to belong to Marcus SHORT [date of birth]
10/. . ./89.
The affidavit further described:
On Saturday, August 8, 2015, at 0949 hours officers
of the Omaha Police Department were called to [a spe-
cific address on] Fontonelle [sic] Boulevard, Omaha, NE
in regards to a shooting. Upon arrival officers located
the victim (later identified as Garion JOHNSON, date
of birth 06/. . ./1996) inside the driver’s seat of a white
2007 Chevy Impala . . . . JOHNSON had been shot sev-
eral times throughout his body and was transported from
the scene by medics to Creighton Health Initiative (CHI)
Hospital where he later succumbed to his injuries.
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Nebraska Supreme Court Advance Sheets
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STATE v. SHORT
Cite as 310 Neb. 81It was later elicited through testimony that the dates in the
affidavit of the prior incidents were incorrect and that it was
actually August 6, 2015, that the Neelon homicide occurred.
The affidavit further described Finley’s statements to the
investigating officers:
Officers located JOHNSON’s girlfriend (Mikayla
FINLEY, date of birth 4/. . ./1990) . . . . FINLEY stated
she then heard a series of muffled banging noises coming
from the garage area which she believed were gun shots.
FINLEY advised she looked out the front window of the
residence and saw two unknown males standing around
her Impala and JOHNSON in the front seat attempting
to back out of the driveway. FINLEY stated one of the
males made eye contact with her and was described as a
[B]lack male, 16-18 years old, 5′8-5′10, 140-160 pounds,
wearing a black hoodie with a red “N” on the front
[of] it.
The affidavit stated what other witnesses on the scene of
the Johnson homicide on August 8, 2015, reported to law
enforcement:
[Another witness] was also located at the scene and
brought to OPD Central for an interview. [She] advised
she saw one [B]lack male wearing all black clothing
(hoodie) and a bandana covering his face shooting with
his right hand at the white Chevy Impala. [The witness]
advised the Impala then drove through her front yard try-
ing to flee from the shooter and crashed into a house a
few house[s] down from the originating house.
. . . Additionally, witnesses stated after the shooting
two [B]lack males were seen running through yards and
got into a white Chevy Monte Carlo parked towards
the west, which then fled from the area westbound on
Font[e]nelle Boulevard with paper plates.
Finally, the affidavit described how the investigation on
August 8, 2015, progressed to 4268 Binney Street:
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. SHORT
Cite as 310 Neb. 81On Saturday, August 8, 2015, members of the Omaha
Police Department later located a White Chevy Monte
Carlo with In-Transits and paper plates parked in front
of 4268 Binney Street. At that location, Officers also
located a party identified as Marcus SHORT [date of
birth] 10/. . ./89.
(b) Fruits of Search
Officers in their search discovered two firearms in Short’s
bedroom at his residence, a .45-caliber Glock handgun and
a .357-caliber Smith & Wesson revolver. In addition to the
two firearms, officers seized or took photographs of several
other items found at the house, including a muddy pair of
black pants, two black hoodie sweatshirts, muddy shoes, and
two pairs of black gloves. The officers also seized as venue
items a cell phone receipt on which Short’s name and a phone
number with a 702 area code appeared, as well as a form from
the Douglas County public defender’s office regarding Short’s
representation in a misdemeanor matter identifying Short as a
client with his contact information including his 4268 Binney
Street address and the phone number with the 702 area code.
3. Seizure of Cell Phones
Short was not initially at 4268 Binney Street at the time
law enforcement arrived, but agreed to Det. Candace Phillips’
request that he return to his residence. Officers, including
Phillips, met Short at the perimeter of the crime scene upon his
arrival, approximately three houses away from his residence.
Officers handcuffed Short and placed him in a police cruiser.
They seized two cell phones and a set of keys from his person.
At some point, Short was released from the handcuffs and
given his phones back, but after some disagreement between
law enforcement officers, Short was placed back in handcuffs
and his phones were seized again. Short was then transported
to the Omaha Police Department (OPD) where he was held
in an interview room and interviewed by Det. Eugene Watson
and another detective. It was approximately 3 hours after being
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. SHORT
Cite as 310 Neb. 81transported to OPD, while Short was being interviewed, that
law enforcement found the two firearms at Short’s residence.
Upon that discovery, Short was formally arrested on two
counts of possession of a firearm by a prohibited person.
4. Search of Content of Cell Phones
On August 11, 2015, officers obtained a warrant to search
Short’s cell phones that they had seized from Short’s person
on August 8, which were an LG model LG237c flip-style
phone (LG flip phone) and an LG model LS740 phone (LG
smart phone).
(a) Affidavit
The affidavit for the search warrant included the informa-
tion that (1) witnesses to the Johnson homicide described a
suspect vehicle fleeing the area after the shooting as being a
white Chevy Monte Carlo with no license plates, displaying
in-transits and dealer paper plates; (2) the suspect vehicle was
located in the area of 42d and Binney Streets; (3) Short was
identified as the owner of the vehicle; (4) Short was located on
August 8, 2015, and transported to OPD to be interviewed; and
(5) Short had the LG flip phone and the LG smart phone in his
possession, which were booked into evidence.
Further, the affidavit stated:
Affiant Officer knows, through training and experi-
ence, that persons use cellular telephones to communi-
cate. This includes . . . persons planning a crime, com-
mitting a crime and/or trying to regroup after committing
a crime. These communications can be in the form of
telephone calls, emails and/or messages. People are also
know[n] to contact parties using cellular telephones via
telephone calls, emails of messages and threaten physical
harm to others.
Affiant Officer knows, through training and experi-
ence, that persons who engage in criminal acts will some-
times take video of the act, video before committing the
crime and/or after the crime was committed. Persons are
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themselves and others displaying weapons.
The affidavit requested to search specific categories of data
on the cell phones and specified what each of those categories
could reveal with regard to a criminal investigation, which the
search warrant used and restated as the areas authorized to
be searched.
(b) Warrant
The search warrant authorized a search of the LG flip phone
and the LG smart phone in relation to the homicide of Johnson
and allowed officers to obtain from the cell phones the fol-
lowing: (1) phone information and configurations; (2) user
account information; (3) call logs; (4) contact lists; (5) short
and multimedia messaging service messages; (6) chat and
instant messages; (7) email messages; (8) installed applications
and their corresponding data; (9) media files such as images,
videos, audio, and document files; (10) internet browsing his-
tory, including bookmarks, “browser cookies,” and associated
cache files; (11) cell tower connections, global positioning sys-
tem fixes, waypoints, routes, and tracks; (12) WiFi, Bluetooth,
and synchronization connection history; (13) memos and notes;
(14) user dictionary information; and (15) calendar informa-
tion. The warrant further stated:
Affiant Officer or their agents may be required to exam-
ine every file and scan its contents briefly to determine
whether it falls within the scope of the warrant. This is
necessary as it is difficult to know prior to the search the
level of the technical ability of the device’s user and data
can be hidden, moved, encoded or mislabeled to evade
detection.
(c) Fruits of Search
Pursuant to this search, police determined that the phone
number for the LG flip phone was 402-619-2962. Since this
was only a flip phone without capabilities to take screenshots,
the officer who examined the phone took photographs of
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Cite as 310 Neb. 81the screen and those photographs were entered into evidence.
The photographs of the LG flip phone’s content included sev-
eral text messages and phone calls between this phone and
Pope’s phone.
The LG smart phone had a “SIM” card, which usually con-
tains only the subscriber number and phone number of the
device. This card was removed from the phone and put into a
reader to read the content on the card, and the number associ-
ated with the phone was discovered to be 702-619-1025.
The LG smart phone itself was “locked,” and OPD did
not have the capabilities in 2015 to take data from a locked
phone. The LG smart phone was sent to a computer crime
institute that used a computer program to read the data chip
of the phone and then returned a readable report of its find-
ings. The data of the LG smart phone showed several contacts,
including incoming and outgoing phone calls and text mes-
sages between the LG smart phone and Pope’s phone (contacts
with “Playboi”) and contacts with “Shadow,” perceived to be
Harlan. The phone also showed that Short visited websites for
news articles about the homicides.
5. Search of Call Records With Cell
Site Location Information
On August 11, 2015, a warrant was issued for information
from a cell phone service provider in regard to the phone num-
ber 702-619-1025 (Short’s LG smart phone) and a number of
another cell phone unrelated to Short’s appeal. An identical
warrant was issued for information from another cell phone
service provider in regard to the phone number 402-619-2962
(Short’s LG flip phone) and two other numbers unrelated to
Short’s appeal. A new warrant was obtained on December 5,
2018, for the search of call records and cell site location infor-
mation for the LG smart phone, after the court’s ruling that
Short’s statements as to his phone numbers, relied upon in the
original warrant, were obtained as a fruit of an unlawful arrest
and in violation of Short’s Miranda rights and Short’s right
to counsel. The court determined the December 2018 search
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Cite as 310 Neb. 81warrant was independent of the tainted evidence because police
obtained the same phone number associated with Short while
executing a valid search warrant at Short’s residence. No
explanation was offered as to why Short’s LG flip phone was
not included in the 2018 warrant, since the phone number for
that phone was found during the search of the physical phone
pursuant to a valid search warrant discussed above. Only the
December 5 warrant is at issue in this appeal.
(a) Warrant
The search warrant authorized officers to obtain customer or
subscriber information for the LG smart phone with the phone
number 702-619-1025 for the July 8 to August 10, 2015, time
period. It also authorized “[a]ll records and other information
relating to” that number and time period, including (1) the
records of user activity for any connections made to or from
the account, including the date, time, length, and method of
connections, data transfer volume, user name, and source and
destination of internet protocol addresses; (2) all available
toll records to include call detail, “SMS detail, data sessions,
per call measurement data (PCMD), round trip time (RTT),
NELOS, cell site and cell site sector information and cellular
network identifying information”; (3) the noncontent informa-
tion associated with the contents of any communication or file
stored by or for the accounts, such as the source and destina-
tion email addresses and internet protocol addresses; (4) the
correspondence and notes of records related to the accounts;
and (5) the current cellular site list, in electronic format, which
includes any and all markets, switches, and areas the target
phone utilized during the time period above.
(b) Affidavit
In support of the December 2018 warrant, the affidavit
­indicated the grounds for issuance of the search warrant
included the following: (1) witnesses after the Johnson homi-
cide stated that two Black males were seen running through
yards and that they then got into a white Chevy Monte Carlo
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Cite as 310 Neb. 81with in-transits and dealer paper plates, (2) the suspect vehicle
was located in the area of 42d and Binney Streets, and (3) the
owner of the vehicle was identified as Short.
With regard to how the police came to determine Short’s
phone number, the affidavit stated:
On Saturday, August 8th 201[5], Omaha Police
Homicide Detectives Wendi DYE . . . and Ryan HINSLEY
. . . served a court ordered search warrant at 4268 Binney
Street, Omaha, Nebraska, Douglas County [Short’s resi-
dence]. Through the course of the investigation it was
determined that suspect Marcus SHORT . . . resided at
this residen[ce]. Items of venue with Marcus SHORT’s
name were located in the residence in the upstairs/attic
bedroom.
