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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. McGOVERN

Cite as 311 Neb. 705

State of Nebraska, appellant and 

cross-appellee, v. Jake J. McGovern, 

appellee and cross-appellant.

___ N.W.2d ___

Filed June 10, 2022. No. S-21-144.

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. Sentences: Appeal and Error. Whether an appellate court is reviewing 

a sentence for its leniency or its excessiveness, a sentence imposed by 

a district court that is within the statutorily prescribed limits will not 

be disturbed on appeal unless there appears to be an abuse of the trial 

court’s discretion.

3. Judgments: Appeal and Error. 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.

4. 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.

5. 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.

Nebraska Supreme Court Online Library

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

07/29/2022 08:06 AM CDT
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STATE v. McGOVERN

Cite as 311 Neb. 705

6. Search Warrants: Affidavits: Probable Cause. A search warrant, to 

be valid, must be supported by an affidavit which establishes probable cause.

7. 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. 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.

8. 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.

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. 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.

11. 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.

12. 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.

13. Search Warrants: Probable Cause: Appeal and Error. A judge’s 

determination of probable cause to issue a search warrant should be paid 

great deference by reviewing courts.

14. Constitutional Law: Search and Seizure: 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.

15. Search Warrants. The degree of specificity required in a warrant depends on the circumstances of the case and on the type of 

items involved.
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STATE v. McGOVERN

Cite as 311 Neb. 705

16. 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 such examination is reasonable under the Fourth Amendment.

17. Search Warrants: Affidavits. An inadvertent defect in a search warrant 

may be cured by reference to the affidavit used to obtain the warrant if 

the affidavit is incorporated in the warrant or referred to in the warrant 

and the affidavit accompanies the warrant.

18. 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.

19. Constitutional Law: Search and Seizure: Evidence. The exclusionary rule operates as a judicially created remedy designed to safeguard 

Fourth Amendment rights generally through its deterrent effect.

20. Search Warrants: Police Officers and Sheriffs. When a search warrant 

has been issued, the applicability of the good faith exception turns on 

whether the officers acted in objectively reasonable good faith in reliance on the warrant.

21. Search Warrants: Affidavits: Police Officers and Sheriffs: Appeal 

and Error. 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.

22. Motions to Suppress: Search Warrants: Affidavits: Police Officers 

and Sheriffs: Evidence. Under the good faith exception to the exclusionary rule, evidence may be suppressed if (1) the magistrate or judge 

in issuing a warrant was misled by information in an affidavit that the 

affiant knew was false or would have known was false except for his 

or her reckless disregard for the truth, (2) the issuing magistrate wholly 

abandoned his or her judicial role, (3) the warrant is based on an affidavit so lacking in indicia of probable cause as to render official belief 

in its existence entirely unreasonable, or (4) the warrant is so facially 

deficient that the executing officer cannot reasonably presume it to 

be valid.

23. Warrantless Searches: Police Officers and Sheriffs. Under the plain 

view doctrine, if police officers are lawfully in a position from which 

they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they 

may seize it without a warrant.

24. Constitutional Law: Search and Seizure. The ultimate touchstone of 

the Fourth Amendment is reasonableness.
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STATE v. McGOVERN

Cite as 311 Neb. 705

25. Evidence. Under the independent source doctrine, challenged evidence 

is admissible if it came from a lawful source independent of the illegal conduct.

26. Sentences: Statutes: Appeal and Error. In reviewing whether a sentencing court abused its discretion in imposing a sentence that was 

excessively lenient, an appellate court is guided by the factors set forth 

by Neb. Rev. Stat. § 29-2322 (Reissue 2016), as well as by the statutory 

guidelines set out for the direction of the sentencing judge in imposing 

or withholding imprisonment.

27. Sentences. Evidence regarding a defendant’s life, character, and previous conduct, as well as prior convictions, is highly relevant to the determination of a proper sentence.

28. ____. A sentencing court must have some reasonable factual basis for 

imposing a particular sentence.

Appeal from the District Court for Hall County: Mark J. 

Young, Judge. Affirmed.

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

for appellant.

Sarah A. Hinrichs, Deputy Hall County Attorney, for 

appellant.

Jonathan Hendricks, of Dowding, Dowding, Dowding & 

Urbom, for appellee.

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

Papik, and Freudenberg, JJ.

Per Curiam.

I. INTRODUCTION

This criminal case appeal presents two primary issues: 

whether evidence obtained following a search of a cell phone 

should have been suppressed and whether a sentence of probation for a Class II felony was excessively lenient. Because 

the first search warrant was supported by probable cause 

and was sufficiently particular and because law enforcement 

reasonably saw evidence of a different crime during the initial search, the court did not err in overruling a suppression 
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motion. And because the overall sentencing was not an abuse 

of discretion, we affirm the judgment of the district court.

II. BACKGROUND

1. Initial Incident

On September 25, 2018, just after 6 a.m., Officer Brad 

Newell was dispatched to an apartment in Kearney, Nebraska. 

Newell spoke with J.S., who reported that upon leaving his 

garden-level apartment, he saw a man crouched down by a window to the apartment’s bathroom. The window had blinds, but 

they had a small gap. When J.S. went outside, J.S.’ girlfriend 

had just entered the bathroom to shower. J.S. did not mention 

seeing the individual holding a cell phone. J.S. told Newell 

that he yelled at the person, who then “took off” running. J.S. 

chased the person and saw him cut through a yard.

Newell asked J.S. to show him the path the person took. 

Approximately half a block from the apartment, J.S. discovered a cell phone and handed it to Newell. After observing that the phone’s screen was locked, Newell took the 

phone to the police station. Newell met with Investigator Dan 

Warrington, who assisted Newell in preparing an affidavit to 

search the phone.

2. September 2018 Search Warrant 

and Investigation

(a) Affidavit

Newell completed an affidavit in support of a search warrant, asking the judge for permission to examine the cell phone 

for evidence of the crime of unlawful intrusion on September 

25, 2018. In the affidavit, Newell stated that he had investigated many crimes where a cell phone contained evidence of 

the commission of the crime being investigated.

In the affidavit, Newell set forth information obtained from 

J.S. concerning the incident. J.S. reported that on September 

25, 2018, “shortly before 0604 hours,” his girlfriend said that 

she was going to shower. As J.S. left the apartment building, 
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he saw a man looking into the ground-level window to the 

bathroom of J.S.’ apartment, where J.S.’ girlfriend was preparing to shower. J.S. observed the man “crouched down at the 

window with his head lowered so that he could see through 

a small area in the window blinds where one of the blind 

slats was missing.” J.S. yelled at the man, who then fled. J.S. 

chased the man and observed him run through a yard and then 

run south. After Newell was dispatched to J.S.’ apartment, he 

and J.S. retraced the man’s path of flight. In doing so, J.S. 

located a cell phone “right where the suspect ran.”

Newell observed J.S. locate the cell phone and took custody 

of it for evidentiary purposes. Newell believed the phone “may 

contain evidence of the crime of Unlawful Intrusion, whereby 

the suspect viewed [J.S.’ girlfriend] in a state of undress, and 

may have also captured photographs and or video of [her] in a 

state of undress.” Newell also stated that the cell phone would 

contain evidence of the subscriber of the phone’s account, 

who could be the suspect. Newell further confirmed that the 

window was to the bathroom of J.S.’ apartment and that “there 

was a void in the blinds where a person could see into the 

bathroom area.”

