State v. Bray, 297 Neb. 916

Police obtained a warrant to search common areas and a roommate Gonsalves’ bedroom based on information from roommate informant Deven Moore. Moore was in custody and had alcohol in his system when he gave the information, but the affidavit omitted those facts.
The district court found the affidavit omitted Moore’s custodial status recklessly and that the warrant lacked probable cause when the omission was considered.
During execution of the warrant, officers observed drug paraphernalia (bong, grinder, smell of marijuana) in Bray’s bedroom through an open doorway; Bray was not the target and was asked to remain in the living room.
Bray retrieved a charger from his room while accompanied by an officer; officers later informed him they had seen paraphernalia and requested consent to search his room.
Bray called someone he identified as his attorney on his cell phone in private, was read a written consent form (advised of right to refuse), and signed it; the ensuing search uncovered additional contraband and cash.
The district court ruled the original 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	Moore’s tip supported the warrant	Affidavit omitted Moore’s custodial status and impairment, undermining reliability	Warrant invalid: omission was reckless and affidavit did not establish probable cause
Good-faith reliance on warrant	Officer relied on issued warrant	Officer was reckless and could not claim good-faith reliance	No good-faith exception: officer’s reckless omission negated good faith
Voluntariness of consent	Consent was a free, uncoerced choice after advisement	Consent was coerced by detention, presence of multiple officers, and confrontation with visible items	Consent voluntary: Bray was calm, mobile, allowed phone call, reviewed form, and consulted counsel
Attenuation of consent from prior illegality	Consent (with advisement and call) was an intervening act purging taint	Consent was the product of the illegal entry and thus fruit of the poisonous tree	Consent sufficiently attenuated: intervening counsel consultation and advisement, lack of flagrant misconduct outweighed close temporal proximity

Franks v. Delaware, 438 U.S. 154 (1978) (requirement for hearing when affidavit contains deliberate or reckless falsehoods or omissions)
Brown v. Illinois, 422 U.S. 590 (1975) (voluntariness and attenuation analysis for consent following illegal arrest)
Wong Sun v. United States, 371 U.S. 471 (1963) (‘‘fruit of the poisonous tree’’ and attenuation principles)
Elkins v. United States, 364 U.S. 206 (1960) (limits on admission of evidence obtained via illegal searches)
U.S. v. Greer, 607 F.3d 559 (8th Cir. 2010) (consultation with family and written advisement can support attenuation)
U.S. v. Reinholz, 245 F.3d 765 (8th Cir. 2001) (deference to trial court findings on factual matters in suppression context)
State v. Lammers, 267 Neb. 679 (2004) (criteria for informant reliability in warrant affidavits)
State v. King, 207 Neb. 270 (1980) (consideration of citizen informant reliability)