State v. McGovern

311 Neb. 705

974 N.W.2d 595

STATE of Nebraska, appellant and cross-appellee,

v.Jake J. MCGOVERN, appellee and cross-appellant.

No. S-21-144.

Supreme Court of Nebraska.

Filed June 10, 2022

Douglas J. Peterson, Attorney General, and Austin J. Relph, Lincoln, for appellant.

Sarah A. Hinrichs, Deputy Hall County Attorney, for appellant.

Jonathan Hendricks, of Dowding, Dowding, Dowding & Urbom, for appellee.

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

Per Curiam.

I. INTRODUCTION

This criminal case appeal presents two primary issues: whether evidence obtained following a search of a cell phone should have been suppressed and whether a sentence of probation for a Class II felony was excessively lenient. Because the first search warrant was supported by probable cause and was sufficiently particular and because law enforcement reasonably saw evidence of a different crime during the initial search, the court did not err in overruling a suppression motion. And because the overall sentencing was not an abuse of discretion, we affirm the judgment of the district court.

II. BACKGROUND

1. INITIAL INCIDENT

On September 25, 2018, just after 6 a.m., Officer Brad Newell was dispatched to an apartment in Kearney, Nebraska. Newell spoke with J.S., who reported that upon leaving his garden-level apartment, he saw a man crouched down by a window to the apartment's bathroom. The window had blinds, but they had a small gap. When J.S. went outside, J.S.’ girlfriend had just entered the bathroom to shower. J.S. did not mention seeing the individual holding a cell phone. J.S. told Newell that he yelled at the person, who then "took off" running. J.S. chased the person and saw him cut through a yard.

Newell asked J.S. to show him the path the person took. Approximately half a block from the apartment, J.S. discovered a cell phone and handed it to Newell. After observing that the phone's screen was locked, Newell took the phone to the police station. Newell met with Investigator Dan Warrington, who assisted Newell in preparing an affidavit to search the phone.

2. SEPTEMBER 2018 SEARCH WARRANT AND INVESTIGATION

(a) Affidavit

Newell completed an affidavit in support of a search warrant, asking the judge for permission to examine the cell phone for evidence of the crime of unlawful intrusion on September 25, 2018. In the affidavit, Newell stated that he had investigated many crimes where a cell phone contained evidence of the commission of the crime being investigated.

In the affidavit, Newell set forth information obtained from J.S. concerning the incident. J.S. reported that on September 25, 2018, "shortly before 0604 hours," his girlfriend said that she was going to shower. As J.S. left the apartment building, he saw a man looking into the ground-level window to the bathroom of J.S.’ apartment, where J.S.’ girlfriend was preparing to shower. J.S. observed the man "crouched down at the window with his head lowered so that he could see through a small area in the window blinds where one of the blind slats was missing." J.S. yelled at the man, who then fled. J.S. chased the man and observed him run through a yard and then run south. After Newell was dispatched to J.S.’ apartment, he and J.S. retraced the man's path of flight. In doing so, J.S. located a cell phone "right where the suspect ran."

Newell observed J.S. locate the cell phone and took custody of it for evidentiary purposes. Newell believed the phone "may contain evidence of the crime of Unlawful Intrusion, whereby the suspect viewed [J.S.’ girlfriend] in a state of undress, and may have also captured photographs and or video of [her] in a state of undress." Newell also stated that the cell phone would contain evidence of the subscriber of the phone's account, who could be the suspect. Newell further confirmed that the window was to the bathroom of J.S.’ apartment and that "there was a void in the blinds where a person could see into the bathroom area."

Warrington supplied Newell with a template he used for a cell phone search, and Newell incorporated that language into the affidavit. The affidavit stated that according to Warrington, "it has become commonplace for individuals to communicate with others using cellular telephones or other electronic devices to communicate activities, develop plans, coordinate schedules and to otherwise pass along information in a variety of formats." Warrington had over 400 hours of training regarding forensic searches of electronic devices.

