State v. Short , 310 Neb. 81 ( 2021 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    10/15/2021 12:07 AM CDT
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. SHORT
    Cite as 
    310 Neb. 81
    State of Nebraska, appellee, v.
    Marcus L. Short, appellant.
    ___ N.W.2d ___
    Filed September 17, 2021.   No. S-19-415.
    1. Judgments: Speedy Trial: Appeal and Error. Generally, a trial court’s
    determination as to whether charges should be dismissed on speedy trial
    grounds is a factual question which will be affirmed on appeal unless
    clearly erroneous.
    2. Pretrial Procedure: Appeal and Error. Trial courts have broad dis-
    cretion with respect to sanctions involving discovery procedures, and
    their rulings thereon will not be reversed in the absence of an abuse
    of discretion.
    3. Constitutional Law: Search and Seizure: Motions to Suppress:
    Appeal and Error. In reviewing a trial court’s ruling on a motion to sup-
    press evidence based on a claimed violation of the Fourth Amendment,
    an appellate court applies a two-part standard of review. 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 indepen-
    dently of the trial court’s determination.
    4. Search Warrants: Affidavits: Probable Cause: Appeal and Error.
    An appellate court reviews the trial court’s findings as to whether the
    affidavit supporting the warrant contained falsehoods or omissions and
    whether those were made intentionally or with reckless disregard for the
    truth for clear error. An appellate court reviews de novo the determina-
    tion that any alleged falsehoods or omissions were not necessary to the
    probable cause finding.
    5. ____: ____: ____: ____. After-the-fact scrutiny by courts of the suf-
    ficiency of an affidavit should not take the form of de novo review.
    Instead, a judge’s determination of probable cause to issue a search war-
    rant should be paid great deference by reviewing courts.
    6. Search and Seizure. Application of the good faith exception to the
    exclusionary rule is a question of law.
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. SHORT
    Cite as 
    310 Neb. 81
    7. Constitutional Law: Speedy Trial. The right to a speedy trial is unique
    from other rights enshrined in the U.S. Constitution for the protection
    of the accused because there is a societal interest in providing a speedy
    trial, which exists separate from, and at times in opposition to, the inter-
    ests of the accused.
    8. Speedy Trial: Witnesses. The deprivation of the right to a speedy trial
    may work to the accused’s advantage when adverse witnesses become
    unavailable or their memories fade over time.
    9. Speedy Trial: Presumptions. Until there is some delay that is presump-
    tively prejudicial, there is no necessity for inquiry into the other factors
    that go into the balance in determining if the right to a speedy trial has
    been violated.
    10. Constitutional Law: Speedy Trial. Counsel cannot seek and obtain
    continuances to give the defense more time to be ready for trial because
    of the government’s dilatory behavior and then, after the fact, reverse
    course and claim that the indictment should be dismissed on the ground
    that the defendant’s right to a speedy trial under the U.S. Constitution
    has been infringed because of that behavior.
    11. Speedy Trial. A defendant cannot claim the loss of the fundamental
    right to a speedy trial through the inherent delays of a process the
    defendant has called upon—even if that process was to vindicate another
    fundamental right.
    12. Constitutional Law: Speedy Trial: New Trial: Appeal and Error.
    Absent extraordinary circumstances, an appellate court does not con-
    sider the entire period of time beginning with the original charge or
    arrest in computing the length of the delay when there has been a mis-
    trial. Instead, the constitutional speedy trial analysis focuses only on the
    period after the mandate for a new trial and the subsequent retrial.
    13. Speedy Trial. Only misconduct involving deliberate delay tactics
    designed to circumvent the right to a speedy trial is an extraordinary
    circumstance warranting consideration of the period of delay before
    a mistrial.
    14. Constitutional Law: Speedy Trial: Presumptions. A delay of a year or
    more is the benchmark commonly recognized as presumptively prejudi-
    cial in a constitutional speedy trial analysis.
    15. Speedy Trial: Verdicts: Sentences. The more complex and serious the
    crime, the longer a delay might be tolerated, because society also has
    an interest in ensuring that longer sentences are rendered upon the most
    exact verdicts possible.
    16. Constitutional Law: Prosecuting Attorneys: Evidence. A defendant
    has a constitutionally protected privilege to request and obtain from the
    prosecution evidence that is either material to the guilt of the defendant
    or relevant to the punishment to be imposed.
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    Nebraska Supreme Court Advance Sheets
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    STATE v. SHORT
    Cite as 
    310 Neb. 81
    17. Police Officers and Sheriffs: Prosecuting Attorneys: Evidence.
    Police conduct resulting in suppression of favorable material evidence
    is imputed to the prosecution.
    18. Due Process: Motions for Continuance: Evidence. There is no due
    process violation when the defendant has had an opportunity to request a
    continuance to adequately prepare the defense in light of evidence that,
    while disclosed late, is ultimately disclosed before the end of trial.
    19. Constitutional Law: Speedy Trial. The Fifth Amendment has only a
    limited role to play in protecting against oppressive delay in the crimi-
    nal context.
    20. Criminal Law: Pretrial Procedure. Discovery in a criminal case is
    generally controlled by either a statute or a court rule.
    21. Criminal Law: Courts. When a court sanctions the government in a
    criminal case for its failure to obey court orders, it must use the least
    severe sanction that will adequately punish the government and secure
    future compliance.
    22. Pretrial Procedure: Dismissal and Nonsuit. Dismissal as a sanction
    for a discovery violation is only appropriate where less drastic alterna-
    tives are not available.
    23. Judgments: Words and Phrases. An abuse of discretion occurs when a
    trial court’s decision is based upon reasons that are untenable or unrea-
    sonable or if its action is clearly against justice or conscience, reason,
    and evidence.
    24. Search Warrants: Affidavits: Probable Cause. To determine whether
    a warrant was issued upon probable cause, a court generally limits its
    review to the four corners of the affidavit.
    25. Affidavits: Evidence. An exception to the limitation of the court’s
    review to the four corners of the affidavit is where the defendant makes
    a preliminary proffer of falsity warranting an evidentiary hearing.
    26. Affidavits: Probable Cause: Hearsay. Probable cause may be founded
    upon hearsay as well as upon information within the affiant’s own
    knowledge that sometimes must be garnered hastily.
    27. Search Warrants: Affidavits: Probable Cause: Police Officers and
    Sheriffs: Presumptions: Proof. While there is a presumption of valid-
    ity with respect to the affidavit supporting the search warrant, that pre-
    sumption may be overcome and a search warrant may be invalidated if
    the defendant proves the affiant officer knowingly and intentionally, or
    with reckless disregard for the truth, included in the affidavit false or
    misleading statements that were necessary, or material, to establishing
    probable cause.
    28. Search Warrants: Affidavits: Probable Cause. Omissions in an affida-
    vit used to obtain a search warrant are considered to be misleading when
    the facts contained in the omitted material tend to weaken or damage
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    STATE v. SHORT
    Cite as 
    310 Neb. 81
    the inferences which can logically be drawn from the facts as stated in
    the affidavit.
    29.   Search Warrants: Probable Cause: Police Officers and Sheriffs:
    Evidence: Proof. If the defendant successfully proves, by a prepon-
    derance of the evidence, that the police knowingly and intentionally,
    or with reckless disregard for the truth, included a false or misleading
    statement or omitted information material to a probable cause finding,
    then the court examines whether the evidence obtained from the warrant
    and search was fruit of the poisonous tree.
    30.   Search and Seizure: Affidavits. Mere negligence in preparing the affi-
    davit will not lead to suppression, as the purpose of the exclusionary
    rule is to deter misconduct.
    31.   Search Warrants: Affidavits: Probable Cause: Police Officers and
    Sheriffs. Observations by fellow officers engaged in a common inves-
    tigation are a reliable basis for a warrant, and probable cause is to be
    evaluated by the collective information of the police as reflected in the
    affidavit and is not limited to the firsthand knowledge of the officer who
    executes the affidavit.
    32.   Search Warrants: Probable Cause: Words and Phrases. Probable
    cause sufficient to justify issuance of a search warrant means a fair
    probability that contraband or evidence of a crime will be found in the
    item to be searched.
    33.   Constitutional Law: Search Warrants: Probable Cause. The Fourth
    Amendment’s express requirement of particularity for a search warrant
    is closely related to its express requirement of probable cause.
    34.   Search Warrants: Affidavits: Probable Cause. A warrant affidavit
    must always set forth particular facts and circumstances underlying the
    existence of probable cause, so as to allow the magistrate to make an
    independent evaluation of probable cause.
    35.   Criminal Law: Search and Seizure: Evidence. The nexus between the
    alleged crimes and the article to be searched does not need to be based
    on direct observation; it can be found in the type of crime, the nature
    of the evidence sought, and the normal inferences as to where such evi-
    dence may be found.
    36.   Probable Cause: Police Officers and Sheriffs. Probable cause may
    be based on commonsense conclusions about human behavior, and due
    weight should be given to inferences by law enforcement officers based
    on their experience and specialized training.
    37.   Affidavits: Police Officers and Sheriffs. Wholly conclusory state-
    ments by a law enforcement officer affiant that the affiant has reliable
    information and reason to believe evidence of a crime will be found in a
    particular place are insufficient.
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. SHORT
    Cite as 
    310 Neb. 81
    38. Constitutional Law: Probable Cause: Words and Phrases. “Probable
    cause” is a term of art in Fourth Amendment jurisprudence that is
    defined as a practical, nontechnical conception that deals with the fac-
    tual and practical considerations of everyday life on which reasonable
    and prudent people, not legal technicians, act.
    39. Search Warrants: Affidavits: Probable Cause. The fundamental ques-
    tion in a challenge to an affidavit for lack of probable cause is whether,
    under the totality of the circumstances illustrated by the affidavit, the
    issuing magistrate had a substantial basis for finding that the affidavit
    established probable cause.
    40. ____: ____: ____. The magistrate who is evaluating the probable cause
    question must make a practical, commonsense decision whether, given
    the totality of the circumstances set forth in the affidavit, including the
    veracity of and basis of knowledge of the persons supplying hearsay
    information, there is a fair probability that contraband or evidence of a
    crime will be found in a particular place.
    41. ____: ____: ____. Where the circumstances are detailed, where reasons
    for crediting the source of information is given, and where the magis-
    trate has found probable cause to exist, the court should not invalidate
    the affidavit in a hypertechnical manner.
    42. Affidavits: Probable Cause. Reasonable minds frequently may dif-
    fer on the question whether a particular affidavit establishes prob-
    able cause.
    43. Probable Cause: Police Officers and Sheriffs. Law enforcement can-
    not only rely on the general ubiquitous presence of cell phones in daily
    life, or an inference that friends or associates most often communicate
    by cell phone, as a substitute for particularized information to support
    probable cause that a specific device contains evidence of a crime.
    44. ____: ____. To support probable cause, statements based on law enforce-
    ment expertise and experience must be accompanied by particular facts
    and circumstances such that, under the totality of the circumstances,
    including commonsense conclusions about human behavior, there is a
    substantial basis for concluding evidence of a crime will be found on the
    phone or phone information searched.
    45. Search Warrants: Probable Cause. What will constitute sufficient
    particularized information to support probable cause that a cell phone
    or cell phone information searched will contain evidence of a crime
    depends upon the nature and circumstances of the crime and what is
    sought in the warrant.
    46. Criminal Law. It can be generally recognized that cell phones tend to
    accompany their users everywhere, and thus, it may be inferred that a
    suspect’s cell phone probably accompanied the suspect at the time of
    the crime.
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. SHORT
    Cite as 
    310 Neb. 81
    47. Search Warrants: Probable Cause: Affidavits. A warrant may be
    considered so lacking in indicia of probable cause if the applicant files
    merely a bare bones affidavit, one which contains only wholly conclu-
    sory statements and presents essentially no evidence outside of such
    conclusory statements.
    48. Search and Seizure: Police Officers and Sheriffs. To trigger the exclu-
    sionary rule, police conduct must be sufficiently deliberate that exclu-
    sion can meaningfully deter such conduct and sufficiently culpable that
    such deterrence is worth the price paid by the justice system, as exclu-
    sion serves to deter deliberate, reckless, or grossly negligent conduct, or
    in some circumstances recurring or systemic negligence.
    49. Search Warrants: Affidavits: Police Officers and Sheriffs: Probable
    Cause. The good faith exception is applicable to an affidavit that fails
    to satisfy the substantial basis test to support probable cause, when
    police officers act in objectively reasonable good faith in reliance upon
    the warrant.
    50. Search Warrants. A purpose of the particularity requirement for a
    search warrant is to prevent the issuance of warrants on loose, vague, or
    doubtful bases of fact.
    51. Constitutional Law: Search and Seizure: Search Warrants: Police
    Officers and Sheriffs. The particularity requirement of the Fourth
    Amendment protects against open-ended warrants that leave the scope
    of the search to the discretion of the officer executing the warrant or
    permits seizure of items other than what is described.
    52. Constitutional Law: Search Warrants: Police Officers and Sheriffs.
    To satisfy the particularity requirement of the Fourth Amendment, a
    warrant must be sufficiently definite to enable the searching officer to
    identify the property authorized to be seized.
    53. Search Warrants. The degree of specificity required in a warrant
    depends on the circumstances of the case and on the type of items
    involved.
    54. Search Warrants: Probable Cause: Evidence. A search warrant may
    be sufficiently particular even though it describes the items to be seized
    in broad or generic terms if the description is as particular as the sup-
    porting evidence will allow, but the broader the scope of a warrant, the
    stronger the evidentiary showing must be to establish probable cause.
    55. Search and Seizure: Search Warrants: Probable Cause. A warrant for
    the search of the contents of a cell phone must be sufficiently limited in
    scope to allow a search of only that content that is related to the prob-
    able cause that justifies the search.
    56. Criminal Law: Police Officers and Sheriffs: Evidence. Officers can-
    not predict where evidence of a crime will be located in a cell phone
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    STATE v. SHORT
    Cite as 
    310 Neb. 81
    or call records or in what format, such as texts, videos, photographs,
    emails, or applications.
    57.   ____: ____: ____. There is no way for law enforcement to know where
    in the digital information associated with cell phones it will find evi-
    dence of the specified crime.
    58.   Constitutional Law: Search Warrants. The most important constraint
    in preventing unconstitutional exploratory rummaging is that the war-
    rant limit the search to evidence of a specific crime, ordinarily within
    a specific time period, rather than allowing a fishing expedition for all
    criminal activity.
    59.   Constitutional Law: Search and Seizure. A brief examination of all
    electronic data associated with a cell phone is usually necessary in order
    to find where the information to be seized is located, and sucn examina-
    tion is reasonable under the Fourth Amendment.
    60.   Constitutional Law: Warrantless Searches: Search and Seizure.
    Warrantless searches and seizures are per se unreasonable under the
    Fourth Amendment, subject only to a few specifically established and
    well-delineated exceptions, which must be strictly confined by their
    justifications.
    61.   Constitutional Law: Arrests: Search and Seizure. In the case of a
    lawful custodial arrest, a full search of a person is not only an exception
    to the Fourth Amendment’s warrant requirement, but is also a reasonable
    search under that amendment.
    62.   Arrests: Search and Seizure: Probable Cause. A search incident to
    an arrest can be made before an arrest as long as probable cause for the
    arrest exists before the search.
    63.   ____: ____: ____. It does not matter that a defendant is not formally
    placed under arrest until after a search, so long as the fruits of the search
    are not necessary to support probable cause to arrest.
    64.   Warrantless Searches: Probable Cause: Police Officers and Sheriffs.
    Probable cause to support a warrantless arrest exists only if law enforce-
    ment has knowledge at the time of the arrest, based on information that
    is reasonably trustworthy under the circumstances, which would cause a
    reasonably cautious person to believe that a suspect has committed or is
    committing a crime.
    65.   Arrests: Probable Cause: Police Officers and Sheriffs. Under the col-
    lective knowledge doctrine, the existence of probable cause justifying a
    warrantless arrest is tested by the collective information possessed by all
    the officers engaged in a common investigation.
    Appeal from the District Court for Douglas County: Horacio
    J. Wheelock, Judge. Affirmed.
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    310 Nebraska Reports
    STATE v. SHORT
    Cite as 
    310 Neb. 81
    Thomas C. Riley, Douglas County Public Defender, for
    appellant.
    Douglas J. Peterson, Attorney General, and Stacy M. Foust
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    I. INTRODUCTION
    The defendant challenges the district court’s denial of a
    motion to dismiss with prejudice or for absolute discharge
    based on late disclosures of discovery information resulting
    in delays the defendant argues implicated his speedy trial
    rights. The defendant also challenges the admission of evi-
    dence at trial obtained from the searches of his residence, cell
    phones, call records, and cell site location information on the
    ground that the searches violated his Fourth Amendment rights.
    Specifically, the defendant asserts that the seizure of his cell
    phones was pursuant to an unlawful arrest and the information
    contained thereon would not have been inevitably discovered;
    the warrant for the search of his residence was based on an
    affidavit containing falsities and material omissions; the war-
    rants for the searches of his cell phones, call records, and
    cell site location information were supported by affidavits
    that failed to support probable cause; and the warrants for the
    searches of his cell phones, call records, and cell site location
    information lacked particularity. We affirm.
    II. BACKGROUND
    Marcus L. Short’s convictions stem from three separate
    incidents that were tried together in two trials after the first
    trial resulted in a mistrial. Following a retrial, Short was con-
    victed of murder in the first degree, a Class IA felony; use
    of a firearm to commit a felony, a Class IC felony; and two
    counts of possession of a firearm by a prohibited person, each
    a Class ID felony, in relation to the death of Garion Johnson.
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    Nebraska Supreme Court Advance Sheets
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    STATE v. SHORT
    Cite as 
    310 Neb. 81
    Short was acquitted on the murder charge relating to the death
    of Deprecia Neelon and the accompanying use of a firearm to
    commit a felony charge. Short was sentenced to life imprison-
    ment for Johnson’s murder and 49 to 50 years’ imprisonment
    on each of the other convictions to be served consecutively
    with the life sentence.
    1. Shootings
    The charges stemmed from three separate shootings on sepa-
    rate days, August 5, 6, and 8, 2015, suspected to be perpetrated
    by Short, Preston Pope, and Shadow Harlan. Neelon was killed
    on August 6. Johnson was suspected to be the target in all three
    shootings and was ultimately killed on August 8. Johnson was
    Neelon’s boyfriend’s cousin.
    (a) August 5, 2015
    At approximately 6:35 p.m. on August 5, 2015, Johnson
    was sitting in a white Chevy Impala outside of Neelon’s resi-
    dence when an individual walked up and fired a gun at him.
    Johnson was able to run away as the shooter chased him. One
    ­.45-caliber spent shell casing and a tennis shoe were recovered
    at the scene. Two witnesses identified a photograph of Pope as
    the shooter.
    (b) August 6, 2015
    In the early evening hours on August 6, 2015, someone inten-
    tionally set the outside of Neelon’s residence on fire. While
    Neelon was outside investigating and attempting to put the fire
    out, she was shot seven times and died at the scene.
    That same night, an anonymous tip came in regarding a per-
    son named “Shadow” telling people that he had been involved
    in a shooting a few blocks away. Officers responded to the
    address provided in the tip, which was a couple blocks from
    the Neelon residence, and apprehended Harlan as he tried to
    flee from the residence. Harlan matched witnesses’ descriptions
    of the shooter and was wearing the same clothes described by
    witnesses when he was apprehended.
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. SHORT
    Cite as 
    310 Neb. 81
    Witnesses observed multiple individuals quickly leave the
    area after the Neelon shooting in two separate vehicles: an
    older blue van and a white sedan. Officers later located and
    attempted a traffic stop of a van matching the description
    on August 14, 2015. Pope fled the traffic stop and was later
    arrested in the area where the van was located. The van was
    registered to Pope’s mother, but she told officers that Pope
    used it.
    Evidence recovered at the Neelon residence included a black
    knit glove and three .45-caliber spent shell casings. A pricetag
    from a pair of jersey gloves was found in the alley about a
    block away from the Neelon residence.
    A fingerprint lifted from the pricetag was matched to Short.
    Further DNA testing also revealed that Short could not be
    excluded as a partial profile contributor to DNA found on the
    inside of the glove.
    (c) August 8, 2015
    Johnson was at the residence of his girlfriend, Mikayla
    Finley, on Fontenelle Boulevard on the morning of August 8,
    2015. Finley told officers that she told Johnson to move her
    white Chevy Impala into the garage. When Johnson was out-
    side moving the Impala into the garage, Finley heard noises
    she believed were gunshots. Johnson reversed the vehicle,
    circled through neighboring yards, and crashed into the garage
    of a nearby residence, all while shots were being fired at
    the Impala.
    Finley told officers that she saw two males standing around
    her Impala and that one made eye contact with her. She pro-
    vided a general description of him to police, but was unable to
    identify anyone when she was presented with a photographic
    lineup that day.
    Witnesses, including Finley, described the shooters. Both
    wore dark clothing, and one was described as a Black male, in
    his late teens, approximately 5 feet 8 inches tall, and dressed in
    a black hoodie or a black hoodie with a red “N” on it.
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    STATE v. SHORT
    Cite as 
    310 Neb. 81
    A witness reported a suspicious white Monte Carlo with
    white and blue dealership plates parked in the area that morn-
    ing on 41st Street. Another witness reported seeing two Black
    males dressed in black hoodies and black sweatpants walk-
    ing fast through yards, from the direction of where he heard
    gunshots and a crash, and subsequently heading south on 41st
    Street. Seconds later, this witness saw what appeared to be a
