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Appeal from the District Court for Douglas County: J Russell Derr, Judge.
Thomas C. Riley, Douglas County Public Defender, Matthew J. Miller, and Zoë R. Wade for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
HEAVICAN, C.J., WRIGHT, CONNNNOLLY, STEPHAN, McCORMACK, MILLER-LERMAN, and CASSEL, JJ.
[289 Neb. 274] I. NATURE OF CASE
Tillman T. Henderson appeals his convictions in the district court for Douglas County for several felonies. He claims, inter alia, that the district court erred when it denied his motion to suppress evidence obtained from a search of the contents of a cell phone that was found on his person at the time he was arrested. We affirm Henderson's convictions and sentences.
II. STATEMENT OF FACTS
1. Charges and General Evidence
Henderson was convicted of first degree murder in connection with the shooting death of Matthew Voss and attempted first degree murder in connection with the shooting of Antonio Washington. He was convicted of two counts of use of a deadly weapon to commit a felony in connection with the foregoing crimes. He was also convicted of possession of a deadly weapon by a prohibited person.
Testimony at trial indicated that in the early morning hours of February 18, 2012, a fight broke out at an after-hours party in downtown Omaha, Nebraska. Witnesses reported seeing two men firing guns. Voss and Washington both sustained gunshot wounds; Voss died as a result of his wounds, while Washington survived but was severely injured.
Henderson was apprehended by police as he was running from the scene of the incident. A person who was at the scene had identified Henderson to a police officer as one of the shooters. The other suspect was not apprehended. One gun was found on Henderson's person when he was arrested, and a police officer saw Henderson throw another gun under a vehicle as the officer was chasing him.
[289 Neb. 275] Forensic evidence presented at trial indicated that bullets and casings found at the scene of the shootings had been fired from the gun found on Henderson and from the gun he was seen throwing under a vehicle. A fingerprint on the gun found under the vehicle matched Henderson's. In addition, DNA testing of blood found on the clothing worn by Henderson at the time of his arrest indicated that the blood had come from Voss.
The State maintained at trial that Henderson shot Voss and Washington to retaliate for an assault on Henderson's friend, Jimmy Levering. Levering and Voss had both been inmates at a prison in Florida, and Voss had allegedly stabbed and punched Levering.
2. Apprehension of Henderson
Omaha police officer Paul Sarka responded to a call regarding a fight or disturbance in the area of 16th and Harney Streets around 3 a.m. on February 18, 2012. Sarka saw a group of people outside a building in the area, but he did not see a disturbance. He circled the block and then pulled his police cruiser into an alley to park and write a report on his response to the call. Soon after parking, Sarka heard several gunshots. He pulled his cruiser out of the alley and, with the lights and sirens turned on, drove in the direction from which he thought he had heard the gunshots, which direction was toward the group of people he had seen near 16th and Harney Streets. As he drove, he radioed a message to dispatch saying, " 'Shots were fired. Send more officers.'"
Sarka saw 20 to 30 people running from the scene screaming and looking like they were in fear. Sarka yelled out of his cruiser's window to the people asking them who had done the shooting, but he did not get a response. The driver of a white sport utility vehicle rolled down his window, and when Sarka asked whether the driver had seen who did the shooting, the driver replied that it was " 'the black male running down the sidewalk of this side of the street in the tan Carhartt.'" Sarka saw only one man in the group of people running on the sidewalk who was wearing a tan Carhartt jacket; the man was later identified as Henderson.
[289 Neb. 276] Sarka yelled at Henderson, " 'Police, stop.'" Henderson made eye contact with Sarka but then turned and continued running. Sarka chased Henderson, first in his
cruiser and then on foot. As Sarka was chasing Henderson on foot, another police cruiser came toward Henderson which caused him to change direction. Sarka saw Henderson pull an object that looked like a gun out of his waistband or pocket and throw the object under a vehicle that was parked on the street. Sarka continued to chase Henderson and was joined by another officer. The two eventually tackled Henderson and handcuffed him. Sarka turned Henderson over to another officer, Fred Hiykel. Sarka returned to the place where he had seen Henderson throw the object under a vehicle. The object proved to be a gun.
Hiykel responded to Sarka's " 'Shots were fired'" call and arrived just as Sarka took Henderson into custody. Hiykel escorted Henderson to his police cruiser. Hiykel searched Henderson and found a handgun in his pocket. He removed the gun and put it in a plastic evidence bag. Hiykel put Henderson into the back of his cruiser and drove him to police headquarters. In the interview room, Hiykel removed other personal property from Henderson's person and placed the property in an evidence bag.
3. Search of Cell Phone
Dave Schneider was one of the homicide detectives from the Omaha Police Department (OPD) assigned to investigate the shootings. One of Schneider's duties was to obtain a search warrant for a cell phone that was among the items of personal property taken from Henderson upon his arrest. Schneider himself had not come into contact with the cell phone, but he knew that other officers had turned the cell phone on to obtain its serial number and telephone number. Schneider testified that the other officers had placed the cell phone into " airplane mode" so that the cell phone could not be remotely accessed for the purpose of deleting data. Schneider prepared an affidavit and application for issuance of a warrant to search the contents of the cell phone. In the affidavit and application, Schneider generally requested a warrant to search " [a]ny and [289 Neb. 277] all information" contained on the cell phone. He specifically listed contacts, cell phone call lists, text messages, and voicemails, and he also requested " any other information that can be gained from the internal components and/or memory Cards." As grounds for the issuance of the warrant, Schneider asserted that Henderson was a suspect in a shooting and that the cell phone was in Henderson's possession when he was arrested. The county court for Douglas County issued the requested search warrant on February 18, 2012.
