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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. JENNINGS

Cite as 305 Neb. 809

State of Nebraska, appellee, v. 

Leandre R. Jennings III, appellant.

___ N.W.2d ___

Filed May 15, 2020. No. S-18-1186.

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, 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.

2. Motions to Suppress: Pretrial Procedure: Trial: Appeal and Error.

When a motion to suppress is denied pretrial and again during trial on 

renewed objection, an appellate court considers all the evidence, both 

from trial and from the hearings on the motion to suppress.

3. Evidence: Appeal and Error. A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of 

that discretion.

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

reviewing the strength of an affidavit submitted as a basis for finding 

probable cause to issue a search warrant, an appellate court applies a 

totality of the circumstances test.

5. ____: ____: ____: ____. In reviewing the strength of an affidavit submitted as a basis for finding probable cause to issue a search warrant, 

the question 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.

6. 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.

Nebraska Supreme Court Online Library

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

06/26/2020 09:08 AM CDT
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Cite as 305 Neb. 809

7. Verdicts: Juries: Appeal and Error. Harmless error review looks to 

the basis on which the jury actually rested its verdict. The inquiry is 

not whether in a trial that occurred without the error, a guilty verdict 

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

rendered was surely unattributable to the error.

8. Judgments: Appeal and Error. A proper result will not be reversed 

merely because it was reached for the wrong reason.

9. Search Warrants: Affidavits: Evidence: Appeal and Error. In evaluating the sufficiency of an affidavit used to obtain a search warrant, 

an appellate court is restricted to consideration of the information and 

circumstances contained within the four corners of the affidavit, and 

evidence which emerges after the warrant is issued has no bearing on 

whether the warrant was validly issued.

10. Constitutional Law: Search and Seizure: Search Warrants: Probable 

Cause. 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 permit seizure of items 

other than what is described.

11. Search Warrants: Search and Seizure. A warrant whose authorization is particular has the salutary effect of preventing overseizure and 

oversearching.

12. Search Warrants: Police Officers and Sheriffs. A search warrant must 

be sufficiently particular to prevent an officer from having unlimited or 

unreasonably broad discretion in determining what items to seize.

13. Search Warrants: Evidence: Police Officers and Sheriffs. Absent a 

showing of pretext or bad faith on the part of the police or the prosecution, valid portions of a warrant are severable from portions failing to 

meet the particularity requirements.

14. Criminal Law: Appeal and Error. Harmless error jurisprudence recognizes that not all trial errors, even those of constitutional magnitude, 

entitle a criminal defendant to the reversal of an adverse trial result.

15. Convictions: Appeal and Error. It is only prejudicial error, that is, 

error which cannot be said to be harmless beyond a reasonable doubt, 

which requires that a conviction be set aside.

16. Appeal and Error. When determining whether an alleged error is so 

prejudicial as to justify reversal, courts generally consider whether the 

error, in light of the totality of the record, influenced the outcome of 

the case.

17. Verdicts: Evidence: Appeal and Error. Overwhelming evidence of 

guilt can be considered in determining whether the verdict rendered 

was surely unattributable to the error, but overwhelming evidence of 

guilt is not alone sufficient to find the erroneous admission of evidence harmless.
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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. JENNINGS

Cite as 305 Neb. 809

Appeal from the District Court for Douglas County: 

Kimberly Miller Pankonin, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, 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.

Freudenberg, J.

I. NATURE OF CASE

Leandre R. Jennings 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. The district 

court sentenced Jennings to consecutive terms of imprisonment for life, 30 to 40 years, and 40 to 45 years, respectively. 

Before trial, Jennings made two motions to suppress evidence 

obtained from searches of cell phone records and his residence. 

The first motion to suppress was based on cell phone records 

obtained pursuant to a provision within the federal Stored 

Communications Act, which has since been ruled unconstitutional. In the second motion to suppress, Jennings challenges 

the language of several paragraphs in the warrant as violating 

the particularity requirements of the Fourth Amendment. The 

district court denied these motions, and Jennings renewed the 

objections at trial. He now appeals.

II. BACKGROUND

Michael Brinkman was fatally shot during a home invasion in Omaha, Nebraska. Michael’s wife, Kimberly Milius 

(Kimberly), and their son, Seth Brinkman, were home during 

the invasion. After the investigation led law enforcement to 

suspect Jennings, he was arrested. The State charged Jennings 

with first degree murder under Neb. Rev. Stat. § 28-303 

(Reissue 2016), a Class IA felony; use of a deadly weapon 
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Cite as 305 Neb. 809

(firearm) to commit a felony under Neb. Rev. Stat. § 28-1205 

(Reissue 2016), a Class IC felony; and possession of a deadly 

weapon (firearm) by a prohibited person under Neb. Rev. Stat. 

§ 28-1206 (Reissue 2016), a Class ID felony. Jennings was 

found guilty in a trial by jury.

At trial, Kimberly and Seth testified to what they witnessed during the home invasion that lead to Michael’s death. 

Kimberly testified that during the early evening of December 

23, 2016, Michael, Kimberly, and Seth were at home getting ready to go out to dinner. Both Michael and Seth were 

showering in their respective bathrooms. As Michael was getting out of the shower, he asked Kimberly to answer the front 

door. Kimberly looked out a window and did not see anyone, 

though she did see a white sport utility vehicle parked in 

their driveway.

