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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. SHORT

Cite as 310 Neb. 81

State of Nebraska, appellee, v. 

Marcus L. Short, appellant.

___ N.W.2d ___

Filed September 17, 2021. No. S-19-415.

1. Judgments: Speedy Trial: Appeal and Error. Generally, a trial court’s 

determination as to whether charges should be dismissed on speedy trial 

grounds is a factual question which will be affirmed on appeal unless 

clearly erroneous.

2. Pretrial Procedure: Appeal and Error. Trial courts have broad discretion with respect to sanctions involving discovery procedures, and 

their rulings thereon will not be reversed in the absence of an abuse 

of discretion.

3. Constitutional Law: Search and Seizure: Motions to Suppress: 

Appeal and Error. In reviewing a trial court’s ruling on a motion to suppress evidence based on a claimed violation of the Fourth Amendment, 

an appellate court applies a two-part standard of review. Regarding 

historical facts, an appellate court reviews the trial court’s findings for 

clear error, but whether those facts trigger or violate Fourth Amendment 

protections is a question of law that an appellate court reviews independently of the trial court’s determination.

4. Search Warrants: Affidavits: Probable Cause: Appeal and Error.

An appellate court reviews the trial court’s findings as to whether the 

affidavit supporting the warrant contained falsehoods or omissions and 

whether those were made intentionally or with reckless disregard for the 

truth for clear error. An appellate court reviews de novo the determination that any alleged falsehoods or omissions were not necessary to the 

probable cause finding.

5. ____: ____: ____: ____. After-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. 

Instead, a judge’s determination of probable cause to issue a search warrant should be paid great deference by reviewing courts.

6. Search and Seizure. Application of the good faith exception to the 

exclusionary rule is a question of law.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

11/05/2021 08:09 AM CDT
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STATE v. SHORT

Cite as 310 Neb. 81

7. Constitutional Law: Speedy Trial. The right to a speedy trial is unique 

from other rights enshrined in the U.S. Constitution for the protection 

of the accused because there is a societal interest in providing a speedy 

trial, which exists separate from, and at times in opposition to, the interests of the accused.

8. Speedy Trial: Witnesses. The deprivation of the right to a speedy trial 

may work to the accused’s advantage when adverse witnesses become 

unavailable or their memories fade over time.

9. Speedy Trial: Presumptions. Until there is some delay that is presumptively prejudicial, there is no necessity for inquiry into the other factors 

that go into the balance in determining if the right to a speedy trial has 

been violated.

10. Constitutional Law: Speedy Trial. Counsel cannot seek and obtain 

continuances to give the defense more time to be ready for trial because 

of the government’s dilatory behavior and then, after the fact, reverse 

course and claim that the indictment should be dismissed on the ground 

that the defendant’s right to a speedy trial under the U.S. Constitution 

has been infringed because of that behavior.

11. Speedy Trial. A defendant cannot claim the loss of the fundamental 

right to a speedy trial through the inherent delays of a process the 

defendant has called upon—even if that process was to vindicate another 

fundamental right.

12. Constitutional Law: Speedy Trial: New Trial: Appeal and Error.

Absent extraordinary circumstances, an appellate court does not consider the entire period of time beginning with the original charge or 

arrest in computing the length of the delay when there has been a mistrial. Instead, the constitutional speedy trial analysis focuses only on the 

period after the mandate for a new trial and the subsequent retrial.

13. Speedy Trial. Only misconduct involving deliberate delay tactics 

designed to circumvent the right to a speedy trial is an extraordinary 

circumstance warranting consideration of the period of delay before 

a mistrial.

14. Constitutional Law: Speedy Trial: Presumptions. A delay of a year or 

more is the benchmark commonly recognized as presumptively prejudicial in a constitutional speedy trial analysis.

15. Speedy Trial: Verdicts: Sentences. The more complex and serious the 

crime, the longer a delay might be tolerated, because society also has 

an interest in ensuring that longer sentences are rendered upon the most 

exact verdicts possible.

16. Constitutional Law: Prosecuting Attorneys: Evidence. A defendant 

has a constitutionally protected privilege to request and obtain from the 

prosecution evidence that is either material to the guilt of the defendant 

or relevant to the punishment to be imposed.
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STATE v. SHORT

Cite as 310 Neb. 81

17. Police Officers and Sheriffs: Prosecuting Attorneys: Evidence.

Police conduct resulting in suppression of favorable material evidence 

is imputed to the prosecution.

18. Due Process: Motions for Continuance: Evidence. There is no due 

process violation when the defendant has had an opportunity to request a 

continuance to adequately prepare the defense in light of evidence that, 

while disclosed late, is ultimately disclosed before the end of trial.

19. Constitutional Law: Speedy Trial. The Fifth Amendment has only a 

limited role to play in protecting against oppressive delay in the criminal context.

20. Criminal Law: Pretrial Procedure. Discovery in a criminal case is 

generally controlled by either a statute or a court rule.

21. Criminal Law: Courts. When a court sanctions the government in a 

criminal case for its failure to obey court orders, it must use the least 

severe sanction that will adequately punish the government and secure 

future compliance.

22. Pretrial Procedure: Dismissal and Nonsuit. Dismissal as a sanction 

for a discovery violation is only appropriate where less drastic alternatives are not available.

23. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

24. Search Warrants: Affidavits: Probable Cause. To determine whether 

a warrant was issued upon probable cause, a court generally limits its 

review to the four corners of the affidavit.

25. Affidavits: Evidence. An exception to the limitation of the court’s 

review to the four corners of the affidavit is where the defendant makes 

a preliminary proffer of falsity warranting an evidentiary hearing.

26. Affidavits: Probable Cause: Hearsay. Probable cause may be founded 

upon hearsay as well as upon information within the affiant’s own 

knowledge that sometimes must be garnered hastily.

27. Search Warrants: Affidavits: Probable Cause: Police Officers and 

Sheriffs: Presumptions: Proof. While there is a presumption of validity with respect to the affidavit supporting the search warrant, that presumption may be overcome and a search warrant may be invalidated if 

the defendant proves the affiant officer knowingly and intentionally, or 

with reckless disregard for the truth, included in the affidavit false or 

misleading statements that were necessary, or material, to establishing 

probable cause.

28. Search Warrants: Affidavits: Probable Cause. Omissions in an affidavit used to obtain a search warrant are considered to be misleading when 

the facts contained in the omitted material tend to weaken or damage 
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STATE v. SHORT

Cite as 310 Neb. 81

the inferences which can logically be drawn from the facts as stated in 

the affidavit.

29. Search Warrants: Probable Cause: Police Officers and Sheriffs: 

Evidence: Proof. If the defendant successfully proves, by a preponderance of the evidence, that the police knowingly and intentionally, 

or with reckless disregard for the truth, included a false or misleading 

statement or omitted information material to a probable cause finding, 

then the court examines whether the evidence obtained from the warrant 

and search was fruit of the poisonous tree.

30. Search and Seizure: Affidavits. Mere negligence in preparing the affidavit will not lead to suppression, as the purpose of the exclusionary 

rule is to deter misconduct.

31. Search Warrants: Affidavits: Probable Cause: Police Officers and 

Sheriffs. Observations by fellow officers engaged in a common investigation are a reliable basis for a warrant, and probable cause is to be 

evaluated by the collective information of the police as reflected in the 

affidavit and is not limited to the firsthand knowledge of the officer who 

executes the affidavit.

32. Search Warrants: Probable Cause: Words and Phrases. Probable 

cause sufficient to justify issuance of a search warrant means a fair 

probability that contraband or evidence of a crime will be found in the 

item to be searched.

33. Constitutional Law: Search Warrants: Probable Cause. The Fourth 

Amendment’s express requirement of particularity for a search warrant 

is closely related to its express requirement of probable cause.

34. Search Warrants: Affidavits: Probable Cause. A warrant affidavit 

must always set forth particular facts and circumstances underlying the 

existence of probable cause, so as to allow the magistrate to make an 

independent evaluation of probable cause.

35. Criminal Law: Search and Seizure: Evidence. The nexus between the 

alleged crimes and the article to be searched does not need to be based 

on direct observation; it can be found in the type of crime, the nature 

of the evidence sought, and the normal inferences as to where such evidence may be found.

36. Probable Cause: Police Officers and Sheriffs. Probable cause may 

be based on commonsense conclusions about human behavior, and due 

weight should be given to inferences by law enforcement officers based 

on their experience and specialized training.

37. Affidavits: Police Officers and Sheriffs. Wholly conclusory statements by a law enforcement officer affiant that the affiant has reliable 

information and reason to believe evidence of a crime will be found in a 

particular place are insufficient.
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STATE v. SHORT

Cite as 310 Neb. 81

38. Constitutional Law: Probable Cause: Words and Phrases. “Probable 

cause” is a term of art in Fourth Amendment jurisprudence that is 

defined as a practical, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable 

and prudent people, not legal technicians, act.

39. Search Warrants: Affidavits: Probable Cause. The fundamental question in a challenge to an affidavit for lack of probable cause is whether, 

under the totality of the circumstances illustrated by the affidavit, the 

issuing magistrate had a substantial basis for finding that the affidavit 

established probable cause.

40. ____: ____: ____. The magistrate who is evaluating the probable cause 

question must make a practical, commonsense decision whether, given 

the totality of the circumstances set forth in the affidavit, including the 

veracity of and basis of knowledge of the persons supplying hearsay 

information, there is a fair probability that contraband or evidence of a 

crime will be found in a particular place.

41. ____: ____: ____. Where the circumstances are detailed, where reasons 

for crediting the source of information is given, and where the magistrate has found probable cause to exist, the court should not invalidate 

the affidavit in a hypertechnical manner.

42. Affidavits: Probable Cause. Reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause.

43. Probable Cause: Police Officers and Sheriffs. Law enforcement cannot only rely on the general ubiquitous presence of cell phones in daily 

life, or an inference that friends or associates most often communicate 

by cell phone, as a substitute for particularized information to support 

probable cause that a specific device contains evidence of a crime.

44. ____: ____. To support probable cause, statements based on law enforcement expertise and experience must be accompanied by particular facts 

and circumstances such that, under the totality of the circumstances, 

including commonsense conclusions about human behavior, there is a 

substantial basis for concluding evidence of a crime will be found on the 

phone or phone information searched.

45. Search Warrants: Probable Cause. What will constitute sufficient 

particularized information to support probable cause that a cell phone 

or cell phone information searched will contain evidence of a crime 

depends upon the nature and circumstances of the crime and what is 

sought in the warrant.

46. Criminal Law. It can be generally recognized that cell phones tend to 

accompany their users everywhere, and thus, it may be inferred that a 

suspect’s cell phone probably accompanied the suspect at the time of 

the crime.
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STATE v. SHORT

Cite as 310 Neb. 81

47. Search Warrants: Probable Cause: Affidavits. A warrant may be 

considered so lacking in indicia of probable cause if the applicant files 

merely a bare bones affidavit, one which contains only wholly conclusory statements and presents essentially no evidence outside of such 

conclusory statements.

48. Search and Seizure: Police Officers and Sheriffs. To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter such conduct and sufficiently culpable that 

such deterrence is worth the price paid by the justice system, as exclusion serves to deter deliberate, reckless, or grossly negligent conduct, or 

in some circumstances recurring or systemic negligence.

49. Search Warrants: Affidavits: Police Officers and Sheriffs: Probable 

Cause. The good faith exception is applicable to an affidavit that fails 

to satisfy the substantial basis test to support probable cause, when 

police officers act in objectively reasonable good faith in reliance upon 

the warrant.

50. Search Warrants. A purpose of the particularity requirement for a 

search warrant is to prevent the issuance of warrants on loose, vague, or 

doubtful bases of fact.

51. Constitutional Law: Search and Seizure: Search Warrants: Police 

Officers and Sheriffs. The particularity requirement of the Fourth 

Amendment protects against open-ended warrants that leave the scope 

of the search to the discretion of the officer executing the warrant or 

permits seizure of items other than what is described.

52. Constitutional Law: Search Warrants: Police Officers and Sheriffs.

To satisfy the particularity requirement of the Fourth Amendment, a 

warrant must be sufficiently definite to enable the searching officer to 

identify the property authorized to be seized.

53. Search Warrants. The degree of specificity required in a warrant 

depends on the circumstances of the case and on the type of items 

involved.

54. Search Warrants: Probable Cause: Evidence. A search warrant may 

be sufficiently particular even though it describes the items to be seized 

in broad or generic terms if the description is as particular as the supporting evidence will allow, but the broader the scope of a warrant, the 

stronger the evidentiary showing must be to establish probable cause.

55. Search and Seizure: Search Warrants: Probable Cause. A warrant for 

the search of the contents of a cell phone must be sufficiently limited in 

scope to allow a search of only that content that is related to the probable cause that justifies the search.

56. Criminal Law: Police Officers and Sheriffs: Evidence. Officers cannot predict where evidence of a crime will be located in a cell phone 
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Cite as 310 Neb. 81

or call records or in what format, such as texts, videos, photographs, 

emails, or applications.

57. ____: ____: ____. There is no way for law enforcement to know where 

in the digital information associated with cell phones it will find evidence of the specified crime.

58. Constitutional Law: Search Warrants. The most important constraint 

in preventing unconstitutional exploratory rummaging is that the warrant limit the search to evidence of a specific crime, ordinarily within 

a specific time period, rather than allowing a fishing expedition for all 

criminal activity.

59. Constitutional Law: Search and Seizure. A brief examination of all 

electronic data associated with a cell phone is usually necessary in order 

to find where the information to be seized is located, and sucn examination is reasonable under the Fourth Amendment.

60. Constitutional Law: Warrantless Searches: Search and Seizure.

Warrantless searches and seizures are per se unreasonable under the 

Fourth Amendment, subject only to a few specifically established and 

well-delineated exceptions, which must be strictly confined by their 

justifications.

61. Constitutional Law: Arrests: Search and Seizure. In the case of a 

lawful custodial arrest, a full search of a person is not only an exception 

to the Fourth Amendment’s warrant requirement, but is also a reasonable 

search under that amendment.

62. Arrests: Search and Seizure: Probable Cause. A search incident to 

an arrest can be made before an arrest as long as probable cause for the 

arrest exists before the search.

