State v. Jenkins
| Citation | 884 N.W.2d 429,294 Neb. 684 |
| Decision Date | 09 September 2016 |
| Docket Number | No. S-14-1087.,S-14-1087. |
| Parties | State of Nebraska, appellee, v. Erica A. Jenkins, appellant. |
| Court | Supreme Court of Nebraska |
294 Neb. 684
884 N.W.2d 429
State of Nebraska, appellee,
v.
Erica A. Jenkins, appellant.
No. S-14-1087.
Supreme Court of Nebraska.
Filed September 9, 2016.
Beau G. Finley, of Finley & Kahler Law Firm, P.C., L.L.O., and Sean M. Conway, of Dornan, Lustgarten & Troia, P.C., L.L.O., Omaha, for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust, Lincoln, for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel, and Stacy, JJ., and Moore, Chief Judge.
Stacy, J.
I. SUMMARY OF CASE
Following a jury trial, Erica A. Jenkins was convicted of two counts of robbery. She was sentenced to consecutive terms of 30 to 50 years' imprisonment. This is her direct appeal.
Several issues are assigned as error, but the primary issue presented is whether the State's acquisition of Jenkins' cell phone records from her service provider amounted to a search under the U.S. and Nebraska Constitutions. We find Jenkins had no reasonable expectation of privacy in these records, and
we conclude the State's acquisition of those records was not a search implicating the Fourth Amendment. We find no merit to Jenkins' remaining assignments of error, and we affirm her convictions and sentences.
II. FACTS
On August 11, 2013, the bodies of two men were found in a pickup truck near a park in Omaha, Nebraska. The men had each been shot in the head, the pockets in their pants had been turned inside out, and their wallets were missing. The men were later identified as Juan Uribe-Pena and Jorge Cajiga-Ruiz.
A palmprint found on the pickup truck led police to Christine Bordeaux, who was the State's main witness at trial. Bordeaux testified that on the evening of August 10, 2013, Jenkins' brother, Nikko Jenkins (Nikko), suggested a plan for Bordeaux and Jenkins to lure men to a place where Nikko would rob them. According to Bordeaux, she and Jenkins agreed to “hit a lick” or “go do a robbery” with Nikko. When asked at trial whether she had any doubt that Jenkins knew the entire night “was about getting money and robbing guys,” Bordeaux responded, “There's no doubt, no.”
Bordeaux testified that she and Jenkins left with Nikko that night and that he drove them to an Omaha bar. Nikko dropped the women off and parked nearby. The women were approached by some men in a pickup truck who asked whether the women “wanted to party.” Bordeaux and Jenkins got into the pickup, and the men drove them to an Omaha apartment. Once inside the apartment, Bordeaux asked the men whether they had any money. One of the men told her not to worry, “he was gonna have another friend come and bring his money, possibly up to $1,000.” Jenkins then went into the bathroom to call Nikko on her cell phone. About 30 minutes later,
Bordeaux and Jenkins left the apartment with two of the men to buy more alcohol and pick up another woman. Bordeaux testified she wanted to “get them out of the apartment” and
“go to the store ... so Nikko could rob 'em.” They left the apartment in a white pickup truck driven by one of the men. Bordeaux rode in the front passenger seat of the pickup, and Jenkins sat immediately behind her. Nikko followed the pickup in another vehicle.
When the pickup stopped at the end of a road near a park, Nikko approached with a gun and knocked on a window of the pickup. Bordeaux and Jenkins got out of the pickup. Nikko then demanded money from the men, shot them, and took their wallets. According to Bordeaux, Nikko first shot the man in the back seat and then shot the driver, who had moved over to the passenger side of the pickup when he saw Nikko. After the second shot, Jenkins screamed and ran. Bordeaux and Jenkins waited in Nikko's car while he gathered the shell casings. Nikko eventually returned to the car carrying two wallets and two shell casings.