Item #12 document bearing Marcus SHORT’s name
was found in the trash in the bedroom. The document was
issued from the Douglas County Public Defender’s Office
containing the following information:
Client Name: SHORT, Marcus
Address: 4268 Binney Street Omaha, Ne 68111
Telephone Number: 702-619-1025
Date of Birth: 10/. . ./1989
Charges: Paraphernalia and Resisting
A second receipt from [a cell phone provider] with
Customer Name: Marcus Short phone number 702-619-
1025 dated 8/2/2015 1:41:58 pm was also located in the
bedroom of Marcus SHORT.
Affiant Officer believes through the receipts, Marcus
Short was using the phone number 702-619-1025 to com-
municate with others.
Regarding the need for the records for the investigation, the
affidavit stated:
Affiant Officer believes that if she is granted this Search
Warrant the information received from the carrier would
help to identify other witnesses and suspects to the crime
under investigation. The information gained would also
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Cite as 310 Neb. 81help officers determine the locations of the cellular tele-
phone devices used and thus the persons using those tele-
phone numbers. This information would help to prove or
disprove statements of witnesses and/or suspects.
Affiant Officer is requesting the time period listed
above to determine a pattern of behavior for the target(s)
both before and after the crime under investigation.
From training, experience and research Affiant Officer
is aware that the data stored by cellular network provid-
ers can provide invaluable insight for criminal investiga-
tions. . . . In addition to personal use, cell phones are
often used as tools in criminal activity. Affiant Officer is
aware of numerous instances where cell phones were used
by participants in crimes to communicate via voice and
text messaging. Affiant Officer is also aware of instances
where the cell phone was operating in the background,
accessing the cell provider’s network, and generating
location based data. When a cell phone interacts with the
cellular provider’s network, it leaves records that allow
for the identification of locations where the cell phone
accessed the network. These interactions between the cell
phone and the network can be created intentionally or
accidentally by the user, or automatically by the device
itself as part of its regular functioning.
The affidavit further explained how each of the categories
of information requested from the cell phone service provid-
ers could be “invaluable tools” when conducting a criminal
investigation such as assisting in identifying or confirming
the owner of a cell phone; constructing a timeline of events
regarding an investigation; establishing communications
between parties to identify coconspirators, witnesses, or vic-
tims; establishing the proximity of a location of the cell phone
to demonstrate that the device, and its user, was in a location
associated with an incident; and providing insight into an
individual’s level of culpability and knowledge regarding an
investigated incident.
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The records received were sent to the Federal Bureau of
Investigation for assistance. There, a special agent used the
call records provided by the two cell phone service providers
to map out the cell towers being used during the activity of
Pope’s phone and Short’s LG smart phone on August 5, 6, and
8, 2015, and to give an approximate location of the cell phones
on those dates. Using the call detail record with cell site infor-
mation that identifies which switch, cell tower, and cell face
sector of that tower that the cell phone used when it made a
call, the special agent was able to determine that Short’s LG
smart phone made six calls between 5:30 and 7:30 p.m. on
August 5 and was not in the area of the Neelon residence
when these calls were made. Pope’s phone made eight calls
between 5:30 and 6:59 p.m. on August 5 while Pope’s phone
location progressed north and was within the footprint of the
tower that covers the area of the Neelon residence by the time
of the phone call at 6:26 p.m. On August 6, between 7:30 and
9:07 p.m., Short’s LG smart phone was not in the footprint of
the tower that covers the Neelon residence, but Pope’s phone
was. On August 8, focusing on the Johnson homicide crime
scene on Fontenelle Boulevard, the special agent determined
that between 6 and 8 a.m., Short’s LG smart phone was in the
area of his residence and then moved to the area of the Johnson
crime scene for phone calls made between 8 and 10 a.m.
Pope’s phone was also in the area of the Johnson crime scene
on August 8 between 8 and 10 a.m. and was later in the area of
Short’s residence between 10 and 11 a.m.
6. Discovery Delays and Motions to Continue
Occurring Before Mistrial
(a) Short’s October 4, 2016, Motion
to Compel Discovery
On October 4, 2016, defense counsel moved to compel
discovery the prosecution had failed to disclose in accordance
with a court order issued approximately 4 months before. In
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Cite as 310 Neb. 81the motion, Short requested an order compelling the State to
provide the DNA results of the clothing tested; the fingerprint
analysis notes and reports for the glove found; the cell tower
data, reports, and notes for the LG flip phone and the LG smart
phone; the call and text history for the “white Iphone” and the
“black Sprint” phone seized; all reports for multiple case files;
and all photographs shown to Johnson’s girlfriend, Finley, on
August 8 and 10, 2015. The State explained at a hearing on the
motion that it was expediting disclosure of discovery materials
the best it could. No order resulted directly from the October 4
motion to compel.
(b) Short’s December 12, 2016,
Motion to Continue
On December 12, 2016, counsel for Short filed a motion
to continue the trial on several grounds, including significant
delays in the receipt of discovery materials. The court granted
the motion to continue. It reset trial for May 15, 2017, stating
in the order that the “speedy trial clock is stopped” until then.
(c) Short’s May 3, 2017,
Motion to Continue
After the State filed a motion for leave to endorse Marcela
Mitchell as a witness on May 2, 2017, Short filed a motion
on May 3 to continue trial based on the late disclosure on
May 2 of the OPD report that included Mitchell’s identifica-
tion of Pope from a photographic spread. Phillips admitted
that Mitchell identified Pope as an individual who attempted
to shoot Johnson on August 5, 2015, but Phillips had failed to
dictate a police report regarding this identification until March
9, 2017. The court granted Short’s motion to continue and reset
trial to begin on October 16. The court again stated in its order
that the “speedy trial clock is stopped” until then.
The Douglas County public defender’s office was appointed
to represent Short as new counsel on June 27, 2017. On July
5, the new counsel orally requested the court to continue the
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new trial date was set for March 19, 2018.
(d) Short’s Motion for Additional Discovery
On November 14, 2017, Short filed a motion for additional
discovery, requesting a copy of the “Homicide Lead Sheet”
maintained by the OPD homicide unit for the Johnson homi-
cide and the Neelon homicide. This motion was granted by
the court on November 27 in an ongoing manner, such that the
State was ordered to provide continuous updates if information
was added to the lead sheets.
(e) Motion to Dismiss or Motion
for Complete Discharge
Short’s case was originally consolidated with the case
against Pope, but after Short’s motion to sever trials with Pope
was granted and Pope’s trial was set to go first, on March 19,
2018, Short’s trial was ordered to commence April 30. On
April 13, Short filed a motion to dismiss all charges or, in the
alternative, for a complete discharge. The motion relied on the
constitutional rights to due process and a speedy trial, as well
as Neb. Rev. Stat. § 29-1919 (Reissue 2016) regarding discov-
ery sanctions.
The motion outlined the discovery motions, orders, and
continuances described above. Short noted that discovery con-
tinued to be provided, with the most recent material received
on April 11, 2018. Short asserted that the untimely receipt of
discovery materials was due to a “continuing pattern of gross
misconduct and mis-management by [OPD].” Short asserted
that his ability to prepare to defend these cases at trial had been
severely impeded.
Short argued that with trial scheduled to commence on
April 30, 2018, it would be highly unlikely the defense would
be able to locate witnesses in so short a time period between
disclosure of the witnesses’ statements and the commence-
ment of trial. But Short did not seek another continuance.
Short pointed out that trial had already been continued on
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Cite as 310 Neb. 81two previous occasions due to late disclosure of discovery
materials and explained that he was put in a place to either
“request[] another continuance or proceed[] to trial without
sufficient time to locate, interview, depose, and call as wit-
nesses at trial, those witnesses who could provide exculpa-
tory evidence at trial.” Short argued that “due to the State’s
continuing inability and failure to comply with its discovery
obligations and requirements, the State has violated Short’s
right to a speedy trial.”
Short asked the court to dismiss with prejudice all charges
against him or, in the alternative, to grant “complete discharge”
of all charges, because, due to the misconduct of OPD, it
was impossible for Short to receive a fair trial. Further, Short
argued that OPD’s misconduct in failing to manage and dis-
close evidence and discovery materials was imputed to the
prosecution, so the prosecution should be held responsible for
such misconduct.
(i) Evidence Presented at Hearing on Motion
An evidentiary hearing on Short’s motion to dismiss or for
complete discharge was held on April 16, 18, and 19, 2018.
Phillips and Watson testified at the hearing. They were both
assigned to the Neelon homicide investigation team. The detec-
tives assigned to the Johnson homicide all completed their
police reports in a timely manner.
Phillips and Watson admitted that on multiple occasions dur-
ing the Neelon homicide investigation, years elapsed between
conducting an interview and the generation of any police report
on that interview. They agreed this was not standard operat-
ing procedure for a homicide detective. Phillips admitted that
she had failed to complete reports in a timely manner in other
cases, which resulted in a mistrial because of the late disclo-
sure of police reports. As a result of the publicity regarding this
case and the pattern of delays in writing reports, Watson was
removed from the homicide unit.
Other sergeants and detectives with experience in the homi-
cide unit at OPD testified that a detective is expected to
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Cite as 310 Neb. 81promptly book the original disc of an interview into evidence
at the property room and that the time for completing a
report on an interview can vary between 2 weeks and 6 months
depending on the workload of the detective and the priority
of the case. Several detectives testified that they were able to
work overtime hours to complete reports and, in their opinion,
taking more than a year to complete a report is not acceptable
and would be poor practice.
Watson testified his delays were because of the workload
and having to prioritize active cases. He also testified that he
had experienced personal issues, such as heart failure, and that
his case materials were “all on hold” during his medical leave
in 2017. Because of these distractions and his workload, he had
forgotten about interviews and misplaced discs. Phillips testi-
fied that her delays were because of the workload and because
of prioritizing cases where an arrest had been made.
The Douglas County Attorney testified at the hearing that
his office has an “open file policy” regarding discovery,
whereby his office sends defense counsel copies of all evi-
dence provided by law enforcement agencies and other sources
as soon as possible, and that his office relies on OPD to notify
it when OPD receives more evidence. He testified that he was
aware of multiple occasions where two detectives, Phillips
and Watson, failed to provide evidence and properly turn over
evidence in a timely manner, resulting in one or more mis­
trials in the past. The Douglas County Attorney testified that
he informed the command staff at OPD of the ongoing con-
cerns with Phillips and Watson, but that ultimately, he had no
authority over OPD.
(ii) Order Denying Motion
On April 26, 2018, the court denied Short’s motion to
dismiss or, in the alternative, for complete discharge. The
court acknowledged the above dates and procedure on how
the motion came to be and that “[d]iscovery continues to be
provided and material was provided at least as late as April
11, 2018.”
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Cite as 310 Neb. 81a. Speedy Trial
In examining whether Short’s constitutional right to a
speedy trial was violated, the court separated the Johnson
homicide from the Neelon homicide because of the different
OPD homicide teams assigned to each homicide. The court
found no constitutional speedy trial violations attributable to
the Johnson homicide investigation because the homicide team
that was assigned to that homicide investigated in a timely and
efficient manner, and no discovery violation was attributed
to their investigation. Accordingly, the court concluded that
Short’s motion to dismiss or motion for complete discharge, as
it related to the Johnson homicide, was overruled.
In analyzing the Neelon homicide, the court used factors
laid out in Barker v. Wingo 1 to determine whether Short was
deprived of his constitutional right to a speedy trial: (1) the
length of the delay, (2) the reason for the delay, (3) whether
and when the defendant asserted his speedy trial right, and
(4) whether the defendant was prejudiced by the delay. The
court concluded the length of the delay was approximately
10 months.
