State v. Baker , 298 Neb. 216 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. BAKER
Cite as 298 Neb. 216
State of Nebraska, appellee, v.
H arold W. Baker, appellant.
___ N.W.2d ___
Filed November 17, 2017. No. S-16-979.
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: Probable Cause. The particularity requirement for
search warrants is distinct from, but closely related to, the requirement
that a warrant be supported by probable cause.
5. 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.
6. Search and Seizure: Search Warrants. The requirement that warrants
shall particularly describe the things to be seized makes general searches
under them impossible and prevents the seizure of one thing under a
warrant describing another.
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7. 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.
8. Constitutional Law: Search Warrants: Police Officers and Sheriffs.
To satisfy the particularity requirement of the Fourth Amendment, a
search warrant must be sufficiently definite to enable the searching offi-
cers to identify the property authorized to be seized.
9. Evidence. A court must consider whether a statement made by a third
party admitted to give context to a party’s statement is relevant.
10. Criminal Law: Evidence. To evaluate the relevance of a third party’s
statement for the purpose of providing context, a court must compare the
probative value of the defendant’s statement with and without the added
context; if the third-party statement makes the defendant’s statement any
more probative, the third-party statement is itself relevant.
11. Evidence. When analyzing evidence under Neb. Evid. R. 403, Neb. Rev.
Stat. § 27-403 (Reissue 2016), courts not only consider the risk of unfair
prejudice or other dangers the evidence carries, but weigh those dangers
against the probative value of the evidence, determining whether the
former substantially outweighs the latter.
Appeal from the District Court for Douglas County:
K imberly Miller Pankonin, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, for
appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Wright, J.
NATURE OF CASE
Harold W. Baker was found guilty by a jury of his peers
of murdering Jermaine J. Richey and Derek L. Johnson and
attempting to murder Demetrion A. Washington and Lamar
A. Nedd. He was sentenced by the court to life imprisonment
on each of the two first degree murder convictions, 30 to 40
years’ imprisonment on each of the two attempted first degree
murder convictions, and 25 to 30 years’ imprisonment on each
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of the four use of a firearm to commit a felony convictions.
Baker appeals.
At issue is whether the search warrant for Baker’s residence
was unconstitutional because it lacked particularity by autho-
rizing the police to search for “[a]ny and all” firearms in his
residence. Also at issue is whether evidence found during the
course of and as a result of the search should be suppressed if
the warrant were found to be invalid. Baker also claims that the
trial court erred by admitting a recording of a telephone con-
versation that he made to his ex-girlfriend from jail. Because
we conclude that the search warrant was sufficiently particular
and that the trial court’s admission of the telephone conversa-
tion was not an abuse of discretion, we affirm.
BACKGROUND
Baker was charged with eight counts: count I, first
degree murder, a Class IA felony, for the killing of Richey;
count II, use of a firearm to commit a felony, a Class IC felony;
count III, first degree murder, a Class IA felony, for the kill-
ing of Johnson; count IV, use of a firearm to commit a felony,
a Class IC felony; count V, attempted first degree murder,
a Class II felony, for the attempted murder of Washington;
count VI, use of a firearm to commit a felony, a Class IC
felony; count VII, attempted first degree murder, a Class II
felony, for the attempted murder of Nedd; and count VIII, use
of a firearm to commit a felony, a Class IC felony.
In July 2016, Baker was tried before a jury in the Douglas
County District Court. The jury found him guilty on all counts.
Baker was sentenced to life imprisonment on each of the two
first degree murder convictions, 30 to 40 years’ imprisonment
on each of the two attempted first degree murder convictions,
and 25 to 30 years’ imprisonment on each of the four use of a
firearm to commit a felony convictions. The court ordered that
all of the sentences be served consecutively.
The shooting that led to the deaths of Richey and Johnson
occurred outside of an apartment building on Meredith Avenue
in Omaha, Nebraska, on December 21, 2014. The building has
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entrances on its north and the south sides and parking stalls
along its east side. At the time of the shooting, the building
was equipped with three security cameras: one monitoring an
office inside the building, one monitoring the north entrance,
and one monitoring the east parking area.
