State v. Jennings , 305 Neb. 809 ( 2020 )


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    www.nebraska.gov/apps-courts-epub/
    06/26/2020 09:08 AM CDT
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. JENNINGS
    Cite as 
    305 Neb. 809
    State of Nebraska, appellee, v.
    Leandre R. Jennings III, appellant.
    ___ N.W.2d ___
    Filed May 15, 2020.     No. S-18-1186.
    1. Constitutional Law: Search and Seizure: Motions to Suppress:
    Appeal and Error. In reviewing a trial court’s ruling on a motion to
    suppress based on a claimed violation of the Fourth Amendment, an
    appellate court applies a two-part standard of review. Regarding histori-
    cal facts, an appellate court reviews the trial court’s findings for clear
    error, but whether those facts trigger or violate Fourth Amendment
    protections is a question of law that an appellate court reviews indepen-
    dently of the trial court’s determination.
    2. Motions to Suppress: Pretrial Procedure: Trial: Appeal and Error.
    When a motion to suppress is denied pretrial and again during trial on
    renewed objection, an appellate court considers all the evidence, both
    from trial and from the hearings on the motion to suppress.
    3. Evidence: Appeal and Error. A trial court has the discretion to deter-
    mine the relevancy and admissibility of evidence, and such determina-
    tions will not be disturbed on appeal unless they constitute an abuse of
    that discretion.
    4. Search Warrants: Affidavits: Probable Cause: Appeal and Error. In
    reviewing the strength of an affidavit submitted as a basis for finding
    probable cause to issue a search warrant, an appellate court applies a
    totality of the circumstances test.
    5. ____: ____: ____: ____. In reviewing the strength of an affidavit sub-
    mitted as a basis for finding probable cause to issue a search warrant,
    the question is whether, under the totality of the circumstances illus-
    trated by the affidavit, the issuing magistrate had a substantial basis for
    finding that the affidavit established probable cause.
    6. 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.
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    STATE v. JENNINGS
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    7. Verdicts: Juries: Appeal and Error. Harmless error review looks to
    the basis on which the jury actually rested its verdict. The inquiry is
    not whether in a trial that occurred without the error, a guilty verdict
    would surely have been rendered, but whether the actual guilty verdict
    rendered was surely unattributable to the error.
    8. Judgments: Appeal and Error. A proper result will not be reversed
    merely because it was reached for the wrong reason.
    9. Search Warrants: Affidavits: Evidence: Appeal and Error. In evalu-
    ating the sufficiency of an affidavit used to obtain a search warrant,
    an appellate court is restricted to consideration of the information and
    circumstances contained within the four corners of the affidavit, and
    evidence which emerges after the warrant is issued has no bearing on
    whether the warrant was validly issued.
    10. Constitutional Law: Search and Seizure: Search Warrants: Probable
    Cause. 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 permit seizure of items
    other than what is described.
    11. Search Warrants: Search and Seizure. A warrant whose authoriza-
    tion is particular has the salutary effect of preventing overseizure and
    oversearching.
    12. Search Warrants: Police Officers and Sheriffs. A search warrant must
    be sufficiently particular to prevent an officer from having unlimited or
    unreasonably broad discretion in determining what items to seize.
    13. Search Warrants: Evidence: Police Officers and Sheriffs. Absent a
    showing of pretext or bad faith on the part of the police or the prosecu-
    tion, valid portions of a warrant are severable from portions failing to
    meet the particularity requirements.
    14. Criminal Law: Appeal and Error. Harmless error jurisprudence rec-
    ognizes that not all trial errors, even those of constitutional magnitude,
    entitle a criminal defendant to the reversal of an adverse trial result.
    15. Convictions: Appeal and Error. It is only prejudicial error, that is,
    error which cannot be said to be harmless beyond a reasonable doubt,
    which requires that a conviction be set aside.
    16. Appeal and Error. When determining whether an alleged error is so
    prejudicial as to justify reversal, courts generally consider whether the
    error, in light of the totality of the record, influenced the outcome of
    the case.
    17. Verdicts: Evidence: Appeal and Error. Overwhelming evidence of
    guilt can be considered in determining whether the verdict rendered
    was surely unattributable to the error, but overwhelming evidence of
    guilt is not alone sufficient to find the erroneous admission of evi-
    dence harmless.
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. JENNINGS
    Cite as 
    305 Neb. 809
    Appeal from the District Court for Douglas County:
    Kimberly Miller Pankonin, Judge. Affirmed.
    Thomas C. Riley, Douglas County Public Defender, for
    appellant.
    Douglas J. Peterson, Attorney General, and Austin N. Relph
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    I. NATURE OF CASE
    Leandre R. Jennings III was convicted of first degree mur-
    der, use of a deadly weapon to commit a felony, and posses-
    sion of a deadly weapon by a prohibited person. The district
    court sentenced Jennings to consecutive terms of imprison-
    ment for life, 30 to 40 years, and 40 to 45 years, respectively.
    Before trial, Jennings made two motions to suppress evidence
    obtained from searches of cell phone records and his residence.
    The first motion to suppress was based on cell phone records
    obtained pursuant to a provision within the federal Stored
    Communications Act, which has since been ruled unconstitu-
    tional. In the second motion to suppress, Jennings challenges
    the language of several paragraphs in the warrant as violating
    the particularity requirements of the Fourth Amendment. The
    district court denied these motions, and Jennings renewed the
    objections at trial. He now appeals.
    II. BACKGROUND
    Michael Brinkman was fatally shot during a home inva-
    sion in Omaha, Nebraska. Michael’s wife, Kimberly Milius
    (Kimberly), and their son, Seth Brinkman, were home during
    the invasion. After the investigation led law enforcement to
    suspect Jennings, he was arrested. The State charged Jennings
    with first degree murder under Neb. Rev. Stat. § 28-303
    (Reissue 2016), a Class IA felony; use of a deadly weapon
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    STATE v. JENNINGS
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    305 Neb. 809
    (firearm) to commit a felony under Neb. Rev. Stat. § 28-1205
    (Reissue 2016), a Class IC felony; and possession of a deadly
    weapon (firearm) by a prohibited person under Neb. Rev. Stat.
