NE: SW’s cut and paste error on what to be searched could be overlooked here

A cut and paste error in a search warrant that referred to other property could be overlooked when the true particularity could be seen. State v. Said, 306 Neb. 314 (July 2, 2020):

We conclude the warrant was sufficiently particular. The record shows that the reference to a different crime in paragraph (i) of the affidavit was clearly an inadvertent error that was carried over to this warrant from a form in a prior matter. An inadvertent defect in a search warrant may be cured by reference to the affidavit used to obtain the warrant if the affidavit is incorporated in the warrant or referred to in the warrant and the affidavit accompanies the warrant. State v. Stelly, supra. In this case, the affidavit was referred to in the warrant, and although it also contained the erroneous reference to a different crime, the inadvertent defect was only one item in a list of the types of evidence to be searched. The error is apparent in context because other items in the list, as well as the warrant and the affidavit read as a whole, make clear that the evidence being sought in the search of the cell phone was evidence related to the investigation of the assault of Khamis and not the crime that was erroneously referenced.

We also find that the warrant was not overbroad. Although the warrant listed various types of data that could be searched for on the cell phone, it listed specific types of evidence, and unlike the warrant in Henderson, it did not authorize a search for “‘any information.'” See brief for appellant at 37. We distinguished Henderson in State v. Goynes, 303 Neb. 129, 144, 927 N.W.2d 346, 357 (2019), in which we found a warrant to be sufficiently particular because it identified that it was a warrant for the investigation of a specific homicide and because although it included an expansive list of types of data that could be searched, it “did not contain such unqualified language that would permit the search of the cell phone for ‘”any other information.”‘” In the list of types of data that could be searched in this case, various items specified data “relating to the relationship of Khamis and [Said] and communication pertaining to the physical altercation occurring on [April 12, 2017].” Although this specification was not included as to each item, the warrant read as a whole was clear that the search was limited to data that would provide evidence relevant to the investigation of Said in connection with the assault of Khamis.

Furthermore, as the State notes, there was no danger that the officer executing the search warrant would not know the target of the search was evidence related to the homicide investigation regarding Khamis, because the same officer prepared the affidavit and conducted the search. We also note that the evidence found and used in the trial was relevant to this crime and that there is no indication any of the evidence found and used in this trial was not relevant to the probable cause that supported the warrant.

We determine that the warrant in this case was supported by probable cause and was sufficiently particular. We therefore conclude the district court did not err when it overruled Said’s motion to suppress evidence found in the search of the cell phone.