The opinion
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/19/2025 09:09 AM CDT
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. FALCON
Cite as 319 Neb. 911
State of Nebraska, appellee, v.
Shaquille M. Falcon, appellant.
___ N.W.3d ___
Filed September 19, 2025. No. S-23-953.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. When reviewing a trial court’s ruling on a motion
to suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
2. Trial: Evidence: Appeal and Error. An appellate court reviews the trial
court’s ruling on authentication for abuse of discretion.
3. Constitutional Law: Witnesses: Appeal and Error. An appellate court
reviews de novo a trial court’s determination of the protections afforded
by the Confrontation Clause and reviews the underlying factual determi-
nations for clear error.
4. Constitutional Law: Search and Seizure. All evidence obtained by
searches and seizures in violation of the federal Constitution is inadmis-
sible in a criminal trial in a state court.
5. ____: ____. Under the Fourth Amendment, a search with consent is a
reasonable search.
6. Warrantless Searches: Search and Seizure: Proof. The State has the
burden of showing the applicability of one or more of the exceptions to
the warrant requirement.
7. Search and Seizure: Motor Vehicles. The driver of a vehicle is the
person who has immediate possession of and control over the vehicle
and has the authority to consent to a search of that vehicle.
8. Constitutional Law: Search and Seizure. The touchstone of the
Fourth Amendment is reasonableness, and the reasonableness of a
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. FALCON
Cite as 319 Neb. 911
search is determined by assessing, on the one hand, the degree to
which it intrudes upon an individual’s privacy and, on the other, the
degree to which it is needed for the promotion of legitimate govern-
mental interests.
9. Constitutional Law: Police Officers and Sheriffs: Search and
Seizure. Law enforcement officers are often required to perform non-
criminal community caretaking functions, which are totally divorced
from the detection, investigation, or acquisition of evidence relating to
the violation of a criminal statute. Such community caretaking func-
tions are a legitimate governmental interest.
10. ____: ____: ____. Community caretaking functions are not subject
to a special Fourth Amendment doctrine or rule—the basic Fourth
Amendment question of reasonableness applies.
11. Police Officers and Sheriffs: Evidence. Police practices trigger the
harsh sanction of exclusion only when they are deliberate enough to
yield meaningful deterrence and culpable enough to be worth the price
paid by the justice system.
12. Rules of Evidence: Hearsay. A declarant is the key for purposes of
Neb. Rev. Stat. § 27-803(6) (Cum. Supp. 2024)—an out-of-court state-
ment needs to be made as part of the declarant’s business.
13. ____: ____. For self-authentication under Neb. Rev. Stat. § 27-902(11)
(Cum. Supp. 2024) to apply in a criminal case, such that extrinsic evi-
dence of authenticity is not a required condition precedent to admissibil-
ity, the domestic record sought to be introduced must meet the require-
ments of Neb. Rev. Stat. § 27-803(6)(a) (Cum. Supp. 2024).
14. Constitutional Law: Witnesses. The Confrontation Clause guarantees
a defendant’s right to confront witnesses who bear testimony against
him or her.
Petition for further review from the Court of Appeals, Pirtle,
Bishop, and Arterburn, Judges, on appeal thereto from the
District Court for Lancaster County, Susan I. Strong, Judge.
Judgment of Court of Appeals affirmed.
Robert Wm. Chapin, Jr., for appellant.
Michael T. Hilgers, Attorney General, and Teryn Blessin for
appellee.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik,
Freudenberg, and Bergevin, JJ.
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. FALCON
Cite as 319 Neb. 911
Bergevin, J.
I. INTRODUCTION
The Nebraska Court of Appeals affirmed Shaquille M.
Falcon’s convictions on direct appeal. 1 Falcon petitioned for
further review and assigned that the Court of Appeals erred
in its resolution of each of his four assignments of error. 2
We granted further review primarily to address the Court
of Appeals’ analysis of Falcon’s motion to suppress and its
interpretation and application of Neb. Rev. Stat. § 27-902(11)
(Cum. Supp. 2024), which provides for the self-authentication
of domestic records that meet the requirements of Neb. Rev.
Stat. § 27-803(6) (Cum. Supp. 2024).
We agree with the Court of Appeals’ conclusions and resolu-
tion of Falcon’s appeal, and we affirm. However, our reasoning
contains minor differences from that of the Court of Appeals,
which we highlight below.
II. BACKGROUND
Falcon was convicted of possession of a firearm by a pro-
hibited person, a Class ID felony, 3 and driving under the influ-
ence (DUI), first offense, a Class W misdemeanor. 4 The parties
stipulated that Falcon had a prior felony conviction, and it was
undisputed that he was a prohibited person. The main issue
at the jury trial was whether Falcon knowingly possessed the
firearm.