    § 28-1206 (Reissue 2016), a Class ID felony. Jennings was
    found guilty in a trial by jury.
    At trial, Kimberly and Seth testified to what they wit-
    nessed during the home invasion that lead to Michael’s death.
    Kimberly testified that during the early evening of December
    23, 2016, Michael, Kimberly, and Seth were at home get-
    ting ready to go out to dinner. Both Michael and Seth were
    showering in their respective bathrooms. As Michael was get-
    ting out of the shower, he asked Kimberly to answer the front
    door. Kimberly looked out a window and did not see anyone,
    though she did see a white sport utility vehicle parked in
    their driveway.
    Kimberly opened the front door, and two men with guns,
    wearing masks and what appeared to be surgical gloves, forced
    their way into the home at gunpoint. One of the men was wear-
    ing a “[S]anta” hat. Kimberly asked the men what they wanted,
    and they answered, “Money.” Kimberly offered to get her
    purse, but one of the men put a gun to her head and backed her
    into a corner of the living room. The other man, who was wear-
    ing the Santa hat, went down the hallway toward Michael’s
    room. Kimberly heard a gunshot, then scuffling sounds and
    another gunshot. After the gunshots, the first assailant ordered
    Kimberly into the master bedroom. As she entered the room,
    she saw Seth strike the second assailant with a shower rod.
    Kimberly testified that the second assailant was the same size
    as Jennings.
    Seth’s testimony described the intruders in a similar fash-
    ion. He testified that he was in the shower when he heard his
    mother scream. He turned off the shower after he heard “rus-
    tling” sounds in the hallway. Seth peeked out of the shower
    and then heard a gunshot from the master bedroom. At that
    point, Seth grabbed the shower rod off the wall and went into
    the master bedroom, where he encountered and attacked the
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    STATE v. JENNINGS
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    305 Neb. 809
    second assailant. During the scuffle, the Santa hat fell off the
    second assailant’s head. When the first assailant subsequently
    entered the room with Kimberly, he punched Seth and wrestled
    the shower rod away from him. The first assailant ordered
    Kimberly and Seth “to get down and to shut up.” The second
    assailant left the room and returned a short time later with what
    appeared to be a white “money bag.” Seth testified that the sec-
    ond assailant said something to the first and that they then left,
    taking Kimberly’s cell phone with them.
    After they left, Kimberly ran to lock the front door and
    Seth went to look for Michael. Seth first went to the bathroom
    where he had showered, in order to put on his clothes. When
    doing so, he noticed that his shorts had some sort of sauce on
    them and that there were fast food items on the floor. The items
    included a partially eaten piece of “Texas toast,” some “fries,”
    and a container of sauce from a Raising Cane’s restaurant.
    Seth testified that none of those items were present before the
    intruders arrived.
    Seth then went to an upstairs bedroom and found the door
    was difficult to open. Seth forced the door open and discovered
    the door had been blocked by Michael, who was lying on the
    floor. Seth called for Kimberly, and she used Seth’s cell phone
    to call the 911 emergency dispatch service while Seth tried to
    aid Michael.
    The first officer on the scene entered the home and found
    Michael with Seth, and the officer then requested medical
    assistance. An ambulance rushed Michael to the hospital, but
    he did not survive. Michael’s autopsy established that the cause
    of death was a gunshot wound to the chest.
    Kimberly and Seth provided descriptions of the intruders
    to law enforcement. During a canvassing of the neighbor-
    hood, law enforcement obtained surveillance video from a
    neighbor which showed a white sport utility vehicle driving
    by the Brinkman residence several times around the time of
    the attack. The lead detective viewed the videos and recog-
    nized the vehicle as a Dodge Durango. Police also released a
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    STATE v. JENNINGS
    Cite as 
    305 Neb. 809
    photograph and description of the vehicle to the media seeking
    the public’s help in locating the vehicle or suspects.
    Members of the forensics team came and collected evidence,
    including DNA swabs from the Texas toast, the Raising Cane’s
    sauce container, the shower rod, and the Santa hat. Police also
    collected three spent shell casings from the residence, later
    determined to be .380 caliber.
    On January 2, 2017, law enforcement received an anony-
    mous telephone call indicating the caller had seen the Durango
    in the lot of an apartment complex several days before the
    murder. The caller claimed to have observed two black males
    exit the vehicle and go to an apartment on the third floor of an
    adjoining building. The caller provided the license plate num-
    ber on the vehicle.
    Police determined that the vehicle belonged to a car rental
    company. The records provided by the rental company showed
    that from December 13 through 27, 2016, the vehicle was
    rented to Carnell Watt. The owner of the rental company office
    told police that Watt regularly rents vehicles from that loca-
    tion and that she frequently came in with Jennings, whom she
    would introduce as her husband.
    Police recovered the vehicle from a car rental office in
    Detroit, Michigan, and conducted a digital forensics examina-
    tion. The Durango was equipped to keep a time-stamped list
    of all cell phones which have previously had a Bluetooth con-
    nection to the vehicle. Cell phones associated with Watt, her
    sister, and Jennings were connected to the Durango during the
    dates Watt rented the vehicle. During an interview with Omaha
    police, Watt indicated that she lent the Durango to Jennings
    during the rental period.
    On February 13, 2017, law enforcement personnel received
    a response from the Federal Bureau of Investigation’s national
    DNA database commonly referred to as “CODIS” inform-
    ing them that the DNA swab of the Texas toast included
    Jennings as a probable match. Law enforcement then sought
    permission from the court to obtain Jennings’ cell site
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. JENNINGS
    Cite as 
    305 Neb. 809
    location information (CSLI) pursuant to a provision within
    the Stored Communications Act. Law enforcement sought
    records from cell service companies for Jennings. Only the
    records obtained from one such company are challenged on
    appeal. That company provided Jennings’ cell phone records
    and CSLI in response to a court order which showed that
    Jennings’ cell phone was in the area of the crime around the
    relevant times.
    Police also obtained Watt’s cell phone records, which showed
    that on the day of the homicide, her cell phone was located in
    the area of her place of employment, which is not close to the
    location of the homicide. However, the records also showed
    that at around 3 p.m. on December 23, 2016, Watt’s cell phone
    was briefly in the area of a Raising Cane’s restaurant located
    in Council Bluffs, Iowa.
