memorandum brief in Nebraska

2018Probable cause to support a warrantless arrest exists only if law enforcement has knowledge at the time of the arrest, based on information that is reasonably trustworthy under the circumstances, that would cause a reasonably cautious person to believe that a suspect has committed or is committing a crime.15 Probable cause is a flexible, commonsense standard that depends on the totality of the circumstances.16 An appel- late court determines whether probable cause existed under an objective standard of reasonableness, given the known facts and circumstances.17 But, in the words of the U.S. Sup

2018Memorandum brief in support of petition for further review for appellee at 9, quoting United States v. Jones , 759 F.2d 633 (8th Cir. 1985).

2021Accord Sheridan, supra note 28 , 487 U.S. at 411 (O’Connor, J. dissenting; Rehnquist, C.J., and Scalia, J., join) (observing that plain language of FTCA intentional tort exception applies “whether the person committing the intentional tort is a Government employee, a nonemployee, or a Government employee acting outside the scope of his office”). 68 See § 13-910(7). 69 Memorandum brief for appellant in opposition to appellee’s motion for summary dismissal or affirmance at 3. - 279 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports EDWARDS v. DOUGLAS COUNTY Cite as 308 Neb. 259 by Clar

2018Probable cause to support a warrantless arrest exists only if law enforcement has knowledge at the time of the arrest, based on information that is reasonably trustworthy under the circumstances, that would cause a reasonably cautious person to believe that a suspect has committed or is committing a crime.15 Probable cause is a flexible, commonsense standard that depends on the totality of the circumstances.16 An appel- late court determines whether probable cause existed under an objective standard of reasonableness, given the known facts and circumstances.17 But, in the words of the U.S. Sup

2018Probable cause to support a warrantless arrest exists only if law enforcement has knowledge at the time of the arrest, based on information that is reasonably trustworthy under the circumstances, that would cause a reasonably cautious person to believe that a suspect has committed or is committing a crime.15 Probable cause is a flexible, commonsense standard that depends on the totality of the circumstances.16 An appel- late court determines whether probable cause existed under an objective standard of reasonableness, given the known facts and circumstances.17 But, in the words of the U.S. Sup

2018Ed. 2d 453 (2018). - 817 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports STATE v. BOTTS Cite as 299 Neb. 806 whether the totality of the circumstances would suggest that probable cause existed.19 It is improper to view each fact “in isolation, rather than as a factor in the totality of the circumstances.” . . .

2017App. at 833 , 899 N.W.2d at 640 . 15 Memorandum brief for appellee in support of petition for further review at 4. 16 DMK Biodiesel v. McCoy, 285 Neb. 974 , 830 N.W.2d 490 (2013). - 335 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports NADEEM v. STATE Cite as 298 Neb. 329 attached to the pleadings.17 These documents are “not consid- ered matters outside the pleadings.”18 We agree with the State that the Court of Appeals’ prior opinion is “embraced by the complaint.” In Nadeem’s com- plaint, he cites to the Court of Appeals’ 2013 opinion and refers to numerous statements made by th

2017App. at 833 , 899 N.W.2d at 640 . 15 Memorandum brief for appellee in support of petition for further review at 4. 16 DMK Biodiesel v. McCoy, 285 Neb. 974 , 830 N.W.2d 490 (2013). - 335 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports NADEEM v. STATE Cite as 298 Neb. 329 attached to the pleadings.17 These documents are “not consid- ered matters outside the pleadings.”18 We agree with the State that the Court of Appeals’ prior opinion is “embraced by the complaint.” In Nadeem’s com- plaint, he cites to the Court of Appeals’ 2013 opinion and refers to numerous statements made by th

2017App. at 833 , 899 N.W.2d at 640 . 15 Memorandum brief for appellee in support of petition for further review at 4. 16 DMK Biodiesel v. McCoy, 285 Neb. 974 , 830 N.W.2d 490 (2013). - 335 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports NADEEM v. STATE Cite as 298 Neb. 329 attached to the pleadings.17 These documents are “not consid- ered matters outside the pleadings.”18 We agree with the State that the Court of Appeals’ prior opinion is “embraced by the complaint.” In Nadeem’s com- plaint, he cites to the Court of Appeals’ 2013 opinion and refers to numerous statements made by th

2017App. at 833 , 899 N.W.2d at 640 . 15 Memorandum brief for appellee in support of petition for further review at 4. 16 DMK Biodiesel v. McCoy, 285 Neb. 974 , 830 N.W.2d 490 (2013). - 335 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports NADEEM v. STATE Cite as 298 Neb. 329 attached to the pleadings.17 These documents are “not consid- ered matters outside the pleadings.”18 We agree with the State that the Court of Appeals’ prior opinion is “embraced by the complaint.” In Nadeem’s com- plaint, he cites to the Court of Appeals’ 2013 opinion and refers to numerous statements made by th