Warrington supplied Newell with a template he used for a 

cell phone search, and Newell incorporated that language into 

the affidavit. The affidavit stated that according to Warrington, 

“it has become commonplace for individuals to communicate with others using cellular telephones or other electronic 

devices to communicate activities, develop plans, coordinate 

schedules and to otherwise pass along information in a variety 

of formats.” Warrington had over 400 hours of training regarding forensic searches of electronic devices.

Warrington would testify that there are two general types of 

data extractions from electronic devices using computer software programs. In a logical extraction, the software “makes 

read-only requests of specific data to the device” and the 

device responds by extracting the designated information. 

The logical extraction is limited in scope and is unable to 
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access photographs or messages stored in third-party applications, to access information stored in a folder different from the 

default folder, or to access deleted items. In contrast, a physical 

extraction is comprehensive and “captur[es] a complete picture 

of the usage and contents of an electronic device.” A physical 

extraction creates a copy of the device’s flash memory.

Based on this information, Newell requested a search warrant to examine the cell phone for evidence relating to unlawful 

intrusion. Newell set forth that the examination may include 

searching the phone for the following:

Data that may identify the owner or user of the abovedescribed cellular phone including the phone number 

assigned to the phone; Call Histories and logs (missed, 

incoming and outgoing); Photographs and their associated metadata; Contact lists and address books; Calendar 

entries; Messages (SMS, MMS, Recorded Messages, 

iMessages, or Messages communicated through other 

third-party application(s)) contained in any place throughout the device; Audio and video clips; Global Positioning 

System data including, but not limited to coordinates, 

waypoints and tracks, Documents and other text-based 

files; Internet world wide web (WWW) browser files 

including, but not limited to, browser history, browser 

cache, stored cookies, browser favorites, auto-complete 

form history and stored passwords; Email messages and 

attachments (whether read or unread) accessible from the 

cellular phones listed above; Access and search for communication on any third-party applications located on the 

above-described cellular phones; and, any deleted and/or 

unallocated content relating to the above-described types 

of information.

(b) Warrant

A Buffalo County Court judge signed a search warrant 

the same day. According to the search warrant, the issuing 

judge was satisfied that probable cause existed based upon 
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STATE v. McGOVERN

Cite as 311 Neb. 705

the affidavit “attached hereto and made a part hereof by reference.” The warrant allowed for a search of all of the abovequoted categories of cell phone data and any “SD [c]ards” 

located within the device for “evidence relating to the offenses 

of Unlawful Intrusion.”

(c) Search

Newell returned to the police station and provided Warrington 

with a copy of the signed warrant. Warrington then extracted 

data from the phone. After extracting the contents of the phone, 

he used software to examine the data. The software categorized 

the data, and one of the categories was “user profiles.” Before 

the end of the day, Warrington provided Newell with the name 

of the phone’s user: Jake J. McGovern.

The software also pulled together anything identified as a 

possible image and placed it in a gallery. Warrington searched 

all imagery on the device by clicking on the tab for photographs. None of the images appeared to be taken through a 

window or a missing blind slat. He did not locate any photographs taken during the September 25, 2018, event.

The following day, Warrington performed an additional 

extraction of the phone. In the images folder, Warrington found 

imagery of women in a state of undress. Those images appeared 

to be “thumbnails” from videos on the device. Warrington 

selected a tab in the software for videos and tried to match the 

thumbnails to a video based on file names.

After observing women in a state of undress, Warrington 

reviewed the phone’s “search web history.” He explained, 

based on his training and experience, that law enforcement will 

find files or search history associated with a possible crime that 

the user could be committing. Warrington located several items 

such as “spy bathroom” and “voyeur bathroom,” which were 

consistent with unlawful intrusion.

Because Warrington observed women in a state of undress, 

which was consistent with what one could be looking for in 

the offense of unlawful intrusion, he continued to examine 
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STATE v. McGOVERN

Cite as 311 Neb. 705

the videos on the phone. Warrington observed imagery of a 

woman who appeared to be nude and sleeping. One video 

showed a woman who appeared to be sexually assaulted while 

unconscious. Some of the videos had “2017” in the title, indicating a possibility that the video was recorded in 2017.

After watching the videos, Warrington was aware that a 

potential sexual assault was involved. He next tried to identify the victim and to determine whether the event occurred 

in Kearney. To make the identification, Warrington testified: 

“I began looking at the complete totality of all of the data 

associated with the video and image files which consisted of, 

yes, the date and time stamps. It consisted of the metadata. It 

consisted of the files themselves.” He used that information 

to determine whether the date and time stamps could be accurate. Warrington then examined communication that may have 

occurred during the timeframe that the videos and images had 

been produced and located text messages and communication 

with a particular woman prior to that incident. Warrington testified that there was a “[p]ossibility” that he could have validated the date stamps prior to playing the videos.

Law enforcement identified the possible victim as K.S., a 

woman who lived in Grand Island, Hall County, Nebraska. 

Members of the Kearney Police Department traveled to Grand 

Island to speak with K.S. In an interview, K.S. said that she 

had been in a relationship with McGovern from October 2017 

to January 2018. It was established that the touching in the 

videos occurred in Grand Island.

Kearney law enforcement officers provided a Grand Island 

police sergeant with a “CD” which contained the download 

of the cell phone recovered in Kearney, along with a copy 

of the search warrant and affidavit from Buffalo County. 

The sergeant thereby gained access to the download, which 

included a video depicting a woman in an unconscious state 

with her clothes being removed and sexual contact occurring. He began investigating a potential sexual assault, which 

was believed to have occurred in Grand Island in October 
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2017. In looking through the contents of the device, the sergeant was not attempting to find any information regarding 

the September 2018 Kearney incident. Prior to opening the 

contents of the phone, no one with the Grand Island Police 

Department received a search warrant other than the search 

warrant obtained by the Kearney Police Department.

An intelligence research specialist employed by the Grand 

Island Police Department performed an analysis of the evidence retrieved by the Kearney Police Department. Although 

the Kearney search warrant, signed September 25, 2018, stated 

that a search of the device had to occur in the next 30 days, 

the specialist examined the device’s contents on October 29. 

In examining the cell phone extraction CD, he found an 

“associated Google Gmail address.” The specialist prepared 

a search warrant to send to Google LLC, and a Hall County 

judge issued a warrant. Because the arguments on appeal are 

not directed to this warrant or the resulting search, we will not 

further discuss it.

The State subsequently charged McGovern in Hall County 

with two counts of sexual assault in the first degree, one 

count of sexual assault in the third degree, and three counts of 

recording a person in a state of undress. The State identified 

K.S. as the victim of each count.

3. First Motion to Suppress

McGovern moved to suppress any information gathered 

from his cell phone. McGovern alleged that Newell’s application for a search warrant lacked probable cause to justify a 

search of the phone’s contents other than for subscriber information. He asserted that members of the Grand Island Police 

Department improperly searched the contents of his phone 

without first obtaining a warrant to do so.

During a hearing on the motion to suppress, Warrington 

agreed that the search warrant affidavit included “a much 

more broad swath of the phone” than just photographs, videos, 

or user information. He generally agreed that the template 
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listed “all of the different areas of a phone.” Having performed 

the majority of cell phone searches in Kearney, Warrington 

testified that he uses a template when he prepares an affidavit 

seeking to search a cell phone and that typically, the only information that changes from case to case are the device information and the particular crime being investigated.

Warrington understood that he was looking for photographs 

or videos of the event occurring in Kearney on September 25, 

2018. But he testified that he was also looking for data on 

the phone that may be consistent with the crime. Warrington 

explained that “the same unlawful intrusion could have been 

committed days before” and that “there could be search histories in regards to . . . how to conduct voyeurism.”

