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
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
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.
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.
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.
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
Trial: Evidence. Evidence that is irrelevant
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.
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.
Evidence: Words and Phrases. Unfair
prejudice means an undue tendency to suggest a decision based
on an improper basis.
__. 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.
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
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.
. 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
Generally, it is within a trial court's discretion to
direct that sentences imposed for separate crimes be served
either concurrently or consecutively.
from the District Court for Douglas County: James T. Gleason,
C. Riley, Douglas County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent
Neb. 55] Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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.
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.
s Motion to Suppress.
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