The search of the cell phone was conducted by another detective, Nick Herfordt, during the afternoon of February 18, 2012. Herfordt downloaded information from the cell phone, including the contact list, call history, and text messages. Included in the information downloaded was a series of text messages exchanged between the cell phone and another number between 2:34 a.m. and 3:11 a.m. on February 18. Messages coming from the other number included two which stated, " That Nigga that stab Jb up here" and " After hour on harney downtown." Messages sent from the searched cell phone included two which stated, " On my way keep close eye" and " Im out side wat up?" Other messages appear to indicate that the two persons exchanging the messages were attempting to meet up with one another outside the location mentioned in earlier messages. Herfordt also found a picture that was used as " wallpaper," or the background on the cell phone's screen. The picture depicted a man, and at trial, witnesses identified the man in the picture as Levering.
Prior to trial, on June 13, 2012, Henderson filed a motion to suppress evidence obtained from the search of the cell phone. He asserted, inter alia, that the affidavit supporting the request for the search warrant " did not contain sufficient information to establish probable cause to believe a crime or evidence of a crime would be found on [Henderson's] cellular telephone." The district court held a hearing on the motion to suppress on August 16. However, before the court ruled on the motion to suppress, Schneider obtained a second warrant to search the cell phone.
The affidavit Schneider submitted to the county court in support of the second warrant included the same information [289 Neb. 278] that had been included in the request for the first warrant, but there was additional language stating:
In Affiant Officers [sic] experience and training as a detective it is known that suspects that we have had contact with use cell phones to communicate about shootings that they have been involved it [sic], before, during, and afterwards. The communication can be though [sic] voice, text, and social media, to name a few.
The county court issued a second search warrant based on the new affidavit on September 14. On September 20, Herfordt searched the contents of the cell phone a second time.
On November 13, 2012, Henderson filed a motion to suppress evidence obtained from the second search of the cell phone, and the district court held a hearing on the motion on November 19. The court entered an order on January 17, 2013, overruling Henderson's motion to suppress evidence obtained from the second search. The court agreed with Henderson's argument that the affidavit submitted in support of the first search warrant issued on February 18, 2012, did not sufficiently state why a search of the cell phone would produce evidence relevant to the crimes for which Henderson was arrested and that therefore, there was not probable cause to support the first search warrant. But the court continued that no warrant was necessary because, in its view, the search of the cell phone, which was found on Henderson at the time of his arrest, was a valid warrantless search incident to his arrest. The court stated that because no warrant was needed to conduct the search, issues regarding the validity of the second search warrant were moot.
Notwithstanding its conclusion that a warrant was not required, the district court addressed the warrant issue " in the event it is eventually determined that the Court is in error on that issue" regarding the need for a warrant. The court rejected Henderson's argument that the second warrant was an attempt to rehabilitate the deficiencies of the first warrant and that the second warrant was tainted by the execution of the first warrant. The court concluded that " there is little or no evidence that 'but for' the execution of the first search warrant the State [289 Neb. 279] would not have searched the cellular telephone using the properly issued second search warrant."
After Henderson filed a motion to reconsider the ruling on the motion to suppress, the court held another hearing focused on the validity of the second search warrant. On February 7, 2013, the court entered an order overruling the motion to reconsider and suppress evidence obtained from the second search. In the order, the court specifically determined that the affidavit offered in support of the second search warrant, which included the additional language quoted above, established probable cause to search the cell phone. The court concluded that the second search warrant was properly issued and executed.
4. Issues Prior to and Durining Trial
Prior to trial, OPD filed a motion for a protective order against a subpoena duces tecum that had been served by Henderson. The subpoena requested the keeper of OPD's records to appear at trial and provide a copy of gang files related to Henderson and to an individual known as JB. At a hearing on the motion, OPD argued that the files were confidential and subject to confidentiality restrictions imposed by OPD and the federal government. OPD further asserted that disclosure of such information could jeopardize its efforts in monitoring gang activity.
At the hearing on OPD's motion, the court also considered motions in limine Henderson had filed seeking to preclude the State from adducing evidence regarding gang affiliations. At this hearing, the State represented that it had not seen any of the OPD files and that it did not intend to introduce any evidence at trial regarding gang affiliation. The court granted OPD's motion for a protective order but indicated that it might change its ruling if at trial the State introduced evidence to establish that the " JB" referred to in the text message found on Henderson's cell phone was Levering and if such evidence was derived from information in the OPD gang files.
Herfordt testified at trial. When the State began to question Herfordt regarding his search of the cell phone and the [289 Neb. 280] evidence he obtained from the search, Henderson made a foundation objection that a proper chain of custody had not been established for the cell phone. The court initially sustained the foundation objection, and the State recalled Hiykel as a witness regarding the chain of custody. Hiykel testified generally that after Henderson's arrest, he took all items that Henderson had on his person and put them into an evidence bag; however, Hiykel did not specifically recall taking a cell phone. Herfordt then returned to the stand, and upon questioning by the State, identified the cell phone as the one that he booked into property in ...