State v. Brown , 302 Neb. 53 ( 2019 )


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    302 Nebraska R eports
    STATE v. BROWN
    Cite as 
    302 Neb. 53
    State of Nebraska, appellee, v.
    Rolander L. Brown, appellant.
    ___ N.W.2d ___
    Filed January 18, 2019.   No. S-17-1039.
    1.	 Constitutional Law: Search and Seizure: Motions to Suppress:
    Appeal and Error. 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. Regarding histori-
    cal 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 indepen-
    dently of the trial court’s determination.
    2.	 Trial: Evidence: Appeal and Error. A trial court has the discretion to
    determine the relevancy and admissibility of evidence, and such deter-
    minations will not be disturbed on appeal unless they constitute an abuse
    of that discretion.
    3.	 Sentences: Appeal and Error. An appellate court will not disturb a
    sentence imposed within statutory limits absent an abuse of discretion
    by the trial court.
    4.	 Telecommunications: Records: Warrants: Probable Cause. The gov-
    ernment must generally obtain a warrant supported by probable cause
    before acquiring cell site location information from a wireless carrier.
    5.	 Constitutional Law: Search and Seizure: Evidence. The exclusion
    of evidence obtained in violation of the Fourth Amendment is not a
    personal constitutional right. Rather, the exclusionary rule operates as
    a judicially created remedy designed to safeguard Fourth Amendment
    rights generally through its deterrent effect.
    6.	 Constitutional Law: Search and Seizure: Police Officers and
    Sheriffs: Evidence. The exclusionary rule does not apply to evidence
    obtained by police in objectively reasonable reliance on a statute later
    found to be unconstitutional.
    7.	 Trial: Evidence. Evidence that is irrelevant is inadmissible.
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    STATE v. BROWN
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    302 Neb. 53
    8.	 Evidence. Evidence is relevant if it has any tendency to make the
    existence of any fact that is of consequence to the determination of
    the action more probable or less probable than it would be without
    the evidence.
    9.	 ____. Relevancy requires only that the probative value be something
    more than nothing.
    10.	 Rules of Evidence. Under Neb. Evid. R. 403, 
    Neb. Rev. Stat. § 27-403
    (Reissue 2016), relevant evidence may be excluded if its probative value
    is substantially outweighed by the danger of unfair prejudice.
    11.	 Evidence: Words and Phrases. Unfair prejudice means an undue tend­
    ency to suggest a decision based on an improper basis.
    12.	 ____: ____. Unfair prejudice speaks to the capacity of some concededly
    relevant evidence to lure the fact finder into declaring guilt on a ground
    different from proof specific to the offense charged, commonly on an
    emotional basis.
    13.	 Sentences: Appeal and Error. Where a sentence imposed within the
    statutory limits is alleged on appeal to be excessive, the appellate court
    must determine whether a sentencing court abused its discretion in con-
    sidering and applying the relevant factors as well as any applicable legal
    principles in determining the sentence to be imposed.
    14.	 Sentences. In determining a sentence to be imposed, relevant factors
    customarily considered and applied are the defendant’s (1) age, (2) men-
    tality, (3) education and experience, (4) social and cultural background,
    (5) past criminal record or record of law-abiding conduct, and (6) moti-
    vation for the offense, as well as (7) the nature of the offense and (8) the
    amount of violence involved in the commission of the crime.
    15.	 ____. The appropriateness of a sentence is necessarily a subjective judg-
    ment and includes the sentencing judge’s observation of the defendant’s
    demeanor and attitude and all the facts and circumstances surrounding
    the defendant’s life.
    16.	 ____. Generally, it is within a trial court’s discretion to direct that
    sentences imposed for separate crimes be served either concurrently or
    consecutively.
    Appeal from the District Court for Douglas County: James T.
    Gleason, Judge. Affirmed.
    Thomas C. Riley, Douglas County Public Defender, for
    appellant.
    Douglas J. Peterson, Attorney General, and Melissa R.
    Vincent for appellee.
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    STATE v. BROWN
    Cite as 
    302 Neb. 53
    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 informa-
    tion. We find that the district court did not err in denying
    Brown’s motion to suppress and that Brown’s other assign-
    ments 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 gun-
    shot 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 evi-
    dence 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.
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    STATE v. BROWN
    Cite as 
    302 Neb. 53
    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 com-
    municating 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” loca-
    tion 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 side-
    walk 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 build-
    ing 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
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    STATE v. BROWN
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    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 infor-
    mation, 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.
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    STATE v. BROWN
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    302 Neb. 53
    Brown appealed his convictions and sentences. We sub-
    sequently 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
    [1] When reviewing a trial court’s ruling on a motion to sup-
    press 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 find-
    ings 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 deter-
    mination. 
    Id.
    [2] 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).
    [3] 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 enforce-
    ment violated his Fourth Amendment rights. Brown argues the
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    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 enforce-
    ment 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 gov-
    ernment 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 reason-
    able 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 submit-
    ted 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 show-
    ing that there are reasonable grounds to believe that the
    records or other information sought are relevant and material
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    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 rights.
    The district court denied Brown’s suppression motion, find-
    ing that the result was controlled by Jenkins, 
    supra.
     Jenkins,
    which was released a few months after law enforcement
    obtained the CSLI in this case, held that individuals do not
    have a reasonable expectation of privacy in CSLI and that thus,
    the acquisition of CSLI does not implicate, let alone violate,
    the Fourth Amendment.
    [4] While this case was on appeal, however, the U.S.
    Supreme Court concluded in Carpenter v. U.S., ___ U.S. ___,
    
