State v. Bray, 297 Neb. 916

Police obtained a warrant to search common areas and one roommate’s bedroom based on information from an informant (Deven Moore); affidavit omitted that Moore was in custody and likely intoxicated when he gave the tip.
The district court found the omission reckless under Franks and concluded the warrant lacked probable cause; the State did not prevail on good-faith reliance.
During execution, officers observed drug paraphernalia and smelled marijuana in Bray’s bedroom through an open doorway; officers accompanied Bray into his room to retrieve a charger and saw a bong and grinder.
Officers told Bray what they had seen; Bray asked to call counsel, made a roughly 5-minute call on his cell phone, then signed a written consent form after being advised of his right to refuse.
A subsequent search (with Bray’s consent) uncovered additional drugs, drug paraphernalia, scales, and cash; Bray was charged, moved to suppress, lost, was convicted after a stipulated bench trial, and appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of warrant given informant omissions	Warrant invalid because affidavit omitted that informant was in custody and intoxicated	Warrant valid; or exclusion unnecessary because consent attenuated any taint	District court found omission reckless and warrant lacked probable cause (appellate court affirmed not reexamining that finding)
Voluntariness of Bray’s consent	Consent was coerced by detention, presence of multiple officers, and confrontation with visible contraband	Consent was voluntary: conversational tone, Bray free to move in living room, allowed to consult counsel, advised of right to refuse, read form	Consent was voluntary (court applied totality of circumstances)
Attenuation of consent from prior illegality	Consent was too temporally proximate and thus tainted by the illegal warrant	Consent was sufficiently attenuated due to intervening circumstances and lack of flagrant official misconduct	Consent was sufficiently attenuated; evidence admissible
Whether officer conduct was flagrant or purposeful misconduct	Omission was reckless, but defense argued that officers exploited illegality to obtain consent	State argued misconduct was not purposeful flagrant exploitation; officers acted routinely and did not intend to procure consent	Misconduct was reckless omission but not purposeful/flagrant exploitative misconduct; attenuation factor favors admission

Franks v. Delaware, 438 U.S. 154 (1978) (establishes right to challenge affidavit omissions and requires hearing when omissions are alleged to be reckless)
State v. Lammers, 267 Neb. 679 (Neb. 2004) (criteria for informant reliability in affidavit)
State v. King, 207 Neb. 270 (Neb. 1978) (discussion of citizen-informant reliability)
Brown v. Illinois, 422 U.S. 590 (1975) (framework for attenuation analysis and consent after illegality)
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) (purpose of exclusionary rule enforcing Fourth Amendment)
U.S. v. Greer, 607 F.3d 559 (8th Cir. 2010) (consent attenuated where defendant consulted third party and received advisement of rights)