Warrington testified that prior to opening a video, he would 

“look at the totality of all of the data.” That included looking at the file name and metadata that may be available. 

Warrington testified that some files do not have metadata and 

that “the ultimate last thing to do is to examine the actual 

video itself and see if it matches anything that you are looking for.” According to Warrington, there was “a possibility” 

that the file names of the relevant videos were time and date 

stamps. But Warrington explained that file names can easily 

be renamed, moved, or modified; thus, he “[did not] put a 

lot of credit necessarily into the exact file name.” Warrington 

stated that he had to be able to look in all of the different 

locations within a phone, because of how movable the data 

is. For example, a video may be found in the video section, in 

the messaging section, or in a third-party application. And he 

testified that because videos could be edited, he had to watch 

them in their entirety to determine whether they were of the 

September 2018 event.

McGovern hired Shawn Kasal, a digital forensic analyst, 

to review the contents of the cell phone. Kasal was provided with a copy of the search warrant and affidavit and 

was granted access to the extraction of the phone conducted 

by Warrington.
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STATE v. McGOVERN

Cite as 311 Neb. 705

Kasal opened the video folder on the software and “put it 

in table view.” He explained that table view provides the most 

information about the contents and files, such as where a file 

may have been stored on the phone and its “modified or created time date stamp.”

Focusing on videos in the video folder beginning with 

the titles “20171022,” “20171028,” and “20171111,” Kasal 

was asked if—after looking at the files’ titles, metadata, and 

thumbnails—he was able to rule them out as being videos of 

the September 25, 2018, incident. He answered, “By my understanding of the time dates ascribed to the videos in question, 

they were roughly 340 to 350 days previous to the issuance of 

the warrant.”

Kasal testified that after watching the entirety of the videos, 

he determined that they did not match the description of the 

crime scene identified in the warrant. When asked if he was 

able to make that determination prior to watching the videos, 

Kasal answered that he “needed to watch the entire video to 

make sure that it had not been edited, spliced or otherwise 

modified to include any of that data.”

In March 2020, the court considered McGovern’s motion to 

suppress. The court acknowledged McGovern’s argument that 

the warrant was overbroad and lacked particularity. It stated 

that the application and affidavit sought “to search a laundry 

list of cell phone functions and data” and that “[n]o particular 

effort was made by the officer to articulate what items of possible evidentiary value could be found in the call logs, address 

book, calendar and et cetera.”

But the court turned its attention to McGovern’s argument 

that law enforcement should have sought a second search warrant to recover evidence regarding the crime in Hall County. 

The court stated that

based upon the expert testimony presented, the officer 

in Kearney had every right to initially view all videos 

contained on the phone to ensure that the file dates 

and time stamps were accurate, however, once Officer 
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Newell viewed evidence indicating there was evidence 

of a further crime in Hall County, Nebraska, a second 

search warrant should have been applied for outlining 

the types of evidence which would have been relevant 

for the Hall County case.

The court granted the motion and suppressed the evidence. The 

State did not appeal the suppression order. 1

4. March 2020 Search Warrant

Later in March 2020, Warrington filed an affidavit in support of a search warrant. The affidavit discussed the discovery 

of the cell phone, the September 2018 search warrant, and the 

extraction and examination of the phone’s data. Warrington’s 

affidavit stated that during the 2018 examination, he observed 

“recent web history consistent with voyeurism and unlawful intrusion” and videos that were consistent with the crime 

of first degree sexual assault. Warrington stated that “further 

examination of the cellular phone would be necessary in determining further evidence of the crime of 1st Degree Sexual 

Assault, identity of the victim or victims, as well as the location and date of the offenses.” Thus, he requested issuance of 

a search warrant for a cell phone belonging to McGovern and 

authorization for law enforcement to examine the phone for 

evidence relating to first degree sexual assault.

A Buffalo County Court judge issued a search warrant the 

same day. An officer extracted data from the cell phone, and 

Warrington examined the extraction sometime in April 2020. 

He did not find evidence different from what he discovered 

following the first extraction.

5. Second Motion to Suppress

McGovern thereafter filed a second motion to suppress. 

He sought to suppress all evidence from the search of the 

cell phone. During a hearing on the motion, Warrington 

1 See Neb. Rev. Stat. § 29-824 et seq. (Reissue 2016).
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testified that he was aware of the suppression order when he 

applied for the warrant in March 2020. In seeking the warrant, 

Warrington asked for legal authority to re-examine the device 

for additional evidence. He essentially wanted to look at the 

exact same data that he had looked at in 2018.

The district court overruled the motion to suppress. The court 

found that the initial review of all of the videos on McGovern’s 

phone pursuant to the first search warrant was a lawful search 

and that “the videos were first seen in ‘plain view.’” The court 

reasoned that “[b]ecause the lawful viewing showed evidence 

of another possible crime, law enforcement’s second search 

under the second search warrant is not unlawful exploitation of 

a prior illegality . . . .”

6. Bench Trial

Prior to the start of trial, the State filed an amended information charging McGovern with sexual assault in the first 

degree, sexual assault in the third degree, and recording a person in a state of undress. Pursuant to McGovern’s waiver of 

a jury trial, the court conducted a bench trial on the amended 

information.

At trial, McGovern renewed both of his motions to suppress. 

He objected to any evidence concerning the contents of the cell 

phone. He asserted that the September 2018 search warrant (1) 

was overbroad and lacked sufficient particularity, (2) lacked 

sufficient probable cause to search the device for photographs 

or videos, and (3) was exceeded in scope by law enforcement. 

As to the March 2020 search warrant, McGovern objected that 

it (1) was granted upon an affidavit that contained information gathered as a product of a prior unconstitutional search, 

(2) was used by law enforcement to reobtain information and 

evidence that had been previously discovered pursuant to an 

unconstitutional search and that had been suppressed by the 

court, and (3) was not the product of an independent source, 

inevitable discovery, attenuation, or other justification that 

would make the evidence properly admissible.
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The court overruled the objections but granted a continuing 

objection to preserve the concerns raised in the motions to suppress. The court stated that the central issue was whether the 

State could “cure the defects identified in the first search warrant by issuing a second search warrant or requesting getting 

a second search warrant” and that it would stand on its ruling 

that the State had the ability to cure.

The trial proceeded on exhibits received by the court. 

According to investigative reports, K.S. confirmed that she 

was the woman in videos found on McGovern’s phone and 

that the videos were taken in Grand Island. She denied giving 

McGovern permission to take such intimate images of her. At 

least one video showed digital penetration while K.S. was in 

a state of unconsciousness. The court convicted McGovern of 

each count alleged in the amended information.

7. Sentencing

For the convictions for sexual assault in the third degree and 

for recording a person in a state of undress, the court imposed 

sentences of 1 year’s imprisonment, to be served concurrently. 

As to the sexual assault in the first degree conviction, the court 

found that McGovern was a fit and proper candidate for probation and imposed a term of 60 months of Community-Based 

Intervention probation. It found that periodic confinement in 

the county jail as a condition of probation was necessary, 

“because a sentence of probation without a period of confinement would depreciate the seriousness of the offender’s crime 

or promote disrespect for the law.” Thus, the court ordered jail 

time of 90 days to be served consecutively to any other sentence imposed.

The State appealed, and McGovern filed a cross-appeal.

