State v. McGovern

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/22/2022 01:06 AM CDT
- 705 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705State of Nebraska, appellant and
cross-appellee, v. Jake J. McGovern,
appellee and cross-appellant.
___ N.W.2d ___
Filed June 10, 2022. No. S-21-144.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
2. Sentences: Appeal and Error. Whether an appellate court is reviewing
a sentence for its leniency or its excessiveness, a sentence imposed by
a district court that is within the statutorily prescribed limits will not
be disturbed on appeal unless there appears to be an abuse of the trial
court’s discretion.
3. Judgments: Appeal and Error. 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.
4. 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.
5. 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.
- 706 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 7056. Search Warrants: Affidavits: Probable Cause. A search warrant, to
be valid, must be supported by an affidavit which establishes prob-
able cause.
7. Search Warrants: Affidavits: Probable Cause: Appeal and Error.
In reviewing the strength of an affidavit submitted as a basis for find-
ing probable cause to issue a search warrant, an appellate court applies
a totality of the circumstances test. The question is whether, under the
totality of the circumstances illustrated by the affidavit, the issuing mag-
istrate had a substantial basis for finding that the affidavit established
probable cause.
8. 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.
9. Search Warrants: Affidavits: Evidence: Appeal and Error. In eval­
uating the sufficiency of an affidavit used to obtain a search warrant,
an appellate court is restricted to consideration of the information and
circumstances contained within the four corners of the affidavit, and
evidence which emerges after the warrant is issued has no bearing on
whether the warrant was validly issued.
10. 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.
11. 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.
12. 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.
13. Search Warrants: Probable Cause: Appeal and Error. A judge’s
determination of probable cause to issue a search warrant should be paid
great deference by reviewing courts.
14. Constitutional Law: Search and Seizure: 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.
15. Search Warrants. The degree of specificity required in a war-
rant depends on the circumstances of the case and on the type of
items involved.
- 707 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 70516. 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 such examina-
tion is reasonable under the Fourth Amendment.
17. Search Warrants: Affidavits. An inadvertent defect in a search warrant
may be cured by reference to the affidavit used to obtain the warrant if
the affidavit is incorporated in the warrant or referred to in the warrant
and the affidavit accompanies the warrant.
18. 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.
19. Constitutional Law: Search and Seizure: Evidence. The exclusion-
ary rule operates as a judicially created remedy designed to safeguard
Fourth Amendment rights generally through its deterrent effect.
20. Search Warrants: Police Officers and Sheriffs. When a search warrant
has been issued, the applicability of the good faith exception turns on
whether the officers acted in objectively reasonable good faith in reli-
ance on the warrant.
21. Search Warrants: Affidavits: Police Officers and Sheriffs: Appeal
and Error. In assessing the good faith of an officer’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.
22. Motions to Suppress: Search Warrants: Affidavits: Police Officers
and Sheriffs: Evidence. Under the good faith exception to the exclu-
sionary rule, evidence may be suppressed if (1) the magistrate or judge
in issuing a warrant was misled by information in an affidavit that the
affiant knew was false or would have known was false except for his
or her reckless disregard for the truth, (2) the issuing magistrate wholly
abandoned his or her judicial role, (3) the warrant is based on an affi-
davit so lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable, or (4) the warrant is so facially
deficient that the executing officer cannot reasonably presume it to
be valid.
23. Warrantless Searches: Police Officers and Sheriffs. Under the plain
view doctrine, if police officers are lawfully in a position from which
they view an object, if its incriminating character is immediately appar-
ent, and if the officers have a lawful right of access to the object, they
may seize it without a warrant.
24. Constitutional Law: Search and Seizure. The ultimate touchstone of
the Fourth Amendment is reasonableness.
- 708 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 70525. Evidence. Under the independent source doctrine, challenged evidence
is admissible if it came from a lawful source independent of the ille-
gal conduct.
26. Sentences: Statutes: Appeal and Error. In reviewing whether a sen-
tencing court abused its discretion in imposing a sentence that was
excessively lenient, an appellate court is guided by the factors set forth
by Neb. Rev. Stat. § 29-2322 (Reissue 2016), as well as by the statutory
guidelines set out for the direction of the sentencing judge in imposing
or withholding imprisonment.
27. Sentences. Evidence regarding a defendant’s life, character, and previ-
ous conduct, as well as prior convictions, is highly relevant to the deter-
mination of a proper sentence.
28. ____. A sentencing court must have some reasonable factual basis for
imposing a particular sentence.
Appeal from the District Court for Hall County: Mark J.
Young, Judge. Affirmed.
Douglas J. Peterson, Attorney General, and Austin J. Relph,
for appellant.
Sarah A. Hinrichs, Deputy Hall County Attorney, for
appellant.
Jonathan Hendricks, of Dowding, Dowding, Dowding &
Urbom, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
I. INTRODUCTION
This criminal case appeal presents two primary issues:
whether evidence obtained following a search of a cell phone
should have been suppressed and whether a sentence of pro-
bation for a Class II felony was excessively lenient. Because
the first search warrant was supported by probable cause
and was sufficiently particular and because law enforcement
reasonably saw evidence of a different crime during the ini-
tial search, the court did not err in overruling a suppression
- 709 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705motion. And because the overall sentencing was not an abuse
of discretion, we affirm the judgment of the district court.
II. BACKGROUND
1. Initial Incident
On September 25, 2018, just after 6 a.m., Officer Brad
Newell was dispatched to an apartment in Kearney, Nebraska.
Newell spoke with J.S., who reported that upon leaving his
­garden-level apartment, he saw a man crouched down by a win-
dow to the apartment’s bathroom. The window had blinds, but
they had a small gap. When J.S. went outside, J.S.’ girlfriend
had just entered the bathroom to shower. J.S. did not mention
seeing the individual holding a cell phone. J.S. told Newell
that he yelled at the person, who then “took off” running. J.S.
chased the person and saw him cut through a yard.
Newell asked J.S. to show him the path the person took.
Approximately half a block from the apartment, J.S. dis-
covered a cell phone and handed it to Newell. After observ-
ing that the phone’s screen was locked, Newell took the
phone to the police station. Newell met with Investigator Dan
Warrington, who assisted Newell in preparing an affidavit to
search the phone.
2. September 2018 Search Warrant
and Investigation
(a) Affidavit
Newell completed an affidavit in support of a search war-
rant, asking the judge for permission to examine the cell phone
for evidence of the crime of unlawful intrusion on September
25, 2018. In the affidavit, Newell stated that he had investi-
gated many crimes where a cell phone contained evidence of
the commission of the crime being investigated.
In the affidavit, Newell set forth information obtained from
J.S. concerning the incident. J.S. reported that on September
25, 2018, “shortly before 0604 hours,” his girlfriend said that
she was going to shower. As J.S. left the apartment building,
- 710 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705he saw a man looking into the ground-level window to the
bathroom of J.S.’ apartment, where J.S.’ girlfriend was prepar-
ing to shower. J.S. observed the man “crouched down at the
window with his head lowered so that he could see through
a small area in the window blinds where one of the blind
slats was missing.” J.S. yelled at the man, who then fled. J.S.
chased the man and observed him run through a yard and then
run south. After Newell was dispatched to J.S.’ apartment, he
and J.S. retraced the man’s path of flight. In doing so, J.S.
located a cell phone “right where the suspect ran.”
Newell observed J.S. locate the cell phone and took custody
of it for evidentiary purposes. Newell believed the phone “may
contain evidence of the crime of Unlawful Intrusion, whereby
the suspect viewed [J.S.’ girlfriend] in a state of undress, and
may have also captured photographs and or video of [her] in a
state of undress.” Newell also stated that the cell phone would
contain evidence of the subscriber of the phone’s account,
who could be the suspect. Newell further confirmed that the
window was to the bathroom of J.S.’ apartment and that “there
was a void in the blinds where a person could see into the
bathroom area.”