63. ____: ____: ____. It does not matter that a defendant is not formally 

placed under arrest until after a search, so long as the fruits of the search 

are not necessary to support probable cause to arrest.

64. Warrantless Searches: Probable Cause: Police Officers and Sheriffs.

Probable cause to support a warrantless arrest exists only if law enforcement has knowledge at the time of the arrest, based on information that 

is reasonably trustworthy under the circumstances, which would cause a 

reasonably cautious person to believe that a suspect has committed or is 

committing a crime.

65. Arrests: Probable Cause: Police Officers and Sheriffs. Under the collective knowledge doctrine, the existence of probable cause justifying a 

warrantless arrest is tested by the collective information possessed by all 

the officers engaged in a common investigation.

Appeal from the District Court for Douglas County: Horacio 

J. Wheelock, Judge. Affirmed.
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STATE v. SHORT

Cite as 310 Neb. 81

Thomas C. Riley, Douglas County Public Defender, for 

appellant.

Douglas J. Peterson, Attorney General, and Stacy M. Foust 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Freudenberg, J.

I. INTRODUCTION

The defendant challenges the district court’s denial of a 

motion to dismiss with prejudice or for absolute discharge 

based on late disclosures of discovery information resulting 

in delays the defendant argues implicated his speedy trial 

rights. The defendant also challenges the admission of evidence at trial obtained from the searches of his residence, cell 

phones, call records, and cell site location information on the 

ground that the searches violated his Fourth Amendment rights. 

Specifically, the defendant asserts that the seizure of his cell 

phones was pursuant to an unlawful arrest and the information 

contained thereon would not have been inevitably discovered; 

the warrant for the search of his residence was based on an 

affidavit containing falsities and material omissions; the warrants for the searches of his cell phones, call records, and 

cell site location information were supported by affidavits 

that failed to support probable cause; and the warrants for the 

searches of his cell phones, call records, and cell site location 

information lacked particularity. We affirm.

II. BACKGROUND

Marcus L. Short’s convictions stem from three separate 

incidents that were tried together in two trials after the first 

trial resulted in a mistrial. Following a retrial, Short was convicted of murder in the first degree, a Class IA felony; use 

of a firearm to commit a felony, a Class IC felony; and two 

counts of possession of a firearm by a prohibited person, each 

a Class ID felony, in relation to the death of Garion Johnson. 
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STATE v. SHORT

Cite as 310 Neb. 81

Short was acquitted on the murder charge relating to the death 

of Deprecia Neelon and the accompanying use of a firearm to 

commit a felony charge. Short was sentenced to life imprisonment for Johnson’s murder and 49 to 50 years’ imprisonment 

on each of the other convictions to be served consecutively 

with the life sentence.

1. Shootings

The charges stemmed from three separate shootings on separate days, August 5, 6, and 8, 2015, suspected to be perpetrated 

by Short, Preston Pope, and Shadow Harlan. Neelon was killed 

on August 6. Johnson was suspected to be the target in all three 

shootings and was ultimately killed on August 8. Johnson was 

Neelon’s boyfriend’s cousin.

(a) August 5, 2015

At approximately 6:35 p.m. on August 5, 2015, Johnson 

was sitting in a white Chevy Impala outside of Neelon’s residence when an individual walked up and fired a gun at him. 

Johnson was able to run away as the shooter chased him. One 

.45-caliber spent shell casing and a tennis shoe were recovered 

at the scene. Two witnesses identified a photograph of Pope as 

the shooter.

(b) August 6, 2015

In the early evening hours on August 6, 2015, someone intentionally set the outside of Neelon’s residence on fire. While 

Neelon was outside investigating and attempting to put the fire 

out, she was shot seven times and died at the scene.

That same night, an anonymous tip came in regarding a person named “Shadow” telling people that he had been involved 

in a shooting a few blocks away. Officers responded to the 

address provided in the tip, which was a couple blocks from 

the Neelon residence, and apprehended Harlan as he tried to 

flee from the residence. Harlan matched witnesses’ descriptions 

of the shooter and was wearing the same clothes described by 

witnesses when he was apprehended.
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STATE v. SHORT

Cite as 310 Neb. 81

Witnesses observed multiple individuals quickly leave the 

area after the Neelon shooting in two separate vehicles: an 

older blue van and a white sedan. Officers later located and 

attempted a traffic stop of a van matching the description 

on August 14, 2015. Pope fled the traffic stop and was later 

arrested in the area where the van was located. The van was 

registered to Pope’s mother, but she told officers that Pope 

used it.

Evidence recovered at the Neelon residence included a black 

knit glove and three .45-caliber spent shell casings. A pricetag 

from a pair of jersey gloves was found in the alley about a 

block away from the Neelon residence.

A fingerprint lifted from the pricetag was matched to Short. 

Further DNA testing also revealed that Short could not be 

excluded as a partial profile contributor to DNA found on the 

inside of the glove.

(c) August 8, 2015

Johnson was at the residence of his girlfriend, Mikayla 

Finley, on Fontenelle Boulevard on the morning of August 8, 

2015. Finley told officers that she told Johnson to move her 

white Chevy Impala into the garage. When Johnson was outside moving the Impala into the garage, Finley heard noises 

she believed were gunshots. Johnson reversed the vehicle, 

circled through neighboring yards, and crashed into the garage 

of a nearby residence, all while shots were being fired at 

the Impala.

Finley told officers that she saw two males standing around 

her Impala and that one made eye contact with her. She provided a general description of him to police, but was unable to 

identify anyone when she was presented with a photographic 

lineup that day.

Witnesses, including Finley, described the shooters. Both 

wore dark clothing, and one was described as a Black male, in 

his late teens, approximately 5 feet 8 inches tall, and dressed in 

a black hoodie or a black hoodie with a red “N” on it.
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STATE v. SHORT

Cite as 310 Neb. 81

A witness reported a suspicious white Monte Carlo with 

white and blue dealership plates parked in the area that morning on 41st Street. Another witness reported seeing two Black 

males dressed in black hoodies and black sweatpants walking fast through yards, from the direction of where he heard 

gunshots and a crash, and subsequently heading south on 41st 

Street. Seconds later, this witness saw what appeared to be a 

white Monte Carlo speed north on 41st Street. A police detective lived in that area, and video surveillance from his house 

showed a white Chevy Monte Carlo that traveled south on 

Fontenelle Boulevard at 9:48 a.m.

Evidence recovered from the scene included four .45-caliber 

spent shell casings. Law enforcement believed the shooting 

was related to the August 5 and 6, 2015, shootings.

Detectives were provided the description of the white Chevy 

Monte Carlo and Short’s name, whose fingerprint matched the 

fingerprint found on the pricetag near the Neelon residence. 

At 1:31 p.m., law enforcement arrived at Short’s last known 

address at 4268 Binney Street. There they discovered, parked in 

the driveway, a white Chevy Monte Carlo with white and blue 

“paper plates” and in-transits for “M.S.” in the window.

2. Search of Short’s Residence

Det. Ryan Hinsley drafted an affidavit for a search warrant 

of 4268 Binney Street, and he joined law enforcement already 

at the residence at 4:17 p.m. on August 8, 2015, with the 

signed search warrant.

(a) Affidavit

In the affidavit for the search warrant, Hinsley stated officers 

had just and reasonable grounds to believe that certain types of 

property would be found at 4268 Binney Street and requested 

permission to seize items from the house and from the Monte 

Carlo in the driveway, as well as the ability to process any 

areas that may contain a DNA profile or fingerprints.

Items of interest to be seized included venue items identifying those parties either who owned or who were in 
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Cite as 310 Neb. 81

control of the residence and the white Chevy Monte Carlo with 

in-transits and dealer paper plates; firearms; ammunition; any 

companion equipment for firearms; cell phones; computers; 

audio and video equipment; storage media; and “[a]ny and all 

clothing or property believed to have been worn and/or used 

during the commission of the assault, to include, but not limited to a black hoodie with a red ‘N’ on it along with a black 

bandana with white design and a red bandana.”

Pertaining to the just and reasonable grounds for believing 

such evidence would be found at the residence, the affidavit described:

On Tuesday, August 4, 2015, Omaha Police Department 

Officers received a radio call to [the Neelon residence] 

for an attempted felony assault. The victim was identified 

as JOHNSON, Garion [date of birth] 06/. . ./1996 who 

was uncooperative at the time.

On Wednesday, August 5, 2015, Omaha Police Department Officers received a radio call to [the Neelon residence] for a shooting. The victim in that incident later 

died from her injuries. During that investigation, Omaha 

Police Department Crime lab recovered a glove from 

the scene and from that glove obtained a fingerprint that 

was found to belong to Marcus SHORT [date of birth] 

10/. . ./89.

The affidavit further described:

On Saturday, August 8, 2015, at 0949 hours officers 

of the Omaha Police Department were called to [a specific address on] Fontonelle [sic] Boulevard, Omaha, NE 

in regards to a shooting. Upon arrival officers located 

the victim (later identified as Garion JOHNSON, date 

of birth 06/. . ./1996) inside the driver’s seat of a white 

2007 Chevy Impala . . . . JOHNSON had been shot several times throughout his body and was transported from 

the scene by medics to Creighton Health Initiative (CHI) 

Hospital where he later succumbed to his injuries.
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Cite as 310 Neb. 81

It was later elicited through testimony that the dates in the 

affidavit of the prior incidents were incorrect and that it was 

actually August 6, 2015, that the Neelon homicide occurred.

The affidavit further described Finley’s statements to the 

investigating officers:

Officers located JOHNSON’s girlfriend (Mikayla 

FINLEY, date of birth 4/. . ./1990) . . . . FINLEY stated 

she then heard a series of muffled banging noises coming 

from the garage area which she believed were gun shots. 

FINLEY advised she looked out the front window of the 

residence and saw two unknown males standing around 

her Impala and JOHNSON in the front seat attempting 

to back out of the driveway. FINLEY stated one of the 

males made eye contact with her and was described as a 

[B]lack male, 16-18 years old, 5′8-5′10, 140-160 pounds, 

wearing a black hoodie with a red “N” on the front 

[of] it.

The affidavit stated what other witnesses on the scene of 

the Johnson homicide on August 8, 2015, reported to law 

enforcement:

[Another witness] was also located at the scene and 

brought to OPD Central for an interview. [She] advised 

she saw one [B]lack male wearing all black clothing 

(hoodie) and a bandana covering his face shooting with 

his right hand at the white Chevy Impala. [The witness] 

advised the Impala then drove through her front yard trying to flee from the shooter and crashed into a house a 

few house[s] down from the originating house.

. . . Additionally, witnesses stated after the shooting 

two [B]lack males were seen running through yards and 

got into a white Chevy Monte Carlo parked towards 

the west, which then fled from the area westbound on 

Font[e]nelle Boulevard with paper plates.

Finally, the affidavit described how the investigation on 

August 8, 2015, progressed to 4268 Binney Street:
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Cite as 310 Neb. 81

On Saturday, August 8, 2015, members of the Omaha 

Police Department later located a White Chevy Monte 

Carlo with In-Transits and paper plates parked in front 

of 4268 Binney Street. At that location, Officers also 

located a party identified as Marcus SHORT [date of 

birth] 10/. . ./89.

(b) Fruits of Search

Officers in their search discovered two firearms in Short’s 

bedroom at his residence, a .45-caliber Glock handgun and 

a .357-caliber Smith & Wesson revolver. In addition to the 

two firearms, officers seized or took photographs of several 

other items found at the house, including a muddy pair of 

black pants, two black hoodie sweatshirts, muddy shoes, and 

two pairs of black gloves. The officers also seized as venue 

items a cell phone receipt on which Short’s name and a phone 

number with a 702 area code appeared, as well as a form from 

the Douglas County public defender’s office regarding Short’s 

representation in a misdemeanor matter identifying Short as a 

client with his contact information including his 4268 Binney 

Street address and the phone number with the 702 area code.

3. Seizure of Cell Phones

Short was not initially at 4268 Binney Street at the time 

law enforcement arrived, but agreed to Det. Candace Phillips’ 

request that he return to his residence. Officers, including 

Phillips, met Short at the perimeter of the crime scene upon his 

arrival, approximately three houses away from his residence.

Officers handcuffed Short and placed him in a police cruiser. 

They seized two cell phones and a set of keys from his person. 

At some point, Short was released from the handcuffs and 

given his phones back, but after some disagreement between 

law enforcement officers, Short was placed back in handcuffs 

and his phones were seized again. Short was then transported 

to the Omaha Police Department (OPD) where he was held 

in an interview room and interviewed by Det. Eugene Watson 

and another detective. It was approximately 3 hours after being 
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transported to OPD, while Short was being interviewed, that 

law enforcement found the two firearms at Short’s residence. 

Upon that discovery, Short was formally arrested on two 

counts of possession of a firearm by a prohibited person.

4. Search of Content of Cell Phones

On August 11, 2015, officers obtained a warrant to search 

Short’s cell phones that they had seized from Short’s person 

on August 8, which were an LG model LG237c flip-style 

phone (LG flip phone) and an LG model LS740 phone (LG 

smart phone).

(a) Affidavit

The affidavit for the search warrant included the information that (1) witnesses to the Johnson homicide described a 

suspect vehicle fleeing the area after the shooting as being a 

white Chevy Monte Carlo with no license plates, displaying 

in-transits and dealer paper plates; (2) the suspect vehicle was 

located in the area of 42d and Binney Streets; (3) Short was 

identified as the owner of the vehicle; (4) Short was located on 

August 8, 2015, and transported to OPD to be interviewed; and 

(5) Short had the LG flip phone and the LG smart phone in his 

possession, which were booked into evidence.

Further, the affidavit stated:

Affiant Officer knows, through training and experience, that persons use cellular telephones to communicate. This includes . . . persons planning a crime, committing a crime and/or trying to regroup after committing 

a crime. These communications can be in the form of 

telephone calls, emails and/or messages. People are also 

know[n] to contact parties using cellular telephones via 

telephone calls, emails of messages and threaten physical 

harm to others.

Affiant Officer knows, through training and experience, that persons who engage in criminal acts will sometimes take video of the act, video before committing the 

crime and/or after the crime was committed. Persons are 
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also known to pose with weapons and take photographs of 

themselves and others displaying weapons.

