particularity requirement in Nebraska

2021Ed. 2d 639 (1980). 102 State v. Said, supra note 71 . - 137 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. SHORT Cite as 310 Neb. 81 requirement of the Fourth Amendment protects against open- ended warrants that leave the scope of the search to the discre- tion of the officer executing the warrant or permits seizure of items other than what is described. 103 Simply put, the Fourth Amendment prohibits “fishing expeditions.” 104 [52-55] To satisfy the particularity requirement of the Fourth Amendment, a warrant must be sufficiently definite to enable the searching officer

2017Ed. 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). - 229 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports STATE v. BAKER Cite as 298 Neb. 216 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 searchi

2019The particularity requirement for search warrants is distinct from, but closely related to, the requirement that a warrant be supported by probable cause.11 A purpose of the particularity requirement for a search warrant is to prevent the issuance of warrants on loose, vague, or doubtful bases of fact.12 [10-12] To satisfy the particularity requirement of the Fourth Amendment, a warrant must be sufficiently definite to enable the searching officer to identify the property authorized to be seized.13 The degree of specificity required depends on the circumstances of the case and on the type of i

2017Rev. 547 (1999) (same). - 228 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports STATE v. BAKER Cite as 298 Neb. 216 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

2021Ed. 2d 639 (1980). 102 State v. Said, supra note 71 . - 137 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. SHORT Cite as 310 Neb. 81 requirement of the Fourth Amendment protects against open- ended warrants that leave the scope of the search to the discre- tion of the officer executing the warrant or permits seizure of items other than what is described. 103 Simply put, the Fourth Amendment prohibits “fishing expeditions.” 104 [52-55] To satisfy the particularity requirement of the Fourth Amendment, a warrant must be sufficiently definite to enable the searching officer

2021Ed. 2d 639 (1980). 102 State v. Said, supra note 71 . - 137 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. SHORT Cite as 310 Neb. 81 requirement of the Fourth Amendment protects against open- ended warrants that leave the scope of the search to the discre- tion of the officer executing the warrant or permits seizure of items other than what is described. 103 Simply put, the Fourth Amendment prohibits “fishing expeditions.” 104 [52-55] To satisfy the particularity requirement of the Fourth Amendment, a warrant must be sufficiently definite to enable the searching officer

2021“It is familiar history that indiscriminate searches and seizures conducted under the authority of ‘general warrants’ were the immediate evils that motivated the framing and adoption of the Fourth Amendment.” 101 A purpose of the particularity require- ment for a search warrant is to prevent the issuance of warrants on loose, vague, or doubtful bases of fact. 102 The particularity 101 Payton v. New York, 445 U.S. 573, 583 , 100 S. Ct. 1371 , 63 L.

2021“It is familiar history that indiscriminate searches and seizures conducted under the authority of ‘general warrants’ were the immediate evils that motivated the framing and adoption of the Fourth Amendment.” 101 A purpose of the particularity require- ment for a search warrant is to prevent the issuance of warrants on loose, vague, or doubtful bases of fact. 102 The particularity 101 Payton v. New York, 445 U.S. 573, 583 , 100 S. Ct. 1371 , 63 L.

2020Id. [20] To satisfy the particularity requirement of the Fourth Amendment, a warrant must be sufficiently definite to enable the searching officer to identify the property authorized to be seized.

2020Id. [21] The purpose of the particularity requirement as it relates to warrants is to prevent general searches, and whether a warrant is insufficiently particular depends upon the facts and circumstances of each case.

2025GOYNES Cite as 318 Neb. 413 assignment of error, holding that the search warrant for the cell phone data content was supported by probable cause and met the particularity requirement of the Fourth Amendment and article I, § 7, of the Nebraska Constitution.

2022Clancy, The Fourth Amendment, Its History and Interpretation § 12.4.8 (3d ed. 2017). 9 See id. - 722 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. McGOVERN Cite as 311 Neb. 705 ‘special approach,’ requiring unique procedures and detailed justifications, including rejecting the container analogy.” 10 Under the filing cabinet or container approach, courts “look to traditional means to limit the scope of document searches, such as the nature of the criminal activity alleged or the nature of the objects sought.” 11 But “a consequence of this view is the potential exposure o

2022Ed. 2d 453 (2018). 30 State v. Short, supra note 2 . - 726 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. McGOVERN Cite as 311 Neb. 705 (ii) Particularity and Breadth [14,15] To satisfy the particularity requirement of the Fourth Amendment, a warrant must be sufficiently definite to enable the searching officer to identify the property authorized to be seized. 31 The degree of specificity required in a warrant depends on the circumstances of the case and on the type of items involved. 32 McGovern challenges the first warrant’s particularity and breadth.