Warrington supplied Newell with a template he used for a
cell phone search, and Newell incorporated that language into
the affidavit. The affidavit stated that according to Warrington,
“it has become commonplace for individuals to communi-
cate with others using cellular telephones or other electronic
devices to communicate activities, develop plans, coordinate
schedules and to otherwise pass along information in a variety
of formats.” Warrington had over 400 hours of training regard-
ing forensic searches of electronic devices.
Warrington would testify that there are two general types of
data extractions from electronic devices using computer soft-
ware programs. In a logical extraction, the software “makes
read-only requests of specific data to the device” and the
device responds by extracting the designated information.
The logical extraction is limited in scope and is unable to
- 711 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705access photographs or messages stored in third-party applica-
tions, to access information stored in a folder different from the
default folder, or to access deleted items. In contrast, a physical
extraction is comprehensive and “captur[es] a complete picture
of the usage and contents of an electronic device.” A physical
extraction creates a copy of the device’s flash memory.
Based on this information, Newell requested a search war-
rant to examine the cell phone for evidence relating to unlawful
intrusion. Newell set forth that the examination may include
searching the phone for the following:
Data that may identify the owner or user of the above-
described cellular phone including the phone number
assigned to the phone; Call Histories and logs (missed,
incoming and outgoing); Photographs and their associ-
ated metadata; Contact lists and address books; Calendar
entries; Messages (SMS, MMS, Recorded Messages,
iMessages, or Messages communicated through other
third-party application(s)) contained in any place through-
out the device; Audio and video clips; Global Positioning
System data including, but not limited to coordinates,
waypoints and tracks, Documents and other text-based
files; Internet world wide web (WWW) browser files
including, but not limited to, browser history, browser
cache, stored cookies, browser favorites, auto-complete
form history and stored passwords; Email messages and
attachments (whether read or unread) accessible from the
cellular phones listed above; Access and search for com-
munication on any third-party applications located on the
above-described cellular phones; and, any deleted and/or
unallocated content relating to the above-described types
of information.
(b) Warrant
A Buffalo County Court judge signed a search warrant
the same day. According to the search warrant, the issuing
judge was satisfied that probable cause existed based upon
- 712 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705the affidavit “attached hereto and made a part hereof by refer-
ence.” The warrant allowed for a search of all of the above-
quoted categories of cell phone data and any “SD [c]ards”
located within the device for “evidence relating to the offenses
of Unlawful Intrusion.”
(c) Search
Newell returned to the police station and provided Warrington
with a copy of the signed warrant. Warrington then extracted
data from the phone. After extracting the contents of the phone,
he used software to examine the data. The software categorized
the data, and one of the categories was “user profiles.” Before
the end of the day, Warrington provided Newell with the name
of the phone’s user: Jake J. McGovern.
The software also pulled together anything identified as a
possible image and placed it in a gallery. Warrington searched
all imagery on the device by clicking on the tab for photo-
graphs. None of the images appeared to be taken through a
window or a missing blind slat. He did not locate any photo-
graphs taken during the September 25, 2018, event.
The following day, Warrington performed an additional
extraction of the phone. In the images folder, Warrington found
imagery of women in a state of undress. Those images appeared
to be “thumbnails” from videos on the device. Warrington
selected a tab in the software for videos and tried to match the
thumbnails to a video based on file names.
After observing women in a state of undress, Warrington
reviewed the phone’s “search web history.” He explained,
based on his training and experience, that law enforcement will
find files or search history associated with a possible crime that
the user could be committing. Warrington located several items
such as “spy bathroom” and “voyeur bathroom,” which were
consistent with unlawful intrusion.
Because Warrington observed women in a state of undress,
which was consistent with what one could be looking for in
the offense of unlawful intrusion, he continued to examine
- 713 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705the videos on the phone. Warrington observed imagery of a
woman who appeared to be nude and sleeping. One video
showed a woman who appeared to be sexually assaulted while
unconscious. Some of the videos had “2017” in the title, indi-
cating a possibility that the video was recorded in 2017.
After watching the videos, Warrington was aware that a
potential sexual assault was involved. He next tried to iden-
tify the victim and to determine whether the event occurred
in Kearney. To make the identification, Warrington testified:
“I began looking at the complete totality of all of the data
associated with the video and image files which consisted of,
yes, the date and time stamps. It consisted of the metadata. It
consisted of the files themselves.” He used that information
to determine whether the date and time stamps could be accu-
rate. Warrington then examined communication that may have
occurred during the timeframe that the videos and images had
been produced and located text messages and communication
with a particular woman prior to that incident. Warrington tes-
tified that there was a “[p]ossibility” that he could have vali-
dated the date stamps prior to playing the videos.
Law enforcement identified the possible victim as K.S., a
woman who lived in Grand Island, Hall County, Nebraska.
Members of the Kearney Police Department traveled to Grand
Island to speak with K.S. In an interview, K.S. said that she
had been in a relationship with McGovern from October 2017
to January 2018. It was established that the touching in the
videos occurred in Grand Island.
Kearney law enforcement officers provided a Grand Island
police sergeant with a “CD” which contained the download
of the cell phone recovered in Kearney, along with a copy
of the search warrant and affidavit from Buffalo County.
The sergeant thereby gained access to the download, which
included a video depicting a woman in an unconscious state
with her clothes being removed and sexual contact occur-
ring. He began investigating a potential sexual assault, which
was believed to have occurred in Grand Island in October
- 714 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 7052017. In looking through the contents of the device, the ser-
geant was not attempting to find any information regarding
the September 2018 Kearney incident. Prior to opening the
contents of the phone, no one with the Grand Island Police
Department received a search warrant other than the search
warrant obtained by the Kearney Police Department.
An intelligence research specialist employed by the Grand
Island Police Department performed an analysis of the evi-
dence retrieved by the Kearney Police Department. Although
the Kearney search warrant, signed September 25, 2018, stated
that a search of the device had to occur in the next 30 days,
the specialist examined the device’s contents on October 29.
In examining the cell phone extraction CD, he found an
“associated Google Gmail address.” The specialist prepared
a search warrant to send to Google LLC, and a Hall County
judge issued a warrant. Because the arguments on appeal are
not directed to this warrant or the resulting search, we will not
further discuss it.
The State subsequently charged McGovern in Hall County
with two counts of sexual assault in the first degree, one
count of sexual assault in the third degree, and three counts of
recording a person in a state of undress. The State identified
K.S. as the victim of each count.
3. First Motion to Suppress
McGovern moved to suppress any information gathered
from his cell phone. McGovern alleged that Newell’s applica-
tion for a search warrant lacked probable cause to justify a
search of the phone’s contents other than for subscriber infor-
mation. He asserted that members of the Grand Island Police
Department improperly searched the contents of his phone
without first obtaining a warrant to do so.
During a hearing on the motion to suppress, Warrington
agreed that the search warrant affidavit included “a much
more broad swath of the phone” than just photographs, videos,
or user information. He generally agreed that the template
- 715 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705listed “all of the different areas of a phone.” Having performed
the majority of cell phone searches in Kearney, Warrington
testified that he uses a template when he prepares an affidavit
seeking to search a cell phone and that typically, the only infor-
mation that changes from case to case are the device informa-
tion and the particular crime being investigated.
Warrington understood that he was looking for photographs
or videos of the event occurring in Kearney on September 25,
2018. But he testified that he was also looking for data on
the phone that may be consistent with the crime. Warrington
explained that “the same unlawful intrusion could have been
committed days before” and that “there could be search histo-
ries in regards to . . . how to conduct voyeurism.”