    white Monte Carlo speed north on 41st Street. A police detec-
    tive lived in that area, and video surveillance from his house
    showed a white Chevy Monte Carlo that traveled south on
    Fontenelle Boulevard at 9:48 a.m.
    Evidence recovered from the scene included four .45-caliber
    spent shell casings. Law enforcement believed the shooting
    was related to the August 5 and 6, 2015, shootings.
    Detectives were provided the description of the white Chevy
    Monte Carlo and Short’s name, whose fingerprint matched the
    fingerprint found on the pricetag near the Neelon residence.
    At 1:31 p.m., law enforcement arrived at Short’s last known
    address at 4268 Binney Street. There they discovered, parked in
    the driveway, a white Chevy Monte Carlo with white and blue
    “paper plates” and in-transits for “M.S.” in the window.
    2. Search of Short’s Residence
    Det. Ryan Hinsley drafted an affidavit for a search warrant
    of 4268 Binney Street, and he joined law enforcement already
    at the residence at 4:17 p.m. on August 8, 2015, with the
    signed search warrant.
    (a) Affidavit
    In the affidavit for the search warrant, Hinsley stated officers
    had just and reasonable grounds to believe that certain types of
    property would be found at 4268 Binney Street and requested
    permission to seize items from the house and from the Monte
    Carlo in the driveway, as well as the ability to process any
    areas that may contain a DNA profile or fingerprints.
    Items of interest to be seized included venue items iden-
    tifying those parties either who owned or who were in
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    STATE v. SHORT
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    control of the residence and the white Chevy Monte Carlo with
    ­in-transits and dealer paper plates; firearms; ammunition; any
    companion equipment for firearms; cell phones; computers;
    audio and video equipment; storage media; and “[a]ny and all
    clothing or property believed to have been worn and/or used
    during the commission of the assault, to include, but not lim-
    ited to a black hoodie with a red ‘N’ on it along with a black
    bandana with white design and a red bandana.”
    Pertaining to the just and reasonable grounds for believing
    such evidence would be found at the residence, the affida-
    vit described:
    On Tuesday, August 4, 2015, Omaha Police Department
    Officers received a radio call to [the Neelon residence]
    for an attempted felony assault. The victim was identified
    as JOHNSON, Garion [date of birth] 06/. . ./1996 who
    was uncooperative at the time.
    On Wednesday, August 5, 2015, Omaha Police Depart­
    ment Officers received a radio call to [the Neelon resi-
    dence] for a shooting. The victim in that incident later
    died from her injuries. During that investigation, Omaha
    Police Department Crime lab recovered a glove from
    the scene and from that glove obtained a fingerprint that
    was found to belong to Marcus SHORT [date of birth]
    10/. . ./89.
    The affidavit further described:
    On Saturday, August 8, 2015, at 0949 hours officers
    of the Omaha Police Department were called to [a spe-
    cific address on] Fontonelle [sic] Boulevard, Omaha, NE
    in regards to a shooting. Upon arrival officers located
    the victim (later identified as Garion JOHNSON, date
    of birth 06/. . ./1996) inside the driver’s seat of a white
    2007 Chevy Impala . . . . JOHNSON had been shot sev-
    eral times throughout his body and was transported from
    the scene by medics to Creighton Health Initiative (CHI)
    Hospital where he later succumbed to his injuries.
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    STATE v. SHORT
    Cite as 
    310 Neb. 81
    It was later elicited through testimony that the dates in the
    affidavit of the prior incidents were incorrect and that it was
    actually August 6, 2015, that the Neelon homicide occurred.
    The affidavit further described Finley’s statements to the
    investigating officers:
    Officers located JOHNSON’s girlfriend (Mikayla
    FINLEY, date of birth 4/. . ./1990) . . . . FINLEY stated
    she then heard a series of muffled banging noises coming
    from the garage area which she believed were gun shots.
    FINLEY advised she looked out the front window of the
    residence and saw two unknown males standing around
    her Impala and JOHNSON in the front seat attempting
    to back out of the driveway. FINLEY stated one of the
    males made eye contact with her and was described as a
    [B]lack male, 16-18 years old, 5′8-5′10, 140-160 pounds,
    wearing a black hoodie with a red “N” on the front
    [of] it.
    The affidavit stated what other witnesses on the scene of
    the Johnson homicide on August 8, 2015, reported to law
    enforcement:
    [Another witness] was also located at the scene and
    brought to OPD Central for an interview. [She] advised
    she saw one [B]lack male wearing all black clothing
    (hoodie) and a bandana covering his face shooting with
    his right hand at the white Chevy Impala. [The witness]
    advised the Impala then drove through her front yard try-
    ing to flee from the shooter and crashed into a house a
    few house[s] down from the originating house.
    . . . Additionally, witnesses stated after the shooting
    two [B]lack males were seen running through yards and
    got into a white Chevy Monte Carlo parked towards
    the west, which then fled from the area westbound on
    Font[e]nelle Boulevard with paper plates.
    Finally, the affidavit described how the investigation on
    August 8, 2015, progressed to 4268 Binney Street:
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    On Saturday, August 8, 2015, members of the Omaha
    Police Department later located a White Chevy Monte
    Carlo with In-Transits and paper plates parked in front
    of 4268 Binney Street. At that location, Officers also
    located a party identified as Marcus SHORT [date of
    birth] 10/. . ./89.
    (b) Fruits of Search
    Officers in their search discovered two firearms in Short’s
    bedroom at his residence, a .45-caliber Glock handgun and
    a .357-caliber Smith & Wesson revolver. In addition to the
    two firearms, officers seized or took photographs of several
    other items found at the house, including a muddy pair of
    black pants, two black hoodie sweatshirts, muddy shoes, and
    two pairs of black gloves. The officers also seized as venue
    items a cell phone receipt on which Short’s name and a phone
    number with a 702 area code appeared, as well as a form from
    the Douglas County public defender’s office regarding Short’s
    representation in a misdemeanor matter identifying Short as a
    client with his contact information including his 4268 Binney
    Street address and the phone number with the 702 area code.
    3. Seizure of Cell Phones
    Short was not initially at 4268 Binney Street at the time
    law enforcement arrived, but agreed to Det. Candace Phillips’
    request that he return to his residence. Officers, including
    Phillips, met Short at the perimeter of the crime scene upon his
    arrival, approximately three houses away from his residence.
    Officers handcuffed Short and placed him in a police cruiser.
    They seized two cell phones and a set of keys from his person.
    At some point, Short was released from the handcuffs and
    given his phones back, but after some disagreement between
    law enforcement officers, Short was placed back in handcuffs
    and his phones were seized again. Short was then transported
    to the Omaha Police Department (OPD) where he was held
    in an interview room and interviewed by Det. Eugene Watson
    and another detective. It was approximately 3 hours after being
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    transported to OPD, while Short was being interviewed, that
    law enforcement found the two firearms at Short’s residence.
    Upon that discovery, Short was formally arrested on two
    counts of possession of a firearm by a prohibited person.
    4. Search of Content of Cell Phones
    On August 11, 2015, officers obtained a warrant to search
    Short’s cell phones that they had seized from Short’s person
    on August 8, which were an LG model LG237c flip-style
    phone (LG flip phone) and an LG model LS740 phone (LG
    smart phone).
    (a) Affidavit
    The affidavit for the search warrant included the informa-
    tion that (1) witnesses to the Johnson homicide described a
    suspect vehicle fleeing the area after the shooting as being a
    white Chevy Monte Carlo with no license plates, displaying
    in-transits and dealer paper plates; (2) the suspect vehicle was
    located in the area of 42d and Binney Streets; (3) Short was
    identified as the owner of the vehicle; (4) Short was located on
    August 8, 2015, and transported to OPD to be interviewed; and
    (5) Short had the LG flip phone and the LG smart phone in his
    possession, which were booked into evidence.
    Further, the affidavit stated:
    Affiant Officer knows, through training and experi-
    ence, that persons use cellular telephones to communi-
    cate. This includes . . . persons planning a crime, com-
    mitting a crime and/or trying to regroup after committing
    a crime. These communications can be in the form of
    telephone calls, emails and/or messages. People are also
    know[n] to contact parties using cellular telephones via
    telephone calls, emails of messages and threaten physical
    harm to others.
    Affiant Officer knows, through training and experi-
    ence, that persons who engage in criminal acts will some-
    times take video of the act, video before committing the
    crime and/or after the crime was committed. Persons are
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    also known to pose with weapons and take photographs of
    themselves and others displaying weapons.
    The affidavit requested to search specific categories of data
    on the cell phones and specified what each of those categories
    could reveal with regard to a criminal investigation, which the
    search warrant used and restated as the areas authorized to
    be searched.
    (b) Warrant
    The search warrant authorized a search of the LG flip phone
    and the LG smart phone in relation to the homicide of Johnson
    and allowed officers to obtain from the cell phones the fol-
    lowing: (1) phone information and configurations; (2) user
    account information; (3) call logs; (4) contact lists; (5) short
    and multimedia messaging service messages; (6) chat and
    instant messages; (7) email messages; (8) installed applications
    and their corresponding data; (9) media files such as images,
    videos, audio, and document files; (10) internet browsing his-
    tory, including bookmarks, “browser cookies,” and associated
    cache files; (11) cell tower connections, global positioning sys-
    tem fixes, waypoints, routes, and tracks; (12) WiFi, Bluetooth,
    and synchronization connection history; (13) memos and notes;
    (14) user dictionary information; and (15) calendar informa-
    tion. The warrant further stated:
    Affiant Officer or their agents may be required to exam-
    ine every file and scan its contents briefly to determine
    whether it falls within the scope of the warrant. This is
    necessary as it is difficult to know prior to the search the
    level of the technical ability of the device’s user and data
    can be hidden, moved, encoded or mislabeled to evade
    detection.
    (c) Fruits of Search
    Pursuant to this search, police determined that the phone
    number for the LG flip phone was 402-619-2962. Since this
    was only a flip phone without capabilities to take screenshots,
    the officer who examined the phone took photographs of
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    the screen and those photographs were entered into evidence.
    The photographs of the LG flip phone’s content included sev-
    eral text messages and phone calls between this phone and
    Pope’s phone.
    The LG smart phone had a “SIM” card, which usually con-
    tains only the subscriber number and phone number of the
    device. This card was removed from the phone and put into a
    reader to read the content on the card, and the number associ-
    ated with the phone was discovered to be 702-619-1025.
    The LG smart phone itself was “locked,” and OPD did
    not have the capabilities in 2015 to take data from a locked
    phone. The LG smart phone was sent to a computer crime
    institute that used a computer program to read the data chip
    of the phone and then returned a readable report of its find-
    ings. The data of the LG smart phone showed several contacts,
    including incoming and outgoing phone calls and text mes-
    sages between the LG smart phone and Pope’s phone (contacts
    with “Playboi”) and contacts with “Shadow,” perceived to be
    Harlan. The phone also showed that Short visited websites for
    news articles about the homicides.
    5. Search of Call Records With Cell
    Site Location Information
    On August 11, 2015, a warrant was issued for information
    from a cell phone service provider in regard to the phone num-
    ber 702-619-1025 (Short’s LG smart phone) and a number of
    another cell phone unrelated to Short’s appeal. An identical
    warrant was issued for information from another cell phone
    service provider in regard to the phone number 402-619-2962
    (Short’s LG flip phone) and two other numbers unrelated to
    Short’s appeal. A new warrant was obtained on December 5,
    2018, for the search of call records and cell site location infor-
    mation for the LG smart phone, after the court’s ruling that
    Short’s statements as to his phone numbers, relied upon in the
    original warrant, were obtained as a fruit of an unlawful arrest
    and in violation of Short’s Miranda rights and Short’s right
    to counsel. The court determined the December 2018 search
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    warrant was independent of the tainted evidence because police
    obtained the same phone number associated with Short while
    executing a valid search warrant at Short’s residence. No
    explanation was offered as to why Short’s LG flip phone was
    not included in the 2018 warrant, since the phone number for
    that phone was found during the search of the physical phone
    pursuant to a valid search warrant discussed above. Only the
    December 5 warrant is at issue in this appeal.
    (a) Warrant
    The search warrant authorized officers to obtain customer or
    subscriber information for the LG smart phone with the phone
    number 702-619-1025 for the July 8 to August 10, 2015, time
    period. It also authorized “[a]ll records and other information
    relating to” that number and time period, including (1) the
    records of user activity for any connections made to or from
    the account, including the date, time, length, and method of
    connections, data transfer volume, user name, and source and
    destination of internet protocol addresses; (2) all available
    toll records to include call detail, “SMS detail, data sessions,
    per call measurement data (PCMD), round trip time (RTT),
    NELOS, cell site and cell site sector information and cellular
    network identifying information”; (3) the noncontent informa-
    tion associated with the contents of any communication or file
    stored by or for the accounts, such as the source and destina-
    tion email addresses and internet protocol addresses; (4) the
    correspondence and notes of records related to the accounts;
    and (5) the current cellular site list, in electronic format, which
    includes any and all markets, switches, and areas the target
    phone utilized during the time period above.
    (b) Affidavit
    In support of the December 2018 warrant, the affidavit
    ­indicated the grounds for issuance of the search warrant
    included the following: (1) witnesses after the Johnson homi-
    cide stated that two Black males were seen running through
    yards and that they then got into a white Chevy Monte Carlo
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    with in-transits and dealer paper plates, (2) the suspect vehicle
    was located in the area of 42d and Binney Streets, and (3) the
    owner of the vehicle was identified as Short.
    With regard to how the police came to determine Short’s
    phone number, the affidavit stated:
    On Saturday, August 8th 201[5], Omaha Police
    Homicide Detectives Wendi DYE . . . and Ryan HINSLEY
    . . . served a court ordered search warrant at 4268 Binney
    Street, Omaha, Nebraska, Douglas County [Short’s resi-
    dence]. Through the course of the investigation it was
    determined that suspect Marcus SHORT . . . resided at
    this residen[ce]. Items of venue with Marcus SHORT’s
    name were located in the residence in the upstairs/attic
    bedroom.
    Item #12 document bearing Marcus SHORT’s name
    was found in the trash in the bedroom. The document was
    issued from the Douglas County Public Defender’s Office
    containing the following information:
    Client Name: SHORT, Marcus
    Address: 4268 Binney Street Omaha, Ne 68111
    Telephone Number: 702-619-1025
    Date of Birth: 10/. . ./1989
    Charges: Paraphernalia and Resisting
    A second receipt from [a cell phone provider] with
    Customer Name: Marcus Short phone number 702-619-
    1025 dated 8/2/2015 1:41:58 pm was also located in the
    bedroom of Marcus SHORT.
    Affiant Officer believes through the receipts, Marcus
    Short was using the phone number 702-619-1025 to com-
    municate with others.
    Regarding the need for the records for the investigation, the
    affidavit stated:
    Affiant Officer believes that if she is granted this Search
    Warrant the information received from the carrier would
    help to identify other witnesses and suspects to the crime
    under investigation. The information gained would also
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    help officers determine the locations of the cellular tele-
    phone devices used and thus the persons using those tele-
    phone numbers. This information would help to prove or
    disprove statements of witnesses and/or suspects.
    Affiant Officer is requesting the time period listed
    above to determine a pattern of behavior for the target(s)
    both before and after the crime under investigation.
    From training, experience and research Affiant Officer
    is aware that the data stored by cellular network provid-
    ers can provide invaluable insight for criminal investiga-
    tions. . . . 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. Affiant Officer is also aware of instances
    where the cell phone was operating in the background,
    accessing the cell provider’s network, and generating
    location based data. When a cell phone interacts with the
    cellular provider’s network, it leaves records that allow
    for the identification of locations where the cell phone
    accessed the network. These interactions between the cell
    phone and the network can be created intentionally or
    accidentally by the user, or automatically by the device
    itself as part of its regular functioning.
    The affidavit further explained how each of the categories
    of information requested from the cell phone service provid-
    ers could be “invaluable tools” when conducting a criminal
    investigation such as assisting in identifying or confirming
    the owner of a cell phone; constructing a timeline of events
    regarding an investigation; establishing communications
    between parties to identify coconspirators, witnesses, or vic-
    tims; establishing the proximity of a location of the cell phone
    to demonstrate that the device, and its user, was in a location
    associated with an incident; and providing insight into an
    individual’s level of culpability and knowledge regarding an
    investigated incident.
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    (c) Fruits of Search
    The records received were sent to the Federal Bureau of
    Investigation for assistance. There, a special agent used the
    call records provided by the two cell phone service providers
    to map out the cell towers being used during the activity of
    Pope’s phone and Short’s LG smart phone on August 5, 6, and
    8, 2015, and to give an approximate location of the cell phones
    on those dates. Using the call detail record with cell site infor-
    mation that identifies which switch, cell tower, and cell face
    sector of that tower that the cell phone used when it made a
    call, the special agent was able to determine that Short’s LG
    smart phone made six calls between 5:30 and 7:30 p.m. on
    August 5 and was not in the area of the Neelon residence
    when these calls were made. Pope’s phone made eight calls
    between 5:30 and 6:59 p.m. on August 5 while Pope’s phone
    location progressed north and was within the footprint of the
    tower that covers the area of the Neelon residence by the time
    of the phone call at 6:26 p.m. On August 6, between 7:30 and
    9:07 p.m., Short’s LG smart phone was not in the footprint of
    the tower that covers the Neelon residence, but Pope’s phone
    was. On August 8, focusing on the Johnson homicide crime
    scene on Fontenelle Boulevard, the special agent determined
    that between 6 and 8 a.m., Short’s LG smart phone was in the
    area of his residence and then moved to the area of the Johnson
    crime scene for phone calls made between 8 and 10 a.m.
    Pope’s phone was also in the area of the Johnson crime scene
    on August 8 between 8 and 10 a.m. and was later in the area of
    Short’s residence between 10 and 11 a.m.
    6. Discovery Delays and Motions to Continue
    Occurring Before Mistrial
    (a) Short’s October 4, 2016, Motion
    to Compel Discovery
    On October 4, 2016, defense counsel moved to compel
    discovery the prosecution had failed to disclose in accordance
    with a court order issued approximately 4 months before. In
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    the motion, Short requested an order compelling the State to
    provide the DNA results of the clothing tested; the fingerprint
    analysis notes and reports for the glove found; the cell tower
    data, reports, and notes for the LG flip phone and the LG smart
    phone; the call and text history for the “white Iphone” and the
    “black Sprint” phone seized; all reports for multiple case files;
    and all photographs shown to Johnson’s girlfriend, Finley, on
    August 8 and 10, 2015. The State explained at a hearing on the
    motion that it was expediting disclosure of discovery materials
    the best it could. No order resulted directly from the October 4
    motion to compel.
    (b) Short’s December 12, 2016,
    Motion to Continue
    On December 12, 2016, counsel for Short filed a motion
    to continue the trial on several grounds, including significant
    delays in the receipt of discovery materials. The court granted
    the motion to continue. It reset trial for May 15, 2017, stating
    in the order that the “speedy trial clock is stopped” until then.
    (c) Short’s May 3, 2017,
    Motion to Continue
    After the State filed a motion for leave to endorse Marcela
    Mitchell as a witness on May 2, 2017, Short filed a motion
    on May 3 to continue trial based on the late disclosure on
    May 2 of the OPD report that included Mitchell’s identifica-
    tion of Pope from a photographic spread. Phillips admitted
    that Mitchell identified Pope as an individual who attempted
    to shoot Johnson on August 5, 2015, but Phillips had failed to
    dictate a police report regarding this identification until March
    9, 2017. The court granted Short’s motion to continue and reset
    trial to begin on October 16. The court again stated in its order
    that the “speedy trial clock is stopped” until then.
    The Douglas County public defender’s office was appointed
    to represent Short as new counsel on June 27, 2017. On July
    5, the new counsel orally requested the court to continue the
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    October 16 trial date, which oral motion the court sustained. A
    new trial date was set for March 19, 2018.
    (d) Short’s Motion for Additional Discovery
    On November 14, 2017, Short filed a motion for additional
    discovery, requesting a copy of the “Homicide Lead Sheet”
    maintained by the OPD homicide unit for the Johnson homi-
    cide and the Neelon homicide. This motion was granted by
    the court on November 27 in an ongoing manner, such that the
    State was ordered to provide continuous updates if information
    was added to the lead sheets.
    (e) Motion to Dismiss or Motion
    for Complete Discharge
    Short’s case was originally consolidated with the case
    against Pope, but after Short’s motion to sever trials with Pope
    was granted and Pope’s trial was set to go first, on March 19,
    2018, Short’s trial was ordered to commence April 30. On
    April 13, Short filed a motion to dismiss all charges or, in the
    alternative, for a complete discharge. The motion relied on the
    constitutional rights to due process and a speedy trial, as well
    as Neb. Rev. Stat. § 29-1919 (Reissue 2016) regarding discov-
    ery sanctions.
    The motion outlined the discovery motions, orders, and
    continuances described above. Short noted that discovery con-
    tinued to be provided, with the most recent material received
    on April 11, 2018. Short asserted that the untimely receipt of
    discovery materials was due to a “continuing pattern of gross
    misconduct and mis-management by [OPD].” Short asserted
    that his ability to prepare to defend these cases at trial had been
    severely impeded.
    Short argued that with trial scheduled to commence on
    April 30, 2018, it would be highly unlikely the defense would
