State v. Short
310 Neb. 81
| Neb. | 2021Background
- Three related shootings occurred Aug. 5–8, 2015 (attempted shooting Aug. 5, Neelon killed Aug. 6, Johnson killed Aug. 8); investigators linked scenes by shell casings and witness reports of two Black males fleeing in a white Chevy Monte Carlo with dealer/in-transit plates.
- A pricetag found near the Neelon scene produced a fingerprint that matched Marcus Short; police located a white Monte Carlo at Short’s last known address on Aug. 8 and obtained a search warrant for 4268 Binney Street the same day.
- Officers executed the residence search (seized two firearms, clothing, venue items) and seized two cell phones from Short after handcuffing him near the crime-scene perimeter; Short was later formally arrested after firearms were found.
- Warrants were obtained to search the physical phones (Aug. 11, 2015) and, after litigation, to obtain call records and cell-site location information (Dec. 5, 2018); phone data and CSLI were used at trial to place phones near relevant locations/times and show contacts with co-actors.
- OPD’s delayed preparation/disclosure of numerous interview reports produced multiple continuances, a motion to dismiss for speedy trial and statutory discovery violations, and an initial trial mistrial; the district court denied dismissal and instead offered continuances; Short was retried Jan. 7, 2019, convicted, and sentenced.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of residence search (Franks challenge) | Affidavit was truthful and supported probable cause; any minor errors were inadvertent and not material. | Affidavit contained false statements/omissions (fingerprint location, Short’s exact location, omitted Finley nonidentification, conflated witness observations) that were intentional or reckless and material. | Court: District court did not clearly err — misstatements/omissions were not shown to be intentional/reckless and were immaterial to probable cause; search valid. |
| Seizure of cell phones (warrantless) | Seizure lawful as incident to arrest or would have been inevitably discovered after lawful arrest; probable cause existed when phones were seized. | Phones were seized during an unlawful de facto arrest and any evidence derived from them is tainted. | Court: There was probable cause at time of seizure (collective knowledge); seizure lawful as incident to arrest; alternatively inevitable discovery. |
| Probable cause for warrants to search phones, call records, and CSLI | Affidavits contained specific investigatory facts (vehicle sightings, fingerprint on pricetag, venue items bearing phone number, witness reports) sufficient under totality of circumstances. | Affidavits were “bare bones” and boilerplate about cell‑phone usage without a sufficient nexus to the crimes; good-faith exception should not apply. | Court: Affidavits were not bare‑bones; even assuming marginal sufficiency, officers reasonably relied on warrants — good‑faith exception applies; warrants upheld. |
| Particularity of digital-search warrants | Warrants described the homicide, limited time period (for CSLI), and enumerated categories of phone data tied to the investigation. | Warrants listed broad categories (effectively all phone data) and authorized scanning of every file, amounting to an impermissible fishing expedition. | Court: Warrants were particular enough given the investigative context; brief scanning of files is permissible to locate data within scope; particularity requirement satisfied. |
Key Cases Cited
- Barker v. Wingo, 407 U.S. 514 (1972) (four‑factor balancing test for constitutional speedy‑trial claims)
- Franks v. Delaware, 438 U.S. 154 (1978) (standard for attacking warrant affidavit based on alleged false statements or omissions)
- Illinois v. Gates, 462 U.S. 213 (1983) (totality‑of‑circumstances test for probable cause)
- United States v. Leon, 468 U.S. 897 (1984) (good‑faith exception to exclusionary rule)
- Riley v. California, 573 U.S. 373 (2014) (cell phones generally require warrants and search‑scope concerns for digital data)
- United States v. Robinson, 414 U.S. 218 (1973) (search incident to lawful custodial arrest doctrine)
- Doggett v. United States, 505 U.S. 647 (1992) (delay of about a year often deemed presumptively prejudicial in speedy‑trial analysis)
- State v. Goynes, 303 Neb. 129 (2019) (upholding broad lists of phone data when tied to a specific crime and constrained by affidavit)
- State v. Said, 306 Neb. 314 (2020) (cell‑phone affidavit sufficiency where investigation supplied particularized facts in addition to general officer knowledge)