The affidavit requested to search specific categories of data 

on the cell phones and specified what each of those categories 

could reveal with regard to a criminal investigation, which the 

search warrant used and restated as the areas authorized to 

be searched.

(b) Warrant

The search warrant authorized a search of the LG flip phone 

and the LG smart phone in relation to the homicide of Johnson 

and allowed officers to obtain from the cell phones the following: (1) phone information and configurations; (2) user 

account information; (3) call logs; (4) contact lists; (5) short 

and multimedia messaging service messages; (6) chat and 

instant messages; (7) email messages; (8) installed applications 

and their corresponding data; (9) media files such as images, 

videos, audio, and document files; (10) internet browsing history, including bookmarks, “browser cookies,” and associated 

cache files; (11) cell tower connections, global positioning system fixes, waypoints, routes, and tracks; (12) WiFi, Bluetooth, 

and synchronization connection history; (13) memos and notes; 

(14) user dictionary information; and (15) calendar information. The warrant further stated:

Affiant Officer or their agents may be required to examine every file and scan its contents briefly to determine 

whether it falls within the scope of the warrant. This is 

necessary as it is difficult to know prior to the search the 

level of the technical ability of the device’s user and data 

can be hidden, moved, encoded or mislabeled to evade 

detection.

(c) Fruits of Search

Pursuant to this search, police determined that the phone 

number for the LG flip phone was 402-619-2962. Since this 

was only a flip phone without capabilities to take screenshots, 

the officer who examined the phone took photographs of 
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the screen and those photographs were entered into evidence. 

The photographs of the LG flip phone’s content included several text messages and phone calls between this phone and 

Pope’s phone.

The LG smart phone had a “SIM” card, which usually contains only the subscriber number and phone number of the 

device. This card was removed from the phone and put into a 

reader to read the content on the card, and the number associated with the phone was discovered to be 702-619-1025.

The LG smart phone itself was “locked,” and OPD did 

not have the capabilities in 2015 to take data from a locked 

phone. The LG smart phone was sent to a computer crime 

institute that used a computer program to read the data chip 

of the phone and then returned a readable report of its findings. The data of the LG smart phone showed several contacts, 

including incoming and outgoing phone calls and text messages between the LG smart phone and Pope’s phone (contacts 

with “Playboi”) and contacts with “Shadow,” perceived to be 

Harlan. The phone also showed that Short visited websites for 

news articles about the homicides.

5. Search of Call Records With Cell 

Site Location Information

On August 11, 2015, a warrant was issued for information 

from a cell phone service provider in regard to the phone number 702-619-1025 (Short’s LG smart phone) and a number of 

another cell phone unrelated to Short’s appeal. An identical 

warrant was issued for information from another cell phone 

service provider in regard to the phone number 402-619-2962 

(Short’s LG flip phone) and two other numbers unrelated to 

Short’s appeal. A new warrant was obtained on December 5, 

2018, for the search of call records and cell site location information for the LG smart phone, after the court’s ruling that 

Short’s statements as to his phone numbers, relied upon in the 

original warrant, were obtained as a fruit of an unlawful arrest 

and in violation of Short’s Miranda rights and Short’s right 

to counsel. The court determined the December 2018 search 
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warrant was independent of the tainted evidence because police 

obtained the same phone number associated with Short while 

executing a valid search warrant at Short’s residence. No 

explanation was offered as to why Short’s LG flip phone was 

not included in the 2018 warrant, since the phone number for 

that phone was found during the search of the physical phone 

pursuant to a valid search warrant discussed above. Only the 

December 5 warrant is at issue in this appeal.

(a) Warrant

The search warrant authorized officers to obtain customer or 

subscriber information for the LG smart phone with the phone 

number 702-619-1025 for the July 8 to August 10, 2015, time 

period. It also authorized “[a]ll records and other information 

relating to” that number and time period, including (1) the 

records of user activity for any connections made to or from 

the account, including the date, time, length, and method of 

connections, data transfer volume, user name, and source and 

destination of internet protocol addresses; (2) all available 

toll records to include call detail, “SMS detail, data sessions, 

per call measurement data (PCMD), round trip time (RTT), 

NELOS, cell site and cell site sector information and cellular 

network identifying information”; (3) the noncontent information associated with the contents of any communication or file 

stored by or for the accounts, such as the source and destination email addresses and internet protocol addresses; (4) the 

correspondence and notes of records related to the accounts; 

and (5) the current cellular site list, in electronic format, which 

includes any and all markets, switches, and areas the target 

phone utilized during the time period above.

(b) Affidavit

In support of the December 2018 warrant, the affidavit 

indicated the grounds for issuance of the search warrant 

included the following: (1) witnesses after the Johnson homicide stated that two Black males were seen running through 

yards and that they then got into a white Chevy Monte Carlo 
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with in-transits and dealer paper plates, (2) the suspect vehicle 

was located in the area of 42d and Binney Streets, and (3) the 

owner of the vehicle was identified as Short.

With regard to how the police came to determine Short’s 

phone number, the affidavit stated:

On Saturday, August 8th 201[5], Omaha Police 

Homicide Detectives Wendi DYE . . . and Ryan HINSLEY 

. . . served a court ordered search warrant at 4268 Binney 

Street, Omaha, Nebraska, Douglas County [Short’s residence]. Through the course of the investigation it was 

determined that suspect Marcus SHORT . . . resided at 

this residen[ce]. Items of venue with Marcus SHORT’s 

name were located in the residence in the upstairs/attic 

bedroom.

Item #12 document bearing Marcus SHORT’s name 

was found in the trash in the bedroom. The document was 

issued from the Douglas County Public Defender’s Office 

containing the following information:

Client Name: SHORT, Marcus

Address: 4268 Binney Street Omaha, Ne 68111

Telephone Number: 702-619-1025

Date of Birth: 10/. . ./1989

Charges: Paraphernalia and Resisting

A second receipt from [a cell phone provider] with 

Customer Name: Marcus Short phone number 702-619-

1025 dated 8/2/2015 1:41:58 pm was also located in the 

bedroom of Marcus SHORT.

Affiant Officer believes through the receipts, Marcus 

Short was using the phone number 702-619-1025 to communicate with others.

Regarding the need for the records for the investigation, the 

affidavit stated:

Affiant Officer believes that if she is granted this Search 

Warrant the information received from the carrier would 

help to identify other witnesses and suspects to the crime 

under investigation. The information gained would also 
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help officers determine the locations of the cellular telephone devices used and thus the persons using those telephone numbers. This information would help to prove or 

disprove statements of witnesses and/or suspects.

Affiant Officer is requesting the time period listed 

above to determine a pattern of behavior for the target(s) 

both before and after the crime under investigation.

From training, experience and research Affiant Officer 

is aware that the data stored by cellular network providers can provide invaluable insight for criminal investigations. . . . In addition to personal use, cell phones are 

often used as tools in criminal activity. Affiant Officer is 

aware of numerous instances where cell phones were used 

by participants in crimes to communicate via voice and 

text messaging. Affiant Officer is also aware of instances 

where the cell phone was operating in the background, 

accessing the cell provider’s network, and generating 

location based data. When a cell phone interacts with the 

cellular provider’s network, it leaves records that allow 

for the identification of locations where the cell phone 

accessed the network. These interactions between the cell 

phone and the network can be created intentionally or 

accidentally by the user, or automatically by the device 

itself as part of its regular functioning.

The affidavit further explained how each of the categories 

of information requested from the cell phone service providers could be “invaluable tools” when conducting a criminal 

investigation such as assisting in identifying or confirming 

the owner of a cell phone; constructing a timeline of events 

regarding an investigation; establishing communications 

between parties to identify coconspirators, witnesses, or victims; establishing the proximity of a location of the cell phone 

to demonstrate that the device, and its user, was in a location 

associated with an incident; and providing insight into an 

individual’s level of culpability and knowledge regarding an 

investigated incident.
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(c) Fruits of Search

The records received were sent to the Federal Bureau of 

Investigation for assistance. There, a special agent used the 

call records provided by the two cell phone service providers 

to map out the cell towers being used during the activity of 

Pope’s phone and Short’s LG smart phone on August 5, 6, and 

8, 2015, and to give an approximate location of the cell phones 

on those dates. Using the call detail record with cell site information that identifies which switch, cell tower, and cell face 

sector of that tower that the cell phone used when it made a 

call, the special agent was able to determine that Short’s LG 

smart phone made six calls between 5:30 and 7:30 p.m. on 

August 5 and was not in the area of the Neelon residence 

when these calls were made. Pope’s phone made eight calls 

between 5:30 and 6:59 p.m. on August 5 while Pope’s phone 

location progressed north and was within the footprint of the 

tower that covers the area of the Neelon residence by the time 

of the phone call at 6:26 p.m. On August 6, between 7:30 and 

9:07 p.m., Short’s LG smart phone was not in the footprint of 

the tower that covers the Neelon residence, but Pope’s phone 

was. On August 8, focusing on the Johnson homicide crime 

scene on Fontenelle Boulevard, the special agent determined 

that between 6 and 8 a.m., Short’s LG smart phone was in the 

area of his residence and then moved to the area of the Johnson 

crime scene for phone calls made between 8 and 10 a.m. 

Pope’s phone was also in the area of the Johnson crime scene 

on August 8 between 8 and 10 a.m. and was later in the area of 

Short’s residence between 10 and 11 a.m.

6. Discovery Delays and Motions to Continue 

Occurring Before Mistrial

(a) Short’s October 4, 2016, Motion 

to Compel Discovery

On October 4, 2016, defense counsel moved to compel 

discovery the prosecution had failed to disclose in accordance 

with a court order issued approximately 4 months before. In 
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the motion, Short requested an order compelling the State to 

provide the DNA results of the clothing tested; the fingerprint 

analysis notes and reports for the glove found; the cell tower 

data, reports, and notes for the LG flip phone and the LG smart 

phone; the call and text history for the “white Iphone” and the 

“black Sprint” phone seized; all reports for multiple case files; 

and all photographs shown to Johnson’s girlfriend, Finley, on 

August 8 and 10, 2015. The State explained at a hearing on the 

motion that it was expediting disclosure of discovery materials 

the best it could. No order resulted directly from the October 4 

motion to compel.

(b) Short’s December 12, 2016, 

Motion to Continue

On December 12, 2016, counsel for Short filed a motion 

to continue the trial on several grounds, including significant 

delays in the receipt of discovery materials. The court granted 

the motion to continue. It reset trial for May 15, 2017, stating 

in the order that the “speedy trial clock is stopped” until then.

(c) Short’s May 3, 2017, 

Motion to Continue

After the State filed a motion for leave to endorse Marcela 

Mitchell as a witness on May 2, 2017, Short filed a motion 

on May 3 to continue trial based on the late disclosure on 

May 2 of the OPD report that included Mitchell’s identification of Pope from a photographic spread. Phillips admitted 

that Mitchell identified Pope as an individual who attempted 

to shoot Johnson on August 5, 2015, but Phillips had failed to 

dictate a police report regarding this identification until March 

9, 2017. The court granted Short’s motion to continue and reset 

trial to begin on October 16. The court again stated in its order 

that the “speedy trial clock is stopped” until then.

The Douglas County public defender’s office was appointed 

to represent Short as new counsel on June 27, 2017. On July 

5, the new counsel orally requested the court to continue the 
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October 16 trial date, which oral motion the court sustained. A 

new trial date was set for March 19, 2018.

(d) Short’s Motion for Additional Discovery

On November 14, 2017, Short filed a motion for additional 

discovery, requesting a copy of the “Homicide Lead Sheet” 

maintained by the OPD homicide unit for the Johnson homicide and the Neelon homicide. This motion was granted by 

the court on November 27 in an ongoing manner, such that the 

State was ordered to provide continuous updates if information 

was added to the lead sheets.

(e) Motion to Dismiss or Motion 

for Complete Discharge

Short’s case was originally consolidated with the case 

against Pope, but after Short’s motion to sever trials with Pope 

was granted and Pope’s trial was set to go first, on March 19, 

2018, Short’s trial was ordered to commence April 30. On 

April 13, Short filed a motion to dismiss all charges or, in the 

alternative, for a complete discharge. The motion relied on the 

constitutional rights to due process and a speedy trial, as well 

as Neb. Rev. Stat. § 29-1919 (Reissue 2016) regarding discovery sanctions.

The motion outlined the discovery motions, orders, and 

continuances described above. Short noted that discovery continued to be provided, with the most recent material received 

on April 11, 2018. Short asserted that the untimely receipt of 

discovery materials was due to a “continuing pattern of gross 

misconduct and mis-management by [OPD].” Short asserted 

that his ability to prepare to defend these cases at trial had been 

severely impeded.

Short argued that with trial scheduled to commence on 

April 30, 2018, it would be highly unlikely the defense would 

be able to locate witnesses in so short a time period between 

disclosure of the witnesses’ statements and the commencement of trial. But Short did not seek another continuance. 

Short pointed out that trial had already been continued on 
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two previous occasions due to late disclosure of discovery 

materials and explained that he was put in a place to either 

“request[] another continuance or proceed[] to trial without 

sufficient time to locate, interview, depose, and call as witnesses at trial, those witnesses who could provide exculpatory evidence at trial.” Short argued that “due to the State’s 

continuing inability and failure to comply with its discovery 

obligations and requirements, the State has violated Short’s 

right to a speedy trial.”

Short asked the court to dismiss with prejudice all charges 

against him or, in the alternative, to grant “complete discharge” 

of all charges, because, due to the misconduct of OPD, it 

was impossible for Short to receive a fair trial. Further, Short 

argued that OPD’s misconduct in failing to manage and disclose evidence and discovery materials was imputed to the 

prosecution, so the prosecution should be held responsible for 

such misconduct.

(i) Evidence Presented at Hearing on Motion

An evidentiary hearing on Short’s motion to dismiss or for 

complete discharge was held on April 16, 18, and 19, 2018.

Phillips and Watson testified at the hearing. They were both 

assigned to the Neelon homicide investigation team. The detectives assigned to the Johnson homicide all completed their 

police reports in a timely manner.