Prior to the shooting, a blue Crown Victoria—the victims’
vehicle—pulled into a parking stall on the east side of the
apartment building. One of the building’s security cameras
showed a black sport utility vehicle (SUV) subsequently park
in the east parking area, two parking stalls to the south of
the Crown Victoria. At this time, the occupants of the Crown
Victoria exited the vehicle and appeared to follow the SUV’s
occupants into the south entrance of the building.
The security camera on the north entrance to the apartment
building showed that at around 5:05 p.m., two individuals
walked into the building, with the door opened for them from
the inside by a third individual. Neither was openly carrying
a rifle, but the individual later identified as Baker walked up
the steps in an odd stiff-legged manner, which the prosecu-
tion argued at trial was because he was concealing a rifle in
his pants.
At around 5:07 p.m., the security camera footage of the
east parking area showed the four individuals from the Crown
Victoria returning to their vehicle from the apartment build-
ing’s south entrance. As these four entered the vehicle, two
individuals, similar in appearance to the two individuals that
had recently entered the north entrance, also came to the east
parking area from the area of the south entrance. These two
stood waiting behind the nearby SUV while the four other indi-
viduals entered the Crown Victoria. One of the two individuals
standing waiting pulled out a rifle, held it up to his shoulder,
stepped out from behind the SUV, and fired multiple shots into
the Crown Victoria. The driver of the Crown Victoria, Richey,
slumped over in his seat. The front passenger, Johnson, ran out
of the vehicle a short distance before grabbing his chest and
falling over. The two rear passengers exited the vehicle.
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Johnson died of a gunshot wound to the heart, and Richey
died 16 days later from a gunshot wound to the head. After the
shooting, police spoke with Washington, who had also been
shot. Washington claimed he did not know the shooter. Nedd
was also in the Crown Victoria during the shooting and sus-
tained a small injury on his rib cage from glass fragmentation.
Nedd claimed not to know the shooter.
Police recovered 30 spent ammunition casings at the scene.
All of the recovered casings were from .223-caliber cartridges.
Police obtained a search warrant to search Baker’s resi-
dence, where he lived with his brother and his brother’s fam-
ily. During the search of Baker’s residence, police recovered a
blue jacket bearing a distinctive logo and text, similar to the
jacket worn by the shooter in the security camera footage, and
a .223-caliber semiautomatic rifle with a 30-round magazine
containing 18 loaded rounds. Baker was not located at the
residence. Police subsequently obtained an arrest warrant for
Baker and arrested him.
Testing of DNA samples taken from the rifle and the jacket
showed that Baker was very likely a contributor to both sam-
ples. Ballistics testing of the rifle showed that 27 of the 30
casings found at the crime scene had been fired from the rifle
found in Baker’s residence; 3 of the casings were not suitable
for comparison.
Baker filed a pretrial motion to suppress any and all evi-
dence found as a result of the search of his residence on the
basis that the search warrant was not sufficiently particular.
The search warrant authorized police to search for, among
other things: “Any and all unknown make and model firearm(s),
to include handguns, rifles, and / or shotguns, along with
ammunition, spent projectiles and spent shell casings, and all
companion equipment for these firearm(s), including holsters,
cleaning kits, sales and/or registration paperwork, and original
packaging/boxes.”
The warrant affidavit provided, in addition to a description
of the build and clothing of the two individuals seen entering
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the building and committing the shooting, the following facts:
Police reviewed security camera footage from the Meredith
Avenue apartment building. They had received an anonymous
tip that Baker had bought a gun from Adren Goynes-Wynn, that
Baker used the gun in the shooting, and that Baker returned the
gun to Goynes-Wynn, who hid the gun in his mother’s apart-
ment at the Meredith Avenue apartment building.
The affidavit also stated that police had responded to a
shooting at another Omaha residence on January 11, 2015,
where numerous .223-caliber casings were found. Prior to that
shooting, Baker had come to see his ex-girlfriend, Shyanne
Clark. Baker became upset when he observed that there was
another man in her residence. Baker made a comment to the
effect of “‘I’m about to shoot shit up,’” after which Clark
heard numerous gunshots outside the residence. Clark told
police that Baker had admitted to shooting and killing two
individuals at the Meredith Avenue apartment building and that
she had seen Baker with a rifle in the past. Clark confirmed
the location of Baker’s residence. Clark identified Baker as one
of the individuals seen on the security camera footage enter-
ing the Meredith Avenue building just prior to the shooting
based on his wearing of the blue jacket bearing the distinctive
logo and text and his “tasseled stocking cap,” which she had
given him.
