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Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE v. COX

Cite as 307 Neb. 762

State of Nebraska, appellee, v. 

Forrest R. Cox III, appellant.

___ N.W.2d ___

Filed November 13, 2020. No. S-19-780.

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

Appeal and Error. In reviewing a trial court’s ruling on a motion to 

suppress based on a claimed violation of the Fourth Amendment or 

the safeguards established by the U.S. Supreme Court in Miranda v. 

Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), 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 or Fifth 

Amendment protections is a question of law that an appellate court 

reviews independently of the trial court’s determination.

2. Constitutional Law: Search and Seizure: Evidence: Police Officers 

and Sheriffs. The exclusion of evidence obtained in violation of the 

Fourth Amendment is not itself a constitutional right; rather, it is a remedy designed to deter constitutional violations by law enforcement.

3. ____: ____: ____: ____. In situations where the exclusion of evidence 

as a remedy would not deter law enforcement, several exceptions to the 

exclusionary rule have been recognized. One of those exceptions applies 

to evidence obtained by police in objectively reasonable reliance on a 

statute later found to be unconstitutional.

4. Trial: Evidence: Motions to Suppress: Waiver: Appeal and Error.

When a motion to suppress is overruled, the defendant must make a 

specific objection at trial to the offer of the evidence which was the subject of the motion to suppress in order to preserve the issue for review 

on appeal. Put another way, a failure to object to evidence at trial, even 

though the evidence was the subject of a previous motion to suppress, 

waives the objection, and a party will not be heard to complain of the 

alleged error on appeal.

5. Verdicts: Appeal and Error. Harmless error review looks to the basis 

on which the trier of fact actually rested its verdict; the inquiry is not 

Nebraska Supreme Court Online Library

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

12/04/2020 12:08 AM CST
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Cite as 307 Neb. 762

whether in a trial that occurred without the error, a guilty verdict surely 

would have been rendered, but, rather, whether the actual guilty verdict 

rendered in the questioned trial was surely unattributable to the error.

Appeal from the District Court for Douglas County: 

Kimberly Miller Pankonin, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, and 

Natalie M. Andrews for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

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

Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

Forrest R. Cox III was convicted of first degree murder, use 

of a deadly weapon to commit a felony, and possession of a 

deadly weapon by a prohibited person. At issue on appeal is 

whether the district court erred in admitting cell phone records 

for Cox’s phone and whether Cox invoked the right to counsel 

during questioning by law enforcement. We affirm.

FACTUAL BACKGROUND

Cox was charged in connection with a shooting at a convenience store in Omaha, Nebraska, on the evening of March 6, 

2017. The victim of the shooting, Laron Rogers, died on March 

22 as a result of injuries he sustained.

Trial Testimony

According to testimony and evidence presented at trial, an 

employee of the convenience store called emergency services 

upon learning of a shooting in the parking lot of the store. 

Rogers was lying on the ground. Rogers was initially stabilized 

and taken to a hospital, but he did not respond to questions 

about who had shot him.
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STATE v. COX

Cite as 307 Neb. 762

Two different witnesses at the scene of the shooting testified 

that Rogers was leaning into a white vehicle without license 

plates, which vehicle was identified by both witnesses as a 

Chevy Impala. According to the witnesses, it appeared that 

Rogers was talking to the occupants of the vehicle. A gunshot 

was heard, and Rogers walked a few steps before collapsing. The witnesses both testified that the white Impala then 

drove off. Law enforcement later obtained surveillance video 

from the scene and confirmed that the suspect vehicle was a 

white Impala.

During the course of the investigation, law enforcement visited Rogers’ place of employment, a cell phone store, and spoke 

with the store manager. The manager showed law enforcement 

video clips that were taken earlier on the day of Rogers’ 

shooting. The video clips showed two men inside the store. 

According to the manager, coworkers had seen Rogers outside 

the store interacting with the men prior to the men entering the 

store. Law enforcement was able to identify Cox at the time the 

clips were viewed. Shortly thereafter, the other man was identified as Rufus Dennis.

The manager provided law enforcement with a piece of paper 

with “Bubba” and the phone number “. . . 6473” written on it. 

According to one of Rogers’ coworkers, the phone number on 

the piece of paper was the phone number provided by Cox as 

he sought assistance with his cell phone at the store. Other evidence at trial revealed that Cox’s nickname was “Bubba.”

That same coworker also testified that Rogers left work at 

approximately 6 p.m. but stayed in the parking lot, sitting in 

his car with a friend. The friend was a manager at a different 

branch of the same cell phone company that employed Rogers. 

