State v. Brown

• Decision Date: 18 January 2019
• Docket Number: No. S-17-1039.,S-17-1039.
• Citation: 302 Neb. 53,921 N.W.2d 804
• Parties: STATE of Nebraska, Appellee, v. Rolander L. BROWN, Appellant.
• Court: Nebraska Supreme Court

302 Neb. 53

921 N.W.2d 804

STATE of Nebraska, Appellee,

v.Rolander L. BROWN, Appellant.

No. S-17-1039.

Supreme Court of Nebraska.

Filed January 18, 2019

Thomas C. Riley, Douglas County Public Defender, 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.

Papik, J.

Following 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. We affirm.

BACKGROUND

In the 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.

Brown’s Motion to Suppress.

As part 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 wireless carrier. The records included cell site location information (CSLI), the details of which are discussed below.

Brown moved to suppress the CSLI on the ground that the State obtained it in violation of his Fourth Amendment rights. The district court denied the motion to suppress.

Trial Evidence.

At trial, the State introduced evidence indicating that Alonzo was shot outside the residence of Doloma Curtis. Both Alonzo and Brown were dating Curtis at the time. Cell phone records introduced into evidence showed that Brown was communicating with Curtis via text message late in the evening of May 27, 2016, into the early morning hours of May 28. Cell phone records also showed that Curtis did not answer several calls from Brown after 1 a.m. The last such call was made at 2:23 a.m. CSLI from Brown’s cell phone records indicated that Brown was in the area of 20th and Lake Streets when he made that call.

At approximately 2:24 a.m., Omaha’s "ShotSpotter" location system detected a single gunshot in the vicinity of Curtis’ home. Officers were dispatched to Curtis’ home. When they arrived, they found Alonzo lying on his back on the sidewalk with a single gunshot wound to the head. During a subsequent search of the area, officers found a single Smith & Wesson .40-caliber shell casing in the grass not far from Alonzo’s body.

Surveillance video from a nearby convenience store showed a sedan, which appeared to be missing the hubcap on its front passenger-side tire, back into a parking space near the building at 2:21 a.m. A male exited the car and headed toward Curtis’ residence. The male ran back from the direction of Curtis’ residence a few minutes later and drove out of the parking lot. Evidence at trial indicated that Brown had access to and drove a sedan that did not have a hubcap on its front passenger-side tire.

The State also relied heavily on the testimony of Parris Stamps. Stamps was a friend of Brown’s. At the time of Alonzo’s death, Stamps lived near 40th and Boyd Streets with another friend of Brown’s, James Nelson. Stamps testified that in the early morning hours of May 28, 2016, Brown arrived at the house where Stamps and Nelson lived. According to Stamps, Brown told him and Nelson that he had just come from Curtis’ house, that he had been in an altercation with Alonzo, and that he "had to put [Alonzo] down." Stamps testified that Brown then pulled out a black Smith & Wesson .40-caliber handgun and removed the clip, which was missing one bullet. Stamps testified that after Brown shared this information, the men were concerned that Brown was "hot." Based on this concern, they traveled to Brown’s apartment near 67th and Grover Streets to retrieve two firearms that belonged to Nelson.

Stamps was also allowed to testify, over Brown’s objection, that he and his girlfriend were shot in January 2017 and that as a result of the shooting, he was hospitalized and his girlfriend died. Prior to this testimony, the district court instructed the jury that there was no evidence that Brown was responsible for this shooting and that the jury was to consider this evidence only for the effect that it had on Stamps.

Brown’s cell phone records corroborated some elements of Stamps’ testimony. The cell phone records showed that Brown called Nelson at 2:25 and 2:26 a.m. They also showed that Brown was in the area of Nelson’s residence at approximately 2:34 a.m. Brown’s cell phone records also showed that Brown returned to his apartment near 67th and Grover Streets around 3:15 a.m.

Convictions and Sentences.

The jury found Brown guilty of second degree murder, possession of a firearm by a prohibited person, and use of a firearm to commit a felony. The district court sentenced Brown to 90 to 120 years’ imprisonment for second degree murder, 3 to 50 years’ imprisonment for possession of a firearm by a prohibited person, and 10 to 20 years’ imprisonment for use of a firearm to commit a felony. The district court ordered the sentence for possession of a firearm by a prohibited person to run concurrently with the sentence for second degree murder and the sentence for use of a firearm to commit a felony to run consecutively to the other two sentences.

Brown appealed his convictions and sentences. We subsequently granted his petition to bypass the Nebraska Court of Appeals.

ASSIGNMENTS OF ERROR

Brown assigns, restated, that the district court erred (1) by denying his motion to suppress, because the CSLI was obtained in violation of his Fourth Amendment rights; (2) by denying his motion to suppress, because the CSLI was obtained in violation of the Stored Communications Act; (3) by allowing Stamps to testify about being shot in January 2017; and (4) by imposing excessive sentences.

STANDARD OF REVIEW

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. State v. Barbeau, 301 Neb. 293, 917 N.W.2d 913 (2018). 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. Id.

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 that discretion. Lindsay Internat. Sales & Serv. v. Wegener, 301 Neb. 1, 917 N.W.2d 133 (2018).

An appellate court will not disturb a sentence imposed within statutory limits absent an abuse of discretion by the trial court. State v. Steele, 300 Neb. 617, 915 N.W.2d 560 (2018).

ANALYSIS

Fourth Amendment.

Brown contends that by obtaining CSLI from his cell phone without a warrant supported by probable cause, law enforcement violated his Fourth Amendment rights. Brown argues the district court thus erred by denying his motion to suppress. For the reasons set forth below, we disagree.

CSLI is generated by cell phone providers. Individual cell phones function by communicating with "cell sites," radio antennas that are mounted on towers and other structures. See Carpenter v. U.S., ––– U.S. ––––, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018). When a cell phone connects to a cell site, a time-stamped record is produced. This record is known as CSLI. See id. Because the cell phone will connect to the cell site with the best signal, CSLI can be used to determine the location of the cell phone when the connection was made. See id. Cell phone providers collect and store CSLI for their own purposes, but because it can be used to determine where a cell phone was at a particular time, it can be useful to law enforcement as well. See id.

In this case, law enforcement relied on the federal statute known as the Stored Communications Act, see 18 U.S.C. §§ 2701 to 2711 (2012 & Supp. V 2017), to request and obtain CSLI relating to the cell phone believed to be used by Brown. Under the Stored Communications Act, the government may obtain a court order that requires a cell phone provider to disclose a customer’s records if it can demonstrate "specific and articulable facts showing that there are reasonable grounds to believe [the information sought is] relevant and material to an ongoing criminal investigation." 18 U.S.C. § 2703(d). Section 2703(d) does not require the government to show probable cause. State v. Jenkins, 294 Neb. 684, 884 N.W.2d 429 (2016).

On May 31, 2016, a city of Omaha police officer submitted to the district court an application requesting an order compelling disclosure of CSLI pertaining to the cell phone believed to be used by Brown. The district court issued an order that same day finding that in the language of § 2703(d), the applicant "has offered specific and articulable facts showing that there are reasonable grounds to believe that the records or other information sought are relevant and material to an ongoing criminal investigation." The order compelled the cellular service provider to turn over the CSLI to the city of Omaha Police Department. Brown later moved to suppress the CSLI, contending that it was obtained in violation of his Fourth Amendment r...