    On February 16, 2017, law enforcement viewed the surveil-
    lance video for December 23, 2016, from the Council Bluffs
    Raising Cane’s restaurant in question and observed a white
    sport utility vehicle in the drive-through lane of the restaurant
    between 3:17 and 3:23 p.m. The video displayed two unidenti-
    fiable occupants and a particular item of clothing worn by the
    driver. The item worn by the driver was described as a dark
    shirt with light stripes.
    Using all of the aforementioned information, a detective
    applied for a search warrant for a specific address on North
    60th Street. The affidavit detailed the description of the
    intruders as wearing gloves and masks, noted the various
    clothing items described during the intrusion and seen on the
    Raising Cane’s surveillance video, indicated that the CSLI
    data placed Jennings’ phone near the Brinkman residence
    before and after the time of the murder, and specified that the
    Nebraska State Patrol had notified Omaha police of a possible
    CODIS match to Jennings from one of the items recovered at
    the scene. The affidavit also noted that the address Jennings
    had provided to his probation officer was on Sprague Street,
    but that Jennings also had a vehicle registered in Nebraska
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    STATE v. JENNINGS
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    with a North 60th Street address and that a utilities district’s
    records showed Watt and Jennings listed as residents there.
    The court reviewed all of the information provided by the
    detective and issued a search warrant for the North 60th
    Street address.
    The detective testified to how the search warrant was exe-
    cuted at the North 60th Street residence. The Omaha “crime
    lab” accompanied him and several officers to the address. After
    entry was made, the crime lab took pictures of everything in
    the residence before anything was disturbed.
    The search warrant contained numbered paragraphs specify-
    ing the parameters of the search. The warrant read as follows:
    1) Venue Items identifying those parties who either
    own or who are in control of the residence [on] North
    60th Street, Omaha, Douglas County, Nebraska;
    2) The ability to seize and process item(s) of eviden-
    tiary value, to include: cellular phone(s), computer(s)
    recording device(s) including audio and video, compan-
    ion equipment, records, whether stored on paper, mag-
    netic media such as tape, cassette, disk, diskettes, or on
    memory storage devices such as optical disks, program-
    mable instruments such as telephones, “electronic address
    books”, or any other storage media, together with indicia
    of use, ownership, possession or control of the aforemen-
    tioned residence;
    3) Any make and model firearm(s) which fires a 380
    caliber cartridge . . . ;
    4) Unknown brand/size/construction mask which could
    be used to conceal the wearers face;
    5) Clothing items to include but not limited to grey
    hooded sweatshirt, navy blue hooded sweatshirt, blue ath-
    letic style warm-up pants with white stripes;
    6) Blue or Black in color latex or similar construction
    gloves[.]
    The evidence recovered from the search of the North 60th
    Street residence included photographs of the condition of the
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    STATE v. JENNINGS
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    residence before it was searched; various documents establish-
    ing residency for Watt and Jennings; photographs of clothing
    items, some of which items were seized; and photographs of
    cell phones along with their retail boxes.
    After he was arrested, a buccal swab was taken from
    Jennings and compared to the DNA evidence recovered at
    the scene. Comparison of the swab taken from the Texas toast
    to a buccal swab taken from Jennings after he was arrested
    found that Jennings was the probable major contributor to the
    DNA detected. A forensic DNA analyst from the University
    of Nebraska Medical Center testified that the probability of a
    random individual’s matching a DNA profile found within the
    major component of the mixture given that Jennings expresses
    such a profile is approximately 1 in 123 octillion.
    Before trial, Jennings moved to suppress (1) his cell phone
    records and (2) evidence obtained from the search of his
    residence. Jennings argued that his cell phone records, which
    included CSLI, should be suppressed because they were
    obtained through a court order under a provision within the
    Stored Communications Act, instead of through search war-
    rants, and because there was insufficient probable cause to
    support a warrant.
    Jennings argued that the evidence obtained from the search
    of his residence should be suppressed because the search war-
    rant was not sufficiently particular and because there was not
    probable cause to support it. Specifically, Jennings argued that
    the CSLI information and the DNA information provided in the
    affidavit should be excluded from the probable cause analysis.
    The affidavit in support of the warrant contained information
    summarizing the investigation details recounted above and also
    reported the call record and CSLI obtained from Jennings’ cell
    phone. The affidavit explained that the University of Nerbaska
    Medical Center’s human DNA laboratory built a “mainly sin-
    gle source male” DNA profile from the piece of Texas toast
    and that profile was a probable match in the CODIS system
    for Jennings.
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    STATE v. JENNINGS
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    At the request of the parties, the district court postponed
    ruling on Jennings’ motions to suppress until after the U.S.
    Supreme Court issued its ruling in Carpenter v. U.S., 1 which
    involved whether a search warrant was required to obtain
    CSLI. While Carpenter was pending, law enforcement obtained
    search warrants for Jennings’ cell phone records.
    On June 22, 2018, the U.S. Supreme Court issued its opin-
    ion in Carpenter and held therein that a search warrant was
    required to obtain a person’s CSLI. Thereafter, the district
    court held additional hearings on Jennings’ motions to sup-
    press. In a subsequent written order, the district court denied
    Jennings’ motions to suppress. The district court denied
    Jennings’ motion to suppress his cell phone records because
    although law enforcement’s initial orders were insufficient
    under Carpenter, the later search warrants cured that defect.
    The district court denied Jennings’ motion to suppress the evi-
    dence obtained from the search of his residence because the
    search warrant was sufficiently particular and supported by
    probable cause. Jennings renewed his objections at trial, and
    they were overruled. Several items and photographs obtained
    during the search were admitted into evidence over a continu-
    ing objection from Jennings.
    III. ASSIGNMENTS OF ERROR
    Jennings assigns that the district court erred in denying
    his two motions to suppress, in violation of his constitutional
    rights. First, Jennings assigns that obtaining the cell phone
    records and CSLI from the court order pursuant to a provi-
    sion within the Stored Communications Act was held to be
    unconstitutional by Carpenter and that the district court erred
    by concluding that the subsequent warrant cured the consti-
    tutional violation. Second, Jennings assigns that the denial of
    the motion to suppress the evidence obtained from the search
    of his residence was error because the affidavit to support the
    1
    Carpenter v. U.S., ___ U.S. ___, 
    138 S. Ct. 2206
    , 
    201 L. Ed. 2d 507
        (2018).