She had stopped by to pick up phones for her store and stayed 

to smoke marijuana and talk with Rogers in his car after he 

got off work. The friend testified that Rogers smoked and 

dealt marijuana.

According to the friend, while she was in Rogers’ car, two 

men in a white Chevy Impala, with no license plates and 
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STATE v. COX

Cite as 307 Neb. 762

displaying in-transit stickers, parked at the store. One of the 

men—whom she identified at trial as Cox—stopped at Rogers’ 

car to talk to Rogers. The friend said that Cox wanted to buy 

some marijuana, but that Rogers did not have enough on hand. 

Rogers and Cox exchanged telephone numbers and agreed to 

be in touch later that day. Cox and the other man, unknown to 

the friend but later identified as Dennis, went into the store; 

the friend and Rogers left the store’s parking lot in their separate vehicles.

During the course of the investigation, law enforcement 

determined that Rogers owed his drug supplier money. Both 

Rogers’ fellow employee and Rogers’ friend testified that 

Rogers had asked them for money, though both declined to 

give him any. After leaving work, Rogers went to the home 

he shared with his mother and father. He asked his father for 

money and received $200. In addition, bank records show that 

Rogers withdrew nearly $950 from his bank accounts on the 

day of the shooting. That money was not recovered.

After identifying Cox and obtaining the paper with the 

phone number on it, law enforcement sought subscriber information for that number. A warrant was issued, and the cell 

phone records from January 1 to March 24, 2017, including cell site location information (CSLI), were provided to 

law enforcement. In addition, law enforcement had access to 

Rogers’ cell phone.

According to the record, Rogers sent a text message to Cox 

at 6:37 p.m. the day of the shooting that said, “This Ronno.” 

Cell phone records show that there were several phone calls 

between Rogers and Cox on March 6, 2017, in the hour or so 

leading up to the shooting, but that there were no calls between 

the two within the approximately 2 months preceding the 

shooting. CSLI records further showed that Cox’s phone was in 

the area of the shooting at the time and that he was not in the 

area of his purported alibi.

Evidence offered at trial also linked Cox to a white Chevy 

Impala. When questioned by law enforcement, Dennis admitted that he had access to a white Impala that was registered 
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STATE v. COX

Cite as 307 Neb. 762

in the name of his mother. Dennis led officers to the white 

Impala, which was parked near Cox’s brother’s residence. The 

car was impounded. The license plate screws on the car looked 

new, and there were what appeared to be glue marks from 

in-transit stickers in the window. Inside the car was a steering 

wheel cover and two remaining license plate screws in original 

packaging, along with a receipt from an auto parts store for the 

purchase of a steering wheel cover and license plate screws. 

Further investigation revealed video showing Cox purchasing 

those items.

Law enforcement was unable to locate Cox until February 

26, 2018. During his interview, Cox acknowledged that his 

phone number was the same number ending in 6473; that he 

knew Rogers; that he had met with Rogers on March 6, 2017, 

the day of shooting; and that he wanted to obtain marijuana. 

Cox denied shooting Rogers and said he was with a female 

friend during the evening of the shooting. That friend, who testified that Rogers was her uncle, also testified that she did not 

recall seeing Cox on March 6 or 7 and that she did not see him 

until early April. In addition, as previously noted, Cox’s CSLI 

data suggested that he was not at this friend’s home on the day 

of the shooting.

Procedural History

Prior to trial, Cox filed motions to suppress his cell phone 

records and the statements he made to law enforcement in his 

February 26, 2018, interview. As to the statements, Cox argued 

that his rights under Miranda v. Arizona 1 were violated when 

he invoked his right to remain silent and officers continued to 

question him. As for the cell phone records, Cox argued that 

the warrant was obtained without probable cause as explained 

in Carpenter v. U.S.

 2

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 

(1966).

2 Carpenter v. U.S., ___ U.S. ___, 138 S. Ct. 2206, 201 L. Ed. 2d 507 

(2018).
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STATE v. COX

Cite as 307 Neb. 762

In its order, the district court denied the motion to suppress 

the statements. With respect to the cell phone records, the court 

noted that the State had conceded that “the search warrant, 

although obtained prior to Carpenter . . . , has not been remedied post-Carpenter. Accordingly, the State concedes this issue 

and Cox’s motion to suppress these records is granted.”

However, while the motion to suppress the cell phone records 

was pending, the State filed a second affidavit seeking a warrant for the cell phone records. The second affidavit included 

additional averments intended to cure the previous deficiency. 