The affidavit also said that shooting victim Washington told
police that he observed two individuals in the Meredith Avenue
apartment building just before they walked out to the parking
lot prior to the shooting. Washington said that he had a brief
interaction with one of the parties before exiting the build-
ing. Out of a photographic lineup array, Washington identi-
fied Baker as one of the individuals and Goynes-Wynn as the
other individual.
At the hearing on Baker’s motion to suppress, the only evi-
dence presented as to the types of weapons capable of firing
.223-caliber cartridges was the testimony of an Omaha Police
Department detective:
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Q. All right. Concerning the [crime] scene investiga-
tion, as I understand it, the only — only casings that
were observed or recovered were all the same caliber,
this 223?
A. That’s correct, sir.
Q. All right. And is 223 something that would be con-
sistent with handguns being able to fire, or do you know?
A. Well, primarily it’s a rifle cartridge, but there are
rifles that are considered pistols or handguns [by] the
[Bureau of Alcohol, Tobacco, Firearms and Explosives],
and it’s just a shortened version of an M-4 or AR-15
styled rifle, but they are considered nowadays to
be pistols.
Q. Okay. But they’re basically assault weapons?
A. They’re assault weapons, yes, sir.
The trial court overruled Baker’s motion to suppress as it
related to the search for weapons in his residence, relying on
this court’s holding in State v. Tyler.1
On January 21, 2015, the day that he was arrested, Baker
telephoned his ex-girlfriend, Clark, from jail. The call was
recorded and played for the jury at Baker’s trial. A transcript
of the call was given to jurors while the call was played, which
transcript Clark had reviewed for accuracy. The most relevant
portion of the conversation is as follows:
Baker: Man, that shit was crazy. I’m like. I don’t know
man. It just, I guess, you know, it’s meant to be now.
Like, but, I can see if like, like if I did the shit, ya know
what I mean, like you know and was running and shit but
they tryin’ to get . . .
Clark: The only thing is, [Baker]. The only thing
is . . .
Baker: Just listen. I’m gonna read my charges. Just
listen to this dumb ass shit.
1
State v. Tyler, 291 Neb. 920, 870 N.W.2d 119 (2015), cert. denied ___
U.S. ___, 136 S. Ct. 1207, 194 L. Ed. 2d 212 (2016).
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Clark: I know your charges.
Baker: They talking ’bout four counts of first degree
murder.
Clark: No it was two counts of first degree murder.
Two counts of attempted murder . . .
Baker: No but now they talkin’ ’bout. But now, but
now, but . . [.]
Clark: And two counts of use of a firearm for a
felony.
Baker: Yes. But what’s two. That’s what I’m sayin’.
Two weapons. No. What what, what, then I’m like, ya
knaw I mean?
Clark: Because two people died and that other boy
got hit. The only thing is, can you listen to me for a sec-
ond. The only thing is they have pictures of you at the
crime scene.
Baker: Do they?
Clark: Yes.
Clark: Yes. They showed them to me and you can tell
that it . . . like you could just tell. Like, they showed me
a bunch of pictures.
Clark: Of you at the crime scene. That’s what, what
got you hit. They had pictures from all of your home-
boys[’] Facebook[s] []and everything. Their Instagrams,
everything.
Baker: But what did I . . . They had pictures, like.
Alright, so . . .
Clark: They had pictures of you at the crime scene
in your blue jacket. And then they have pictures of you
on Facebook wearing your blue jacket. That’s how they
knew it was you at the crime scene.
Baker: I ain’t gon nuttin’ on faaa, uhhh.
Clark: They have, they have all of your homies[’]
Facebook pictures. They had a bunch of people’s Facebook
pictures, yuh. They showed me a bunch of stuff.
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Baker: Damn. Damn. So it’s like, so it’s like, umm.
Well, they tryin’ to say I got four counts of murder and
four counts of use of weapon. Ya know what I mean?
Clark: No. You just got two counts of murder, two
counts of attempted murder.
Baker: What[’]s two . . .
Clark: And the felony charge, the felony weapon
charges. But you don’t have a felony record, ever before
any of this, before this, you don’t have a felony record
so everything’s gonna be dropped to second degree. You
know that right?