Phillips and Watson admitted that on multiple occasions during the Neelon homicide investigation, years elapsed between 

conducting an interview and the generation of any police report 

on that interview. They agreed this was not standard operating procedure for a homicide detective. Phillips admitted that 

she had failed to complete reports in a timely manner in other 

cases, which resulted in a mistrial because of the late disclosure of police reports. As a result of the publicity regarding this 

case and the pattern of delays in writing reports, Watson was 

removed from the homicide unit.

Other sergeants and detectives with experience in the homicide unit at OPD testified that a detective is expected to 
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promptly book the original disc of an interview into evidence 

at the property room and that the time for completing a 

report on an interview can vary between 2 weeks and 6 months 

depending on the workload of the detective and the priority 

of the case. Several detectives testified that they were able to 

work overtime hours to complete reports and, in their opinion, 

taking more than a year to complete a report is not acceptable 

and would be poor practice.

Watson testified his delays were because of the workload 

and having to prioritize active cases. He also testified that he 

had experienced personal issues, such as heart failure, and that 

his case materials were “all on hold” during his medical leave 

in 2017. Because of these distractions and his workload, he had 

forgotten about interviews and misplaced discs. Phillips testified that her delays were because of the workload and because 

of prioritizing cases where an arrest had been made.

The Douglas County Attorney testified at the hearing that 

his office has an “open file policy” regarding discovery, 

whereby his office sends defense counsel copies of all evidence provided by law enforcement agencies and other sources 

as soon as possible, and that his office relies on OPD to notify 

it when OPD receives more evidence. He testified that he was 

aware of multiple occasions where two detectives, Phillips 

and Watson, failed to provide evidence and properly turn over 

evidence in a timely manner, resulting in one or more mistrials in the past. The Douglas County Attorney testified that 

he informed the command staff at OPD of the ongoing concerns with Phillips and Watson, but that ultimately, he had no 

authority over OPD.

(ii) Order Denying Motion

On April 26, 2018, the court denied Short’s motion to 

dismiss or, in the alternative, for complete discharge. The 

court acknowledged the above dates and procedure on how 

the motion came to be and that “[d]iscovery continues to be 

provided and material was provided at least as late as April 

11, 2018.”
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a. Speedy Trial

In examining whether Short’s constitutional right to a 

speedy trial was violated, the court separated the Johnson 

homicide from the Neelon homicide because of the different 

OPD homicide teams assigned to each homicide. The court 

found no constitutional speedy trial violations attributable to 

the Johnson homicide investigation because the homicide team 

that was assigned to that homicide investigated in a timely and 

efficient manner, and no discovery violation was attributed 

to their investigation. Accordingly, the court concluded that 

Short’s motion to dismiss or motion for complete discharge, as 

it related to the Johnson homicide, was overruled.

In analyzing the Neelon homicide, the court used factors 

laid out in Barker v. Wingo 1 to determine whether Short was 

deprived of his constitutional right to a speedy trial: (1) the 

length of the delay, (2) the reason for the delay, (3) whether 

and when the defendant asserted his speedy trial right, and 

(4) whether the defendant was prejudiced by the delay. The 

court concluded the length of the delay was approximately 

10 months.

The court noted that the three prior continuances in this 

case were on Short’s motions in December 2016, May 2017, 

and June 2017. Then, upon severance of the trials for Short 

and Pope, Short’s trial was set for April 30, 2018. After each 

motion to continue was sustained, Short engaged in extensive pretrial litigation, and as of the date of the order, several 

defense motions in limine and a motion to suppress were set 

for hearing on April 27. The court acknowledged that there 

was no evidence that the State deliberately attempted to delay 

the trial. The court found that Short did not make a viable 

showing that his defense of the Neelon homicide was prejudiced due to unavailable witnesses that would have been available at a more timely trial, nor that the witnesses were unable 

to accurately recall past events because of any delay. For all 

1 Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).
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these reasons, the court found there was not a violation in the 

Neelon homicide of Short’s right to a speedy trial.

b. Due Process

In rejecting Short’s argument that alleged due process violations called for the dismissal of all criminal charges with prejudice, the court found that “the conduct of Detective Phillips 

and Detective Watson, the lack of oversight by OPD, and the 

actions of the County Attorney’s Office [did] not indicate bad 

faith.” The court acknowledged that the evidence showed a 

pattern of failure to follow best practices and procedures, but 

did not show any deliberate attempt to gain an unfair tactical 

advantage, official animus, or a conscious effort to suppress 

exculpatory evidence. Thus, the evidence did not warrant the 

severe sanction of the dismissal of charges.

c. Statutory Violations

Finally, the court addressed the alleged statutory discovery 

violations. The court acknowledged that Nebraska has not specifically addressed what factors a court should consider when 

asked to dismiss an information because of a discovery violation in a criminal case.

When looking at outside jurisdictions, the court acknowledged the preferred sanction is a continuance. The court noted 

that the Eighth Circuit Court of Appeals has held that the relevant factors in determining an appropriate sanction for a discovery violation are “‘the reasons for the government’s delay 

and whether it acted intentionally or in bad faith; the degree of 

prejudice, if any, suffered by the defendant; and whether any 

less severe sanction will remedy the prejudice and the wrongdoing of the government.’” 2

The court reiterated that the evidence did not show Phillips 

or Watson acted in bad faith or with the intent to mislead, 

deceive, or act with a sinister motive in not completing 

2 U.S. v. Davis, 244 F.3d 666 (8th Cir. 2001).
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their reports in a timely manner; the State did not act in bad 

faith; and any prejudice to Short’s preparation for trial as a 

result of the delays could be cured with a continuance. Based 

on the finding that there was no bad faith on the part of the 

State, the court decided to impose the least severe sanction that 

would accomplish prompt and full compliance with the discovery order, “which [was to allow] Short a continuance should he 

request one.”

7. Jury Selection and Mistrial

Short did not request a continuance, and jury selection for 

his first trial proceeded as scheduled on April 30, 2018. Upon 

motions from both parties, a mistrial was declared on May 8 

due to improper jury contact by an unauthorized third party 

associated with Short. Retrial was scheduled to commence on 

January 7, 2019. The order scheduling retrial for January 7 

indicated that this was set by agreement of the parties.

8. Retrial After Mistrial

Following the mistrial, Short did not renew his motion to 

dismiss or, in the alternative, for absolute discharge based on 

discovery violations. Short’s retrial commenced as scheduled 

on January 7, 2019. At trial, Short made several objections 

relevant to this appeal. The court did not generally adopt its 

rulings from the aborted trial, but referred to the hearings and 

rulings on motions to suppress when Short objected to the 

same evidence at the retrial.

(a) Seizure of Cell Phones and 

Search of Residence

Short objected at trial to the admission of all evidence stemming from his allegedly unlawful de facto arrest when he was 

handcuffed and placed in the police cruiser and concurrent 

unlawful seizure of his cell phones, and he objected to all 

evidence stemming from the search of his residence, which 

he asserted was pursuant to a false and misleading affidavit. 
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These two objections purportedly encompassed all evidence 

from the search of the physical phones, his call records, and 

the cell site location information, as well as the physical evidence seized at his residence.

The court overruled the motion regarding the seizure of the 

phones, reasoning the phones would have inevitably been discovered when Short was lawfully arrested after discovery of 

the firearms at Short’s residence. The court reiterated its prior 

ruling before the mistrial that the phones had been unlawfully 

seized during a de facto arrest without probable cause, but that 

the inevitable discovery doctrine exception still allowed the 

seizure of the phones.

The court also overruled the objection relating to the affidavit in support of the search of Short’s residence, which, 

as relevant to this appeal, focused on the statements that 

Short’s fingerprints were found on the glove, that “witnesses 

stated after the shooting two [B]lack males were seen running 

through yards and got into a white Chevy Monte Carlo,” and 

that Short was located at 4268 Binney Street, as well as the 

omission of Finley’s inability to identify Short as the shooter 

in a photographic spread. The court found that after striking 

the disputed portions of the affidavit and including the omitted 

information, the affidavit was still sufficient to establish probable cause to search Short’s residence. Alternatively, the court 

reiterated its findings that the evidence at hearings on Short’s 

motion to suppress, held before the mistrial, demonstrated that 

any false statements or omissions were not intentional or in 

reckless disregard for the truth.

Hinsley had testified that he based the affidavit on information he obtained from his interview of Finley and information 

relayed to him by Sgt. Danette Culler, Phillips, and Watson, 

who were all at the scene. Hinsley testified that he believed the 

pricetag and the glove were the same evidence until he learned 

his mistake shortly before the hearing. Hinsley explained he 

had written the affidavit as he talked on the phone with Culler 

and had no reason to question or clarify the information 
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Culler was telling him. Culler denied that she told Hinsley 

that Short’s fingerprint was taken from the glove found at 

the scene, and she testified that she recalled discussing with 

Hinsley a pricetag that was found that contained a fingerprint 

match for Short.

The evidence at the hearings also demonstrated that officers canvassing the area spoke with several witnesses related 

to the Johnson homicide and that some witnesses saw two 

Black males leaving the scene while other witnesses saw only 

one Black male leaving the scene. An officer testified that he 

canvassed the area near the Johnson homicide scene, talked to 

multiple witnesses, and relayed the information to the on-duty 

sergeant who was relaying it to homicide detectives. The officer testified that there was not any one witness that saw both 

the shooting and a suspect or suspects get into the white Monte 

Carlo. The officer further testified that some witnesses claimed 

to have seen all or parts of the shooting and that there were 

other witnesses who had information about the white Monte 

Carlo, but no idea about the shooting. Hinsley testified that he 

named only two witnesses in the affidavit as witnesses personally interviewed by him or another detective at OPD and that 

he was not provided specific names of the other witnesses, 

but he relayed a conglomeration of information provided by a 

number of people from the uniformed officers and detectives at 

the scene that was relayed to him through Culler.

The evidence at the hearings demonstrated Short was not 

located at 4268 Binney Street, but was actually located walking 

toward 4268 Binney Street, inside the crime scene perimeter 

tape, three or four houses away.

Evidence showed that Finley failed to identify Short as the 

shooter when shown a photograph of him and that the affidavit 

omitted specific interviews with witnesses who observed only 

one male firing into the car. Hinsley testified that he had “no 

good reason” for not including the information that Finley did 

not identify Short as the shooter that she saw and described to 

law enforcement.
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The court found that Hinsley’s and Culler’s testimonies were 

truthful and credible and that the evidence was insufficient 

to prove that Hinsley intentionally misled the court or acted in 

reckless disregard for the truth in preparing the affidavit. The 

court found that the averment in the affidavit regarding Short’s 

fingerprint being found on a glove rather than the pricetag for 

the glove near the Neelon residence was due to mistake or 

simple negligence not rising to perjury or reckless disregard for 

the truth. The court further found that the averment of where 

Short was arrested being “at the location” of 4268 Binney 

Street, rather than approximately three houses away after he 

had crossed the taped crime scene area, was “insignificant.” 

The court found that the averment in the affidavit stating “witnesses” stated they saw “two [B]lack males,” as opposed to 

one Black male, was not false, misleading, or in reckless disregard for the truth, because it was a summary statement based 

on interviews with multiple witnesses and the majority of the 

witnesses interviewed saw two Black males. The court found 

the omission of Finley’s failure to identify Short was not misleading or in reckless disregard for the truth.

(b) Affidavits and Warrants for Searches 

of Cell Phone Information

Short alternatively objected to all evidence derived from the 

search of the LG flip phone and the LG smart phone, his call 

records, and his cell site location information for the reason that 

the warrants for the searches lacked the requisite particularity 

under the Fourth Amendment and the affidavits supporting the 

warrants lacked sufficient facts to support findings of probable 

cause. With regard to the lack of probable cause, Short argued 

that there was insufficient supporting averments establishing 

a nexus between the cell phone information to be searched 

and the crimes. According to Short, the affidavits generically 

set forth that cell phone data and information can be helpful in police investigations and the affidavits were devoid of 

evidence showing the use of cell phones in the specific crimes 

under investigation.
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The court overruled the objections, finding that the affidavits supported probable cause and that the warrants did not 

lack in the necessary particularity. It referred back to its prior 

findings in relation to Short’s motion to suppress before the 

mistrial, that the affidavit in support of the search warrant was 

sufficiently detailed and specific so as to establish probable 

cause that Short was connected to the ongoing Johnson homicide investigation and more than one individual may have been 

involved in the Johnson homicide. Applying the totality of the 

circumstances test, the court found that there was probable 

cause to believe that evidence of a crime would be found in the 

cell phone data of the two cell phones to be searched. The district court found in the alternative that even if the search warrants were not supported by probable cause, the warrants were 

executed in good faith. Further, the court found that the search 

warrants were particular because they specifically referred to 

the Johnson homicide and to the type of information encompassed by its authorization.

III. ASSIGNMENTS OF ERROR

Short assigns, reworded, that the district court erred when 

it (1) denied his motion to suppress the fruits of the search of 

his residence after the “Franks hearing,” when the affidavit in 

support of the search warrant provided insufficient evidence 

to support a finding of probable cause; (2) denied his motion 

to suppress the two cell phones taken from his person incident to his unlawful arrest; (3) denied his motion to suppress 

the information obtained from a search of the contents of the 

two cell phones, because the phones were seized unlawfully 

and the warrant was issued on insufficient evidence to support a finding of probable cause, was overly broad, and lacked 

particularity; (4) denied his motion to suppress call records 

and cell site location information from the cell phone service 

providers because that information was obtained pursuant to 

a search warrant that lacked sufficient probable cause, was 

overbroad, and lacked particularity and that the information in 
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the affidavit was the fruit of the unconstitutional search of his 

residence; (5) denied his motion to dismiss based on the State’s 

failure to comply with discovery requirements; and (6) denied 

his motion for complete discharge because he was deprived of 

his constitutional right to a speedy trial.