Warrington testified that prior to opening a video, he would
“look at the totality of all of the data.” That included look-
ing at the file name and metadata that may be available.
Warrington testified that some files do not have metadata and
that “the ultimate last thing to do is to examine the actual
video itself and see if it matches anything that you are look-
ing for.” According to Warrington, there was “a possibility”
that the file names of the relevant videos were time and date
stamps. But Warrington explained that file names can easily
be renamed, moved, or modified; thus, he “[did not] put a
lot of credit necessarily into the exact file name.” Warrington
stated that he had to be able to look in all of the different
locations within a phone, because of how movable the data
is. For example, a video may be found in the video section, in
the messaging section, or in a third-party application. And he
testified that because videos could be edited, he had to watch
them in their entirety to determine whether they were of the
September 2018 event.
McGovern hired Shawn Kasal, a digital forensic analyst,
to review the contents of the cell phone. Kasal was pro-
vided with a copy of the search warrant and affidavit and
was granted access to the extraction of the phone conducted
by Warrington.
- 716 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705Kasal opened the video folder on the software and “put it
in table view.” He explained that table view provides the most
information about the contents and files, such as where a file
may have been stored on the phone and its “modified or cre-
ated time date stamp.”
Focusing on videos in the video folder beginning with
the titles “20171022,” “20171028,” and “20171111,” Kasal
was asked if—after looking at the files’ titles, metadata, and
thumbnails—he was able to rule them out as being videos of
the September 25, 2018, incident. He answered, “By my under-
standing of the time dates ascribed to the videos in question,
they were roughly 340 to 350 days previous to the issuance of
the warrant.”
Kasal testified that after watching the entirety of the videos,
he determined that they did not match the description of the
crime scene identified in the warrant. When asked if he was
able to make that determination prior to watching the videos,
Kasal answered that he “needed to watch the entire video to
make sure that it had not been edited, spliced or otherwise
modified to include any of that data.”
In March 2020, the court considered McGovern’s motion to
suppress. The court acknowledged McGovern’s argument that
the warrant was overbroad and lacked particularity. It stated
that the application and affidavit sought “to search a laundry
list of cell phone functions and data” and that “[n]o particular
effort was made by the officer to articulate what items of pos-
sible evidentiary value could be found in the call logs, address
book, calendar and et cetera.”
But the court turned its attention to McGovern’s argument
that law enforcement should have sought a second search war-
rant to recover evidence regarding the crime in Hall County.
The court stated that
based upon the expert testimony presented, the officer
in Kearney had every right to initially view all videos
contained on the phone to ensure that the file dates
and time stamps were accurate, however, once Officer
- 717 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705Newell viewed evidence indicating there was evidence
of a further crime in Hall County, Nebraska, a second
search warrant should have been applied for outlining
the types of evidence which would have been relevant
for the Hall County case.
The court granted the motion and suppressed the evidence. The
State did not appeal the suppression order. 1
4. March 2020 Search Warrant
Later in March 2020, Warrington filed an affidavit in sup-
port of a search warrant. The affidavit discussed the discovery
of the cell phone, the September 2018 search warrant, and the
extraction and examination of the phone’s data. Warrington’s
affidavit stated that during the 2018 examination, he observed
“recent web history consistent with voyeurism and unlaw-
ful intrusion” and videos that were consistent with the crime
of first degree sexual assault. Warrington stated that “further
examination of the cellular phone would be necessary in deter-
mining further evidence of the crime of 1st Degree Sexual
Assault, identity of the victim or victims, as well as the loca-
tion and date of the offenses.” Thus, he requested issuance of
a search warrant for a cell phone belonging to McGovern and
authorization for law enforcement to examine the phone for
evidence relating to first degree sexual assault.
A Buffalo County Court judge issued a search warrant the
same day. An officer extracted data from the cell phone, and
Warrington examined the extraction sometime in April 2020.
He did not find evidence different from what he discovered
following the first extraction.
5. Second Motion to Suppress
McGovern thereafter filed a second motion to suppress.
He sought to suppress all evidence from the search of the
cell phone. During a hearing on the motion, Warrington
1
See Neb. Rev. Stat. § 29-824 et seq. (Reissue 2016).
- 718 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705testified that he was aware of the suppression order when he
applied for the warrant in March 2020. In seeking the warrant,
Warrington asked for legal authority to re-examine the device
for additional evidence. He essentially wanted to look at the
exact same data that he had looked at in 2018.
The district court overruled the motion to suppress. The court
found that the initial review of all of the videos on McGovern’s
phone pursuant to the first search warrant was a lawful search
and that “the videos were first seen in ‘plain view.’” The court
reasoned that “[b]ecause the lawful viewing showed evidence
of another possible crime, law enforcement’s second search
under the second search warrant is not unlawful exploitation of
a prior illegality . . . .”
6. Bench Trial
Prior to the start of trial, the State filed an amended infor-
mation charging McGovern with sexual assault in the first
degree, sexual assault in the third degree, and recording a per-
son in a state of undress. Pursuant to McGovern’s waiver of
a jury trial, the court conducted a bench trial on the amended
information.
At trial, McGovern renewed both of his motions to suppress.
He objected to any evidence concerning the contents of the cell
phone. He asserted that the September 2018 search warrant (1)
was overbroad and lacked sufficient particularity, (2) lacked
sufficient probable cause to search the device for photographs
or videos, and (3) was exceeded in scope by law enforcement.
As to the March 2020 search warrant, McGovern objected that
it (1) was granted upon an affidavit that contained informa-
tion gathered as a product of a prior unconstitutional search,
(2) was used by law enforcement to reobtain information and
evidence that had been previously discovered pursuant to an
unconstitutional search and that had been suppressed by the
court, and (3) was not the product of an independent source,
inevitable discovery, attenuation, or other justification that
would make the evidence properly admissible.
- 719 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705The court overruled the objections but granted a continuing
objection to preserve the concerns raised in the motions to sup-
press. The court stated that the central issue was whether the
State could “cure the defects identified in the first search war-
rant by issuing a second search warrant or requesting getting
a second search warrant” and that it would stand on its ruling
that the State had the ability to cure.
The trial proceeded on exhibits received by the court.
According to investigative reports, K.S. confirmed that she
was the woman in videos found on McGovern’s phone and
that the videos were taken in Grand Island. She denied giving
McGovern permission to take such intimate images of her. At
least one video showed digital penetration while K.S. was in
a state of unconsciousness. The court convicted McGovern of
each count alleged in the amended information.
7. Sentencing
For the convictions for sexual assault in the third degree and
for recording a person in a state of undress, the court imposed
sentences of 1 year’s imprisonment, to be served concurrently.
As to the sexual assault in the first degree conviction, the court
found that McGovern was a fit and proper candidate for proba-
tion and imposed a term of 60 months of Community-Based
Intervention probation. It found that periodic confinement in
the county jail as a condition of probation was necessary,
“because a sentence of probation without a period of confine-
ment would depreciate the seriousness of the offender’s crime
or promote disrespect for the law.” Thus, the court ordered jail
time of 90 days to be served consecutively to any other sen-
tence imposed.
The State appealed, and McGovern filed a cross-appeal.
III. ASSIGNMENTS OF ERROR
The State’s appeal focuses only on sentencing. Because
McGovern’s cross-appeal addresses admissibility of cell phone
evidence, we begin there.
- 720 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705First, McGovern assigns that the initial search warrant affi-
davit lacked the requisite showing of probable cause and that
the warrant was not sufficiently particular.
Second, McGovern assigns that the court erred in over­
ruling his second motion to suppress. This broad assignment
has three prongs. First, he attacks the use of information gath-
ered by means of the first warrant to support the second one.
