State v. Cox

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/13/2020 08:06 AM CST




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                               Nebraska Supreme Court Advance Sheets
                                        307 Nebraska Reports
                                                     STATE v. COX
                                                   Cite as 

307 Neb. 762



                                        State of Nebraska, appellee, v.
                                        Forrest R. Cox III, appellant.
                                                     ___ N.W.2d ___

                                         Filed November 13, 2020.   No. S-19-780.

                 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 or
                    the safeguards established by the U.S. Supreme Court in Miranda v.
                    Arizona, 

384 U.S. 436

, 

86 S. Ct. 1602

, 

16 L. Ed. 2d 694

(1966), an
                    appellate court applies a two-part standard of review. Regarding his-
                    torical facts, an appellate court reviews the trial court’s findings for
                    clear error. But whether those facts trigger or violate Fourth or Fifth
                    Amendment protections is a question of law that an appellate court
                    reviews independently of the trial court’s determination.
                 2. Constitutional Law: Search and Seizure: Evidence: Police Officers
                    and Sheriffs. The exclusion of evidence obtained in violation of the
                    Fourth Amendment is not itself a constitutional right; rather, it is a rem-
                    edy designed to deter constitutional violations by law enforcement.
                 3. ____: ____: ____: ____. In situations where the exclusion of evidence
                    as a remedy would not deter law enforcement, several exceptions to the
                    exclusionary rule have been recognized. One of those exceptions applies
                    to evidence obtained by police in objectively reasonable reliance on a
                    statute later found to be unconstitutional.
                 4. Trial: Evidence: Motions to Suppress: Waiver: Appeal and Error.
                    When a motion to suppress is overruled, the defendant must make a
                    specific objection at trial to the offer of the evidence which was the sub-
                    ject of the motion to suppress in order to preserve the issue for review
                    on appeal. Put another way, a failure to object to evidence at trial, even
                    though the evidence was the subject of a previous motion to suppress,
                    waives the objection, and a party will not be heard to complain of the
                    alleged error on appeal.
                 5. Verdicts: Appeal and Error. Harmless error review looks to the basis
                    on which the trier of fact actually rested its verdict; the inquiry is not
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          Nebraska Supreme Court Advance Sheets
                   307 Nebraska Reports
                              STATE v. COX
                            Cite as 

307 Neb. 762

   whether in a trial that occurred without the error, a guilty verdict surely
   would have been rendered, but, rather, whether the actual guilty verdict
   rendered in the questioned trial was surely unattributable to the error.

  Appeal from the District Court for Douglas County:
Kimberly Miller Pankonin, Judge. Affirmed.

  Thomas C. Riley, Douglas County Public Defender, and
Natalie M. Andrews 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.

  Heavican, C.J.
                       INTRODUCTION
   Forrest R. Cox III was convicted of first degree murder, use
of a deadly weapon to commit a felony, and possession of a
deadly weapon by a prohibited person. At issue on appeal is
whether the district court erred in admitting cell phone records
for Cox’s phone and whether Cox invoked the right to counsel
during questioning by law enforcement. We affirm.
                  FACTUAL BACKGROUND
   Cox was charged in connection with a shooting at a conve-
nience store in Omaha, Nebraska, on the evening of March 6,
2017. The victim of the shooting, Laron Rogers, died on March
22 as a result of injuries he sustained.
                      Trial Testimony
  According to testimony and evidence presented at trial, an
employee of the convenience store called emergency services
upon learning of a shooting in the parking lot of the store.
Rogers was lying on the ground. Rogers was initially stabilized
and taken to a hospital, but he did not respond to questions
about who had shot him.
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         Nebraska Supreme Court Advance Sheets
                  307 Nebraska Reports
                          STATE v. COX
                        Cite as 