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    warrant was insufficient and the warrant itself lacked the par-
    ticularity required by the U.S. Constitution.
    IV. STANDARD OF REVIEW
    [1] In reviewing a trial court’s ruling on a motion to sup-
    press based on a claimed violation of the Fourth Amendment,
    an appellate court applies a two-part standard of review. 2
    Regarding historical facts, an appellate court reviews the trial
    court’s findings for clear error, but whether those facts trig-
    ger or violate Fourth Amendment protections is a question of
    law that an appellate court reviews independently of the trial
    court’s determination. 3
    [2] When a motion to suppress is denied pretrial and again
    during trial on renewed objection, an appellate court considers
    all the evidence, both from trial and from the hearings on the
    motion to suppress. 4
    [3] A trial court has the discretion to determine the relevancy
    and admissibility of evidence, and such determinations will
    not be disturbed on appeal unless they constitute an abuse of
    that discretion. 5
    [4-6] In reviewing the strength of an affidavit submitted as
    a basis for finding probable cause to issue a search warrant,
    an appellate court applies a totality of the circumstances test. 6
    The question is whether, under the totality of the circum-
    stances illustrated by the affidavit, the issuing magistrate had
    a substantial basis for finding that the affidavit established
    probable cause. 7 Probable cause sufficient to justify issuance
    of a search warrant means a fair probability that contraband or
    evidence of a crime will be found. 8
    2
    State v. Brye, 
    304 Neb. 498
    , 
    935 N.W.2d 438
    (2019).
    3
    Id. 4 State
    v. Baker, 
    298 Neb. 216
    , 
    903 N.W.2d 469
    (2017).
    5
    Id. 6 State
    v. Goynes, 
    303 Neb. 129
    , 
    927 N.W.2d 346
    (2019).
    7
    Id. 8 Id.
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    [7] Harmless error review looks to the basis on which the
    jury actually rested its verdict. The inquiry is not whether in
    a trial that occurred without the error, a guilty verdict would
    surely have been rendered, but whether the actual guilty ver-
    dict rendered was surely unattributable to the error. 9
    V. ANALYSIS
    Jennings correctly asserts that seizure of his cell phone
    records and CSLI under a provision within the Stored
    Communications Act was a violation of his Fourth Amendment
    rights. However, the fact that the relevant provision of the
    Stored Communications Act was not determined to be uncon-
    stitutional until 18 months after the order in this case leads us
    to conclude that the exclusion of the evidence is subject to the
    good faith exception established in Illinois v. Krull. 10 Thus,
    the district court correctly denied Jennings’ motion to suppress
    related to the cell phone records and CSLI. Jennings’ asser-
    tion that the information obtained from the seizure of the cell
    phone records and CSLI should be excluded from a probable
    cause analysis concerning the residential search warrant fails
    for the same reasons. We find that the record supports the dis-
    trict court’s determination that the warrant was supported by
    probable cause. We also find that a majority of the provisions
    in the residential search warrant met the particularity require-
    ments of the Fourth Amendment and that the masks, gloves,
    cell phones, and documents showing Jennings’ occupancy
    were seized in accordance with these requirements. Assuming
    without deciding that the photographs taken by law enforce-
    ment of the interior of the residence, including photographs
    of items not specified in the warrant, were seized pursuant
    to invalid portions of the warrant, their admission was harm-
    less error.
    9
    State v. Thompson, 
    301 Neb. 472
    , 
    919 N.W.2d 122
    (2018).
    10
    See Illinois v. Krull, 
    480 U.S. 340
    , 
    107 S. Ct. 1160
    , 
    94 L. Ed. 2d 364
         (1987).
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    1. Motion to Suppress Cell
    Phone Records and CSLI
    Under Carpenter, the State conducted a search in violation
    of the Fourth Amendment when it used a court order pursu-
    ant to a provision within the federal Stored Communications
    Act, rather than a warrant, to acquire Jennings’ cell phone
    records and CSLI. 11 However, the fact that Jennings’ Fourth
    Amendment rights were violated does not mean the district
    court erred in denying the motion to suppress. 12 In addressing a
    nearly identical scenario, we recently observed that “the exclu-
    sionary rule is to be a ‘last resort’ and not a ‘first impulse.’” 13
    We find that exclusion of the CSLI evidence is not the
    appropriate remedy for the violation of Jennings’ Fourth
    Amendment rights.
    The exclusion of evidence obtained in violation of the
    Fourth Amendment is not itself a constitutional right. 14 Rather,
    it is a remedy designed to deter constitutional violations by
    law enforcement. 15 Thus, in situations where the exclusion
    as a remedy would not deter law enforcement, several excep-
    tions to the exclusionary rule have been recognized. 16 One of
    those exceptions to the exclusionary rule applies to evidence
    11
    See Carpenter v. U.S., supra note 1.
    12
    See, Herring v. United States, 
    555 U.S. 135
    , 141, 
    129 S. Ct. 695
    , 172 L.
    Ed. 2d 496 (2009) (explaining that application of exclusionary rule is not
    “a necessary consequence of a Fourth Amendment violation”); State v.
    Brown, 
    302 Neb. 53
    , 
    921 N.W.2d 804
    (2019), cert. denied ___ U.S. ___,
    
    139 S. Ct. 2680
    , 
    204 L. Ed. 2d 1080
    .
    13
    State v. Brown, supra note 
    12, 302 Neb. at 60
    , 921 N.W.2d at 811 (citing
    Hudson v. Michigan, 
    547 U.S. 586
    , 
    126 S. Ct. 2159
    , 
    165 L. Ed. 2d 56
         (2006)).
    14
    Davis v. United States, 
    564 U.S. 229
    , 
    131 S. Ct. 2419
    , 
    180 L. Ed. 2d 285
         (2011) (citing Stone v. Powell, 
    428 U.S. 465
    , 
    96 S. Ct. 3037
    , 
    49 L. Ed. 2d 1067
    (1976)).