The theory of Falcon’s defense was that unbeknownst to
him, the firearm was present in the vehicle when he borrowed
it. To prove Falcon knowingly possessed the firearm, the
State primarily relied on two pieces of evidence: the firearm
that was discovered in the vehicle and Facebook messages that
were purportedly sent by Falcon. The State contended that the
1
See State v. Falcon, 33 Neb. App. 331, 16 N.W.3d 393 (2025).
2
See, generally, Neb. Ct. R. App. P. § 2-102(F) to (H) (rev. 2022).
3
See Neb. Rev. Stat. § 28-1206 (Cum. Supp. 2022).
4
See Neb. Rev. Stat. §§ 60-6,196 and 60-6,197.03(2) (Reissue 2021).
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. FALCON
Cite as 319 Neb. 911
Facebook messages associated the firearm with Falcon, not
the vehicle. Falcon challenged the admissibility of evidence
related to the firearm and the Facebook messages, which are
the two main subjects of our further review.
The factual background of this case is set forth in detail
within the Court of Appeals’ opinion. 5 Accordingly, we sup-
ply additional background information below relevant to our
analyses of the issues before us.
III. ASSIGNMENTS OF ERROR
Falcon assigns, restated, that the Court of Appeals erred by
not concluding that the district court erred (1) in finding that
the vehicle search did not constitute an unreasonable search
in violation of the Fourth Amendment and failing to suppress
evidence of the firearm and (2) by receiving Facebook mes-
sages into evidence because the exhibits lacked foundation,
were altered by the State, and deprived Falcon the right to
confront the person who allegedly put together the file from
which the exhibits came. He also assigns that the Court of
Appeals erred in (3) finding that sufficient evidence was
adduced to support his convictions and (4) not finding plain
error in the jury instructions.
IV. STANDARD OF REVIEW
[1] When reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review. 6
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination. 7
5
See State v. Falcon, supra note 1.
6
State v. Perry, 318 Neb. 613, 17 N.W.3d 504 (2025).
7
Id.
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. FALCON
Cite as 319 Neb. 911
[2] Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. 8 Because authentication rulings are neces-
sarily fact specific, a trial court has discretion to determine
whether evidence has been properly authenticated. 9 An appel-
late court reviews the trial court’s ruling on authentication for
abuse of discretion. 10
[3] An appellate court reviews de novo a trial court’s deter-
mination of the protections afforded by the Confrontation
Clause and reviews the underlying factual determinations for
clear error. 11
In reviewing a criminal conviction for sufficiency of the
evidence, whether the evidence is direct, circumstantial, or
a combination thereof, the standard is the same: An appel-
late court does not resolve conflicts in the evidence, pass on
the credibility of witnesses, or reweigh the evidence; such
matters are for the finder of fact. 12 The relevant question is
whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt. 13
Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision. 14
8
State v. Swartz, 318 Neb. 553, 17 N.W.3d 174 (2025); State v. Abligo, 312
Neb. 74, 978 N.W.2d 42 (2022).
9
VKGS v. Planet Bingo, 309 Neb. 950, 962 N.W.2d 909 (2021).
10
Id.
11
State v. Vaughn, 314 Neb. 167, 989 N.W.2d 378 (2023), cert. denied ___
U.S. ___, 144 S. Ct. 241, 217 L. Ed. 2d 109.
12
State v. Perry, supra note 6.
13
Id.
14
State v. Haynie, 317 Neb. 371, 9 N.W.3d 915 (2024).
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. FALCON
Cite as 319 Neb. 911
V. ANALYSIS
The primary issues on further review concern the admis-
sion of two categories of evidence at trial: (1) evidence of the
firearm that the jury found Falcon had possessed illegally and
(2) Facebook messages that served as circumstantial evidence
of Falcon’s knowing possession of the firearm. Falcon argues
that both were improperly admitted. We address each in turn.
1. Admission of Evidence of Firearm
(a) Additional Background
The circumstances of the firearm’s discovery that are rel-
evant to our analysis are undisputed. In the early hours of New
Year’s Day 2022, Falcon was driving a vehicle with permission
from the vehicle’s owner, who was his cousin’s sister. Falcon
high-centered the vehicle on railroad tracks near the intersec-
tion of 1st and F Streets in Lincoln, Nebraska.
After law enforcement arrived on the scene, an officer per-
formed DUI tests on Falcon. The DUI investigation occurred
while Falcon and a passenger in the vehicle sat in a police
cruiser because it was extremely cold outside. While the DUI
tests were being conducted, the passenger became disorderly,
and law enforcement officers dismissed him. The passenger
walked away from the scene.
