State v. McGovern, 311 Neb. 705

Background

On Sept. 25, 2018, a resident observed a man peering into an apartment bathroom; the resident chased the man and found a cell phone along the suspect’s path of flight. Police seized the phone and obtained a Buffalo County warrant to search it for evidence of unlawful intrusion.
Forensic examiner Warrington extracted the phone and (while searching for photos/videos of the Sept. 25 event) viewed media and web-history terms suggesting voyeurism and discovered videos depicting a sexual assault of K.S. that appeared to date from 2017 in Hall County/Grand Island.
The State later obtained a second warrant (March 2020) to search the phone for evidence of first-degree sexual assault; that warrant relied in part on what had been observed during the earlier extraction.
McGovern moved to suppress: he argued the first warrant lacked probable cause and particularity (beyond subscriber info), and that evidence from the first search tainted the second warrant; the district court initially granted suppression (for the first warrant) but later denied McGovern’s second suppression motion.
McGovern was tried (bench), convicted on multiple counts including first-degree sexual assault and recording a person in a state of undress, and sentenced (including probation for the Class II felony); the State appealed the leniency of the sentence and McGovern cross-appealed the evidentiary rulings.

Issues

Issue	McGovern (claim)	State (response)	Held
Whether the Sept. 2018 warrant was supported by probable cause to search the phone for photos/videos	Warrant only supported searching for subscriber ID; no particularized probable cause to search for photos/videos of the intrusion	Affidavit tied the phone to the suspect (found on flight path) and the nature of unlawful intrusion gives a fair probability the phone contained photos/videos	Judge had substantial basis to find probable cause to search for images/videos; warrant valid on probable-cause review
Whether the Sept. 2018 warrant satisfied the Fourth Amendment particularity requirement	Warrant was overbroad (listed essentially all phone data) and lacked temporal limitation	Warrant and incorporated affidavit limited the search to a specific offense and timeframe; brief examination of all phone data is reasonable to locate responsive material	The warrant was sufficiently particular when read with the incorporated affidavit; lack of explicit temporal words on the face was cured by the affidavit
Whether evidence observed during the first extraction (videos of sexual assault) was lawfully viewed / in plain view and therefore could support the March 2020 warrant	Viewing videos exceeded the scope of the first warrant and produced evidence used to obtain the second warrant (tainting it)	Officers were lawfully authorized to review images/videos to determine responsiveness; once videos showing nonconsensual assault were encountered, they were in plain view and supported the second warrant	Viewing videos to determine whether they were responsive was reasonable; videos were within scope/plain view, so second warrant was not tainted
Whether the good-faith or independent-source doctrines save the March 2020 warrant	Second warrant relied on fruits of an unlawful search and should be excluded; no applicable exception	Even if any defects existed, officers reasonably relied on the warrant; also the viewed evidence was properly within scope, so independent-source need not be invoked	Good-faith and independent-source issues need not defeat admissibility because the initial viewing was reasonable and within the warrant’s scope; suppression was properly denied on the second motion
Whether the sentence for first-degree sexual assault (probation + 90 days jail) was excessively lenient	N/A (McGovern cross-appealed evidence only)	Sentence was within statutory limits and reflected balancing of punishment and rehabilitation; aggregate sentences may be considered	Sentences were within statutory limits and not an abuse of discretion when viewed collectively; affirmed

Key Cases Cited

Riley v. California, 573 U.S. 373 (2014) (cell phones are minicomputers with vast, qualitatively different data; warrants for phones require careful Fourth Amendment consideration)
State v. Short, 310 Neb. 81 (2021) (Nebraska precedent on scope and particularity for cell-phone warrants)
Murray v. United States, 487 U.S. 533 (1988) (independent-source doctrine elements and rationale)
Minnesota v. Dickerson, 508 U.S. 366 (1993) (plain-view/seizure principles)
Coolidge v. New Hampshire, 403 U.S. 443 (1971) (limits on exploratory searches and plain-view cautions)
Utah v. Strieff, 579 U.S. 232 (2016) (discussion of exclusionary rule and fruit-of-the-tree principles)
State v. Gibson, 302 Neb. 833 (2019) (standard for appellate review of sentences)