NE: “Probable cause may be based on commonsense conclusions about human behavior.”

There was probable cause for this search warrant for defendant’s cell phone found where a window peeper dropped it in flight from being seen at the window. The warrant was particular, and video of a sleeping woman being sexually abused was found, among other things. “Probable cause may be based on common sense conclusions about human behavior.” State v. McGovern, 311 Neb. 705 (June 10, 2022):

The nexus between the alleged crimes and the article to be searched does not need to be based on direct observation; it can be found in the type of crime, the nature of the evidence sought, and the normal inferences as to where such evidence may be found. It is true that J.S. did not report seeing the suspect holding a phone as the suspect was “crouched down at the window with his head lowered,” likely viewing J.S.’ girlfriend in a state of undress.

Probable cause may be based on commonsense conclusions about human behavior, and due weight should be given to inferences by law enforcement officers based on their experience and specialized training. One reasonable inference is that a person seeking to surreptitiously view another in a state of undress may capture that viewing by video or photograph. Discovery of the cell phone on the suspect’s path of flight gives rise to an inference that the phone was not secured on the suspect’s person—that the suspect “had it out,” in Newell’s words—and that perhaps it was used as the suspect peered into the bathroom.

“Probable cause ‘is not a high bar.'” A judge’s determination of probable cause to issue a search warrant should be paid great deference by reviewing courts.30Link to the text of the note Under the totality of the circumstances, we conclude the issuing judge had a substantial basis for finding the affidavit established probable cause to search the phone for photographs or videos of the September 25, 2018, incident.