Shortly thereafter, the passenger returned, no longer agi-
tated. He informed two law enforcement officers that his house
keys and phone were in the vehicle, but he was unsure of their
precise location within the vehicle. We learn from the officers’
body camera footage that without his phone, the passenger
would have needed to walk several miles in the extreme cold to
reach his house, and that without his keys, he would have been
unable to enter his house once he arrived.
The officers granted the passenger access to the vehicle’s
passenger compartment so that he could search for and retrieve
his keys and phone. The passenger searched for some time
without success. Eventually, one officer began to assist the
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. FALCON
Cite as 319 Neb. 911
passenger in the search. While assisting in the search, the
officer opened the vehicle’s center console and discovered the
firearm.
Before trial, Falcon moved to suppress evidence of the fire-
arm on the ground that the officer’s search violated the Fourth
Amendment’s prohibition against unreasonable searches. At
the hearing on Falcon’s motion, the officer who aided the pas-
senger in the search for the passenger’s keys and phone inside
the vehicle testified that when the passenger opened the back
door of the vehicle, the officer detected the odor of marijuana.
The trial court concluded that the odor of marijuana provided
the officer with probable cause to search the vehicle under
the automobile exception to the Fourth Amendment’s general
warrant requirement. It overruled Falcon’s motion to suppress
evidence related to the firearm.
On appeal before the Court of Appeals, Falcon argued that
the district court erred by not suppressing evidence related to
the firearm. He contended that the search was without probable
cause or reasonable suspicion and that the officer’s detection of
the odor of marijuana was “‘purely pretextual.’” 15
The Court of Appeals concluded that the search was not
unconstitutional because it was conducted with the passen-
ger’s consent and fell within the automobile exception to the
warrant requirement. Specifically, it found that even though
the passenger was not the driver of the vehicle, “it was rea-
sonable for [the officer] to believe that [the passenger] had
authority to consent to the search of the vehicle of which he
had been a passenger in order to help locate his house keys”
and that the officer did not exceed the scope of the passen-
ger’s consent. 16 Additionally, the Court of Appeals found that
even though the vehicle was allegedly high-centered on the
railroad tracks, “it had not lost its inherent mobility” and was
15
State v. Falcon, supra note 1, 33 Neb. App. at 349, 16 N.W.3d at 409.
16
Id. at 351-52, 16 N.W.3d at 410.
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. FALCON
Cite as 319 Neb. 911
readily mobile for the purpose of the automobile exception 17
and that the officer had probable cause due to the presence of
the odor of marijuana.
(b) Discussion
As we read the Court of Appeals’ opinion, the court made
two separate conclusions. First, it concluded that the officer’s
search did not violate the Fourth Amendment because the offi-
cer had the passenger’s consent to open the door to the vehicle
and to join the search for the passenger’s keys and phone. It
then also concluded that once the officer detected the odor of
marijuana, the officer had probable cause to search the vehicle
for marijuana. We agree that the officer’s search did not violate
the Fourth Amendment; however, we disagree with the Court
of Appeals’ reasoning.
[4] “‘All evidence obtained by searches and seizures in vio-
lation of the Federal Constitution is inadmissible in a criminal
trial in a state court.’” 18 The Fourth Amendment provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
Article I, § 7, of the Constitution of this state is substantially
identical. 19
17
Id. at 353, 16 N.W.3d at 411.
18
State v. Easter, 174 Neb. 412, 422, 118 N.W.2d 515, 521 (1962) (quoting
Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961)).
See State v. Montoya, 305 Neb. 581, 597, 941 N.W.2d 474, 490 (2020)
(“[e]vidence obtained as the fruit of an illegal search or seizure is
inadmissible in a state prosecution and must be excluded”).
19
See State v. Goff, 174 Neb. 548, 118 N.W.2d 625 (1962) (holding
exclusionary rule applicable to Neb. Const. art. I, § 7), disapproved on
other grounds, State v. Fletcher, 221 Neb. 562, 378 N.W.2d 859 (1985).
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. FALCON
Cite as 319 Neb. 911
As the U.S. Supreme Court has stated: “The text of the
[Fourth] Amendment thus expressly imposes two require-
ments. First, all searches and seizures must be reasonable.