2015Characterization of $20,000 Griffin assigns that the Court of Appeals “improperly stepped into the role of fact finder”16 by characterizing the 14 See Rhein v. Caterpillar Tractor Co., 210 Neb. 321 , 314 N.W.2d 19 (1982). 15 See, Reiser, supra note 11 ; Nelson v. Dolan, 230 Neb. 848 , 434 N.W.2d 25 (1989); Rhein, supra note 14 . 16 Memorandum brief for appellant in support of petition for further review at 5. - 56 - Nebraska A dvance Sheets 291 Nebraska R eports IN RE ESTATE OF PANEC Cite as 291 Neb. 46 $20,000 she received as a distribution for the survival claim.

2015Characterization of $20,000 Griffin assigns that the Court of Appeals “improperly stepped into the role of fact finder”16 by characterizing the 14 See Rhein v. Caterpillar Tractor Co., 210 Neb. 321 , 314 N.W.2d 19 (1982). 15 See, Reiser, supra note 11 ; Nelson v. Dolan, 230 Neb. 848 , 434 N.W.2d 25 (1989); Rhein, supra note 14 . 16 Memorandum brief for appellant in support of petition for further review at 5. - 56 - Nebraska A dvance Sheets 291 Nebraska R eports IN RE ESTATE OF PANEC Cite as 291 Neb. 46 $20,000 she received as a distribution for the survival claim.

2015App. at 832, 862 N.W.2d at 98. 14 Id. at 830, 862 N.W.2d at 96 (emphasis supplied). 15 Id. at 832, 862 N.W.2d at 98 (emphasis supplied). 16 State v. Schuller, 287 Neb. 500 , 843 N.W.2d 626 (2014). 17 Id. at 511, 843 N.W.2d at 635. -7- Nebraska A dvance Sheets 292 Nebraska R eports STATE v. MUCIA Cite as 292 Neb. 1 remnants of the files on the defendant’s hard drive, coupled with the fact that he “repeatedly searched for, downloaded, viewed, and deleted child pornography,”18 constituted knowing possession, not merely viewing.

2015The State argues that violation of § 28-813.01 is a “general intent” crime and that the Court of Appeals inaccurately classified it as a “specific intent” crime.7 The State is con- cerned that the Court of Appeals’ interpretation of § 28-813.01 requires the State to prove, in a child pornography case, that the defendant intentionally “sought out” child pornography and “exclude[s] from the statute’s reach any person who comes into possession of child pornography unintentionally but nevertheless decides to keep it.”8 6 State v. Lasu, 278 Neb. 180 , 768 N.W.2d 447 (2009). 7 Memorandum brief for a

2015General Principles [4] A wrongful death action and a survival action are two distinct causes of action which may be brought by a decedent’s personal representative.9 Although they are frequently joined in a single action, they are conceptually separate.10 [5] A wrongful death action is brought on behalf of the widow or widower and next of kin for damages they have sustained as a result of the decedent’s death.11 Such damages include the pecuniary value of the loss of the decedent’s sup- port, society, comfort, and companionship.12 [6] In contrast, an action under our survival statute13 is the

2015General Principles [4] A wrongful death action and a survival action are two distinct causes of action which may be brought by a decedent’s personal representative.9 Although they are frequently joined in a single action, they are conceptually separate.10 [5] A wrongful death action is brought on behalf of the widow or widower and next of kin for damages they have sustained as a result of the decedent’s death.11 Such damages include the pecuniary value of the loss of the decedent’s sup- port, society, comfort, and companionship.12 [6] In contrast, an action under our survival statute13 is the

2015Characterization of $20,000 Griffin assigns that the Court of Appeals “improperly stepped into the role of fact finder”16 by characterizing the 14 See Rhein v. Caterpillar Tractor Co., 210 Neb. 321 , 314 N.W.2d 19 (1982). 15 See, Reiser, supra note 11 ; Nelson v. Dolan, 230 Neb. 848 , 434 N.W.2d 25 (1989); Rhein, supra note 14 . 16 Memorandum brief for appellant in support of petition for further review at 5. - 56 - Nebraska A dvance Sheets 291 Nebraska R eports IN RE ESTATE OF PANEC Cite as 291 Neb. 46 $20,000 she received as a distribution for the survival claim.

