State v. Bray, 297 Neb. 916

Police obtained a warrant to search common areas and a roommate (Gonsalves)’s bedroom based on information from roommate Deven Moore; Moore was in custody and intoxicated when he gave the information, but the affidavit omitted those facts.
The district court held a Franks hearing, found the omission reckless, and concluded the warrant lacked probable cause.
During execution, officers kept occupants in the living room; Bray was allowed to examine the warrant and use his cell phone, and accompanied by an officer briefly into his bedroom to retrieve a charger, during which a bong and marijuana odor were observed in plain view.
After the search of common areas, officers told Bray what they had seen and requested consent to search his room; Bray asked to call his lawyer, made a private call, then signed a written consent form that advised of the right to refuse.
The subsequent search (with Bray’s consent) uncovered additional contraband and cash; Bray was charged, moved to suppress, convicted after a stipulated bench trial, and appealed the denial of suppression.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Bray)	Held
Validity of warrant: whether omission that informant was in custody rendered the affidavit insufficient under Franks and invalidated the warrant	Affidavit still supported probable cause; not outcome-determinative to the consent/attenuation question	The affidavit omitted material facts (Moore in custody and intoxicated), so the warrant was obtained by reckless omission and was invalid	Court agreed the omission was reckless; warrant invalid when corrected
Admissibility of evidence: whether Bray’s consent was voluntary and sufficiently attenuated from the unlawful search to permit admission of evidence	Consent was voluntary and purged the taint due to intervening circumstances (consultation with counsel, advisement of right to refuse, written consent)	Consent was involuntary or inevitably tainted by the prior illegal search; thus evidence should be suppressed	Court held consent was voluntary and sufficiently attenuated; evidence admissible

Franks v. Delaware, 438 U.S. 154 (1978) (establishes standard for judicial inquiry when a defendant alleges deliberate or reckless omissions in a warrant affidavit)
Brown v. Illinois, 422 U.S. 590 (1975) (sets factors for attenuation analysis and requires voluntariness and lack of taint for consent following illegal police conduct)
Wong Sun v. United States, 371 U.S. 471 (1963) (discusses "fruit of the poisonous tree" and attenuation doctrines)
Elkins v. United States, 364 U.S. 206 (1960) (addresses exclusionary rule and derivative evidence)
U.S. v. Greer, 607 F.3d 559 (8th Cir. 2010) (found consultation with family and written advisement supported attenuation of consent)
State v. Lammers, 267 Neb. 679 (2004) (addresses informant reliability and indicia required in affidavits)
State v. King, 207 Neb. 270 (1980) (discusses citizen-informant/self-corroboration principles)
Utah v. Strieff, 136 S. Ct. 2056 (2016) (examines attenuation and costs/benefits of exclusionary rule)