    be able to locate witnesses in so short a time period between
    disclosure of the witnesses’ statements and the commence-
    ment of trial. But Short did not seek another continuance.
    Short pointed out that trial had already been continued on
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    two previous occasions due to late disclosure of discovery
    materials and explained that he was put in a place to either
    “request[] another continuance or proceed[] to trial without
    sufficient time to locate, interview, depose, and call as wit-
    nesses at trial, those witnesses who could provide exculpa-
    tory evidence at trial.” Short argued that “due to the State’s
    continuing inability and failure to comply with its discovery
    obligations and requirements, the State has violated Short’s
    right to a speedy trial.”
    Short asked the court to dismiss with prejudice all charges
    against him or, in the alternative, to grant “complete discharge”
    of all charges, because, due to the misconduct of OPD, it
    was impossible for Short to receive a fair trial. Further, Short
    argued that OPD’s misconduct in failing to manage and dis-
    close evidence and discovery materials was imputed to the
    prosecution, so the prosecution should be held responsible for
    such misconduct.
    (i) Evidence Presented at Hearing on Motion
    An evidentiary hearing on Short’s motion to dismiss or for
    complete discharge was held on April 16, 18, and 19, 2018.
    Phillips and Watson testified at the hearing. They were both
    assigned to the Neelon homicide investigation team. The detec-
    tives assigned to the Johnson homicide all completed their
    police reports in a timely manner.
    Phillips and Watson admitted that on multiple occasions dur-
    ing the Neelon homicide investigation, years elapsed between
    conducting an interview and the generation of any police report
    on that interview. They agreed this was not standard operat-
    ing procedure for a homicide detective. Phillips admitted that
    she had failed to complete reports in a timely manner in other
    cases, which resulted in a mistrial because of the late disclo-
    sure of police reports. As a result of the publicity regarding this
    case and the pattern of delays in writing reports, Watson was
    removed from the homicide unit.
    Other sergeants and detectives with experience in the homi-
    cide unit at OPD testified that a detective is expected to
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    promptly book the original disc of an interview into evidence
    at the property room and that the time for completing a
    report on an interview can vary between 2 weeks and 6 months
    depending on the workload of the detective and the priority
    of the case. Several detectives testified that they were able to
    work overtime hours to complete reports and, in their opinion,
    taking more than a year to complete a report is not acceptable
    and would be poor practice.
    Watson testified his delays were because of the workload
    and having to prioritize active cases. He also testified that he
    had experienced personal issues, such as heart failure, and that
    his case materials were “all on hold” during his medical leave
    in 2017. Because of these distractions and his workload, he had
    forgotten about interviews and misplaced discs. Phillips testi-
    fied that her delays were because of the workload and because
    of prioritizing cases where an arrest had been made.
    The Douglas County Attorney testified at the hearing that
    his office has an “open file policy” regarding discovery,
    whereby his office sends defense counsel copies of all evi-
    dence provided by law enforcement agencies and other sources
    as soon as possible, and that his office relies on OPD to notify
    it when OPD receives more evidence. He testified that he was
    aware of multiple occasions where two detectives, Phillips
    and Watson, failed to provide evidence and properly turn over
    evidence in a timely manner, resulting in one or more mis­
    trials in the past. The Douglas County Attorney testified that
    he informed the command staff at OPD of the ongoing con-
    cerns with Phillips and Watson, but that ultimately, he had no
    authority over OPD.
    (ii) Order Denying Motion
    On April 26, 2018, the court denied Short’s motion to
    dismiss or, in the alternative, for complete discharge. The
    court acknowledged the above dates and procedure on how
    the motion came to be and that “[d]iscovery continues to be
    provided and material was provided at least as late as April
    11, 2018.”
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    a. Speedy Trial
    In examining whether Short’s constitutional right to a
    speedy trial was violated, the court separated the Johnson
    homicide from the Neelon homicide because of the different
    OPD homicide teams assigned to each homicide. The court
    found no constitutional speedy trial violations attributable to
    the Johnson homicide investigation because the homicide team
    that was assigned to that homicide investigated in a timely and
    efficient manner, and no discovery violation was attributed
    to their investigation. Accordingly, the court concluded that
    Short’s motion to dismiss or motion for complete discharge, as
    it related to the Johnson homicide, was overruled.
    In analyzing the Neelon homicide, the court used factors
    laid out in Barker v. Wingo 1 to determine whether Short was
    deprived of his constitutional right to a speedy trial: (1) the
    length of the delay, (2) the reason for the delay, (3) whether
    and when the defendant asserted his speedy trial right, and
    (4) whether the defendant was prejudiced by the delay. The
    court concluded the length of the delay was approximately
    10 months.
    The court noted that the three prior continuances in this
    case were on Short’s motions in December 2016, May 2017,
    and June 2017. Then, upon severance of the trials for Short
    and Pope, Short’s trial was set for April 30, 2018. After each
    motion to continue was sustained, Short engaged in exten-
    sive pretrial litigation, and as of the date of the order, several
    defense motions in limine and a motion to suppress were set
    for hearing on April 27. The court acknowledged that there
    was no evidence that the State deliberately attempted to delay
    the trial. The court found that Short did not make a viable
    showing that his defense of the Neelon homicide was preju-
    diced due to unavailable witnesses that would have been avail-
    able at a more timely trial, nor that the witnesses were unable
    to accurately recall past events because of any delay. For all
    1
    Barker v. Wingo, 
    407 U.S. 514
    , 
    92 S. Ct. 2182
    , 
    33 L. Ed. 2d 101
     (1972).
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    these reasons, the court found there was not a violation in the
    Neelon homicide of Short’s right to a speedy trial.
    b. Due Process
    In rejecting Short’s argument that alleged due process viola-
    tions called for the dismissal of all criminal charges with preju-
    dice, the court found that “the conduct of Detective Phillips
    and Detective Watson, the lack of oversight by OPD, and the
    actions of the County Attorney’s Office [did] not indicate bad
    faith.” The court acknowledged that the evidence showed a
    pattern of failure to follow best practices and procedures, but
    did not show any deliberate attempt to gain an unfair tactical
    advantage, official animus, or a conscious effort to suppress
    exculpatory evidence. Thus, the evidence did not warrant the
    severe sanction of the dismissal of charges.
    c. Statutory Violations
    Finally, the court addressed the alleged statutory discovery
    violations. The court acknowledged that Nebraska has not spe-
    cifically addressed what factors a court should consider when
    asked to dismiss an information because of a discovery viola-
    tion in a criminal case.
    When looking at outside jurisdictions, the court acknowl-
    edged the preferred sanction is a continuance. The court noted
    that the Eighth Circuit Court of Appeals has held that the rele­
    vant factors in determining an appropriate sanction for a dis-
    covery violation are “‘the reasons for the government’s delay
    and whether it acted intentionally or in bad faith; the degree of
    prejudice, if any, suffered by the defendant; and whether any
    less severe sanction will remedy the prejudice and the wrong-
    doing of the government.’” 2
    The court reiterated that the evidence did not show Phillips
    or Watson acted in bad faith or with the intent to mislead,
    deceive, or act with a sinister motive in not completing
    2
    U.S. v. Davis, 
    244 F.3d 666
     (8th Cir. 2001).
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    their reports in a timely manner; the State did not act in bad
    faith; and any prejudice to Short’s preparation for trial as a
    result of the delays could be cured with a continuance. Based
    on the finding that there was no bad faith on the part of the
    State, the court decided to impose the least severe sanction that
    would accomplish prompt and full compliance with the discov-
    ery order, “which [was to allow] Short a continuance should he
    request one.”
    7. Jury Selection and Mistrial
    Short did not request a continuance, and jury selection for
    his first trial proceeded as scheduled on April 30, 2018. Upon
    motions from both parties, a mistrial was declared on May 8
    due to improper jury contact by an unauthorized third party
    associated with Short. Retrial was scheduled to commence on
    January 7, 2019. The order scheduling retrial for January 7
    indicated that this was set by agreement of the parties.
    8. Retrial After Mistrial
    Following the mistrial, Short did not renew his motion to
    dismiss or, in the alternative, for absolute discharge based on
    discovery violations. Short’s retrial commenced as scheduled
    on January 7, 2019. At trial, Short made several objections
    relevant to this appeal. The court did not generally adopt its
    rulings from the aborted trial, but referred to the hearings and
    rulings on motions to suppress when Short objected to the
    same evidence at the retrial.
    (a) Seizure of Cell Phones and
    Search of Residence
    Short objected at trial to the admission of all evidence stem-
    ming from his allegedly unlawful de facto arrest when he was
    handcuffed and placed in the police cruiser and concurrent
    unlawful seizure of his cell phones, and he objected to all
    evidence stemming from the search of his residence, which
    he asserted was pursuant to a false and misleading affidavit.
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    These two objections purportedly encompassed all evidence
    from the search of the physical phones, his call records, and
    the cell site location information, as well as the physical evi-
    dence seized at his residence.
    The court overruled the motion regarding the seizure of the
    phones, reasoning the phones would have inevitably been dis-
    covered when Short was lawfully arrested after discovery of
    the firearms at Short’s residence. The court reiterated its prior
    ruling before the mistrial that the phones had been unlawfully
    seized during a de facto arrest without probable cause, but that
    the inevitable discovery doctrine exception still allowed the
    seizure of the phones.
    The court also overruled the objection relating to the affi-
    davit in support of the search of Short’s residence, which,
    as relevant to this appeal, focused on the statements that
    Short’s fingerprints were found on the glove, that “witnesses
    stated after the shooting two [B]lack males were seen running
    through yards and got into a white Chevy Monte Carlo,” and
    that Short was located at 4268 Binney Street, as well as the
    omission of Finley’s inability to identify Short as the shooter
    in a photographic spread. The court found that after striking
    the disputed portions of the affidavit and including the omitted
    information, the affidavit was still sufficient to establish prob-
    able cause to search Short’s residence. Alternatively, the court
    reiterated its findings that the evidence at hearings on Short’s
    motion to suppress, held before the mistrial, demonstrated that
    any false statements or omissions were not intentional or in
    reckless disregard for the truth.
    Hinsley had testified that he based the affidavit on informa-
    tion he obtained from his interview of Finley and information
    relayed to him by Sgt. Danette Culler, Phillips, and Watson,
    who were all at the scene. Hinsley testified that he believed the
    pricetag and the glove were the same evidence until he learned
    his mistake shortly before the hearing. Hinsley explained he
    had written the affidavit as he talked on the phone with Culler
    and had no reason to question or clarify the information
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    Culler was telling him. Culler denied that she told Hinsley
    that Short’s fingerprint was taken from the glove found at
    the scene, and she testified that she recalled discussing with
    Hinsley a pricetag that was found that contained a fingerprint
    match for Short.
    The evidence at the hearings also demonstrated that offi-
    cers canvassing the area spoke with several witnesses related
    to the Johnson homicide and that some witnesses saw two
    Black males leaving the scene while other witnesses saw only
    one Black male leaving the scene. An officer testified that he
    canvassed the area near the Johnson homicide scene, talked to
    multiple witnesses, and relayed the information to the ­on-duty
    sergeant who was relaying it to homicide detectives. The offi-
    cer testified that there was not any one witness that saw both
    the shooting and a suspect or suspects get into the white Monte
    Carlo. The officer further testified that some witnesses claimed
    to have seen all or parts of the shooting and that there were
    other witnesses who had information about the white Monte
    Carlo, but no idea about the shooting. Hinsley testified that he
    named only two witnesses in the affidavit as witnesses person-
    ally interviewed by him or another detective at OPD and that
    he was not provided specific names of the other witnesses,
    but he relayed a conglomeration of information provided by a
    number of people from the uniformed officers and detectives at
    the scene that was relayed to him through Culler.
    The evidence at the hearings demonstrated Short was not
    located at 4268 Binney Street, but was actually located walking
    toward 4268 Binney Street, inside the crime scene perimeter
    tape, three or four houses away.
    Evidence showed that Finley failed to identify Short as the
    shooter when shown a photograph of him and that the affidavit
    omitted specific interviews with witnesses who observed only
    one male firing into the car. Hinsley testified that he had “no
    good reason” for not including the information that Finley did
    not identify Short as the shooter that she saw and described to
    law enforcement.
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    The court found that Hinsley’s and Culler’s testimonies were
    truthful and credible and that the evidence was insufficient
    to prove that Hinsley intentionally misled the court or acted in
    reckless disregard for the truth in preparing the affidavit. The
    court found that the averment in the affidavit regarding Short’s
    fingerprint being found on a glove rather than the pricetag for
    the glove near the Neelon residence was due to mistake or
    simple negligence not rising to perjury or reckless disregard for
    the truth. The court further found that the averment of where
    Short was arrested being “at the location” of 4268 Binney
    Street, rather than approximately three houses away after he
    had crossed the taped crime scene area, was “insignificant.”
    The court found that the averment in the affidavit stating “wit-
    nesses” stated they saw “two [B]lack males,” as opposed to
    one Black male, was not false, misleading, or in reckless dis-
    regard for the truth, because it was a summary statement based
    on interviews with multiple witnesses and the majority of the
    witnesses interviewed saw two Black males. The court found
    the omission of Finley’s failure to identify Short was not mis-
    leading or in reckless disregard for the truth.
    (b) Affidavits and Warrants for Searches
    of Cell Phone Information
    Short alternatively objected to all evidence derived from the
    search of the LG flip phone and the LG smart phone, his call
    records, and his cell site location information for the reason that
    the warrants for the searches lacked the requisite particularity
    under the Fourth Amendment and the affidavits supporting the
    warrants lacked sufficient facts to support findings of probable
    cause. With regard to the lack of probable cause, Short argued
    that there was insufficient supporting averments establishing
    a nexus between the cell phone information to be searched
    and the crimes. According to Short, the affidavits generically
    set forth that cell phone data and information can be help-
    ful in police investigations and the affidavits were devoid of
    evidence showing the use of cell phones in the specific crimes
    under investigation.
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    The court overruled the objections, finding that the affida-
    vits supported probable cause and that the warrants did not
    lack in the necessary particularity. It referred back to its prior
    findings in relation to Short’s motion to suppress before the
    mistrial, that the affidavit in support of the search warrant was
    sufficiently detailed and specific so as to establish probable
    cause that Short was connected to the ongoing Johnson homi-
    cide investigation and more than one individual may have been
    involved in the Johnson homicide. Applying the totality of the
    circumstances test, the court found that there was probable
    cause to believe that evidence of a crime would be found in the
    cell phone data of the two cell phones to be searched. The dis-
    trict court found in the alternative that even if the search war-
    rants were not supported by probable cause, the warrants were
    executed in good faith. Further, the court found that the search
    warrants were particular because they specifically referred to
    the Johnson homicide and to the type of information encom-
    passed by its authorization.
    III. ASSIGNMENTS OF ERROR
    Short assigns, reworded, that the district court erred when
    it (1) denied his motion to suppress the fruits of the search of
    his residence after the “Franks hearing,” when the affidavit in
    support of the search warrant provided insufficient evidence
    to support a finding of probable cause; (2) denied his motion
    to suppress the two cell phones taken from his person inci-
    dent to his unlawful arrest; (3) denied his motion to suppress
    the information obtained from a search of the contents of the
    two cell phones, because the phones were seized unlawfully
    and the warrant was issued on insufficient evidence to sup-
    port a finding of probable cause, was overly broad, and lacked
    particularity; (4) denied his motion to suppress call records
    and cell site location information from the cell phone service
    providers because that information was obtained pursuant to
    a search warrant that lacked sufficient probable cause, was
    overbroad, and lacked particularity and that the information in
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    the affidavit was the fruit of the unconstitutional search of his
    residence; (5) denied his motion to dismiss based on the State’s
    failure to comply with discovery requirements; and (6) denied
    his motion for complete discharge because he was deprived of
    his constitutional right to a speedy trial.
    IV. STANDARD OF REVIEW
    [1] Generally, a trial court’s determination as to whether
    charges should be dismissed on speedy trial grounds is a fac-
    tual question which will be affirmed on appeal unless clearly
    erroneous. 3
    [2] Trial courts have broad discretion with respect to sanc-
    tions involving discovery procedures, and their rulings thereon
    will not be reversed in the absence of an abuse of discretion. 4
    [3] In reviewing a trial court’s ruling on a motion to suppress
    evidence based on a claimed violation of the Fourth Amend­
    ment, we apply a two-part standard of review. Regarding his-
    torical facts, we review the trial court’s findings for clear error,
    but whether those facts trigger or violate Fourth Amendment
    protections is a question of law that we review independently
    of the trial court’s determination. 5
    [4] We review the trial court’s findings as to whether the
    affidavit supporting the warrant contained falsehoods or omis-
    sions and whether those were made intentionally or with reck-
    less disregard for the truth for clear error. 6 We review de novo
    the determination that any alleged falsehoods or omissions
    were not necessary to the probable cause finding. 7
    3
    State v. Billingsley, 
    309 Neb. 616
    , 
    961 N.W.2d 539
     (2021).
    4
    State v. Case, 
    304 Neb. 829
    , 
    937 N.W.2d 216
     (2020); State v. Hatfield, 
    304 Neb. 66
    , 
    933 N.W.2d 78
     (2019).
    5
    State v. Lowman, 
    308 Neb. 482
    , 
    954 N.W.2d 905
     (2021).
    6
    See, U.S. v. Mandell, 
    752 F.3d 544
     (2nd Cir. 2014); U.S. v. Elkins, 
    300 F.3d 638
     (6th Cir. 2002); U.S. v. Dozier, 
    844 F.2d 701
     (9th Cir. 1988); U.S.
    v. Garcia-Zambrano, 
    530 F.3d 1249
     (10th Cir. 2008).
    7
    See, e.g., U.S. v. Mandell, supra note 6.
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    [5] After-the-fact scrutiny by courts of the sufficiency of an
    affidavit should not take the form of de novo review. 8 Instead,
    a judge’s determination of probable cause to issue a search
    warrant should be paid great deference by reviewing courts. 9
    [6] Application of the good faith exception to the exclusion-
    ary rule is a question of law. 10
    V. ANALYSIS
    1. Late Disclosure of
    Discovery Materials
    We first address Short’s assignments that the trial court erred
    in denying his motions to dismiss and for absolute discharge.
    Short argues that under both due process and § 29-1919, the
    court should have dismissed the case against him as a sanc-
    tion for the prosecution’s delay in disclosing police interviews.
    Short does not argue that these delays, due to OPD’s failure
    to timely generate reports on the interviews, resulted in the
    unavailability of exculpatory witness testimony. Instead, he
    asserts he was prejudiced because the delays implicated his
    speedy trial rights. Short alternatively asserts that the district
    court erred in denying his motion for absolute discharge (which
    is the same as dismissal with prejudice), because the need
    for continuances to adequately prepare his defense after the
    delayed disclosures deprived him of his constitutional right to
    a speedy trial.
    (a) Constitutional Speedy Trial Right
    [7,8] We begin with the constitutional right to a speedy trial,
    since it lies at the core of all of Short’s arguments concerning
    these motions. The Sixth Amendment to the U.S. Constitution
    provides, “In all criminal prosecutions, the accused shall
    8
    State v. Detweiler, 
    249 Neb. 485
    , 
    544 N.W.2d 83
     (1996) (quoting Illinois
    v. Gates, 
    462 U.S. 213
    , 
    103 S. Ct. 2317
    , 
    76 L. Ed. 2d 527
     (1983)).
    9
    See 
    id. 10
    State v. Sprunger, 
    283 Neb. 531
    , 
    811 N.W.2d 235
     (2012).
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    enjoy the right to a speedy . . . trial . . . .” Similarly, Neb.
    Const. art. I, § 11, provides, “In all criminal prosecutions, the
    accused shall have the right to . . . a speedy . . . trial . . . .” The
    right to a speedy trial is unique from other rights enshrined in
    the U.S. Constitution for the protection of the accused because
    there is a societal interest in providing a speedy trial, which
    exists separate from, and at times in opposition to, the interests
    of the accused. 11 The deprivation of the right to a speedy trial
    may work to the accused’s advantage when adverse witnesses
    become unavailable or their memories fade over time. 12
    [9] “[T]he right to speedy trial is a . . . vague concept,” since
    “[w]e cannot definitely say how long is too long in a system
    where justice is supposed to be swift but deliberate.” 13 Instead,
    under the test set forth by the U.S. Supreme Court, we weigh
    (1) the length of delay, (2) the reason for the delay, (3) whether
    the defendant asserted his or her speedy trial rights, and (4)
    whether the defendant suffered possible prejudice. 14 None of
    the four factors is a necessary or sufficient condition to the
    finding of a deprivation of the right of speedy trial; rather, they
    are related factors and must be considered together with other
    circumstances as may be relevant. 15 The length of the delay,
    however, is a triggering mechanism for the four-factor test. 16
    Until there is some delay that is presumptively prejudicial,
    there is no necessity for inquiry into the other factors that go
    into the balance in determining if the right to a speedy trial has
    been violated. 17
    11
    See State v. Hettle, 
    288 Neb. 288
    , 
    848 N.W.2d 582
     (2014).
    12
    See 
    id. 13
    Barker v. Wingo, 
    supra note 1,
     