Second, a warrant may not be issued unless probable cause
is properly established and the scope of the authorized
search is set out with particularity.” 20 “The ‘touchstone of
the Fourth Amendment is “reasonableness,”’ as measured in
objective terms.” 21
“It is well settled under the Fourth and Fourteenth
Amendments that a search conducted without a warrant issued
upon probable cause is per se unreasonable[,] subject only to a
few specifically established and well-delineated exceptions.” 22
It is “because the ultimate touchstone of the Fourth Amendment
is ‘reasonableness’ [that] the warrant requirement is subject to
certain exceptions.” 23 “It is equally well settled that one of the
specifically established exceptions to the requirements of both
a warrant and probable cause is a search that is conducted
pursuant to consent.” 24
[5] We recognize that this court has occasionally referred
to consent as a “waiver” of the right to be free from
20
Kentucky v. King, 563 U.S. 452, 459, 131 S. Ct. 1849, 179 L. Ed. 2d 865
(2011).
21
Barnes v. Felix, ___ U.S. ___, 145 S. Ct. 1353, 221 L. Ed. 2d 751 (2025)
(quoting Brigham City v. Stuart, 547 U.S. 398, 126 S. Ct. 1943, 164 L.
Ed. 2d 650 (2006)). See Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct.
330, 54 L. Ed. 2d 331 (1977). See, also, State v. McGovern, 311 Neb. 705,
974 N.W.2d 595 (2022); State v. Ferguson, 301 Neb. 697, 919 N.W.2d 863
(2018).
22
Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed.
2d 854 (1973) (internal quotation marks omitted) (emphasis omitted).
23
Brigham City v. Stuart, supra note 21, 547 U.S. at 403.
24
Schneckloth v. Bustamonte, supra note 22, 412 U.S. at 219. See, e.g., State
v. Simons, 315 Neb. 415, 996 N.W.2d 607 (2023); State v. Milos, 294 Neb.
375, 882 N.W.2d 696 (2016).
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. FALCON
Cite as 319 Neb. 911
unreasonable searches and seizures. 25 However, we disap-
prove of that articulation. One does not waive his or her
constitutional right to be free from unreasonable searches
by consenting to a search; rather, consent is an exception to
the requirements of a warrant and probable cause. 26 Simply
put, under the Fourth Amendment, a search with consent is a
reasonable search.
[6] It is also well settled that the consent of one who pos-
sesses common authority over premises or effects is valid
as against the absent, nonconsenting person with whom that
authority is shared. 27 Furthermore, a warrantless search is
valid when based upon consent of a third party whom the
police, at the time of the search, reasonably believed pos-
sessed authority to consent to a search of the property, even
if it is later demonstrated that the individual did not possess
such authority. 28 The State has the burden of showing the
25
See, e.g., State v. Andera, 307 Neb. 686, 950 N.W.2d 102 (2020); State
v. Hill, 298 Neb. 675, 905 N.W.2d 668 (2018); State v. Reinpold, 284
Neb. 950, 824 N.W.2d 713 (2013); State v. Canbaz, 270 Neb. 559, 705
N.W.2d 221 (2005); State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003),
disapproved on other grounds, State v. Hammond, 315 Neb. 362, 996
N.W.2d 270 (2023), and abrogated on other grounds, State v. Rogers, 277
Neb. 37, 760 N.W.2d 35 (2009); State v. Dallmann, 260 Neb. 937, 621
N.W.2d 86 (2000); State v. Ready, 252 Neb. 816, 565 N.W.2d 728 (1997),
disapproved on other grounds, State v. Hammond, supra note 25; State v.
Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996); State v. Dixon, 237 Neb.
630, 467 N.W.2d 397 (1991); State v. Walker, 236 Neb. 155, 459 N.W.2d
527 (1990); State v. Manns, 220 Neb. 426, 370 N.W.2d 157 (1985).
26
See Illinois v. Rodriguez, 497 U.S. 177, 187, 110 S. Ct. 2793, 111 L. Ed.
2d 148 (1990) (“what is at issue . . . is not whether the right to be free of
searches has been waived, but whether the right to be free of unreasonable
searches has been violated”).
27
State v. Mata, supra note 25. See United States v. Matlock, 415 U.S. 164,
94 S. Ct. 988, 39 L. Ed. 2d 242 (1974).
28
State v. Andera, supra note 25. See Illinois v. Rodriguez, supra note 26.
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. FALCON
Cite as 319 Neb. 911
applicability of one or more of the exceptions to the warrant
requirement. 29
[7] The driver of a vehicle is the person who has immediate
possession of and control over the vehicle and has the author-
ity to consent to a search of that vehicle. 30 Here, Falcon was
the driver of the vehicle, and he did not give his consent to the
search of the vehicle.
The issue then becomes whether the passenger had the
authority to consent to the search of the vehicle or whether,
at the time of the search, the officers reasonably believed the
passenger had such authority. In this case, both questions must
be answered in the negative. The passenger was sent away
from the scene, where the vehicle remained. The passenger
returned to ask the officers for access to the vehicle, and it
was the officers who granted the passenger access to the vehi-
cle—it was not the passenger who granted the officers access.