The court noted that the three prior continuances in this
case were on Short’s motions in December 2016, May 2017,
and June 2017. Then, upon severance of the trials for Short
and Pope, Short’s trial was set for April 30, 2018. After each
motion to continue was sustained, Short engaged in exten-
sive pretrial litigation, and as of the date of the order, several
defense motions in limine and a motion to suppress were set
for hearing on April 27. The court acknowledged that there
was no evidence that the State deliberately attempted to delay
the trial. The court found that Short did not make a viable
showing that his defense of the Neelon homicide was preju-
diced due to unavailable witnesses that would have been avail-
able at a more timely trial, nor that the witnesses were unable
to accurately recall past events because of any delay. For all
1
Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).
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Cite as 310 Neb. 81these reasons, the court found there was not a violation in the
Neelon homicide of Short’s right to a speedy trial.
b. Due Process
In rejecting Short’s argument that alleged due process viola-
tions called for the dismissal of all criminal charges with preju-
dice, the court found that “the conduct of Detective Phillips
and Detective Watson, the lack of oversight by OPD, and the
actions of the County Attorney’s Office [did] not indicate bad
faith.” The court acknowledged that the evidence showed a
pattern of failure to follow best practices and procedures, but
did not show any deliberate attempt to gain an unfair tactical
advantage, official animus, or a conscious effort to suppress
exculpatory evidence. Thus, the evidence did not warrant the
severe sanction of the dismissal of charges.
c. Statutory Violations
Finally, the court addressed the alleged statutory discovery
violations. The court acknowledged that Nebraska has not spe-
cifically addressed what factors a court should consider when
asked to dismiss an information because of a discovery viola-
tion in a criminal case.
When looking at outside jurisdictions, the court acknowl-
edged the preferred sanction is a continuance. The court noted
that the Eighth Circuit Court of Appeals has held that the rele­
vant factors in determining an appropriate sanction for a dis-
covery violation are “‘the reasons for the government’s delay
and whether it acted intentionally or in bad faith; the degree of
prejudice, if any, suffered by the defendant; and whether any
less severe sanction will remedy the prejudice and the wrong-
doing of the government.’” 2
The court reiterated that the evidence did not show Phillips
or Watson acted in bad faith or with the intent to mislead,
deceive, or act with a sinister motive in not completing
2
U.S. v. Davis, 244 F.3d 666 (8th Cir. 2001).
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Cite as 310 Neb. 81their reports in a timely manner; the State did not act in bad
faith; and any prejudice to Short’s preparation for trial as a
result of the delays could be cured with a continuance. Based
on the finding that there was no bad faith on the part of the
State, the court decided to impose the least severe sanction that
would accomplish prompt and full compliance with the discov-
ery order, “which [was to allow] Short a continuance should he
request one.”
7. Jury Selection and Mistrial
Short did not request a continuance, and jury selection for
his first trial proceeded as scheduled on April 30, 2018. Upon
motions from both parties, a mistrial was declared on May 8
due to improper jury contact by an unauthorized third party
associated with Short. Retrial was scheduled to commence on
January 7, 2019. The order scheduling retrial for January 7
indicated that this was set by agreement of the parties.
8. Retrial After Mistrial
Following the mistrial, Short did not renew his motion to
dismiss or, in the alternative, for absolute discharge based on
discovery violations. Short’s retrial commenced as scheduled
on January 7, 2019. At trial, Short made several objections
relevant to this appeal. The court did not generally adopt its
rulings from the aborted trial, but referred to the hearings and
rulings on motions to suppress when Short objected to the
same evidence at the retrial.
(a) Seizure of Cell Phones and
Search of Residence
Short objected at trial to the admission of all evidence stem-
ming from his allegedly unlawful de facto arrest when he was
handcuffed and placed in the police cruiser and concurrent
unlawful seizure of his cell phones, and he objected to all
evidence stemming from the search of his residence, which
he asserted was pursuant to a false and misleading affidavit.
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from the search of the physical phones, his call records, and
the cell site location information, as well as the physical evi-
dence seized at his residence.
The court overruled the motion regarding the seizure of the
phones, reasoning the phones would have inevitably been dis-
covered when Short was lawfully arrested after discovery of
the firearms at Short’s residence. The court reiterated its prior
ruling before the mistrial that the phones had been unlawfully
seized during a de facto arrest without probable cause, but that
the inevitable discovery doctrine exception still allowed the
seizure of the phones.
The court also overruled the objection relating to the affi-
davit in support of the search of Short’s residence, which,
as relevant to this appeal, focused on the statements that
Short’s fingerprints were found on the glove, that “witnesses
stated after the shooting two [B]lack males were seen running
through yards and got into a white Chevy Monte Carlo,” and
that Short was located at 4268 Binney Street, as well as the
omission of Finley’s inability to identify Short as the shooter
in a photographic spread. The court found that after striking
the disputed portions of the affidavit and including the omitted
information, the affidavit was still sufficient to establish prob-
able cause to search Short’s residence. Alternatively, the court
reiterated its findings that the evidence at hearings on Short’s
motion to suppress, held before the mistrial, demonstrated that
any false statements or omissions were not intentional or in
reckless disregard for the truth.
Hinsley had testified that he based the affidavit on informa-
tion he obtained from his interview of Finley and information
relayed to him by Sgt. Danette Culler, Phillips, and Watson,
who were all at the scene. Hinsley testified that he believed the
pricetag and the glove were the same evidence until he learned
his mistake shortly before the hearing. Hinsley explained he
had written the affidavit as he talked on the phone with Culler
and had no reason to question or clarify the information
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that Short’s fingerprint was taken from the glove found at
the scene, and she testified that she recalled discussing with
Hinsley a pricetag that was found that contained a fingerprint
match for Short.
The evidence at the hearings also demonstrated that offi-
cers canvassing the area spoke with several witnesses related
to the Johnson homicide and that some witnesses saw two
Black males leaving the scene while other witnesses saw only
one Black male leaving the scene. An officer testified that he
canvassed the area near the Johnson homicide scene, talked to
multiple witnesses, and relayed the information to the ­on-duty
sergeant who was relaying it to homicide detectives. The offi-
cer testified that there was not any one witness that saw both
the shooting and a suspect or suspects get into the white Monte
Carlo. The officer further testified that some witnesses claimed
to have seen all or parts of the shooting and that there were
other witnesses who had information about the white Monte
Carlo, but no idea about the shooting. Hinsley testified that he
named only two witnesses in the affidavit as witnesses person-
ally interviewed by him or another detective at OPD and that
he was not provided specific names of the other witnesses,
but he relayed a conglomeration of information provided by a
number of people from the uniformed officers and detectives at
the scene that was relayed to him through Culler.
The evidence at the hearings demonstrated Short was not
located at 4268 Binney Street, but was actually located walking
toward 4268 Binney Street, inside the crime scene perimeter
tape, three or four houses away.
Evidence showed that Finley failed to identify Short as the
shooter when shown a photograph of him and that the affidavit
omitted specific interviews with witnesses who observed only
one male firing into the car. Hinsley testified that he had “no
good reason” for not including the information that Finley did
not identify Short as the shooter that she saw and described to
law enforcement.
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Cite as 310 Neb. 81The court found that Hinsley’s and Culler’s testimonies were
truthful and credible and that the evidence was insufficient
to prove that Hinsley intentionally misled the court or acted in
reckless disregard for the truth in preparing the affidavit. The
court found that the averment in the affidavit regarding Short’s
fingerprint being found on a glove rather than the pricetag for
the glove near the Neelon residence was due to mistake or
simple negligence not rising to perjury or reckless disregard for
the truth. The court further found that the averment of where
Short was arrested being “at the location” of 4268 Binney
Street, rather than approximately three houses away after he
had crossed the taped crime scene area, was “insignificant.”
The court found that the averment in the affidavit stating “wit-
nesses” stated they saw “two [B]lack males,” as opposed to
one Black male, was not false, misleading, or in reckless dis-
regard for the truth, because it was a summary statement based
on interviews with multiple witnesses and the majority of the
witnesses interviewed saw two Black males. The court found
the omission of Finley’s failure to identify Short was not mis-
leading or in reckless disregard for the truth.
(b) Affidavits and Warrants for Searches
of Cell Phone Information
Short alternatively objected to all evidence derived from the
search of the LG flip phone and the LG smart phone, his call
records, and his cell site location information for the reason that
the warrants for the searches lacked the requisite particularity
under the Fourth Amendment and the affidavits supporting the
warrants lacked sufficient facts to support findings of probable
cause. With regard to the lack of probable cause, Short argued
that there was insufficient supporting averments establishing
a nexus between the cell phone information to be searched
and the crimes. According to Short, the affidavits generically
set forth that cell phone data and information can be help-
ful in police investigations and the affidavits were devoid of
evidence showing the use of cell phones in the specific crimes
under investigation.
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Cite as 310 Neb. 81The court overruled the objections, finding that the affida-
vits supported probable cause and that the warrants did not
lack in the necessary particularity. It referred back to its prior
findings in relation to Short’s motion to suppress before the
mistrial, that the affidavit in support of the search warrant was
sufficiently detailed and specific so as to establish probable
cause that Short was connected to the ongoing Johnson homi-
cide investigation and more than one individual may have been
involved in the Johnson homicide. Applying the totality of the
circumstances test, the court found that there was probable
cause to believe that evidence of a crime would be found in the
cell phone data of the two cell phones to be searched. The dis-
trict court found in the alternative that even if the search war-
rants were not supported by probable cause, the warrants were
executed in good faith. Further, the court found that the search
warrants were particular because they specifically referred to
the Johnson homicide and to the type of information encom-
passed by its authorization.
III. ASSIGNMENTS OF ERROR
Short assigns, reworded, that the district court erred when
it (1) denied his motion to suppress the fruits of the search of
his residence after the “Franks hearing,” when the affidavit in
support of the search warrant provided insufficient evidence
to support a finding of probable cause; (2) denied his motion
to suppress the two cell phones taken from his person inci-
dent to his unlawful arrest; (3) denied his motion to suppress
the information obtained from a search of the contents of the
two cell phones, because the phones were seized unlawfully
and the warrant was issued on insufficient evidence to sup-
port a finding of probable cause, was overly broad, and lacked
particularity; (4) denied his motion to suppress call records
and cell site location information from the cell phone service
providers because that information was obtained pursuant to
a search warrant that lacked sufficient probable cause, was
overbroad, and lacked particularity and that the information in
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Cite as 310 Neb. 81the affidavit was the fruit of the unconstitutional search of his
residence; (5) denied his motion to dismiss based on the State’s
failure to comply with discovery requirements; and (6) denied
his motion for complete discharge because he was deprived of
his constitutional right to a speedy trial.