Kimberly opened the front door, and two men with guns, 

wearing masks and what appeared to be surgical gloves, forced 

their way into the home at gunpoint. One of the men was wearing a “[S]anta” hat. Kimberly asked the men what they wanted, 

and they answered, “Money.” Kimberly offered to get her 

purse, but one of the men put a gun to her head and backed her 

into a corner of the living room. The other man, who was wearing the Santa hat, went down the hallway toward Michael’s 

room. Kimberly heard a gunshot, then scuffling sounds and 

another gunshot. After the gunshots, the first assailant ordered 

Kimberly into the master bedroom. As she entered the room, 

she saw Seth strike the second assailant with a shower rod. 

Kimberly testified that the second assailant was the same size 

as Jennings.

Seth’s testimony described the intruders in a similar fashion. He testified that he was in the shower when he heard his 

mother scream. He turned off the shower after he heard “rustling” sounds in the hallway. Seth peeked out of the shower 

and then heard a gunshot from the master bedroom. At that 

point, Seth grabbed the shower rod off the wall and went into 

the master bedroom, where he encountered and attacked the 
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Cite as 305 Neb. 809

second assailant. During the scuffle, the Santa hat fell off the 

second assailant’s head. When the first assailant subsequently 

entered the room with Kimberly, he punched Seth and wrestled 

the shower rod away from him. The first assailant ordered 

Kimberly and Seth “to get down and to shut up.” The second 

assailant left the room and returned a short time later with what 

appeared to be a white “money bag.” Seth testified that the second assailant said something to the first and that they then left, 

taking Kimberly’s cell phone with them.

After they left, Kimberly ran to lock the front door and 

Seth went to look for Michael. Seth first went to the bathroom 

where he had showered, in order to put on his clothes. When 

doing so, he noticed that his shorts had some sort of sauce on 

them and that there were fast food items on the floor. The items 

included a partially eaten piece of “Texas toast,” some “fries,” 

and a container of sauce from a Raising Cane’s restaurant. 

Seth testified that none of those items were present before the 

intruders arrived.

Seth then went to an upstairs bedroom and found the door 

was difficult to open. Seth forced the door open and discovered 

the door had been blocked by Michael, who was lying on the 

floor. Seth called for Kimberly, and she used Seth’s cell phone 

to call the 911 emergency dispatch service while Seth tried to 

aid Michael.

The first officer on the scene entered the home and found 

Michael with Seth, and the officer then requested medical 

assistance. An ambulance rushed Michael to the hospital, but 

he did not survive. Michael’s autopsy established that the cause 

of death was a gunshot wound to the chest.

Kimberly and Seth provided descriptions of the intruders 

to law enforcement. During a canvassing of the neighborhood, law enforcement obtained surveillance video from a 

neighbor which showed a white sport utility vehicle driving 

by the Brinkman residence several times around the time of 

the attack. The lead detective viewed the videos and recognized the vehicle as a Dodge Durango. Police also released a 
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Cite as 305 Neb. 809

photograph and description of the vehicle to the media seeking 

the public’s help in locating the vehicle or suspects.

Members of the forensics team came and collected evidence, 

including DNA swabs from the Texas toast, the Raising Cane’s 

sauce container, the shower rod, and the Santa hat. Police also 

collected three spent shell casings from the residence, later 

determined to be .380 caliber.

On January 2, 2017, law enforcement received an anonymous telephone call indicating the caller had seen the Durango 

in the lot of an apartment complex several days before the 

murder. The caller claimed to have observed two black males 

exit the vehicle and go to an apartment on the third floor of an 

adjoining building. The caller provided the license plate number on the vehicle.

Police determined that the vehicle belonged to a car rental 

company. The records provided by the rental company showed 

that from December 13 through 27, 2016, the vehicle was 

rented to Carnell Watt. The owner of the rental company office 

told police that Watt regularly rents vehicles from that location and that she frequently came in with Jennings, whom she 

would introduce as her husband.

Police recovered the vehicle from a car rental office in 

Detroit, Michigan, and conducted a digital forensics examination. The Durango was equipped to keep a time-stamped list 

of all cell phones which have previously had a Bluetooth connection to the vehicle. Cell phones associated with Watt, her 

sister, and Jennings were connected to the Durango during the 

dates Watt rented the vehicle. During an interview with Omaha 

police, Watt indicated that she lent the Durango to Jennings 

during the rental period.

On February 13, 2017, law enforcement personnel received 

a response from the Federal Bureau of Investigation’s national 

DNA database commonly referred to as “CODIS” informing them that the DNA swab of the Texas toast included 

Jennings as a probable match. Law enforcement then sought 

permission from the court to obtain Jennings’ cell site 
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Cite as 305 Neb. 809

location information (CSLI) pursuant to a provision within 

the Stored Communications Act. Law enforcement sought 

records from cell service companies for Jennings. Only the 

records obtained from one such company are challenged on 

appeal. That company provided Jennings’ cell phone records 

and CSLI in response to a court order which showed that 

Jennings’ cell phone was in the area of the crime around the 

relevant times.

Police also obtained Watt’s cell phone records, which showed 

that on the day of the homicide, her cell phone was located in 

the area of her place of employment, which is not close to the 

location of the homicide. However, the records also showed 

that at around 3 p.m. on December 23, 2016, Watt’s cell phone 

was briefly in the area of a Raising Cane’s restaurant located 

in Council Bluffs, Iowa.

On February 16, 2017, law enforcement viewed the surveillance video for December 23, 2016, from the Council Bluffs 

Raising Cane’s restaurant in question and observed a white 

sport utility vehicle in the drive-through lane of the restaurant 

between 3:17 and 3:23 p.m. The video displayed two unidentifiable occupants and a particular item of clothing worn by the 

driver. The item worn by the driver was described as a dark 

shirt with light stripes.