    407 U.S. at 521
    .
    14
    See, Barker v. Wingo, 
    supra note 1
    ; State v. Lovvorn, 
    303 Neb. 844
    , 
    932 N.W.2d 64
     (2019).
    15
    Barker v. Wingo, 
    supra note 1
    .
    16
    See, id.; State v. Kula, 
    254 Neb. 962
    , 
    579 N.W.2d 541
     (1998).
    17
    See 
    id.
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    In the context of statutory rights to a speedy trial, several
    courts have held that delay caused by defense requests for
    continuances, which were necessitated by the prosecution’s
    inexcusable delays in furnishing obligatory discovery materi-
    als, are chargeable to the prosecution. 18 These courts reason,
    as Short does in this appeal, that the defendant ought not to
    be forced to choose between preserving statutory speedy trial
    rights and receiving all mandatory discovery well before trial. 19
    But we have not found case law viewing with a similar sym-
    pathy arguments that delays due to continuances granted at the
    defense’s request, in response to dilatory discovery behavior
    by the State, violate the defendant’s constitutional right to a
    speedy trial.
    [10] The court in U.S. v. Shulick 20 specifically rejected such
    an argument. The court explained:
    Counsel cannot seek and obtain continuances to give the
    defense more time to be ready for trial because of the
    Government’s dilatory behavior and then after the fact
    reverse course and claim that the indictment should be
    dismissed on the ground that defendant’s right to a speedy
    trial under the Constitution has been infringed because of
    that behavior. 21
    It continued, “Courts have cautioned against this sort of tactic
    and have particularly frowned upon it when the right is not
    asserted until the eve of trial.” 22
    18
    See, U.S. v. Hastings, 
    847 F.2d 920
     (1st Cir. 1988); Colby v. McNeill, 
    595 So. 2d 115
     (Fla. App. 1992); Com. v. Taylor, 
    469 Mass. 516
    , 
    14 N.E.3d 955
     (2014), abrogated on other grounds, Commonwealth v. Dirico, 
    480 Mass. 491
    , 
    111 N.E.3d 1062
     (2018). See, also, State v. Driver, 
    270 Or. App. 287
    , 
    347 P.3d 359
     (2015).
    19
    See, U.S. v. Hastings, 
    supra note 18
    ; Com. v. Taylor, supra note 18.
    20
    U.S v. Shulick, 
    290 F. Supp. 3d 332
     (E.D. Penn. 2017).
    21
    
