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
Motions to Suppress: Pretrial Procedure: Trial:
Appeal and Error. When a motion to suppress is
denied pretrial and again during trial on renewed objection,
an appellate court considers all the evidence, both from
trial and from the hearings on the motion to suppress.
Evidence: Appeal and Error. A trial court
has the discretion to determine the relevancy and
admissibility of evidence, and such determinations will not
be disturbed on appeal unless they constitute an abuse of
Search Warrants: Probable Cause. The
particularity requirement for search warrants is distinct
from, but closely related to, the requirement that a warrant
be supported by probable cause.
Search Warrants: Probable Cause: Evidence. A
search warrant may be sufficiently particular even though it
describes the items to be seized in broad or generic terms if
the description is as particular as the supporting evidence
will allow, but the broader the scope of a warrant, the
stronger the evidentiary showing must be to establish
Search and Seizure: Search Warrants. The
requirement that warrants shall particularly describe the
things to be seized makes general searches under them
impossible and prevents the seizure of one thing under a
warrant describing another.
Neb. 217] 7. Search Warrants: Police
Officers and Sheriffs. A search warrant must be
sufficiently particular to prevent an officer from having
unlimited or unreasonably broad discretion in determining
what items to seize.
Constitutional Law: Search Warrants: Police Officers
and Sheriffs. To satisfy the particularity
requirement of the Fourth Amendment, a search warrant must be
sufficiently definite to enable the searching officers to
identify the property authorized to be seized.
Evidence. A court must consider whether a
statement made by a third party admitted to give context to a
party's statement is relevant.
Criminal Law: Evidence. To evaluate the
relevance of a third party's statement for the purpose of
providing context, a court must compare the probative value
of the defendant's statement with and without the added
context; if the third-party statement makes the
defendant's statement any more probative, the third-party
statement is itself relevant.
Evidence. When analyzing evidence under Neb.
Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016),
courts not only consider the risk of unfair prejudice or
other dangers the evidence carries, but weigh those dangers
against the probative value of the evidence, determining
whether the former substantially outweighs the latter.
from the District Court for Douglas County: Kimberly Miller
Pankonin, Judge. Affirmed.
C. Riley, Douglas County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
W. Baker was found guilty by a jury of his peers of murdering
Jermaine J. Richey and Derek L. Johnson and attempting to
murder Demetrion A. Washington and Lamar A. Nedd. He was
sentenced by the court to life imprisonment on each of the
two first degree murder convictions, 30 to 40 years'
imprisonment on each of the two attempted first degree murder
convictions, and 25 to 30 years' imprisonment on each
[298 Neb. 218] of the four use of a firearm to commit a
felony convictions. Baker appeals.
issue is whether the search warrant for Baker's residence
was unconstitutional because it lacked particularity by
authorizing the police to search for "[a]ny and
all" firearms in his residence. Also at issue is whether
evidence found during the course of and as a result of the
search should be suppressed if the warrant were found to be
invalid. Baker also claims that the trial court erred by
admitting a recording of a telephone conversation that he
made to his ex-girlfriend from jail. Because we conclude that
the search warrant was sufficiently particular and that the
trial court's admission of the telephone conversation was
not an abuse of discretion, we affirm.
was charged with eight counts: count I, first degree murder,
a Class IA felony, for the killing of Richey; count II, use
of a firearm to commit a felony, a Class IC felony; count
III, first degree murder, a Class IA felony, for the killing
of Johnson; count IV, use of a firearm to commit a felony, a
Class IC felony; count V, attempted first degree murder, a
Class II felony, for the attempted murder of Washington;
count VI, use of a firearm to commit a felony, a Class IC
felony; count VII, attempted first degree murder, a Class II
felony, for the attempted murder of Nedd; and count VIII, use
of a firearm to commit a felony, a Class IC felony.
2016, Baker was tried before a jury in the Douglas County
District Court. The jury found him guilty on all counts.
Baker was sentenced to life imprisonment on each of the two
first degree murder convictions, 30 to 40 years'
imprisonment on each of the two attempted first degree murder
convictions, and 25 to 30 years' imprisonment on each of
the four use of a firearm to commit a felony convictions. The
court ordered that all of the sentences be served
shooting that led to the deaths of Richey and Johnson
occurred outside of an apartment building on Meredith Avenue
in Omaha, Nebraska, on December 21, 2014. The building has
[298 Neb. 219] entrances on its north and the south sides and
parking stalls along its east side. At the time of the
shooting, the building was equipped with three security
cameras: one monitoring an office inside the building, one
monitoring the north entrance, and one monitoring the east
to the shooting, a blue Crown Victoria-the victims'
vehicle-pulled into a parking stall on the east side of the
apartment building. One of the building's security
cameras showed a black sport utility vehicle (SUV)
subsequently park in the east parking area, two parking
stalls to the south of the Crown Victoria. At this time, the
occupants of the Crown Victoria exited the vehicle and
appeared to follow the SUV's occupants into the south
entrance of the building.
security camera on the north entrance to the apartment
building showed that at around 5:05 p.m., two individuals
walked into the building, with the door opened for them from
the inside by a third individual. Neither was openly carrying
a rifle, but the individual later identified as Baker walked
up the steps in an odd stiff-legged manner, which the
prosecution argued at trial was because he was concealing a
rifle in his pants.
around 5:07 p.m., the security camera footage of the east
parking area showed the four individuals from the Crown
Victoria returning to their vehicle from the apartment
building's south entrance. As these four entered the
vehicle, two individuals, similar in appearance to the two
individuals that had recently entered the north entrance,
also came to the east parking area from the area of the south
entrance. These two stood waiting behind the nearby SUV while
the four other individuals entered the Crown Victoria. One of
the two individuals standing waiting pulled out a rifle, held
it up to his shoulder, stepped out from behind the SUV, and
fired multiple shots into the Crown Victoria. The driver of
the Crown Victoria, Richey, slumped over in his seat. The
front passenger, Johnson, ran out of the vehicle a short
distance before grabbing his chest and falling over. The two
rear passengers exited the vehicle.