Under these circumstances, the passenger did not have com-
mon authority over the vehicle such that he could consent to a
search of the vehicle. Nor do the facts support that the officers
reasonably believed the passenger had the authority to consent
to the search of the vehicle. Under the Fourth Amendment,
the officer’s search of the vehicle based on the consent of the
passenger was not reasonable.
[8] However, one is not assured by the Fourth Amendment
that “no government search [of one’s vehicle] will occur
unless [one] consents; but that no such search will occur that
is ‘unreasonable.’” 31
The touchstone of the Fourth Amendment is reason-
ableness, and the reasonableness of a search is deter-
mined “by assessing, on the one hand, the degree to
29
State v. Shiffermiller, 302 Neb. 245, 922 N.W.2d 763 (2019). See Coolidge
v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).
30
See State v. Andera, supra note 25. See, also, U.S. v. Eldridge, 984 F.2d
943 (8th Cir. 1993).
31
Illinois v. Rodriguez, supra note 26, 497 U.S. at 183.
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. FALCON
Cite as 319 Neb. 911
which it intrudes upon an individual’s privacy and, on
the other, the degree to which it is needed for the promo-
tion of legitimate governmental interests.” 32
[9,10] Law enforcement officers are often required to per-
form noncriminal “community caretaking functions,” which
are totally divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a criminal
statute. 33 Such community caretaking functions are a legiti-
mate governmental interest. 34 Community caretaking func-
tions are not subject to a special Fourth Amendment doctrine
or rule—the basic Fourth Amendment question of reasonable-
ness applies. 35
The search of the vehicle for the passenger’s keys and
phone in this case involved such community caretaking—the
search was unrelated to the violation of any criminal statute.
It is undisputed that very early in the morning on the day
of the incident, when Lincoln was experiencing extremely
cold temperatures, the passenger was without his house keys,
without a phone, and miles from his house. In these specific
circumstances, it was reasonable for the officers to grant the
passenger access to the vehicle so that the passenger could
search for his keys and phone. Likewise, when the passen-
ger did not readily locate the items and invited the officer’s
assistance, it was reasonable for the officer to assist the pas-
senger in his attempts to find the items inside the passenger
compartment of the vehicle. And when the passenger acqui-
esced to the officer’s assistance and made no indication of any
32
United States v. Knights, 534 U.S. 112, 118-19, 122 S. Ct. 587, 151 L. Ed.
2d 497 (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 119 S. Ct.
1297, 143 L. Ed. 2d 408 (1999)).
33
See Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d
706 (1973).
34
See Caniglia v. Strom, 593 U.S. 194, 141 S. Ct. 1596, 209 L. Ed. 2d 604
(2021).
35
See id.
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. FALCON
Cite as 319 Neb. 911
objection thereto, it was reasonable for the officer to search
the vehicle’s center console—a place readily accessible from
the passenger seat of the vehicle and in which the passenger’s
keys or phone could have been located.
[11] In addition, even if the officer’s actions had been
unreasonable, the exclusionary rule would not apply in this
case. The exclusionary rule was created by the U.S. Supreme
Court and is “a deterrent sanction that bars the prosecu-
tion from introducing evidence obtained by way of a Fourth
Amendment violation.” 36 “The rule’s sole purpose . . . is to
deter future Fourth Amendment violations.” 37 “The fact that a
Fourth Amendment violation occurred—i.e., that a search or
arrest was unreasonable—does not necessarily mean that the
exclusionary rule applies.” 38 “Police practices trigger the harsh
sanction of exclusion only when they are deliberate enough
to yield ‘meaningfu[l]’ deterrence, and culpable enough to
be ‘worth the price paid by the justice system.’” 39 “When
the police exhibit ‘deliberate,’ ‘reckless,’ or ‘grossly negli-
gent’ disregard for Fourth Amendment rights, the deterrent
value of exclusion is strong and tends to outweigh the result-
ing costs.” 40 In this case, the record does not show that the
officer’s decision to attempt to provide aid to the passenger
exhibited a deliberate, reckless, or grossly negligent violation
of the Fourth Amendment such that the officer’s conduct was
something that should be deterred.
36
Davis v. United States, 564 U.S. 229, 231-32, 131 S. Ct. 2419, 180 L. Ed.
2d 285 (2011). See, Mapp v. Ohio, supra note 18; Weeks v. United States,
232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914), overruled on other
grounds, Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d
1669 (1960).
37
Davis v. United States, supra note 36, 564 U.S. at 236-37.
38
Herring v. United States, 555 U.S. 135, 140, 129 S. Ct. 695, 172 L. Ed. 2d
496 (2009) (emphasis omitted).