307 Neb. 762

   Two different witnesses at the scene of the shooting testified
that Rogers was leaning into a white vehicle without license
plates, which vehicle was identified by both witnesses as a
Chevy Impala. According to the witnesses, it appeared that
Rogers was talking to the occupants of the vehicle. A gunshot
was heard, and Rogers walked a few steps before collaps-
ing. The witnesses both testified that the white Impala then
drove off. Law enforcement later obtained surveillance video
from the scene and confirmed that the suspect vehicle was a
white Impala.
   During the course of the investigation, law enforcement vis-
ited Rogers’ place of employment, a cell phone store, and spoke
with the store manager. The manager showed law enforcement
video clips that were taken earlier on the day of Rogers’
shooting. The video clips showed two men inside the store.
According to the manager, coworkers had seen Rogers outside
the store interacting with the men prior to the men entering the
store. Law enforcement was able to identify Cox at the time the
clips were viewed. Shortly thereafter, the other man was identi-
fied as Rufus Dennis.
   The manager provided law enforcement with a piece of paper
with “Bubba” and the phone number “. . . 6473” written on it.
According to one of Rogers’ coworkers, the phone number on
the piece of paper was the phone number provided by Cox as
he sought assistance with his cell phone at the store. Other evi-
dence at trial revealed that Cox’s nickname was “Bubba.”
   That same coworker also testified that Rogers left work at
approximately 6 p.m. but stayed in the parking lot, sitting in
his car with a friend. The friend was a manager at a different
branch of the same cell phone company that employed Rogers.
She had stopped by to pick up phones for her store and stayed
to smoke marijuana and talk with Rogers in his car after he
got off work. The friend testified that Rogers smoked and
dealt marijuana.
   According to the friend, while she was in Rogers’ car, two
men in a white Chevy Impala, with no license plates and
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                          STATE v. COX
                        Cite as 

307 Neb. 762

displaying in-transit stickers, parked at the store. One of the
men—whom she identified at trial as Cox—stopped at Rogers’
car to talk to Rogers. The friend said that Cox wanted to buy
some marijuana, but that Rogers did not have enough on hand.
Rogers and Cox exchanged telephone numbers and agreed to
be in touch later that day. Cox and the other man, unknown to
the friend but later identified as Dennis, went into the store;
the friend and Rogers left the store’s parking lot in their sepa-
rate vehicles.
   During the course of the investigation, law enforcement
determined that Rogers owed his drug supplier money. Both
Rogers’ fellow employee and Rogers’ friend testified that
Rogers had asked them for money, though both declined to
give him any. After leaving work, Rogers went to the home
he shared with his mother and father. He asked his father for
money and received $200. In addition, bank records show that
Rogers withdrew nearly $950 from his bank accounts on the
day of the shooting. That money was not recovered.
   After identifying Cox and obtaining the paper with the
phone number on it, law enforcement sought subscriber infor-
mation for that number. A warrant was issued, and the cell
phone records from January 1 to March 24, 2017, includ-
ing cell site location information (CSLI), were provided to
law enforcement. In addition, law enforcement had access to
Rogers’ cell phone.
   According to the record, Rogers sent a text message to Cox
at 6:37 p.m. the day of the shooting that said, “This Ronno.”
Cell phone records show that there were several phone calls
between Rogers and Cox on March 6, 2017, in the hour or so
leading up to the shooting, but that there were no calls between
the two within the approximately 2 months preceding the
shooting. CSLI records further showed that Cox’s phone was in
the area of the shooting at the time and that he was not in the
area of his purported alibi.
   Evidence offered at trial also linked Cox to a white Chevy
Impala. When questioned by law enforcement, Dennis admit-
ted that he had access to a white Impala that was registered
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                     307 Nebraska Reports
                             STATE v. COX
                           Cite as 