Using all of the aforementioned information, a detective 

applied for a search warrant for a specific address on North 

60th Street. The affidavit detailed the description of the 

intruders as wearing gloves and masks, noted the various 

clothing items described during the intrusion and seen on the 

Raising Cane’s surveillance video, indicated that the CSLI 

data placed Jennings’ phone near the Brinkman residence 

before and after the time of the murder, and specified that the 

Nebraska State Patrol had notified Omaha police of a possible 

CODIS match to Jennings from one of the items recovered at 

the scene. The affidavit also noted that the address Jennings 

had provided to his probation officer was on Sprague Street, 

but that Jennings also had a vehicle registered in Nebraska 
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Cite as 305 Neb. 809

with a North 60th Street address and that a utilities district’s 

records showed Watt and Jennings listed as residents there. 

The court reviewed all of the information provided by the 

detective and issued a search warrant for the North 60th 

Street address.

The detective testified to how the search warrant was executed at the North 60th Street residence. The Omaha “crime 

lab” accompanied him and several officers to the address. After 

entry was made, the crime lab took pictures of everything in 

the residence before anything was disturbed.

The search warrant contained numbered paragraphs specifying the parameters of the search. The warrant read as follows:

1) Venue Items identifying those parties who either 

own or who are in control of the residence [on] North 

60th Street, Omaha, Douglas County, Nebraska;

2) The ability to seize and process item(s) of evidentiary value, to include: cellular phone(s), computer(s) 

recording device(s) including audio and video, companion equipment, records, whether stored on paper, magnetic media such as tape, cassette, disk, diskettes, or on 

memory storage devices such as optical disks, programmable instruments such as telephones, “electronic address 

books”, or any other storage media, together with indicia 

of use, ownership, possession or control of the aforementioned residence;

3) Any make and model firearm(s) which fires a 380 

caliber cartridge . . . ;

4) Unknown brand/size/construction mask which could 

be used to conceal the wearers face;

5) Clothing items to include but not limited to grey 

hooded sweatshirt, navy blue hooded sweatshirt, blue athletic style warm-up pants with white stripes;

6) Blue or Black in color latex or similar construction 

gloves[.]

The evidence recovered from the search of the North 60th 

Street residence included photographs of the condition of the 
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Cite as 305 Neb. 809

residence before it was searched; various documents establishing residency for Watt and Jennings; photographs of clothing 

items, some of which items were seized; and photographs of 

cell phones along with their retail boxes.

After he was arrested, a buccal swab was taken from 

Jennings and compared to the DNA evidence recovered at 

the scene. Comparison of the swab taken from the Texas toast 

to a buccal swab taken from Jennings after he was arrested 

found that Jennings was the probable major contributor to the 

DNA detected. A forensic DNA analyst from the University 

of Nebraska Medical Center testified that the probability of a 

random individual’s matching a DNA profile found within the 

major component of the mixture given that Jennings expresses 

such a profile is approximately 1 in 123 octillion.

Before trial, Jennings moved to suppress (1) his cell phone 

records and (2) evidence obtained from the search of his 

residence. Jennings argued that his cell phone records, which 

included CSLI, should be suppressed because they were 

obtained through a court order under a provision within the 

Stored Communications Act, instead of through search warrants, and because there was insufficient probable cause to 

support a warrant.

Jennings argued that the evidence obtained from the search 

of his residence should be suppressed because the search warrant was not sufficiently particular and because there was not 

probable cause to support it. Specifically, Jennings argued that 

the CSLI information and the DNA information provided in the 

affidavit should be excluded from the probable cause analysis. 

The affidavit in support of the warrant contained information 

summarizing the investigation details recounted above and also 

reported the call record and CSLI obtained from Jennings’ cell 

phone. The affidavit explained that the University of Nerbaska 

Medical Center’s human DNA laboratory built a “mainly single source male” DNA profile from the piece of Texas toast 

and that profile was a probable match in the CODIS system 

for Jennings.
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At the request of the parties, the district court postponed 

ruling on Jennings’ motions to suppress until after the U.S. 

Supreme Court issued its ruling in Carpenter v. U.S.,

 1 which 

involved whether a search warrant was required to obtain 

CSLI. While Carpenter was pending, law enforcement obtained 

search warrants for Jennings’ cell phone records.

On June 22, 2018, the U.S. Supreme Court issued its opinion in Carpenter and held therein that a search warrant was 

required to obtain a person’s CSLI. Thereafter, the district 

court held additional hearings on Jennings’ motions to suppress. In a subsequent written order, the district court denied 

Jennings’ motions to suppress. The district court denied 

Jennings’ motion to suppress his cell phone records because 

although law enforcement’s initial orders were insufficient 

under Carpenter, the later search warrants cured that defect. 

The district court denied Jennings’ motion to suppress the evidence obtained from the search of his residence because the 

search warrant was sufficiently particular and supported by 

probable cause. Jennings renewed his objections at trial, and 

they were overruled. Several items and photographs obtained 

during the search were admitted into evidence over a continuing objection from Jennings.

III. ASSIGNMENTS OF ERROR

Jennings assigns that the district court erred in denying 

his two motions to suppress, in violation of his constitutional 

rights. First, Jennings assigns that obtaining the cell phone 

records and CSLI from the court order pursuant to a provision within the Stored Communications Act was held to be 

unconstitutional by Carpenter and that the district court erred 

by concluding that the subsequent warrant cured the constitutional violation. Second, Jennings assigns that the denial of 

the motion to suppress the evidence obtained from the search 

of his residence was error because the affidavit to support the 

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

(2018).
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warrant was insufficient and the warrant itself lacked the particularity required by the U.S. Constitution.