    138 S. Ct. 2206
    , 
    201 L. Ed. 2d 507
     (2018), that individuals do
    have a reasonable expectation of privacy in the record of physi-
    cal movements captured by CSLI. Based on this conclusion,
    the Court held that “the Government must generally obtain a
    warrant supported by probable cause before acquiring such
    records.” 
    Id.,
     
    138 S. Ct. at 2221
    .
    As the State is forced to concede, our decision in Jenkins
    was effectively overruled by Carpenter. And, without the ben-
    efit of Jenkins, the State also concedes that the acquisition of
    CSLI without a warrant supported by probable cause violated
    Brown’s Fourth Amendment rights.
    The fact that Brown’s Fourth Amendment rights were vio-
    lated, however, does not necessarily mean that it was error
    for the district court to deny Brown’s motion to suppress. See
    Herring v. United States, 
    555 U.S. 135
    , 141, 
    129 S. Ct. 695
    ,
    
    172 L. Ed. 2d 496
     (2009) (explaining that application of the
    exclusionary rule is not “a necessary consequence of a Fourth
    Amendment violation”). Indeed, the U.S. Supreme Court has
    observed that the exclusionary rule is to be a “last resort” and
    not a “first impulse.” Hudson v. Michigan, 
    547 U.S. 586
    , 591,
    
    126 S. Ct. 2159
    , 
    165 L. Ed. 2d 56
     (2006). We thus proceed to
    the question of whether the exclusionary rule applies here.
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    [5] The exclusion of evidence obtained in violation of the
    Fourth Amendment is “‘not a personal constitutional right.’”
    Davis v. United States, 
    564 U.S. 229
    , 236, 
    131 S. Ct. 2419
    ,
    
    180 L. Ed. 2d 285
     (2011), quoting Stone v. Powell, 
    428 U.S. 465
    , 
    96 S. Ct. 3037
    , 
    49 L. Ed. 2d 1067
     (1976). Rather,
    the exclusionary rule operates as a judicially created remedy
    designed to safeguard Fourth Amendment rights generally
    through its deterrent effect. State v. Hoerle, 
    297 Neb. 840
    ,
    