III. ASSIGNMENTS OF ERROR

The State’s appeal focuses only on sentencing. Because 

McGovern’s cross-appeal addresses admissibility of cell phone 

evidence, we begin there.
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First, McGovern assigns that the initial search warrant affidavit lacked the requisite showing of probable cause and that 

the warrant was not sufficiently particular.

Second, McGovern assigns that the court erred in overruling his second motion to suppress. This broad assignment 

has three prongs. First, he attacks the use of information gathered by means of the first warrant to support the second one. 

Next, he disputes the court’s application of the “plain view” 

doctrine. Finally, he urges that no exclusionary rule exception—such as independent source, inevitable discovery, or 

attenuation—applies.

The State’s appeal assigns that the court abused its discretion by imposing excessively lenient sentences. It focuses on 

the sentence to probation for first degree sexual assault.

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. 

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

[2,3] Whether an appellate court is reviewing a sentence 

for its leniency or its excessiveness, a sentence imposed by 

a district court that is within the statutorily prescribed limits 

will not be disturbed on appeal unless there appears to be an 

abuse of the trial court’s discretion. 3 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. 4

2 State v. Short, 310 Neb. 81, 964 N.W.2d 272 (2021), cert. denied ___ U.S. 

___, 142 S. Ct. 1155, 212 L. Ed. 2d 34 (2022).

3 State v. Gibson, 302 Neb. 833, 925 N.W.2d 678 (2019).

4 Id.
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V. ANALYSIS

1. Suppression

McGovern’s assignments of error largely invoke well known 

Fourth Amendment principles. The State’s response articulates two alternate theories of admissibility. In one, the State 

assumes that the first warrant was invalid but argues that 

the good faith exception applied. The other—which is more 

complex—begins with the proposition that the first warrant 

was at least partially valid and that portions of the challenged 

evidence were properly viewed. The State then argues that the 

properly viewed evidence supported issuance of the second 

warrant, which, the State asserts, was an independent source 

for the rest of the challenged evidence.

We will address the parties’ specific arguments invoking 

familiar principles. But before doing so, we note the special 

challenges presented by searches of cell phones.

(a) Cell Phone Searches

Cell phones are “minicomputers” with “immense storage 

capacity.” 5 They “collect[] in one place many distinct types of 

information . . . that reveal much more in combination than any 

isolated record.” 6 Further, “[a]lthough the data stored on a cell 

phone is distinguished from physical records by quantity alone, 

certain types of data are also qualitatively different.” 7

Two approaches with respect to digital evidence searches 

have emerged. 8 One is to view a digital device, such as a 

cell phone, as a filing cabinet or form of a container and the 

data thereon as forms of documents. 9 The other calls for “a 

5 Riley v. California, 573 U.S. 373, 393, 134 S. Ct. 2473, 189 L. Ed. 2d 430 

(2014).

6 Id., 573 U.S. at 394.

7 Id., 573 U.S. at 395.

8 Thomas K. Clancy, The Fourth Amendment, Its History and Interpretation 

§ 12.4.8 (3d ed. 2017).

9 See id.
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‘special approach,’ requiring unique procedures and detailed 

justifications, including rejecting the container analogy.” 10

Under the filing cabinet or container approach, courts “look 

to traditional means to limit the scope of document searches, 

such as the nature of the criminal activity alleged or the nature 

of the objects sought.” 11 But “a consequence of this view is 

the potential exposure of vast amounts of data for at least 

cursory examination if the object of the search could be in a 

digital format.” 12

A method of the special approach would be “use of the 

particularity requirement to mandate preauthorization: a search 

warrant seeking to seize [digital devices] must specify that it 

covers such items.” 13 The search may need to be limited by 

taking actions such as “‘observing file types and titles listed 

on the directory, doing a key word search for relevant terms, or 

reading portions of each file stored in the memory.’” 14

[4,5] This court has not explicitly adopted either approach. 

We have declared 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. 15 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. 16

It can be generally recognized that cell phones tend to 

accompany their users everywhere, and thus, it may be 

10 Id. at 821.

11 Id. at 818-19.

12 Id. at 820-21.

13 Id. at 821.

14 Id. at 822.

15 State v. Short, supra note 2.

16 Id.
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inferred that a suspect’s cell phone probably accompanied 

the suspect at the time of the crime. 17 But we have cautioned 

that law enforcement cannot rely solely 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. 18

(b) First Search Warrant

McGovern raises two main issues with respect to the initial 

search warrant. He claims that the warrant was not supported 

by probable cause and that it lacked sufficient specificity.

The text of the Fourth Amendment contains three requirements pertaining to the content of a warrant, but only two are 

contested here. It states that “no Warrants shall issue, 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.” 19 The requirements of probable cause and 

particularity—the two at issue—are analytically distinct, but 

closely related. 20

(i) Probable Cause

[6,7] A search warrant, to be valid, must be supported by 

an affidavit which establishes probable cause. 21 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 

17 Id.

18 See id.

19 U.S. Const. amend. IV. Accord Neb. Const. art. I, § 7.

20 See State v. Said, 306 Neb. 314, 945 N.W.2d 152 (2020).

21 State v. Hidalgo, 296 Neb. 912, 896 N.W.2d 148 (2017).

22 State v. Said, supra note 20.
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by the affidavit, the issuing magistrate had a substantial basis 

for finding that the affidavit established probable cause. 23

[8,9] 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. 24 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

Regarding probable cause, McGovern makes a concession. 

He concedes that it existed to search the cell phone in order 

to determine its owner or user. Newell stated in the affidavit 

that the cell phone would “contain evidence of the subscriber 

of the cellular telephone account, who could be the suspect in 

the crime.”

McGovern contends, however, that the warrant was unsupported by probable cause to search the phone for photographs 

and videos. We disagree.

[10] 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. 26 Here, the affidavit set 

forth that J.S. observed a man looking into the ground-level 

window to the bathroom of J.S.’ apartment, where J.S.’ girlfriend was preparing to shower. J.S. yelled; the man fled. 

Upon retracing the man’s path of flight, J.S. found a cell 

phone “right where the suspect ran.” Newell stated in the 

affidavit that he believed the cell phone “may contain evidence of the crime of Unlawful Intrusion, whereby the suspect 

23 Id.

24 State v. Short, supra note 2.

25 State v. Said, supra note 20.

26 State v. Short, supra note 2.
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viewed [J.S.’ girlfriend] in a state of undress, and may have 

also captured photographs and or video of [her] in a state 

of undress.”

[11] 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. 27 It is true that J.S. did not report seeing the suspect holding a phone as the suspect was “crouched 

down at the window with his head lowered,” likely viewing 

J.S.’ girlfriend in a state of undress.

[12] 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. 28 One reasonable inference is 

that a person seeking to surreptitiously view another in a state 

of undress may capture that viewing by video or photograph. 

Discovery of the cell phone on the suspect’s path of flight 

gives rise to an inference that the phone was not secured on 

the suspect’s person—that the suspect “had it out,” in Newell’s 

words—and that perhaps it was used as the suspect peered into 

the bathroom.

[13] “Probable cause ‘is not a high bar.’” 29 A judge’s determination of probable cause to issue a search warrant should 

be paid great deference by reviewing courts. 30 Under the totality of the circumstances, we conclude the issuing judge had a 

substantial basis for finding the affidavit established probable 

cause to search the phone for photographs or videos of the 

September 25, 2018, incident.

27 Id.

28 Id.

29 District of Columbia v. Wesby, ___ U.S. ___, 138 S. Ct. 577, 586, 199 L. 

Ed. 2d 453 (2018).