Next, he disputes the court’s application of the “plain view”
doctrine. Finally, he urges that no exclusionary rule excep-
tion—such as independent source, inevitable discovery, or
attenuation—applies.
The State’s appeal assigns that the court abused its discre-
tion by imposing excessively lenient sentences. It focuses on
the sentence to probation for first degree sexual assault.
IV. STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination. 2
[2,3] Whether an appellate court is reviewing a sentence
for its leniency or its excessiveness, a sentence imposed by
a district court that is within the statutorily prescribed limits
will not be disturbed on appeal unless there appears to be an
abuse of the trial court’s discretion. 3 An abuse of discretion
occurs when a trial court’s decision is based upon reasons that
are untenable or unreasonable or if its action is clearly against
justice or conscience, reason, and evidence. 4
2
State v. Short, 310 Neb. 81, 964 N.W.2d 272 (2021), cert. denied ___ U.S.
___, 142 S. Ct. 1155, 212 L. Ed. 2d 34 (2022).
3
State v. Gibson, 302 Neb. 833, 925 N.W.2d 678 (2019).
4
Id.- 721 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705V. ANALYSIS
1. Suppression
McGovern’s assignments of error largely invoke well known
Fourth Amendment principles. The State’s response articu-
lates two alternate theories of admissibility. In one, the State
assumes that the first warrant was invalid but argues that
the good faith exception applied. The other—which is more
complex—begins with the proposition that the first warrant
was at least partially valid and that portions of the challenged
evidence were properly viewed. The State then argues that the
properly viewed evidence supported issuance of the second
warrant, which, the State asserts, was an independent source
for the rest of the challenged evidence.
We will address the parties’ specific arguments invoking
familiar principles. But before doing so, we note the special
challenges presented by searches of cell phones.
(a) Cell Phone Searches
Cell phones are “minicomputers” with “immense storage
capacity.” 5 They “collect[] in one place many distinct types of
information . . . that reveal much more in combination than any
isolated record.” 6 Further, “[a]lthough the data stored on a cell
phone is distinguished from physical records by quantity alone,
certain types of data are also qualitatively different.” 7
Two approaches with respect to digital evidence searches
have emerged. 8 One is to view a digital device, such as a
cell phone, as a filing cabinet or form of a container and the
data thereon as forms of documents. 9 The other calls for “a
5
Riley v. California, 573 U.S. 373, 393, 134 S. Ct. 2473, 189 L. Ed. 2d 430(2014).
6
Id., 573 U.S. at 394.
7
Id., 573 U.S. at 395.
8
Thomas K. Clancy, The Fourth Amendment, Its History and Interpretation
§ 12.4.8 (3d ed. 2017).
9
See id.
- 722 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705‘special approach,’ requiring unique procedures and detailed
justifications, including rejecting the container analogy.” 10
Under the filing cabinet or container approach, courts “look
to traditional means to limit the scope of document searches,
such as the nature of the criminal activity alleged or the nature
of the objects sought.” 11 But “a consequence of this view is
the potential exposure of vast amounts of data for at least
cursory examination if the object of the search could be in a
digital format.” 12
A method of the special approach would be “use of the
particularity requirement to mandate preauthorization: a search
warrant seeking to seize [digital devices] must specify that it
covers such items.” 13 The search may need to be limited by
taking actions such as “‘observing file types and titles listed
on the directory, doing a key word search for relevant terms, or
reading portions of each file stored in the memory.’” 14
[4,5] This court has not explicitly adopted either approach.
We have declared that a warrant for the search of the contents
of a cell phone must be sufficiently limited in scope to allow
a search of only that content that is related to the probable
cause that justifies the search. 15 What will constitute sufficient
particularized information to support probable cause that a cell
phone or cell phone information searched will contain evi-
dence of a crime depends upon the nature and circumstances of
the crime and what is sought in the warrant. 16
It can be generally recognized that cell phones tend to
accompany their users everywhere, and thus, it may be
10
Id. at 821.
11
Id. at 818-19.
12
Id. at 820-21.
13
Id. at 821.
14
Id. at 822.
15
State v. Short, supra note 2.
16
Id.- 723 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705inferred that a suspect’s cell phone probably accompanied
the suspect at the time of the crime. 17 But we have cautioned
that law enforcement can­not rely solely on the general ubiq-
uitous 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 sup-
port probable cause that a specific device contains evidence
of a crime. 18
(b) First Search Warrant
McGovern raises two main issues with respect to the initial
search warrant. He claims that the warrant was not supported
by probable cause and that it lacked sufficient specificity.
The text of the Fourth Amendment contains three require-
ments pertaining to the content of a warrant, but only two are
contested here. It states that “no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particu-
larly describing the place to be searched, and the persons or
things to be seized.” 19 The requirements of probable cause and
particularity—the two at issue—are analytically distinct, but
closely related. 20
(i) Probable Cause
[6,7] A search warrant, to be valid, must be supported by
an affidavit which establishes probable cause. 21 In reviewing
the strength of an affidavit submitted as a basis for finding
probable cause to issue a search warrant, an appellate court
applies a totality of the circumstances test. 22 The question is
whether, under the totality of the circumstances illustrated
17
Id.18
See id.19
U.S. Const. amend. IV. Accord Neb. Const. art. I, § 7.
20
See State v. Said, 306 Neb. 314, 945 N.W.2d 152 (2020).
21
State v. Hidalgo, 296 Neb. 912, 896 N.W.2d 148 (2017).
22
State v. Said, supra note 20.
- 724 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705by the affidavit, the issuing magistrate had a substantial basis
for finding that the affidavit established probable cause. 23
[8,9] 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. 24 In eval­
uating the sufficiency of an affidavit used to obtain a search
warrant, an appellate court is restricted to consideration of
the information and circumstances contained within the four
corners of the affidavit, and evidence which emerges after the
warrant is issued has no bearing on whether the warrant was
validly issued. 25
Regarding probable cause, McGovern makes a concession.
He concedes that it existed to search the cell phone in order
to determine its owner or user. Newell stated in the affidavit
that the cell phone would “contain evidence of the subscriber
of the cellular telephone account, who could be the suspect in
the crime.”
McGovern contends, however, that the warrant was unsup-
ported by probable cause to search the phone for photographs
and videos. We disagree.
[10] 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 indepen-
dent evaluation of probable cause. 26 Here, the affidavit set
forth that J.S. observed a man looking into the ground-level
window to the bathroom of J.S.’ apartment, where J.S.’ girl-
friend was preparing to shower. J.S. yelled; the man fled.
Upon retracing the man’s path of flight, J.S. found a cell
phone “right where the suspect ran.” Newell stated in the
affidavit that he believed the cell phone “may contain evi-
dence of the crime of Unlawful Intrusion, whereby the suspect
23
Id.24
State v. Short, supra note 2.
25
State v. Said, supra note 20.
26
State v. Short, supra note 2.
- 725 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705viewed [J.S.’ girlfriend] in a state of undress, and may have
also captured photographs and or video of [her] in a state
of undress.”
[11] The nexus between the alleged crimes and the article
to be searched does not need to be based on direct observa-
tion; it can be found in the type of crime, the nature of the
evidence sought, and the normal inferences as to where such
evidence may be found. 27 It is true that J.S. did not report see-
ing the suspect holding a phone as the suspect was “crouched
down at the window with his head lowered,” likely viewing
J.S.’ girlfriend in a state of undress.
[12] Probable cause may be based on commonsense conclu-
sions about human behavior, and due weight should be given
to inferences by law enforcement officers based on their expe-
rience and specialized training. 28 One reasonable inference is
that a person seeking to surreptitiously view another in a state
of undress may capture that viewing by video or photograph.