39
Davis v. United States, supra note 36, 564 U.S. at 240.
40
Id., 564 U.S. at 238.
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. FALCON
Cite as 319 Neb. 911
We note that our conclusion in this case should not be read
to intimate that when an officer is carrying out community
caretaking functions, all searches are reasonable, or the exclu-
sionary rule cannot apply.
Even though our reasoning differs from that employed by
the Court of Appeals, we affirm its conclusion that the officer’s
search of the vehicle was reasonable. 41
2. Admission of Facebook Messages
Falcon also takes issue with the Court of Appeals’ conclu-
sion that the district court did not err in admitting Facebook
messages into evidence at trial.
(a) Additional Background
At trial, the State sought to introduce Facebook messages
it received from Meta Platforms, Inc. (Meta), pursuant to a
warrant. The State elicited testimony from a law enforce-
ment officer that a PDF file of Facebook messages contained
“the amount of pages that came in the return [the officer]
received from FaceBook”; an account number that was “spe-
cifically for [the] FaceBook account that [the officer] wrote
the warrant for”; “the name Shaquille Falcon, Sr., [that was]
associated with the account”; and the “last [4] digits of the
target account number.” The State also elicited testimony
that a document was a “letter of authenticity from FaceBook
or Meta,” which “validate[d] the records” of the account’s
messages and had the same account number. The State then
offered the PDF file and the letter of authenticity. Falcon
objected based on foundation, hearsay, and a violation of the
Confrontation Clause.
The district court overruled Falcon’s objections. It did
not state its reasoning. However, the State had argued that,
41
See Syring v. Archdiocese of Omaha, 317 Neb. 195, 210, 9 N.W.3d 445,
458 (2024) (“appellate court may affirm a lower court’s ruling that reaches
the correct result, albeit based on different reasoning”).
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. FALCON
Cite as 319 Neb. 911
under the recently enacted business records exception codi-
fied at § 27-902(11), the Facebook messages were “self-
authenticating” and were similarly excepted from the hear-
say prohibition because they were a business record under
§ 27-803(6).
The State then sought to introduce nine separate excerpts
from the PDF file. The State elicited testimony from the offi-
cer that certain portions of the excerpts were redacted because
they were not relevant to the case and that the timecodes of the
messages in the excerpts were converted into central time. The
State offered the exhibits. Falcon objected based on founda-
tion, hearsay, and relevancy, and he requested an opportunity
to ask the officer “some voir dire questions.” The court granted
Falcon’s request.
In voir dire, the officer testified that a PDF file cannot be
modified but also that he was able to modify the PDF file by
running the file “through a program that then switches it to
whichever time that you’re in.” The officer had no knowledge
of how Facebook marked the timecodes of the messages in the
PDF file, nor any training or knowledge that “shows that we
don’t have to worry about anything else being switched” by
the program. The officer testified that he was not the person
who ran the PDF file through the program and admitted that
“things” could have been added to or subtracted from the file
by use of the program. The State then elicited further testi-
mony from the officer that the timecodes in the PDF file were
in coordinated universal time and that the timecodes were the
only modification made to the PDF file. The court overruled
Falcon’s objections.
In a lengthy and detailed section of its opinion, the Court
of Appeals considered the self-authentication provided by
§ 27-902(11). It ultimately agreed with the position taken
by the State on appeal, which was contrary to the State’s
position below. Noting that § 27-902 is similar to Fed. R.
Evid. 902, the Court of Appeals adopted the reasoning of the
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U.S. Court of Appeals for the Third Circuit. 42 In sum, the
Court of Appeals concluded that user-generated social media
records are not business records that can be self-authenticated
under § 27-902(11). It then went on to consider whether
the Facebook messages were sufficiently authenticated under
Neb. Rev. Stat. § 27-901(1) (Reissue 2016). The Court of
Appeals determined that the officer’s testimony constituted
sufficient evidence to authenticate the Facebook messages
and that the content purportedly authored by Falcon was
admissible as admissions by a party opponent under Neb.
Rev. Stat. § 27-801(4)(b) (Cum. Supp. 2024).
(b) Discussion
We agree with the Court of Appeals’ thorough analysis set
forth in its opinion of § 27-902(11). However, we address a
few additional points of law not expressly discussed in the
Court of Appeals’ decision.
Section 27-902 provides, in relevant part:
Extrinsic evidence of authenticity as a condition prec-
edent to admissibility is not required with respect to the
following:
....
(11)(a) The original or a copy of a domestic record
that meets the requirements of subdivision (6) of section
27-803, as shown by a certification of the custodian or
another qualified person.