    901 N.W.2d 327
     (2017). With this purpose in mind, the U.S.
    Supreme Court has recognized a number of circumstances
    in which application of the exclusionary rule would not suf-
    ficiently deter Fourth Amendment violations and thus the rule
    does not apply. See, e.g., Davis, 
    supra
     (exclusionary rule does
    not apply when officers conduct search in objectively reason-
    able reliance on binding appellate precedent); Herring, 
    supra
    (exclusionary rule does not apply where officers reasonably
    relied on incorrect information in warrant database); United
    States v. Leon, 
    468 U.S. 897
    , 
    104 S. Ct. 3405
    , 
    82 L. Ed. 2d 677
     (1984) (exclusionary rule does not apply when police con-
    duct search in objectively reasonable reliance on warrant later
    held invalid).
    [6] One circumstance recognized to not trigger the exclu-
    sionary rule is of particular relevance to this case. In Illinois v.
    Krull, 
    480 U.S. 340
    , 
    107 S. Ct. 1160
    , 
    94 L. Ed. 2d 364
     (1987),
    the U.S. Supreme Court held that the exclusionary rule did not
    apply to evidence obtained by police in objectively reasonable
    reliance on a statute later found to be unconstitutional. As the
    Court explained, unless a statute is “clearly unconstitutional,”
    application of the exclusionary rule when the officer acts in
    reliance on a statute would not serve the purpose of deterring
    Fourth Amendment violations “[i]f the statute is subsequently
    declared unconstitutional, excluding evidence obtained pur-
    suant to it prior to such a judicial declaration will not deter
    further Fourth Amendment violations by an officer who has
    simply fulfilled his responsibility to enforce the statute as writ-
    ten.” 
    480 U.S. at 349, 350
    .
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    We have previously followed Krull, declining to apply the
    exclusionary rule when officers obtained evidence in reason-
    able reliance on a statute later declared unconstitutional. See
    Hoerle, 
    supra.
    The rationale for not applying the exclusionary rule in
    Krull applies with full force here. As summarized above, law
    enforcement obtained the CSLI without first securing a war-
    rant supported by probable cause, but did so as authorized
    by the Stored Communications Act. It cannot be said that by
    doing so, law enforcement relied on a statute that was clearly
    unconstitutional. At the time officers obtained the CSLI in this
    case, many courts had held, as we did in State v. Jenkins, 
    294 Neb. 684
    , 
    884 N.W.2d 429
     (2016), that CSLI did not implicate
    Fourth Amendment protection. See, e.g., U.S. v. Graham, 
    824 F.3d 421
     (4th Cir. 2016) (en banc); U.S. v. Davis, 
    785 F.3d 498
     (11th Cir. 2015) (en banc); In re U.S. for Historical Cell
    Site Data, 
    724 F.3d 600
     (5th Cir. 2013). And, in Carpenter v.
    U.S., ___ U.S. ___, 
    138 S. Ct. 2206
    , 2214, 
    201 L. Ed. 2d 507
    (2018), while the U.S. Supreme Court ultimately reached a
    contrary conclusion, it acknowledged that the question did “not
    fit neatly under existing precedents.”
    By obtaining the CSLI in this case under the Stored
    Communications Act and without the benefit of the U.S.
    Supreme Court’s not-yet-issued decision in Carpenter, officers
    were merely following the statute as written. That is not the
    type of police activity the exclusionary rule seeks to deter. See
    Davis v. United States, 
    564 U.S. 229
    , 241, 
    131 S. Ct. 2419
    , 
    180 L. Ed. 2d 285
     (2011), quoting Leon, 
    supra
     (“the harsh sanction
    of exclusion ‘should not be applied to deter objectively reason-
    able law enforcement activity’”).
    We are hardly the first court to conclude that CSLI obtained
    under the Stored Communications Act prior to Carpenter is not
    subject to exclusion. Many other courts have found the same,
    and Brown has not directed us to any that concluded otherwise.
    See, e.g., U.S. v. Curtis, 
    901 F.3d 846
     (7th Cir. 2018); U.S. v.
    Joyner, 
    899 F.3d 1199
     (11th Cir. 2018); U.S. v. Chavez, 894
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    F.3d 593 (4th Cir. 2018); U.S. v. Chambers, No. 16-163-cr,
    
