Section 2703(d) does not require the government to show probable cause. State v. Jenkins, 294 Neb. 684, 884 N.W.2d 429 (2016). On May 31, 2016, a city of Omaha police officer submitted to the district court an application requesting an order compelling disclosure of CSLI pertaining to the cell phone believed to be used by Brown.
Thus, a warrant was not required, and Nolt's trial counsel was not ineffective for failing to move to compel the State or the car rental company to disclose their communications. See State v. Jenkins , 294 Neb. 684, 884 N.W.2d 429 (2016).Id. at 695, 884 N.W.2d at 439 (citing Kyllo v. United States , 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) ).
In contending otherwise, defendant relies on United States v. Jones , 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) —particularly Justice Sotomayor's concurring opinion in that case ( 565 U.S. at 413–418, 132 S.Ct. 945 )—and Riley v. California, ––– U.S. ––––, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). In our view, that reliance is misplaced. Jones is distinguishable because it involved direct surveillance of the defendant by the police using a GPS device as opposed to information that the defendant had voluntarily disclosed to a third party ( 565 U.S. at 403, 132 S.Ct. 945 ; seeGraham, 824 F.3d at 435 ; Nebraska v. Jenkins, 294 Neb. 684, 698–700, 884 N.W.2d 429, 441–442 [2016] ). Notwithstanding Justice Sotomayor's suggestion that "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties" ( Jones, 565 U.S. at 417, 132 S.Ct. 945 [Sotomayor, J., concurring] ), we remain bound by the third-party doctrine when interpreting the Fourth Amendment "[u]ntil a majority of justices on the [Supreme] Court instructs us otherwise" ( Thompson, 866 F.3d at 1159 ). Riley, in turn, is distinguishable because it involved an inspection of the contents of the defendant's phone, rather than mere location information ( ––– U.S. at ––––, 134 S.Ct. at 2480–2481 ; seeCarpenter, 819 F.3d at 889 ; Jenkins, 294 Neb. at 700–702, 884 N.W.2d at 442–443 ).We recognize that certain other states have afforded cell site location information greater protection under their state constitutions than it is afforded under the federal constitution (see e.g. Massachusetts v. Augustine, 467 M
In a first degree murder case, photographs can also provide visual proof from which a jury could reasonably infer that the homicide was committed purposely and with "deliberate and premeditated malice."Britt, supra note 9; State v. Jenkins, 294 Neb. 684, 884 N.W.2d 429 (2016), overruled on other grounds, State v. Cox, 307 Neb. 762, 985 N.W.2d 395 (2020).
The conclusion reached in Carpenter effectively overruled this court's earlier decision in State v. Jenkins , in which we held that the acquisition of CSLI did not implicate the Fourth Amendment.State v. Jenkins , 294 Neb. 684, 884 N.W.2d 429 (2016).
Id.State v. Jenkins , 294 Neb. 684, 884 N.W.2d 429 (2016).Carpenter v. U.S., supra note 1.
Although several photographs depict similar scenes from different angles as compared to other photographs in evidence, the general rule is that when a court admits photographs for a proper purpose, additional photographs of the same type are not unfairly prejudicial. State v. Jenkins , 294 Neb. 684, 884 N.W.2d 429 (2016). Rule 403 does not require the State to have a separate purpose for every photograph, and it requires a court to prohibit cumulative evidence only if it "substantially" outweighs the probative value of the evidence.
Accordingly, Munoz’ trial counsel did not perform deficiently by failing to object. See State v. Jenkins , 294 Neb. 684, 884 N.W.2d 429 (2016).State v. Freemont , 284 Neb. 179, 817 N.W.2d 277 (2012).
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Accord, e.g., State v. Jenkins, 294 Neb. 684, 884 N.W.2d 429 (2016) ; State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016). See United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), citing Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).
The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.State v. Rothenberger, 294 Neb. 810, 885 N.W.2d 23 (2016) ; State v. Jenkins, 294 Neb. 684, 884 N.W.2d 429 (2016).Id.