State v. Short
310 Neb. 81
| Neb. | 2021Background
- Three related shootings occurred Aug. 5, 6, and 8, 2015 (including homicides of Deprecia Neelon and Garion Johnson); investigators tied a pricetag/fingerprint near the Neelon scene to Marcus Short and located a white Chevy Monte Carlo linked to the Aug. 8 scene near Short’s last known address.
- On Aug. 8, 2015, police executed a warrant at 4268 Binney Street and seized two handguns, clothing, venue items, and two cell phones; Short was handcuffed at the scene, transported to OPD, interviewed, and later formally arrested after officers found firearms at his residence.
- Officers obtained a warrant to search Short’s phones (Aug. 11, 2015) and later obtained call-detail and cell-site location records (Dec. 5, 2018) for a phone number linked to Short.
- Significant discovery delays occurred due to homicide detectives’ late report preparation; defense requested continuances, a mistrial was declared during the first trial (jury-contact), retrial was scheduled by agreement, and Short moved to dismiss for speedy-trial, due-process, and statutory discovery violations.
- The district court denied dismissal/sanctions (no bad faith; continuance was least severe cure), admitted evidence from the residence and phone searches (Franks challenge rejected; warrants found sufficiently particular or executed in officer good faith), and Short was convicted after retrial and appealed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Short) | Held |
|---|---|---|---|
| 1) Motion to dismiss for speedy trial / discovery sanctions | State: delays were not deliberate bad faith by prosecution; continuance is adequate remedy under §29-1919 and Barker factors post-mistrial do not show constitutional violation | Short: OPD’s repeated late disclosures prejudiced his constitutional speedy-trial and due-process rights and statutory discovery violations warrant dismissal with prejudice | Court: Affirmed — no constitutional speedy-trial violation (post-mistrial delay ~246 days not presumptively prejudicial), no bad faith, continuance was least severe sanction; denial of dismissal affirmed |
| 2) Franks challenge to residence search warrant (alleged falsehoods/omissions) | State: affidavit contained sufficient facts; any misstatements were inadvertent and not made knowingly/recklessly; excising errors leaves probable cause | Short: affidavit falsely stated fingerprint on a glove (actually pricetag), misstated Short’s location, and omitted that key witness (Finley) failed to identify Short; these were material and required suppression | Court: Affirmed — district court did not clearly err that misstatements/omissions were not intentional/reckless; probable cause remains after analysis; evidence admitted |
| 3) Sufficiency and particularity of affidavits/warrants for phone contents and call/location data | State: affidavits set out investigation facts linking Short and vehicle, law-enforcement experience supports nexus to phone data; warrants limited to homicide and time period | Short: affidavits were barebones/boilerplate providing only generic assertions about phones; warrants were overbroad (laundry-list of all phone data) and lacked particularity | Court: Affirmed — affidavits were not barebones; even assuming marginal probable-cause sufficiency, officers acted in objectively reasonable good faith; warrants were sufficiently particular and confined to the homicide/time period |
| 4) Seizure of phones while Short was handcuffed (alleged unlawful arrest) | State: seizure was incident to an arrest supported by probable cause (collective knowledge: fingerprint, vehicle link, witness reports) and thus lawful; phone numbers later independently verified at residence | Short: phones seized during a de facto unlawful arrest and thus all phone-derived evidence is tainted | Court: Affirmed — there was probable cause at the time supporting a warrantless arrest/search-incident-to-arrest; seizure lawful; alternatively phones inevitably/independently discovered |
Key Cases Cited
- Barker v. Wingo, 407 U.S. 514 (U.S. 1972) (articulates four-factor speedy-trial balancing test)
- Franks v. Delaware, 438 U.S. 154 (U.S. 1978) (affidavit falsehoods/omissions doctrine; defendant must prove intentional or reckless misstatements that are material)
- Illinois v. Gates, 462 U.S. 213 (U.S. 1983) (totality-of-the-circumstances test for probable cause in warrant affidavits)
- United States v. Leon, 468 U.S. 897 (U.S. 1984) (good-faith exception to exclusionary rule for reliance on a magistrate-issued warrant)
- Riley v. California, 573 U.S. 373 (U.S. 2014) (cell-phone searches require warrants; digital searches implicate vast privacy interests)
- Doggett v. United States, 505 U.S. 647 (U.S. 1992) (one-year-plus delay is commonly presumptively prejudicial in speedy-trial context)
- United States v. Robinson, 414 U.S. 218 (U.S. 1973) (search incident to lawful custodial arrest permits full search of person)
- Herring v. United States, 555 U.S. 135 (U.S. 2009) (exclusionary rule’s deterrent purpose limited to sufficiently culpable police conduct)
- State v. Goynes, 303 Neb. 129 (Neb. 2019) (upheld expansive list of cell-phone data categories when tied to specific crime)
- State v. Said, 306 Neb. 314 (Neb. 2020) (cell-phone affidavit sufficient where investigation facts plus officer expertise establish nexus between phone content and crime)