    Id. at 342-43
    .
    22
    
    Id. at 343
    .
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    The Shulick court relied upon United States v. Loud Hawk, 23
    wherein the U.S. Supreme Court held that delays caused by
    the defendant’s interlocutory appeal will not ordinarily weigh
    in favor of constitutional speedy trial claims. Defendants who
    resort to an interlocutory appeal “normally should not be able
    . . . to reap the reward of dismissal for failure to receive a
    speedy trial.” 24 Further, “‘Having sought the aid of the judicial
    process and realizing the deliberateness that a court employs in
    reaching a decision, [such] defendants are not now able to criti-
    cize the very process which they . . . called upon.’ . . .” 25
    [11] We agree with this reasoning and find it applicable to
    the continuances sought and obtained by Short in response to
    the State’s late disclosure of discovery materials before the
    mistrial. Short did not first seek dismissal under speedy trial
    principles, but waited until after the period of the continuances
    granted at his request to assert that trial had been delayed for
    too long. He cannot claim the loss of the fundamental right to
    a speedy trial through the inherent delays of a process he him-
    self called upon—even if that process was to vindicate another
    fundamental right.
    [12] Short did finally elect to stand on his constitutional
    right to a speedy trial when he filed his motion to dismiss or,
    in the alternative, for absolute discharge, after new late disclo-
    sures were made following the period of the requested contin­
    uances. However, in considering whether Short’s constitutional
    rights to a speedy trial were violated, we must bear in mind
    there was a mistrial. Absent extraordinary circumstances, we
    do not consider the entire period of time beginning with the
    original charge or arrest in computing the length of the delay
    when there has been a mistrial. 26 Instead, the constitutional
    23
    United States v. Loud Hawk, 
    474 U.S. 302
    , 
    106 S. Ct. 648
    , 
    88 L. Ed. 2d 640
     (1986).
    24
    
    Id.,
     
    474 U.S. at 316
    .
    25
    
    Id.,
     
    474 U.S. at 316-17
     (quoting United States v. Auerbach, 
    420 F.2d 921
    (5th Cir. 1969)).
    26
    See State v. Kula, 
    supra note 16
    .
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    speedy trial analysis focuses only on the period after the man-
    date for a new trial and the subsequent retrial. 27
    [13] Only misconduct involving deliberate delay tactics
    designed to circumvent the right to a speedy trial is an extraor-
    dinary circumstance warranting consideration of the period
    of delay before a mistrial. 28 Assuming without deciding that
    OPD’s conduct can be imputed to the prosecution for purposes
    of a constitutional speedy trial analysis, the trial court found
    that OPD, and particularly Phillips and Watson, did not act
    intentionally or in bad faith. We cannot say the court clearly
    erred in this determination. The record reflects no evidence that
    OPD’s conduct constituted a deliberate tactic to circumvent
    Short’s speedy trial rights. Thus, our speedy trial analysis con-
    siders only the period of delay following the mistrial.
    [14,15] That period of delay was only 246 days, approxi-
    mately 8 months. The U.S. Supreme Court has noted with
    approval that “[d]epending on the nature of the charges, the
    lower courts have generally found postaccusation delay ‘pre-
    sumptively prejudicial’ at least as it approaches one year.” 29
    A delay of a year or more is the benchmark commonly recog-
    nized as presumptively prejudicial in a constitutional speedy
    trial analysis. 30 This is especially true for more complex and
    serious crimes. The more complex and serious the crime, the
    longer a delay might be tolerated, because society also has an
    interest in ensuring that longer sentences are rendered upon the
    most exact verdicts possible. 31
    Where the mistrial was not due to prosecutorial miscon-
    duct, other courts have applied the 1-year triggering period to
    27
    See 
    id. 28
    See 
    id.
     See, also, State v. McCormack, 
    28 Wash. App. 65
    , 
    622 P.2d 1276
    (1980).
    29
    Doggett v. United States, 
    505 U.S. 647
    , 652 n.1, 
    112 S. Ct. 2686
    , 
    120 L. Ed. 2d 520
     (1992).
    30
    See 23 C.J.S. Criminal Procedure and Rights of Accused § 842 (2016).
    31
    Lloyd v. State, 
    207 Md. App. 322
    , 
    52 A.3d 161
     (2012). See, also, Barker v.
    Wingo, 
    supra note 1
    .
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    the delay in bringing the defendant to trial after a mistrial. 32
    The mistrial in this case was not in any way due to prosecuto-
    rial misconduct, but was due to misconduct by a third party
    associated with Short. Short will not benefit, in a speedy
    trial analysis, from such misconduct. Given the complex-
    ity of this case—involving two murder charges and multiple
    shootings—we do not find the 246-day delay to be presump-
    tively prejudicial.
    We thus need not engage in the four-factor analysis to con-
    clude that Short’s constitutional right to a speedy trial was
    not violated. But, for the sake of completeness, we find that
    the Barker four-factor analysis would not lead us to a differ-
    ent conclusion. The order of the district court setting the date
    for retrial was agreed upon by the parties and nothing in the
    record, or in Short’s brief, disputes this. In the same vein,
    at no point after the mistrial did Short make a constitutional
    speedy trial challenge to the delay in commencing the new
    trial. While courts cannot presume waiver of fundamental
    constitutional rights from inaction or from a silent record,
    “the defendant’s assertion of or failure to assert his [or her]
    right to a speedy trial is one of the factors to be considered in
    an inquiry into the deprivation of the right,” and a failure to
    assert speedy trial rights will make it difficult for the defend­
    ant to prove the denial of a speedy trial. 33 And the court found,
    as discussed, the delays were not intentional or in bad faith.
    Finally, Short makes no argument that he was prejudiced by
    the delay in terms of ultimately mounting his defense at trial,
    though he asserts he was incarcerated for an oppressive length
    of time.
    Generally, a trial court’s determination as to whether charges
    should be dismissed on speedy trial grounds is a factual
    question which will be affirmed on appeal unless clearly
    32
    See, People v. Landau, 
    214 Cal. App. 4th 1
    , 
    154 Cal. Rptr. 3d 1
     (2013);
    Whatley v. State, 
    326 Ga. App. 81
    , 
    755 S.E.2d 885
     (2014); State v. Echols,
    
    146 Ohio App. 3d 81
    , 
    765 N.E.2d 379
     (2001).
    33
    Barker v. Wingo, 
    supra note 1,
     
    407 U.S. at 528
    .
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    erroneous. 34 We hold that the district court did not clearly err
    in finding that Short’s constitutional speedy trial right was
    not violated.
    (b) Due Process
    To the extent Short attempts to assert an independent viola-
    tion of due process because of the delays attributable to the
    late discovery disclosures, we find such assertion to also be
    without merit.
    [16] Due process concepts of fundamental fairness, requir-
    ing that criminal defendants be afforded a meaningful oppor-
    tunity to present a complete defense, involve “what might
    loosely be called the area of constitutionally guaranteed access
    to evidence.” 35 This group of constitutional privileges delivers
    exculpatory evidence into the hands of the accused, thereby
    protecting the innocent from erroneous conviction and ensur-
    ing the integrity of our criminal justice system. 36 A defend­
    ant has a constitutionally protected privilege to request and
    obtain from the prosecution evidence that is either material
    to the guilt of the defendant or relevant to the punishment to
    be imposed. 37
    [17] Delays in this context can be prejudicial when the
    favorable evidence material to either guilt or punishment is
    either permanently lost or not disclosed before the end of
    trial. 38 The U.S. Supreme Court has held the rule that state
    suppression of favorable material evidence violates due proc­
    ess encompasses evidence known only to police investigators
    34
    State v. Lovvorn, 
    supra note 14
    ; State v. Smith, 
    286 Neb. 856
    , 
    839 N.W.2d 333
     (2013).
    35
    California v. Trombetta, 
    467 U.S. 479
    , 485, 
    104 S. Ct. 2528
    , 
    81 L. Ed. 2d 413
     (1984) (internal quotation marks omitted).
    36
    