Neb. 220] Johnson died of a gunshot wound to the heart, and
Richey died 16 days later from a gunshot wound to the head.
After the shooting, police spoke with Washington, who had
also been shot. Washington claimed he did not know the
shooter. Nedd was also in the Crown Victoria during the
shooting and sustained a small injury on his rib cage from
glass fragmentation. Nedd claimed not to know the shooter.
recovered 30 spent ammunition casings at the scene. All of
the recovered casings were from .223-caliber cartridges.
obtained a search warrant to search Baker's residence,
where he lived with his brother and his brother's family.
During the search of Baker's residence, police recovered
a blue jacket bearing a distinctive logo and text, similar to
the jacket worn by the shooter in the security camera
footage, and a .223-caliber semiautomatic rifle with a
30-round magazine containing 18 loaded rounds. Baker was not
located at the residence. Police subsequently obtained an
arrest warrant for Baker and arrested him.
of DNA samples taken from the rifle and the jacket showed
that Baker was very likely a contributor to both samples.
Ballistics testing of the rifle showed that 27 of the 30
casings found at the crime scene had been fired from the
rifle found in Baker's residence; 3 of the casings were
not suitable for comparison.
filed a pretrial motion to suppress any and all evidence
found as a result of the search of his residence on the basis
that the search warrant was not sufficiently particular.
search warrant authorized police to search for, among other
things: "Any and all unknown make and model firearm(s),
to include handguns, rifles, and / or shotguns, along with
ammunition, spent projectiles and spent shell casings, and
all companion equipment for these firearm(s), including
holsters, cleaning kits, sales and/or registration paperwork,
and original packaging/boxes."
warrant affidavit provided, in addition to a description of
the build and clothing of the two individuals seen entering
[298 Neb. 221] the building and committing the shooting, the
following facts: Police reviewed security camera footage from
the Meredith Avenue apartment building. They had received an
anonymous tip that Baker had bought a gun from Adren
Goynes-Wynn, that Baker used the gun in the shooting, and
that Baker returned the gun to Goynes-Wynn, who hid the gun
in his mother's apartment at the Meredith Avenue
affidavit also stated that police had responded to a shooting
at another Omaha residence on January 11, 2015, where
numerous .223-caliber casings were found. Prior to that
shooting, Baker had come to see his ex-girlfriend, Shyanne
Clark. Baker became upset when he observed that there was
another man in her residence. Baker made a comment to the
effect of "'I'm about to shoot shit up,
'" after which Clark heard numerous gunshots outside
the residence. Clark told police that Baker had admitted to
shooting and killing two individuals at the Meredith Avenue
apartment building and that she had seen Baker with a rifle
in the past. Clark confirmed the location of Baker's
residence. Clark identified Baker as one of the individuals
seen on the security camera footage entering the Meredith
Avenue building just prior to the shooting based on his
wearing of the blue jacket bearing the distinctive logo and
text and his "tasseled stocking cap, " which she
had given him.
affidavit also said that shooting victim Washington told
police that he observed two individuals in the Meredith
Avenue apartment building just before they walked out to the
parking lot prior to the shooting. Washington said that he
had a brief interaction with one of the parties before
exiting the building. Out of a photographic lineup array,
Washington identified Baker as one of the individuals and
Goynes-Wynn as the other individual.
hearing on Baker's motion to suppress, the only evidence
presented as to the types of weapons capable of firing
.223-caliber cartridges was the testimony of an Omaha Police
[298 Neb. 222] Q. All right. Concerning the [crime] scene
investigation, as I understand it, the only - only casings
that were observed or recovered were all the same caliber,
A. That's correct, sir.
Q. All right. And is 223 something that would be consistent
with handguns being able to fire, or do you know?
A. Well, primarily it's a rifle cartridge, but there are
rifles that are considered pistols or handguns [by] the
[Bureau of Alcohol, Tobacco, Firearms and Explosives], and
it's just a shortened version of an M-4 or AR-15 styled
rifle, but they are considered nowadays to be pistols.
Q. Okay. But they're basically assault weapons?
A. They're assault weapons, yes, sir.
trial court overruled Baker's motion to suppress as it
related to the search for weapons in his residence, relying
on this court's holding in State v.
January 21, 2015, the day that he was arrested, Baker
telephoned his ex-girlfriend, Clark, from jail. The call was
recorded and played for the jury at Baker's trial. A
transcript of the call was given to jurors while the call was
played, which transcript Clark had reviewed for accuracy. The
most relevant portion of the conversation is as follows:
Baker: Man, that shit was crazy. I'm
like. I don't know man. It just, I guess, you know,
it's meant to be now. Like, but, I can see if like, like
if I did the shit, ya know what I mean, like you know and was
running and shit but they try in' to get . . .
Clark: The only thing is, [Baker]. The only
thing is . . .
Baker: Just listen. I'm gonna read my
charges. Just listen to this dumb ass shit.
[298 Neb. 223] Clark: I know your charges.
Baker: They talking 'bout four counts of
first degree ...