30 State v. Short, supra note 2.
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(ii) Particularity and Breadth

[14,15] 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. 31 The degree of specificity required in a warrant 

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

items involved. 32

McGovern challenges the first warrant’s particularity 

and breadth. He quotes Ninth Circuit cases explaining that 

“‘[p]articularity is the requirement that the warrant must clearly 

state what is sought’” while “‘[b]readth deals with the requirement that the scope of the warrant be limited by the probable 

cause on which the warrant is based.’” 33

McGovern first points out that the warrant authorized a 

search of every category of information that could be stored 

on a cell phone. But this circumstance does not necessarily 

lead to the conclusion that McGovern seeks.

[16] We have rejected arguments that an expansive list of 

areas to be searched encompassing practically the entirety 

of the data contained within a cell phone were insufficiently 

particular. 34 In doing so, we have recognized that officers 

cannot predict where evidence of a crime will be located in 

a cell phone or call records or in what format, such as texts, 

videos, photographs, emails, or applications. 35 And we have 

stated that 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. 36 Consequently, we 

31 Id.

32 Id.

33 Brief for appellee on cross-appeal at 32, quoting U.S. v. Hill, 459 F.3d 966 

(9th Cir. 2006), and U.S. v. Towne, 997 F.2d 537 (9th Cir. 1993).

34 See, State v. Short, supra note 2; State v. Goynes, 303 Neb. 129, 927 

N.W.2d 346 (2019).

35 State v. Short, supra note 2.

36 See id.
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recently stated 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.” 37

Thus, McGovern’s first argument regarding particularity 

lacks merit.

McGovern also challenges the warrant’s lack of any temporal limitation on the scope of the search. The face of the warrant did not limit the search to any timeframe, even though the 

warrant was sought in response to an incident occurring on a 

known date and approximate time.

[17] But the warrant referred to an attached affidavit, and 

the supporting affidavit recounted that the incident occurred 

“on the morning of September 25, 2018 shortly prior to 0604 

hours.” An inadvertent defect in a search warrant may be cured 

by reference to the affidavit used to obtain the warrant if the 

affidavit is incorporated in the warrant or referred to in the 

warrant and the affidavit accompanies the warrant. 38 The affidavit and the warrant, read together, limited the scope of the 

search to a particular date.

[18] 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. 39 Here, the warrant named a 

specific crime, the incorporated affidavit identified a time 

period, and both documents listed specific areas of the phone 

to be searched.

The nature of the crime—unlawful intrusion—limited the 

scope of the search; law enforcement officers knew they 

were to search for evidence regarding the device’s owner or 

user along with such things as photographs and videos. The 

37 Id. at 139, 964 N.W.2d at 316.

38 State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019).

39 State v. Short, supra note 2.
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warrant also listed specific areas to be searched within the 

cell phone, which were consistent with those described in the 

affidavit. We reject McGovern’s argument that the first search 

warrant did not satisfy the particularity requirements of the 

Fourth Amendment.

(iii) Good Faith

The State argues that even if the first warrant was invalid, 

a good faith exception applies. We first recall the rationale for 

the exclusionary rule and then turn to the application of good 

faith exception here.

a. Exclusionary Rule

[19] The Fourth Amendment does not expressly preclude 

the use of evidence obtained in violation of its commands. 40

Rather, the exclusionary rule operates as a judicially created 

remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect. 41 The exclusionary rule is 

designed to deter police misconduct rather than to punish the 

errors of judges and magistrates. 42 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. 43

The exclusionary rule encompasses both the primary evidence obtained as a direct result of an illegal search or seizure and evidence later discovered and found to be derivative 

of an illegality, the so-called fruit of the poisonous tree. 44

40 State v. Kruse, 303 Neb. 799, 931 N.W.2d 148 (2019).

41 Id.

42 See id.

43 State v. Short, supra note 2.

44 Utah v. Strieff, 579 U.S. 232, 136 S. Ct. 2056, 195 L. Ed. 2d 400 (2016).
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In situations where the exclusion as a remedy would not deter 

law enforcement, several exceptions to the exclusionary rule 

have been recognized. 45 One is the exception for good faith 

upon which the State relies.

b. Good Faith Exception Applied

[20,21] When a search warrant has been issued, the applicability of the good faith exception turns on whether the officers 

acted in objectively reasonable good faith in reliance on the 

warrant. 46 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. 47

[22] Under the good faith exception to the exclusionary rule, 

evidence may be suppressed if (1) the magistrate or judge in 

issuing a warrant was misled by information in an affidavit 

that the affiant knew was false or would have known was false 

except for his or her reckless disregard for the truth, (2) the 

issuing magistrate wholly abandoned his or her judicial role, 

(3) the warrant is based on an affidavit so lacking in indicia 

of probable cause as to render official belief in its existence 

entirely unreasonable, or (4) the warrant is so facially deficient that the executing officer cannot reasonably presume it 

to be valid. 48

McGovern does not assert that the issuing judge was misled 

by information in the affidavit. The first ground for suppression does not apply.

45 State v. Jennings, 305 Neb. 809, 942 N.W.2d 753 (2020), cert. denied ___ 

U.S. ___, 141 S. Ct. 432, 208 L. Ed. 2d 128.

46 State v. Kruse, supra note 40.

47 Id.

48 Id.
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Although McGovern argues that the issuing judge wholly 

abandoned his judicial role, we disagree. As we have already 

concluded, the affidavit provided probable cause to search the 

phone for photographs and videos relevant to the initial event. 

The second circumstance likewise does not apply.

The probable cause presented by the affidavit also defeats 

the third ground for suppression. This is particularly true in 

light of McGovern’s concession.

McGovern argues that the fourth ground—facial deficiency 

precluding an executing officer from reasonably presuming 

the warrant’s validity—applied “because law enforcement’s 

over-reliance on templates had caused the situation to exist” 49

and “[l]aw enforcement could not reasonably presume the 

matching untailored template warrant, clearly overbroad in 

scope, was valid.” 50 The State concedes that the “warrant could 

have been drafted better” but argues that the warrant “identified the offense being investigated, delineated the areas of the 

cell phone to be searched, and did not contain . . . catch-all 

language.” 51 We are not persuaded that the fourth ground for 

suppression applies here.

(c) Second Motion to Suppress

McGovern argues that the court erred in overruling his 

second motion to suppress for three reasons. His first reason 

requires little discussion. We discuss each in turn.

Before doing so, we recall specific factual findings of 

the district court. The court found that the Kearney Police 

Department received a search warrant to search the cell phone 

for evidence regarding unlawful intrusion and that during the 

course of the search, law enforcement officers discovered 

video evidence they believed tied McGovern to crimes in 

Hall County. Having reviewed these findings of fact for clear 

49 Brief for appellee on cross-appeal at 40.

50 Id. at 41.

51 Brief for appellant on cross-appeal at 19.
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error, we find none. With these facts in mind, we turn to 

whether they trigger or violate Fourth Amendment protections.

(i) Probable Cause and Particularity 

of First Warrant

First, McGovern repeats his argument that the first search 

warrant was unsupported by probable cause and lacked particularly. Based on that argument, McGovern contends that all 

evidence flowing from the search should be excluded. Because 

we have already rejected McGovern’s probable cause and particularity challenges to the first warrant, this argument fails.