Discovery of the cell phone on the suspect’s path of flight
gives rise to an inference that the phone was not secured on
the suspect’s person—that the suspect “had it out,” in Newell’s
words—and that perhaps it was used as the suspect peered into
the bathroom.
[13] “Probable cause ‘is not a high bar.’” 29 A judge’s deter-
mination of probable cause to issue a search warrant should
be paid great deference by reviewing courts. 30 Under the total-
ity of the circumstances, we conclude the issuing judge had a
substantial basis for finding the affidavit established probable
cause to search the phone for photographs or videos of the
September 25, 2018, incident.
27
Id.28
Id.29
District of Columbia v. Wesby, ___ U.S. ___, 138 S. Ct. 577, 586, 199 L.
Ed. 2d 453 (2018).
30
State v. Short, supra note 2.
- 726 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705(ii) Particularity and Breadth
[14,15] 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. 31 The degree of specificity required in a warrant
depends on the circumstances of the case and on the type of
items involved. 32
McGovern challenges the first warrant’s particularity
and breadth. He quotes Ninth Circuit cases explaining that
“‘[p]articularity is the requirement that the warrant must clearly
state what is sought’” while “‘[b]readth deals with the require-
ment that the scope of the warrant be limited by the probable
cause on which the warrant is based.’” 33
McGovern first points out that the warrant authorized a
search of every category of information that could be stored
on a cell phone. But this circumstance does not necessarily
lead to the conclusion that McGovern seeks.
[16] We have rejected arguments that an expansive list of
areas to be searched encompassing practically the entirety
of the data contained within a cell phone were insufficiently
particular. 34 In doing so, we have recognized that officers
cannot predict where evidence of a crime will be located in
a cell phone or call records or in what format, such as texts,
videos, photographs, emails, or applications. 35 And we have
stated that 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. 36 Consequently, we
31
Id.32
Id.33
Brief for appellee on cross-appeal at 32, quoting U.S. v. Hill, 459 F.3d 966(9th Cir. 2006), and U.S. v. Towne, 997 F.2d 537 (9th Cir. 1993).
34
See, State v. Short, supra note 2; State v. Goynes, 303 Neb. 129, 927
N.W.2d 346 (2019).
35
State v. Short, supra note 2.
36
See id.- 727 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705recently stated 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.” 37
Thus, McGovern’s first argument regarding particularity
lacks merit.
McGovern also challenges the warrant’s lack of any tempo-
ral limitation on the scope of the search. The face of the war-
rant did not limit the search to any timeframe, even though the
warrant was sought in response to an incident occurring on a
known date and approximate time.
[17] But the warrant referred to an attached affidavit, and
the supporting affidavit recounted that the incident occurred
“on the morning of September 25, 2018 shortly prior to 0604
hours.” An inadvertent defect in a search warrant may be cured
by reference to the affidavit used to obtain the warrant if the
affidavit is incorporated in the warrant or referred to in the
warrant and the affidavit accompanies the warrant. 38 The affi-
davit and the warrant, read together, limited the scope of the
search to a particular date.
[18] 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 expe-
dition for all criminal activity. 39 Here, the warrant named a
specific crime, the incorporated affidavit identified a time
period, and both documents listed specific areas of the phone
to be searched.
The nature of the crime—unlawful intrusion—limited the
scope of the search; law enforcement officers knew they
were to search for evidence regarding the device’s owner or
user along with such things as photographs and videos. The
37
Id. at 139, 964 N.W.2d at 316.
38
State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019).
39
State v. Short, supra note 2.
- 728 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705warrant also listed specific areas to be searched within the
cell phone, which were consistent with those described in the
affidavit. We reject McGovern’s argument that the first search
warrant did not satisfy the particularity requirements of the
Fourth Amendment.
(iii) Good Faith
The State argues that even if the first warrant was invalid,
a good faith exception applies. We first recall the rationale for
the exclusionary rule and then turn to the application of good
faith exception here.
a. Exclusionary Rule
[19] The Fourth Amendment does not expressly preclude
the use of evidence obtained in violation of its commands. 40
Rather, the exclusionary rule operates as a judicially created
remedy designed to safeguard Fourth Amendment rights gen-
erally through its deterrent effect. 41 The exclusionary rule is
designed to deter police misconduct rather than to punish the
errors of judges and magistrates. 42 To trigger the exclusionary
rule, police conduct must be sufficiently deliberate that exclu-
sion can meaningfully deter such conduct and sufficiently cul-
pable that such deterrence is worth the price paid by the justice
system, as exclusion serves to deter deliberate, reckless, or
grossly negligent conduct, or in some circumstances recurring
or systemic negligence. 43
The exclusionary rule encompasses both the primary evi-
dence obtained as a direct result of an illegal search or sei-
zure and evidence later discovered and found to be derivative
of an illegality, the so-called fruit of the poisonous tree. 44
40
State v. Kruse, 303 Neb. 799, 931 N.W.2d 148 (2019).
41
Id.42
See id.43
State v. Short, supra note 2.
44
Utah v. Strieff, 579 U.S. 232, 136 S. Ct. 2056, 195 L. Ed. 2d 400 (2016).
- 729 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705In situations where the exclusion as a remedy would not deter
law enforcement, several exceptions to the exclusionary rule
have been recognized. 45 One is the exception for good faith
upon which the State relies.
b. Good Faith Exception Applied
[20,21] When a search warrant has been issued, the applica-
bility of the good faith exception turns on whether the officers
acted in objectively reasonable good faith in reliance on the
warrant. 46 In assessing the good faith of an officer’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. 47
[22] Under the good faith exception to the exclusionary rule,
evidence may be suppressed if (1) the magistrate or judge in
issuing a warrant was misled by information in an affidavit
that the affiant knew was false or would have known was false
except for his or her reckless disregard for the truth, (2) the
issuing magistrate wholly abandoned his or her judicial role,
(3) the warrant is based on an affidavit so lacking in indicia
of probable cause as to render official belief in its existence
entirely unreasonable, or (4) the warrant is so facially defi-
cient that the executing officer cannot reasonably presume it
to be valid. 48
McGovern does not assert that the issuing judge was misled
by information in the affidavit. The first ground for suppres-
sion does not apply.
45
State v. Jennings, 305 Neb. 809, 942 N.W.2d 753 (2020), cert. denied ___
U.S. ___, 141 S. Ct. 432, 208 L. Ed. 2d 128.
46
State v. Kruse, supra note 40.
47
Id.48
Id.- 730 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705Although McGovern argues that the issuing judge wholly
abandoned his judicial role, we disagree. As we have already
concluded, the affidavit provided probable cause to search the
phone for photographs and videos relevant to the initial event.
The second circumstance likewise does not apply.
The probable cause presented by the affidavit also defeats
the third ground for suppression. This is particularly true in
light of McGovern’s concession.
McGovern argues that the fourth ground—facial deficiency
precluding an executing officer from reasonably presuming
the warrant’s validity—applied “because law enforcement’s
over-reliance on templates had caused the situation to exist” 49
and “[l]aw enforcement could not reasonably presume the
matching untailored template warrant, clearly overbroad in
scope, was valid.” 50 The State concedes that the “warrant could
have been drafted better” but argues that the warrant “identi-
fied the offense being investigated, delineated the areas of the
cell phone to be searched, and did not contain . . . catch-all
language.” 51 We are not persuaded that the fourth ground for
suppression applies here.
(c) Second Motion to Suppress
McGovern argues that the court erred in overruling his
second motion to suppress for three reasons. His first reason
requires little discussion. We discuss each in turn.
Before doing so, we recall specific factual findings of
the district court. The court found that the Kearney Police
Department received a search warrant to search the cell phone
for evidence regarding unlawful intrusion and that during the
course of the search, law enforcement officers discovered
video evidence they believed tied McGovern to crimes in
Hall County. Having reviewed these findings of fact for clear
49
Brief for appellee on cross-appeal at 40.