2015Characterization of $20,000 Griffin assigns that the Court of Appeals “improperly stepped into the role of fact finder”16 by characterizing the 14 See Rhein v. Caterpillar Tractor Co., 210 Neb. 321 , 314 N.W.2d 19 (1982). 15 See, Reiser, supra note 11 ; Nelson v. Dolan, 230 Neb. 848 , 434 N.W.2d 25 (1989); Rhein, supra note 14 . 16 Memorandum brief for appellant in support of petition for further review at 5. - 56 - Nebraska A dvance Sheets 291 Nebraska R eports IN RE ESTATE OF PANEC Cite as 291 Neb. 46 $20,000 she received as a distribution for the survival claim.

2015General Principles [4] A wrongful death action and a survival action are two distinct causes of action which may be brought by a decedent’s personal representative.9 Although they are frequently joined in a single action, they are conceptually separate.10 [5] A wrongful death action is brought on behalf of the widow or widower and next of kin for damages they have sustained as a result of the decedent’s death.11 Such damages include the pecuniary value of the loss of the decedent’s sup- port, society, comfort, and companionship.12 [6] In contrast, an action under our survival statute13 is the

2015General Principles [4] A wrongful death action and a survival action are two distinct causes of action which may be brought by a decedent’s personal representative.9 Although they are frequently joined in a single action, they are conceptually separate.10 [5] A wrongful death action is brought on behalf of the widow or widower and next of kin for damages they have sustained as a result of the decedent’s death.11 Such damages include the pecuniary value of the loss of the decedent’s sup- port, society, comfort, and companionship.12 [6] In contrast, an action under our survival statute13 is the

2015The State argues that violation of § 28-813.01 is a “general intent” crime and that the Court of Appeals inaccurately classified it as a “specific intent” crime.7 The State is con- cerned that the Court of Appeals’ interpretation of § 28-813.01 requires the State to prove, in a child pornography case, that the defendant intentionally “sought out” child pornography and “exclude[s] from the statute’s reach any person who comes into possession of child pornography unintentionally but nevertheless decides to keep it.”8 6 State v. Lasu, 278 Neb. 180 , 768 N.W.2d 447 (2009). 7 Memorandum brief for a

2015The State argues that violation of § 28-813.01 is a “general intent” crime and that the Court of Appeals inaccurately classified it as a “specific intent” crime.7 The State is con- cerned that the Court of Appeals’ interpretation of § 28-813.01 requires the State to prove, in a child pornography case, that the defendant intentionally “sought out” child pornography and “exclude[s] from the statute’s reach any person who comes into possession of child pornography unintentionally but nevertheless decides to keep it.”8 6 State v. Lasu, 278 Neb. 180 , 768 N.W.2d 447 (2009). 7 Memorandum brief for a

2015Characterization of $20,000 Griffin assigns that the Court of Appeals “improperly stepped into the role of fact finder”16 by characterizing the 14 See Rhein v. Caterpillar Tractor Co., 210 Neb. 321 , 314 N.W.2d 19 (1982). 15 See, Reiser, supra note 11 ; Nelson v. Dolan, 230 Neb. 848 , 434 N.W.2d 25 (1989); Rhein, supra note 14 . 16 Memorandum brief for appellant in support of petition for further review at 5. - 56 - Nebraska A dvance Sheets 291 Nebraska R eports IN RE ESTATE OF PANEC Cite as 291 Neb. 46 $20,000 she received as a distribution for the survival claim.

2004But Hicks, 825 F.2d at 120 , specifically holds that [wjhere a court has entered judgment against a plaintiff in a case involving more than one claim and the plaintiff voluntarily dismisses the claim or claims, which made the judgment non-appealable and the dismissal is brought to the attention of the district court, this Court will not penalize the plaintiff by dismissing his or her appeal.

1999This argument ignores the fact that in Kappenman , there was evidence that as the plaintiff was attempting to “lay down” his motorcycle in order to avoid being hit by the defendant’s vehicle, he “lost control just before the motorcycle he was riding tipped over while he was still on it,” resulting in injury. 241 Neb. at 56 , 486 N.W.2d at 29 .

1999This argument ignores the fact that in Kappenman , there was evidence that as the plaintiff was attempting to “lay down” his motorcycle in order to avoid being hit by the defendant’s vehicle, he “lost control just before the motorcycle he was riding tipped over while he was still on it,” resulting in injury. 241 Neb. at 56 , 486 N.W.2d at 29 .

1999The Court of Appeals wrote, “For the sake of completeness, we note that the testimony shows that the statement regarding Johnson’s drag history pertains to a drag conviction which was 10 years prior to this incident.” State v. Johnson, 6 Neb.