2021Ed. 2d 639 (1980). 102 State v. Said, supra note 71 . - 137 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. SHORT Cite as 310 Neb. 81 requirement of the Fourth Amendment protects against open- ended warrants that leave the scope of the search to the discre- tion of the officer executing the warrant or permits seizure of items other than what is described. 103 Simply put, the Fourth Amendment prohibits “fishing expeditions.” 104 [52-55] To satisfy the particularity requirement of the Fourth Amendment, a warrant must be sufficiently definite to enable the searching officer

2021Ed. 2d 639 (1980). 102 State v. Said, supra note 71 . - 137 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. SHORT Cite as 310 Neb. 81 requirement of the Fourth Amendment protects against open- ended warrants that leave the scope of the search to the discre- tion of the officer executing the warrant or permits seizure of items other than what is described. 103 Simply put, the Fourth Amendment prohibits “fishing expeditions.” 104 [52-55] To satisfy the particularity requirement of the Fourth Amendment, a warrant must be sufficiently definite to enable the searching officer

2021Neither search is overbroad, because “[c]riminals don’t advertise where they keep evidence.” 112 A cell phone serves the same function as a filing cabinet, and there is no way for law enforcement to know in advance how a suspect may label or code files that contain evidence of criminal activity. 113 The U.S. Supreme Court in Riley v. California, 114 in hold- ing a warrant is required to search data stored in cell phones seized incident to arrest, recognized “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.” The Court did not ther

2021Neither search is overbroad, because “[c]riminals don’t advertise where they keep evidence.” 112 A cell phone serves the same function as a filing cabinet, and there is no way for law enforcement to know in advance how a suspect may label or code files that contain evidence of criminal activity. 113 The U.S. Supreme Court in Riley v. California, 114 in hold- ing a warrant is required to search data stored in cell phones seized incident to arrest, recognized “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.” The Court did not ther

2021Regarding the extensiveness of the list of items to be searched for and seized, while sifting through the extensive data, this court in State v. Goynes 121 has already found suffi- ciently particular a warrant allowing a search for and seizure 115 See State v. Johnson, supra note 111. 116 See id. 117 State v. Mansor, 363 Or. 185 , 421 P.3d 323 (2018). 118 See id. 119 State v. Savath, supra note 111 . 120 See, e.g., U.S. v. Castro, 881 F.3d 961 (6th Cir. 2018); U.S. v. Bass, 785 F.3d 1043 (6th Cir. 2015); U.S. v. Bishop, supra note 112 ; State v. Johnson, supra note 111; People v. English, 52 M

2021Regarding the extensiveness of the list of items to be searched for and seized, while sifting through the extensive data, this court in State v. Goynes 121 has already found suffi- ciently particular a warrant allowing a search for and seizure 115 See State v. Johnson, supra note 111. 116 See id. 117 State v. Mansor, 363 Or. 185 , 421 P.3d 323 (2018). 118 See id. 119 State v. Savath, supra note 111 . 120 See, e.g., U.S. v. Castro, 881 F.3d 961 (6th Cir. 2018); U.S. v. Bass, 785 F.3d 1043 (6th Cir. 2015); U.S. v. Bishop, supra note 112 ; State v. Johnson, supra note 111; People v. English, 52 M

2021Regarding the extensiveness of the list of items to be searched for and seized, while sifting through the extensive data, this court in State v. Goynes 121 has already found suffi- ciently particular a warrant allowing a search for and seizure 115 See State v. Johnson, supra note 111. 116 See id. 117 State v. Mansor, 363 Or. 185 , 421 P.3d 323 (2018). 118 See id. 119 State v. Savath, supra note 111 . 120 See, e.g., U.S. v. Castro, 881 F.3d 961 (6th Cir. 2018); U.S. v. Bass, 785 F.3d 1043 (6th Cir. 2015); U.S. v. Bishop, supra note 112 ; State v. Johnson, supra note 111; People v. English, 52 M