IV. STANDARD OF REVIEW

[1] Generally, a trial court’s determination as to whether 

charges should be dismissed on speedy trial grounds is a factual question which will be affirmed on appeal unless clearly 

erroneous. 3

[2] Trial courts have broad discretion with respect to sanctions involving discovery procedures, and their rulings thereon 

will not be reversed in the absence of an abuse of discretion. 4

[3] In reviewing a trial court’s ruling on a motion to suppress 

evidence based on a claimed violation of the Fourth Amendment, we apply a two-part standard of review. Regarding historical facts, we review the trial court’s findings for clear error, 

but whether those facts trigger or violate Fourth Amendment 

protections is a question of law that we review independently 

of the trial court’s determination. 5

[4] We review the trial court’s findings as to whether the 

affidavit supporting the warrant contained falsehoods or omissions and whether those were made intentionally or with reckless disregard for the truth for clear error. 6 We review de novo 

the determination that any alleged falsehoods or omissions 

were not necessary to the probable cause finding. 7

3 State v. Billingsley, 309 Neb. 616, 961 N.W.2d 539 (2021).

4 State v. Case, 304 Neb. 829, 937 N.W.2d 216 (2020); State v. Hatfield, 304 

Neb. 66, 933 N.W.2d 78 (2019).

5 State v. Lowman, 308 Neb. 482, 954 N.W.2d 905 (2021).

6 See, U.S. v. Mandell, 752 F.3d 544 (2nd Cir. 2014); U.S. v. Elkins, 300 

F.3d 638 (6th Cir. 2002); U.S. v. Dozier, 844 F.2d 701 (9th Cir. 1988); U.S. 

v. Garcia-Zambrano, 530 F.3d 1249 (10th Cir. 2008).

7 See, e.g., U.S. v. Mandell, supra note 6.
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[5] After-the-fact scrutiny by courts of the sufficiency of an 

affidavit should not take the form of de novo review. 8 Instead, 

a judge’s determination of probable cause to issue a search 

warrant should be paid great deference by reviewing courts. 9

[6] Application of the good faith exception to the exclusionary rule is a question of law. 10

V. ANALYSIS

1. Late Disclosure of 

Discovery Materials

We first address Short’s assignments that the trial court erred 

in denying his motions to dismiss and for absolute discharge. 

Short argues that under both due process and § 29-1919, the 

court should have dismissed the case against him as a sanction for the prosecution’s delay in disclosing police interviews. 

Short does not argue that these delays, due to OPD’s failure 

to timely generate reports on the interviews, resulted in the 

unavailability of exculpatory witness testimony. Instead, he 

asserts he was prejudiced because the delays implicated his 

speedy trial rights. Short alternatively asserts that the district 

court erred in denying his motion for absolute discharge (which 

is the same as dismissal with prejudice), because the need 

for continuances to adequately prepare his defense after the 

delayed disclosures deprived him of his constitutional right to 

a speedy trial.

(a) Constitutional Speedy Trial Right

[7,8] We begin with the constitutional right to a speedy trial, 

since it lies at the core of all of Short’s arguments concerning 

these motions. The Sixth Amendment to the U.S. Constitution 

provides, “In all criminal prosecutions, the accused shall 

8 State v. Detweiler, 249 Neb. 485, 544 N.W.2d 83 (1996) (quoting Illinois 

v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)).

9 See id.

10 State v. Sprunger, 283 Neb. 531, 811 N.W.2d 235 (2012).
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enjoy the right to a speedy . . . trial . . . .” Similarly, Neb. 

Const. art. I, § 11, provides, “In all criminal prosecutions, the 

accused shall have the right to . . . a speedy . . . trial . . . .” The 

right to a speedy trial is unique from other rights enshrined in 

the U.S. Constitution for the protection of the accused because 

there is a societal interest in providing a speedy trial, which 

exists separate from, and at times in opposition to, the interests 

of the accused. 11 The deprivation of the right to a speedy trial 

may work to the accused’s advantage when adverse witnesses 

become unavailable or their memories fade over time. 12

[9] “[T]he right to speedy trial is a . . . vague concept,” since 

“[w]e cannot definitely say how long is too long in a system 

where justice is supposed to be swift but deliberate.” 13 Instead, 

under the test set forth by the U.S. Supreme Court, we weigh 

(1) the length of delay, (2) the reason for the delay, (3) whether 

the defendant asserted his or her speedy trial rights, and (4) 

whether the defendant suffered possible prejudice. 14 None of 

the four factors is a necessary or sufficient condition to the 

finding of a deprivation of the right of speedy trial; rather, they 

are related factors and must be considered together with other 

circumstances as may be relevant. 15 The length of the delay, 

however, is a triggering mechanism for the four-factor test. 16

Until there is some delay that is presumptively prejudicial, 

there is no necessity for inquiry into the other factors that go 

into the balance in determining if the right to a speedy trial has 

been violated. 17

11 See State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).

12 See id.

13 Barker v. Wingo, supra note 1, 407 U.S. at 521.

14 See, Barker v. Wingo, supra note 1; State v. Lovvorn, 303 Neb. 844, 932 

N.W.2d 64 (2019).

15 Barker v. Wingo, supra note 1.

16 See, id.; State v. Kula, 254 Neb. 962, 579 N.W.2d 541 (1998).

17 See id.
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In the context of statutory rights to a speedy trial, several 

courts have held that delay caused by defense requests for 

continuances, which were necessitated by the prosecution’s 

inexcusable delays in furnishing obligatory discovery materials, are chargeable to the prosecution. 18 These courts reason, 

as Short does in this appeal, that the defendant ought not to 

be forced to choose between preserving statutory speedy trial 

rights and receiving all mandatory discovery well before trial. 19

But we have not found case law viewing with a similar sympathy arguments that delays due to continuances granted at the 

defense’s request, in response to dilatory discovery behavior 

by the State, violate the defendant’s constitutional right to a 

speedy trial.

[10] The court in U.S. v. Shulick 20 specifically rejected such 

an argument. The court explained:

Counsel cannot seek and obtain continuances to give the 

defense more time to be ready for trial because of the 

Government’s dilatory behavior and then after the fact 

reverse course and claim that the indictment should be 

dismissed on the ground that defendant’s right to a speedy 

trial under the Constitution has been infringed because of 

that behavior. 21

It continued, “Courts have cautioned against this sort of tactic 

and have particularly frowned upon it when the right is not 

asserted until the eve of trial.” 22

18 See, U.S. v. Hastings, 847 F.2d 920 (1st Cir. 1988); Colby v. McNeill, 595 

So. 2d 115 (Fla. App. 1992); Com. v. Taylor, 469 Mass. 516, 14 N.E.3d 

955 (2014), abrogated on other grounds, Commonwealth v. Dirico, 480 

Mass. 491, 111 N.E.3d 1062 (2018). See, also, State v. Driver, 270 Or. 

App. 287, 347 P.3d 359 (2015).

19 See, U.S. v. Hastings, supra note 18; Com. v. Taylor, supra note 18.

20 U.S v. Shulick, 290 F. Supp. 3d 332 (E.D. Penn. 2017).

21 Id. at 342-43.

22 Id. at 343.
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The Shulick court relied upon United States v. Loud Hawk,

 23

wherein the U.S. Supreme Court held that delays caused by 

the defendant’s interlocutory appeal will not ordinarily weigh 

in favor of constitutional speedy trial claims. Defendants who 

resort to an interlocutory appeal “normally should not be able 

. . . to reap the reward of dismissal for failure to receive a 

speedy trial.” 24 Further, “‘Having sought the aid of the judicial 

process and realizing the deliberateness that a court employs in 

reaching a decision, [such] defendants are not now able to criticize the very process which they . . . called upon.’ . . .” 25

[11] We agree with this reasoning and find it applicable to 

the continuances sought and obtained by Short in response to 

the State’s late disclosure of discovery materials before the 

mistrial. Short did not first seek dismissal under speedy trial 

principles, but waited until after the period of the continuances 

granted at his request to assert that trial had been delayed for 

too long. He cannot claim the loss of the fundamental right to 

a speedy trial through the inherent delays of a process he himself called upon—even if that process was to vindicate another 

fundamental right.

[12] Short did finally elect to stand on his constitutional 

right to a speedy trial when he filed his motion to dismiss or, 

in the alternative, for absolute discharge, after new late disclosures were made following the period of the requested continuances. However, in considering whether Short’s constitutional 

rights to a speedy trial were violated, we must bear in mind 

there was a mistrial. Absent extraordinary circumstances, we 

do not consider the entire period of time beginning with the 

original charge or arrest in computing the length of the delay 

when there has been a mistrial. 26 Instead, the constitutional 

23 United States v. Loud Hawk, 474 U.S. 302, 106 S. Ct. 648, 88 L. Ed. 2d 

640 (1986).

24 Id., 474 U.S. at 316.

25 Id., 474 U.S. at 316-17 (quoting United States v. Auerbach, 420 F.2d 921 

(5th Cir. 1969)).

26 See State v. Kula, supra note 16.
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speedy trial analysis focuses only on the period after the mandate for a new trial and the subsequent retrial. 27

[13] Only misconduct involving deliberate delay tactics 

designed to circumvent the right to a speedy trial is an extraordinary circumstance warranting consideration of the period 

of delay before a mistrial. 28 Assuming without deciding that 

OPD’s conduct can be imputed to the prosecution for purposes 

of a constitutional speedy trial analysis, the trial court found 

that OPD, and particularly Phillips and Watson, did not act 

intentionally or in bad faith. We cannot say the court clearly 

erred in this determination. The record reflects no evidence that 

OPD’s conduct constituted a deliberate tactic to circumvent 

Short’s speedy trial rights. Thus, our speedy trial analysis considers only the period of delay following the mistrial.

[14,15] That period of delay was only 246 days, approximately 8 months. The U.S. Supreme Court has noted with 

approval that “[d]epending on the nature of the charges, the 

lower courts have generally found postaccusation delay ‘presumptively prejudicial’ at least as it approaches one year.” 29

A delay of a year or more is the benchmark commonly recognized as presumptively prejudicial in a constitutional speedy 

trial analysis. 30 This is especially true for more complex and 

serious crimes. The more complex and serious the crime, the 

longer a delay might be tolerated, because society also has an 

interest in ensuring that longer sentences are rendered upon the 

most exact verdicts possible. 31

Where the mistrial was not due to prosecutorial misconduct, other courts have applied the 1-year triggering period to 

27 See id.

28 See id. See, also, State v. McCormack, 28 Wash. App. 65, 622 P.2d 1276 

(1980).

29 Doggett v. United States, 505 U.S. 647, 652 n.1, 112 S. Ct. 2686, 120 L. 

Ed. 2d 520 (1992).

30 See 23 C.J.S. Criminal Procedure and Rights of Accused § 842 (2016).

31 Lloyd v. State, 207 Md. App. 322, 52 A.3d 161 (2012). See, also, Barker v. 

Wingo, supra note 1.
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the delay in bringing the defendant to trial after a mistrial. 32

The mistrial in this case was not in any way due to prosecutorial misconduct, but was due to misconduct by a third party 

associated with Short. Short will not benefit, in a speedy 

trial analysis, from such misconduct. Given the complexity of this case—involving two murder charges and multiple 

shootings—we do not find the 246-day delay to be presumptively prejudicial.

We thus need not engage in the four-factor analysis to conclude that Short’s constitutional right to a speedy trial was 

not violated. But, for the sake of completeness, we find that 

the Barker four-factor analysis would not lead us to a different conclusion. The order of the district court setting the date 

for retrial was agreed upon by the parties and nothing in the 

record, or in Short’s brief, disputes this. In the same vein, 

at no point after the mistrial did Short make a constitutional 

speedy trial challenge to the delay in commencing the new 

trial. While courts cannot presume waiver of fundamental 

constitutional rights from inaction or from a silent record, 

“the defendant’s assertion of or failure to assert his [or her] 

right to a speedy trial is one of the factors to be considered in 

an inquiry into the deprivation of the right,” and a failure to 

assert speedy trial rights will make it difficult for the defendant to prove the denial of a speedy trial. 33 And the court found, 

as discussed, the delays were not intentional or in bad faith. 

Finally, Short makes no argument that he was prejudiced by 

the delay in terms of ultimately mounting his defense at trial, 

though he asserts he was incarcerated for an oppressive length 

of time.

Generally, a trial court’s determination as to whether charges 

should be dismissed on speedy trial grounds is a factual 

question which will be affirmed on appeal unless clearly 

32 See, People v. Landau, 214 Cal. App. 4th 1, 154 Cal. Rptr. 3d 1 (2013); 

Whatley v. State, 326 Ga. App. 81, 755 S.E.2d 885 (2014); State v. Echols, 

146 Ohio App. 3d 81, 765 N.E.2d 379 (2001).

33 Barker v. Wingo, supra note 1, 407 U.S. at 528.
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erroneous. 34 We hold that the district court did not clearly err 

in finding that Short’s constitutional speedy trial right was 

not violated.

(b) Due Process

To the extent Short attempts to assert an independent violation of due process because of the delays attributable to the 

late discovery disclosures, we find such assertion to also be 

without merit.

[16] Due process concepts of fundamental fairness, requiring that criminal defendants be afforded a meaningful opportunity to present a complete defense, involve “what might 

loosely be called the area of constitutionally guaranteed access 

to evidence.” 35 This group of constitutional privileges delivers 

exculpatory evidence into the hands of the accused, thereby 

protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system. 36 A defendant has a constitutionally protected privilege to request and 

obtain from the prosecution evidence that is either material 

to the guilt of the defendant or relevant to the punishment to 

be imposed. 37

[17] Delays in this context can be prejudicial when the 

favorable evidence material to either guilt or punishment is 

either permanently lost or not disclosed before the end of 

trial. 38 The U.S. Supreme Court has held the rule that state 

suppression of favorable material evidence violates due process encompasses evidence known only to police investigators 

34 State v. Lovvorn, supra note 14; State v. Smith, 286 Neb. 856, 839 N.W.2d 

333 (2013).

35 California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 81 L. Ed. 2d 

413 (1984) (internal quotation marks omitted).

36 Id.

37 Id.

38 See id. See, also, e.g., State v. Clifton, 296 Neb. 135, 892 N.W.2d 112 

(2017).
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and not to the prosecutor. 39 In other words, police conduct 

resulting in suppression of favorable material evidence is 

imputed to the prosecution.

