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State v. Brown

Supreme Court of Nebraska

January 18, 2019

State of Nebraska, appellee,
v.
Rolander L. Brown, appellant.

         1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. When 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. Trial: Evidence: Appeal and Error. A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of that discretion.

         3. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within statutory limits absent an abuse of discretion by the trial court.

         4. Telecommunications: Records: Warrants: Probable Cause. The government must generally obtain a warrant supported by probable cause before acquiring cell site location information from a wireless carrier.

         5. Constitutional Law: Search and Seizure: Evidence. The exclusion of evidence obtained in violation of the Fourth Amendment is not a personal constitutional right. Rather, the exclusionary rule operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect.

         6. Constitutional Law: Search and Seizure: Police Officers and Sheriffs: Evidence. The exclusionary rule does not apply to evidence obtained by police in objectively reasonable reliance on a statute later found to be unconstitutional.

         7. Trial: Evidence. Evidence that is irrelevant is inadmissible.

         [302 Neb. 54] 8. Evidence. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

         9. __ . Relevancy requires only that the probative value be something more than nothing.

         10. Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016), relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

         11. Evidence: Words and Phrases. Unfair prejudice means an undue tendency to suggest a decision based on an improper basis.

         12. __: __. Unfair prejudice speaks to the capacity of some concededly relevant evidence to lure the fact finder into declaring guilt on a ground different from proof specific to the offense charged, commonly on an emotional basis.

         13. Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.

         14. Sentences. In determining a sentence to be imposed, relevant factors customarily considered and applied are the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime.

         15. __ . The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

         16. __. Generally, it is within a trial court's discretion to direct that sentences imposed for separate crimes be served either concurrently or consecutively.

          Appeal from the District Court for Douglas County: James T. Gleason, Judge. Affirmed.

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

          Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

         [302 Neb. 55] Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Papik, J.

         Following a jury trial, Rolander L. Brown was convicted of second degree murder and other offenses arising out of the death of Carlos Alonzo. Brown appeals his convictions and sentences, primarily arguing that in light of the U.S. Supreme Court's recent opinion in Carpenter v. U.S., __ __ U.S.__, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018), the district court erred by denying his motion to suppress cell site location information. We find that the district court did not err in denying Brown's motion to suppress and that Brown's other assignments of error also lack merit. We affirm.

         BACKGROUND

         In the early morning hours of May 28, 2016, Alonzo was found dead in the front yard of a home near 20th and Lake Streets in Omaha, Nebraska. Alonzo died from a single gunshot wound to his head. The State filed several charges against Brown arising out of Alonzo's death: first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person.

         Brown s Motion to Suppress.

         As part of its investigation into Alonzo's death, the State submitted an application to the district court under the federal Stored Communications Act seeking an order compelling the disclosure of certain records pertaining to a cell phone that evidence showed was used by Brown. The court granted the order, and the State obtained the records from the relevant wireless ...


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