State v. McGovern
311 Neb. 705
| Neb. | 2022Background
- On Sept. 25, 2018, police recovered a locked cell phone along the flight path of a man observed peering into an apartment bathroom (alleged unlawful intrusion). Officer Newell obtained a Kearney-area search warrant to examine the phone for evidence of unlawful intrusion.
- The affidavit used a forensic template authorizing broad categories of phone data (photos, videos, messages, GPS, browser history, etc.). Forensic examiner Warrington extracted the phone and, while lawfully examining images and videos under the warrant, observed videos and web searches suggesting voyeurism and videos showing a woman unconscious and sexually assaulted.
- Kearney PD provided the extraction to Grand Island PD; Grand Island investigators identified the victim (K.S.) and developed a sexual-assault investigation tied to events in Hall County.
- McGovern moved to suppress: a district court initially found the first warrant overbroad and granted suppression (State did not appeal that order). Later, Warrington obtained a second search warrant (March 2020) focused on first-degree sexual assault; a second suppression motion was denied.
- McGovern was convicted at a bench trial on multiple counts including first-degree sexual assault; the court sentenced him to probation (60 months Community-Based Intervention) with 90 days jail as a condition for the Class II felony and concurrent 1-year terms for other convictions. The State appealed sentencing; McGovern cross-appealed suppression rulings. The Nebraska Supreme Court affirmed the denial of suppression and the sentences.
Issues
| Issue | Plaintiff's Argument (McGovern) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Validity of first search warrant: probable cause to search phone for photos/videos | Warrant only supported subscriber ID; no probable cause that phone contained photos/videos of the intrusion | Affidavit (victim's observations + phone found on flight path) gave commonsense nexus to photos/videos | Court: Probable cause existed to search for photos/videos; magistrate had substantial basis under totality of circumstances |
| Particularity / breadth of first warrant | Warrant was overbroad (listed virtually all phone data) and lacked temporal limitation | Template plus incorporated affidavit identified the offense and time; brief examination of all phone data is often necessary | Court: Warrant sufficiently particular when read with incorporated affidavit; breadth was reasonable given digital evidence realities |
| Lawful viewing / plain view and use to obtain second warrant | Viewing videos exceeded initial warrant scope; evidence used to obtain second warrant was fruit of unconstitutional search | Viewing images/videos was within scope of the unlawful-intrusion warrant and, once observed, incriminating character was apparent—plain view justified further investigation and supported second warrant | Court: Viewing videos was reasonable under the warrant; evidence fell within scope and provided lawful basis for the March 2020 warrant; suppression properly denied |
| Sentencing: Was probation for Class II felony excessively lenient? | State: probation + limited confinement undervalued seriousness; court abused discretion | Trial court balanced punishment and rehabilitation, imposed statutory-range sentences and conditions, including consecutive confinement | Court: Sentences (viewed collectively) were within statutory limits and not an abuse of discretion; affirmed |
Key Cases Cited
- Riley v. California, 573 U.S. 373 (2014) (cell phones are "minicomputers" requiring special Fourth Amendment consideration)
- District of Columbia v. Wesby, 138 S. Ct. 577 (2018) (probable cause is a low bar; courts should defer to magistrate determinations)
- Murray v. United States, 487 U.S. 533 (1988) (independent-source doctrine permits admission when evidence comes from a lawful source independent of illegality)
- Minnesota v. Dickerson, 508 U.S. 366 (1993) (plain-view seizure principles)
- Coolidge v. New Hampshire, 403 U.S. 443 (1971) (limits on extending exploratory searches and plain-view cautions)
- State v. Short, 310 Neb. 81 (Neb. 2021) (Nebraska guidance on cell-phone warrants, particularity, and need to limit scope to evidence related to probable cause)
- State v. Goynes, 303 Neb. 129 (Neb. 2019) (authority recognizing necessity of broad electronic searches to locate responsive digital evidence)
- Utah v. Strieff, 579 U.S. 232 (2016) (exclusionary rule and its exceptions)