Baker: I don’t know.
Clark: Yes. Because it’s not like you woke up that
morning and was like, [“]hey, let’s go kill these mother
fuckers[”] and planned it all out. It was all, it was either
your life or their life. Right?
Baker: Yeah.
Clark: Alright! So that’s second degree. You didn’t
plan it. You had to do what you had to do.
Baker: Aww, shit man. This shit cray cray. I didn’t
know they came and talked to you, though. But . . [.]
Clark: Yeah, like yeah. I was . . .
Baker: Aight. The pictures, hey, the pictures, did, did
they look, were they outside? Like, let me know . . .
Clark: Yeah. They were outside those . . . You could
tell they were outside those apartments. It was like you
and two other people walking.
Baker: Walkin’?
Clark: Yeah. Like one of you guys were going up the
stairs and two of you were following, like not far behind.
Baker: But they got me shootin’. Do they got a picture
of me in the action?
Clark: No. No.
Baker: Okay then. Then that’s what they need. I
didn’t fuckin’, motherfucker I’m outta state cuz, nigga I
didn’t want, know what I mean, do it. So, other than if
somebody got a make, made up belief, a made up, umm,
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story talkin’ bout dat I had it. Know what I mean? And
plus how the fuck I’m gon motherfuckin’ have a, uh, uh,
uh, man, a big ass, know mean gun, on me down there?
Like get real. But, man. I just want you by my side.
Whatever happens.
At trial, Baker objected to the admission of the telephone
conversation based on hearsay and Neb. Evid. R. 403, Neb.
Rev. Stat. § 27-403 (Reissue 2016). The court overruled
the objections, but offered the following limiting instruc-
tion to the jury at the time the recording of the conversation
was played:
You’re going to hear a phone conversation between . . .
Clark and [Baker] that occurred on January 21st, 2015.
The statements made by . . . Clark are not to be con-
sidered by you for the truth of the statements she made,
but are only received to aid you in providing context for
the statements of [Baker]. You must consider . . . Clark’s
statements for that limited purpose and no other.
A substantially identical instruction was included in the final
jury instructions.
At the conclusion of Baker’s trial, the jury found him guilty
on all counts.
ASSIGNMENTS OF ERROR
Baker claims that the trial court erred in overruling his
motion to suppress evidence found during the course of and as
a result of the search of his residence. He also claims that the
trial court erred in admitting the recorded telephone conversa-
tion between him and Clark.
STANDARD OF REVIEW
[1,2] 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
2
State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).
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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 When a motion to suppress is denied
pretrial and again during trial on renewed objection, an appel-
late 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
ANALYSIS
Particularity of Search Warrant:
“A ny and A ll” Firearms
Baker argues that the search warrant that authorized the
search of his residence for “[a]ny and all” firearms was invalid
because it violated the particularity requirement of the Nebraska
and U.S. Constitutions.
We note that Baker challenges the validity of the search
warrant under both the Nebraska Constitution and the U.S.
Constitution. He makes his argument about the particular-
ity requirement under both constitutional provisions together
and does not ask us to construe the Nebraska Constitution
differently from the U.S. Supreme Court’s construction of
the U.S. Constitution. We generally construe article I, § 7, of
the Nebraska Constitution in lockstep with the U.S. Supreme
Court’s construction of the Fourth Amendment, and we do
so today.6
3
Id.
4
Id.
5
Id.
6
See State v. Rocha, supra note 2, 295 Neb. at 746, 890 N.W.2d at 202
(“[t]his court typically construes the enumerated rights in the Nebraska
Constitution consistently with their counterparts in the U.S. Constitution
as construed by the U.S. Supreme Court . . .”).