    15
    See State v. Hoerle, 
    297 Neb. 840
    , 
    901 N.W.2d 327
    (2017).
    16
    See, Davis v. United States, supra note 14; Illinois v. Krull, supra note 10;
    United States v. Leon, 
    468 U.S. 897
    , 
    104 S. Ct. 3405
    , 
    82 L. Ed. 2d 677
         (1984); State v. Hoerle, supra note 15.
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    obtained by police in objectively reasonable reliance on a stat-
    ute later found to be unconstitutional. 17
    When the police applied for the court order on February 14,
    2017, for Jennings’ cell phone records and CSLI from the cell
    service companies, they were making a request pursuant to
    a federal statute that had not yet been ruled unconstitutional.
    Law enforcement obtained the CSLI without first securing
    a warrant supported by probable cause, but did so as autho-
    rized by 18 U.S.C. § 2703(d) (Supp. V 2017) of the Stored
    Communications Act. It cannot be said that by doing so, law
    enforcement relied on a statute that was clearly unconstitu-
    tional. As we noted recently in State v. Brown, 18 many courts
    have held, as we did in State v. Jenkins, 19 that the Stored
    Communications Act did not violate the Fourth Amendment.
    Carpenter was decided nearly 18 months after the application
    for the records in this case. 20
    [8] We find that law enforcement made the request in objec-
    tively reasonable reliance on the Stored Communications Act
    and did not have reason to believe that the relevant provision
    of the act was unconstitutional. On these facts, exclusion of the
    cell phone records and the CSLI obtained under the court order
    would not serve as a deterrent to future Fourth Amendment
    violations by law enforcement, and its application is unwar-
    ranted. Thus, we conclude, albeit for reasons different from
    those articulated by the district court, that it did not err by
    denying Jennings’ motion to suppress the cell phone records
    and CSLI. A proper result will not be reversed merely because
    it was reached for the wrong reason. 21 We need not address the
    validity of the subsequent warrants that Jennings asserts failed
    to cure the Fourth Amendment violation.
    17
    State v. Brown, supra note 12.
    18
    Id. 19 State
    v. Jenkins, 
    294 Neb. 684
    , 
    884 N.W.2d 429
    (2016).
    20
    Carpenter v. U.S., supra note 1.
    21
    In re Estate of Odenreider, 
    286 Neb. 480
    , 
    837 N.W.2d 756
    (2013).
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    2. Motion to Suppress Evidence Recovered
    From Search of Residence
    Jennings argues that the evidence recovered from the search
    of the North 60th Street residence should have been suppressed
    because the warrant lacked probable cause and, in the alter-
    native, the warrant violated the particularity requirements of
    the Nebraska and U.S. Constitutions. The Fourth Amendment
    provides that warrants may not be granted “but upon prob-
    able cause, supported by Oath or affirmation, and particularly
    describing the place to be searched, and the persons or things
    to be seized.” The Nebraska Constitution, under article I, § 7,
    similarly provides that “no warrant shall issue but upon prob-
    able cause, supported by oath or affirmation, and particularly
    describing the place to be searched, and the person or thing to
    be seized.”
    (a) Probable Cause
    In reviewing the strength of an affidavit submitted as a basis
    for finding probable cause to issue a search warrant, an appel-
    late court applies a totality of the circumstances test. 22 The
    question 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. 23 Probable cause sufficient to justify issuance of
    a search warrant means a fair probability that contraband or
    evidence of a crime will be found. 24
    [9] In evaluating the sufficiency of an affidavit used to
    obtain a search warrant, an appellate court is restricted to
    consideration of the information and circumstances contained
    within the four corners of the affidavit, and evidence which
    emerges after the warrant is issued has no bearing on whether
    the warrant was validly issued. 25
    22
    State v. Goynes, supra note 6.
    23
    Id. 24 Id.
    25
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    Because Jennings’ CSLI had been obtained pursuant to a
    federal statute that a reasonable law enforcement officer would
    believe to be constitutional, we disagree with Jennings’ argu-
    ment that the statements in the affidavit supporting the resi-
    dential search warrant, which referred to the cell phone records
    and CSLI obtained from the cell service company, should not
    be considered in a probable cause determination because they
    were fruit of the poisonous tree. Law enforcement officers
    were including in the affidavit in support of the residential
    search warrant all the information available to them and had no
    reason to believe that any of the information had been obtained
    in violation of Jennings’ Fourth Amendment rights. Moreover,
    it was objectively reasonable for a law enforcement officer
    to believe that the cell phone information obtained from the
    court order was relevant and usable in future affidavits pertain-
    ing to the same investigation. Because a good faith exception
    applies to the initial court order, the same exception applies to
    the use of the cell phone records and the CSLI in the subse-
    quent affidavit. 26
    We also disagree with Jennings’ contention that the state-
    ment in the supporting affidavit about the possible DNA
    match to Jennings in the CODIS system was too vague to be
    properly relied upon to support a finding of probable cause.
    The portion of the affidavit concerning the DNA match reads
    as follows:
    On January 23rd 2017 Investigators were notified of
    a mainly single source male DNA profile [which] was
    located from testing of EV#20.
    On January 27th 2017 the UNMC Human DNA
    Laboratory submitted their findings to the Nebraska State
    Patrol for CODIS entry and search.
    On February 13, 2017 Investigators were notified of
    a possible CODIS identification to the submitted sample
    [which] was that belonging to [Jennings].
    26
    See, United States v. Leon, supra note 16; State v. Brown, supra note 12.
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    Jennings asserts that in order to include these statements in
    the probable cause analysis, we must make the impermissible
    assumption that the magistrate was familiar with CODIS and
    its limitations. Moreover, Jennings points out that the language
    of “possible CODIS identification” does not give details of the
    probability supporting the match.
