State v. Bray, 902 N.W.2d 98

Background

Police obtained a warrant to search common areas and Gonsalves’ bedroom based on information from roommate informant Deven Moore; the affidavit omitted that Moore was in custody and intoxicated when he spoke to officers.
The district court later found the omission was reckless under Franks and that the affidavit, if supplemented, would not establish probable cause for the warrant.
During execution of the warrant, officers monitored occupants in the living room; Bray was allowed to inspect the warrant and to retrieve a phone charger from his bedroom while accompanied by an officer, who observed a bong, grinder, and smelled marijuana.
After the common-area search, officers told Bray they had seen paraphernalia in his room; Bray asked to call an attorney, made a private phone call, then signed a written consent form after being read his right to refuse consent.
Officers searched Bray’s room with his consent and seized marijuana, drug paraphernalia, scales, cash, other controlled substances, and paraphernalia; Bray was convicted after a stipulated bench trial and appealed the denial of his motion to suppress.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the warrant affidavit was invalid due to omission of informant’s custody/intoxication	Omission was reckless; warrant lacked probable cause	Warrant was valid or officer acted in good faith	District court (and affirmed) found omission reckless and warrant invalid under Franks
Whether evidence seized from Bray’s room must be suppressed as fruit of the invalid warrant	Suppression required because entry/search tracing to the invalid warrant	Consent to search was voluntary and sufficiently attenuated from the invalid warrant	Court held Bray’s consent was voluntary and sufficiently attenuated; evidence admissible
Whether Bray’s consent was voluntary given police presence and officers’ statements about getting a warrant	Consent was coerced by detention, confrontation, and threat to obtain a warrant	Consent was knowing: Bray examined warrant, consulted counsel privately, received written advisement and freely signed	Court held consent voluntary under totality of circumstances
Whether attenuation factors (time, intervening circumstances, flagrancy) support admission	Temporal proximity and awareness of prior search negate attenuation; misconduct was reckless	Intervening counsel consultation and advisements, limited temporal lapse, and lack of flagrant investigatory exploitation favor attenuation	Court found temporal proximity weighed against attenuation but intervening circumstances and lack of purposeful/flagrant misconduct yielded overall attenuation

Key Cases Cited

Franks v. Delaware, 438 U.S. 154 (1978) (establishes standard for challenging warrant affidavits based on omissions or false statements)
Brown v. Illinois, 422 U.S. 590 (1975) (sets factors for attenuation analysis and relation between consent and prior illegality)
Wong Sun v. United States, 371 U.S. 471 (1963) (articulates "fruit of the poisonous tree" doctrine)
Elkins v. United States, 364 U.S. 206 (1960) (discusses scope and purpose of exclusionary rule)
U.S. v. Greer, 607 F.3d 559 (8th Cir. 2010) (consent after consultation and advisements can attenuate prior illegality)
U.S. v. Reinholz, 245 F.3d 765 (8th Cir. 2001) (gives deference to trial court fact findings in suppression/attenuation inquiries)
State v. Lammers, 267 Neb. 679 (2004) (standards for establishing informant reliability in warrant affidavits)
State v. King, 207 Neb. 270 (1980) (discusses citizen informant concept and voluntariness of coming forward)
Utah v. Strieff, 136 S. Ct. 2056 (2016) (addresses attenuation and limits of exclusionary rule)