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Article I, § 7, of the Nebraska Constitution provides that
“no warrant shall issue but upon probable cause, supported by
oath or affirmation, and particularly describing the place to
be searched, and the person or thing to be seized.” Similarly,
the Fourth Amendment to the U.S. Constitution provides that
“no Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.” The
“‘particularity requirement’” thus demands that a warrant
describe with particularity (1) “‘the place to be searched’” and
(2) “‘the persons or things to be seized.’”7 Here, the second
part of the particularity requirement is at issue. Baker argues
that the search warrant that authorized the seizure of “[a]ny
and all” firearms was invalid because it failed to “particularly
describ[e] the . . . things to be seized.”8
It is well established that the primary historical factor lead-
ing to the adoption of the Fourth Amendment was the use
of “‘general warrants’” and “‘writs of assistance’” by the
British against American colonists, authorizing government
officials to rummage through a person’s belongings with no
limitation on the scope of the search.9 The Fourth Amendment
barred such searches by requiring that warrants “‘“particularly
7
United States v. Grubbs, 547 U.S. 90, 97, 126 S. Ct. 1494, 164 L. Ed. 2d
195 (2006). Accord, U.S. Const. amend. IV; Neb. Const. art. I, § 7.
8
See U.S. Const. amend. IV. Accord Neb. Const. art. I, § 7.
9
See, Payton v. New York, 445 U.S. 573, 583 n.21, 100 S. Ct. 1371, 63
L. Ed. 2d 639 (1980); Coolidge v. New Hampshire, 403 U.S. 443, 91
S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Stanford v. Texas, 379 U.S. 476,
85 S. Ct. 506, 13 L. Ed. 2d 431 (1965); State v. Sprunger, 283 Neb.
531, 811 N.W.2d 235 (2012). See, generally, Orin S. Kerr, Applying the
Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev.
1005 (2010) (discussing history of Fourth Amendment, general warrants,
and particularity requirement); Orin S. Kerr, Searches and Seizures in a
Digital World, 119 Harv. L. Rev. 531 (2005) (same); Thomas Y. Davies,
Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547 (1999)
(same).
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describ[e] the place to be searched, and the persons or things
to be seized.”’”10
[4,5] The particularity requirement is distinct from, but
closely related to, the requirement that a warrant be supported
by probable cause.11 A 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 support-
ing evidence will allow, but the broader the scope of a war-
rant, the stronger the evidentiary showing must be to establish
probable cause.12 Here, Baker does not claim that the affidavit
in support of the warrant does not establish probable cause to
search for “[a]ny and all” firearms, but only that the warrant’s
description was insufficiently particular.
[6-8] Discussing the Fourth Amendment’s particularity
requirement, the U.S. Supreme Court nearly a century ago
said, “The requirement that warrants shall particularly describe
the things to be seized makes general searches under them
impossible and prevents the seizure of one thing under a war-
rant describing another. As to what is to be taken, nothing is
left to the discretion of the officer executing the warrant.”13
While it is not literally true that a warrant must be of such
precise specificity that an officer has no discretion whatsoever
in the execution of the search, a warrant must be sufficiently
10
Payton v. New York, supra note 9, 445 U.S. at 585. See, also, U.S. v.
Sanjar, 853 F.3d 190 (5th Cir. 2017).
11
2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 4.6(a) at 766 (5th ed. 2012 & Supp. 2017) (“requirement of
particularity is closely tied to the requirement of probable cause”). See,
also, Maryland v. Garrison, 480 U.S. 79, 107 S. Ct. 1013, 94 L. Ed. 2d 72
(1987).
12
2 LaFave, supra note 11, § 4.6(a).
13
Marron v. United States, 275 U.S. 192, 196, 48 S. Ct. 74, 72 L. Ed. 231
(1927). See, also, Steele v. United States No. 1, 267 U.S. 498, 504, 45 S.
Ct. 414, 69 L. Ed. 757 (1925) (concluding that warrant’s description of
“‘cases of whiskey’” was sufficiently particular); State v. Tyler, supra note
1; State v. Henderson, 289 Neb. 271, 854 N.W.2d 616 (2014).
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particular to prevent the officer from having unlimited or
unreasonably broad discretion in determining what items to
seize.14 The Eighth Circuit has explained that “‘[t]o satisfy the
particularity requirement of the fourth amendment, the warrant
must be sufficiently definite to enable the searching officers to
identify the property authorized to be seized.’”15 The particu-
larity requirement is one of “‘practical accuracy rather than’ of
hypertechnicality.”16 But a warrant may not validly authorize a
“general exploratory rummaging in a person’s belongings” or
“‘fishing expeditions.’”17
Regarding the degree of particularity required in a warrant,
the Sixth Circuit said:
The degree of specificity required depends on the crime
involved and the types of items sought. . . . The use of a
generic term or a general description is not per se viola-
tive of the fourth amendment. . . . When a more specific
description of the items to be seized is unavailable, a gen-
eral description will suffice.18
Similarly, the Fifth Circuit has said, “Generic language may
satisfy th[e] ‘particularity’ requirement if describing a more
14
See, U.S. v. Triplett, 684 F.3d 500, 504 (5th Cir. 2012) (“Fourth
Amendment requires that warrants ‘particularly describ[e] the place to be
searched, and the persons or things to be seized.’ . . . Some interpretation
is unavoidable”); Strauss v. Stynchcombe, 224 Ga. 859, 165 S.E.2d 302
(1968); 2 LaFave, supra note 11, § 4.6(a).
