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
Pretrial Procedure: Trial: Evidence: Appeal and
Error. Where there has been a pretrial ruling
regarding the admissibility of evidence, a party must make a
timely and specific objection to the evidence when it is
offered at trial in order to preserve any error for appellate
Trial: Evidence: Motions to Suppress: Waiver: Appeal
and Error. The failure to object to evidence at
trial, even though the evidence was the subject of a previous
motion to suppress, waives the objection, and a party will
not be heard to complain of the alleged error on appeal.
Search Warrants: Affidavits: Probable Cause: Appeal
and Error. In reviewing the strength of an affidavit
submitted as a basis for finding probable cause to issue a
search warrant, an appellate court applies a totality of the
___: ___: ___. In reviewing the strength of an affidavit
submitted as a basis for finding probable cause to issue a
search warrant, the question is whether, under the totality
of the circumstances illustrated by the affidavit, the
issuing magistrate had a substantial basis for finding that
the affidavit established probable cause.
Search Warrants: Probable Cause: Words and
Phrases. Probable cause sufficient to justify
issuance of a search warrant means a fair probability that
contraband or evidence of a crime will be found.
Neb. 130] 7. Search Warrants:
Affidavits: Evidence: Appeal and Error. In
evaluating the sufficiency of an affidavit used to obtain a
search warrant, an appellate court is restricted to
consideration of the information and circumstances contained
within the four corners of the affidavit, and evidence which
emerges after the warrant is issued has no bearing on whether
the warrant was validly issued.
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. A purpose of the
particularity requirement for a search warrant is to prevent
the issuance of warrants on loose, vague, or doubtful bases
Constitutional Law: Search Warrants: Police Officers
and Sheriffs. To satisfy the particularity
requirement of the Fourth Amendment, a warrant must be
sufficiently definite to enable the searching officer to
identify the property authorized to be seized. The degree of
specificity required depends on the circumstances of the case
and on the type of items involved.
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: Probable
Cause. A warrant for the search of the contents of a
cell phone must be sufficiently limited in scope to allow a
search of only that content that is related to the probable
cause that justifies the search.
Appeal and Error. An appellate court is not
obligated to engage in an analysis that is not necessary to
adjudicate the case and controversy before it.
from the District Court for Douglas County: Peter C.
C. Riley, Douglas County Public Defender, and Matthew J.
Miller for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
Neb. 131] FUNKE, J.
E. Goynes, Jr., appeals his convictions of murder in the
first degree, use of a deadly weapon (firearm) to commit a
felony, and possession of a deadly weapon by a prohibited
person. On appeal, Goynes challenges the district court's
failure to suppress cell phone data content acquired through
the execution of a search warrant. Goynes claims the warrant
was unsupported by probable cause and insufficiently
particular. The State, in turn, argues that the warrant was
supported by probable cause and sufficiently particular and
that the officers who executed the warrant acted in good
faith. For the reasons set forth herein, we affirm.
p.m. on April 25, 2016, Omaha Police Department officers
responded to a report of shots fired at an apartment complex
in Omaha, Nebraska. In front of the complex, the officers
found Barbara Williams on the ground in a pool of blood.
Williams had been shot in the chest, and paramedics
pronounced her dead at the scene.
result of a subsequent investigation, officers identified
Goynes as a suspect and took him into custody on April 30,
2016. Goynes had an "LG Tribute 5" cell phone in
his possession when he was arrested. Det. Larry Cahill
submitted an application for a search warrant authorizing
examination of the cell phone and the extraction of
electronically stored information. In the supporting
affidavit, Cahill stated his belief that data from the cell
phone would assist him in determining the course of events
regarding the homicide investigation of Williams.
factual basis Cahill provided in his affidavit explained that
on Monday, April 25, 2016, officers responded to the shooting
at the apartment complex. Upon their arrival, the officers
observed Williams deceased in front of the complex with an
apparent gunshot wound to her torso. The officers then
undertook an investigation wherein several potential
witnesses to the shooting were interviewed.