IV. 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, 

an appellate court applies a two-part standard of review. 2

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. 3

[2] When a motion to suppress is denied pretrial and again 

during trial on renewed objection, an appellate court considers 

all the evidence, both from trial and from the hearings on the 

motion to suppress. 4

[3] A trial court has the discretion to determine the relevancy 

and admissibility of evidence, and such determinations will 

not be disturbed on appeal unless they constitute an abuse of 

that discretion. 5

[4-6] In reviewing the strength of an affidavit submitted as 

a basis for finding probable cause to issue a search warrant, 

an appellate court applies a totality of the circumstances test. 6

The question 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. 7 Probable cause sufficient to justify issuance 

of a search warrant means a fair probability that contraband or 

evidence of a crime will be found. 8

2 State v. Brye, 304 Neb. 498, 935 N.W.2d 438 (2019).

3 Id.

4 State v. Baker, 298 Neb. 216, 903 N.W.2d 469 (2017).

5 Id.

6 State v. Goynes, 303 Neb. 129, 927 N.W.2d 346 (2019).

7 Id.

8 Id.
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[7] Harmless error review looks to the basis on which the 

jury actually rested its verdict. The inquiry is not whether in 

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

surely have been rendered, but whether the actual guilty verdict rendered was surely unattributable to the error. 9

V. ANALYSIS

Jennings correctly asserts that seizure of his cell phone 

records and CSLI under a provision within the Stored 

Communications Act was a violation of his Fourth Amendment 

rights. However, the fact that the relevant provision of the 

Stored Communications Act was not determined to be unconstitutional until 18 months after the order in this case leads us 

to conclude that the exclusion of the evidence is subject to the 

good faith exception established in Illinois v. Krull.

 10 Thus, 

the district court correctly denied Jennings’ motion to suppress 

related to the cell phone records and CSLI. Jennings’ assertion that the information obtained from the seizure of the cell 

phone records and CSLI should be excluded from a probable 

cause analysis concerning the residential search warrant fails 

for the same reasons. We find that the record supports the district court’s determination that the warrant was supported by 

probable cause. We also find that a majority of the provisions 

in the residential search warrant met the particularity requirements of the Fourth Amendment and that the masks, gloves, 

cell phones, and documents showing Jennings’ occupancy 

were seized in accordance with these requirements. Assuming 

without deciding that the photographs taken by law enforcement of the interior of the residence, including photographs 

of items not specified in the warrant, were seized pursuant 

to invalid portions of the warrant, their admission was harmless error.

9 State v. Thompson, 301 Neb. 472, 919 N.W.2d 122 (2018).

10 See Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 

(1987).
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Cite as 305 Neb. 809

1. Motion to Suppress Cell 

Phone Records and CSLI

Under Carpenter, the State conducted a search in violation 

of the Fourth Amendment when it used a court order pursuant to a provision within the federal Stored Communications 

Act, rather than a warrant, to acquire Jennings’ cell phone 

records and CSLI. 11 However, the fact that Jennings’ Fourth 

Amendment rights were violated does not mean the district 

court erred in denying the motion to suppress. 12 In addressing a 

nearly identical scenario, we recently observed that “the exclusionary rule is to be a ‘last resort’ and not a ‘first impulse.’” 13

We find that exclusion of the CSLI evidence is not the 

appropriate remedy for the violation of Jennings’ Fourth 

Amendment rights.

The exclusion of evidence obtained in violation of the 

Fourth Amendment is not itself a constitutional right. 14 Rather, 

it is a remedy designed to deter constitutional violations by 

law enforcement. 15 Thus, in situations where the exclusion 

as a remedy would not deter law enforcement, several exceptions to the exclusionary rule have been recognized. 16 One of 

those exceptions to the exclusionary rule applies to evidence 

11 See Carpenter v. U.S., supra note 1.

12 See, Herring v. United States, 555 U.S. 135, 141, 129 S. Ct. 695, 172 L. 

Ed. 2d 496 (2009) (explaining that application of exclusionary rule is not 

“a necessary consequence of a Fourth Amendment violation”); State v. 

Brown, 302 Neb. 53, 921 N.W.2d 804 (2019), cert. denied ___ U.S. ___, 

139 S. Ct. 2680, 204 L. Ed. 2d 1080.

13 State v. Brown, supra note 12, 302 Neb. at 60, 921 N.W.2d at 811 (citing 

Hudson v. Michigan, 547 U.S. 586, 126 S. Ct. 2159, 165 L. Ed. 2d 56 

(2006)).

14 Davis v. United States, 564 U.S. 229, 131 S. Ct. 2419, 180 L. Ed. 2d 285 

(2011) (citing Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 

1067 (1976)).

15 See State v. Hoerle, 297 Neb. 840, 901 N.W.2d 327 (2017).

16 See, Davis v. United States, supra note 14; Illinois v. Krull, supra note 10; 

United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 

(1984); State v. Hoerle, supra note 15.
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obtained by police in objectively reasonable reliance on a statute later found to be unconstitutional. 17

When the police applied for the court order on February 14, 

2017, for Jennings’ cell phone records and CSLI from the cell 

service companies, they were making a request pursuant to 

a federal statute that had not yet been ruled unconstitutional. 