50
Id. at 41.
51
Brief for appellant on cross-appeal at 19.
- 731 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705error, we find none. With these facts in mind, we turn to
whether they trigger or violate Fourth Amendment protections.
(i) Probable Cause and Particularity
of First Warrant
First, McGovern repeats his argument that the first search
warrant was unsupported by probable cause and lacked par-
ticularly. Based on that argument, McGovern contends that all
evidence flowing from the search should be excluded. Because
we have already rejected McGovern’s probable cause and par-
ticularity challenges to the first warrant, this argument fails.
(ii) Probable Cause for Second Warrant
Second, McGovern argues that the probable cause forming
the basis of the second warrant was gathered at a time law
enforcement was outside the scope of the initial warrant and
was not in plain view. The State makes a conclusory statement
that the videos were in plain view; however, its principal argu-
ment is that the videos were within the scope of the warrant.
a. Plain View
The district court found that the initial review of all of
the videos on the phone was a lawful search under the initial
search warrant and that the videos were first seen in plain view.
The court reasoned that because the lawful viewing showed
evidence of another possible crime, the later search under the
second search warrant was not an unlawful exploitation of
a prior illegality. This presents a question of law, which we
review independently of the trial court’s determination. 52
[23] It is well established that under certain circumstances,
law enforcement may seize evidence in plain view without
a warrant. 53 Under the plain view doctrine, if police officers
are lawfully in a position from which they view an object,
52
See State v. Short, supra note 2.
53
State v. Andera, 307 Neb. 686, 950 N.W.2d 102 (2020).
- 732 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705if its incriminating character is immediately apparent, and if
the officers have a lawful right of access to the object, they
may seize it without a warrant. 54 When those circumstances
are met, “‘[t]he seizure of property in plain view involves no
invasion of privacy and is presumptively reasonable, assum-
ing that there is probable cause to associate the property with
criminal activity.’” 55 But “the ‘plain view’ doctrine may not be
used to extend a general exploratory search from one object to
another until something incriminating at last emerges.” 56
Here, the search warrant authorized law enforcement to
search photographs and videos. Warrington testified—and
McGovern’s expert agreed—that it was necessary to watch
the entirety of the videos to determine whether they matched
the description of the September 2018 event. Warrington was
lawfully in a position to view photographs and videos when
he did so. Warrington testified that as he looked through the
thumbnails in the video folder, he did not immediately notice
a ­nonconsensual encounter. However, when he watched the
actual video, it was immediately apparent to him that the
woman was not conscious. Further, Warrington had probable
cause to look through the images and videos for unlawful intru-
sion; thus, he had a lawful right of access to watch the videos
in order to perceive whether they were relevant.
Whether the plain view doctrine should apply to digital
information stored on a cell phone is a difficult question.
In an electronic search of a cell phone, an unprecedented
amount of personal information may come within the plain
view of an investigator. 57 Such searches, like computer file
54
Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334(1993). Accord State v. Andera, supra note 53.
55
Texas v. Brown, 460 U.S. 730, 738, 103 S. Ct. 1535, 75 L. Ed. 2d 502(1983).
56
Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S. Ct. 2022, 29 L. Ed.
2d 564 (1971).
57
See State v. Bock, 310 Or. App. 329, 485 P.3d 931 (2021).
- 733 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705searches, “present ‘a heightened degree’ of intermingling of
relevant and irrelevant material.” 58
A consequence of analogizing cell phones to filing cabinets
or to containers is that “in any legitimate search that permits
looking at digital data, potentially all data can be examined to
ascertain what it is.” 59 Recently, the Oregon Court of Appeals
determined that the breadth of a cell phone search made the
plain view doctrine inapplicable where state agents, searching
for location data, examined each photograph on a cell phone. 60
A different approach, a commentator suggested, would be to
impose a use restriction on nonresponsive data obtained pursu-
ant to a warrant, i.e., government agents would be limited in
what could be used based on what was actually described by
the warrant. 61
b. Reasonableness
[24] But under the circumstances present here, we need not
define the precise contours of the plain view doctrine with
respect to electronic data on a cell phone. The ultimate touch-
stone of the Fourth Amendment is reasonableness. 62
Here, the initial search warrant authorized an examination of
the phone for evidence relating to offenses of unlawful intru-
sion. Unlawful intrusion includes intruding upon another in a
place of solitude or seclusion; it also encompasses photograph-
ing or filming the intimate area of another without his or her
knowledge and consent. 63
Given the offense identified, it was reasonable to search
files containing images and to view videos to determine
58
Clancy, supra note 8 at 818.
59
Id. at 37.
60
See State v. Bock, supra note 57.
61
See Orin S. Kerr, Executing Warrants for Digital Evidence: The Case for
Use Restrictions on Nonresponsive Data, 48 Tex. Tech L. Rev. 1 (2015).
62
See Riley v. California, supra note 5.
63
See Neb. Rev. Stat. § 28-311.08 (Reissue 2016 & Cum. Supp. 2020).
- 734 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705whether they were responsive to the warrant. In doing so, law
enforcement observed images showing a woman in a state of
undress. Such images could be consistent with the crime and
fall within the scope set forth on the face of the initial warrant.
Further, the viewing of videos was a reasonable search within
the scope of the warrant’s authorization because discovery
of the sexual assault—which was intertwined with filming
the intimate area of another—occurred while the officer was
searching for evidence of unlawful intrusion.
The evidence viewed was consistent with the crime identi-
fied in the search warrant. Here, the evidence uncovered fell
within the scope of the search authorized by the warrant.
(iii) Independent Source
Finally, McGovern asserts that the independent source doc-
trine did not support the second warrant. The State argues
otherwise.
[25] Under the independent source doctrine, the challenged
evidence is admissible if it came from a lawful source inde-
pendent of the illegal conduct. 64 The U.S. Supreme Court
explained the doctrine’s rationale:
“‘[T]he interest of society in deterring unlawful police
conduct and the public interest in having juries receive all
probative evidence of a crime are properly balanced by
putting the police in the same, not a worse, position that
they would have been in if no police error or misconduct
had occurred. . . . When the challenged evidence has an
independent source, exclusion of such evidence would
put the police in a worse position than they would have
been in absent any error or violation.’” 65
64
State v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015).
65
Murray v. United States, 487 U.S. 533, 537, 108 S. Ct. 2529, 101 L. Ed.
2d 472 (1988), quoting Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81
L. Ed. 2d 377 (1984).
- 735 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705To establish that the independent source doctrine applies to
evidence seized pursuant to a warrant obtained after an unlaw-
ful entry to a home, the government must show both (1) that
the decision to seek the warrant was independent of the unlaw-
ful entry—i.e., that police would have sought the warrant even
if the initial entry had not occurred—and (2) that the informa-
tion obtained through the unlawful entry did not affect the
magistrate’s decision to issue the warrant. 66
But the doctrine presupposes illegal police conduct. 67 And
here, the State argues that “all of that evidence was properly
viewed and thereafter seized; the videos pursuant to the plain
view doctrine, and the incriminating search history pursuant
to the first search warrant.” 68 Above, we concluded that the
viewing of the videos and photographs was reasonable and the
evidence was within the scope of the first warrant. Thus, no
illegal police conduct occurred and we need not rely upon the
independent source doctrine.
Because the evidence of the sexual assault was properly
viewed and provided support for the March 2020 search war-
rant, the court did not err in overruling McGovern’s second
motion to suppress evidence derived from the searches of his
phone. We find no merit to McGovern’s cross-appeal.