After the shootings, Nikko drove Bordeaux and Jenkins to a motel in Council Bluffs, Iowa, so they could switch vehicles and change clothes. According to Bordeaux, after they changed clothes, she and Nikko waited in the motel parking lot in another vehicle while Jenkins tried to fix the taillights on her vehicle. When a police cruiser pulled into the motel parking lot, Nikko and Bordeaux drove away.
A Council Bluffs police officer testified he was patrolling the motel parking lot at about 3:40 a.m. and contacted a black female in a vehicle registered to Jenkins. She told the officer she was having car trouble and explained her cousin had just pulled out of the parking lot in another vehicle.
A cell phone found under the body of one of the victims led police to Jose Oscar Ramirez-Martinez. Ramirez-Martinez testified he was with the two victims, Uribe-Pena and Cajiga-Ruiz, at an Omaha bar a few hours before the shooting. According to Ramirez-Martinez, he and the two victims met two women at the bar and eventually left with the women to go to Uribe-Pena's apartment. Ramirez-Martinez described one woman as “white” and “blonde” and the other as “dark” and
“thin.” He testified the thin woman went into the bathroom upon arriving at the apartment. Ramirez-Martinez testified he was in the apartment about 10 minutes before leaving to get more money. After leaving the apartment, Ramirez-Martinez received a call from Uribe-Pena telling him they were driving with the women to find another female friend. Ramirez-Martinez tried calling Uribe-Pena several times after that, but received no answer. He later learned Uribe-Pena and Cajiga-Ruiz had been killed.
Eventually, Jenkins was arrested and charged with two counts of robbery and one count of criminal conspiracy. The information also alleged Jenkins was a habitual criminal. In a separate case, Nikko was charged with, and convicted of, two counts of first degree murder in connection with the deaths of Uribe-Pena and Cajiga-Ruiz.
After her arrest, Jenkins disclosed her cell phone number to police. Police then obtained, from Jenkins' cellular service provider, certain cell phone records associated with that number. The records included subscriber information and user activity for connections to and from the account around the time of the crime, including records regarding cellular site and sector information. Police did not request or obtain production of the content of any communications or files stored for the account.
The cell phone records showed that calls involving Jenkins' cell phone occurred at 1:33, 1:54, and 2:09 a.m. and were routed through a cell tower one block from Uribe-Pena's apartment. A call from Jenkins' cell phone at 2:17 a.m. was routed through a cell tower near the crime scene. And multiple calls from Jenkins' cell phone made between 3:46 and 3:53 a.m. were routed through a cell tower located in Council Bluffs. As such, the records provided evidence that Jenkins' cell phone was near the crime scene during the relevant timeframe and provided evidence that corroborated witness testimony of Jenkins' whereabouts before and after the crime occurred.
Prior to trial, Jenkins moved to suppress the cell phone records. She argued the State obtained the records pursuant to a search warrant that was not supported by probable cause and thereby violated her rights under the Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution. The district court held a hearing on the motion and took the matter under advisement.
The next day, while the suppression motion was still under advisement, the State obtained another search warrant for the same cell phone records, this time supported by an affidavit which more precisely described Jenkins' involvement and her use of the cell phone at the time of the crimes. The cellular service provider again produced the requested cell phone records, and Jenkins filed a supplemental motion to suppress. At the hearing on the supplemental motion, Jenkins did not argue the affidavit supporting the second search warrant lacked probable cause, but instead argued the State had impermissibly supplemented its affidavit.
The district court denied both the original and supplemental motions to suppress. The court relied on our opinion in State v. Knutson1 to find that Jenkins had no reasonable expectation of privacy in the cell phone records and thus concluded police did not conduct a search implicating the Fourth Amendment when officers obtained the records. Alternatively, the district court found that even if a search under the U.S. and Nebraska Constitutions occurred, the second search warrant was supported by probable cause.
Following a jury trial, Jenkins was found guilty of two counts of robbery. The jury could not reach a unanimous verdict on the separate count of criminal conspiracy. After an enhancement hearing at which the court found Jenkins to be a habitual criminal, she was sentenced to consecutive prison terms of 30 to 50 years on each robbery count. Jenkins timely
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