Law enforcement obtained the CSLI without first securing 

a warrant supported by probable cause, but did so as authorized by 18 U.S.C. § 2703(d) (Supp. V 2017) of the Stored 

Communications Act. It cannot be said that by doing so, law 

enforcement relied on a statute that was clearly unconstitutional. As we noted recently in State v. Brown,

 18 many courts 

have held, as we did in State v. Jenkins,

 19 that the Stored 

Communications Act did not violate the Fourth Amendment. 

Carpenter was decided nearly 18 months after the application 

for the records in this case. 20

[8] We find that law enforcement made the request in objectively reasonable reliance on the Stored Communications Act 

and did not have reason to believe that the relevant provision 

of the act was unconstitutional. On these facts, exclusion of the 

cell phone records and the CSLI obtained under the court order 

would not serve as a deterrent to future Fourth Amendment 

violations by law enforcement, and its application is unwarranted. Thus, we conclude, albeit for reasons different from 

those articulated by the district court, that it did not err by 

denying Jennings’ motion to suppress the cell phone records 

and CSLI. A proper result will not be reversed merely because 

it was reached for the wrong reason. 21 We need not address the 

validity of the subsequent warrants that Jennings asserts failed 

to cure the Fourth Amendment violation.

17 State v. Brown, supra note 12.

18 Id.

19 State v. Jenkins, 294 Neb. 684, 884 N.W.2d 429 (2016).

20 Carpenter v. U.S., supra note 1.

21 In re Estate of Odenreider, 286 Neb. 480, 837 N.W.2d 756 (2013).
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2. Motion to Suppress Evidence Recovered 

From Search of Residence

Jennings argues that the evidence recovered from the search 

of the North 60th Street residence should have been suppressed 

because the warrant lacked probable cause and, in the alternative, the warrant violated the particularity requirements of 

the Nebraska and U.S. Constitutions. The Fourth Amendment 

provides that warrants may not be granted “but upon probable cause, supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons or things 

to be seized.” The Nebraska Constitution, under article I, § 7, 

similarly provides that “no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly 

describing the place to be searched, and the person or thing to 

be seized.”

(a) Probable Cause

In reviewing the strength of an affidavit submitted as a basis 

for finding probable cause to issue a search warrant, an appellate court applies a totality of the circumstances test. 22 The 

question 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. 23 Probable cause sufficient to justify issuance of 

a search warrant means a fair probability that contraband or 

evidence of a crime will be found. 24

[9] In evaluating the sufficiency of an affidavit used to 

obtain a search warrant, an appellate court is restricted to 

consideration of the information and circumstances contained 

within the four corners of the affidavit, and evidence which 

emerges after the warrant is issued has no bearing on whether 

the warrant was validly issued. 25

22 State v. Goynes, supra note 6.

23 Id.

24 Id.

25 Id.
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Because Jennings’ CSLI had been obtained pursuant to a 

federal statute that a reasonable law enforcement officer would 

believe to be constitutional, we disagree with Jennings’ argument that the statements in the affidavit supporting the residential search warrant, which referred to the cell phone records 

and CSLI obtained from the cell service company, should not 

be considered in a probable cause determination because they 

were fruit of the poisonous tree. Law enforcement officers 

were including in the affidavit in support of the residential 

search warrant all the information available to them and had no 

reason to believe that any of the information had been obtained 

in violation of Jennings’ Fourth Amendment rights. Moreover, 

it was objectively reasonable for a law enforcement officer 

to believe that the cell phone information obtained from the 

court order was relevant and usable in future affidavits pertaining to the same investigation. Because a good faith exception 

applies to the initial court order, the same exception applies to 

the use of the cell phone records and the CSLI in the subsequent affidavit. 26

We also disagree with Jennings’ contention that the statement in the supporting affidavit about the possible DNA 

match to Jennings in the CODIS system was too vague to be 

properly relied upon to support a finding of probable cause. 

The portion of the affidavit concerning the DNA match reads 

as follows:

On January 23rd 2017 Investigators were notified of 

a mainly single source male DNA profile [which] was 

located from testing of EV#20.

On January 27th 2017 the UNMC Human DNA 

Laboratory submitted their findings to the Nebraska State 

Patrol for CODIS entry and search.

On February 13, 2017 Investigators were notified of 

a possible CODIS identification to the submitted sample 

[which] was that belonging to [Jennings].

26 See, United States v. Leon, supra note 16; State v. Brown, supra note 12.
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Jennings asserts that in order to include these statements in 

the probable cause analysis, we must make the impermissible 

assumption that the magistrate was familiar with CODIS and 

its limitations. Moreover, Jennings points out that the language 

of “possible CODIS identification” does not give details of the 

probability supporting the match.

But this is not how appellate courts review findings of probable cause in a warrant. We have long applied the same standard set forth by the U.S. Supreme Court in Illinois v. Gates.

 27

When the Court adopted the totality of the circumstances test, 

it also explained that “‘courts should not invalidate warrant[s] 

by interpreting affidavit[s] in a hypertechnical, rather than a 

commonsense, manner.’” 28 We examine the affidavit using a 

commonsense approach to determine whether the magistrate 

had a substantial basis for concluding that a search would 

uncover evidence of wrongdoing; the Fourth Amendment 

requires no more. 29

We will not assume that a magistrate judge is unaware 

of the meaning of acronyms and abbreviations. We decline 

to assume that the magistrate judge did not know what the 

CODIS system is and then relied on information that he or 

she did not understand. The statements in the affidavit did not 

have the scientific detail provided by an expert witness at trial, 

but the Fourth Amendment does not require such a technical 

level of detail. The statements provided a link between the 

Texas toast found at the crime scene and a DNA sample from 

Jennings on file in the CODIS database. Using a commonsense 

approach, we find that the statements about the DNA evidence 

were clear enough to be properly considered in the probable 

cause analysis.