2. Sentencing
Turning to the State’s appeal, it argues that the district
court imposed an excessively lenient sentence. The court
convicted McGovern of three crimes and imposed sentences
within statutory limits. For the Class I misdemeanor 69—pun-
ishable by a maximum of 1 year’s imprisonment, $1,000
fine, or both 70—the court imposed a sentence of 1 year’s
66
U.S. v. Khabeer, 410 F.3d 477 (8th Cir. 2005).
67
See Murray v. United States, supra note 65.
68
Brief for appellant on cross-appeal at 21.
69
See Neb. Rev. Stat. § 28-320(3) (Reissue 2016).
70
See Neb. Rev. Stat. § 28-106(1) (Reissue 2016).
- 736 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705i­ mprisonment. For the Class IV felony 71—punishable by a
maximum of 2 years’ imprisonment and 12 months’ post-
release supervision, $10,000, or both 72—the court imposed a
sentence of 1 year’s imprisonment. It ordered the sentences
for those two offenses to run concurrently. Then, for the Class
II felony 73—punishable by 1 to 50 years’ imprisonment, 74 but
with no mandatory minimum—the court imposed a sentence
of probation. It is this sentence of probation that is the focus
of the State’s challenge.
Before turning to sentencing factors, we address two argu-
ments made by the State. One concerns what the State views
as an incongruity in the felony sentences imposed. The other is
whether the sentences here must be viewed individually or may
be viewed collectively.
(a) Alleged Incongruity
The State highlights that for the court to have imposed
imprisonment for the Class IV felony conviction, it had to
have concluded that there were “substantial and compelling
reasons” 75 to not impose probation. According to the State,
it follows that those same reasons would also exist for the
Class II felony.
A statute mandates that a sentence of probation be imposed
for a Class IV felony unless a delineated exception applies. 76
The exceptions are: (a) the defendant is sentenced to imprison-
ment for any felony other than another Class IV felony, (b) the
defendant has been deemed a habitual criminal, or (c) there
are substantial and compelling reasons why the defendant
71
See § 28-311.08(2).
72
See Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2020).
73
See Neb. Rev. Stat. § 28-319(2) (Reissue 2016).
74
See § 28-105(1).
75
Neb. Rev. Stat. § 29-2204.02(2)(c) (Reissue 2016).
76
See id.- 737 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705cannot be effectively and safely supervised in the commu­
nity. 77 The last exception is the only one having potential
application here.
Section 29-2204.02 was a new statute created by 2015 Neb.
Laws, L.B. 605. 78 That comprehensive bill was “designed to
slow Nebraska’s prison population growth, ease prison over-
crowding, contain corrections spending, and reinvest a por-
tion of savings in strategies that can reduce recidivism and
increase public safety.” 79 The policies in the bill addressed
three major challenges, one being that “overcrowded prisons
house a large number of people convicted of nonviolent, low-
level offenses.” 80 To address such a challenge, the legislation
employed a strategy to use probation for people convicted of
low-level offenses. 81 Thus, § 29-2204.02 encompasses a policy
decision by the Legislature favoring probationary sentences for
Class IV felonies.
We have stated that Ҥ 29-2204.02(2) effectively adds
a general limitation on a court’s discretion in choosing
between probation and incarceration with respect to a Class
IV felony, because it requires a court to impose a sentence
of probation for a Class IV felony unless certain specified
exceptions are present.” 82 In light of the legislative intent
behind § 29-2204.02, we cannot say that findings required
under this statute apply to sentencing decisions pertaining
to higher-level offenses. As recognized in a concurrence,
“[T]he determination with regard to a Class IV felony under
77
See id.
78
See State v. Benavides, 294 Neb. 902, 884 N.W.2d 923 (2016).
79
Introducer’s Statement of Intent, L.B. 605, Judiciary Committee, 104th
Leg., 1st Sess. (Feb. 20, 2015).
80
Id.81
Id.82
State v. Baxter, 295 Neb. 496, 504, 888 N.W.2d 726, 733 (2017).
- 738 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705§ 29-2204.02(2)(c) is different from the determination with
respect to any other class of offense under § 29-2260.” 83
(b) Individual Sentence Versus
Aggregate of Sentences
The State also questions whether it is permissible to look
at sentences collectively in determining whether the sentenc-
ing court abused its discretion. The State points out that in the
context of the Eighth Amendment, we have determined the
proportionality analysis focuses on individual sentences rather
than the aggregate of sentences ordered to be served consecu-
tively to one another. 84
But this appeal does not involve an Eighth Amendment
claim. And, similar to another recent appeal, the State has not
pointed to authority requiring “any legal inquiry pertinent to
review of a defendant’s sentence, which analyzes proportional-
ity vis-a-vis different sentences for different crimes imposed
for the same defendant and arising from the same series
of events.” 85
When a judge is imposing sentences for several convictions
at the same time, we see no reason why a sentencing judge
should be prohibited from considering the cumulative effect
of the sentences. “[F]or a defendant who has been sentenced
consecutively for two or more crimes, we generally consider
the aggregate sentence to determine if it is excessive.” 86 We
see no reason why the same rule should not apply when
considering whether a sentence is excessively lenient. A trial
judge is invested with a wide discretion as to the sources and
types of information used to assist with the determination of
83
State v. Dyer, 298 Neb. 82, 95, 902 N.W.2d 687, 696 (2017) (Miller-Lerman,
J., concurring).
84
See State v. Becker, 304 Neb. 693, 936 N.W.2d 505 (2019).
85
State v. Morton, 310 Neb. 355, 369-70, 966 N.W.2d 57, 68 (2021).
86
Id. at 370, 966 N.W.2d at 68.
- 739 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705a sentence to be imposed within statutory limits. 87 The collec-
tive effect of multiple sentences may be a source of informa-
tion. If each sentence imposed is within the statutory limit, a
sentencing judge need not view those sentences in isolation
in determining whether the overall sentence it crafts achieves
the sentencing goals of rehabilitating the defendant, deter-
ring ­others from criminal acts, and providing protection for
society. We now consider the statutory sentencing factors and
their application to the facts of this case.
(c) Statutory Factors
[26] In reviewing whether a sentencing court abused its
discretion in imposing a sentence that was excessively lenient,
an appellate court is guided by the factors set forth by Neb.
Rev. Stat. § 29-2322 (Reissue 2016), as well as by the statu-
tory guidelines set out for the direction of the sentencing judge
in imposing or withholding imprisonment. 88 In determining
whether the sentence imposed is excessively lenient, an appel-
late court shall have regard for the following:
(1) The nature and circumstances of the offense;
(2) The history and characteristics of the defendant;
(3) The need for the sentence imposed:
(a) To afford adequate deterrence to criminal conduct;
(b) To protect the public from further crimes of the
defendant;
(c) To reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense; and
(d) To provide the defendant with needed educational
or vocational training, medical care, or other correctional
treatment in the most effective manner; and
(4) Any other matters appearing in the record which the
appellate court deems pertinent. 89
87
See State v. Janis, 207 Neb. 491, 299 N.W.2d 447 (1980).
88
State v. Gibson, supra note 3.
89
§ 29-2322.
- 740 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705A different statute authorizes a court to impose a period of
probation in lieu of incarceration. Neb. Rev. Stat. § 29-2260(Reissue 2016) provides in part:
(2) Whenever a court considers sentence for an offender
convicted of either a misdemeanor or a felony for which
mandatory or mandatory minimum imprisonment is not
specifically required, the court may withhold sentence
of imprisonment unless, having regard to the nature and
circumstances of the crime and the history, character, and
condition of the offender, the court finds that imprison-
ment of the offender is necessary for protection of the
public because:
(a) The risk is substantial that during the period of
probation the offender will engage in additional crimi-
nal conduct;
(b) The offender is in need of correctional treatment
that can be provided most effectively by commitment to a
correctional facility; or
(c) A lesser sentence will depreciate the seriousness of
the offender’s crime or promote disrespect for law.