15
U.S. v. Sigillito, 759 F.3d 913, 923 (8th Cir. 2014). See, also, U.S. v. Sanjar,
supra note 10, 853 F.3d at 200 (requiring “enough detail in the warrant to
allow a reasonable agent to know what items she is permitted to take”).
16
U.S. v. Sigillito, supra note 15, 759 F.3d at 923. See, also, U.S. v. Triplett,
supra note 14, 684 F.3d at 504 (“[r]easonable specificity is required, not
‘elaborate detail’”).
17
State v. Sprunger, supra note 9, 283 Neb. at 539, 811 N.W.2d at 243. See,
also, City of Golden Valley v. Wiebesick, 899 N.W.2d 152 (Minn. 2017)
(Anderson, J., dissenting; Stras, J., joins in part).
18
U.S. v. Blakeney, 942 F.2d 1001, 1026-27 (6th Cir. 1991) (citations
omitted).
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specific item is not possible.”19 And “‘[t]he degree of specific-
ity required will depend on the circumstances of the case and
on the type of items involved.’”20
The Ninth Circuit has articulated the following factors for
analyzing the particularity of a warrant:
In determining whether a description is sufficiently pre-
cise, we have concentrated on one or more of the follow-
ing: (1) whether probable cause exists to seize all items
of a particular type described in the warrant . . . ; (2)
whether the warrant sets out objective standards by which
executing officers can differentiate items subject to sei-
zure from those which are not . . . ; and (3) whether the
government was able to describe the items more particu-
larly in light of the information available to it at the time
the warrant was issued.21
In State v. Tyler,22 this court considered the validity of
a search warrant that authorized police to search for and
seize “‘[a]ny and all firearms.’” Police had recovered shell
casings at the scene of the crime and had learned that the
defendant had purchased a pistol capable of firing that type
of ammunition. There were around 20 types of guns capable
of firing that type of ammunition.23 The defendant filed a
motion to suppress the handgun found in the execution of the
search warrant, which motion the trial court overruled. He
argued that the warrant was insufficiently particular because
police knew the caliber of firearm used in the crime, but the
19
U.S. v. Sanjar, supra note 10, 853 F.3d at 200. See, also, U.S. v. Pulliam,
748 F.3d 967, 972 (10th Cir. 2014) (“‘warrant that describes the items to
be seized in broad or generic terms may be valid when the description
is as specific as the circumstances and the nature of the activity under
investigation permit’”), cited by State v. Tyler, supra note 1.
20
U.S. v. Sigillito, supra note 15, 759 F.3d at 923.
21
United States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986).
22
State v. Tyler, supra note 1, 291 Neb. at 934, 870 N.W.2d at 130.
23
State v. Tyler, supra note 1.
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warrant authorized a search for “‘[a]ny and all firearms.’”24
We rejected this argument, reasoning:
This provision was not open-ended. It authorized police
to search for firearms and companion equipment; the
scope of the search was not left to the discretion of the
officers. Furthermore, the nature of the activity under
investigation justifies its scope. Police were investigating
a murder performed with a gun. They learned from the
crime lab that about 20 guns were capable of firing the
bullets recovered from the scene. The provision was suf-
ficiently particular.25
Here, we reject Baker’s argument that the provision of the
search warrant authorizing police to search for “[a]ny and all”
firearms was insufficiently particular. Importantly, Baker does
not argue that probable cause was lacking for police to search
for any and all firearms. Thus, we need not address whether
there was probable cause to authorize a search for any and all
firearms, including handguns and shotguns, where the crime
scene evidence (the shell casings found and the shot-up Crown
Victoria) and the security camera footage indicated that the
gun used was likely a rifle. Rather, Baker argues that the war-
rant was lacking in particularity.