IV. STANDARD OF REVIEW
[1] Generally, a trial court’s determination as to whether
charges should be dismissed on speedy trial grounds is a fac-
tual question which will be affirmed on appeal unless clearly
erroneous. 3
[2] Trial courts have broad discretion with respect to sanc-
tions involving discovery procedures, and their rulings thereon
will not be reversed in the absence of an abuse of discretion. 4
[3] In reviewing a trial court’s ruling on a motion to suppress
evidence based on a claimed violation of the Fourth Amend­
ment, we apply a two-part standard of review. Regarding his-
torical facts, we review the trial court’s findings for clear error,
but whether those facts trigger or violate Fourth Amendment
protections is a question of law that we review independently
of the trial court’s determination. 5
[4] We review the trial court’s findings as to whether the
affidavit supporting the warrant contained falsehoods or omis-
sions and whether those were made intentionally or with reck-
less disregard for the truth for clear error. 6 We review de novo
the determination that any alleged falsehoods or omissions
were not necessary to the probable cause finding. 7
3
State v. Billingsley, 309 Neb. 616, 961 N.W.2d 539 (2021).
4
State v. Case, 304 Neb. 829, 937 N.W.2d 216 (2020); State v. Hatfield, 304
Neb. 66, 933 N.W.2d 78 (2019).
5
State v. Lowman, 308 Neb. 482, 954 N.W.2d 905 (2021).
6
See, U.S. v. Mandell, 752 F.3d 544 (2nd Cir. 2014); U.S. v. Elkins, 300
F.3d 638 (6th Cir. 2002); U.S. v. Dozier, 844 F.2d 701 (9th Cir. 1988); U.S.
v. Garcia-Zambrano, 530 F.3d 1249 (10th Cir. 2008).
7
See, e.g., U.S. v. Mandell, supra note 6.
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Cite as 310 Neb. 81[5] After-the-fact scrutiny by courts of the sufficiency of an
affidavit should not take the form of de novo review. 8 Instead,
a judge’s determination of probable cause to issue a search
warrant should be paid great deference by reviewing courts. 9
[6] Application of the good faith exception to the exclusion-
ary rule is a question of law. 10
V. ANALYSIS
1. Late Disclosure of
Discovery Materials
We first address Short’s assignments that the trial court erred
in denying his motions to dismiss and for absolute discharge.
Short argues that under both due process and § 29-1919, the
court should have dismissed the case against him as a sanc-
tion for the prosecution’s delay in disclosing police interviews.
Short does not argue that these delays, due to OPD’s failure
to timely generate reports on the interviews, resulted in the
unavailability of exculpatory witness testimony. Instead, he
asserts he was prejudiced because the delays implicated his
speedy trial rights. Short alternatively asserts that the district
court erred in denying his motion for absolute discharge (which
is the same as dismissal with prejudice), because the need
for continuances to adequately prepare his defense after the
delayed disclosures deprived him of his constitutional right to
a speedy trial.
(a) Constitutional Speedy Trial Right
[7,8] We begin with the constitutional right to a speedy trial,
since it lies at the core of all of Short’s arguments concerning
these motions. The Sixth Amendment to the U.S. Constitution
provides, “In all criminal prosecutions, the accused shall
8
State v. Detweiler, 249 Neb. 485, 544 N.W.2d 83 (1996) (quoting Illinois
v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)).
9
See id.10
State v. Sprunger, 283 Neb. 531, 811 N.W.2d 235 (2012).
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Cite as 310 Neb. 81enjoy the right to a speedy . . . trial . . . .” Similarly, Neb.
Const. art. I, § 11, provides, “In all criminal prosecutions, the
accused shall have the right to . . . a speedy . . . trial . . . .” The
right to a speedy trial is unique from other rights enshrined in
the U.S. Constitution for the protection of the accused because
there is a societal interest in providing a speedy trial, which
exists separate from, and at times in opposition to, the interests
of the accused. 11 The deprivation of the right to a speedy trial
may work to the accused’s advantage when adverse witnesses
become unavailable or their memories fade over time. 12
[9] “[T]he right to speedy trial is a . . . vague concept,” since
“[w]e cannot definitely say how long is too long in a system
where justice is supposed to be swift but deliberate.” 13 Instead,
under the test set forth by the U.S. Supreme Court, we weigh
(1) the length of delay, (2) the reason for the delay, (3) whether
the defendant asserted his or her speedy trial rights, and (4)
whether the defendant suffered possible prejudice. 14 None of
the four factors is a necessary or sufficient condition to the
finding of a deprivation of the right of speedy trial; rather, they
are related factors and must be considered together with other
circumstances as may be relevant. 15 The length of the delay,
however, is a triggering mechanism for the four-factor test. 16
Until there is some delay that is presumptively prejudicial,
there is no necessity for inquiry into the other factors that go
into the balance in determining if the right to a speedy trial has
been violated. 17
11
See State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).
12
See id.13
Barker v. Wingo, supra note 1, 407 U.S. at 521.
14
See, Barker v. Wingo, supra note 1; State v. Lovvorn, 303 Neb. 844, 932
N.W.2d 64 (2019).
15
Barker v. Wingo, supra note 1.
16
See, id.; State v. Kula, 254 Neb. 962, 579 N.W.2d 541 (1998).
17
See id.- 116 -
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Cite as 310 Neb. 81In the context of statutory rights to a speedy trial, several
courts have held that delay caused by defense requests for
continuances, which were necessitated by the prosecution’s
inexcusable delays in furnishing obligatory discovery materi-
als, are chargeable to the prosecution. 18 These courts reason,
as Short does in this appeal, that the defendant ought not to
be forced to choose between preserving statutory speedy trial
rights and receiving all mandatory discovery well before trial. 19
But we have not found case law viewing with a similar sym-
pathy arguments that delays due to continuances granted at the
defense’s request, in response to dilatory discovery behavior
by the State, violate the defendant’s constitutional right to a
speedy trial.
[10] The court in U.S. v. Shulick 20 specifically rejected such
an argument. The court explained:
Counsel cannot seek and obtain continuances to give the
defense more time to be ready for trial because of the
Government’s dilatory behavior and then after the fact
reverse course and claim that the indictment should be
dismissed on the ground that defendant’s right to a speedy
trial under the Constitution has been infringed because of
that behavior. 21
It continued, “Courts have cautioned against this sort of tactic
and have particularly frowned upon it when the right is not
asserted until the eve of trial.” 22
18
See, U.S. v. Hastings, 847 F.2d 920 (1st Cir. 1988); Colby v. McNeill, 595
So. 2d 115 (Fla. App. 1992); Com. v. Taylor, 469 Mass. 516, 14 N.E.3d
955 (2014), abrogated on other grounds, Commonwealth v. Dirico, 480
Mass. 491, 111 N.E.3d 1062 (2018). See, also, State v. Driver, 270 Or.
App. 287, 347 P.3d 359 (2015).
19
See, U.S. v. Hastings, supra note 18; Com. v. Taylor, supra note 18.
20
U.S v. Shulick, 290 F. Supp. 3d 332 (E.D. Penn. 2017).
21
Id. at 342-43.
22
Id. at 343.
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Cite as 310 Neb. 81The Shulick court relied upon United States v. Loud Hawk, 23
wherein the U.S. Supreme Court held that delays caused by
the defendant’s interlocutory appeal will not ordinarily weigh
in favor of constitutional speedy trial claims. Defendants who
resort to an interlocutory appeal “normally should not be able
. . . to reap the reward of dismissal for failure to receive a
speedy trial.” 24 Further, “‘Having sought the aid of the judicial
process and realizing the deliberateness that a court employs in
reaching a decision, [such] defendants are not now able to criti-
cize the very process which they . . . called upon.’ . . .” 25
[11] We agree with this reasoning and find it applicable to
the continuances sought and obtained by Short in response to
the State’s late disclosure of discovery materials before the
mistrial. Short did not first seek dismissal under speedy trial
principles, but waited until after the period of the continuances
granted at his request to assert that trial had been delayed for
too long. He cannot claim the loss of the fundamental right to
a speedy trial through the inherent delays of a process he him-
self called upon—even if that process was to vindicate another
fundamental right.
[12] Short did finally elect to stand on his constitutional
right to a speedy trial when he filed his motion to dismiss or,
in the alternative, for absolute discharge, after new late disclo-
sures were made following the period of the requested contin­
uances. However, in considering whether Short’s constitutional
rights to a speedy trial were violated, we must bear in mind
there was a mistrial. Absent extraordinary circumstances, we
do not consider the entire period of time beginning with the
original charge or arrest in computing the length of the delay
when there has been a mistrial. 26 Instead, the constitutional
23
United States v. Loud Hawk, 474 U.S. 302, 106 S. Ct. 648, 88 L. Ed. 2d
640 (1986).
24
Id., 474 U.S. at 316.
25
Id., 474 U.S. at 316-17 (quoting United States v. Auerbach, 420 F.2d 921(5th Cir. 1969)).
26
See State v. Kula, supra note 16.
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Cite as 310 Neb. 81speedy trial analysis focuses only on the period after the man-
date for a new trial and the subsequent retrial. 27
[13] Only misconduct involving deliberate delay tactics
designed to circumvent the right to a speedy trial is an extraor-
dinary circumstance warranting consideration of the period
of delay before a mistrial. 28 Assuming without deciding that
OPD’s conduct can be imputed to the prosecution for purposes
of a constitutional speedy trial analysis, the trial court found
that OPD, and particularly Phillips and Watson, did not act
intentionally or in bad faith. We cannot say the court clearly
erred in this determination. The record reflects no evidence that
OPD’s conduct constituted a deliberate tactic to circumvent
Short’s speedy trial rights. Thus, our speedy trial analysis con-
siders only the period of delay following the mistrial.
[14,15] That period of delay was only 246 days, approxi-
mately 8 months. The U.S. Supreme Court has noted with
approval that “[d]epending on the nature of the charges, the
lower courts have generally found postaccusation delay ‘pre-
sumptively prejudicial’ at least as it approaches one year.” 29
A delay of a year or more is the benchmark commonly recog-
nized as presumptively prejudicial in a constitutional speedy
trial analysis. 30 This is especially true for more complex and
serious crimes. The more complex and serious the crime, the
longer a delay might be tolerated, because society also has an
interest in ensuring that longer sentences are rendered upon the
most exact verdicts possible. 31
Where the mistrial was not due to prosecutorial miscon-
duct, other courts have applied the 1-year triggering period to
27
See id.28
See id. See, also, State v. McCormack, 28 Wash. App. 65, 622 P.2d 1276(1980).
29
Doggett v. United States, 505 U.S. 647, 652 n.1, 112 S. Ct. 2686, 120 L.
Ed. 2d 520 (1992).
30
See 23 C.J.S. Criminal Procedure and Rights of Accused § 842 (2016).
31
Lloyd v. State, 207 Md. App. 322, 52 A.3d 161 (2012). See, also, Barker v.
Wingo, supra note 1.
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Cite as 310 Neb. 81the delay in bringing the defendant to trial after a mistrial. 32
The mistrial in this case was not in any way due to prosecuto-
rial misconduct, but was due to misconduct by a third party
associated with Short. Short will not benefit, in a speedy
trial analysis, from such misconduct. Given the complex-
ity of this case—involving two murder charges and multiple
shootings—we do not find the 246-day delay to be presump-
tively prejudicial.
We thus need not engage in the four-factor analysis to con-
clude that Short’s constitutional right to a speedy trial was
not violated. But, for the sake of completeness, we find that
the Barker four-factor analysis would not lead us to a differ-
ent conclusion. The order of the district court setting the date
for retrial was agreed upon by the parties and nothing in the
record, or in Short’s brief, disputes this. In the same vein,
at no point after the mistrial did Short make a constitutional
speedy trial challenge to the delay in commencing the new
trial. While courts cannot presume waiver of fundamental
constitutional rights from inaction or from a silent record,
“the defendant’s assertion of or failure to assert his [or her]
right to a speedy trial is one of the factors to be considered in
an inquiry into the deprivation of the right,” and a failure to
assert speedy trial rights will make it difficult for the defend­
ant to prove the denial of a speedy trial. 33 And the court found,
as discussed, the delays were not intentional or in bad faith.