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

See, also, State v. Detweiler, 249 Neb. 485, 544 N.W.2d 83 (1996).

28 Illinois v. Gates, supra note 27, 462 U.S. at 236 (quoting United States v. 

Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965)).

29 See State v. Detweiler, supra note 27.
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Moreover, in addition to the CSLI and DNA information 

discussed above, the affidavit in support of the search warrant recounted several important details from the investigation. Law enforcement recounted the eyewitness statements 

about the clothing worn by the assailants, the presence of the 

food left at the scene, the description of the white sport utility 

vehicle in the driveway, the video obtained from the neighbor’s house depicting a white Durango driving by multiple 

times, and the information obtained from the anonymous tip 

which led the authorities to question the car rental company 

and trace the vehicle to Watt. The affidavit further recounted 

that Watt had stated in an interview with the Omaha police 

that she allowed Jennings to use the Durango rented in her 

name. Police also described the surveillance video acquired 

from the Raising Cane’s restaurant in Council Bluffs showing 

a white Durango go through the drive-through lane during the 

time that Watt’s and Jennings’ cell phones show them to be in 

the area. The CSLI recovered from the court order indicated 

that Jennings’ cell phone was in an area near the Brinkman 

residence before and after the murder. We find, under the totality of the circumstances, that there was sufficient information 

contained within the affidavit to support the court’s finding of 

probable cause to issue the warrant for the search of the North 

60th Street residence.

(b) Particularity Requirement

Jennings alternatively argues that all evidence from the 

residential search should have been suppressed because the 

language contained in paragraphs 1, 2, and 5 of the warrant 

violated the particularity requirement of the U.S. and Nebraska 

Constitutions. The evidence recovered from the search of the 

North 60th Street residence includes various documents establishing residency for Watt and Jennings, clothing items, various types of gloves, and two cell phones. Photographs of the 

two cell phones along with their retail boxes were also taken 

and admitted into evidence. Law enforcement also took photographs of the condition of the residence before it was searched, 

which were entered into evidence.
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[10,11] In addition to the requirement of probable cause, 

the Fourth Amendment contains a particularity requirement. 30

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 

permit seizure of items other than what is described. 31 A warrant whose authorization is particular has the salutary effect of 

preventing overseizure and oversearching. 32

[12] We have held that “a warrant must be sufficiently particular to prevent the officer from having unlimited or unreasonably broad discretion in determining what items to seize.” 33

In determining whether a warrant is sufficiently particular, we 

find the factors listed by this court in State v. Baker 34 to be 

applicable. Those are (1) whether the warrant communicates 

objective standards for an officer to identify which items may 

be seized, (2) whether there is probable cause to support the 

seizure of the items listed, (3) whether the items in the warrant 

could be more particularly described based on the information 

available at the time the warrant was issued, and (4) the nature 

of the activity under investigation. 35 The majority of jurisdictions utilize the same or similar factors. 36

30 State v. Henderson, 289 Neb. 271, 854 N.W.2d 616 (2014); State v. 

Sprunger, 283 Neb. 531, 811 N.W.2d 235 (2012).

31 State v. Henderson, supra note 30 (citing U.S v. Clark, 754 F.3d 401 (7th 

Cir. 2014)).

32 Id.

33 State v. Baker, supra note 4, 298 Neb. at 228-29, 903 N.W.2d at 478.

34 State v. Baker, supra note 4.

35 See, id.; State v. Tyler, 291 Neb. 920, 870 N.W.2d 119 (2015). See, also, 

U.S. v. Sigillito, 759 F.3d 913 (8th Cir. 2014); United States v. Spilotro, 

800 F.2d 959 (9th Cir. 1986).

36 See, U.S. v. Sanjar, 876 F.3d 725 (5th Cir. 2017); U.S. v. Sigillito, supra

note 35; U.S. v. Kuc, 737 F.3d 129 (1st Cir. 2013); U.S. v. Rosa, 626 F.3d 

56 (2d Cir. 2010); U.S. v. Sells, 463 F.3d 1148 (10th Cir. 2006); U.S. v. 

Blakeney, 942 F.2d 1001 (6th Cir. 1991); United States v. Spilotro, supra

note 35. See, also, State v. Hughes, 433 So. 2d 88 (La. 1983); State v. 

Jackson, 150 Wash. 2d 251, 76 P.3d 217 (2003).
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As these factors make apparent, the level of particularity that is required depends on the nature of the items under 

investigation. Further, whether a warrant violates the particularity clause must be determined in light of the language as 

a whole. 37

In two cases, we found clauses under the circumstances that 

deemed authorizing the search of “any and all firearms” to be 

sufficiently particular. In Baker, we held that such a clause was 

sufficiently particular to enable the searching officers to identify the property authorized to be seized. 38 We upheld a similar 

challenge in State v. Tyler 39 to the seizure of a gunlock found 

during a residential search where the warrant read in part: “‘1) 

Any and all firearms, and companion equipment to include but 

not limited to ammunition, holsters, spent projectiles, spent 

casings, cleaning kits/cases and boxes, paperwork, and the 

like.’” Prior to seeking the warrant, the police had determined 

that there were approximately 20 different firearms capable 

of using the type of cartridge recovered from the scene of a 

shooting. 40 We determined that this paragraph was sufficiently 

particular because the scope of the search was not left to the 

discretion of the officers. We also explained that the nature 

of the activity under investigation justifies its scope. When 

police are investigating a murder that occurred with a gun and 

there is a range of firearms fitting the known characteristics of 

the murder weapon, it is sufficient to describe the items to be 

searched for as “[a]ny and all firearms . . . .’” 41

In contrast, in State v. Henderson,

 42 we found that the 

clause of a warrant authorizing the search for “‘[a]ny and all 

information’” contained in a cell phone was unconstitutional 

37 See Stanford v. Texas, 379 U.S. 476, 85 S. Ct. 506, 13 L. Ed. 2d 431 

(1965).