The search warrant was sufficiently particular because it
told police with reasonable clarity which items to search
for and seize. It did not authorize a “‘fishing expedition[]’”
through Baker’s residence.26 Even without specifying a par-
ticular caliber of firearm, the description of “[a]ny and all”
firearms, followed by the exemplary list of types of firearms,
was “‘sufficiently definite to enable the searching officers to
identify the property authorized to be seized.’”27 Police were
24
Id. at 934, 870 N.W.2d at 130
25
Id. at 935, 870 N.W.2d at 131.
26
See State v. Sprunger, supra note 9, 283 Neb. at 539, 811 N.W.2d at 243.
27
See U.S. v. Sigillito, supra note 15, 759 F.3d at 923.
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not given open-ended discretion as to which items they could
search for and seize.
Because the provision of the search warrant authorizing
police to search for and seize “[a]ny and all” firearms did
not run afoul of the particularity requirement of the U.S. and
Nebraska Constitutions, the trial court properly denied Baker’s
motion to suppress. Because the search warrant was valid, we
need not address whether the DNA swabs obtained from the
rifle found in the search are “‘fruit of the poisonous tree.’”28
Hearsay and Rule 403:
Jail Telephone Call
Baker claims that the trial court improperly admit-
ted a recorded telephone call between him and Clark, his
ex-­girlfriend, that he made from jail. He argues that the trial
court erred in admitting the call over his hearsay and rule
403 objections.
At Baker’s trial, the court allowed the prosecution to play
for the jury a recorded telephone call between Baker and
Clark. Baker objected to the admission of Clark’s statements
in the telephone conversation on hearsay and rule 403 grounds.
The trial court gave a limiting instruction to the jury that
Clark’s statements were admissible for the limited purpose of
providing context to Baker’s statements and should not be con-
sidered for the truth of the matter asserted.
Baker asserts that the correct analytical framework for
reviewing the admissibility of Clark’s statements is the frame-
work set forth in State v. Rocha.29 Because this case similarly
involves the admissibility of statements made by a third party
admitted for the limited purpose of providing context to the
statements of a party, we agree.
In Rocha, we considered the admissibility of statements
made by a police officer within a recorded police interview
with the defendant, in which the officer made statements
28
See brief for appellant at 22.
29
State v. Rocha, supra note 2.
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regarding the guilt and veracity of the defendant. A video
recording of the interview was played for the jury, and the trial
court gave a limiting instruction explaining that the officer’s
statements were interrogation techniques and that the state-
ments should not be considered as substantive evidence or
considered in any way when evaluating the defendant’s guilt or
the truth of any of his statements.
In Rocha, we elected to analyze such statements under the
normal rules of evidence rather than to adopt a special rule
for such evidence.30 In doing so, we advised courts that when
considering the admissibility of such statements, they must “do
more than offer ‘a mechanical recitation’” that the third party’s
statements are necessary to provide context.31
First, we said that absent some ground for admissibility as
substantive evidence, such third party, out-of-court statements
are not admissible to prove the truth of the matter asserted in
the statements, for this would violate the hearsay rule.32 And
we said that “[u]pon request, a defendant is entitled to a limit-
ing instruction that such [third-party] statements are to be con-
sidered only for the [limited] permissible purpose of providing
context to the defendant’s statements.”33
[9,10] Next, we said that a court must consider whether the
statement made by a third party admitted to give context to a
party’s statement is relevant. To evaluate the relevance of the
third party’s statement for the purpose of providing context,
a court must compare the probative value of the defendant’s
statement with and without the added context; if the third-party
statement makes the defendant’s statement any more probative,
the third-party statement is itself relevant.34
30
See People v. Musser, 494 Mich. 337, 835 N.W.2d 319 (2013).
31
State v. Rocha, supra note 2, 295 Neb. at 738, 890 N.W.2d at 198.
32
State v. Rocha, supra note 2; Neb. Evid. R. 801 and 802, Neb. Rev. Stat.
§§ 27-801 and 27-802 (Reissue 2016).
33
State v. Rocha, supra note 2, 295 Neb. at 741, 890 N.W.2d at 199.
34
Id.