Finally, Short makes no argument that he was prejudiced by
the delay in terms of ultimately mounting his defense at trial,
though he asserts he was incarcerated for an oppressive length
of time.
Generally, a trial court’s determination as to whether charges
should be dismissed on speedy trial grounds is a factual
question which will be affirmed on appeal unless clearly
32
See, People v. Landau, 214 Cal. App. 4th 1, 154 Cal. Rptr. 3d 1 (2013);
Whatley v. State, 326 Ga. App. 81, 755 S.E.2d 885 (2014); State v. Echols,
146 Ohio App. 3d 81, 765 N.E.2d 379 (2001).
33
Barker v. Wingo, supra note 1, 407 U.S. at 528.
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Cite as 310 Neb. 81erroneous. 34 We hold that the district court did not clearly err
in finding that Short’s constitutional speedy trial right was
not violated.
(b) Due Process
To the extent Short attempts to assert an independent viola-
tion of due process because of the delays attributable to the
late discovery disclosures, we find such assertion to also be
without merit.
[16] Due process concepts of fundamental fairness, requir-
ing that criminal defendants be afforded a meaningful oppor-
tunity to present a complete defense, involve “what might
loosely be called the area of constitutionally guaranteed access
to evidence.” 35 This group of constitutional privileges delivers
exculpatory evidence into the hands of the accused, thereby
protecting the innocent from erroneous conviction and ensur-
ing the integrity of our criminal justice system. 36 A defend­
ant has a constitutionally protected privilege to request and
obtain from the prosecution evidence that is either material
to the guilt of the defendant or relevant to the punishment to
be imposed. 37
[17] Delays in this context can be prejudicial when the
favorable evidence material to either guilt or punishment is
either permanently lost or not disclosed before the end of
trial. 38 The U.S. Supreme Court has held the rule that state
suppression of favorable material evidence violates due proc­
ess encompasses evidence known only to police investigators
34
State v. Lovvorn, supra note 14; State v. Smith, 286 Neb. 856, 839 N.W.2d
333 (2013).
35
California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 81 L. Ed. 2d
413 (1984) (internal quotation marks omitted).
36
Id.37
Id.38
See id. See, also, e.g., State v. Clifton, 296 Neb. 135, 892 N.W.2d 112(2017).
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Cite as 310 Neb. 81and not to the prosecutor. 39 In other words, police conduct
resulting in suppression of favorable material evidence is
imputed to the prosecution.
[18,19] But we have repeatedly held there is no due proc­
ess violation when the defendant has had an opportunity to
request a continuance to adequately prepare the defense in light
of evidence that, while disclosed late, is ultimately disclosed
before the end of trial. 40 Further, we have rejected the idea that
due process protects against delays in bringing the accused
to trial after arrest or indictment, as opposed to prearrest or
indictment delay. 41 This is because “[t]he Fifth Amendment
has only a ‘limited role to play in protecting against oppressive
delay’ in the criminal context.” 42
We similarly reject the notion, proposed by Short, that late
disclosure of evidence resulting in a continuance at the behest
of the defendant violates due process because it delays bring-
ing the accused to trial after arrest or indictment. The Fifth
Amendment right to access to evidence in such circumstances
is adequately protected by the trial court’s discretion, as set
forth in § 29-1919, to issue discovery sanctions.
(c) Discovery Sanctions
[20] Discovery in a criminal case is generally controlled by
either a statute or a court rule. 43 Trial courts have broad discre-
tion with respect to sanctions involving discovery procedures,
and their rulings thereon will not be reversed in the absence of
an abuse of discretion. 44 Section 29-1919 states:
39
See, Strickler v. Greene, 527 U.S. 263, 119 S. Ct. 1936, 144 L. Ed. 2d 286(1999); Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490(1995).
40
See, e.g., State v. Clifton, supra note 38.
41
See, State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016); State v. Hettle,
supra note 11.
42
State v. Hettle, supra note 11, 288 Neb. at 304, 848 N.W.2d at 596.
43
State v. Hatfield, supra note 4.
44
State v. Case, supra note 4; State v. Hatfield, supra note 4.
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Cite as 310 Neb. 81If, at any time during the course of the proceedings it is
brought to the attention of the court that a party has failed
to comply with . . . sections 29-1912 to 29-1921 or an
order issued pursuant to . . . sections 29-1912 to 29-1921,
the court may:
(1) Order such party to permit the discovery or inspec-
tion of materials not previously disclosed;
(2) Grant a continuance;
(3) Prohibit the party from calling a witness not dis-
closed or introducing in evidence the material not dis-
closed; or
(4) Enter such other order as it deems just under the
circumstances.
[21] When a court sanctions the government in a criminal
case for its failure to obey court orders, it must use the least
severe sanction that will adequately punish the government
and secure future compliance. 45 This court has a preference
for a continuance in such situations and has previously held
in discovery disputes that where a continuance can cure any
prejudice by a failure to disclose, it is that remedy that should
be utilized. 46 The continuance is seen as the vehicle that com-
monly will eliminate the prejudice of surprise by placing the
defense in a position similar to that in which it would have
stood if timely disclosure had been made. 47
[22] Dismissal is the most severe sanction and is only appro-
priate in the most extreme circumstances involving bad faith
or violations that result in irremediable harm that prevents the
possibility of a fair trial. 48 Dismissal as a sanction for a discov-
ery violation is only appropriate where less drastic alternatives
are not available. 49
45
U.S. v. DeCoteau, 186 F.3d 1008 (8th Cir. 1999).
46
State v. Hatfield, supra note 4.
47
5 Wayne R. LaFave et al., Criminal Procedure § 20.6 (4th ed. 2015).
48
See, 22A C.J.S. Criminal Procedure and Rights of Accused § 468 (2016);
Annot., 10 A.L.R.7th Art. 6 (2016).
49
See id.
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Cite as 310 Neb. 81In its order denying Short’s motion, the district court deter-
mined the late disclosures were not intentional or in bad faith
by either OPD or the prosecution. This factual finding was not
clearly erroneous. The district court also found the prejudice
to Short would be removed when, once provided the discovery
information, Short were afforded an adequate opportunity to
make use of the information and material in the preparation
of his defense. Based on that, the court stated that if Short
requested a continuance, the court would grant it. It declined
to impose the extreme sanction of dismissal. Short never
requested a continuance after the court’s ruling.
[23] An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. 50 We have already determined that Short’s right
to a speedy trial was not violated through the late disclosures
of discovery materials. We are, as was the court below, deeply
concerned with the level of neglect that resulted in the late dis-
closures in this case. But the court did not clearly err in find-
ing it was not the result of intentional or reckless conduct, and
the record reflects that OPD had taken disciplinary measures
to remedy the situation. We find no abuse of discretion in the
district court’s determination that a continuance, if requested,
was the least severe sanction that would adequately punish the
government and secure future compliance, and certainly, it did
not abuse its discretion in refusing to impose the most severe
sanction of dismissal.
2. Fruits of Search of Short’s Residence
Short’s remaining assignments of error pertain to his objec-
tions to the admission of evidence as fruits of various Fourth
Amendment violations. The Fourth Amendment itself explicitly
sets out the requirements of a warrant: “[N]o Warrants shall
issue, but upon probable cause, supported by Oath or affir-
mation, and particularly describing the place to be searched,
50
State v. Wheeler, 308 Neb. 708, 956 N.W.2d 708 (2021).
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Cite as 310 Neb. 81and the persons or things to be seized.” Short’s first assertion
in this regard is the court erred in admitting the fruits of the
search of his residence, which consisted of two handguns,
items of clothing, and venue items connecting Short to the LG
smart phone.
[24,25] To determine whether a warrant was issued upon
probable cause, a court generally limits its review to the four
corners of the affidavit. 51 An exception to that limitation is
where the defendant makes a preliminary proffer of falsity
warranting an evidentiary hearing. 52 Short does not contest
that, as written, the four corners of the affidavit supporting
the warrant to search his residence establish probable cause.
Instead, Short argues that the warrant for the search of his resi-
dence was invalid, because its supporting affidavit contained
material falsities and omissions, and that the district court
erred, upon the evidentiary hearing held below, in conclud-
ing differently.
[26] In Franks v. Delaware, 53 the U.S. Supreme Court
explained, “‘[W]hen the Fourth Amendment demands a factual
showing sufficient to comprise “probable cause,” the obvious
assumption is that there will be a truthful showing.’” The Court
clarified this “does not mean ‘truthful’ in the sense that every
fact recited in the warrant affidavit is necessarily correct.” 54
Rather, it recognized probable cause may be founded upon
hearsay as well as “upon information within the affiant’s own
knowledge that sometimes must be garnered hastily.” 55 It con-
cluded that “surely it is to be ‘truthful’ in the sense that the
information put forth is believed or appropriately accepted by
the affiant as true.” 56
51
See Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667(1978).
52
See id.53
Id., 438 U.S. at 164-65.
54
Id., 438 U.S. at 165.
55
Id.56
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Cite as 310 Neb. 81[27] In contrast, it would be “unthinkable” to allow a war-
rant to stand beyond impeachment if it were revealed after the
fact to contain a “deliberately or reckless false statement.” 57
Thus, while there is a presumption of validity with respect to
the affidavit supporting the search warrant, that presumption
may be overcome and a search warrant may be invalidated if
the defendant proves the affiant officer “‘knowingly and inten-
tionally, or with reckless disregard for the truth,’” included in
the affidavit false or misleading statements that were necessary,
or “material,” to establishing probable cause. 58
[28] Courts have extended the Franks rationale to omissions
in warrant affidavits of material information. 59 Omissions in
an affidavit used to obtain a search warrant are considered to
be misleading when the facts contained in the omitted material
tend to weaken or damage the inferences which can logically
be drawn from the facts as stated in the affidavit. 60
[29] If the defendant successfully proves, by a preponder-
ance of the evidence, 61 that the police knowingly and inten-
tionally, or with reckless disregard for the truth, included a
false or misleading statement or omitted information material
to a probable cause finding, then the court examines whether
the evidence obtained from the warrant and search was
fruit of the poisonous tree. 62 In an “‘excise and ­re-examine’
corollary to the independent source rule,” 63 the trial court
57
Id.58
See State v. Schuller, 287 Neb. 500, 507, 843 N.W.2d 626, 632 (2014)
(quoting Franks v. Delaware, supra note 51).
59
State v. Schuller, supra note 58.
60
State v. Spidel, 10 Neb. App. 605, 634 N.W.2d 825 (2001) (citing State v.
Utterback, 240 Neb. 981, 485 N.W.2d 760 (1992)).
61
See, Franks v. Delaware, supra note 51. See, also, U.S. v. Davis, supra
note 2.
62
See, Franks v. Delaware, supra note 51; Wong Sun v. United States, 371
U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); State v. Schuller, supra
note 58.
63
State v. McKinney, 361 N.C. 53, 59, 637 S.E.2d 868, 872 (2006).