[18,19] But we have repeatedly held there is no due process violation when the defendant has had an opportunity to 

request a continuance to adequately prepare the defense in light 

of evidence that, while disclosed late, is ultimately disclosed 

before the end of trial. 40 Further, we have rejected the idea that 

due process protects against delays in bringing the accused 

to trial after arrest or indictment, as opposed to prearrest or 

indictment delay. 41 This is because “[t]he Fifth Amendment 

has only a ‘limited role to play in protecting against oppressive 

delay’ in the criminal context.” 42

We similarly reject the notion, proposed by Short, that late 

disclosure of evidence resulting in a continuance at the behest 

of the defendant violates due process because it delays bringing the accused to trial after arrest or indictment. The Fifth 

Amendment right to access to evidence in such circumstances 

is adequately protected by the trial court’s discretion, as set 

forth in § 29-1919, to issue discovery sanctions.

(c) Discovery Sanctions

[20] Discovery in a criminal case is generally controlled by 

either a statute or a court rule. 43 Trial courts have broad discretion with respect to sanctions involving discovery procedures, 

and their rulings thereon will not be reversed in the absence of 

an abuse of discretion. 44 Section 29-1919 states:

39 See, Strickler v. Greene, 527 U.S. 263, 119 S. Ct. 1936, 144 L. Ed. 2d 286 

(1999); Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490 

(1995).

40 See, e.g., State v. Clifton, supra note 38.

41 See, State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016); State v. Hettle,

supra note 11.

42 State v. Hettle, supra note 11, 288 Neb. at 304, 848 N.W.2d at 596.

43 State v. Hatfield, supra note 4.

44 State v. Case, supra note 4; State v. Hatfield, supra note 4.
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If, at any time during the course of the proceedings it is 

brought to the attention of the court that a party has failed 

to comply with . . . sections 29-1912 to 29-1921 or an 

order issued pursuant to . . . sections 29-1912 to 29-1921, 

the court may:

(1) Order such party to permit the discovery or inspection of materials not previously disclosed;

(2) Grant a continuance;

(3) Prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed; or

(4) Enter such other order as it deems just under the 

circumstances.

[21] When a court sanctions the government in a criminal 

case for its failure to obey court orders, it must use the least 

severe sanction that will adequately punish the government 

and secure future compliance. 45 This court has a preference 

for a continuance in such situations and has previously held 

in discovery disputes that where a continuance can cure any 

prejudice by a failure to disclose, it is that remedy that should 

be utilized. 46 The continuance is seen as the vehicle that commonly will eliminate the prejudice of surprise by placing the 

defense in a position similar to that in which it would have 

stood if timely disclosure had been made. 47

[22] Dismissal is the most severe sanction and is only appropriate in the most extreme circumstances involving bad faith 

or violations that result in irremediable harm that prevents the 

possibility of a fair trial. 48 Dismissal as a sanction for a discovery violation is only appropriate where less drastic alternatives 

are not available. 49

45 U.S. v. DeCoteau, 186 F.3d 1008 (8th Cir. 1999).

46 State v. Hatfield, supra note 4.

47 5 Wayne R. LaFave et al., Criminal Procedure § 20.6 (4th ed. 2015).

48 See, 22A C.J.S. Criminal Procedure and Rights of Accused § 468 (2016); 

Annot., 10 A.L.R.7th Art. 6 (2016).

49 See id.
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In its order denying Short’s motion, the district court determined the late disclosures were not intentional or in bad faith 

by either OPD or the prosecution. This factual finding was not 

clearly erroneous. The district court also found the prejudice 

to Short would be removed when, once provided the discovery 

information, Short were afforded an adequate opportunity to 

make use of the information and material in the preparation 

of his defense. Based on that, the court stated that if Short 

requested a continuance, the court would grant it. It declined 

to impose the extreme sanction of dismissal. Short never 

requested a continuance after the court’s ruling.

[23] An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable 

or if its action is clearly against justice or conscience, reason, 

and evidence. 50 We have already determined that Short’s right 

to a speedy trial was not violated through the late disclosures 

of discovery materials. We are, as was the court below, deeply 

concerned with the level of neglect that resulted in the late disclosures in this case. But the court did not clearly err in finding it was not the result of intentional or reckless conduct, and 

the record reflects that OPD had taken disciplinary measures 

to remedy the situation. We find no abuse of discretion in the 

district court’s determination that a continuance, if requested, 

was the least severe sanction that would adequately punish the 

government and secure future compliance, and certainly, it did 

not abuse its discretion in refusing to impose the most severe 

sanction of dismissal.

2. Fruits of Search of Short’s Residence

Short’s remaining assignments of error pertain to his objections to the admission of evidence as fruits of various Fourth 

Amendment violations. The Fourth Amendment itself explicitly 

sets out the requirements of a warrant: “[N]o Warrants shall 

issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, 

50 State v. Wheeler, 308 Neb. 708, 956 N.W.2d 708 (2021).
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and the persons or things to be seized.” Short’s first assertion 

in this regard is the court erred in admitting the fruits of the 

search of his residence, which consisted of two handguns, 

items of clothing, and venue items connecting Short to the LG 

smart phone.

[24,25] To determine whether a warrant was issued upon 

probable cause, a court generally limits its review to the four 

corners of the affidavit. 51 An exception to that limitation is 

where the defendant makes a preliminary proffer of falsity 

warranting an evidentiary hearing. 52 Short does not contest 

that, as written, the four corners of the affidavit supporting 

the warrant to search his residence establish probable cause. 

Instead, Short argues that the warrant for the search of his residence was invalid, because its supporting affidavit contained 

material falsities and omissions, and that the district court 

erred, upon the evidentiary hearing held below, in concluding differently.

[26] In Franks v. Delaware,

 53 the U.S. Supreme Court 

explained, “‘[W]hen the Fourth Amendment demands a factual 

showing sufficient to comprise “probable cause,” the obvious 

assumption is that there will be a truthful showing.’” The Court 

clarified this “does not mean ‘truthful’ in the sense that every 

fact recited in the warrant affidavit is necessarily correct.” 54

Rather, it recognized probable cause may be founded upon 

hearsay as well as “upon information within the affiant’s own 

knowledge that sometimes must be garnered hastily.” 55 It concluded that “surely it is to be ‘truthful’ in the sense that the 

information put forth is believed or appropriately accepted by 

the affiant as true.” 56

51 See Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 

(1978).

52 See id.

53 Id., 438 U.S. at 164-65.

54 Id., 438 U.S. at 165.

55 Id.

56 Id.
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[27] In contrast, it would be “unthinkable” to allow a warrant to stand beyond impeachment if it were revealed after the 

fact to contain a “deliberately or reckless false statement.” 57

Thus, while there is a presumption of validity with respect to 

the affidavit supporting the search warrant, that presumption 

may be overcome and a search warrant may be invalidated if 

the defendant proves the affiant officer “‘knowingly and intentionally, or with reckless disregard for the truth,’” included in 

the affidavit false or misleading statements that were necessary, 

or “material,” to establishing probable cause. 58

[28] Courts have extended the Franks rationale to omissions 

in warrant affidavits of material information. 59 Omissions in 

an affidavit used to obtain a search warrant are considered to 

be misleading when the facts contained in the omitted material 

tend to weaken or damage the inferences which can logically 

be drawn from the facts as stated in the affidavit. 60

[29] If the defendant successfully proves, by a preponderance of the evidence, 61 that the police knowingly and intentionally, or with reckless disregard for the truth, included a 

false or misleading statement or omitted information material 

to a probable cause finding, then the court examines whether 

the evidence obtained from the warrant and search was 

fruit of the poisonous tree. 62 In an “‘excise and re-examine’ 

corollary to the independent source rule,” 63 the trial court 

57 Id.

58 See State v. Schuller, 287 Neb. 500, 507, 843 N.W.2d 626, 632 (2014) 

(quoting Franks v. Delaware, supra note 51).

59 State v. Schuller, supra note 58.

60 State v. Spidel, 10 Neb. App. 605, 634 N.W.2d 825 (2001) (citing State v. 

Utterback, 240 Neb. 981, 485 N.W.2d 760 (1992)).

61 See, Franks v. Delaware, supra note 51. See, also, U.S. v. Davis, supra 

note 2.

62 See, Franks v. Delaware, supra note 51; Wong Sun v. United States, 371 

U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); State v. Schuller, supra 

note 58.

63 State v. McKinney, 361 N.C. 53, 59, 637 S.E.2d 868, 872 (2006).
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reexamines the affidavit after deleting the false or misleading 

statement and including the omitted information, and it determines whether, viewed under the totality of the circumstances, 

it still establishes probable cause. 64 If it does not, then Franks 

requires that the search warrant be voided and the fruits of the 

search excluded. 65

[30] Mere negligence in preparing the affidavit will not 

lead to suppression, as the purpose of the exclusionary rule 

is to deter misconduct. 66 We review the trial court’s findings 

as to whether the affidavit supporting the warrant contained 

falsehoods or omissions and whether those were made intentionally or with reckless disregard for the truth for clear 

error. 67 We review de novo the determination that any alleged 

falsehoods or omissions were not necessary to the probable 

cause finding. 68

In considering whether the district court erred in overruling 

Short’s objection to the evidence derived from the search of his 

residence, we will consider only what has been both specifically assigned and specifically argued. 69 We do not consider on 

appeal every aspect of the affidavit challenged below simply 

because Short reiterated those as a factual background in the 

argument section of his brief.

Looking at what is specifically argued on appeal to be material untruths, Short first points to the statement in the affidavit 

that Short’s fingerprint was found on a glove near the scene 

64 See State v. Schuller, supra note 58. See, also, Franks v. Delaware, supra 

note 51; U.S. v. Eng, 571 F. Supp. 2d 239 (D. Mass. 2008); Redding v. 

State, 192 Ga. App. 87, 383 S.E.2d 640 (1989); State v. Olson, 11 Kan. 

App. 2d 485, 726 P.2d 1347 (1986); State v. Cuong Phu Le, 463 S.W.3d 

872 (Tex. Crim. App. 2015).

65 State v. Schuller, supra note 58.

66 See State v. Bromm, 285 Neb. 193, 826 N.W.2d 270 (2013).

67 See, U.S. v. Mandell, supra note 6; U.S. v. Elkins, supra note 6; U.S. v. 

Dozier, supra note 6; U.S. v. Garcia-Zambrano, supra note 6.

68 See, e.g., U.S. v. Mandell, supra note 6.

69 See, e.g., State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
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of the crime, when in fact it had been found on a pricetag. 

Second, Short points to the statement in the affidavit that Short 

was located at 4268 Binney Street, when Short was actually 

located walking toward 4268 Binney Street, inside the crime 

scene perimeter tape, three or four houses away.

Third, Short points to the statement that “witnesses stated 

after the shooting two [B]lack males were seen running through 

yards and got into a white Chevy Monte Carlo.” He asserts this 

falsely indicated eyewitnesses to the shooting also observed 

the same suspects get into the Monte Carlo when, instead, 

the assertion in the affidavit was a compilation by Culler of 

the observations made by multiple witnesses, none of whom 

both saw the shooting and saw the suspects get into the Monte 

Carlo. Short asserts the record establishes that no eyewitness 

to the shooting was aware of the existence of the white Chevy 

Monte Carlo and that only one witness, unaware at that time a 

shooting had taken place, observed two males enter the white 

Monte Carlo.

The only omission argued on appeal is that Finley was 

unable to identify Short as the suspect when shown a photographic spread.

The district court found that the misstatements and omissions were not made intentionally, in bad faith, or in reckless 

disregard for the truth and, further, that the misstatements 

and omissions were not material to the finding of sufficient 

probable cause. We hold the district court did not clearly 

err in finding that the misstatements and omissions were not 

made intentionally, in bad faith, or in reckless disregard for 

the truth.

Short points out that Hinsley’s and Culler’s testimonies 

were in conflict with each other. Hinsley testified that Culler 

may have misspoken when she relayed to him that the fingerprint was on a glove. Culler, in contrast, testified that she was 

clear in her conversation with Hinsley the fingerprint was on 

a pricetag and that Hinsley made an innocent mistake in the 

affidavit. But it does not follow from Hinsley’s and Culler’s 
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differing recollections as to which of them was the original 

source of the misstatement that the district court clearly erred 

in determining the misstatement was unintentional and was 

made in good faith with due care.

[31] Other than noting Culler’s inexperience in the homicide unit and an internal affairs investigation into Hinsley’s 

professional misconduct in an unrelated situation, Short does 

not present additional illustration of how he proved by a preponderance of the evidence the alleged false statements and 

omissions were made knowingly and intentionally or with 

reckless disregard for the truth. There was no evidence that the 

statement regarding where exactly Short was found or what 

item his fingerprint was found on was anything other than 

inadvertent. With regard to the omission of the photographic 

spread, Finley had told Hinsley there may have been two individuals. Thus, Hinsley may have overlooked the materiality of 

the failure to identify Short, when Finley saw only one of the 

shooters. Regarding the statement about witnesses seeing two 

Black males running toward a white Chevy Monte Carlo after 

the shooting, this court has held that observations by fellow 

officers engaged in a common investigation are a reliable basis 

for a warrant and that probable cause is to be evaluated by the 

collective information of the police as reflected in the affidavit 

and is not limited to the firsthand knowledge of the officer who 

executes the affidavit. 70

Because the district court did not clearly err in finding the 

alleged falsehoods or omissions were not made knowingly and 

intentionally or with a reckless disregard for the truth, we need 

not review the district court’s reexamination of the affidavit 

after deleting the false or misleading statement and including 

the omitted information. We find no merit to Short’s assertion 

that the district court erred in refusing to suppress the evidence 

derived from the search of his residence.

70 State v. Stickelman, 207 Neb. 429, 299 N.W.2d 520 (1980).
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3. Fruits of Search of Short’s Cell Phones, 

Call Records, and Location Information

Short’s other Fourth Amendment arguments concern the 

admission of evidence derived from the search of Short’s cell 

phones, call records, and cell phone location information. He 

argues the contents within the four corners of the affidavits for 

the relevant search warrants failed to establish probable cause. 

He also asserts the warrants themselves lacked particularity. 

And, with respect to the search of the cell phones, Short argues 

they were seized in violation of the Fourth Amendment.