38 State v. Baker, supra note 4.

39 State v. Tyler, supra note 35, 291 Neb. at 934, 870 N.W.2d at 130.

40 State v. Tyler, supra note 35.

41 See id. at 934, 870 N.W.2d at 130.

42 State v. Henderson, supra note 30, 289 Neb. at 276-77, 854 N.W.2d at 625.
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because the warrant did not identify a particular crime or relevant evidence intended to be recovered from the cell phone. 

We held that 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. We also held that the catchall provision 

of the warrant authorizing the search of “‘any other information that can be gained from the internal components and/or 

memory Cards’” was insufficiently particular to satisfy the 

Fourth Amendment even when it was preceded by a particular 

list of electronics. 43

In other cases, we have found to be insufficiently particular 

language in a warrant permitting the search for “‘additional 

stolen property.’” 44 We have also found insufficiently particular 

language permitting the personal search of any “‘John and/or 

Jane DOE’” 45 present during a residential search.

(i) Paragraph 1: Venue Items

We disagree with Jennings’ argument that the warrant provision allowing for the search and seizure of “[v]enue items 

identifying those parties who either own or who are in control of the residence” is too broad to satisfy the particularity 

requirements set forth above. The facts of the case demonstrate 

that there was a need for law enforcement to be able to establish a link between items found at the address and Jennings. 

Similarly to our finding in Tyler, we find that the venue items 

provision is sufficiently particular in light of the nature of the 

activity under investigation. 46

Although “[v]enue items” in the warrant at issue described 

a category of items, rather than a specific item to be seized, 

that does not mean paragraph 1 violates the particularity 

43 Id. at 277, 854 N.W.2d at 625.

44 State v. LeBron, 217 Neb. 452, 457, 349 N.W.2d 918, 922 (1984).

45 Compare State v. Pecha, 225 Neb. 673, 676, 407 N.W.2d 760, 763 (1987), 

with State v. Johnson, 243 Neb. 758, 502 N.W.2d 477 (1993).

46 State v. Tyler, supra note 35.
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requirements of the Fourth Amendment. The description sets 

forth objective standards by which executing officers can differentiate items subject to seizure from those that are not. It is 

the nature of venue items that they cannot be predicted with 

specificity. Law enforcement understands that items containing an address linked with the suspect’s name are indicative of 

venue. The items that can be seized pursuant to such a venue 

items clause are clearly only those items which on their face 

establish ownership, occupancy, or control of the location 

being searched.

Photographs of the items admitted under paragraph 1 

included a cell phone replacement claim, an energy bill, a 

Social Security card, a credit card billing envelope, and a tax 

form. Each item had the common trait of containing a shipping label demonstrating that Watt or Jennings received mail 

and used the North 60th Street address as their residence. The 

warrant was not constitutionally deficient based on paragraph 

1, and the denial of Jennings’ motion to suppress as it relates 

to exhibits 390 through 398 seized and admitted as venue items 

was properly denied.

(ii) Paragraph 2: Cell Phones

Paragraph 2, in contrast, has multiple deficiencies under the 

particularity provision of the Fourth Amendment. It states:

The ability to seize and process item(s) of evidentiary 

value, to include: cellular phone(s), computer(s) recording 

device(s) including audio and video, companion equipment, records, whether stored on paper, magnetic media 

such as tape, cassette, disk, diskettes, or on memory storage devices such as optical disks, programmable instruments such as telephones, “electronic address books”, 

or any other storage media, together with indicia of use, 

ownership, possession or control of the aforementioned 

residence[.]

First, the entire paragraph is grammatically vague. It is unclear 

how the first clause relates to the second clause listing electronic items. It is equally unclear why the paragraph ends with 
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a clause discussing “indicia of use, ownership, possession or 

control.” Second, the warrant provides no indication of what 

it means to “seize and process item(s) of evidentiary value.” 

It is unclear if that statement is limited to the list of specific 

electronic media that follows or leaves the search and seizure 

of items to the discretion of the executing officers. For these 

reasons, we find the statement, “[t]he ability to seize and process item(s) of evidentiary value, to include: . . .” to be unconstitutionally vague.

[13] However, this does not end our inquiry, insofar as the 

paragraph also listed particular items to be seized. Absent a 

showing of pretext or bad faith on the part of the police or the 

prosecution, valid portions of a warrant are severable from portions failing to meet the particularity requirements. 47

Paragraph 2 contained a sufficiently particular list of specific electronic media items that included cell phones. This list 

is severable from the insufficiently particular language contained in the first clause of the paragraph. The probable cause 

provided by the affidavit supported looking for electronic 

records that could contain information that establishes ownership, occupancy, or control over the residence being searched. 

The search for and seizure of the specifically listed electronic 

items did not violate Jennings’ Fourth Amendment rights. 

Thus, the two cell phones were properly seized and the picture 

of a specific cell phone was properly admitted into evidence as 

exhibit 406.