    But this is not how appellate courts review findings of prob-
    able cause in a warrant. We have long applied the same stan-
    dard set forth by the U.S. Supreme Court in Illinois v. Gates. 27
    When the Court adopted the totality of the circumstances test,
    it also explained that “‘courts should not invalidate warrant[s]
    by interpreting affidavit[s] in a hypertechnical, rather than a
    commonsense, manner.’” 28 We examine the affidavit using a
    commonsense approach to determine whether the magistrate
    had a substantial basis for concluding that a search would
    uncover evidence of wrongdoing; the Fourth Amendment
    requires no more. 29
    We will not assume that a magistrate judge is unaware
    of the meaning of acronyms and abbreviations. We decline
    to assume that the magistrate judge did not know what the
    CODIS system is and then relied on information that he or
    she did not understand. The statements in the affidavit did not
    have the scientific detail provided by an expert witness at trial,
    but the Fourth Amendment does not require such a technical
    level of detail. The statements provided a link between the
    Texas toast found at the crime scene and a DNA sample from
    Jennings on file in the CODIS database. Using a commonsense
    approach, we find that the statements about the DNA evidence
    were clear enough to be properly considered in the probable
    cause analysis.
    27
    Illinois v. Gates, 
    462 U.S. 213
    , 
    103 S. Ct. 2317
    , 
    76 L. Ed. 2d 527
    (1983).
    See, also, State v. Detweiler, 
    249 Neb. 485
    , 
    544 N.W.2d 83
    (1996).
    28
    Illinois v. Gates, supra note 
    27, 462 U.S. at 236
    (quoting United States v.
    Ventresca, 
    380 U.S. 102
    , 
    85 S. Ct. 741
    , 
    13 L. Ed. 2d 684
    (1965)).
    29
    See State v. Detweiler, supra note 27.
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    Moreover, in addition to the CSLI and DNA information
    discussed above, the affidavit in support of the search war-
    rant recounted several important details from the investiga-
    tion. Law enforcement recounted the eyewitness statements
    about the clothing worn by the assailants, the presence of the
    food left at the scene, the description of the white sport utility
    vehicle in the driveway, the video obtained from the neigh-
    bor’s house depicting a white Durango driving by multiple
    times, and the information obtained from the anonymous tip
    which led the authorities to question the car rental company
    and trace the vehicle to Watt. The affidavit further recounted
    that Watt had stated in an interview with the Omaha police
    that she allowed Jennings to use the Durango rented in her
    name. Police also described the surveillance video acquired
    from the Raising Cane’s restaurant in Council Bluffs showing
    a white Durango go through the drive-through lane during the
    time that Watt’s and Jennings’ cell phones show them to be in
    the area. The CSLI recovered from the court order indicated
    that Jennings’ cell phone was in an area near the Brinkman
    residence before and after the murder. We find, under the total-
    ity of the circumstances, that there was sufficient information
    contained within the affidavit to support the court’s finding of
    probable cause to issue the warrant for the search of the North
    60th Street residence.
    (b) Particularity Requirement
    Jennings alternatively argues that all evidence from the
    residential search should have been suppressed because the
    language contained in paragraphs 1, 2, and 5 of the warrant
    violated the particularity requirement of the U.S. and Nebraska
    Constitutions. The evidence recovered from the search of the
    North 60th Street residence includes various documents estab-
    lishing residency for Watt and Jennings, clothing items, vari-
    ous types of gloves, and two cell phones. Photographs of the
    two cell phones along with their retail boxes were also taken
    and admitted into evidence. Law enforcement also took photo-
    graphs of the condition of the residence before it was searched,
    which were entered into evidence.
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    [10,11] In addition to the requirement of probable cause,
    the Fourth Amendment contains a particularity requirement. 30
    The particularity requirement of the Fourth Amendment pro-
    tects against open-ended warrants that leave the scope of the
    search to the discretion of the officer executing the warrant, or
    permit seizure of items other than what is described. 31 A war-
    rant whose authorization is particular has the salutary effect of
    preventing overseizure and oversearching. 32
    [12] We have held that “a warrant must be sufficiently par-
    ticular to prevent the officer from having unlimited or unrea-
    sonably broad discretion in determining what items to seize.” 33
    In determining whether a warrant is sufficiently particular, we
    find the factors listed by this court in State v. Baker 34 to be
    applicable. Those are (1) whether the warrant communicates
    objective standards for an officer to identify which items may
    be seized, (2) whether there is probable cause to support the
    seizure of the items listed, (3) whether the items in the warrant
    could be more particularly described based on the information
    available at the time the warrant was issued, and (4) the nature
    of the activity under investigation. 35 The majority of jurisdic-
    tions utilize the same or similar factors. 36
    30
    State v. Henderson, 
    289 Neb. 271
    , 
    854 N.W.2d 616
    (2014); State v.
    Sprunger, 
    283 Neb. 531
    , 
    811 N.W.2d 235
    (2012).
    31
    State v. Henderson, supra note 30 (citing U.S v. Clark, 
    754 F.3d 401
    (7th
    Cir. 2014)).
    32
    Id. 33 State
    v. Baker, supra note 
    4, 298 Neb. at 228-29
    , 903 N.W.2d at 478.
    34
    State v. Baker, supra note 4.
    35
    See, id.; State v. Tyler, 
    291 Neb. 920
    , 
    870 N.W.2d 119
    (2015). See, also,
    U.S. v. Sigillito, 
    759 F.3d 913
    (8th Cir. 2014); United States v. Spilotro,
    
    800 F.2d 959
    (9th Cir. 1986).
    36
    See, U.S. v. Sanjar, 
    876 F.3d 725
    (5th Cir. 2017); U.S. v. Sigillito, supra
    note 35; U.S. v. Kuc, 
    737 F.3d 129
    (1st Cir. 2013); U.S. v. Rosa, 
    626 F.3d 56
    (2d Cir. 2010); U.S. v. Sells, 
    463 F.3d 1148
    (10th Cir. 2006); U.S. v.
    Blakeney, 
    942 F.2d 1001
    (6th Cir. 1991); United States v. Spilotro, supra
    note 35. See, also, State v. Hughes, 
    433 So. 2d 88
    (La. 1983); State v.
    Jackson, 
    150 Wash. 2d 251
    , 
    76 P.3d 217
    (2003).