(b) Before the trial or hearing, the proponent must give
an adverse party reasonable written notice of the intent
to offer the record and must make the record and certi-
fication available for inspection so that the party has a
fair opportunity to challenge them on the ground that the
sources of information or the method or circumstances of
preparation indicate a lack of trustworthiness.
42
See U.S. v. Browne, 834 F.3d 403 (3d Cir. 2016). See, also, U.S. v. Lamm,
5 F.4th 942 (8th Cir. 2021); U.S. v. Farrad, 895 F.3d 859 (6th Cir. 2018).
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We note that Falcon has not raised an argument concerning the
State’s compliance with § 27-902(11)(b), and, accordingly, we
do not address it herein.
As the text plainly indicates, self-authentication under
§ 27-902(11) hinges upon the domestic record meeting the
requirements of § 27-803(6)—colloquially referred to as
the “business records exception” to the hearsay rule. 43 If the
record does not meet the requirements of § 27-803(6), it can-
not be self-authenticating. However, whereas § 27-902(11)
is similar to its federal counterpart, § 27-803(6) differs from
Fed. R. Evid. 803(6). 44
Section 27-803(6) contains two clauses. We note that
§ 27-803(6)(b) expressly “shall not apply in any criminal
proceeding.” Accordingly, we are only concerned here with
§ 27-803(6)(a). Section 27-803 provides, in relevant part:
Subject to the provisions of section 27-403, the follow-
ing are not excluded by the hearsay rule, even though the
declarant is available as a witness:
....
(6)(a) A memorandum, report, record, or data compi-
lation, in any form, of acts, events, or conditions, other
than opinions or diagnoses, made at or near the time of
such acts, events, or conditions, in the course of a regu-
larly conducted activity, if it was the regular course of
such activity to make such memorandum, report, record,
or data compilation at the time of such act, event, or
condition, or within a reasonable time thereafter, as
shown by the testimony of the custodian or other quali-
fied witness or by a certification that complies with sub-
division (11) or (12) of section 27-902 or with a statute
permitting certification, unless the source of information
43
See § 27-801. See, also, Fed. R. Evid. 801.
44
See, also, Arens v. NEBCO, Inc., 291 Neb. 834, 856, 870 N.W.2d 1, 18
(2015) (“Nebraska’s business record[s] exception to hearsay is not a
carbon copy of its federal counterpart”).
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or method or circumstances of preparation indicate lack
of trustworthiness. The circumstances of the making of
such memorandum, report, record, or data compilation,
including lack of personal knowledge by the entrant or
maker, may be shown to affect its weight.
[12] To fall under the business records exception to the
hearsay rule, the out-of-court statement offered for the truth
of the matter asserted must be “[a] memorandum, report,
record, or data compilation.” 45 We have held that the party
seeking to admit evidence under this exception to the hearsay
rule bears the burden of establishing foundation for the evi-
dence under a three-part test. 46
First, the proponent must establish that the activity
recorded is of a type that regularly occurs in the course
of the business’ day-to-day activities. Second, the propo-
nent must establish that the record was made as part of a
regular business practice at or near the time of the event
recorded. Third, the proponent must authenticate the
record by a custodian or other qualified witness. 47
As one commentator has explained, “The declarant is the key
here—the out-of-court statement needs to be made as part of
[the declarant’s] business.” 48
Here, the declarant of the statements contained in the
Facebook messages that the State sought to introduce was
Falcon, and the statements were not made as part of his busi-
ness. As the Court of Appeals observed, the initial relevance
of the social media records depended upon authorship. Thus,
the State was required to produce evidence sufficient to sup-
port a finding that Falcon authored the messages at issue as a
45
§ 27-803(6)(a).
46
See State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006), abrogated on
other grounds, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010).
47
Id. at 613, 724 N.W.2d at 65.
48
G. Michael Fenner, The Hearsay Rule, 225-26 (2003).
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condition precedent to their admissibility. 49 Because the user-
generated social media evidence the State sought to introduce
did not meet the requirements of § 27-803(6), the State was
not relieved by § 27-902(11) of its burden under § 27-901 to
provide extrinsic evidence of the evidence’s authenticity as a
condition precedent to admissibility.
[13] For self-authentication under § 27-902(11) to apply in
a criminal case, such that extrinsic evidence of authenticity is
not a required condition precedent to admissibility, the domes-
tic record sought to be introduced must meet the requirements
of § 27-803(6)(a). However, the record may still be admissible
if sufficient evidence is introduced to support a finding that the
record is what its proponent claims it to be in order to satisfy
the authentication requirement of § 27-901.