(ii) Probable Cause for Second Warrant

Second, McGovern argues that the probable cause forming 

the basis of the second warrant was gathered at a time law 

enforcement was outside the scope of the initial warrant and 

was not in plain view. The State makes a conclusory statement 

that the videos were in plain view; however, its principal argument is that the videos were within the scope of the warrant.

a. Plain View

The district court found that the initial review of all of 

the videos on the phone was a lawful search under the initial 

search warrant and that the videos were first seen in plain view. 

The court reasoned that because the lawful viewing showed 

evidence of another possible crime, the later search under the 

second search warrant was not an unlawful exploitation of 

a prior illegality. This presents a question of law, which we 

review independently of the trial court’s determination. 52

[23] It is well established that under certain circumstances, 

law enforcement may seize evidence in plain view without 

a warrant. 53 Under the plain view doctrine, if police officers 

are lawfully in a position from which they view an object, 

52 See State v. Short, supra note 2.

53 State v. Andera, 307 Neb. 686, 950 N.W.2d 102 (2020).
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if its incriminating character is immediately apparent, and if 

the officers have a lawful right of access to the object, they 

may seize it without a warrant. 54 When those circumstances 

are met, “‘[t]he seizure of property in plain view involves no 

invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with 

criminal activity.’” 55 But “the ‘plain view’ doctrine may not be 

used to extend a general exploratory search from one object to 

another until something incriminating at last emerges.” 56

Here, the search warrant authorized law enforcement to 

search photographs and videos. Warrington testified—and 

McGovern’s expert agreed—that it was necessary to watch 

the entirety of the videos to determine whether they matched 

the description of the September 2018 event. Warrington was 

lawfully in a position to view photographs and videos when 

he did so. Warrington testified that as he looked through the 

thumbnails in the video folder, he did not immediately notice 

a nonconsensual encounter. However, when he watched the 

actual video, it was immediately apparent to him that the 

woman was not conscious. Further, Warrington had probable 

cause to look through the images and videos for unlawful intrusion; thus, he had a lawful right of access to watch the videos 

in order to perceive whether they were relevant.

Whether the plain view doctrine should apply to digital 

information stored on a cell phone is a difficult question. 

In an electronic search of a cell phone, an unprecedented 

amount of personal information may come within the plain 

view of an investigator. 57 Such searches, like computer file 

54 Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 

(1993). Accord State v. Andera, supra note 53.

55 Texas v. Brown, 460 U.S. 730, 738, 103 S. Ct. 1535, 75 L. Ed. 2d 502 

(1983).

56 Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S. Ct. 2022, 29 L. Ed. 

2d 564 (1971).

57 See State v. Bock, 310 Or. App. 329, 485 P.3d 931 (2021).
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searches, “present ‘a heightened degree’ of intermingling of 

relevant and irrelevant material.” 58

A consequence of analogizing cell phones to filing cabinets 

or to containers is that “in any legitimate search that permits 

looking at digital data, potentially all data can be examined to 

ascertain what it is.” 59 Recently, the Oregon Court of Appeals 

determined that the breadth of a cell phone search made the 

plain view doctrine inapplicable where state agents, searching 

for location data, examined each photograph on a cell phone. 60

A different approach, a commentator suggested, would be to 

impose a use restriction on nonresponsive data obtained pursuant to a warrant, i.e., government agents would be limited in 

what could be used based on what was actually described by 

the warrant. 61

b. Reasonableness

[24] But under the circumstances present here, we need not 

define the precise contours of the plain view doctrine with 

respect to electronic data on a cell phone. The ultimate touchstone of the Fourth Amendment is reasonableness. 62

Here, the initial search warrant authorized an examination of 

the phone for evidence relating to offenses of unlawful intrusion. Unlawful intrusion includes intruding upon another in a 

place of solitude or seclusion; it also encompasses photographing or filming the intimate area of another without his or her 

knowledge and consent. 63

Given the offense identified, it was reasonable to search 

files containing images and to view videos to determine 

58 Clancy, supra note 8 at 818.

59 Id. at 37.

60 See State v. Bock, supra note 57.

61 See Orin S. Kerr, Executing Warrants for Digital Evidence: The Case for 

Use Restrictions on Nonresponsive Data, 48 Tex. Tech L. Rev. 1 (2015).

62 See Riley v. California, supra note 5.

63 See Neb. Rev. Stat. § 28-311.08 (Reissue 2016 & Cum. Supp. 2020).
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whether they were responsive to the warrant. In doing so, law 

enforcement observed images showing a woman in a state of 

undress. Such images could be consistent with the crime and 

fall within the scope set forth on the face of the initial warrant. 

Further, the viewing of videos was a reasonable search within 

the scope of the warrant’s authorization because discovery 

of the sexual assault—which was intertwined with filming 

the intimate area of another—occurred while the officer was 

searching for evidence of unlawful intrusion.

The evidence viewed was consistent with the crime identified in the search warrant. Here, the evidence uncovered fell 

within the scope of the search authorized by the warrant.

(iii) Independent Source

Finally, McGovern asserts that the independent source doctrine did not support the second warrant. The State argues 

otherwise.

[25] Under the independent source doctrine, the challenged 

evidence is admissible if it came from a lawful source independent of the illegal conduct. 64 The U.S. Supreme Court 

explained the doctrine’s rationale:

“‘[T]he interest of society in deterring unlawful police 

conduct and the public interest in having juries receive all 

probative evidence of a crime are properly balanced by 

putting the police in the same, not a worse, position that 

they would have been in if no police error or misconduct 

had occurred. . . . When the challenged evidence has an 

independent source, exclusion of such evidence would 

put the police in a worse position than they would have 

been in absent any error or violation.’” 65

64 State v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015).

65 Murray v. United States, 487 U.S. 533, 537, 108 S. Ct. 2529, 101 L. Ed. 

2d 472 (1988), quoting Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 

L. Ed. 2d 377 (1984).
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To establish that the independent source doctrine applies to 

evidence seized pursuant to a warrant obtained after an unlawful entry to a home, the government must show both (1) that 

the decision to seek the warrant was independent of the unlawful entry—i.e., that police would have sought the warrant even 

if the initial entry had not occurred—and (2) that the information obtained through the unlawful entry did not affect the 

magistrate’s decision to issue the warrant. 66

But the doctrine presupposes illegal police conduct. 67 And 

here, the State argues that “all of that evidence was properly 

viewed and thereafter seized; the videos pursuant to the plain 

view doctrine, and the incriminating search history pursuant 

to the first search warrant.” 68 Above, we concluded that the 

viewing of the videos and photographs was reasonable and the 

evidence was within the scope of the first warrant. Thus, no 

illegal police conduct occurred and we need not rely upon the 

independent source doctrine.

Because the evidence of the sexual assault was properly 

viewed and provided support for the March 2020 search warrant, the court did not err in overruling McGovern’s second 

motion to suppress evidence derived from the searches of his 

phone. We find no merit to McGovern’s cross-appeal.

2. Sentencing

Turning to the State’s appeal, it argues that the district 

court imposed an excessively lenient sentence. The court 

convicted McGovern of three crimes and imposed sentences 

within statutory limits. For the Class I misdemeanor 69—punishable by a maximum of 1 year’s imprisonment, $1,000 

fine, or both 70—the court imposed a sentence of 1 year’s 

66 U.S. v. Khabeer, 410 F.3d 477 (8th Cir. 2005).

67 See Murray v. United States, supra note 65.

68 Brief for appellant on cross-appeal at 21.

69 See Neb. Rev. Stat. § 28-320(3) (Reissue 2016).

70 See Neb. Rev. Stat. § 28-106(1) (Reissue 2016).
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imprisonment. For the Class IV felony 71—punishable by a 

maximum of 2 years’ imprisonment and 12 months’ postrelease supervision, $10,000, or both 72—the court imposed a 

sentence of 1 year’s imprisonment. It ordered the sentences 

for those two offenses to run concurrently. Then, for the Class 

II felony 73—punishable by 1 to 50 years’ imprisonment, 74 but 

with no mandatory minimum—the court imposed a sentence 

of probation. It is this sentence of probation that is the focus 

of the State’s challenge.