Warrington would testify that there are two general types of data extractions from electronic devices using computer software programs. In a logical extraction, the software "makes read-only requests of specific data to the device" and the device responds by extracting the designated information. The logical extraction is limited in scope and is unable to access photographs or messages stored in third-party applications, to access information stored in a folder different from the default folder, or to access deleted items. In contrast, a physical extraction is comprehensive and "captur[es] a complete picture of the usage and contents of an electronic device." A physical extraction creates a copy of the device's flash memory.

Based on this information, Newell requested a search warrant to examine the cell phone for evidence relating to unlawful intrusion. Newell set forth that the examination may include searching the phone for the following:

Data that may identify the owner or user of the above-described cellular phone including the phone number assigned to the phone; Call Histories and logs (missed, incoming and outgoing); Photographs and their associated metadata; Contact lists and address books; Calendar entries; Messages (SMS, MMS, Recorded Messages, iMessages, or Messages communicated through other third-party application(s)) contained in any place throughout the device; Audio and video clips; Global Positioning System data including, but not limited to coordinates, waypoints and tracks, Documents and other text-based files; Internet world wide web (WWW) browser files including, but not limited to, browser history, browser cache, stored cookies, browser favorites, auto-complete form history and stored passwords; Email messages and attachments (whether read or unread) accessible from the cellular phones listed above; Access and search for communication on any third-party applications located on the above-described cellular phones; and, any deleted and/or unallocated content relating to the above-described types of information.

(b) Warrant

A Buffalo County Court judge signed a search warrant the same day. According to the search warrant, the issuing judge was satisfied that probable cause existed based upon the affidavit "attached hereto and made a part hereof by reference." The warrant allowed for a search of all of the above-quoted categories of cell phone data and any "SD [c]ards" located within the device for "evidence relating to the offenses of Unlawful Intrusion ."

(c) Search

Newell returned to the police station and provided Warrington with a copy of the signed warrant. Warrington then extracted data from the phone. After extracting the contents of the phone, he used software to examine the data. The software categorized the data, and one of the categories was "user profiles." Before the end of the day, Warrington provided Newell with the name of the phone's user: Jake J. McGovern.

The software also pulled together anything identified as a possible image and placed it in a gallery. Warrington searched all imagery on the device by clicking on the tab for photographs. None of the images appeared to be taken through a window or a missing blind slat. He did not locate any photographs taken during the September 25, 2018, event.

The following day, Warrington performed an additional extraction of the phone. In the images folder, Warrington found imagery of women in a state of undress. Those images appeared to be "thumbnails" from videos on the device. Warrington selected a tab in the software for videos and tried to match the thumbnails to a video based on file names.

After observing women in a state of undress, Warrington reviewed the phone's "search web history." He explained, based on his training and experience, that law enforcement will find files or search history associated with a possible crime that the user could be committing. Warrington located several items such as "spy bathroom" and "voyeur bathroom," which were consistent with unlawful intrusion.

Because Warrington observed women in a state of undress, which was consistent with what one could be looking for in the offense of unlawful intrusion, he continued to examine the videos on the phone. Warrington observed imagery of a woman who appeared to be nude and sleeping. One video showed a woman who appeared to be sexually assaulted while unconscious. Some of the videos had "2017" in the title, indicating a possibility that the video was recorded in 2017.

After watching the videos, Warrington was aware that a potential sexual assault was involved. He next tried to identify the victim and to determine whether the event occurred in Kearney. To make the identification, Warrington testified: "I began looking at the complete totality of all of the data associated with the video and image files which consisted of, yes, the date and time stamps. It consisted of the metadata. It consisted of the files themselves." He used that information to determine whether the date and time stamps could be accurate. Warrington then examined communication that may have occurred during the timeframe that the videos and images had been produced and located text messages and communication with a particular woman prior to that incident. Warrington testified that there was a "[p]ossibility" that he could have validated the date stamps prior to playing the videos.

Law enforcement identified the possible victim as K.S., a woman who lived in Grand Island, ...