We agree with the Court of Appeals that the elicited testi-
mony of the law enforcement officer at trial, as recounted above
and set forth in further detail in the Court of Appeals’ opinion,
provided sufficient evidence to authenticate the PDF file of
Facebook messages. Whether Falcon authored the Facebook
messages at issue was ultimately a factual issue for the jury,
and the statements were nonhearsay as a statement by a party
opponent under § 27-801. 50
Falcon also takes issue with the excerpts of the PDF file that
were introduced by the State as separate exhibits. However,
once the PDF file was introduced in its entirety, the content
of the excerpts was already in evidence. There is no merit
to Falcon’s separate objections to the excerpts. Additionally,
whether the content of the messages had been modified by
law enforcement, as Falcon intimated and argues, was a fac-
tual issue for the jury and readily discernible by comparison
with the PDF file. Our review of the record confirms that the
49
See § 27-901(1).
50
See, also, State v. Savage, 301 Neb. 873, 920 N.W.2d 692 (2018), modified
on denial of rehearing 302 Neb. 492, 924 N.W.2d 64 (2019).
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only modification made to the PDF file was the conversion of
the timecodes from coordinated universal time to central time.
Lastly, Falcon argues that his Sixth Amendment right to
be confronted with the witnesses against him was violated
because he was not able to cross-examine the Meta employee
who certified the Facebook messages. We note that the Court
of Appeals did not directly address this argument.
[14] The Confrontation Clause of the Sixth Amendment to
the U.S. Constitution guarantees a defendant’s right to confront
“witnesses” who “‘“bear testimony”’” against him or her. 51
In this case, we are guided by the U.S. Supreme Court’s deci-
sion in Dowdell v. United States. 52 We recognize that Dowdell
preceded Crawford v. Washington, 53 which changed the legal
landscape of the Confrontation Clause. However, Dowdell is
consistent with Crawford and remains good law. 54
In Dowdell, the petitioner challenged the certification of
records of prior court proceedings. The Court recognized that
the Confrontation Clause “was intended to prevent the convic-
tion of the accused upon depositions or ex parte affidavits,
and particularly to preserve the right of the accused to test
the recollection of the witness in the exercise of the right of
cross-examination.” 55 The Court held that those who certified
51
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309, 129 S. Ct. 2527, 174
L. Ed. 2d 314 (2009) (quoting Crawford v. Washington, 541 U.S. 36, 124
S. Ct. 1354, 158 L. Ed. 2d 177 (2004)).
52
Dowdell v. United States, 221 U.S. 325, 31 S. Ct. 590, 55 L. Ed. 753
(1911).
53
Crawford v. Washington, supra note 51.
54
See Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d
224 (2006). See, also, Melendez-Diaz v. Massachusetts, supra note 51,
557 U.S. at 349 (Kennedy, J., dissenting; Roberts, C.J., and Breyer and
Alito, JJ., join) (“as recently as Davis, the Court reaffirmed Dowdell”).
Cf. Melendez-Diaz v. Massachusetts, supra note 51, 557 U.S. at 323, n.8
(“dissent’s reliance on our decision in Dowdell [is] misplaced”).
55
Dowdell v. United States, supra note 52, 221 U.S. at 330 (emphasis
omitted).
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the records “were not witnesses against the accused.” 56 The
certification of the records “involved no inquiry into the guilt
or innocence of the accused” and was “no[t] production of
testimony against the accused.” 57
Similarly, the certification of the PDF file by the Meta
employee did not inquire into Falcon’s guilt or innocence of
the charges and did not constitute testimony against him. As
discussed above, neither Facebook nor Meta was a declarant
of the statements contained in the Facebook messages within
the PDF file. The statements contained within the PDF file
inquired into Falcon’s guilt or innocence. The mere existence
of the messages that the Meta employee certified did not. For
purposes of the Confrontation Clause, the Meta employee was
not a witness, and his certification was not testimony. There is
no merit to Falcon’s argument that his right to confront wit-
nesses against him was violated.
3. Other Assignments of Error
As for Falcon’s remaining assignments of error, in light of
our resolution of Falcon’s first two assignments of error, we
agree with the thorough and sound reasoning of the Court of
Appeals.
VI. CONCLUSION
Having reviewed the briefs and record and having heard oral
arguments, we conclude on further review that the decision of
the Court of Appeals is correct, and, accordingly, we affirm
its decision affirming Falcon’s convictions for possession of a
firearm by a prohibited person and DUI.
Affirmed.
56
Id., 221 U.S. at 330.
57
Id., 221 U.S. at 331. See Melendez-Diaz v. Massachusetts, supra note
51, 557 U.S. at 323, n.8 (“[persons] who made the statements at issue
in Dowdell were not witnesses for purposes of the Confrontation Clause
because their statements [did not] concern[] . . . any facts regarding
defendants’ guilt or innocence”).