State v. Bray, 297 Neb. 916

Police obtained a warrant to search common areas and Alexander Gonsalves’ bedroom based on informant Deven Moore’s tip; affidavit omitted that Moore was in custody and intoxicated when he gave the tip.
Court found the omission reckless under Franks and concluded the affidavit (supplemented with the omitted fact) did not establish probable cause for the warrant.
During execution of the warrant, officers observed through an open doorway a bong, grinder, and smell of marijuana in Ethan Bray’s bedroom; Bray was invited from the room to the living area and not the target of the warrant.
An officer accompanied Bray into his room to retrieve a charger and saw paraphernalia; later officers informed Bray on the porch of what was seen and asked for consent to search his room.
Bray was allowed a private cell-phone consultation (he said it was with counsel), was advised in writing of his right to refuse, signed a written consent form, led officers through parts of the room, and additional contraband was seized.
District court ruled the warrant invalid but denied Bray’s suppression motion, holding Bray’s consent was voluntary and sufficiently attenuated from the invalid warrant; Bray was convicted and appealed.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Bray)	Held
Validity of warrant (Franks)	Warrant supported probable cause based on informant tip	Omission that informant was in custody was material; warrant invalid	Warrant invalid: omission was reckless and, if included, affidavit lacked probable cause
Voluntariness of consent to search	Consent was a free, uncoerced choice after advisals and phone consultation	Consent was coerced by detention, show of force, and confrontation with visible evidence	Consent voluntary: totality of circumstances showed free and informed choice
Attenuation: admissibility of evidence after invalid warrant	Consent (with written advisal and phone consult) sufficiently attenuated the taint	Consent was product of exploitation of the illegal entry; attenuation lacking	Attenuation established: intervening circumstances and lack of flagrant misconduct purge the taint (temporal proximity weighed against but outweighed)
Good-faith reliance on warrant	Alternatively, officers relied in good faith on issued warrant	Officer recklessly omitted material facts; good faith unavailable	Court rejected good-faith exception due to officer’s recklessness, but evidence still admissible via attenuation

Franks v. Delaware, 438 U.S. 154 (U.S. 1978) (establishes rule for challenging warrant affidavits based on deliberate or reckless falsehoods or omissions)
Brown v. Illinois, 422 U.S. 590 (U.S. 1975) (sets factors for attenuation analysis after illegal seizure)
Wong Sun v. United States, 371 U.S. 471 (U.S. 1963) (discusses "fruit of the poisonous tree" and attenuation doctrine)
State v. Lammers, 267 Neb. 679 (Neb. 2004) (discusses methods to establish informant reliability in affidavit)
State v. King, 207 Neb. 270 (Neb. 1981) (addresses citizen-informant reliability principles)
U.S. v. Greer, 607 F.3d 559 (8th Cir. 2010) (consent after consultation and advisal can attenuate prior illegality)
U.S. v. Reinholz, 245 F.3d 765 (8th Cir. 2001) (deference to factual findings in warrant/attenuation contexts)