A second warrant was then issued, and Cox filed another 

motion to suppress. The second motion was denied.

At trial, in response to questioning about Cox’s cell phone 

records, counsel for Cox objected on the basis of the motion to 

suppress. That objection was denied. Counsel for Cox objected 

at the next opportunity, stating: “Judge, I would just ask that 

my same objection be noted for the record and a standing 

objection for any new matters with respect to . . . 6473.” The 

court granted counsel’s “request for a standing objection.”

Counsel also objected to the admission of exhibit 162 on the 

basis of his motion to suppress. Exhibit 162 was a video of law 

enforcement’s first interview with Cox. In addition to showing 

that video, the detective who conducted the interview testified. 

Cox offered few objections to this testimony and made no 

objections on Miranda grounds.

Prior to the case being submitted to the jury, the State abandoned its theory that the murder was premeditated and proceeded solely on a felony murder theory. Cox was found guilty 

on all counts and sentenced to life imprisonment for felony 

murder, 25 to 30 years’ imprisonment for use of a deadly 

weapon, and 40 to 45 years’ imprisonment for possession of a 

firearm by a prohibited person.

ASSIGNMENTS OF ERROR

Cox assigns, restated and consolidated, that the district 

court erred in (1) admitting cell phone records for Cox’s cell 
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STATE v. COX

Cite as 307 Neb. 762

phone in violation of Cox’s Fourth Amendment rights and (2) 

admitting statements made by Cox that were in violation of 

Cox’s Fifth Amendment rights as explained in Miranda.

STANDARD OF REVIEW

[1] In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment 

or the safeguards established by the U.S. Supreme Court in 

Miranda, 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 or Fifth Amendment protections is a 

question of law that an appellate court reviews independently 

of the trial court’s determination. 3

ANALYSIS

On appeal, Cox assigns that the district court erred in admitting his cell phone records and in admitting statements made 

after he invoked his right to remain silent during his February 

26, 2018, interrogation.

Admissibility of Cell Phone Records

Cox assigns that the district court erred in denying his second motion to suppress his cell phone records, including his 

CSLI. Cox’s argument is rooted in the U.S. Supreme Court’s 

decision in Carpenter.

 4

In Carpenter, the Court concluded that individuals had a 

reasonable expectation of privacy in their record of physical 

movements as captured by CSLI. Because of this expectation of privacy, the Court concluded that a warrant was, in 

most cases, required before such records could be acquired. 

The conclusion reached in Carpenter effectively overruled 

this court’s earlier decision in State v. Jenkins,

 5 in which 

3 State v. Schriner, 303 Neb. 476, 929 N.W.2d 514 (2019).

4 Carpenter v. U.S., supra note 2.

5 State v. Jenkins, 294 Neb. 684, 884 N.W.2d 429 (2016).
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Cite as 307 Neb. 762

we held that the acquisition of CSLI did not implicate the 

Fourth Amendment.

Since Carpenter, this court has had the opportunity to 

address the applicability of the exclusionary rule and suppression of evidence as a remedy for a Fourth Amendment violation of the type at issue in this appeal. 6 In both State v. Brown 7

and State v. Jennings,

 8 we declined to apply the exclusionary 

rule to CSLI obtained without a warrant supported by probable 

cause, explaining in each case that the rationale for the exclusionary rule would not be met on the facts presented. In both 

of these cases, officers relied upon the Stored Communications 

Act to support court orders seeking cell phone records, and 

specifically CSLI. At the time the court orders were sought 

and executed, the U.S. Supreme Court had not yet decided 

Carpenter. We concluded that officers in each case were following the statute as written and that the statute in question 

was not clearly unconstitutional.

[2,3] The exclusion of evidence obtained in violation of the 

Fourth Amendment is not itself a constitutional right. 9 Rather, 

it is a remedy designed to deter constitutional violations by 

law enforcement. 10 Thus, in situations where the exclusion 

as a remedy would not deter law enforcement, several exceptions to the exclusionary rule have been recognized. 11 One 

of those exceptions applies to evidence obtained by police in 

objectively reasonable reliance on a statute later found to be 

unconstitutional. 12

6 State v. Jennings, 305 Neb. 809, 942 N.W.2d 753 (2020); State v. Brown, 

302 Neb. 53, 921 N.W.2d 804 (2019).

7 State v. Brown, supra note 6.

8 State v. Jennings, supra note 6.

9 Id.

10 Id.

11 Id.

12 Id.
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STATE v. COX

Cite as 307 Neb. 762

In this case, law enforcement sought a court order based 

upon a statute that was, many months later, determined to be 

unconstitutional. Similar to Brown and Jennings, law enforcement’s reliance on a court order issued under the Stored 

Communications Act, at a time when the act had not yet been 

found by the U.S. Supreme Court or by this court to implicate 

the Fourth Amendment, was not objectively unreasonable.