    Id. 37
    Id.
    38
    See 
    id.
     See, also, e.g., State v. Clifton, 
    296 Neb. 135
    , 
    892 N.W.2d 112
    (2017).
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    and not to the prosecutor. 39 In other words, police conduct
    resulting in suppression of favorable material evidence is
    imputed to the prosecution.
    [18,19] But we have repeatedly held there is no due proc­
    ess violation when the defendant has had an opportunity to
    request a continuance to adequately prepare the defense in light
    of evidence that, while disclosed late, is ultimately disclosed
    before the end of trial. 40 Further, we have rejected the idea that
    due process protects against delays in bringing the accused
    to trial after arrest or indictment, as opposed to prearrest or
    indictment delay. 41 This is because “[t]he Fifth Amendment
    has only a ‘limited role to play in protecting against oppressive
    delay’ in the criminal context.” 42
    We similarly reject the notion, proposed by Short, that late
    disclosure of evidence resulting in a continuance at the behest
    of the defendant violates due process because it delays bring-
    ing the accused to trial after arrest or indictment. The Fifth
    Amendment right to access to evidence in such circumstances
    is adequately protected by the trial court’s discretion, as set
    forth in § 29-1919, to issue discovery sanctions.
    (c) Discovery Sanctions
    [20] Discovery in a criminal case is generally controlled by
    either a statute or a court rule. 43 Trial courts have broad discre-
    tion with respect to sanctions involving discovery procedures,
    and their rulings thereon will not be reversed in the absence of
    an abuse of discretion. 44 Section 29-1919 states:
    39
    See, Strickler v. Greene, 
    527 U.S. 263
    , 
    119 S. Ct. 1936
    , 
    144 L. Ed. 2d 286
    (1999); Kyles v. Whitley, 
    514 U.S. 419
    , 
    115 S. Ct. 1555
    , 
    131 L. Ed. 2d 490
    (1995).
    40
    See, e.g., State v. Clifton, 
    supra note 38
    .
    41
    See, State v. Oldson, 
    293 Neb. 718
    , 
    884 N.W.2d 10
     (2016); State v. Hettle,
    supra note 11.
    42
    State v. Hettle, supra note 11, 288 Neb. at 304, 848 N.W.2d at 596.
    43
    State v. Hatfield, 
    supra note 4
    .
    44
    State v. Case, 
    supra note 4
    ; State v. Hatfield, 
    supra note 4
    .
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    If, at any time during the course of the proceedings it is
    brought to the attention of the court that a party has failed
    to comply with . . . sections 29-1912 to 29-1921 or an
    order issued pursuant to . . . sections 29-1912 to 29-1921,
    the court may:
    (1) Order such party to permit the discovery or inspec-
    tion of materials not previously disclosed;
    (2) Grant a continuance;
    (3) Prohibit the party from calling a witness not dis-
    closed or introducing in evidence the material not dis-
    closed; or
    (4) Enter such other order as it deems just under the
    circumstances.
    [21] When a court sanctions the government in a criminal
    case for its failure to obey court orders, it must use the least
    severe sanction that will adequately punish the government
    and secure future compliance. 45 This court has a preference
    for a continuance in such situations and has previously held
    in discovery disputes that where a continuance can cure any
    prejudice by a failure to disclose, it is that remedy that should
    be utilized. 46 The continuance is seen as the vehicle that com-
    monly will eliminate the prejudice of surprise by placing the
    defense in a position similar to that in which it would have
    stood if timely disclosure had been made. 47
    [22] Dismissal is the most severe sanction and is only appro-
    priate in the most extreme circumstances involving bad faith
    or violations that result in irremediable harm that prevents the
    possibility of a fair trial. 48 Dismissal as a sanction for a discov-
    ery violation is only appropriate where less drastic alternatives
    are not available. 49
    45
    U.S. v. DeCoteau, 
    186 F.3d 1008
     (8th Cir. 1999).
    46
    State v. Hatfield, 
    supra note 4
    .
    47
    5 Wayne R. LaFave et al., Criminal Procedure § 20.6 (4th ed. 2015).
    48
    See, 22A C.J.S. Criminal Procedure and Rights of Accused § 468 (2016);
    Annot., 10 A.L.R.7th Art. 6 (2016).
    49
    See id.
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    In its order denying Short’s motion, the district court deter-
    mined the late disclosures were not intentional or in bad faith
    by either OPD or the prosecution. This factual finding was not
    clearly erroneous. The district court also found the prejudice
    to Short would be removed when, once provided the discovery
    information, Short were afforded an adequate opportunity to
    make use of the information and material in the preparation
    of his defense. Based on that, the court stated that if Short
    requested a continuance, the court would grant it. It declined
    to impose the extreme sanction of dismissal. Short never
    requested a continuance after the court’s ruling.
    [23] An abuse of discretion occurs when a trial court’s deci-
    sion is based upon reasons that are untenable or unreasonable
    or if its action is clearly against justice or conscience, reason,
    and evidence. 50 We have already determined that Short’s right
    to a speedy trial was not violated through the late disclosures
    of discovery materials. We are, as was the court below, deeply
    concerned with the level of neglect that resulted in the late dis-
    closures in this case. But the court did not clearly err in find-
    ing it was not the result of intentional or reckless conduct, and
    the record reflects that OPD had taken disciplinary measures
    to remedy the situation. We find no abuse of discretion in the
    district court’s determination that a continuance, if requested,
    was the least severe sanction that would adequately punish the
    government and secure future compliance, and certainly, it did
    not abuse its discretion in refusing to impose the most severe
    sanction of dismissal.
    2. Fruits of Search of Short’s Residence
    Short’s remaining assignments of error pertain to his objec-
    tions to the admission of evidence as fruits of various Fourth
    Amendment violations. The Fourth Amendment itself explicitly
    sets out the requirements of a warrant: “[N]o Warrants shall
    issue, but upon probable cause, supported by Oath or affir-
    mation, and particularly describing the place to be searched,
    50
    State v. Wheeler, 
    308 Neb. 708
    , 
    956 N.W.2d 708
     (2021).
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    and the persons or things to be seized.” Short’s first assertion
    in this regard is the court erred in admitting the fruits of the
    search of his residence, which consisted of two handguns,
    items of clothing, and venue items connecting Short to the LG
    smart phone.
    [24,25] To determine whether a warrant was issued upon
    probable cause, a court generally limits its review to the four
    corners of the affidavit. 51 An exception to that limitation is
    where the defendant makes a preliminary proffer of falsity
    warranting an evidentiary hearing. 52 Short does not contest
    that, as written, the four corners of the affidavit supporting
    the warrant to search his residence establish probable cause.
    Instead, Short argues that the warrant for the search of his resi-
    dence was invalid, because its supporting affidavit contained
    material falsities and omissions, and that the district court
    erred, upon the evidentiary hearing held below, in conclud-
    ing differently.
    [26] In Franks v. Delaware, 53 the U.S. Supreme Court
    explained, “‘[W]hen the Fourth Amendment demands a factual
    showing sufficient to comprise “probable cause,” the obvious
    assumption is that there will be a truthful showing.’” The Court
    clarified this “does not mean ‘truthful’ in the sense that every
    fact recited in the warrant affidavit is necessarily correct.” 54
    Rather, it recognized probable cause may be founded upon
    hearsay as well as “upon information within the affiant’s own
    knowledge that sometimes must be garnered hastily.” 55 It con-
    cluded that “surely it is to be ‘truthful’ in the sense that the
    information put forth is believed or appropriately accepted by
    the affiant as true.” 56
    51
    See Franks v. Delaware, 
    438 U.S. 154
    , 
    98 S. Ct. 2674
    , 
    57 L. Ed. 2d 667
    (1978).
    52
    See 
    id. 53
    Id.,
     
    438 U.S. at 164-65
    .
    54
    
    Id.,
     
    438 U.S. at 165
    .
    55
    
    Id. 56
    Id.
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    [27] In contrast, it would be “unthinkable” to allow a war-
    rant to stand beyond impeachment if it were revealed after the
    fact to contain a “deliberately or reckless false statement.” 57
    Thus, while there is a presumption of validity with respect to
    the affidavit supporting the search warrant, that presumption
    may be overcome and a search warrant may be invalidated if
    the defendant proves the affiant officer “‘knowingly and inten-
    tionally, or with reckless disregard for the truth,’” included in
    the affidavit false or misleading statements that were necessary,
    or “material,” to establishing probable cause. 58
    [28] Courts have extended the Franks rationale to omissions
    in warrant affidavits of material information. 59 Omissions in
    an affidavit used to obtain a search warrant are considered to
    be misleading when the facts contained in the omitted material
    tend to weaken or damage the inferences which can logically
    be drawn from the facts as stated in the affidavit. 60
    [29] If the defendant successfully proves, by a preponder-
    ance of the evidence, 61 that the police knowingly and inten-
    tionally, or with reckless disregard for the truth, included a
    false or misleading statement or omitted information material
    to a probable cause finding, then the court examines whether
    the evidence obtained from the warrant and search was
    fruit of the poisonous tree. 62 In an “‘excise and ­re-examine’
    corollary to the independent source rule,” 63 the trial court
    57
    
    Id. 58
    See State v. Schuller, 
    287 Neb. 500
    , 507, 
    843 N.W.2d 626
    , 632 (2014)
    (quoting Franks v. Delaware, 
    supra note 51
    ).
    59
    State v. Schuller, supra note 58.
    60
    State v. Spidel, 
    10 Neb. App. 605
    , 
    634 N.W.2d 825
     (2001) (citing State v.
    Utterback, 
    240 Neb. 981
    , 
    485 N.W.2d 760
     (1992)).
    61
    See, Franks v. Delaware, 
    supra note 51
    . See, also, U.S. v. Davis, 
    supra note 2
    .
    62
    See, Franks v. Delaware, 
    supra note 51
    ; Wong Sun v. United States, 
    371 U.S. 471
    , 
    83 S. Ct. 407
    , 
    9 L. Ed. 2d 441
     (1963); State v. Schuller, supra
    note 58.
    63
    State v. McKinney, 
    361 N.C. 53
    , 59, 
    637 S.E.2d 868
    , 872 (2006).
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    r­ eexamines the affidavit after deleting the false or misleading
    statement and including the omitted information, and it deter-
    mines whether, viewed under the totality of the circumstances,
    it still establishes probable cause. 64 If it does not, then Franks
    requires that the search warrant be voided and the fruits of the
    search excluded. 65
    [30] Mere negligence in preparing the affidavit will not
    lead to suppression, as the purpose of the exclusionary rule
    is to deter misconduct. 66 We review the trial court’s findings
    as to whether the affidavit supporting the warrant contained
    falsehoods or omissions and whether those were made inten-
    tionally or with reckless disregard for the truth for clear
    error. 67 We review de novo the determination that any alleged
    falsehoods or omissions were not necessary to the probable
    cause finding. 68
    In considering whether the district court erred in overruling
    Short’s objection to the evidence derived from the search of his
    residence, we will consider only what has been both specifi-
    cally assigned and specifically argued. 69 We do not consider on
    appeal every aspect of the affidavit challenged below simply
    because Short reiterated those as a factual background in the
    argument section of his brief.
    Looking at what is specifically argued on appeal to be mate-
    rial untruths, Short first points to the statement in the affidavit
    that Short’s fingerprint was found on a glove near the scene
    64
    See State v. Schuller, supra note 58. See, also, Franks v. Delaware, 
    supra note 51
    ; U.S. v. Eng, 
    571 F. Supp. 2d 239
     (D. Mass. 2008); Redding v.
    State, 
    192 Ga. App. 87
    , 
    383 S.E.2d 640
     (1989); State v. Olson, 
    11 Kan. App. 2d 485
    , 
    726 P.2d 1347
     (1986); State v. Cuong Phu Le, 
    463 S.W.3d 872
     (Tex. Crim. App. 2015).
    65
    State v. Schuller, supra note 58.
    66
    See State v. Bromm, 
    285 Neb. 193
    , 
    826 N.W.2d 270
     (2013).
    67
    See, U.S. v. Mandell, supra note 6; U.S. v. Elkins, 
    supra note 6
    ; U.S. v.
    Dozier, supra note 6; U.S. v. Garcia-Zambrano, 
    supra note 6
    .
    68
    See, e.g., U.S. v. Mandell, supra note 6.
    69
    See, e.g., State v. Mrza, 
    302 Neb. 931
    , 
    926 N.W.2d 79
     (2019).
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    of the crime, when in fact it had been found on a pricetag.
    Second, Short points to the statement in the affidavit that Short
    was located at 4268 Binney Street, when Short was actually
    located walking toward 4268 Binney Street, inside the crime
    scene perimeter tape, three or four houses away.
    Third, Short points to the statement that “witnesses stated
    after the shooting two [B]lack males were seen running through
    yards and got into a white Chevy Monte Carlo.” He asserts this
    falsely indicated eyewitnesses to the shooting also observed
    the same suspects get into the Monte Carlo when, instead,
    the assertion in the affidavit was a compilation by Culler of
    the observations made by multiple witnesses, none of whom
    both saw the shooting and saw the suspects get into the Monte
    Carlo. Short asserts the record establishes that no eyewitness
    to the shooting was aware of the existence of the white Chevy
    Monte Carlo and that only one witness, unaware at that time a
    shooting had taken place, observed two males enter the white
    Monte Carlo.
    The only omission argued on appeal is that Finley was
    unable to identify Short as the suspect when shown a photo-
    graphic spread.
    The district court found that the misstatements and omis-
    sions were not made intentionally, in bad faith, or in reckless
    disregard for the truth and, further, that the misstatements
    and omissions were not material to the finding of sufficient
    probable cause. We hold the district court did not clearly
    err in finding that the misstatements and omissions were not
    made intentionally, in bad faith, or in reckless disregard for
    the truth.
    Short points out that Hinsley’s and Culler’s testimonies
    were in conflict with each other. Hinsley testified that Culler
    may have misspoken when she relayed to him that the finger-
    print was on a glove. Culler, in contrast, testified that she was
    clear in her conversation with Hinsley the fingerprint was on
    a pricetag and that Hinsley made an innocent mistake in the
    affidavit. But it does not follow from Hinsley’s and Culler’s
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    differing recollections as to which of them was the original
    source of the misstatement that the district court clearly erred
    in determining the misstatement was unintentional and was
    made in good faith with due care.
    [31] Other than noting Culler’s inexperience in the homi-
    cide unit and an internal affairs investigation into Hinsley’s
    professional misconduct in an unrelated situation, Short does
    not present additional illustration of how he proved by a pre-
    ponderance of the evidence the alleged false statements and
    omissions were made knowingly and intentionally or with
    reckless disregard for the truth. There was no evidence that the
    statement regarding where exactly Short was found or what
    item his fingerprint was found on was anything other than
    inadvertent. With regard to the omission of the photographic
    spread, Finley had told Hinsley there may have been two indi-
    viduals. Thus, Hinsley may have overlooked the materiality of
    the failure to identify Short, when Finley saw only one of the
    shooters. Regarding the statement about witnesses seeing two
    Black males running toward a white Chevy Monte Carlo after
    the shooting, this court has held that observations by fellow
    officers engaged in a common investigation are a reliable basis
    for a warrant and that probable cause is to be evaluated by the
    collective information of the police as reflected in the affidavit
    and is not limited to the firsthand knowledge of the officer who
    executes the affidavit. 70
    Because the district court did not clearly err in finding the
    alleged falsehoods or omissions were not made knowingly and
    intentionally or with a reckless disregard for the truth, we need
    not review the district court’s reexamination of the affidavit
    after deleting the false or misleading statement and including
    the omitted information. We find no merit to Short’s assertion
    that the district court erred in refusing to suppress the evidence
    derived from the search of his residence.
    70
    State v. Stickelman, 
    207 Neb. 429
    , 
    299 N.W.2d 520
     (1980).
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    3. Fruits of Search of Short’s Cell Phones,
    Call Records, and Location Information
    Short’s other Fourth Amendment arguments concern the
    admission of evidence derived from the search of Short’s cell
    phones, call records, and cell phone location information. He
    argues the contents within the four corners of the affidavits for
    the relevant search warrants failed to establish probable cause.
    He also asserts the warrants themselves lacked particularity.
    And, with respect to the search of the cell phones, Short argues
    they were seized in violation of the Fourth Amendment.
    (a) Affidavits Supporting Probable Cause
    We first examine the sufficiency of the affidavits challenged
    on appeal. Short asserts the affidavit for the search of his cell
    phones and the affidavit in support of the 2018 search warrant
    for his LG smart phone’s call records and cell site location
    information both lack a nexus between the crimes under inves-
    tigation and the items to be searched. And Short claims the
    affidavits are so facially inadequate that the good faith excep-
    tion to the exclusionary rule does not apply.
    [32,33] Probable cause sufficient to justify issuance of a
    search warrant means a fair probability that contraband or evi-
    dence of a crime will be found in the item to be searched. 71 The
    Fourth Amendment’s express requirement of particularity for a
    search warrant is closely related to its express requirement of
    probable cause. 72 Thus, the U.S. Supreme Court has explained
    the critical element in a reasonable search of property is not
    that the owner of property is suspected of crime, but, rather,
    that there is reasonable cause to believe the specific things to
    be searched for and seized are located on the property to which
    entry is sought. 73
    71
    State v. Said, 
    306 Neb. 314
    , 
    945 N.W.2d 152
     (2020).
    72
    See State v. Sprunger, supra note 10.
    73
    Zurcher v. Stanford Daily, 
    436 U.S. 547
    , 
    98 S. Ct. 1970
    , 
    56 L. Ed. 2d 525
    (1978).
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    [34,35] A warrant affidavit must always set forth particular
    facts and circumstances underlying the existence of probable
    cause, so as to allow the magistrate to make an independent
    evaluation of probable cause. 74 The nexus between the alleged
    crimes and the article to be searched, however, does not need
    to be based on direct observation; it can be found in the type of
    crime, the nature of the evidence sought, and the normal infer-
    ences as to where such evidence may be found. 75
    [36,37] Probable cause may be based on “common-sense
    conclusions about human behavior,” 76 and due weight should be
    given to inferences by law enforcement officers based on their
    experience and specialized training. 77 But wholly conclusory
    statements by a law enforcement officer affiant that the affiant
    has reliable information and reason to believe evidence of a
    crime will be found in a particular place are insufficient. 78
    [38,39] “Probable cause” is a term of art in Fourth
    Amendment jurisprudence that is defined as a “practical, non-
    technical conception that deals with the factual and practical
    considerations of everyday life on which reasonable and pru-
    dent [persons] not legal technicians, act.” 79 The fundamental
    question in a challenge to an affidavit for lack of probable
    cause is whether, under the totality of the circumstances
    illustrated by the affidavit, the issuing magistrate had a sub-
    stantial basis for finding that the affidavit established prob-
    able cause. 80
    74
    See Franks v. Delaware, 
    supra note 51
    .
    75
    See Commonwealth v. Snow, 
    486 Mass. 582
    , 
    160 N.E.3d 277
     (2021).
    76
    Illinois v. Gates, 
    supra note 8,
     
