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State v. Tyler

Supreme Court of Nebraska

October 2, 2015

STATE OF NEBRASKA, APPELLEE,
v.
AVERY R. TYLER, APPELLANT

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Appeal from the District Court for Douglas County: DUANE C. DOUGHERTY, Judge.

Thomas C. Riley, Douglas County Public Defender, for appellant.

Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, McCORMACK, MILLER-LERMAN, and CASSEL, JJ., and MOORE, Chief Judge.

OPINION

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[291 Neb. 922] Cassel, J.

I. INTRODUCTION

In this direct appeal from criminal convictions and sentences, Avery R. Tyler challenges the denial of his pretrial motions to suppress evidence seized in the execution of four search warrants. Although we will explain our conclusions in detail, we begin by summarizing them.o The district court's implicit rejection of Tyler's testimony--claiming that his cell phone was taken from his person and not pursuant to the search warrant--was not clearly wrong.o Tyler's written consent to an examination of the cell phone's contents was voluntarily given.o Tyler's challenge that the warrants were not sufficiently particular fails because (1) a gunlock was seized pursuant to a sufficiently particular, severable portion of the warrant, and (2) the detectives acted in good faith reliance on the warrants.

Accordingly, we affirm Tyler's convictions.

II. BACKGROUND

1. Shooting

In the early morning hours of September 3, 2012, Delayno Wright was shot and killed outside Halo Ultra Lounge (Halo) in Omaha, Nebraska. Before the shooting, Wright, his girl-friend Brittany Ashline,

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and his cousin LaRoy Rivers left Halo together and walked through the parking lot toward Wright's car. As they were walking, two men walked past them, one of whom grabbed or brushed against Ashline's [291 Neb. 923] buttocks. Ashline turned around and confronted the men, and so did Wright.

Rivers thought he recognized one of the men, who was wearing a brown, striped shirt. Rivers saw the man in the brown, striped shirt break away from the group and go into the parking lot.

Rivers saw a dome light turn on in the parking lot. Seconds later, Rivers heard the voice of the man in the brown, striped shirt yelling, " 'What's up now?'" and he heard gunshots. Rivers could not see the shooter. Ashline, who had walked away from the group, said she saw a man run to a tan or gold sport utility vehicle or Jeep and leave the scene after the shots were fired.

Wright indicated he had been hit, and friends drove him to a hospital. He was then transferred by ambulance to another hospital, where he was pronounced dead. His cause of death was a gunshot wound to his torso.

2. Investigation

Rivers remained at Halo and was taken to the police station. There, Rivers told a detective that he thought he recognized the man in the brown, striped shirt as a person he played basketball with in high school. Rivers told the detective that he thought the man's first name was Avery, but that he was unsure of the man's last name. The detective began searching high school basketball rosters on the Internet. Rivers accessed " Facebook" on the detective's computer and viewed the profile picture of Tyler. In the course of the investigation, investigators obtained a photograph of Tyler from a wedding he attended on September 2, 2012; in the photograph, he was wearing a brown, striped shirt.

Investigators obtained security footage that showed a sport utility vehicle leaving the scene at a high rate of speed near the time of the shooting. In the course of the investigation, detectives learned that Tyler's girlfriend owned a silver Jeep Commander.

[291 Neb. 924] Investigators found eight shell casings at the scene. A crime laboratory (lab) technician reported that the casings were all fired from the same gun and that there are about 20 guns capable of firing them, including an " FN Five-seveN" pistol. Investigators discovered Tyler had recently purchased an FN Five-seveN pistol at a sporting goods store in La Vista, Nebraska.

3. Searches

Detectives applied for, and the county court issued, four search warrants authorizing police to search (1) Tyler's car, (2) Tyler's grandparents' residence, (3) Tyler's mother's residence, and (4) Tyler's girlfriend's residence. Each affidavit supporting the first three warrant applications contained the same information. The first three warrants each authorized a search of the described property for:

1) Any and all firearms, and companion equipment to include but not limited to ammunition, holsters, spent projectiles, spent casings, cleaning kits/cases and boxes, paperwork, and the like.
2) The ability to seize any item(s) of evidentiary value; to include clothing and cellular phones[.]
3) Venue items identifying those parties in control of [the property described].

Investigators executed the warrants and recovered a cell phone from Tyler's car, a gunlock bearing the " FN" logo from his

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grandparents' residence, and a letter from his mother's residence. Tyler signed a consent form that allowed detectives to download and search the contents of his cell phone.

In the data downloaded from Tyler's cell phone, investigators discovered another picture of Tyler at the wedding reception wearing a brown, striped shirt. They also extracted deleted text messages from the cell phone, including a message sent from the cell phone at 11:38 p.m. on September 2, 2012, that read: " Whats it like and where is halo?" Detectives obtained the cell ...


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