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Cite as 310 Neb. 81r­ eexamines the affidavit after deleting the false or misleading
statement and including the omitted information, and it deter-
mines whether, viewed under the totality of the circumstances,
it still establishes probable cause. 64 If it does not, then Franks
requires that the search warrant be voided and the fruits of the
search excluded. 65
[30] Mere negligence in preparing the affidavit will not
lead to suppression, as the purpose of the exclusionary rule
is to deter misconduct. 66 We review the trial court’s findings
as to whether the affidavit supporting the warrant contained
falsehoods or omissions and whether those were made inten-
tionally or with reckless disregard for the truth for clear
error. 67 We review de novo the determination that any alleged
falsehoods or omissions were not necessary to the probable
cause finding. 68
In considering whether the district court erred in overruling
Short’s objection to the evidence derived from the search of his
residence, we will consider only what has been both specifi-
cally assigned and specifically argued. 69 We do not consider on
appeal every aspect of the affidavit challenged below simply
because Short reiterated those as a factual background in the
argument section of his brief.
Looking at what is specifically argued on appeal to be mate-
rial untruths, Short first points to the statement in the affidavit
that Short’s fingerprint was found on a glove near the scene
64
See State v. Schuller, supra note 58. See, also, Franks v. Delaware, supra
note 51; U.S. v. Eng, 571 F. Supp. 2d 239 (D. Mass. 2008); Redding v.
State, 192 Ga. App. 87, 383 S.E.2d 640 (1989); State v. Olson, 11 Kan.
App. 2d 485, 726 P.2d 1347 (1986); State v. Cuong Phu Le, 463 S.W.3d
872 (Tex. Crim. App. 2015).
65
State v. Schuller, supra note 58.
66
See State v. Bromm, 285 Neb. 193, 826 N.W.2d 270 (2013).
67
See, U.S. v. Mandell, supra note 6; U.S. v. Elkins, supra note 6; U.S. v.
Dozier, supra note 6; U.S. v. Garcia-Zambrano, supra note 6.
68
See, e.g., U.S. v. Mandell, supra note 6.
69
See, e.g., State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
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Cite as 310 Neb. 81of the crime, when in fact it had been found on a pricetag.
Second, Short points to the statement in the affidavit that Short
was located at 4268 Binney Street, when Short was actually
located walking toward 4268 Binney Street, inside the crime
scene perimeter tape, three or four houses away.
Third, Short points to the statement that “witnesses stated
after the shooting two [B]lack males were seen running through
yards and got into a white Chevy Monte Carlo.” He asserts this
falsely indicated eyewitnesses to the shooting also observed
the same suspects get into the Monte Carlo when, instead,
the assertion in the affidavit was a compilation by Culler of
the observations made by multiple witnesses, none of whom
both saw the shooting and saw the suspects get into the Monte
Carlo. Short asserts the record establishes that no eyewitness
to the shooting was aware of the existence of the white Chevy
Monte Carlo and that only one witness, unaware at that time a
shooting had taken place, observed two males enter the white
Monte Carlo.
The only omission argued on appeal is that Finley was
unable to identify Short as the suspect when shown a photo-
graphic spread.
The district court found that the misstatements and omis-
sions were not made intentionally, in bad faith, or in reckless
disregard for the truth and, further, that the misstatements
and omissions were not material to the finding of sufficient
probable cause. We hold the district court did not clearly
err in finding that the misstatements and omissions were not
made intentionally, in bad faith, or in reckless disregard for
the truth.
Short points out that Hinsley’s and Culler’s testimonies
were in conflict with each other. Hinsley testified that Culler
may have misspoken when she relayed to him that the finger-
print was on a glove. Culler, in contrast, testified that she was
clear in her conversation with Hinsley the fingerprint was on
a pricetag and that Hinsley made an innocent mistake in the
affidavit. But it does not follow from Hinsley’s and Culler’s
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Cite as 310 Neb. 81differing recollections as to which of them was the original
source of the misstatement that the district court clearly erred
in determining the misstatement was unintentional and was
made in good faith with due care.
[31] Other than noting Culler’s inexperience in the homi-
cide unit and an internal affairs investigation into Hinsley’s
professional misconduct in an unrelated situation, Short does
not present additional illustration of how he proved by a pre-
ponderance of the evidence the alleged false statements and
omissions were made knowingly and intentionally or with
reckless disregard for the truth. There was no evidence that the
statement regarding where exactly Short was found or what
item his fingerprint was found on was anything other than
inadvertent. With regard to the omission of the photographic
spread, Finley had told Hinsley there may have been two indi-
viduals. Thus, Hinsley may have overlooked the materiality of
the failure to identify Short, when Finley saw only one of the
shooters. Regarding the statement about witnesses seeing two
Black males running toward a white Chevy Monte Carlo after
the shooting, this court has held that observations by fellow
officers engaged in a common investigation are a reliable basis
for a warrant and that 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. 70
Because the district court did not clearly err in finding the
alleged falsehoods or omissions were not made knowingly and
intentionally or with a reckless disregard for the truth, we need
not review the district court’s reexamination of the affidavit
after deleting the false or misleading statement and including
the omitted information. We find no merit to Short’s assertion
that the district court erred in refusing to suppress the evidence
derived from the search of his residence.
70
State v. Stickelman, 207 Neb. 429, 299 N.W.2d 520 (1980).
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Cite as 310 Neb. 813. Fruits of Search of Short’s Cell Phones,
Call Records, and Location Information
Short’s other Fourth Amendment arguments concern the
admission of evidence derived from the search of Short’s cell
phones, call records, and cell phone location information. He
argues the contents within the four corners of the affidavits for
the relevant search warrants failed to establish probable cause.
He also asserts the warrants themselves lacked particularity.
And, with respect to the search of the cell phones, Short argues
they were seized in violation of the Fourth Amendment.
(a) Affidavits Supporting Probable Cause
We first examine the sufficiency of the affidavits challenged
on appeal. Short asserts the affidavit for the search of his cell
phones and the affidavit in support of the 2018 search warrant
for his LG smart phone’s call records and cell site location
information both lack a nexus between the crimes under inves-
tigation and the items to be searched. And Short claims the
affidavits are so facially inadequate that the good faith excep-
tion to the exclusionary rule does not apply.
[32,33] Probable cause sufficient to justify issuance of a
search warrant means a fair probability that contraband or evi-
dence of a crime will be found in the item to be searched. 71 The
Fourth Amendment’s express requirement of particularity for a
search warrant is closely related to its express requirement of
probable cause. 72 Thus, the U.S. Supreme Court has explained
the critical element in a reasonable search of property is not
that the owner of property is suspected of crime, but, rather,
that there is reasonable cause to believe the specific things to
be searched for and seized are located on the property to which
entry is sought. 73
71
State v. Said, 306 Neb. 314, 945 N.W.2d 152 (2020).
72
See State v. Sprunger, supra note 10.
73
Zurcher v. Stanford Daily, 436 U.S. 547, 98 S. Ct. 1970, 56 L. Ed. 2d 525(1978).
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Cite as 310 Neb. 81[34,35] A warrant affidavit must always set forth particular
facts and circumstances underlying the existence of probable
cause, so as to allow the magistrate to make an independent
evaluation of probable cause. 74 The nexus between the alleged
crimes and the article to be searched, however, does not need
to be based on direct observation; it can be found in the type of
crime, the nature of the evidence sought, and the normal infer-
ences as to where such evidence may be found. 75
[36,37] Probable cause may be based on “common-sense
conclusions about human behavior,” 76 and due weight should be
given to inferences by law enforcement officers based on their
experience and specialized training. 77 But wholly conclusory
statements by a law enforcement officer affiant that the affiant
has reliable information and reason to believe evidence of a
crime will be found in a particular place are insufficient. 78
[38,39] “Probable cause” is a term of art in Fourth
Amendment jurisprudence that is defined as a “practical, non-
technical conception that deals with the factual and practical
considerations of everyday life on which reasonable and pru-
dent [persons] not legal technicians, act.” 79 The fundamental
question in a challenge to an affidavit for lack of probable
cause 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. 80
74
See Franks v. Delaware, supra note 51.
75
See Commonwealth v. Snow, 486 Mass. 582, 160 N.E.3d 277 (2021).
76
Illinois v. Gates, supra note 8, 462 U.S. at 231 (internal quotation marks
omitted).
77
See United States v. Arvizu, 534 U.S. 266, 122 S. Ct. 744, 151 L. Ed. 2d
740 (2002).
78
See Illinois v. Gates, supra note 8.
79
Maryland v. Pringle, 540 U.S. 366, 370, 124 S. Ct. 795, 157 L. Ed. 2d 769(2003) (internal quotation marks omitted).
80
State v. Said, supra note 71; State v. Hernandez, 268 Neb. 934, 689
N.W.2d 579 (2004).
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Cite as 310 Neb. 81[40-42] The magistrate who is evaluating the probable
cause question must make a practical, commonsense decision
whether, given the totality of the circumstances set forth in the
affidavit, including the veracity of and basis of knowledge of
the persons supplying hearsay information, there is a fair prob-
ability that contraband or evidence of a crime will be found in
a particular place. 81 Ultimately, where the circumstances are
detailed, where reasons for crediting the source of information
is given, and where the magistrate has found probable cause to
exist, the court should not invalidate the affidavit in a hyper-
technical manner. 82 Reasonable minds frequently may differ on
the question whether a particular affidavit establishes probable
cause, 83 and after-the-fact scrutiny by courts of the sufficiency
of an affidavit should not take the form of de novo review. 84
Instead, a judge’s determination of probable cause to issue
a search warrant should be paid great deference by review-
ing courts. 85
With respect to the affidavit in support of the search of his
phones, Short generally asserts it was a “bare bones” affidavit
that gave the magistrate virtually no basis for making an inde-
pendent judgment regarding probable cause. 86 Short’s more
specific argument, though, is that the only information in the
affidavit pertaining to the required nexus between the crimes
and the information contained on the phones is that Short was a
suspect and that in the officer’s experience, it is not uncommon
for those suspected of criminal activity to have evidence of that
crime on their cell phones.
81
State v. Hernandez, supra note 80.
82
See State v. Stickelman, supra note 70.
83
United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677(1984).
84
State v. Detweiler, supra note 8.
85
See id.86
See brief for appellant at 53.
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Cite as 310 Neb. 81Short’s arguments with respect to the 2018 affidavit in sup-
port of the search of Short’s call records and cell site loca-
tion information are similar. Short claims the 2018 affidavit
“simply contains boilerplate assertions of generic ‘criminals’
conduct’” without “any information specific as to why there
is probable cause to believe that [the call records and cell site
location information] will contain evidence of the crime under
investigation.” 87
In State v. Said, 88 we held the affidavit supporting the
search warrant for the contents of a cell phone was sufficient
to establish probable cause when, in addition to statements set-
ting forth the officer’s general knowledge of how cell phones
may be used by a person who has committed a crime and that
evidence of the crime may generally be found on a suspect’s
cell phone, the affidavit set forth specific information derived
from the investigation indicating the suspect’s involvement
in the crime, as well as allegations that the suspect had com-
municated with others and sought information regarding that
crime. We explained the judge could infer from this informa-
tion the suspect likely used his cell phone to search the inter-
net for information and in communicating with others about
the crime.