307 Neb. 762

in the name of his mother. Dennis led officers to the white
Impala, which was parked near Cox’s brother’s residence. The
car was impounded. The license plate screws on the car looked
new, and there were what appeared to be glue marks from
in-transit stickers in the window. Inside the car was a steering
wheel cover and two remaining license plate screws in original
packaging, along with a receipt from an auto parts store for the
purchase of a steering wheel cover and license plate screws.
Further investigation revealed video showing Cox purchasing
those items.
    Law enforcement was unable to locate Cox until February
26, 2018. During his interview, Cox acknowledged that his
phone number was the same number ending in 6473; that he
knew Rogers; that he had met with Rogers on March 6, 2017,
the day of shooting; and that he wanted to obtain marijuana.
Cox denied shooting Rogers and said he was with a female
friend during the evening of the shooting. That friend, who tes-
tified that Rogers was her uncle, also testified that she did not
recall seeing Cox on March 6 or 7 and that she did not see him
until early April. In addition, as previously noted, Cox’s CSLI
data suggested that he was not at this friend’s home on the day
of the shooting.
                     Procedural History
   Prior to trial, Cox filed motions to suppress his cell phone
records and the statements he made to law enforcement in his
February 26, 2018, interview. As to the statements, Cox argued
that his rights under Miranda v. Arizona 1 were violated when
he invoked his right to remain silent and officers continued to
question him. As for the cell phone records, Cox argued that
the warrant was obtained without probable cause as explained
in Carpenter v. U.S. 2
1
    Miranda v. Arizona, 

384 U.S. 436

, 

86 S. Ct. 1602

, 

16 L. Ed. 2d 694

    (1966).
2
    Carpenter v. U.S., ___ U.S. ___, 

138 S. Ct. 2206

, 

201 L. Ed. 2d 507

    (2018).
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                  307 Nebraska Reports
                          STATE v. COX
                        Cite as 

307 Neb. 762

   In its order, the district court denied the motion to suppress
the statements. With respect to the cell phone records, the court
noted that the State had conceded that “the search warrant,
although obtained prior to Carpenter . . . , has not been rem-
edied post-Carpenter. Accordingly, the State concedes this issue
and Cox’s motion to suppress these records is granted.”
   However, while the motion to suppress the cell phone records
was pending, the State filed a second affidavit seeking a war-
rant for the cell phone records. The second affidavit included
additional averments intended to cure the previous deficiency.
A second warrant was then issued, and Cox filed another
motion to suppress. The second motion was denied.
   At trial, in response to questioning about Cox’s cell phone
records, counsel for Cox objected on the basis of the motion to
suppress. That objection was denied. Counsel for Cox objected
at the next opportunity, stating: “Judge, I would just ask that
my same objection be noted for the record and a standing
objection for any new matters with respect to . . . 6473.” The
court granted counsel’s “request for a standing objection.”
   Counsel also objected to the admission of exhibit 162 on the
basis of his motion to suppress. Exhibit 162 was a video of law
enforcement’s first interview with Cox. In addition to showing
that video, the detective who conducted the interview testified.
Cox offered few objections to this testimony and made no
objections on Miranda grounds.
   Prior to the case being submitted to the jury, the State aban-
doned its theory that the murder was premeditated and pro-
ceeded solely on a felony murder theory. Cox was found guilty
on all counts and sentenced to life imprisonment for felony
murder, 25 to 30 years’ imprisonment for use of a deadly
weapon, and 40 to 45 years’ imprisonment for possession of a
firearm by a prohibited person.

                 ASSIGNMENTS OF ERROR
  Cox assigns, restated and consolidated, that the district
court erred in (1) admitting cell phone records for Cox’s cell
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            Nebraska Supreme Court Advance Sheets
                     307 Nebraska Reports
                               STATE v. COX
                             Cite as 