    462 U.S. at 231
     (internal quotation marks
    omitted).
    77
    See United States v. Arvizu, 
    534 U.S. 266
    , 
    122 S. Ct. 744
    , 
    151 L. Ed. 2d 740
     (2002).
    78
    See Illinois v. Gates, 
    supra note 8
    .
    79
    Maryland v. Pringle, 
    540 U.S. 366
    , 370, 
    124 S. Ct. 795
    , 
    157 L. Ed. 2d 769
    (2003) (internal quotation marks omitted).
    80
    State v. Said, 
    supra note 71
    ; State v. Hernandez, 
    268 Neb. 934
    , 
    689 N.W.2d 579
     (2004).
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    [40-42] The magistrate who is evaluating the probable
    cause question must make a practical, commonsense decision
    whether, given the totality of the circumstances set forth in the
    affidavit, including the veracity of and basis of knowledge of
    the persons supplying hearsay information, there is a fair prob-
    ability that contraband or evidence of a crime will be found in
    a particular place. 81 Ultimately, where the circumstances are
    detailed, where reasons for crediting the source of information
    is given, and where the magistrate has found probable cause to
    exist, the court should not invalidate the affidavit in a hyper-
    technical manner. 82 Reasonable minds frequently may differ on
    the question whether a particular affidavit establishes probable
    cause, 83 and after-the-fact scrutiny by courts of the sufficiency
    of an affidavit should not take the form of de novo review. 84
    Instead, a judge’s determination of probable cause to issue
    a search warrant should be paid great deference by review-
    ing courts. 85
    With respect to the affidavit in support of the search of his
    phones, Short generally asserts it was a “bare bones” affidavit
    that gave the magistrate virtually no basis for making an inde-
    pendent judgment regarding probable cause. 86 Short’s more
    specific argument, though, is that the only information in the
    affidavit pertaining to the required nexus between the crimes
    and the information contained on the phones is that Short was a
    suspect and that in the officer’s experience, it is not uncommon
    for those suspected of criminal activity to have evidence of that
    crime on their cell phones.
    81
    State v. Hernandez, 
    supra note 80
    .
    82
    See State v. Stickelman, 
    supra note 70
    .
    83
    United States v. Leon, 
    468 U.S. 897
    , 
    104 S. Ct. 3405
    , 
    82 L. Ed. 2d 677
    (1984).
    84
    State v. Detweiler, 
    supra note 8
    .
    85
    See 
    id. 86
    See brief for appellant at 53.
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    Short’s arguments with respect to the 2018 affidavit in sup-
    port of the search of Short’s call records and cell site loca-
    tion information are similar. Short claims the 2018 affidavit
    “simply contains boilerplate assertions of generic ‘criminals’
    conduct’” without “any information specific as to why there
    is probable cause to believe that [the call records and cell site
    location information] will contain evidence of the crime under
    investigation.” 87
    In State v. Said, 88 we held the affidavit supporting the
    search warrant for the contents of a cell phone was sufficient
    to establish probable cause when, in addition to statements set-
    ting forth the officer’s general knowledge of how cell phones
    may be used by a person who has committed a crime and that
    evidence of the crime may generally be found on a suspect’s
    cell phone, the affidavit set forth specific information derived
    from the investigation indicating the suspect’s involvement
    in the crime, as well as allegations that the suspect had com-
    municated with others and sought information regarding that
    crime. We explained the judge could infer from this informa-
    tion the suspect likely used his cell phone to search the inter-
    net for information and in communicating with others about
    the crime.
    [43,44] We did not elaborate in Said upon general principles
    applicable to affidavits for searches of cell phone informa-
    tion or describe what other hypothetical facts would or would
    not support probable cause to search a cell phone or cell
    phone information. But several other courts have addressed
    the issue. We agree with these courts that law enforcement
    cannot only “rely on the general ubiquitous presence of cel-
    lular telephones in daily life, or an inference that friends or
    associates most often communicate by cellular telephone, as
    a substitute for particularized information to support probable
    87
    
    Id. at 76
    .
    88
    State v. Said, 
    supra note 71
    .
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    cause that a specific device contains evidence of a crime.” 89 To
    support probable cause, statements based on law enforcement
    expertise and experience must be accompanied by particular
    facts and circumstances such that, under the totality of the cir-
    cumstances, including commonsense conclusions about human
    behavior, there is a substantial basis for concluding evidence
    of a crime will be found on the phone or phone informa-
    tion searched.
    [45,46] What will constitute sufficient particularized infor-
    mation to support probable cause that a cell phone or cell
    phone information searched will contain evidence of a crime
    depends upon the nature and circumstances of the crime and
    what is sought in the warrant. For example, to search the con-
    tents of cell phones in relation to a crime involving an accom-
    plice, courts have found affidavits provide sufficient support
    for probable cause when they contain averments showing the
    suspect was working with at least one other person when the
    crime was committed; was in possession of a cell phone near
    the time of the crime; and a law officer, based on experience
    and specialized training, believed the search likely to yield
    evidence of communications and coordination among these
    multiple participants. 90 To search cell site location information,
    in contrast, courts have found the necessary nexus where there
    were facts in the affidavit showing the suspect probably com-
    mitted a crime, the nature of which makes location informa-
    tion possibly incriminating, and the suspect was known to own
    or use the particular phone. 91 It can be generally recognized
    89
    Commonwealth v. Morin, 
    478 Mass. 415
    , 426, 
    85 N.E.3d 949
    , 960 (2017).
    90
    See, U.S. v. Lavallis, 
    515 F. Supp. 3d 686
     (E.D. Mich. 2021); U.S. v.
    Gholston, 
    993 F. Supp. 2d 704
     (E.D. Mich. 2014); Johnson v. State, 
    2015 Ark. 387
    , 
    472 S.W.3d 486
     (2015). See, also, U.S. v. Barret, 
    824 F. Supp. 2d 419
     (E.D.N.Y. 2011).
    91
    See Commonwealth v. Hobbs, 
    482 Mass. 538
    , 
    125 N.E.3d 59
     (2019). See,
    also, United States v. Hunt, 
    718 Fed. Appx. 328
     (6th Cir. 2017); U.S. v.
    Gibbs, 
    547 Fed. Appx. 174
     (4th Cir. 2013).
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    that cell phones tend to accompany their users everywhere,
    and thus, it may be inferred that a suspect’s cell phone prob-
    ably accompanied the suspect at the time of the crime. 92
    [47] Neither affidavit at issue in this appeal contains merely
    conclusory statements. Both lengthy affidavits, described in
    detail in the background section above, were far from “bare
    bones.” A warrant may be considered so lacking in indicia of
    probable cause if the applicant files merely a bare bones affi-
    davit, one which contains only wholly conclusory statements
    and presents essentially no evidence outside of such conclu-
    sory statements. 93
    The affidavits set forth numerous specific facts derived from
    the investigation supporting the probability that Short was
    involved in the homicides. The question is whether the specific
    averments provided a substantial basis for the likelihood that
    searching the cell phones, call records, and cell site location
    information would produce evidence of the specific crimi-
    nal activity described. However, the district court found that
    regardless of whether the information within the four corners
    of the affidavits contained sufficient particularized information
    to support probable cause that the information authorized by
    the warrants to be searched would contain evidence of a crime,
    the officers acted in good faith in carrying out the warrants. We
    agree the good faith exception applies.
    [48,49] Application of the good faith exception to the exclu-
    sionary rule is a question of law. 94 The U.S. Supreme Court has
    explained that to trigger the exclusionary rule, police conduct
    must be sufficiently deliberate that exclusion can meaningfully
    deter such conduct and sufficiently culpable that such deter-
    rence is worth the price paid by the justice system, as exclu-
    sion serves to deter deliberate, reckless, or grossly negligent
    92
    See 
    id. 93
    Stevenson v. State, 
    455 Md. 709
    , 
    168 A.3d 967
     (2017).
    94
    State v. Sprunger, supra note 10.
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    conduct, or in some circumstances recurring or systemic negli-
    gence. 95 The good faith exception is applicable to an affidavit
    that fails to satisfy the substantial basis test to support probable
    cause, when police officers act in objectively reasonable good
    faith in reliance upon the warrant. 96
    The good faith inquiry is confined to the objectively ascer-
    tainable question of whether a reasonably well-trained officer
    would have known that the search was illegal despite a mag-
    istrate’s authorization. 97 In assessing the good faith of an offi-
    cer’s conducting a search under a warrant, an appellate court
    must look to the totality of the circumstances surrounding the
    issuance of the warrant, including information not contained
    within the four corners of the affidavit. 98 When evaluating
    whether the warrant was based on an affidavit so lacking in
    indicia of probable cause as to render official belief in its exis-
    tence entirely unreasonable, an appellate court should address
    whether the officer, considered as a police officer with a rea-
    sonable knowledge of what the law prohibits, acted in objec-
    tively reasonable good faith in relying on the warrant. 99 It has
    also been said:
    If the reviewing court is “able to identify in the averring
    officer’s affidavit some connection, regardless of how
    remote it may have been”—“some modicum of evidence,
    however slight”—“between the criminal activity at issue
    and the place to be searched,” then the affidavit is not
    bare bones and official reliance on it is reasonable.” 100
    95
    Herring v. United States, 
    555 U.S. 135
    , 
    129 S. Ct. 695
    , 
    172 L. Ed. 2d 496
    (2009).
    96
    See State v. Sprunger, supra note 10.
    97
    Id.
    98
    Id.
    99
    See, United States v. Leon, 
    supra note 83
    ; State v. Sprunger, supra note 10;
    State v. Nuss, 
    279 Neb. 648
    , 
    781 N.W.2d 60
     (2010); State v. Edmonson,
    
    257 Neb. 468
    , 
    598 N.W.2d 450
     (1999).
    100
    U.S. v. White, 
    874 F.3d 490
    , 497 (6th Cir. 2017).
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    The affidavits contained a modicum of evidence between
    the criminal activity at issue and the places to be searched, and
    the knowledge of law enforcement outside the four corners of
    the affidavits provided a sufficient basis for the likelihood that
    evidence of the criminal activity would be found in the particu-
    lar places searched. The law in Nebraska and elsewhere con-
    cerning the minimum allegations to support a search of a cell
    phone, call records, or location information is fact specific, and
    we have not addressed similar affidavits. Accordingly, while
    we assume law enforcement has reasonable knowledge of the
    law, the law was not sufficiently clear with respect to the affi-
    davits at issue for us to conclude law enforcement was entirely
    unreasonable in its belief they were sufficient.
    Assuming without deciding the warrants to search Short’s
    cell phones, call records, and cell site location information
    were not supported by a substantial basis for their issuance,
    we find the police relied in good faith upon the warrants when
    executing the searches. Accordingly, the district court did not
    err in overruling Short’s objections based on alleged deficien-
    cies in the warrants’ supporting affidavits.
    (b) Particularity of Warrants
    [50,51] We next examine the particularity of the two warrants.
    In addition to the requirement of probable cause, the Fourth
    Amendment and article I, § 7, of the Nebraska Constitution
    contain a particularity requirement that a warrant describe the
    place to be searched and the persons or things to be seized.
    “It is familiar history that indiscriminate searches and seizures
    conducted under the authority of ‘general warrants’ were the
    immediate evils that motivated the framing and adoption of the
    Fourth Amendment.” 101 A purpose of the particularity require-
    ment for a search warrant is to prevent the issuance of warrants
    on loose, vague, or doubtful bases of fact. 102 The particularity
    101
    Payton v. New York, 
    445 U.S. 573
    , 583, 
    100 S. Ct. 1371
    , 
    63 L. Ed. 2d 639
    (1980).
    102
    State v. Said, 
    supra note 71
    .
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    requirement of the Fourth Amendment protects against open-
    ended warrants that leave the scope of the search to the discre-
    tion of the officer executing the warrant or permits seizure of
    items other than what is described. 103 Simply put, the Fourth
    Amendment prohibits “fishing expeditions.” 104
    [52-55] To satisfy the particularity requirement of the Fourth
    Amendment, a warrant must be sufficiently definite to enable
    the searching officer to identify the property authorized to
    be seized. 105 The degree of specificity required in a warrant
    depends on the circumstances of the case and on the type of
    items involved. 106 A search warrant may be sufficiently particu-
    lar even though it describes the items to be seized in broad or
    generic terms, if the description is as particular as the support-
    ing evidence will allow; but the broader the scope of a warrant,
    the stronger the evidentiary showing must be to establish prob-
    able cause. 107 A warrant for the search of the contents of a cell
    phone must be sufficiently limited in scope to allow a search
    of only that content that is related to the probable cause that
    justifies the search. 108
    Short argues the warrants to search the contents of his physi-
    cal cell phones, call data, and cell site location information
    simply eliminated the “‘any and all’” language we previously
    held to be overly broad and replaced it with “a laundry list
    of everything possibly contained in a cell phone.” 109 Further,
    Short takes particular exception to the sentence in the warrant
    for the physical cell phones authorizing law enforcement to
    “examine every file and scan its contents briefly to determine
    whether it falls within the scope of the warrant,” which he
    103
    State v. Jennings, 
    305 Neb. 809
    , 
    942 N.W.2d 753
     (2020).
    104
    State v. Sprunger, supra note 10.
    105
    State v. Said, 
    supra note 71
    .
    106
    