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    As these factors make apparent, the level of particular-
    ity that is required depends on the nature of the items under
    investigation. Further, whether a warrant violates the particu-
    larity clause must be determined in light of the language as
    a whole. 37
    In two cases, we found clauses under the circumstances that
    deemed authorizing the search of “any and all firearms” to be
    sufficiently particular. In Baker, we held that such a clause was
    sufficiently particular to enable the searching officers to iden-
    tify the property authorized to be seized. 38 We upheld a similar
    challenge in State v. Tyler 39 to the seizure of a gunlock found
    during a residential search where the warrant read in part: “‘1)
    Any and all firearms, and companion equipment to include but
    not limited to ammunition, holsters, spent projectiles, spent
    casings, cleaning kits/cases and boxes, paperwork, and the
    like.’” Prior to seeking the warrant, the police had determined
    that there were approximately 20 different firearms capable
    of using the type of cartridge recovered from the scene of a
    shooting. 40 We determined that this paragraph was sufficiently
    particular because the scope of the search was not left to the
    discretion of the officers. We also explained that the nature
    of the activity under investigation justifies its scope. When
    police are investigating a murder that occurred with a gun and
    there is a range of firearms fitting the known characteristics of
    the murder weapon, it is sufficient to describe the items to be
    searched for as “[a]ny and all firearms . . . .’” 41
    In contrast, in State v. Henderson, 42 we found that the
    clause of a warrant authorizing the search for “‘[a]ny and all
    information’” contained in a cell phone was unconstitutional
    37
    See Stanford v. Texas, 
    379 U.S. 476
    , 
    85 S. Ct. 506
    , 
    13 L. Ed. 2d 431
         (1965).
    38
    State v. Baker, supra note 4.
    39
    State v. Tyler, supra note 
    35, 291 Neb. at 934
    , 870 N.W.2d at 130.
    40
    State v. Tyler, supra note 35.
    41
    See id. at 
    934, 870 N.W.2d at 130
    .
    42
    State v. Henderson, supra note 
    30, 289 Neb. at 276-77
    , 854 N.W.2d at 625.
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    because the warrant did not identify a particular crime or rel-
    evant evidence intended to be recovered from the cell phone.
    We held that 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. We also held that the catchall provision
    of the warrant authorizing the search of “‘any other informa-
    tion that can be gained from the internal components and/or
    memory Cards’” was insufficiently particular to satisfy the
    Fourth Amendment even when it was preceded by a particular
    list of electronics. 43
    In other cases, we have found to be insufficiently particular
    language in a warrant permitting the search for “‘additional
    stolen property.’” 44 We have also found insufficiently particular
    language permitting the personal search of any “‘John and/or
    Jane DOE’” 45 present during a residential search.
    (i) Paragraph 1: Venue Items
    We disagree with Jennings’ argument that the warrant pro-
    vision allowing for the search and seizure of “[v]enue items
    identifying those parties who either own or who are in con-
    trol of the residence” is too broad to satisfy the particularity
    requirements set forth above. The facts of the case demonstrate
    that there was a need for law enforcement to be able to estab-
    lish a link between items found at the address and Jennings.
    Similarly to our finding in Tyler, we find that the venue items
    provision is sufficiently particular in light of the nature of the
    activity under investigation. 46
    Although “[v]enue items” in the warrant at issue described
    a category of items, rather than a specific item to be seized,
    that does not mean paragraph 1 violates the particularity
    43
    Id. at 277,
    854 N.W.2d at 625.
    44
    State v. LeBron, 
    217 Neb. 452
    , 457, 
    349 N.W.2d 918
    , 922 (1984).
    45
    Compare State v. Pecha, 
    225 Neb. 673
    , 676, 
    407 N.W.2d 760
    , 763 (1987),
    with State v. Johnson, 
    243 Neb. 758
    , 
    502 N.W.2d 477
    (1993).
    46
    State v. Tyler, supra note 35.
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    requirements of the Fourth Amendment. The description sets
    forth objective standards by which executing officers can dif-
    ferentiate items subject to seizure from those that are not. It is
    the nature of venue items that they cannot be predicted with
    specificity. Law enforcement understands that items contain-
    ing an address linked with the suspect’s name are indicative of
    venue. The items that can be seized pursuant to such a venue
    items clause are clearly only those items which on their face
    establish ownership, occupancy, or control of the location
    being searched.
    Photographs of the items admitted under paragraph 1
    included a cell phone replacement claim, an energy bill, a
    Social Security card, a credit card billing envelope, and a tax
    form. Each item had the common trait of containing a ship-
    ping label demonstrating that Watt or Jennings received mail
    and used the North 60th Street address as their residence. The
    warrant was not constitutionally deficient based on paragraph
    1, and the denial of Jennings’ motion to suppress as it relates
    to exhibits 390 through 398 seized and admitted as venue items
    was properly denied.
    (ii) Paragraph 2: Cell Phones
    Paragraph 2, in contrast, has multiple deficiencies under the
    particularity provision of the Fourth Amendment. It states:
    The ability to seize and process item(s) of evidentiary
    value, to include: cellular phone(s), computer(s) recording
    device(s) including audio and video, companion equip-
    ment, records, whether stored on paper, magnetic media
    such as tape, cassette, disk, diskettes, or on memory stor-
    age devices such as optical disks, programmable instru-
    ments such as telephones, “electronic address books”,
    or any other storage media, together with indicia of use,
    ownership, possession or control of the aforementioned
    residence[.]
    First, the entire paragraph is grammatically vague. It is unclear
    how the first clause relates to the second clause listing elec-
    tronic items. It is equally unclear why the paragraph ends with
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    a clause discussing “indicia of use, ownership, possession or
    control.” Second, the warrant provides no indication of what
    it means to “seize and process item(s) of evidentiary value.”
    It is unclear if that statement is limited to the list of specific
    electronic media that follows or leaves the search and seizure
    of items to the discretion of the executing officers. For these
    reasons, we find the statement, “[t]he ability to seize and proc­
    ess item(s) of evidentiary value, to include: . . .” to be uncon-
    stitutionally vague.
    [13] However, this does not end our inquiry, insofar as the
    paragraph also listed particular items to be seized. Absent a
    showing of pretext or bad faith on the part of the police or the
    prosecution, valid portions of a warrant are severable from por-
    tions failing to meet the particularity requirements. 47
    Paragraph 2 contained a sufficiently particular list of spe-
    cific electronic media items that included cell phones. This list
    is severable from the insufficiently particular language con-
    tained in the first clause of the paragraph. The probable cause
    provided by the affidavit supported looking for electronic
    records that could contain information that establishes owner-
    ship, occupancy, or control over the residence being searched.
