State v. Goynes, S-18-135.

• Decision Date: 17 May 2019
• Docket Number: No. S-18-135.,S-18-135.
• Citation: 927 N.W.2d 346,303 Neb. 129
• Parties: STATE of Nebraska, appellee, v. Michael E. GOYNES, Jr., appellant.
• Court: Nebraska Supreme Court

303 Neb. 129

927 N.W.2d 346

STATE of Nebraska, appellee,

v.Michael E. GOYNES, Jr., appellant.

No. S-18-135.

Supreme Court of Nebraska.

Filed May 17, 2019.

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

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

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

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.

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 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 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. Cahill supported his assertion by explaining:

From training, experience and research Affiant Officer is aware that the data on cell phones can provide invaluable insight for criminal investigations. Cell phones are used for communication, access to information, socialization, research, entertainment, shopping and other functionality. In addition to personal use, cell phones are often used as tools in criminal activity. Affiant Officer is aware of numerous instances where cell phones were used by participants in crimes to communicate via voice and text messaging, occasions when they took photographs of themselves with weapons and/or illegal narcotics, times when they created videos of their criminal activity and instances when the Internet was used to research crimes they participated in, just to name a few. As such a cell phone can serve both as an instrument for committing a crime, as well as a storage medium for evidence of the crime.

Cell phone data can assist investigators in determining the culpability of participants in criminal investigations. This is because the data can potentially provide a wealth of information that can assist in determining the motivation, method and participants involved in an incident. Information on the devices can provide invaluable insight to the who, what, when, where and why an incident occurred.

Cahill continued by explaining the kind of information the listed types of cell phone data could provide to investigators.

The county court found probable cause to support the warrant and granted Cahill’s application. In the warrant, the court identified the warrant was in relation to the Williams’ homicide and authorized the search of the cell phone data described in the affidavit, including: cell phone information and configurations; user account information; call logs; contact lists; short and multimedia messaging service messages; chat and instant messages; email messages; installed applications and their corresponding data; media files such as images, videos, audio, and document files; internet browsing history; cell tower connections; global positioning system fixes, waypoints, routes, and tracks; Wi-Fi, Bluetooth, and synchronization connection history; memorandums and notes; user dictionary; and calendar information.

A subsequent application seeking the cell phone records from Goynes’ cell phone provider was also granted but is not at issue in the instant appeal.

Goynes was charged with 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.

Prior to trial, Goynes filed a motion to suppress all evidence obtained from the search of his cell phone records for the reason that such search was conducted in violation of the 4th, 5th, and 14th Amendments to the U.S. Constitution and article I, §§ 3, 7, 11, and 12 of the Nebraska Constitution. A hearing was held on the motion, and the district court clarified with Goynes that his motion was for both the cell phone records and the contents of his cell phone. The search warrant applications, affidavits, warrants, and other evidence were received as exhibits for the motion to suppress.

Cahill testified during the hearing and explained...