(a) Affidavits Supporting Probable Cause

We first examine the sufficiency of the affidavits challenged 

on appeal. Short asserts the affidavit for the search of his cell 

phones and the affidavit in support of the 2018 search warrant 

for his LG smart phone’s call records and cell site location 

information both lack a nexus between the crimes under investigation and the items to be searched. And Short claims the 

affidavits are so facially inadequate that the good faith exception to the exclusionary rule does not apply.

[32,33] Probable cause sufficient to justify issuance of a 

search warrant means a fair probability that contraband or evidence of a crime will be found in the item to be searched. 71 The 

Fourth Amendment’s express requirement of particularity for a 

search warrant is closely related to its express requirement of 

probable cause. 72 Thus, the U.S. Supreme Court has explained

the critical element in a reasonable search of property is not 

that the owner of property is suspected of crime, but, rather, 

that there is reasonable cause to believe the specific things to 

be searched for and seized are located on the property to which 

entry is sought. 73

71 State v. Said, 306 Neb. 314, 945 N.W.2d 152 (2020).

72 See State v. Sprunger, supra note 10.

73 Zurcher v. Stanford Daily, 436 U.S. 547, 98 S. Ct. 1970, 56 L. Ed. 2d 525 

(1978).
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[34,35] A warrant affidavit must always set forth particular 

facts and circumstances underlying the existence of probable 

cause, so as to allow the magistrate to make an independent 

evaluation of probable cause. 74 The nexus between the alleged 

crimes and the article to be searched, however, does not need 

to be based on direct observation; it can be found in the type of 

crime, the nature of the evidence sought, and the normal inferences as to where such evidence may be found. 75

[36,37] Probable cause may be based on “common-sense 

conclusions about human behavior,” 76 and due weight should be 

given to inferences by law enforcement officers based on their 

experience and specialized training. 77 But wholly conclusory 

statements by a law enforcement officer affiant that the affiant 

has reliable information and reason to believe evidence of a 

crime will be found in a particular place are insufficient. 78

[38,39] “Probable cause” is a term of art in Fourth 

Amendment jurisprudence that is defined as a “practical, nontechnical conception that deals with the factual and practical 

considerations of everyday life on which reasonable and prudent [persons] not legal technicians, act.” 79 The fundamental 

question in a challenge to an affidavit for lack of probable 

cause is whether, under the totality of the circumstances 

illustrated by the affidavit, the issuing magistrate had a substantial basis for finding that the affidavit established probable cause. 80

74 See Franks v. Delaware, supra note 51.

75 See Commonwealth v. Snow, 486 Mass. 582, 160 N.E.3d 277 (2021).

76 Illinois v. Gates, supra note 8, 462 U.S. at 231 (internal quotation marks 

omitted).

77 See United States v. Arvizu, 534 U.S. 266, 122 S. Ct. 744, 151 L. Ed. 2d 

740 (2002).

78 See Illinois v. Gates, supra note 8.

79 Maryland v. Pringle, 540 U.S. 366, 370, 124 S. Ct. 795, 157 L. Ed. 2d 769 

(2003) (internal quotation marks omitted).

80 State v. Said, supra note 71; State v. Hernandez, 268 Neb. 934, 689 

N.W.2d 579 (2004).
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[40-42] The magistrate who is evaluating the probable 

cause question must make a practical, commonsense decision 

whether, given the totality of the circumstances set forth in the 

affidavit, including the veracity of and basis of knowledge of 

the persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in 

a particular place. 81 Ultimately, where the circumstances are 

detailed, where reasons for crediting the source of information 

is given, and where the magistrate has found probable cause to 

exist, the court should not invalidate the affidavit in a hypertechnical manner. 82 Reasonable minds frequently may differ on 

the question whether a particular affidavit establishes probable 

cause, 83 and after-the-fact scrutiny by courts of the sufficiency 

of an affidavit should not take the form of de novo review. 84

Instead, a judge’s determination of probable cause to issue 

a search warrant should be paid great deference by reviewing courts. 85

With respect to the affidavit in support of the search of his 

phones, Short generally asserts it was a “bare bones” affidavit 

that gave the magistrate virtually no basis for making an independent judgment regarding probable cause. 86 Short’s more 

specific argument, though, is that the only information in the 

affidavit pertaining to the required nexus between the crimes 

and the information contained on the phones is that Short was a 

suspect and that in the officer’s experience, it is not uncommon 

for those suspected of criminal activity to have evidence of that 

crime on their cell phones.

81 State v. Hernandez, supra note 80.

82 See State v. Stickelman, supra note 70.

83 United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 

(1984).

84 State v. Detweiler, supra note 8.

85 See id.

86 See brief for appellant at 53.
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Short’s arguments with respect to the 2018 affidavit in support of the search of Short’s call records and cell site location information are similar. Short claims the 2018 affidavit 

“simply contains boilerplate assertions of generic ‘criminals’ 

conduct’” without “any information specific as to why there 

is probable cause to believe that [the call records and cell site 

location information] will contain evidence of the crime under 

investigation.” 87

In State v. Said,

 88 we held the affidavit supporting the 

search warrant for the contents of a cell phone was sufficient 

to establish probable cause when, in addition to statements setting forth the officer’s general knowledge of how cell phones 

may be used by a person who has committed a crime and that 

evidence of the crime may generally be found on a suspect’s 

cell phone, the affidavit set forth specific information derived 

from the investigation indicating the suspect’s involvement 

in the crime, as well as allegations that the suspect had communicated with others and sought information regarding that 

crime. We explained the judge could infer from this information the suspect likely used his cell phone to search the internet for information and in communicating with others about 

the crime.

[43,44] We did not elaborate in Said upon general principles 

applicable to affidavits for searches of cell phone information or describe what other hypothetical facts would or would 

not support probable cause to search a cell phone or cell 

phone information. But several other courts have addressed 

the issue. We agree with these courts that law enforcement 

cannot only “rely on the general ubiquitous presence of cellular telephones in daily life, or an inference that friends or 

associates most often communicate by cellular telephone, as 

a substitute for particularized information to support probable 

87 Id. at 76.

88 State v. Said, supra note 71.
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cause that a specific device contains evidence of a crime.” 89 To 

support probable cause, statements based on law enforcement 

expertise and experience must be accompanied by particular 

facts and circumstances such that, under the totality of the circumstances, including commonsense conclusions about human 

behavior, there is a substantial basis for concluding evidence 

of a crime will be found on the phone or phone information searched.

[45,46] What will constitute sufficient particularized information to support probable cause that a cell phone or cell 

phone information searched will contain evidence of a crime 

depends upon the nature and circumstances of the crime and 

what is sought in the warrant. For example, to search the contents of cell phones in relation to a crime involving an accomplice, courts have found affidavits provide sufficient support 

for probable cause when they contain averments showing the 

suspect was working with at least one other person when the 

crime was committed; was in possession of a cell phone near 

the time of the crime; and a law officer, based on experience 

and specialized training, believed the search likely to yield 

evidence of communications and coordination among these 

multiple participants. 90 To search cell site location information, 

in contrast, courts have found the necessary nexus where there 

were facts in the affidavit showing the suspect probably committed a crime, the nature of which makes location information possibly incriminating, and the suspect was known to own 

or use the particular phone. 91 It can be generally recognized 

89 Commonwealth v. Morin, 478 Mass. 415, 426, 85 N.E.3d 949, 960 (2017).

90 See, U.S. v. Lavallis, 515 F. Supp. 3d 686 (E.D. Mich. 2021); U.S. v. 

Gholston, 993 F. Supp. 2d 704 (E.D. Mich. 2014); Johnson v. State, 2015 

Ark. 387, 472 S.W.3d 486 (2015). See, also, U.S. v. Barret, 824 F. Supp. 

2d 419 (E.D.N.Y. 2011).

91 See Commonwealth v. Hobbs, 482 Mass. 538, 125 N.E.3d 59 (2019). See, 

also, United States v. Hunt, 718 Fed. Appx. 328 (6th Cir. 2017); U.S. v. 

Gibbs, 547 Fed. Appx. 174 (4th Cir. 2013).
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that cell phones tend to accompany their users everywhere, 

and thus, it may be inferred that a suspect’s cell phone probably accompanied the suspect at the time of the crime. 92

[47] Neither affidavit at issue in this appeal contains merely 

conclusory statements. Both lengthy affidavits, described in 

detail in the background section above, were far from “bare 

bones.” A warrant may be considered so lacking in indicia of 

probable cause if the applicant files merely a bare bones affidavit, one which contains only wholly conclusory statements 

and presents essentially no evidence outside of such conclusory statements. 93

The affidavits set forth numerous specific facts derived from 

the investigation supporting the probability that Short was 

involved in the homicides. The question is whether the specific 

averments provided a substantial basis for the likelihood that 

searching the cell phones, call records, and cell site location 

information would produce evidence of the specific criminal activity described. However, the district court found that 

regardless of whether the information within the four corners 

of the affidavits contained sufficient particularized information 

to support probable cause that the information authorized by 

the warrants to be searched would contain evidence of a crime, 

the officers acted in good faith in carrying out the warrants. We 

agree the good faith exception applies.

[48,49] Application of the good faith exception to the exclusionary rule is a question of law. 94 The U.S. Supreme Court has 

explained that to trigger the exclusionary rule, police conduct 

must be sufficiently deliberate that exclusion can meaningfully 

deter such conduct and sufficiently culpable that such deterrence is worth the price paid by the justice system, as exclusion serves to deter deliberate, reckless, or grossly negligent 

92 See id.

93 Stevenson v. State, 455 Md. 709, 168 A.3d 967 (2017).

94 State v. Sprunger, supra note 10.
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conduct, or in some circumstances recurring or systemic negligence. 95 The good faith exception is applicable to an affidavit 

that fails to satisfy the substantial basis test to support probable 

cause, when police officers act in objectively reasonable good 

faith in reliance upon the warrant. 96

The good faith inquiry is confined to the objectively ascertainable question of whether a reasonably well-trained officer 

would have known that the search was illegal despite a magistrate’s authorization. 97 In assessing the good faith of an officer’s conducting a search under a warrant, an appellate court 

must look to the totality of the circumstances surrounding the 

issuance of the warrant, including information not contained 

within the four corners of the affidavit. 98 When evaluating 

whether the warrant was based on an affidavit so lacking in 

indicia of probable cause as to render official belief in its existence entirely unreasonable, an appellate court should address 

whether the officer, considered as a police officer with a reasonable knowledge of what the law prohibits, acted in objectively reasonable good faith in relying on the warrant. 99 It has 

also been said:

If the reviewing court is “able to identify in the averring 

officer’s affidavit some connection, regardless of how 

remote it may have been”—“some modicum of evidence, 

however slight”—“between the criminal activity at issue 

and the place to be searched,” then the affidavit is not 

bare bones and official reliance on it is reasonable.” 100

95 Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 

(2009).

96 See State v. Sprunger, supra note 10.

97 Id.

98 Id.

99 See, United States v. Leon, supra note 83; State v. Sprunger, supra note 10; 

State v. Nuss, 279 Neb. 648, 781 N.W.2d 60 (2010); State v. Edmonson, 

257 Neb. 468, 598 N.W.2d 450 (1999).

100U.S. v. White, 874 F.3d 490, 497 (6th Cir. 2017).
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The affidavits contained a modicum of evidence between 

the criminal activity at issue and the places to be searched, and 

the knowledge of law enforcement outside the four corners of 

the affidavits provided a sufficient basis for the likelihood that 

evidence of the criminal activity would be found in the particular places searched. The law in Nebraska and elsewhere concerning the minimum allegations to support a search of a cell 

phone, call records, or location information is fact specific, and 

we have not addressed similar affidavits. Accordingly, while 

we assume law enforcement has reasonable knowledge of the 

law, the law was not sufficiently clear with respect to the affidavits at issue for us to conclude law enforcement was entirely 

unreasonable in its belief they were sufficient.

Assuming without deciding the warrants to search Short’s 

cell phones, call records, and cell site location information 

were not supported by a substantial basis for their issuance, 

we find the police relied in good faith upon the warrants when 

executing the searches. Accordingly, the district court did not 

err in overruling Short’s objections based on alleged deficiencies in the warrants’ supporting affidavits.

(b) Particularity of Warrants

[50,51] We next examine the particularity of the two warrants. 

In addition to the requirement of probable cause, the Fourth 

Amendment and article I, § 7, of the Nebraska Constitution 

contain a particularity requirement that a warrant describe the 

place to be searched and the persons or things to be seized. 

“It is familiar history that indiscriminate searches and seizures 

conducted under the authority of ‘general warrants’ were the 

immediate evils that motivated the framing and adoption of the 

Fourth Amendment.” 101 A purpose of the particularity requirement for a search warrant is to prevent the issuance of warrants 

on loose, vague, or doubtful bases of fact. 102 The particularity 

101Payton v. New York, 445 U.S. 573, 583, 100 S. Ct. 1371, 63 L. Ed. 2d 639 

(1980).