2021Neither search is overbroad, because “[c]riminals don’t advertise where they keep evidence.” 112 A cell phone serves the same function as a filing cabinet, and there is no way for law enforcement to know in advance how a suspect may label or code files that contain evidence of criminal activity. 113 The U.S. Supreme Court in Riley v. California, 114 in hold- ing a warrant is required to search data stored in cell phones seized incident to arrest, recognized “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.” The Court did not ther

2021Regarding the extensiveness of the list of items to be searched for and seized, while sifting through the extensive data, this court in State v. Goynes 121 has already found suffi- ciently particular a warrant allowing a search for and seizure 115 See State v. Johnson, supra note 111. 116 See id. 117 State v. Mansor, 363 Or. 185 , 421 P.3d 323 (2018). 118 See id. 119 State v. Savath, supra note 111 . 120 See, e.g., U.S. v. Castro, 881 F.3d 961 (6th Cir. 2018); U.S. v. Bass, 785 F.3d 1043 (6th Cir. 2015); U.S. v. Bishop, supra note 112 ; State v. Johnson, supra note 111; People v. English, 52 M

2021Regarding the extensiveness of the list of items to be searched for and seized, while sifting through the extensive data, this court in State v. Goynes 121 has already found suffi- ciently particular a warrant allowing a search for and seizure 115 See State v. Johnson, supra note 111. 116 See id. 117 State v. Mansor, 363 Or. 185 , 421 P.3d 323 (2018). 118 See id. 119 State v. Savath, supra note 111 . 120 See, e.g., U.S. v. Castro, 881 F.3d 961 (6th Cir. 2018); U.S. v. Bass, 785 F.3d 1043 (6th Cir. 2015); U.S. v. Bishop, supra note 112 ; State v. Johnson, supra note 111; People v. English, 52 M

2021Regarding the extensiveness of the list of items to be searched for and seized, while sifting through the extensive data, this court in State v. Goynes 121 has already found suffi- ciently particular a warrant allowing a search for and seizure 115 See State v. Johnson, supra note 111. 116 See id. 117 State v. Mansor, 363 Or. 185 , 421 P.3d 323 (2018). 118 See id. 119 State v. Savath, supra note 111 . 120 See, e.g., U.S. v. Castro, 881 F.3d 961 (6th Cir. 2018); U.S. v. Bass, 785 F.3d 1043 (6th Cir. 2015); U.S. v. Bishop, supra note 112 ; State v. Johnson, supra note 111; People v. English, 52 M

2021Regarding the extensiveness of the list of items to be searched for and seized, while sifting through the extensive data, this court in State v. Goynes 121 has already found suffi- ciently particular a warrant allowing a search for and seizure 115 See State v. Johnson, supra note 111. 116 See id. 117 State v. Mansor, 363 Or. 185 , 421 P.3d 323 (2018). 118 See id. 119 State v. Savath, supra note 111 . 120 See, e.g., U.S. v. Castro, 881 F.3d 961 (6th Cir. 2018); U.S. v. Bass, 785 F.3d 1043 (6th Cir. 2015); U.S. v. Bishop, supra note 112 ; State v. Johnson, supra note 111; People v. English, 52 M

2021Neither search is overbroad, because “[c]riminals don’t advertise where they keep evidence.” 112 A cell phone serves the same function as a filing cabinet, and there is no way for law enforcement to know in advance how a suspect may label or code files that contain evidence of criminal activity. 113 The U.S. Supreme Court in Riley v. California, 114 in hold- ing a warrant is required to search data stored in cell phones seized incident to arrest, recognized “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.” The Court did not ther

2020Those 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 St

2020Jennings 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 . - 833 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. JENNINGS Cite as 305

2020Jennings 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 . - 833 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. JENNINGS Cite as 305

2020State v. Stelly, 304 Neb. 33 , 932 N.W.2d 857 (2019).

2020State v. Stelly, 304 Neb. 33 , 932 N.W.2d 857 (2019).

2020Those 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 St

2020Those 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 St

2014The Court in Riley noted that such quantitative and qualitative differences included the “immense storage capacity” of cell phones, their “ability to store many different types of information,” their functioning as “a digital record of nearly every aspect of their [owners’] lives,” and their ability to “access data located elsewhere.” 134 S. Ct. at 2489-90 . [12] Given the privacy interests at stake in a search of a cell phone as acknowledged by the Court in Riley and similar to our reasoning in Sprunger, we think that the Fourth Amendment’s particularity requirement must be respected in conne