    2018 WL 4523607
     (2d Cir. Sept. 21, 2018).
    Finally, we note that Brown’s only argument against the
    application of the exclusionary rule is misplaced. Brown con-
    tends that the State should not be able to argue for the first
    time on appeal that an exception to the exclusionary rule
    applies. Brown argues that he may have been able to intro-
    duce factual evidence that would indicate law enforcement
    officers did not act reasonably in this case and that thus, the
    exclusionary rule should apply. Brown claims he did not place
    such evidence into the record at the district court because the
    State did not assert there that the exclusionary rule should
    not apply even if Brown’s Fourth Amendment rights were
    violated. But, in fact, the State did make such an assertion in
    the district court. The State primarily argued that there was no
    Fourth Amendment violation, but counsel for the State also
    argued at a hearing on Brown’s motion to suppress that even
    if the Fourth Amendment were violated, the exclusionary rule
    should not apply, because the officers acted in good faith.
    While it is not clear to us what evidence Brown could have
    offered to negate the applicability of Illinois v. Krull, 
    480 U.S. 340
    , 
    107 S. Ct. 1160
    , 
    94 L. Ed. 2d 364
     (1987), under these
    circumstances, Brown cannot point us to any such evidence,
    nor can he claim that he lacked the opportunity to present it to
    the district court.
    For these reasons, we find that even though the acquisition
    of CSLI violated Brown’s Fourth Amendment rights, the dis-
    trict court did not err by denying Brown’s motion to suppress.
    Stored Communications Act.
    In addition to his Fourth Amendment argument, Brown
    contends that the CSLI should have been suppressed for
    another reason. Brown contends that the affidavit submitted
    in support of the court order failed to establish reasonable
    grounds to believe that the CSLI was relevant and material to
    an ongoing criminal investigation, as required by the Stored
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    Communications Act. Once again, we find that Brown’s argu-
    ment lacks merit.
    We need not analyze the affidavit or the showing required
    under the Stored Communications Act in order to dispose of
    Brown’s argument. This is so because even assuming the affi-
    davit failed to make the required showing under the Stored
    Communications Act, it does not follow that the CSLI should
    have been suppressed.
    The Stored Communications Act provides a number of spe-
    cific remedies for violations thereof, but suppression of evi-
    dence in a criminal case is not one of them. See 
    18 U.S.C. § 2707
    (b) and (d). Additionally, the act provides that the
    listed remedies are exclusive. 
    18 U.S.C. § 2708
    . On this basis,
    many courts have found that suppression is not an available
    remedy even if evidence is obtained in violation of the act.
    See, e.g., U.S. v. Gasperini, 
    894 F.3d 482
     (2d Cir. 2018); U.S.
    v. Guerrero, 
    768 F.3d 351
     (5th Cir. 2014); U.S. v. Clenney,
    