Before turning to sentencing factors, we address two arguments made by the State. One concerns what the State views 

as an incongruity in the felony sentences imposed. The other is 

whether the sentences here must be viewed individually or may 

be viewed collectively.

(a) Alleged Incongruity

The State highlights that for the court to have imposed 

imprisonment for the Class IV felony conviction, it had to 

have concluded that there were “substantial and compelling 

reasons” 75 to not impose probation. According to the State, 

it follows that those same reasons would also exist for the 

Class II felony.

A statute mandates that a sentence of probation be imposed 

for a Class IV felony unless a delineated exception applies. 76

The exceptions are: (a) the defendant is sentenced to imprisonment for any felony other than another Class IV felony, (b) the 

defendant has been deemed a habitual criminal, or (c) there 

are substantial and compelling reasons why the defendant 

71 See § 28-311.08(2).

72 See Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2020).

73 See Neb. Rev. Stat. § 28-319(2) (Reissue 2016).

74 See § 28-105(1).

75 Neb. Rev. Stat. § 29-2204.02(2)(c) (Reissue 2016).

76 See id.
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cannot be effectively and safely supervised in the community. 77 The last exception is the only one having potential 

application here.

Section 29-2204.02 was a new statute created by 2015 Neb. 

Laws, L.B. 605. 78 That comprehensive bill was “designed to 

slow Nebraska’s prison population growth, ease prison overcrowding, contain corrections spending, and reinvest a portion of savings in strategies that can reduce recidivism and 

increase public safety.” 79 The policies in the bill addressed 

three major challenges, one being that “overcrowded prisons 

house a large number of people convicted of nonviolent, lowlevel offenses.” 80 To address such a challenge, the legislation 

employed a strategy to use probation for people convicted of 

low-level offenses. 81 Thus, § 29-2204.02 encompasses a policy 

decision by the Legislature favoring probationary sentences for 

Class IV felonies.

We have stated that “§ 29-2204.02(2) effectively adds 

a general limitation on a court’s discretion in choosing 

between probation and incarceration with respect to a Class 

IV felony, because it requires a court to impose a sentence 

of probation for a Class IV felony unless certain specified 

exceptions are present.” 82 In light of the legislative intent 

behind § 29-2204.02, we cannot say that findings required 

under this statute apply to sentencing decisions pertaining 

to higher-level offenses. As recognized in a concurrence, 

“[T]he determination with regard to a Class IV felony under 

77 See id.

78 See State v. Benavides, 294 Neb. 902, 884 N.W.2d 923 (2016).

79 Introducer’s Statement of Intent, L.B. 605, Judiciary Committee, 104th 

Leg., 1st Sess. (Feb. 20, 2015).

80 Id.

81 Id.

82 State v. Baxter, 295 Neb. 496, 504, 888 N.W.2d 726, 733 (2017).
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§ 29-2204.02(2)(c) is different from the determination with 

respect to any other class of offense under § 29-2260.” 83

(b) Individual Sentence Versus 

Aggregate of Sentences

The State also questions whether it is permissible to look 

at sentences collectively in determining whether the sentencing court abused its discretion. The State points out that in the 

context of the Eighth Amendment, we have determined the 

proportionality analysis focuses on individual sentences rather 

than the aggregate of sentences ordered to be served consecutively to one another. 84

But this appeal does not involve an Eighth Amendment 

claim. And, similar to another recent appeal, the State has not 

pointed to authority requiring “any legal inquiry pertinent to 

review of a defendant’s sentence, which analyzes proportionality vis-a-vis different sentences for different crimes imposed 

for the same defendant and arising from the same series 

of events.” 85

When a judge is imposing sentences for several convictions 

at the same time, we see no reason why a sentencing judge 

should be prohibited from considering the cumulative effect 

of the sentences. “[F]or a defendant who has been sentenced 

consecutively for two or more crimes, we generally consider 

the aggregate sentence to determine if it is excessive.” 86 We 

see no reason why the same rule should not apply when 

considering whether a sentence is excessively lenient. A trial 

judge is invested with a wide discretion as to the sources and 

types of information used to assist with the determination of 

83 State v. Dyer, 298 Neb. 82, 95, 902 N.W.2d 687, 696 (2017) (Miller-Lerman, 

J., concurring).

84 See State v. Becker, 304 Neb. 693, 936 N.W.2d 505 (2019).

85 State v. Morton, 310 Neb. 355, 369-70, 966 N.W.2d 57, 68 (2021).

86 Id. at 370, 966 N.W.2d at 68.
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a sentence to be imposed within statutory limits. 87 The collective effect of multiple sentences may be a source of information. If each sentence imposed is within the statutory limit, a 

sentencing judge need not view those sentences in isolation 

in determining whether the overall sentence it crafts achieves 

the sentencing goals of rehabilitating the defendant, deterring others from criminal acts, and providing protection for 

society. We now consider the statutory sentencing factors and 

their application to the facts of this case.

(c) Statutory Factors

[26] In reviewing whether a sentencing court abused its 

discretion in imposing a sentence that was excessively lenient, 

an appellate court is guided by the factors set forth by Neb. 

Rev. Stat. § 29-2322 (Reissue 2016), as well as by the statutory guidelines set out for the direction of the sentencing judge 

in imposing or withholding imprisonment. 88 In determining 

whether the sentence imposed is excessively lenient, an appellate court shall have regard for the following:

(1) The nature and circumstances of the offense;

(2) The history and characteristics of the defendant;

(3) The need for the sentence imposed:

(a) To afford adequate deterrence to criminal conduct;

(b) To protect the public from further crimes of the 

defendant;

(c) To reflect the seriousness of the offense, to promote 

respect for the law, and to provide just punishment for the 

offense; and

(d) To provide the defendant with needed educational 

or vocational training, medical care, or other correctional 

treatment in the most effective manner; and

(4) Any other matters appearing in the record which the 

appellate court deems pertinent. 89

87 See State v. Janis, 207 Neb. 491, 299 N.W.2d 447 (1980).

88 State v. Gibson, supra note 3.

89 § 29-2322.
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A different statute authorizes a court to impose a period of 

probation in lieu of incarceration. Neb. Rev. Stat. § 29-2260 

(Reissue 2016) provides in part:

(2) Whenever a court considers sentence for an offender 

convicted of either a misdemeanor or a felony for which 

mandatory or mandatory minimum imprisonment is not 

specifically required, the court may withhold sentence 

of imprisonment unless, having regard to the nature and 

circumstances of the crime and the history, character, and 

condition of the offender, the court finds that imprisonment of the offender is necessary for protection of the 

public because:

(a) The risk is substantial that during the period of 

probation the offender will engage in additional criminal conduct;

(b) The offender is in need of correctional treatment 

that can be provided most effectively by commitment to a 

correctional facility; or

(c) A lesser sentence will depreciate the seriousness of 

the offender’s crime or promote disrespect for law.