(3) The following grounds, while not controlling the
discretion of the court, shall be accorded weight in favor
of withholding sentence of imprisonment:
(a) The crime neither caused nor threatened seri-
ous harm;
(b) The offender did not contemplate that his or her
crime would cause or threaten serious harm;
(c) The offender acted under strong provocation;
(d) Substantial grounds were present tending to excuse
or justify the crime, though failing to establish a defense;
(e) The victim of the crime induced or facilitated com-
mission of the crime;
(f) The offender has compensated or will compensate
the victim of his or her crime for the damage or injury the
victim sustained;
- 741 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705(g) The offender has no history of prior delinquency
or criminal activity and has led a law-abiding life for
a substantial period of time before the commission of
the crime;
(h) The crime was the result of circumstances unlikely
to recur;
(i) The character and attitudes of the offender indicate
that he or she is unlikely to commit another crime;
(j) The offender is likely to respond affirmatively to
probationary treatment; and
(k) Imprisonment of the offender would entail exces-
sive hardship to his or her dependents.
(4) When an offender who has been convicted of a
crime is not sentenced to imprisonment, the court may
sentence him or her to probation.
(d) Application
McGovern committed the serious crime of sexual assault
in the first degree. The offense involved sexual contact—pre-
served on video—at a time when K.S. was incapable of giv-
ing consent. At sentencing, McGovern’s counsel highlighted
that “this is essentially a touching kind of offense . . . we’re
not talking about intercourse.” But that does not diminish
McGovern’s violation of trust. According to K.S.’ statement,
McGovern sexually assaulted her on video on the day she was
first introduced to him. They later had a dating relationship
for a period of time, and she did not learn of the assaults until
after she had ended the relationship. K.S. stated that she has to
“live with the embarrassment of the knowledge that at a mini-
mum, numerous law enforcement and criminal justice officials
from multiple jurisdictions have seen the videos of [her] sexual
assaults, have seen [her] in states of undress.”
[27] Evidence regarding a defendant’s life, character, and
previous conduct, as well as prior convictions, is highly rele­
vant to the determination of a proper sentence. 90 According
90
State v. Gibson, supra note 3.
- 742 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705to the presentence report, McGovern was 39 years old. His
prior criminal history included three convictions for driving
under the influence between 2001 and 2007 and a conviction
for attempted unlawful intrusion based on the September 2018
event that led to discovery of the instant offenses. At the time
of sentencing, McGovern was facing charges in Montana for
alleged conduct similar to that in the instant case. A testing tool
assessed him to be at a “[m]edium-[h]igh” risk to reoffend. He
scored in the “maximum risk range on the SAQ alcohol scale.”
According to the presentence report, McGovern was “highly
motivated and engaged in counseling.” The report also stated
that he “seems to show some remorse for the victim.”
[28] A sentencing court must have some reasonable factual
basis for imposing a particular sentence. 91 The court expressed
difficulty in balancing the need for rehabilitation against the
need for punishment. The court explained:
On the one hand, there’s an absolute violation of trust,
and in reviewing the evidence in this case which I had
to do on several occasions, you were taking advantage of
someone who was absolutely out of it and it appears to be
a part of a pattern of conduct not entirely dissimilar from
the incident in Kearney, Nebraska, which led to your con-
victions here ultimately.
On the other hand, I am required by law to consider
rehabilitation. I am required to consider the fact that you
have done a good job apparently while on probation.
In imposing the three sentences, the court stated they were
an “attempt to reach a balance in this case” and that they
were “necessary not to depreciate the serious nature of your
criminal conduct in your eyes or the eyes of the public.” The
court then imposed concurrent sentences of 1 year’s imprison-
ment for two offenses and for the other offense, a period of
Community-Based Intervention probation for 60 months.
91
State v. Parminter, 283 Neb. 754, 811 N.W.2d 694 (2012).
- 743 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705In connection with the sentence of probation, the court lev-
ied numerous terms. Obviously, McGovern cannot violate any
laws while on probation. He must also refrain from disorderly
conduct or acts injurious to others. He cannot associate with
persons of “disreputable or harmful character” or persons he
knows are involved in illegal activities. He must be gainfully
employed or actively seeking employment. The terms of pro-
bation affect McGovern’s liberty. He must allow the probation
officer to visit at all reasonable times and places. He cannot
leave the state without written authorization of the court or
the probation officer. McGovern cannot possess a firearm or
dangerous weapon. He must submit to a chemical test of his
blood, breath, or urine upon request of the probation officer.
The court further determined that a period of confinement
was necessary and ordered McGovern to serve 90 days in jail,
which sentence was to be served consecutively to any other
sentence imposed.
As McGovern notes, the court could have placed him on
probation for all three convictions. Had it done so, the court
would have been limited to a maximum period of incarcera-
tion of 90 days as a condition of probation. 92 Instead, the court
imposed a sentence of 1 year’s imprisonment for the lesser
offenses—the maximum sentence for the misdemeanor convic-
tion—and a 90-day period of confinement as a condition of
probation in addition to placing McGovern on probation for
the maximum period of time allowed. 93 The court attempted to
balance the needs for punishment and rehabilitation.
Our review for an abuse of discretion is key. The standard
is not what sentence we would have imposed. 94 And as we
recognized 20 years ago, “‘it is a rare exception’” that a
92
Neb. Rev. Stat. § 29-2262(2)(b) (Cum. Supp. 2020).
93
See Neb. Rev. Stat. § 29-2263(1) (Reissue 2016).
94
State v. Gibson, supra note 3.
- 744 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705sentence within statutory limits will be deemed excessive. 95
Because the same standard applies to determining whether a
sentence is excessively lenient, the same observation applies
here. These sentences do not fall within that category. We
cannot say the sentences imposed, particularly when viewed
collectively, amounted to an abuse of discretion.
IV. CONCLUSION
Because law enforcement reasonably observed the evidence
of sexual assault during execution of the initial search warrant,
the court did not err in overruling McGovern’s second motion
to suppress evidence derived from the searches of his phone.
We further conclude that the sentences imposed, all within the
statutory limits, were not excessively lenient. We emphasize
that the sentences must be viewed collectively and that we
are not permitted to substitute the sentences we might have
imposed as a sentencing court. Accordingly, we affirm the
judgment of the district court.
Affirmed.
95
State v. Decker, 261 Neb. 382, 398, 622 N.W.2d 903, 917 (2001).
Miller‑Lerman, J., concurring.
I concur. In this case, the opinion evidence from both
experts taken as a whole essentially states that, given the
technology, it is not possible to review the contents of the cell
phone to merely determine the existence of a photograph or
video on September 25, 2018, without also looking to some
extent at the image. This may seem surprising. Nevertheless,
the district court accepted the opinions. These opinions cir-
cumscribed the district court’s analysis and that of this court
upon review. See Tipp‑It, Inc. v. Conboy, 257 Neb. 219, 234,
596 N.W.2d 304, 315 (1999) (Gerrard, J., concurring) (when
appellate court review is guided by expert testimony, review
is confined to record before it and “[i]t is not the proper role
of an appellate court to become a ‘super expert,’ randomly
- 745 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McGOVERN
Cite as 311 Neb. 705imposing its opinion over those opinions properly admitted
in evidence”). Given the limitation imposed by the evidence,
I cannot disagree with the court’s analysis. That leaves for
another day a serious Fourth Amendment examination of the
hazards of rummaging through digital devices, the making and
retention of full forensic copies (or mirrors), the use of data
nonresponsive to the warrant, and the constitutional limitations
on second warrants as a cure.