    631 F.3d 658
     (4th Cir. 2011); U.S. v. Perrine, 
    518 F.3d 1196
    (10th Cir. 2008); U.S. v. Madison, 
    643 Fed. Appx. 886
     (11th
    Cir. 2016).
    We agree that suppression is not an available remedy for a
    violation of the Stored Communications Act, and we thus find
    no merit to Brown’s argument that the evidence should have
    been suppressed.
    Stamps’ Testimony.
    Brown next argues the district court erred by allowing
    Stamps to testify that months before trial, he and his girlfriend
    were shot, and that as a result, he suffered serious injury and
    his girlfriend died. Brown argues that this evidence was irrel-
    evant and that even if it were relevant, it should have been
    excluded under Neb. Evid. R. 403, 
    Neb. Rev. Stat. § 27-403
    (Reissue 2016), because its probative value was outweighed
    by the danger of unfair prejudice. Brown argues the district
    court committed reversible error by allowing the testimony.
    We disagree.
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    [7-9] Evidence that is irrelevant is inadmissible. Neb. Evid.
    R. 402, 
    Neb. Rev. Stat. § 27-402
     (Reissue 2016); Lindsay
    Internat. Sales & Serv. v. Wegener, 
    301 Neb. 1
    , 
    917 N.W.2d 133
     (2018). Evidence is relevant if it has “any tendency to
    make the existence of any fact that is of consequence to the
    determination of the action more probable or less probable than
    it would be without the evidence.” Neb. Evid. R. 401, 
    Neb. Rev. Stat. § 27-401
     (Reissue 2016). The bar for establishing
    relevance is not a high one. Relevancy requires only that the
    probative value be “‘something more than nothing.’” Lindsay
    Internat. Sales & Serv., 
    301 Neb. at 16
    , 917 N.W.2d at 144.
    We will not reverse a trial court’s determination regarding the
    relevancy of evidence unless it constitutes an abuse of discre-
    tion. See id.
    Some background regarding Stamps’ cooperation in this
    case is pertinent to the analysis. Stamps’ cooperation with law
    enforcement in the investigation of Brown was inconsistent. It
    began in July 2016 while Stamps was under arrest and being
    questioned for an unrelated homicide. At that time, Stamps
    offered to provide information regarding the death of Alonzo in
    exchange for a bond reduction. According to Stamps, he pro-
    vided some information implicating Brown in Alonzo’s death,
    but not all the information he could have provided. Stamps
    received a bond reduction and was released from jail.
    Stamps later came to regret this act of cooperation. Stamps
    attended Brown’s preliminary hearing with several of Brown’s
    other friends. At the hearing, the officer to whom Stamps had
    provided information implicating Brown identified Stamps as a
    source of information regarding Brown’s involvement. Stamps
    responded by executing an affidavit denying the statements the
    officer had attributed to him and threatened to sue the officer
    for defamation. Stamps testified that he signed the affidavit in
    an attempt to be “loyal” to Brown.
    Stamps would reverse course again, however. He testified
    that on January 26, 2017, he and his girlfriend were shot as
    they sat in a car, and that as a result, he was injured and his
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    girlfriend died. Stamps testified that after he was released
    from the hospital, he came to law enforcement and indicated
    a desire to “cooperate on everything that I knew, clear my
    conscience.”
    The State argued in the district court and now argues on
    appeal that the fact that Stamps was shot is relevant because it
    explains why he testified against Brown after initially claiming
    that an officer defamed him by claiming he offered informa-
    tion against Brown. According to the State, Stamps’ experience
    as a victim of gun violence prompted a desire to “clear [his]
    conscience” and thus was relevant to his credibility. Although
    Stamps does not appear to have explicitly testified that his ulti-
    mate decision to testify against Brown was influenced by being
    shot, that can be fairly implied from his testimony.
    We believe the district court did not abuse its discretion by
    finding such testimony to be relevant. Stamps wavered between
    providing partial information to law enforcement regarding
    Brown’s involvement in Alonzo’s death, to denying having
    provided any information at all, to providing a fuller account
    of Brown’s involvement. The fact that he was shot provided
    an explanation for his ultimate decision to testify, and thus the
    district court did not abuse its discretion by finding it to be
    relevant to his credibility.
    [10-12] We also conclude that the district court did not
    abuse its discretion by finding that the testimony was not
    subject to exclusion under rule 403. Under rule 403, relevant
    evidence may be excluded if its probative value is substantially
    outweighed by the danger of unfair prejudice. State v. Tucker,
    
