State v. Short
964 N.W.2d 272
Neb.2021Background
- Marcus Short was charged in connection with three shootings (Aug. 5, 6, and 8, 2015) that included two homicides; evidence linked him by a fingerprint on a pricetag and by a white Chevy Monte Carlo found at his last known address. He was tried twice (first trial ended in mistrial; retrial resulted in convictions and lengthy sentences).
- Police executed a warrant search of Short’s residence (4268 Binney St.) on August 8, 2015 and seized two handguns, clothing, venue items, and cell phones; officers later obtained warrants to search the phones and to obtain call detail/cell-site location information (CSLI).
- Defense counsel complained of repeated late disclosures by Omaha Police detectives (delayed police reports), moved to dismiss/demanded absolute discharge under speedy-trial, due process, and § 29-1919; the district court denied dismissal but offered continuances as the least severe remedy.
- The district court held a Franks-style evidentiary hearing on alleged falsehoods/omissions in the residence-warrant affidavit and later ruled alleged misstatements/omissions were not deliberate or material to probable cause; it also denied suppression of phone data, concluding warrants were supported (or executed in good faith) and that the on-scene seizure of phones was incident to arrest.
- On retrial Short objected to admission of fruits of the residence search, the physical phone searches, and the CSLI/call-records warrants; the Nebraska Supreme Court affirmed the district court on all issues.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Short) | Held |
|---|---|---|---|
| 1) Motion to dismiss / absolute discharge for discovery delays and speedy-trial violations | State: delays were not deliberate or in bad faith; continuance is appropriate sanction under statute; speedy-trial rights not violated | Short: OPD’s late disclosures prejudiced his ability to prepare and deprived him of constitutional and statutory speedy-trial rights; dismissal warranted | Held: Court affirmed—delays were not deliberate; continuance is least severe remedy; constitutional speedy-trial claim fails (post-mistrial delay analyzed from retrial date; 246 days not presumptively prejudicial) |
| 2) Franks challenge to residence-warrant affidavit (alleged falsehoods/omissions) | State: affidavit provided probable cause; any misstatements were inadvertent and not material; warrant stands | Short: affidavit contained false statements and omitted material exculpatory information (e.g., Finley failed to ID Short) that vitiate probable cause | Held: Court affirmed—district court did not clearly err in finding no intentional or reckless falsity; even after considering corrections, probable cause remains |
| 3) Seizure of cell phones from Short (whether seizure was unlawful de facto arrest) | State: collective information supplied probable cause for arrest; seizure was incident to arrest or would have been inevitably discovered | Short: phones were seized during an unlawful de facto arrest and thus fruits must be suppressed | Held: Court held there was probable cause (collective knowledge) at the time phones were seized; seizure lawful as incident to arrest; no suppression required |
| 4) Sufficiency and particularity of warrants to search phones and obtain call records/CSLI; applicability of Leon good-faith exception | State: affidavits contained specific investigative facts linking Short and vehicle/phones to crimes; warrants limited to homicide and finite time frame; officers reasonably relied on warrants | Short: affidavits were boilerplate/bare-bones, lacked nexus to phones/CSLI and the warrants were overbroad (laundry-list of phone data permitting exploratory rummaging) | Held: Court affirmed—warrants were sufficiently particular under the circumstances; even assuming marginal probable-cause defects, officers acted in objectively reasonable good faith under United States v. Leon, so evidence admissible |
Key Cases Cited
- Barker v. Wingo, 407 U.S. 514 (1972) (sets forth four-factor speedy-trial balancing test)
- Franks v. Delaware, 438 U.S. 154 (1978) (standard for challenging warrant affidavits for intentional or reckless falsehoods/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 implicate privacy; warrant generally required to search digital contents)
- Doggett v. United States, 505 U.S. 647 (1992) (one-year post-accusation delay is often presumptively prejudicial)
- State v. Said, 306 Neb. 314 (2020) (probable cause for cell-phone searches requires particularized facts beyond generic assertions)
- State v. Goynes, 303 Neb. 129 (2019) (warrant listing extensive cell-phone data types can be sufficiently particular when tied to a specific crime)