    Id. 107
    Id.
    108
    Id.
    109
    Brief for appellant at 66 (citing State v. Henderson, 
    289 Neb. 271
    , 
    854 N.W.2d 616
     (2014)).
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    asserts authorized law enforcement to “‘rummage around’” to
    see what they might find. 110
    Other courts have rejected the argument that an authoriza-
    tion in a warrant to “examine every file and scan its contents
    briefly to determine whether it falls within the scope of the
    warrant,” or similar language, violates the particularity clause
    of the Fourth Amendment. 111 Courts reason that scanning all
    digital information related to a cell phone is like searching
    everywhere in a house for evidence of drugs or searching
    every document in a filing cabinet when the incriminating
    evidence may be found in any file or folder. Neither search
    is overbroad, because “[c]riminals don’t advertise where they
    keep evidence.” 112 A cell phone serves the same function as a
    filing cabinet, and there is no way for law enforcement to know
    in advance how a suspect may label or code files that contain
    evidence of criminal activity. 113
    The U.S. Supreme Court in Riley v. California, 114 in hold-
    ing a warrant is required to search data stored in cell phones
    seized incident to arrest, recognized “a cell phone search would
    typically expose to the government far more than the most
    exhaustive search of a house.” The Court did not thereby sug-
    gest that such an extensive search would be impermissible with
    a warrant.
    [56,57] Officers cannot predict where evidence of a crime
    will be located in a cell phone or call records or in what
    110
    Brief for appellant at 67.
    111
    See, State v. Johnson, 
    576 S.W.3d 205
     (Mo. App. 2019); State v. Swing,
    
    2017 Ohio 8039
    , 
    98 N.E.3d 828
     (2017); State v. Savath, 
    298 Or. App. 495
    ,
    
    447 P.3d 1
     (2019). See, also, e.g., U.S. v. Stabile, 
    633 F.3d 219
     (3rd Cir.
    2011); Com v. McDermott, 
    448 Mass. 750
    , 
    864 N.E.2d 471
     (2007).
    112
    U.S. v. Bishop, 
    910 F.3d 335
    , 336 (7th Cir. 2018). See, also, Andresen v.
    Maryland, 
    427 U.S. 463
    , 
    96 S. Ct. 2737
    , 
    49 L. Ed. 2d 627
     (1976); State v.
    Johnson, 
    supra note 111
    .
    113
    See 
    id. 114
    Riley v. California, 
    573 U.S. 373
    , 396, 
    134 S. Ct. 2473
    , 
    189 L. Ed. 2d 430
    (2014).
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    format, such as texts, videos, photographs, emails, or applica-
    tions. 115 There is no way for law enforcement to know where in
    the digital information associated with cell phones it will find
    evidence of the specified crime. 116 Sophisticated users can hide
    digital data in complex ways. 117
    [58,59] Thus, courts refuse to require ex ante limitations
    based on file or data type or specific application. 118 In an elec-
    tronic search, law enforcement will likely need to examine, at
    least briefly, information or data beyond that identified in the
    warrant. 119 The most important constraint in preventing uncon-
    stitutional exploratory rummaging is that the warrant limit
    the search to evidence of a specific crime, ordinarily within a
    specific time period, rather than allowing a fishing expedition
    for all criminal activity. 120 We agree that a brief examination
    of all electronic data associated with a cell phone is usually
    necessary in order to find where the information to be seized is
    located, and such examination is reasonable under the Fourth
    Amendment. We accordingly hold that the breadth of electronic
    information that the warrants here authorized law enforcement
    to sift through did not render them unconstitutional under the
    particularity clause of the Fourth Amendment.
    Regarding the extensiveness of the list of items to be
    searched for and seized, while sifting through the extensive
    data, this court in State v. Goynes 121 has already found suffi-
    ciently particular a warrant allowing a search for and seizure
    115
    See State v. Johnson, 
    supra note 111
    .
    116
    See 
    id. 117
    State v. Mansor, 
    363 Or. 185
    , 
    421 P.3d 323
     (2018).
    118
    See 
    id. 119
    State v. Savath, supra note 111.
    120
    See, e.g., U.S. v. Castro, 
    881 F.3d 961
     (6th Cir. 2018); U.S. v. Bass, 
    785 F.3d 1043
     (6th Cir. 2015); U.S. v. Bishop, supra note 112; State v. Johnson,
    
    supra note 111
    ; People v. English, 
    52 Misc. 3d 318
    , 
    32 N.Y.S.3d 837
    (2016). See, also, Wheeler v. State, 
    135 A.3d 282
     (Del. 2016).
    121
    State v. Goynes, 
    303 Neb. 129
    , 
    927 N.W.2d 346
     (2019).
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    of a list of data types almost identical to the most extensive of
    the two warrants here at issue—when, like here, the search was
    constrained to evidence of the specific crime. The items listed
    in the warrant in Goynes included all of the following:
    cell phone information, configurations, calendar events,
    notes, and user account information which could identify
    who owns or was using a cell phone; call logs which
    could establish familiarity between people involved and
    timelines of an incident; short and multimedia messaging
    service messages, chat and instant messages, and emails
    which could provide insight to establish an individ­
    ual’s level of culpability and knowledge of the incident;
    installed application data which could aid in determining
    a user’s historical geographic location and demonstrate
    the user’s association with investigated people, location,
    and events; media files such as images, videos, audio, and
    documents which could provide times and locations, as
    well as firsthand documentation of the incident; internet
    browsing history which could demonstrate the planning,
    desire, and participation in a crime; cell tower connec-
    tions, global positioning system data, Wi-Fi, Bluetooth,
    and synchronization logs which could provide informa-
    tion on location in relation to the incident; and user dic-
    tionary information which could demonstrate familiarity
    with the crime being investigated. 122
    We rejected the argument that because the extensive list
    encompassed practically the entirety of the data contained
    within cell phones, it was no different than a warrant autho-
    rizing the search of “any and all” information stored on a
    cell phone. 123
    We explained in Goynes that the warrants in Henderson
    violated the requirements of particularity because, in addition
    to listed types of cell phone data to search, they authorized
    122
    
    Id. at 142-43,
     927 N.W.2d at 356.
    123
    Id. at 143, 927 N.W.2d at 356 (internal quotation marks omitted).
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    a broad search of “any other information that can be gained
    from the internal components and/or memory Cards” and failed
    to refer to a specific crime being investigated. 124 We clarified
    in Goynes that “Henderson does not stand for the rule that a
    search of a cell phone cannot be expansive.” 125
    We held that the list in the affidavit at issue in Goynes,
    while expansive, was not insufficiently particular and did not
    violate the Fourth Amendment. This was because the warrant
    described the crime, listed the specific areas to be searched,
    and did not contain unqualified language that would permit the
    search of the cell phone for “any other information.” 126
    Neither warrant at issue here contained the catchall phrase
    we found unconstitutional in Henderson. The 2018 warrant
    for the call records and cell site location information speci-
    fied the crime of homicide and a limited time period of July
    8 to August 10, 2015. The warrant to search the physical cell
    phones limited the search to evidence relating to the homicide
    of Johnson. While both warrants might be viewed as exten-
    sive, they did not lack in particularity. The authorization to
    “examine every file and scan its contents briefly to determine
    whether it falls within the scope of the warrant” does not
    negate that particularity. The district court did not err in deter-
    mining the warrants satisfied the particularity requirements of
    the Fourth Amendment.
    (c) Pat-Down Search and
    Seizure of Cell Phones
    Lastly, we find no merit to Short’s argument that the searches
    of his phones are tainted by their alleged illegal seizure. The
    phone number information was independently found in the
    124
    See 
    id. at 143-44,
     927 N.W.2d at 356 (quoting State v. Henderson, supra
    note 109).
    125
    State v. Goynes, 
    supra note 121,
     303 Neb. at 143, 927 N.W.2d at 356
    (internal quotation marks omitted).
    126
    See id. (internal quotation marks omitted).
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    search of Short’s residence, which we have already found
    did not violate the Fourth Amendment, and Short stipulated
    at trial that the LG smart phone number belonged to him for
    the dates in question. Thus, the only fruits of the seizure of
    the phones was the evidence, not also found in the search of
    data for the phone numbers, derived from the search of the
    physical phones. Such evidence was minimal and consisted
    of contacts between Short and Pope, contacts between Short
    and Harlan, and indications that Short’s phone either searched
    for and accessed or was sent and downloaded news reports on
    the homicides from a television station’s website. Regardless,
    in our de novo review, we conclude the warrantless seizure
    of Short’s cell phones while he sat in the police cruiser was
    not unlawful.
    [60,61] Warrantless searches and seizures are per se unrea-
    sonable under the Fourth Amendment, subject only to a few
    specifically established and well-delineated exceptions, which
    must be strictly confined by their justifications. 127 These
    exceptions include searches incident to a valid arrest. 128 In
    United States v. Robinson, 129 the U.S. Supreme Court held
    that in the case of a lawful custodial arrest, a full search of
    a person is not only an exception to the Fourth Amendment’s
    warrant requirement, but is also a reasonable search under that
    amendment. 130
    [62,63] Further, it has been held that a search incident to an
    arrest can be made before an arrest as long as probable cause
    for the arrest exists before the search. 131 It does not matter that
    a defendant is not formally placed under arrest until after a
    127
    State v. Voichahoske, 
    271 Neb. 64
    , 
    709 N.W.2d 659
     (2006).
    128
    See 
    id. 129
    United States v. Robinson, 
    414 U.S. 218
    , 
    94 S. Ct. 467
    , 
    38 L. Ed. 2d 427
    (1973).
    130
    See State v. Hayes, 
    3 Neb. App. 919
    , 
    535 N.W.2d 715
     (1995).
    131
    See State v. Twohig, 
    238 Neb. 92
    , 
    469 N.W.2d 344
     (1991).
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    search, so long as the fruits of the search are not necessary to
    support probable cause to arrest. 132
    [64,65] Probable cause to support a warrantless arrest exists
    only if law enforcement has knowledge at the time of the
    arrest, based on information that is reasonably trustworthy
    under the circumstances, which would cause a reasonably
    cautious person to believe that a suspect has committed or is
    committing a crime. 133 And under the collective knowledge
    doctrine, the existence of probable cause justifying a warrant-
    less arrest is tested by the collective information possessed by
    all the officers engaged in a common investigation. 134
    At the time Short arrived at his residence, law enforcement
    knew Short’s fingerprints had been found on a pricetag near
    the Neelon homicide, that witnesses who heard gunshots at
    the time of the Johnson homicide saw two Black males get
    into a white Chevy Monte Carlo with dealer paper plates, and
    that a white Chevy Monte Carlo matching the description with
    in-transits and dealer paper plates was found parked in front
    of the last known address of Short. Further, the officers testi-
    fied at trial that, at the time Short arrived at his residence,
    they believed that these homicides were connected based on
    the attempted shooting of Johnson in front of the Neelon
    residence the day before Neelon was shot and killed at her
    home. This information was reasonably trustworthy under the
    circumstances and would cause a reasonably cautious person
    to believe that these homicides were connected, that Short had
    been present at both homicide scenes, and that Short had com-
    mitted a crime.
    We find as a matter of law there was probable cause to arrest
    Short when the phones were seized. As such, we need not
    analyze whether the district court was correct that the phones
    132
    See 
    id. 133
    State v. Garcia, 
    302 Neb. 406
    , 
    923 N.W.2d 725
     (2019).
    134
    State v. Huff, 
    282 Neb. 78
    , 
    802 N.W.2d 77
     (2011).
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    would inevitably have been discovered even if Short had not
    been illegally detained.
    Because the phones were seized during a search conducted
    incident to a warrantless de facto arrest that was supported
    by probable cause, their seizure did not violate the Fourth
    Amendment. We affirm the district court’s finding that law
    enforcement did not obtain the phones in violation of the
    Fourth Amendment. 135
    VI. CONCLUSION
    Short’s cell phones were not seized during an unlawful
    arrest, and the search of his residence was not pursuant to a
    warrant supported by an affidavit containing intentional or
    reckless falsities or omissions. The warrants supporting the
    searches of Short’s physical phones, digital call records, and
    cell site location information were sufficiently particular, and
    the affidavits supporting the warrants contained sufficient
    evidence connecting the criminal activity and the place to
    be searched for law enforcement’s reliance thereupon to be
    in good faith. Whether from the perspective of the constitu-
    tional right to a speedy trial, due process, statutory discovery
    rules, or all combined, the district court did not err in denying
    Short’s motion to dismiss without prejudice or, in the alterna-
    tive, for absolute discharge. For all these reasons, we find
    no merit to Short’s assignments of error and affirm the judg-
    ment below.
    Affirmed.
    135
    See State v. Jennings, 
    supra note 103
    .
    Miller‑Lerman, J., concurring.
    I concur in the result reached by the court, but write sepa-
    rately simply to remark on the path followed in our analysis
    with respect to the propriety of the search of the cell phone.
    In its opinion, this court proceeded to the good faith inquiry
    without first having resolved the Fourth Amendment issue. In
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    my view, it would have been advisable to address the merits
    of the Fourth Amendment claim before proceeding to the good
    faith issue.
    The jurisprudence of cell phone searches is evolving.
    This case presented an opportunity to resolve certain Fourth
    Amendment issues before considering the application of the
    good faith exception to the exclusionary rule. In fact, in United
    States v. Leon, 
    468 U.S. 897
    , 925, 
    104 S. Ct. 3405
    , 
    82 L. Ed. 2d 677
     (1984), the origin case of the good faith rule, the
    Supreme Court recognized that “it frequently will be difficult
    to determine whether the officers acted reasonably without
    resolving the Fourth Amendment issue.” This is because the
    Fourth Amendment analysis addresses judicial errors, whereas
    the good faith analysis addresses subsequent police errors
    when viewed against settled law.
    I argue that there are hazards inherent in deciding the good
    faith issue without first having resolved the legal issues in the
    Fourth Amendment claim. The Supreme Court described this
    argument when it stated that “application of the good‑faith
    exception to searches conducted pursuant to warrants will
    preclude review of the constitutionality of the search or sei-
    zure, deny needed guidance from the courts, or freeze Fourth
    Amendment law in its present state.” United States v. Leon, 
    468 U.S. at 924
    . But the Supreme Court did not adopt an inflexible
    practice of requiring a finding that the warrant was inadequate
    as a predicate to proceeding to the good faith inquiry.
    We generally decide cases on the basis on which they
    were resolved in the trial court. In this case, the trial court
    addressed the merits of the Fourth Amendment issue and
    also considered the good faith exception. So our consider-
    ation of the good faith issue was invited. We are not alone in
    addressing the good faith issue without deciding the Fourth
    Amendment claim. For example, in U.S. v. White, 
    874 F.3d 490
     (6th Cir. 2017), the U.S. Court of Appeals for the Sixth
    Circuit recognized that the trial court had ruled on both the
    merits of the Fourth Amendment issue and the good faith
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    exception. In so doing, it said, “[w]e therefore proceed to the
    good‑faith inquiry, assuming, without deciding, that the affi-
    davit failed to establish probable cause.” U.S. v. White, 874
    F.3d at 495‑96.
    Given the foregoing, I respectfully suggest that, rather than
    freezing Fourth Amendment cell phone search Nebraska juris-
    prudence in its present state, we address the merits in the
    next case.