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We then said that a court must consider whether the third-
party statement runs afoul of rule 403.35 This rule allows for
the exclusion of relevant evidence “if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by consider-
ations of undue delay, waste of time, or needless presentation
of cumulative evidence.”36 In determining whether the dan-
ger of unfair prejudice substantially outweighed the probative
value in Rocha, we looked to several considerations.37 We
considered the fact that the third-party statements were made
by a police officer, which could induce improper reliance by
the jury because the statements carried the “‘imprimatur of the
government.’”38 But we also considered the fact that a limiting
instruction was given in the case, which mitigated the risk of
improper reliance on the officer’s statements. We concluded
that while the case was a “close call” and “approache[d] the
line,” the trial court’s admission of the statements did not rise
to the level of an abuse of discretion.39
Here, Clark’s statements to Baker are plainly relevant.
Baker’s statements have far more probative value when con-
sidered in the context of Clark’s statements to which he is
responding. For example, Baker’s statement “Do they?” is far
more probative when considered in light of Clark’s preceding
statement, “[T]hey have pictures of you at the crime scene.”
Baker’s statement “Yeah” is far more probative with the con-
text of Clark’s preceding statement, “[I]t’s not like you woke
up that morning and was like, ‘hey, let’s go kill these mother
fuckers’ and planned it all out. It was all, it was either your life
or their life. Right?” Clark’s statements are intertwined with
Baker’s responses throughout the conversation. Plainly, her
35
State v. Rocha, supra note 2; § 27-403.
36
§ 27-403.
37
State v. Rocha, supra note 2.
38
Id. at 743, 890 N.W.2d at 201.
39
Id. at 744, 890 N.W.2d at 201.
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statements have probative value for the purpose of providing
context to Baker’s own statements, which could not be fully
understood standing alone.
And the trial court did not abuse its discretion in conclud-
ing that the probative value of Clark’s statements was not
substantially outweighed by the risk of unfair prejudice under
rule 403. Certainly, Clark’s statements carried with them some
risk of prejudice. She made comments about police having
pictures of Baker from social media, having pictures of him at
the crime scene and identifying him based on his clothing, and
even suggesting that he committed the killings but that they
were not premeditated. But the evidence identifying Baker at
the crime scene from the security camera footage based on his
clothing was presented to the jury; Clark’s comments on this
evidence were not unfairly prejudicial. And unlike the facts
in Rocha, the statements were not made by a police officer
or other official with the “‘imprimatur of the government’”;
nor did they question the veracity of a defendant’s claims
to innocence.40
[11] And when analyzing evidence under rule 403, courts
not only consider the risk of unfair prejudice or other dangers
the evidence carries, but weigh those dangers against the pro-
bative value of the evidence, determining whether the former
substantially outweighs the latter.41 Here, Clark’s statements
carried substantial probative value by providing necessary
context to Baker’s statements. Even Clark’s statement sug-
gesting that Baker committed but did not plan the killings
provides irreplaceable context to Baker’s responses: “Yeah”
and “Aww, shit man. This shit [is] cray cray.” Baker’s effec-
tive admission to, or at least lack of denial of, committing the
killings cannot be understood without the context of Clark’s
preceding statements. Clark’s statements here carry far more
probative weight than those made by the officer in Rocha,
40
Id. at 743, 890 N.W.2d at 201.
41
State v. Rocha, supra note 2.
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many of which bore a tenuous connection to the defendant’s
statements.
Thus, Clark’s statements carried both some risk of unfair
prejudice and significant probative value. Whether the former
substantially outweighed the latter is a question left to the
discretion of the trial court. We conclude that the trial court
did not abuse its discretion by determining that the admis-
sion of the telephone call, including Clark’s statements, did
not violate rule 403 and overruling Baker’s objections to
its admission.
CONCLUSION
The search warrant that authorized police to search for and
seize any and all firearms in Baker’s residence did not vio-
late the constitutional particularity requirement. The warrant
was sufficiently definite to enable police to know what items
they were authorized to search for and seize. And while the
admission of statements made by Clark, Baker’s ex-girlfriend,
as part of the recorded telephone conversation between her
and Baker carried some risk of prejudice, the trial court did
not abuse its discretion in concluding that the risk of unfair
prejudice did not substantially outweigh the probative value
of those statements to give necessary context to Baker’s state-
ments. We affirm.
A ffirmed.