    301 Neb. 856
    , 
    920 N.W.2d 680
     (2018). Unfair prejudice means
    an undue tendency to suggest a decision based on an improper
    basis. 
    Id.
     It speaks to the capacity of some concededly relevant
    evidence to lure the fact finder into declaring guilt on a ground
    different from proof specific to the offense charged, commonly
    on an emotional basis. 
    Id.
    Brown argues that even if the fact that Stamps and his girl-
    friend were shot were relevant to his credibility, any relevance
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    was outweighed by the danger of unfair prejudice. Brown
    argues that upon hearing the testimony that Stamps and his
    girlfriend were shot, the jury would assume that Brown or his
    associates were responsible. The district court, however, spe-
    cifically instructed the jury that there was no evidence Brown
    was involved in the shooting and that the evidence was not
    being offered for this purpose. The district court’s instruction
    was as follows:
    [Y]ou’re going to hear some testimony on a line of ques-
    tioning that relates to an event in . . . Stamps’ life. It’s
    being offered for the limited [purpose] of showing the
    effect that that event had on . . . Stamps. There is no evi-
    dence of and there is no suggestion by the State that the
    event you’re going to hear described had anything at all
    to do with the defendant, . . . Brown, in any manner or in
    any fashion. This is evidence that you are to hear solely
    for the limited purpose . . . of the effect of this event on
    the witness, . . . Stamps.
    In its final jury instructions, the district court again instructed
    the jury regarding evidence received for a limited purpose, stat-
    ing, “During the trial, I called your attention to some evidence
    that was received for a specific limited purpose. You must con-
    sider that . . . evidence only for those limited purposes and for
    no other reason.”
    We have recently held that while a limiting instruction or an
    instruction to disregard does not automatically eliminate any
    risk of unfair prejudice, such an instruction can sufficiently
    mitigate the risk of unfair prejudice in a particular case. See
    State v. Rocha, 
    295 Neb. 716
    , 
    890 N.W.2d 178
     (2017). In
    Rocha, we held that the district court did not abuse its discre-
    tion in admitting opinion statements made by a law enforce-
    ment officer in a recorded interview of the defendant. We
    noted that the officer’s statements had minimal probative value
    and that they “carr[ied] a special risk of unfair prejudice.” 
    Id. at 744
    , 890 N.W.2d at 201. Even so, we held that the district
    court did not abuse its discretion by admitting the statements.
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    We pointed to instructions from the trial court, in which it
    informed the jury that it should not consider the officer’s
    statements as substantive evidence and that they should not be
    given weight in determining the truthfulness of the defendant’s
    statements in response. We held these instructions mitigated
    the risk of unfair prejudice. 
    Id.
    For similar reasons, we reach the same conclusion here.
    The district court did not allow the State to introduce evi-
    dence suggesting Brown had anything to do with the shoot-
    ing of Stamps and his girlfriend. And to the extent any juror
    was inclined to speculate about Brown’s involvement, the
    district court’s instruction informed jurors that there was “no
    evidence” and “no suggestion” Brown had anything to do
    with the shooting and that jurors were to consider Stamps’
    testimony only for the effect the incident had on him. We
    believe these instructions mitigated the risk of unfair prejudice
    and thus cannot say the district court abused its discretion by
    admitting the testimony.
    Excessive Sentences.
    Lastly, we address Brown’s claim that he received excessive
    sentences. He does not dispute that the sentences imposed were
    within statutory limits for his respective offenses. Rather, he
    argues that the district court did not adequately account for his
    difficult upbringing in fashioning his sentences.
    [13-16] Where a sentence imposed within the statutory
    limits is alleged on appeal to be excessive, the appellate court
    must determine whether a sentencing court abused its discre-
    tion in considering and applying the relevant factors as well
    as any applicable legal principles in determining the sentence
    to be imposed. State v. Tucker, 
    301 Neb. 856
    , 
    920 N.W.2d 680
    (2018). Relevant factors customarily considered and applied
    are the defendant’s (1) age, (2) mentality, (3) education and
    experience, (4) social and cultural background, (5) past crimi-
    nal record or record of law-abiding conduct, and (6) motiva-
    tion for the offense, as well as (7) the nature of the offense
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    and (8) the amount of violence involved in the commission of
    the crime. 
    Id.
     The appropriateness of a sentence is necessar-
    ily a subjective judgment and includes the sentencing judge’s
    observation of the defendant’s demeanor and attitude and all
    the facts and circumstances surrounding the defendant’s life.
    
    Id.
     And generally, it is within a trial court’s discretion to direct
    that sentences imposed for separate crimes be served either
    concurrently or consecutively. State v. Leahy, 
    301 Neb. 228
    ,
    
    917 N.W.2d 895
     (2018).
    Having reviewed the record, we cannot say that the district
    court abused its discretion in sentencing Brown. The district
    court stated that in sentencing Brown, it had considered,
    among other things, a presentence investigation report and
    a sentencing memorandum provided by Brown’s counsel.
    Both the report and the sentencing memorandum provided
    background on Brown’s difficult upbringing. We thus have
    no reason to believe that the district court failed to consider
    Brown’s upbringing along with other factors in its sentencing
    calculus. Those other factors, however, would include the fact
    that Brown had been previously convicted of three felonies
    and was found responsible for a shooting that left a man
    dead. In light of the relevant sentencing factors, we conclude
    that the district court did not abuse its discretion in sentenc-
    ing Brown.
    CONCLUSION
    We conclude that the district court did not err in denying
    Brown’s motion to suppress, in admitting the testimony that
    Stamps and his girlfriend were shot, or in sentencing Brown.
    Consequently, we affirm.
    A ffirmed.