307 Neb. 762

phone in violation of Cox’s Fourth Amendment rights and (2)
admitting statements made by Cox that were in violation of
Cox’s Fifth Amendment rights as explained in Miranda.
                    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
or the safeguards established by the U.S. Supreme Court in
Miranda, an appellate court applies a two-part standard of
review. Regarding historical facts, an appellate court reviews
the trial court’s findings for clear error. But whether those facts
trigger or violate Fourth or Fifth Amendment protections is a
question of law that an appellate court reviews independently
of the trial court’s determination. 3
                          ANALYSIS
   On appeal, Cox assigns that the district court erred in admit-
ting his cell phone records and in admitting statements made
after he invoked his right to remain silent during his February
26, 2018, interrogation.
           Admissibility of Cell Phone Records
   Cox assigns that the district court erred in denying his sec-
ond motion to suppress his cell phone records, including his
CSLI. Cox’s argument is rooted in the U.S. Supreme Court’s
decision in Carpenter. 4
   In Carpenter, the Court concluded that individuals had a
reasonable expectation of privacy in their record of physical
movements as captured by CSLI. Because of this expecta-
tion of privacy, the Court concluded that a warrant was, in
most cases, required before such records could be acquired.
The conclusion reached in Carpenter effectively overruled
this court’s earlier decision in State v. Jenkins, 5 in which
3
    State v. Schriner, 

303 Neb. 476

, 

929 N.W.2d 514

(2019).
4
    Carpenter v. U.S., supra note 2.
5
    State v. Jenkins, 

294 Neb. 684

, 

884 N.W.2d 429

(2016).
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                      307 Nebraska Reports
                                STATE v. COX
                              Cite as 

307 Neb. 762

we held that the acquisition of CSLI did not implicate the
Fourth Amendment.
   Since Carpenter, this court has had the opportunity to
address the applicability of the exclusionary rule and suppres-
sion of evidence as a remedy for a Fourth Amendment viola-
tion of the type at issue in this appeal. 6 In both State v. Brown 7
and State v. Jennings, 8 we declined to apply the exclusionary
rule to CSLI obtained without a warrant supported by probable
cause, explaining in each case that the rationale for the exclu-
sionary rule would not be met on the facts presented. In both
of these cases, officers relied upon the Stored Communications
Act to support court orders seeking cell phone records, and
specifically CSLI. At the time the court orders were sought
and executed, the U.S. Supreme Court had not yet decided
Carpenter. We concluded that officers in each case were fol-
lowing the statute as written and that the statute in question
was not clearly unconstitutional.
   [2,3] The exclusion of evidence obtained in violation of the
Fourth Amendment is not itself a constitutional right. 9 Rather,
it is a remedy designed to deter constitutional violations by
law enforcement. 10 Thus, in situations where the exclusion
as a remedy would not deter law enforcement, several excep-
tions to the exclusionary rule have been recognized. 11 One
of those exceptions applies to evidence obtained by police in
objectively reasonable reliance on a statute later found to be
unconstitutional. 12
 6
     State v. Jennings, 

305 Neb. 809

, 

942 N.W.2d 753

(2020); State v. Brown,
     

302 Neb. 53

, 

921 N.W.2d 804

(2019).
 7
     State v. Brown, supra note 6.
 8
     State v. Jennings, supra note 6.
 9

Id. 10


Id. 11


Id. 12


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             Nebraska Supreme Court Advance Sheets
                      307 Nebraska Reports
                               STATE v. COX
                             Cite as 

307 Neb. 762

   In this case, law enforcement sought a court order based
upon a statute that was, many months later, determined to be
unconstitutional. Similar to Brown and Jennings, law enforce-
ment’s reliance on a court order issued under the Stored
Communications Act, at a time when the act had not yet been
found by the U.S. Supreme Court or by this court to implicate
the Fourth Amendment, was not objectively unreasonable.
   We observe that the district court originally granted Cox’s
motion to suppress below on the basis of the State’s conces-
sion, but that the evidence was eventually admitted follow-
ing the denial of a second motion to suppress. The district
court reasoned that a subsequent warrant essentially cured any
Fourth Amendment violation.
   Of course, this reasoning varies from the reasoning we
employ today, and in particular, this court’s reasoning relies
upon the good faith exception to the Fourth Amendment’s war-
rant requirement. We have previously held that an appellate
court may not, sua sponte, rely on the good faith exception to
the warrant requirement. 13 We explained that the concern with
an appellate court’s reaching the issue of good faith sua sponte
is that a defendant must have sufficient opportunity to defend
against the application of the exception. 14 But a review of the
record shows that this scenario is not presented here. The State
raised the issue of good faith in its brief on appeal. Cox also
argues the issue in his brief on appeal.
   The district court did not err in admitting the CSLI evidence
at trial. There is no merit to Cox’s first assignment of error.