We observe that the district court originally granted Cox’s 

motion to suppress below on the basis of the State’s concession, but that the evidence was eventually admitted following the denial of a second motion to suppress. The district 

court reasoned that a subsequent warrant essentially cured any 

Fourth Amendment violation.

Of course, this reasoning varies from the reasoning we 

employ today, and in particular, this court’s reasoning relies 

upon the good faith exception to the Fourth Amendment’s warrant requirement. We have previously held that an appellate 

court may not, sua sponte, rely on the good faith exception to 

the warrant requirement. 13 We explained that the concern with 

an appellate court’s reaching the issue of good faith sua sponte 

is that a defendant must have sufficient opportunity to defend 

against the application of the exception. 14 But a review of the 

record shows that this scenario is not presented here. The State 

raised the issue of good faith in its brief on appeal. Cox also 

argues the issue in his brief on appeal.

The district court did not err in admitting the CSLI evidence 

at trial. There is no merit to Cox’s first assignment of error.

Admissibility of Statements

Cox also assigns that the district court erred in denying his 

motion to suppress statements made to law enforcement after 

he invoked his right to remain silent. He argues, in turn, that 

the district court erred in admitting those statements. Because 

13 State v. Tompkins, 272 Neb. 547, 723 N.W.2d 344 (2006).

14 Id.
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Cite as 307 Neb. 762

Cox failed to object to the investigating detective’s testimony 

about his statements, we find no error in the admission of 

these statements.

At issue are statements made during law enforcement’s first 

interview of Cox on February 26, 2018. The State offered a 

video of that interview, exhibit 162, which was shown to the 

jury. The record shows, and the State acknowledges, that Cox 

objected to exhibit 162 on the basis of the earlier motion to 

suppress. But Cox did not seek a continuing objection, or 

object on the basis of Miranda, to any other testimony regarding the statements he made during the interview.

Rather, the detective testified, without objection, that Cox 

agreed that he knew Rogers, that the 6473 number was his, and 

that he provided the name of his alibi. In addition, Cox told 

the detective that he was dropped off at his brother’s residence 

after seeing Rogers at the cell phone store and that he had been 

in a white Chevy Impala. Other evidence showed that the white 

Impala in this case, found near the brother’s residence, was 

later seized.

[4] When a motion to suppress is overruled, the defendant 

must make a specific objection at trial to the offer of the evidence which was the subject of the motion to suppress in order 

to preserve the issue for review on appeal. 15 Put another way, a 

failure to object to evidence at trial, even though the evidence 

was the subject of a previous motion to suppress, waives the 

objection, and a party will not be heard to complain of the 

alleged error on appeal. 16

Because there was no objection to the statements made by 

Cox and testified to by the interviewing detective, Cox has 

waived any right to assert error. The video that was shown 

and objected to was cumulative to that testimony as well as to 

other evidence presented at trial. Namely, several witnesses at 

the cell phone store testified that Rogers spoke to Cox at the 

15 State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014).

16 See State v. Montoya, 305 Neb. 581, 941 N.W.2d 474 (2020).
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store, both Cox’s and Rogers’ cell phone records supported 

contact between the two, and other evidence tied Cox to the 

white Chevy Impala.

[5] Even if the proper objections had been made, however, 

we would still find no reversible error in the admission of 

the statements, because any error would have been harmless. 

Harmless error review looks to the basis on which the trier of 

fact actually rested its verdict; the inquiry is not whether in 

a trial that occurred without the error, a guilty verdict surely 

would have been rendered, but, rather, whether the actual 

guilty verdict rendered in the questioned trial was surely unattributable to the error. 17

During the challenged interview, Cox did not admit to the 

crime or even admit to being in the area at the time of the 

crime. When these statements are compared to the cell phone 

records of calls between Rogers and Cox, the CSLI, and the 

fact that Cox had control over a white Chevy Impala, which 

had been identified by multiple witnesses as being involved 

in the shooting, there was sufficient evidence unattributable to 

any error in offering the video and statements.

There is no merit to Cox’s second assignment of error.

CONCLUSION

The decision of the district court is affirmed.

Affirmed.

17 State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020).