(iii) Paragraphs 4 and 6: Masks and Gloves

Paragraphs 4 and 6 specified certain clothing items to be 

searched for and seized. The detail provided in the warrant 

was based on the descriptions of the intruders provided by 

victims Kimberly and Seth. Photographs were taken of latex 

gloves and gardening gloves pursuant to paragraph 6. In addition, a box of latex gloves was physically seized pursuant to 

47 See State v. LeBron, supra note 44. See, also, U.S. v. Sigillito, supra

note 35.
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paragraph 6. These photographs and the box of gloves were 

admitted into evidence as exhibits 352 through 356 and 528. 

Photographs of masks found in the residence were taken under 

paragraph 4 and entered into evidence as exhibits 361 through 

365. Jennings does not claim on appeal that either of these 

paragraphs violated the particularity requirements of the U.S. 

and Nebraska Constitutions. As such, the motion to suppress 

was correctly denied as to exhibits 352 through 356, 361 

through 365, and 528.

(iv) Paragraph 5: Clothing Items

Paragraph 5 provided for a categorical search for clothing followed by a list of the specific items described in the 

affidavit. Photographs of several clothing items were taken 

under this paragraph and admitted into evidence as exhibits 

376 through 386. Exhibits 376 through 379, 385, and 386 were 

properly admitted as items specifically described in paragraph 

5. Thus, we find that the motion to suppress was correctly 

denied as to exhibits 376 through 379, 385, and 386.

Not including the photographs of the items particularly 

listed in the warrant as discussed above, 56 additional photographs of the interior of the residence were admitted into 

evidence. These photographs depicted the general condition of 

the residence prior to the search. Included in the set of photographs were pictures of the retail boxes for two cell phones 

and two shirts that were hanging on a laundry rack in a utility room.

Jennings argues that these items were seized pursuant to 

the insufficiently particular clause “[c]lothing items,” which 

is similar to the clause authorizing seizure of “‘footwear [and] 

clothing” which the 10th Circuit has held violates the particularity requirements of the Fourth Amendment. 48 Assuming 

without deciding that the admission of these photographs violates the particularity clause, we find their admission to be 

harmless error.

48 See U.S. v. Sells, supra note 36, 463 F.3d at 1152.
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[14-17] Harmless error jurisprudence recognizes that not all 

trial errors, even those of constitutional magnitude, entitle a 

criminal defendant to the reversal of an adverse trial result. 49 It 

is only prejudicial error, that is, error which cannot be said to 

be harmless beyond a reasonable doubt, which requires that a 

conviction be set aside. 50 When determining whether an alleged 

error is so prejudicial as to justify reversal, courts generally 

consider whether the error, in light of the totality of the record, 

influenced the outcome of the case. 51 In other words, harmless 

error review looks to the basis on which the jury actually rested 

its verdict. The inquiry is not whether in a trial that occurred 

without the error, a guilty verdict would surely have been 

rendered, but whether the actual guilty verdict rendered was 

surely unattributable to the error. 52 Overwhelming evidence of 

guilt can be considered in determining whether the verdict rendered was surely unattributable to the error, but overwhelming 

evidence of guilt is not alone sufficient to find the erroneous 

admission of evidence harmless. 53

The photographs of the shirts appear to be relevant in that 

the shirts are similar to clothing worn by the individual in the 

Raising Cane’s restaurant surveillance video. The pictures of 

the cell phone boxes showing serial numbers were never linked 

to any element of the crime and appear to have no evidentiary 

value; thus, no prejudice resulted from their admission. And, 

given the body of overwhelming evidence of guilt properly 

admitted, the jury’s verdict was surely unattributable to the 

two shirts.

Excluding these 56 photographs, the jury was presented 

with a large body of evidence upon which it could base the 

verdicts. DNA evidence on the Texas toast showed a major 

49 State v. Thompson, supra note 9.

50 Id.

51 Id.

52 Id.

53 State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).
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contributor profile that matched Jennings’ DNA information 

saved within the CODIS system. Subsequent comparison of 

the swab taken from the Texas toast to a buccal swab taken 

from Jennings after he was arrested indicated that Jennings 

was the probable major contributor of the DNA found at the 

Brinkman residence. The probability of a random individual’s 

matching a DNA profile found within the major component 

of the mixture given that Jennings expresses such a profile is 

approximately 1 in 123 octillion. Jennings’ CSLI data placed 

his cell phone near the area of the crime both before and after 

the time of the murder. The white Durango was traced to Watt, 

and Watt subsequently gave a statement to Omaha police 

indicating that she lent the vehicle to Jennings. Moreover, the 

Bluetooth records from the Durango showed Jennings’ cell 

phone was connected to the Durango several times throughout the rental period. Further, the CSLI for Watt and Jennings 

placed both of their cell phones in the area of the Raising 

Cane’s restaurant in Council Bluffs during the same timeframe 

the surveillance video shows a white Durango go through the 

drive-through lane.

The jury’s verdicts were surely unattributable to the admission of the photographs taken of the Jennings’ residence before 

the search. Accordingly, the admission of such evidence was 

harmless error.

VI. CONCLUSION

We find that the district court correctly denied both motions 

to suppress. The cell phone records and CSLI were properly 

admitted as a part of the good faith exception to the exclusionary rule. The affidavit provided probable cause for the issuance 

of a warrant to search the North 60th Street residence. The 

material evidence found from the search of the residence was 

properly admitted under sections of the warrant that were constitutionally valid. The balance of the evidence admitted was 

harmless error even if it were determined to be inadmissible. 

We affirm the judgment of the district court.

Affirmed.