[43,44] We did not elaborate in Said upon general principles
applicable to affidavits for searches of cell phone informa-
tion or describe what other hypothetical facts would or would
not support probable cause to search a cell phone or cell
phone information. But several other courts have addressed
the issue. We agree with these courts that law enforcement
cannot only “rely on the general ubiquitous presence of cel-
lular telephones in daily life, or an inference that friends or
associates most often communicate by cellular telephone, as
a substitute for particularized information to support probable
87
Id. at 76.
88
State v. Said, supra note 71.
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Cite as 310 Neb. 81cause that a specific device contains evidence of a crime.” 89 To
support probable cause, statements based on law enforcement
expertise and experience must be accompanied by particular
facts and circumstances such that, under the totality of the cir-
cumstances, including commonsense conclusions about human
behavior, there is a substantial basis for concluding evidence
of a crime will be found on the phone or phone informa-
tion searched.
[45,46] What will constitute sufficient particularized infor-
mation to support probable cause that a cell phone or cell
phone information searched will contain evidence of a crime
depends upon the nature and circumstances of the crime and
what is sought in the warrant. For example, to search the con-
tents of cell phones in relation to a crime involving an accom-
plice, courts have found affidavits provide sufficient support
for probable cause when they contain averments showing the
suspect was working with at least one other person when the
crime was committed; was in possession of a cell phone near
the time of the crime; and a law officer, based on experience
and specialized training, believed the search likely to yield
evidence of communications and coordination among these
multiple participants. 90 To search cell site location information,
in contrast, courts have found the necessary nexus where there
were facts in the affidavit showing the suspect probably com-
mitted a crime, the nature of which makes location informa-
tion possibly incriminating, and the suspect was known to own
or use the particular phone. 91 It can be generally recognized
89
Commonwealth v. Morin, 478 Mass. 415, 426, 85 N.E.3d 949, 960 (2017).
90
See, U.S. v. Lavallis, 515 F. Supp. 3d 686 (E.D. Mich. 2021); U.S. v.
Gholston, 993 F. Supp. 2d 704 (E.D. Mich. 2014); Johnson v. State, 2015
Ark. 387, 472 S.W.3d 486 (2015). See, also, U.S. v. Barret, 824 F. Supp.
2d 419 (E.D.N.Y. 2011).
91
See Commonwealth v. Hobbs, 482 Mass. 538, 125 N.E.3d 59 (2019). See,
also, United States v. Hunt, 718 Fed. Appx. 328 (6th Cir. 2017); U.S. v.
Gibbs, 547 Fed. Appx. 174 (4th Cir. 2013).
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Cite as 310 Neb. 81that cell phones tend to accompany their users everywhere,
and thus, it may be inferred that a suspect’s cell phone prob-
ably accompanied the suspect at the time of the crime. 92
[47] Neither affidavit at issue in this appeal contains merely
conclusory statements. Both lengthy affidavits, described in
detail in the background section above, were far from “bare
bones.” A warrant may be considered so lacking in indicia of
probable cause if the applicant files merely a bare bones affi-
davit, one which contains only wholly conclusory statements
and presents essentially no evidence outside of such conclu-
sory statements. 93
The affidavits set forth numerous specific facts derived from
the investigation supporting the probability that Short was
involved in the homicides. The question is whether the specific
averments provided a substantial basis for the likelihood that
searching the cell phones, call records, and cell site location
information would produce evidence of the specific crimi-
nal activity described. However, the district court found that
regardless of whether the information within the four corners
of the affidavits contained sufficient particularized information
to support probable cause that the information authorized by
the warrants to be searched would contain evidence of a crime,
the officers acted in good faith in carrying out the warrants. We
agree the good faith exception applies.
[48,49] Application of the good faith exception to the exclu-
sionary rule is a question of law. 94 The U.S. Supreme Court has
explained that to trigger the exclusionary rule, police conduct
must be sufficiently deliberate that exclusion can meaningfully
deter such conduct and sufficiently culpable that such deter-
rence is worth the price paid by the justice system, as exclu-
sion serves to deter deliberate, reckless, or grossly negligent
92
See id.93
Stevenson v. State, 455 Md. 709, 168 A.3d 967 (2017).
94
State v. Sprunger, supra note 10.
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Cite as 310 Neb. 81conduct, or in some circumstances recurring or systemic negli-
gence. 95 The good faith exception is applicable to an affidavit
that fails to satisfy the substantial basis test to support probable
cause, when police officers act in objectively reasonable good
faith in reliance upon the warrant. 96
The good faith inquiry is confined to the objectively ascer-
tainable question of whether a reasonably well-trained officer
would have known that the search was illegal despite a mag-
istrate’s authorization. 97 In assessing the good faith of an offi-
cer’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. 98 When evaluating
whether the warrant was based on an affidavit so lacking in
indicia of probable cause as to render official belief in its exis-
tence entirely unreasonable, an appellate court should address
whether the officer, considered as a police officer with a rea-
sonable knowledge of what the law prohibits, acted in objec-
tively reasonable good faith in relying on the warrant. 99 It has
also been said:
If the reviewing court is “able to identify in the averring
officer’s affidavit some connection, regardless of how
remote it may have been”—“some modicum of evidence,
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.” 100
95
Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496(2009).
96
See State v. Sprunger, supra note 10.
97
Id.
98
Id.
99
See, United States v. Leon, supra note 83; State v. Sprunger, supra note 10;
State v. Nuss, 279 Neb. 648, 781 N.W.2d 60 (2010); State v. Edmonson,
257 Neb. 468, 598 N.W.2d 450 (1999).
100
U.S. v. White, 874 F.3d 490, 497 (6th Cir. 2017).
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Cite as 310 Neb. 81The affidavits contained a modicum of evidence between
the criminal activity at issue and the places to be searched, and
the knowledge of law enforcement outside the four corners of
the affidavits provided a sufficient basis for the likelihood that
evidence of the criminal activity would be found in the particu-
lar places searched. The law in Nebraska and elsewhere con-
cerning the minimum allegations to support a search of a cell
phone, call records, or location information is fact specific, and
we have not addressed similar affidavits. Accordingly, while
we assume law enforcement has reasonable knowledge of the
law, the law was not sufficiently clear with respect to the affi-
davits at issue for us to conclude law enforcement was entirely
unreasonable in its belief they were sufficient.
Assuming without deciding the warrants to search Short’s
cell phones, call records, and cell site location information
were not supported by a substantial basis for their issuance,
we find the police relied in good faith upon the warrants when
executing the searches. Accordingly, the district court did not
err in overruling Short’s objections based on alleged deficien-
cies in the warrants’ supporting affidavits.
(b) Particularity of Warrants
[50,51] We next examine the particularity of the two warrants.
In addition to the requirement of probable cause, the Fourth
Amendment and article I, § 7, of the Nebraska Constitution
contain a particularity requirement that a warrant describe the
place to be searched and the persons or things to be seized.
“It is familiar history that indiscriminate searches and seizures
conducted under the authority of ‘general warrants’ were the
immediate evils that motivated the framing and adoption of the
Fourth Amendment.” 101 A purpose of the particularity require-
ment for a search warrant is to prevent the issuance of warrants
on loose, vague, or doubtful bases of fact. 102 The particularity
101
Payton v. New York, 445 U.S. 573, 583, 100 S. Ct. 1371, 63 L. Ed. 2d 639(1980).
102
State v. Said, supra note 71.
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Cite as 310 Neb. 81requirement of the Fourth Amendment protects against open-
ended warrants that leave the scope of the search to the discre-
tion of the officer executing the warrant or permits seizure of
items other than what is described. 103 Simply put, the Fourth
Amendment prohibits “fishing expeditions.” 104
[52-55] To satisfy the particularity requirement of the Fourth
Amendment, a warrant must be sufficiently definite to enable
the searching officer to identify the property authorized to
be seized. 105 The degree of specificity required in a warrant
depends on the circumstances of the case and on the type of
items involved. 106 A search warrant may be sufficiently particu-
lar even though it describes the items to be seized in broad or
generic terms, if the description is as particular as the support-
ing evidence will allow; but the broader the scope of a warrant,
the stronger the evidentiary showing must be to establish prob-
able cause. 107 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. 108
Short argues the warrants to search the contents of his physi-
cal cell phones, call data, and cell site location information
simply eliminated the “‘any and all’” language we previously
held to be overly broad and replaced it with “a laundry list
of everything possibly contained in a cell phone.” 109 Further,
Short takes particular exception to the sentence in the warrant
for the physical cell phones authorizing law enforcement to
“examine every file and scan its contents briefly to determine
whether it falls within the scope of the warrant,” which he
103
State v. Jennings, 305 Neb. 809, 942 N.W.2d 753 (2020).
104
State v. Sprunger, supra note 10.
105
State v. Said, supra note 71.
106
Id.107
Id.108
Id.109
Brief for appellant at 66 (citing State v. Henderson, 289 Neb. 271, 854
N.W.2d 616 (2014)).
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Cite as 310 Neb. 81asserts authorized law enforcement to “‘rummage around’” to
see what they might find. 110
Other courts have rejected the argument that an authoriza-
tion in a warrant to “examine every file and scan its contents
briefly to determine whether it falls within the scope of the
warrant,” or similar language, violates the particularity clause
of the Fourth Amendment. 111 Courts reason that scanning all
digital information related to a cell phone is like searching
everywhere in a house for evidence of drugs or searching
every document in a filing cabinet when the incriminating
evidence may be found in any file or folder. Neither search
is overbroad, because “[c]riminals don’t advertise where they
keep evidence.” 112 A cell phone serves the same function as a
filing cabinet, and there is no way for law enforcement to know
in advance how a suspect may label or code files that contain
evidence of criminal activity. 113
The U.S. Supreme Court in Riley v. California, 114 in hold-
ing a warrant is required to search data stored in cell phones
seized incident to arrest, recognized “a cell phone search would
typically expose to the government far more than the most
exhaustive search of a house.” The Court did not thereby sug-
gest that such an extensive search would be impermissible with
a warrant.
[56,57] Officers cannot predict where evidence of a crime
will be located in a cell phone or call records or in what
110
Brief for appellant at 67.
111
See, State v. Johnson, 576 S.W.3d 205 (Mo. App. 2019); State v. Swing,
2017 Ohio 8039, 98 N.E.3d 828 (2017); State v. Savath, 298 Or. App. 495,
447 P.3d 1 (2019). See, also, e.g., U.S. v. Stabile, 633 F.3d 219 (3rd Cir.
2011); Com v. McDermott, 448 Mass. 750, 864 N.E.2d 471 (2007).
112
U.S. v. Bishop, 910 F.3d 335, 336 (7th Cir. 2018). See, also, Andresen v.
Maryland, 427 U.S. 463, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976); State v.
Johnson, supra note 111.
113
See id.114
Riley v. California, 573 U.S. 373, 396, 134 S. Ct. 2473, 189 L. Ed. 2d 430(2014).
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Cite as 310 Neb. 81format, such as texts, videos, photographs, emails, or applica-
tions. 115 There is no way for law enforcement to know where in
the digital information associated with cell phones it will find
evidence of the specified crime. 116 Sophisticated users can hide
digital data in complex ways. 117
[58,59] Thus, courts refuse to require ex ante limitations
based on file or data type or specific application. 118 In an elec-
tronic search, law enforcement will likely need to examine, at
least briefly, information or data beyond that identified in the
warrant. 119 The most important constraint in preventing uncon-
stitutional exploratory rummaging is that the warrant limit
the search to evidence of a specific crime, ordinarily within a
specific time period, rather than allowing a fishing expedition
for all criminal activity. 120 We agree that a brief examination
of all electronic data associated with a cell phone is usually
necessary in order to find where the information to be seized is
located, and such examination is reasonable under the Fourth
Amendment. We accordingly hold that the breadth of electronic
information that the warrants here authorized law enforcement
to sift through did not render them unconstitutional under the
particularity clause of the Fourth Amendment.