                 Admissibility of Statements
   Cox also assigns that the district court erred in denying his
motion to suppress statements made to law enforcement after
he invoked his right to remain silent. He argues, in turn, that
the district court erred in admitting those statements. Because
13
     State v. Tompkins, 

272 Neb. 547

, 

723 N.W.2d 344

(2006).
14

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             Nebraska Supreme Court Advance Sheets
                      307 Nebraska Reports
                               STATE v. COX
                             Cite as 

307 Neb. 762

Cox failed to object to the investigating detective’s testimony
about his statements, we find no error in the admission of
these statements.
   At issue are statements made during law enforcement’s first
interview of Cox on February 26, 2018. The State offered a
video of that interview, exhibit 162, which was shown to the
jury. The record shows, and the State acknowledges, that Cox
objected to exhibit 162 on the basis of the earlier motion to
suppress. But Cox did not seek a continuing objection, or
object on the basis of Miranda, to any other testimony regard-
ing the statements he made during the interview.
   Rather, the detective testified, without objection, that Cox
agreed that he knew Rogers, that the 6473 number was his, and
that he provided the name of his alibi. In addition, Cox told
the detective that he was dropped off at his brother’s residence
after seeing Rogers at the cell phone store and that he had been
in a white Chevy Impala. Other evidence showed that the white
Impala in this case, found near the brother’s residence, was
later seized.
   [4] When a motion to suppress is overruled, the defendant
must make a specific objection at trial to the offer of the evi-
dence which was the subject of the motion to suppress in order
to preserve the issue for review on appeal. 15 Put another way, a
failure to object to evidence at trial, even though the evidence
was the subject of a previous motion to suppress, waives the
objection, and a party will not be heard to complain of the
alleged error on appeal. 16
   Because there was no objection to the statements made by
Cox and testified to by the interviewing detective, Cox has
waived any right to assert error. The video that was shown
and objected to was cumulative to that testimony as well as to
other evidence presented at trial. Namely, several witnesses at
the cell phone store testified that Rogers spoke to Cox at the
15
     State v. Piper, 

289 Neb. 364

, 

855 N.W.2d 1

(2014).
16
     See State v. Montoya, 

305 Neb. 581

, 

941 N.W.2d 474

(2020).
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                                STATE v. COX
                              Cite as 

307 Neb. 762

store, both Cox’s and Rogers’ cell phone records supported
contact between the two, and other evidence tied Cox to the
white Chevy Impala.
   [5] Even if the proper objections had been made, however,
we would still find no reversible error in the admission of
the statements, because any error would have been harmless.
Harmless error review looks to the basis on which the trier of
fact actually rested its verdict; the inquiry is not whether in
a trial that occurred without the error, a guilty verdict surely
would have been rendered, but, rather, whether the actual
guilty verdict rendered in the questioned trial was surely unat-
tributable to the error. 17
   During the challenged interview, Cox did not admit to the
crime or even admit to being in the area at the time of the
crime. When these statements are compared to the cell phone
records of calls between Rogers and Cox, the CSLI, and the
fact that Cox had control over a white Chevy Impala, which
had been identified by multiple witnesses as being involved
in the shooting, there was sufficient evidence unattributable to
any error in offering the video and statements.
   There is no merit to Cox’s second assignment of error.

                          CONCLUSION
     The decision of the district court is affirmed.
                                                             Affirmed.
17
     State v. Devers, 

306 Neb. 429

, 

945 N.W.2d 470

(2020).
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