    The search for and seizure of the specifically listed electronic
    items did not violate Jennings’ Fourth Amendment rights.
    Thus, the two cell phones were properly seized and the picture
    of a specific cell phone was properly admitted into evidence as
    exhibit 406.
    (iii) Paragraphs 4 and 6: Masks and Gloves
    Paragraphs 4 and 6 specified certain clothing items to be
    searched for and seized. The detail provided in the warrant
    was based on the descriptions of the intruders provided by
    victims Kimberly and Seth. Photographs were taken of latex
    gloves and gardening gloves pursuant to paragraph 6. In addi-
    tion, a box of latex gloves was physically seized pursuant to
    47
    See State v. LeBron, supra note 44. See, also, U.S. v. Sigillito, supra
    note 35.
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    paragraph 6. These photographs and the box of gloves were
    admitted into evidence as exhibits 352 through 356 and 528.
    Photographs of masks found in the residence were taken under
    paragraph 4 and entered into evidence as exhibits 361 through
    365. Jennings does not claim on appeal that either of these
    paragraphs violated the particularity requirements of the U.S.
    and Nebraska Constitutions. As such, the motion to suppress
    was correctly denied as to exhibits 352 through 356, 361
    through 365, and 528.
    (iv) Paragraph 5: Clothing Items
    Paragraph 5 provided for a categorical search for cloth-
    ing followed by a list of the specific items described in the
    affidavit. Photographs of several clothing items were taken
    under this paragraph and admitted into evidence as exhibits
    376 through 386. Exhibits 376 through 379, 385, and 386 were
    properly admitted as items specifically described in paragraph
    5. Thus, we find that the motion to suppress was correctly
    denied as to exhibits 376 through 379, 385, and 386.
    Not including the photographs of the items particularly
    listed in the warrant as discussed above, 56 additional pho-
    tographs of the interior of the residence were admitted into
    evidence. These photographs depicted the general condition of
    the residence prior to the search. Included in the set of pho-
    tographs were pictures of the retail boxes for two cell phones
    and two shirts that were hanging on a laundry rack in a util-
    ity room.
    Jennings argues that these items were seized pursuant to
    the insufficiently particular clause “[c]lothing items,” which
    is similar to the clause authorizing seizure of “‘footwear [and]
    clothing” which the 10th Circuit has held violates the par-
    ticularity requirements of the Fourth Amendment. 48 Assuming
    without deciding that the admission of these photographs vio-
    lates the particularity clause, we find their admission to be
    harmless error.
    48
    See U.S. v. Sells, supra note 
    36, 463 F.3d at 1152
    .
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    [14-17] Harmless error jurisprudence recognizes that not all
    trial errors, even those of constitutional magnitude, entitle a
    criminal defendant to the reversal of an adverse trial result. 49 It
    is only prejudicial error, that is, error which cannot be said to
    be harmless beyond a reasonable doubt, which requires that a
    conviction be set aside. 50 When determining whether an alleged
    error is so prejudicial as to justify reversal, courts generally
    consider whether the error, in light of the totality of the record,
    influenced the outcome of the case. 51 In other words, harmless
    error review looks to the basis on which the jury actually rested
    its verdict. The inquiry is not whether in a trial that occurred
    without the error, a guilty verdict would surely have been
    rendered, but whether the actual guilty verdict rendered was
    surely unattributable to the error. 52 Overwhelming evidence of
    guilt can be considered in determining whether the verdict ren-
    dered was surely unattributable to the error, but overwhelming
    evidence of guilt is not alone sufficient to find the erroneous
    admission of evidence harmless. 53
    The photographs of the shirts appear to be relevant in that
    the shirts are similar to clothing worn by the individual in the
    Raising Cane’s restaurant surveillance video. The pictures of
    the cell phone boxes showing serial numbers were never linked
    to any element of the crime and appear to have no evidentiary
    value; thus, no prejudice resulted from their admission. And,
    given the body of overwhelming evidence of guilt properly
    admitted, the jury’s verdict was surely unattributable to the
    two shirts.
    Excluding these 56 photographs, the jury was presented
    with a large body of evidence upon which it could base the
    verdicts. DNA evidence on the Texas toast showed a major
    49
    State v. Thompson, supra note 9.
    50
    Id. 51 Id.
    52
    Id. 53 State
    v. Britt, 
    293 Neb. 381
    , 
    881 N.W.2d 818
    (2016).
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    contributor profile that matched Jennings’ DNA information
    saved within the CODIS system. Subsequent comparison of
    the swab taken from the Texas toast to a buccal swab taken
    from Jennings after he was arrested indicated that Jennings
    was the probable major contributor of the DNA found at the
    Brinkman residence. The probability of a random individual’s
    matching a DNA profile found within the major component
    of the mixture given that Jennings expresses such a profile is
    approximately 1 in 123 octillion. Jennings’ CSLI data placed
    his cell phone near the area of the crime both before and after
    the time of the murder. The white Durango was traced to Watt,
    and Watt subsequently gave a statement to Omaha police
    indicating that she lent the vehicle to Jennings. Moreover, the
    Bluetooth records from the Durango showed Jennings’ cell
    phone was connected to the Durango several times through-
    out the rental period. Further, the CSLI for Watt and Jennings
    placed both of their cell phones in the area of the Raising
    Cane’s restaurant in Council Bluffs during the same timeframe
    the surveillance video shows a white Durango go through the
    drive-through lane.
    The jury’s verdicts were surely unattributable to the admis-
    sion of the photographs taken of the Jennings’ residence before
    the search. Accordingly, the admission of such evidence was
    harmless error.
    VI. CONCLUSION
    We find that the district court correctly denied both motions
    to suppress. The cell phone records and CSLI were properly
    admitted as a part of the good faith exception to the exclusion-
    ary rule. The affidavit provided probable cause for the issuance
    of a warrant to search the North 60th Street residence. The
    material evidence found from the search of the residence was
    properly admitted under sections of the warrant that were con-
    stitutionally valid. The balance of the evidence admitted was
    harmless error even if it were determined to be inadmissible.
    We affirm the judgment of the district court.
    Affirmed.