(3) The following grounds, while not controlling the 

discretion of the court, shall be accorded weight in favor 

of withholding sentence of imprisonment:

(a) The crime neither caused nor threatened serious harm;

(b) The offender did not contemplate that his or her 

crime would cause or threaten serious harm;

(c) The offender acted under strong provocation;

(d) Substantial grounds were present tending to excuse 

or justify the crime, though failing to establish a defense;

(e) The victim of the crime induced or facilitated commission of the crime;

(f) The offender has compensated or will compensate 

the victim of his or her crime for the damage or injury the 

victim sustained;
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(g) The offender has no history of prior delinquency 

or criminal activity and has led a law-abiding life for 

a substantial period of time before the commission of 

the crime;

(h) The crime was the result of circumstances unlikely 

to recur;

(i) The character and attitudes of the offender indicate 

that he or she is unlikely to commit another crime;

(j) The offender is likely to respond affirmatively to 

probationary treatment; and

(k) Imprisonment of the offender would entail excessive hardship to his or her dependents.

(4) When an offender who has been convicted of a 

crime is not sentenced to imprisonment, the court may 

sentence him or her to probation.

(d) Application

McGovern committed the serious crime of sexual assault 

in the first degree. The offense involved sexual contact—preserved on video—at a time when K.S. was incapable of giving consent. At sentencing, McGovern’s counsel highlighted 

that “this is essentially a touching kind of offense . . . we’re 

not talking about intercourse.” But that does not diminish 

McGovern’s violation of trust. According to K.S.’ statement, 

McGovern sexually assaulted her on video on the day she was 

first introduced to him. They later had a dating relationship 

for a period of time, and she did not learn of the assaults until 

after she had ended the relationship. K.S. stated that she has to 

“live with the embarrassment of the knowledge that at a minimum, numerous law enforcement and criminal justice officials 

from multiple jurisdictions have seen the videos of [her] sexual 

assaults, have seen [her] in states of undress.”

[27] Evidence regarding a defendant’s life, character, and 

previous conduct, as well as prior convictions, is highly relevant to the determination of a proper sentence. 90 According 

90 State v. Gibson, supra note 3.
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to the presentence report, McGovern was 39 years old. His 

prior criminal history included three convictions for driving 

under the influence between 2001 and 2007 and a conviction 

for attempted unlawful intrusion based on the September 2018 

event that led to discovery of the instant offenses. At the time 

of sentencing, McGovern was facing charges in Montana for 

alleged conduct similar to that in the instant case. A testing tool 

assessed him to be at a “[m]edium-[h]igh” risk to reoffend. He 

scored in the “maximum risk range on the SAQ alcohol scale.” 

According to the presentence report, McGovern was “highly 

motivated and engaged in counseling.” The report also stated 

that he “seems to show some remorse for the victim.”

[28] A sentencing court must have some reasonable factual 

basis for imposing a particular sentence. 91 The court expressed 

difficulty in balancing the need for rehabilitation against the 

need for punishment. The court explained:

On the one hand, there’s an absolute violation of trust, 

and in reviewing the evidence in this case which I had 

to do on several occasions, you were taking advantage of 

someone who was absolutely out of it and it appears to be 

a part of a pattern of conduct not entirely dissimilar from 

the incident in Kearney, Nebraska, which led to your convictions here ultimately.

On the other hand, I am required by law to consider 

rehabilitation. I am required to consider the fact that you 

have done a good job apparently while on probation.

In imposing the three sentences, the court stated they were 

an “attempt to reach a balance in this case” and that they 

were “necessary not to depreciate the serious nature of your 

criminal conduct in your eyes or the eyes of the public.” The 

court then imposed concurrent sentences of 1 year’s imprisonment for two offenses and for the other offense, a period of 

Community-Based Intervention probation for 60 months.

91 State v. Parminter, 283 Neb. 754, 811 N.W.2d 694 (2012).
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In connection with the sentence of probation, the court levied numerous terms. Obviously, McGovern cannot violate any 

laws while on probation. He must also refrain from disorderly 

conduct or acts injurious to others. He cannot associate with 

persons of “disreputable or harmful character” or persons he 

knows are involved in illegal activities. He must be gainfully 

employed or actively seeking employment. The terms of probation affect McGovern’s liberty. He must allow the probation 

officer to visit at all reasonable times and places. He cannot 

leave the state without written authorization of the court or 

the probation officer. McGovern cannot possess a firearm or 

dangerous weapon. He must submit to a chemical test of his 

blood, breath, or urine upon request of the probation officer. 

The court further determined that a period of confinement 

was necessary and ordered McGovern to serve 90 days in jail, 

which sentence was to be served consecutively to any other 

sentence imposed.

As McGovern notes, the court could have placed him on 

probation for all three convictions. Had it done so, the court 

would have been limited to a maximum period of incarceration of 90 days as a condition of probation. 92 Instead, the court 

imposed a sentence of 1 year’s imprisonment for the lesser 

offenses—the maximum sentence for the misdemeanor conviction—and a 90-day period of confinement as a condition of 

probation in addition to placing McGovern on probation for 

the maximum period of time allowed. 93 The court attempted to 

balance the needs for punishment and rehabilitation.

Our review for an abuse of discretion is key. The standard 

is not what sentence we would have imposed. 94 And as we 

recognized 20 years ago, “‘it is a rare exception’” that a 

92 Neb. Rev. Stat. § 29-2262(2)(b) (Cum. Supp. 2020).

93 See Neb. Rev. Stat. § 29-2263(1) (Reissue 2016).

94 State v. Gibson, supra note 3.
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sentence within statutory limits will be deemed excessive. 95

Because the same standard applies to determining whether a 

sentence is excessively lenient, the same observation applies 

here. These sentences do not fall within that category. We 

cannot say the sentences imposed, particularly when viewed 

collectively, amounted to an abuse of discretion.

IV. CONCLUSION

Because law enforcement reasonably observed the evidence 

of sexual assault during execution of the initial search warrant, 

the court did not err in overruling McGovern’s second motion 

to suppress evidence derived from the searches of his phone. 

We further conclude that the sentences imposed, all within the 

statutory limits, were not excessively lenient. We emphasize 

that the sentences must be viewed collectively and that we 

are not permitted to substitute the sentences we might have 

imposed as a sentencing court. Accordingly, we affirm the 

judgment of the district court.

Affirmed.

95 State v. Decker, 261 Neb. 382, 398, 622 N.W.2d 903, 917 (2001).

Miller-Lerman, J., concurring.

I concur. In this case, the opinion evidence from both 

experts taken as a whole essentially states that, given the 

technology, it is not possible to review the contents of the cell 

phone to merely determine the existence of a photograph or 

video on September 25, 2018, without also looking to some 

extent at the image. This may seem surprising. Nevertheless, 

the district court accepted the opinions. These opinions circumscribed the district court’s analysis and that of this court 

upon review. See Tipp-It, Inc. v. Conboy, 257 Neb. 219, 234, 

596 N.W.2d 304, 315 (1999) (Gerrard, J., concurring) (when 

appellate court review is guided by expert testimony, review 

is confined to record before it and “[i]t is not the proper role 

of an appellate court to become a ‘super expert,’ randomly 
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imposing its opinion over those opinions properly admitted 

in evidence”). Given the limitation imposed by the evidence, 

I cannot disagree with the court’s analysis. That leaves for 

another day a serious Fourth Amendment examination of the 

hazards of rummaging through digital devices, the making and 

retention of full forensic copies (or mirrors), the use of data 

nonresponsive to the warrant, and the constitutional limitations 

on second warrants as a cure.