Neb. 132] The affidavit stated that around 4:20 p.m. on April
25, 2016, a witness heard approximately four or five gunshots
and observed a white, four-door sedan parked just east of the
north entrance facing the apartments. The witness then
observed a black male wearing a white T-shirt, gray pants,
and a dark-colored hat holding a handgun in his right hand
and walking toward the sedan. The black male got into the
driver's side of the sedan, which left the area quickly,
traveling east on Boyd Street toward North 48th Street.
account was supported by video described in the affidavit. In
the video, which showed various views of the front of the
apartment complex, investigators observed a white, four-door
sedan drive past the front of the complex's entrance,
where officers later located Williams, and park in a spot
east of that entrance. The officers observed an unidentified
party travel from where the sedan was parked, approach the
elevated stoop of the entrance, and return back to the
sedan's location. The video then showed the sedan
leaving, traveling east on Boyd Street.
affidavit described interviews occurring on April 29, 2016,
with two other potential witnesses, George Taylor and Saville
Hawthorne, who claimed to know the identity of the suspect.
interview provided that Taylor and Hawthorne drove to a
parking space across the street from the apartment complex at
4 p.m. on April 25, 2016. Taylor described that Hawthorne and
Williams were friends and that after Taylor parked his
vehicle facing the entrance of the complex, Hawthorne briefly
went to talk to Williams before returning to the vehicle.
Once Hawthorne returned to the vehicle, Taylor observed a
white, four-door sedan pull into a parking spot just east of
the apartment entrance where Williams was located. Taylor
stated he observed a black male wearing a white T-shirt, dark
pants, and a black hat exit the sedan, possibly from the back
seat. Taylor indicated that he saw additional parties inside
the white sedan, but that those individuals did [303 Neb.
133] not exit the sedan. Upon exiting the sedan, the black
male began walking toward the elevated stoop where Williams
was sitting. Taylor identified the man as Goynes, also known
as "'Gang Bang, '" explaining that Goynes
is Hawthorne's cousin and a known gang member. Taylor
described that Goynes then began firing a black handgun
toward the stoop in front of the entrance. Taylor stated that
two men, whom he knew as "'Action'" and
'"Stay Ready, '" were sitting on the
elevated stoop near Williams and that he believed Goynes was
shooting at these men. Taylor stated he watched Goynes fire
approximately 10 times, firing all the way up to the entryway
stairs and toward where he saw "'Action'"
and '"Stay Ready'" running. Taylor then
sought cover and did not see Goynes or the sedan leave.
Hawthorne's interview, she stated that she rode to the
apartment complex with Taylor and that they parked facing the
entrance of the complex. After noticing several friends,
including Williams, sitting on the stoop in front of the
entrance, she went over and "sat with them for a couple
minutes." Hawthorne was then called away and left the
stoop to return to the vehicle, where she sat in the front
passenger seat. While in the vehicle, Hawthorne observed a
white, four-door sedan approach and park on the east side of
the entrance and saw a black male exit the sedan from the
rear driver's side seat. The man that exited the sedan,
whom Hawthorne identified as her cousin Goynes, walked toward
the stoop and pulled out a black handgun from his waist which
he used to shoot toward the stoop at least 10 times.
Hawthorne believed Goynes was shooting at two men on the
stoop she identified as "'Action'" and
'"Stay Ready, '" whom she observed fled
into the courtyard of the apartment complex. Hawthorne
explained that Goynes ran up the stairs of the stoop and
continued to shoot toward the courtyard before heading back
and getting into the sedan. Hawthorne described that the
sedan left the scene east-bound toward 48th Street. Hawthorne
clarified she was "100% sure" Goynes was the
shooter and was able to positively [303 Neb. 134] identify
him from a photographic lineup, as well as
'"Action"' and '"Stay
asserted in his affidavit that there was data on the cell
phone related to the offense and listed the areas in which
that data could be found. ...