102 State v. Said, supra note 71.
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requirement of the Fourth Amendment protects against openended warrants that leave the scope of the search to the discretion of the officer executing the warrant or permits seizure of 

items other than what is described. 103 Simply put, the Fourth 

Amendment prohibits “fishing expeditions.” 104

[52-55] To satisfy the particularity requirement of the Fourth 

Amendment, a warrant must be sufficiently definite to enable 

the searching officer to identify the property authorized to 

be seized. 105 The degree of specificity required in a warrant 

depends on the circumstances of the case and on the type of 

items involved. 106 A search warrant may be sufficiently particular even though it describes the items to be seized in broad or 

generic terms, if the description is as particular as the supporting evidence will allow; but the broader the scope of a warrant, 

the stronger the evidentiary showing must be to establish probable cause. 107 A warrant for the search of the contents of a cell 

phone must be sufficiently limited in scope to allow a search 

of only that content that is related to the probable cause that 

justifies the search. 108

Short argues the warrants to search the contents of his physical cell phones, call data, and cell site location information 

simply eliminated the “‘any and all’” language we previously 

held to be overly broad and replaced it with “a laundry list 

of everything possibly contained in a cell phone.” 109 Further, 

Short takes particular exception to the sentence in the warrant 

for the physical cell phones authorizing law enforcement to 

“examine every file and scan its contents briefly to determine 

whether it falls within the scope of the warrant,” which he 

103 State v. Jennings, 305 Neb. 809, 942 N.W.2d 753 (2020).

104 State v. Sprunger, supra note 10.

105 State v. Said, supra note 71.

106 Id.

107 Id.

108 Id. 

109Brief for appellant at 66 (citing State v. Henderson, 289 Neb. 271, 854 

N.W.2d 616 (2014)).
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asserts authorized law enforcement to “‘rummage around’” to 

see what they might find. 110

Other courts have rejected the argument that an authorization in a warrant to “examine every file and scan its contents 

briefly to determine whether it falls within the scope of the 

warrant,” or similar language, violates the particularity clause 

of the Fourth Amendment. 111 Courts reason that scanning all 

digital information related to a cell phone is like searching 

everywhere in a house for evidence of drugs or searching 

every document in a filing cabinet when the incriminating 

evidence may be found in any file or folder. Neither search 

is overbroad, because “[c]riminals don’t advertise where they 

keep evidence.” 112 A cell phone serves the same function as a 

filing cabinet, and there is no way for law enforcement to know 

in advance how a suspect may label or code files that contain 

evidence of criminal activity. 113

The U.S. Supreme Court in Riley v. California,

 114 in holding a warrant is required to search data stored in cell phones 

seized incident to arrest, recognized “a cell phone search would 

typically expose to the government far more than the most 

exhaustive search of a house.” The Court did not thereby suggest that such an extensive search would be impermissible with 

a warrant.

[56,57] Officers cannot predict where evidence of a crime 

will be located in a cell phone or call records or in what 

110Brief for appellant at 67.

111 See, State v. Johnson, 576 S.W.3d 205 (Mo. App. 2019); State v. Swing, 

2017 Ohio 8039, 98 N.E.3d 828 (2017); State v. Savath, 298 Or. App. 495, 

447 P.3d 1 (2019). See, also, e.g., U.S. v. Stabile, 633 F.3d 219 (3rd Cir. 

2011); Com v. McDermott, 448 Mass. 750, 864 N.E.2d 471 (2007).

112 U.S. v. Bishop, 910 F.3d 335, 336 (7th Cir. 2018). See, also, Andresen v. 

Maryland, 427 U.S. 463, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976); State v. 

Johnson, supra note 111.

113 See id.

114 Riley v. California, 573 U.S. 373, 396, 134 S. Ct. 2473, 189 L. Ed. 2d 430 

(2014).
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format, such as texts, videos, photographs, emails, or applications. 115 There is no way for law enforcement to know where in 

the digital information associated with cell phones it will find 

evidence of the specified crime. 116 Sophisticated users can hide 

digital data in complex ways. 117

[58,59] Thus, courts refuse to require ex ante limitations 

based on file or data type or specific application. 118 In an electronic search, law enforcement will likely need to examine, at 

least briefly, information or data beyond that identified in the 

warrant. 119 The most important constraint in preventing unconstitutional exploratory rummaging is that the warrant limit 

the search to evidence of a specific crime, ordinarily within a 

specific time period, rather than allowing a fishing expedition 

for all criminal activity. 120 We agree that a brief examination 

of all electronic data associated with a cell phone is usually 

necessary in order to find where the information to be seized is 

located, and such examination is reasonable under the Fourth 

Amendment. We accordingly hold that the breadth of electronic 

information that the warrants here authorized law enforcement 

to sift through did not render them unconstitutional under the 

particularity clause of the Fourth Amendment.

Regarding the extensiveness of the list of items to be 

searched for and seized, while sifting through the extensive 

data, this court in State v. Goynes 121 has already found sufficiently particular a warrant allowing a search for and seizure 

115 See State v. Johnson, supra note 111.

116 See id.

117 State v. Mansor, 363 Or. 185, 421 P.3d 323 (2018).

118 See id.

119 State v. Savath, supra note 111.

120 See, e.g., U.S. v. Castro, 881 F.3d 961 (6th Cir. 2018); U.S. v. Bass, 785 

F.3d 1043 (6th Cir. 2015); U.S. v. Bishop, supra note 112; State v. Johnson, 

supra note 111; People v. English, 52 Misc. 3d 318, 32 N.Y.S.3d 837 

(2016). See, also, Wheeler v. State, 135 A.3d 282 (Del. 2016).

121 State v. Goynes, 303 Neb. 129, 927 N.W.2d 346 (2019).
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of a list of data types almost identical to the most extensive of 

the two warrants here at issue—when, like here, the search was 

constrained to evidence of the specific crime. The items listed 

in the warrant in Goynes included all of the following:

cell phone information, configurations, calendar events, 

notes, and user account information which could identify 

who owns or was using a cell phone; call logs which 

could establish familiarity between people involved and 

timelines of an incident; short and multimedia messaging 

service messages, chat and instant messages, and emails 

which could provide insight to establish an individual’s level of culpability and knowledge of the incident; 

installed application data which could aid in determining 

a user’s historical geographic location and demonstrate 

the user’s association with investigated people, location, 

and events; media files such as images, videos, audio, and 

documents which could provide times and locations, as 

well as firsthand documentation of the incident; internet 

browsing history which could demonstrate the planning, 

desire, and participation in a crime; cell tower connections, global positioning system data, Wi-Fi, Bluetooth, 

and synchronization logs which could provide information on location in relation to the incident; and user dictionary information which could demonstrate familiarity 

with the crime being investigated. 122

We rejected the argument that because the extensive list 

encompassed practically the entirety of the data contained 

within cell phones, it was no different than a warrant authorizing the search of “any and all” information stored on a 

cell phone. 123

We explained in Goynes that the warrants in Henderson 

violated the requirements of particularity because, in addition 

to listed types of cell phone data to search, they authorized 

122 Id. at 142-43, 927 N.W.2d at 356.

123 Id. at 143, 927 N.W.2d at 356 (internal quotation marks omitted).
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a broad search of “any other information that can be gained 

from the internal components and/or memory Cards” and failed 

to refer to a specific crime being investigated. 124 We clarified 

in Goynes that “Henderson does not stand for the rule that a 

search of a cell phone cannot be expansive.” 125

We held that the list in the affidavit at issue in Goynes, 

while expansive, was not insufficiently particular and did not 

violate the Fourth Amendment. This was because the warrant 

described the crime, listed the specific areas to be searched, 

and did not contain unqualified language that would permit the 

search of the cell phone for “any other information.” 126

Neither warrant at issue here contained the catchall phrase 

we found unconstitutional in Henderson. The 2018 warrant 

for the call records and cell site location information specified the crime of homicide and a limited time period of July 

8 to August 10, 2015. The warrant to search the physical cell 

phones limited the search to evidence relating to the homicide 

of Johnson. While both warrants might be viewed as extensive, they did not lack in particularity. The authorization to 

“examine every file and scan its contents briefly to determine 

whether it falls within the scope of the warrant” does not 

negate that particularity. The district court did not err in determining the warrants satisfied the particularity requirements of 

the Fourth Amendment.

(c) Pat-Down Search and 

Seizure of Cell Phones

Lastly, we find no merit to Short’s argument that the searches 

of his phones are tainted by their alleged illegal seizure. The 

phone number information was independently found in the 

124 See id. at 143-44, 927 N.W.2d at 356 (quoting State v. Henderson, supra

note 109).

125 State v. Goynes, supra note 121, 303 Neb. at 143, 927 N.W.2d at 356 

(internal quotation marks omitted).

126 See id. (internal quotation marks omitted).
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search of Short’s residence, which we have already found 

did not violate the Fourth Amendment, and Short stipulated 

at trial that the LG smart phone number belonged to him for 

the dates in question. Thus, the only fruits of the seizure of 

the phones was the evidence, not also found in the search of 

data for the phone numbers, derived from the search of the 

physical phones. Such evidence was minimal and consisted 

of contacts between Short and Pope, contacts between Short 

and Harlan, and indications that Short’s phone either searched 

for and accessed or was sent and downloaded news reports on 

the homicides from a television station’s website. Regardless, 

in our de novo review, we conclude the warrantless seizure 

of Short’s cell phones while he sat in the police cruiser was 

not unlawful.

[60,61] Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject only to a few 

specifically established and well-delineated exceptions, which 

must be strictly confined by their justifications. 127 These 

exceptions include searches incident to a valid arrest. 128 In 

United States v. Robinson,

 129 the U.S. Supreme Court held 

that in the case of a lawful custodial arrest, a full search of 

a person is not only an exception to the Fourth Amendment’s 

warrant requirement, but is also a reasonable search under that 

amendment. 130

[62,63] Further, it has been held that a search incident to an 

arrest can be made before an arrest as long as probable cause 

for the arrest exists before the search. 131 It does not matter that 

a defendant is not formally placed under arrest until after a 

127 State v. Voichahoske, 271 Neb. 64, 709 N.W.2d 659 (2006).

128 See id.

129United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 

(1973).

130 See State v. Hayes, 3 Neb. App. 919, 535 N.W.2d 715 (1995).

131 See State v. Twohig, 238 Neb. 92, 469 N.W.2d 344 (1991).
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search, so long as the fruits of the search are not necessary to 

support probable cause to arrest. 132

[64,65] Probable cause to support a warrantless arrest exists 

only if law enforcement has knowledge at the time of the 

arrest, based on information that is reasonably trustworthy 

under the circumstances, which would cause a reasonably 

cautious person to believe that a suspect has committed or is 

committing a crime. 133 And under the collective knowledge 

doctrine, the existence of probable cause justifying a warrantless arrest is tested by the collective information possessed by 

all the officers engaged in a common investigation. 134

At the time Short arrived at his residence, law enforcement 

knew Short’s fingerprints had been found on a pricetag near 

the Neelon homicide, that witnesses who heard gunshots at 

the time of the Johnson homicide saw two Black males get 

into a white Chevy Monte Carlo with dealer paper plates, and 

that a white Chevy Monte Carlo matching the description with 

in-transits and dealer paper plates was found parked in front 

of the last known address of Short. Further, the officers testified at trial that, at the time Short arrived at his residence, 

they believed that these homicides were connected based on 

the attempted shooting of Johnson in front of the Neelon 

residence the day before Neelon was shot and killed at her 

home. This information was reasonably trustworthy under the 

circumstances and would cause a reasonably cautious person 

to believe that these homicides were connected, that Short had 

been present at both homicide scenes, and that Short had committed a crime.

We find as a matter of law there was probable cause to arrest 

Short when the phones were seized. As such, we need not 

analyze whether the district court was correct that the phones 

132 See id.

133 State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).

134 State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
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would inevitably have been discovered even if Short had not 

been illegally detained.

Because the phones were seized during a search conducted 

incident to a warrantless de facto arrest that was supported 

by probable cause, their seizure did not violate the Fourth 

Amendment. We affirm the district court’s finding that law 

enforcement did not obtain the phones in violation of the 

Fourth Amendment. 135

VI. CONCLUSION

Short’s cell phones were not seized during an unlawful 

arrest, and the search of his residence was not pursuant to a 

warrant supported by an affidavit containing intentional or 

reckless falsities or omissions. The warrants supporting the 

searches of Short’s physical phones, digital call records, and 

cell site location information were sufficiently particular, and 

the affidavits supporting the warrants contained sufficient 

evidence connecting the criminal activity and the place to 

be searched for law enforcement’s reliance thereupon to be 

in good faith. Whether from the perspective of the constitutional right to a speedy trial, due process, statutory discovery 

rules, or all combined, the district court did not err in denying 

Short’s motion to dismiss without prejudice or, in the alternative, for absolute discharge. For all these reasons, we find 

no merit to Short’s assignments of error and affirm the judgment below.

Affirmed.

135 See State v. Jennings, supra note 103.

Miller-Lerman, J., concurring.

I concur in the result reached by the court, but write separately simply to remark on the path followed in our analysis 

with respect to the propriety of the search of the cell phone. 

In its opinion, this court proceeded to the good faith inquiry 

without first having resolved the Fourth Amendment issue. In 
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my view, it would have been advisable to address the merits 

of the Fourth Amendment claim before proceeding to the good 

faith issue.

The jurisprudence of cell phone searches is evolving. 

This case presented an opportunity to resolve certain Fourth 

Amendment issues before considering the application of the 

good faith exception to the exclusionary rule. In fact, in United 

States v. Leon, 468 U.S. 897, 925, 104 S. Ct. 3405, 82 L. 

Ed. 2d 677 (1984), the origin case of the good faith rule, the 

Supreme Court recognized that “it frequently will be difficult 

to determine whether the officers acted reasonably without 

resolving the Fourth Amendment issue.” This is because the 

Fourth Amendment analysis addresses judicial errors, whereas 

the good faith analysis addresses subsequent police errors 

when viewed against settled law.

I argue that there are hazards inherent in deciding the good 

faith issue without first having resolved the legal issues in the 

Fourth Amendment claim. The Supreme Court described this 

argument when it stated that “application of the good‐faith 

exception to searches conducted pursuant to warrants will 

preclude review of the constitutionality of the search or seizure, deny needed guidance from the courts, or freeze Fourth 

Amendment law in its present state.” United States v. Leon, 468 

U.S. at 924. But the Supreme Court did not adopt an inflexible 

practice of requiring a finding that the warrant was inadequate 

as a predicate to proceeding to the good faith inquiry.

We generally decide cases on the basis on which they 

were resolved in the trial court. In this case, the trial court 

addressed the merits of the Fourth Amendment issue and 

also considered the good faith exception. So our consideration of the good faith issue was invited. We are not alone in 

addressing the good faith issue without deciding the Fourth 

Amendment claim. For example, in U.S. v. White, 874 F.3d 

490 (6th Cir. 2017), the U.S. Court of Appeals for the Sixth 

Circuit recognized that the trial court had ruled on both the 

merits of the Fourth Amendment issue and the good faith 
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exception. In so doing, it said, “[w]e therefore proceed to the 

good‐faith inquiry, assuming, without deciding, that the affidavit failed to establish probable cause.” U.S. v. White, 874 

F.3d at 495‐96.

Given the foregoing, I respectfully suggest that, rather than 

freezing Fourth Amendment cell phone search Nebraska jurisprudence in its present state, we address the merits in the 

next case.