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State v. Goynes

Supreme Court of Nebraska

May 17, 2019

State of Nebraska, appellee,
Michael E. Goynes, Jr., appellant.

         1. 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 court's determination.

         2. 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 review.

         3. 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.

         4. 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 circumstances test.

         5. ___: ___: ___: ___. 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.

         6. 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.

         [303 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.

         8. 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.

         9. 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 of fact.

         10. 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.

         11. 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 probable cause.

         12. 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.

         13. 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.

          Appeal from the District Court for Douglas County: Peter C. Bataillon, Judge.

          Thomas C. Riley, Douglas County Public Defender, and Matthew J. Miller for appellant.

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

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

         [303 Neb. 131] FUNKE, J.

         Michael 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.

         I. BACKGROUND

         At 4:25 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.

         As a 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.

         The 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.

         [303 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.

         This 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.

         Cahill's 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.

         Taylor's 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.

         In 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 Ready.'"

         Cahill 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. ...

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