Regarding the extensiveness of the list of items to be
searched for and seized, while sifting through the extensive
data, this court in State v. Goynes 121 has already found suffi-
ciently particular a warrant allowing a search for and seizure
115
See State v. Johnson, supra note 111.
116
See id.117
State v. Mansor, 363 Or. 185, 421 P.3d 323 (2018).
118
See id.119
State v. Savath, supra note 111.
120
See, e.g., U.S. v. Castro, 881 F.3d 961 (6th Cir. 2018); U.S. v. Bass, 785
F.3d 1043 (6th Cir. 2015); U.S. v. Bishop, supra note 112; State v. Johnson,
supra note 111; People v. English, 52 Misc. 3d 318, 32 N.Y.S.3d 837(2016). See, also, Wheeler v. State, 135 A.3d 282 (Del. 2016).
121
State v. Goynes, 303 Neb. 129, 927 N.W.2d 346 (2019).
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Cite as 310 Neb. 81of a list of data types almost identical to the most extensive of
the two warrants here at issue—when, like here, the search was
constrained to evidence of the specific crime. The items listed
in the warrant in Goynes included all of the following:
cell phone information, configurations, calendar events,
notes, and user account information which could identify
who owns or was using a cell phone; call logs which
could establish familiarity between people involved and
timelines of an incident; short and multimedia messaging
service messages, chat and instant messages, and emails
which could provide insight to establish an individ­
ual’s level of culpability and knowledge of the incident;
installed application data which could aid in determining
a user’s historical geographic location and demonstrate
the user’s association with investigated people, location,
and events; media files such as images, videos, audio, and
documents which could provide times and locations, as
well as firsthand documentation of the incident; internet
browsing history which could demonstrate the planning,
desire, and participation in a crime; cell tower connec-
tions, global positioning system data, Wi-Fi, Bluetooth,
and synchronization logs which could provide informa-
tion on location in relation to the incident; and user dic-
tionary information which could demonstrate familiarity
with the crime being investigated. 122
We rejected the argument that because the extensive list
encompassed practically the entirety of the data contained
within cell phones, it was no different than a warrant autho-
rizing the search of “any and all” information stored on a
cell phone. 123
We explained in Goynes that the warrants in Henderson
violated the requirements of particularity because, in addition
to listed types of cell phone data to search, they authorized
122
Id. at 142-43, 927 N.W.2d at 356.
123
Id. at 143, 927 N.W.2d at 356 (internal quotation marks omitted).
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Cite as 310 Neb. 81a broad search of “any other information that can be gained
from the internal components and/or memory Cards” and failed
to refer to a specific crime being investigated. 124 We clarified
in Goynes that “Henderson does not stand for the rule that a
search of a cell phone cannot be expansive.” 125
We held that the list in the affidavit at issue in Goynes,
while expansive, was not insufficiently particular and did not
violate the Fourth Amendment. This was because the warrant
described the crime, listed the specific areas to be searched,
and did not contain unqualified language that would permit the
search of the cell phone for “any other information.” 126
Neither warrant at issue here contained the catchall phrase
we found unconstitutional in Henderson. The 2018 warrant
for the call records and cell site location information speci-
fied the crime of homicide and a limited time period of July
8 to August 10, 2015. The warrant to search the physical cell
phones limited the search to evidence relating to the homicide
of Johnson. While both warrants might be viewed as exten-
sive, they did not lack in particularity. The authorization to
“examine every file and scan its contents briefly to determine
whether it falls within the scope of the warrant” does not
negate that particularity. The district court did not err in deter-
mining the warrants satisfied the particularity requirements of
the Fourth Amendment.
(c) Pat-Down Search and
Seizure of Cell Phones
Lastly, we find no merit to Short’s argument that the searches
of his phones are tainted by their alleged illegal seizure. The
phone number information was independently found in the
124
See id. at 143-44, 927 N.W.2d at 356 (quoting State v. Henderson, supra
note 109).
125
State v. Goynes, supra note 121, 303 Neb. at 143, 927 N.W.2d at 356
(internal quotation marks omitted).
126
See id. (internal quotation marks omitted).
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Cite as 310 Neb. 81search of Short’s residence, which we have already found
did not violate the Fourth Amendment, and Short stipulated
at trial that the LG smart phone number belonged to him for
the dates in question. Thus, the only fruits of the seizure of
the phones was the evidence, not also found in the search of
data for the phone numbers, derived from the search of the
physical phones. Such evidence was minimal and consisted
of contacts between Short and Pope, contacts between Short
and Harlan, and indications that Short’s phone either searched
for and accessed or was sent and downloaded news reports on
the homicides from a television station’s website. Regardless,
in our de novo review, we conclude the warrantless seizure
of Short’s cell phones while he sat in the police cruiser was
not unlawful.
[60,61] Warrantless searches and seizures are per se unrea-
sonable under the Fourth Amendment, subject only to a few
specifically established and well-delineated exceptions, which
must be strictly confined by their justifications. 127 These
exceptions include searches incident to a valid arrest. 128 In
United States v. Robinson, 129 the U.S. Supreme Court held
that in the case of a lawful custodial arrest, a full search of
a person is not only an exception to the Fourth Amendment’s
warrant requirement, but is also a reasonable search under that
amendment. 130
[62,63] Further, it has been held that a search incident to an
arrest can be made before an arrest as long as probable cause
for the arrest exists before the search. 131 It does not matter that
a defendant is not formally placed under arrest until after a
127
State v. Voichahoske, 271 Neb. 64, 709 N.W.2d 659 (2006).
128
See id.129
United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427(1973).
130
See State v. Hayes, 3 Neb. App. 919, 535 N.W.2d 715 (1995).
131
See State v. Twohig, 238 Neb. 92, 469 N.W.2d 344 (1991).
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Cite as 310 Neb. 81search, so long as the fruits of the search are not necessary to
support probable cause to arrest. 132
[64,65] Probable cause to support a warrantless arrest exists
only if law enforcement has knowledge at the time of the
arrest, based on information that is reasonably trustworthy
under the circumstances, which would cause a reasonably
cautious person to believe that a suspect has committed or is
committing a crime. 133 And under the collective knowledge
doctrine, the existence of probable cause justifying a warrant-
less arrest is tested by the collective information possessed by
all the officers engaged in a common investigation. 134
At the time Short arrived at his residence, law enforcement
knew Short’s fingerprints had been found on a pricetag near
the Neelon homicide, that witnesses who heard gunshots at
the time of the Johnson homicide saw two Black males get
into a white Chevy Monte Carlo with dealer paper plates, and
that a white Chevy Monte Carlo matching the description with
in-transits and dealer paper plates was found parked in front
of the last known address of Short. Further, the officers testi-
fied at trial that, at the time Short arrived at his residence,
they believed that these homicides were connected based on
the attempted shooting of Johnson in front of the Neelon
residence the day before Neelon was shot and killed at her
home. This information was reasonably trustworthy under the
circumstances and would cause a reasonably cautious person
to believe that these homicides were connected, that Short had
been present at both homicide scenes, and that Short had com-
mitted a crime.
We find as a matter of law there was probable cause to arrest
Short when the phones were seized. As such, we need not
analyze whether the district court was correct that the phones
132
See id.133
State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).
134
State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
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Cite as 310 Neb. 81would inevitably have been discovered even if Short had not
been illegally detained.
Because the phones were seized during a search conducted
incident to a warrantless de facto arrest that was supported
by probable cause, their seizure did not violate the Fourth
Amendment. We affirm the district court’s finding that law
enforcement did not obtain the phones in violation of the
Fourth Amendment. 135
VI. CONCLUSION
Short’s cell phones were not seized during an unlawful
arrest, and the search of his residence was not pursuant to a
warrant supported by an affidavit containing intentional or
reckless falsities or omissions. The warrants supporting the
searches of Short’s physical phones, digital call records, and
cell site location information were sufficiently particular, and
the affidavits supporting the warrants contained sufficient
evidence connecting the criminal activity and the place to
be searched for law enforcement’s reliance thereupon to be
in good faith. Whether from the perspective of the constitu-
tional right to a speedy trial, due process, statutory discovery
rules, or all combined, the district court did not err in denying
Short’s motion to dismiss without prejudice or, in the alterna-
tive, for absolute discharge. For all these reasons, we find
no merit to Short’s assignments of error and affirm the judg-
ment below.
Affirmed.
135
See State v. Jennings, supra note 103.
Miller‑Lerman, J., concurring.
I concur in the result reached by the court, but write sepa-
rately simply to remark on the path followed in our analysis
with respect to the propriety of the search of the cell phone.
In its opinion, this court proceeded to the good faith inquiry
without first having resolved the Fourth Amendment issue. In
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Cite as 310 Neb. 81my view, it would have been advisable to address the merits
of the Fourth Amendment claim before proceeding to the good
faith issue.
The jurisprudence of cell phone searches is evolving.
This case presented an opportunity to resolve certain Fourth
Amendment issues before considering the application of the
good faith exception to the exclusionary rule. In fact, in United
States v. Leon, 468 U.S. 897, 925, 104 S. Ct. 3405, 82 L.
Ed. 2d 677 (1984), the origin case of the good faith rule, the
Supreme Court recognized that “it frequently will be difficult
to determine whether the officers acted reasonably without
resolving the Fourth Amendment issue.” This is because the
Fourth Amendment analysis addresses judicial errors, whereas
the good faith analysis addresses subsequent police errors
when viewed against settled law.
I argue that there are hazards inherent in deciding the good
faith issue without first having resolved the legal issues in the
Fourth Amendment claim. The Supreme Court described this
argument when it stated that “application of the good‑faith
exception to searches conducted pursuant to warrants will
preclude review of the constitutionality of the search or sei-
zure, deny needed guidance from the courts, or freeze Fourth
Amendment law in its present state.” United States v. Leon, 468
U.S. at 924. But the Supreme Court did not adopt an inflexible
practice of requiring a finding that the warrant was inadequate
as a predicate to proceeding to the good faith inquiry.
We generally decide cases on the basis on which they
were resolved in the trial court. In this case, the trial court
addressed the merits of the Fourth Amendment issue and
also considered the good faith exception. So our consider-
ation of the good faith issue was invited. We are not alone in
addressing the good faith issue without deciding the Fourth
Amendment claim. For example, in U.S. v. White, 874 F.3d
490 (6th Cir. 2017), the U.S. Court of Appeals for the Sixth
Circuit recognized that the trial court had ruled on both the
merits of the Fourth Amendment issue and the good faith
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Cite as 310 Neb. 81exception. In so doing, it said, “[w]e therefore proceed to the
good‑faith inquiry, assuming, without deciding, that the affi-
davit failed to establish probable cause.” U.S. v. White, 874
F.3d at 495‑96.
Given the foregoing, I respectfully suggest that, rather than
freezing Fourth Amendment cell phone search Nebraska juris-
prudence in its present state, we address the merits in the
next case.