State v. Nuss

was foreseeable. The testimony in the affidavit falls short of
establishing any proof that UP knew that Adison had grabbed
the buttocks of employees in the UP hallway. Ballard himself
agreed that the three men’s behavior on March 21, 2005, was
not typical and that he did not know what made the men act
this way. As the Federal District Court said, this was a one-
time incident.
Ballard also argues that UP was negligent for not training its
employees on its policies to not harass or touch fellow employ-
ees. Ballard provides little in the way of case law or evidence
to support this argument. We conclude that this argument is
without merit.
After reviewing the record, we conclude there is no evidence
from which a jury could infer that UP knew or should have
known that the three men had a propensity to commit such
acts.24 As such, UP was not negligent.
CONCLUSION
Ballard failed to prove that UP was negligent. As such, the
district court order is affirmed.
A ffirmed.
24 See Brooks v. Washington Terminal Co., 593 F.2d 1285 (D.C. Cir. 1979).
StAte of NebrASkA, Appellee , v.
tyler r. NuSS, AppellANt.
781 N.W.2d 60
Filed April 9, 2010. 	No. S-09-546.
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, 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
Amendment protections is a question of law that an appellate court reviews inde-
pendently of the trial court’s determination.
2. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S.
Constitution and article I, § 7, of the Nebraska Constitution guarantee against
unreasonable search and seizure.
648 	279 NeBRASkA RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

3. Search Warrants: Affidavits: Probable Cause. A search warrant, to be valid,
must be supported by an affidavit which establishes probable cause.
4. Search Warrants: Probable Cause: Words and Phrases. Probable cause suf-
ficient to justify issuance of a search warrant means a fair probability that contra-
band or evidence of a crime will be found.
5. Search Warrants: Probable Cause: Proof: Time. Proof of probable cause
justifying issuance of a search warrant generally must consist of facts so closely
related to the time of issuance of the warrant as to justify a finding of probable
cause at the time.
6. Search Warrants: Affidavits: Probable Cause: Appeal and Error. In review-
ing the strength of an affidavit submitted as a basis for finding probable cause to
issue a search warrant, an appellate court applies a “totality of the circumstances”
test. The question is whether, under the totality of the circumstances illustrated
by the affidavit, the issuing magistrate had a substantial basis for finding that the
affidavit established probable cause.
7. Search Warrants: Affidavits: Evidence: Appeal and Error. In evaluating the
sufficiency of an affidavit used to obtain a search warrant, an appellate court is
restricted to consideration of the information and circumstances contained within
the four corners of the affidavit, and evidence which emerges after the warrant is
issued has no bearing on whether the warrant was validly issued.
8. Search Warrants: Probable Cause: Evidence: Minors. While copies of images
obtained during a law enforcement investigation may be used to establish prob-
able cause to search for evidence of crimes involving visual depiction of sexually
explicit conduct involving minors, they are not absolutely required. Probable
cause may also be established by a detailed verbal description of the conduct
depicted in such images.
9. Search Warrants: Affidavits: Police Officers and Sheriffs: Evidence: Search
and Seizure. The good faith exception provides that even in the absence of a
valid affidavit to support a search warrant, evidence seized under the warrant
need not be suppressed when police officers act in objectively reasonable good
faith in reliance upon the warrant.
10. Motions to Suppress: Search Warrants: Affidavits: Police Officers and
Sheriffs: Evidence. evidence may be suppressed if (1) the magistrate or judge in
issuing a warrant was misled by information in an affidavit that the affiant knew
was false or would have known was false except for his or her reckless disregard
of the truth, (2) the issuing magistrate wholly abandoned his or her judicial role,
(3) the warrant is based on an affidavit so lacking in indicia of probable cause as
to render official belief in its existence entirely unreasonable, or (4) the warrant
is so facially deficient that the executing officer cannot reasonably presume it to
be valid.
Appeal from the District Court for Hall County: JAmeS d.
liviNgStoN, Judge. Affirmed.
Arthur S. Wetzel, of Anderson, Vipperman, kovanda &
Wetzel, and Mark Porto, of Shamberg, Wolf, McDermott &
Depue, for appellant.
STATe v. NUSS 	649
Cite as 279 Neb. 648

Jon Bruning, Attorney General, and George R. Love for
appellee.
H eAvicAN, 	c.J., 	WrigHt, 	coNNolly, 	gerrArd, 	StepHAN,
mccormAck, and miller-lermAN, JJ.
StepHAN, J.
After a stipulated bench trial, Tyler R. Nuss was convicted
of possession of visual depictions of sexually explicit conduct
which has a child as one of its participants or portrayed observ-
ers, in violation of Neb. Rev. Stat. § 28-813.01 (Reissue 2008).
Over Nuss’ objection, the trial court received evidence obtained
during a search of his residence which was conducted pursu-
ant to a search warrant. The court had previously denied Nuss’
motion to suppress that evidence, concluding that the affidavit
filed in support of the search warrant application provided suf-
ficient probable cause for the warrant. Nuss now appeals the
denial of his motion to suppress and the use of the evidence
obtained during the search at his trial.
BACkGROUND
On December 18, 2007, Sgt. J. McCoy of the Nebraska
State Patrol completed an affidavit in support of his applica-
tion for a warrant to search the Nuss residence in Grand Island,
Nebraska. In the affidavit, McCoy stated that he had reason-
able grounds to believe that “[v]isual depictions of received
files or other computer graphic files which depict children in a
sexually explicit manner, as defined by Neb. Rev. Statute Sec.
28-1463.02,” were concealed or kept in the residence.
As probable cause for the warrant, McCoy cited his work
history with the State Patrol, including his participation in
investigations relating to the sexual exploitation of children
and his observation of “numerous examples of child por-
nography in all forms of media including computer media.”
McCoy also described two Federal Bureau of Investigation
(FBI) undercover investigations through which files stored
on a computer at the Nuss residence were surreptitiously
viewed from a remote location. In the first of these inves-
tigations, conducted on October 29, 2007, an FBI analyst
downloaded 12 files from a specific “IP address” utilizing a
650 	279 NeBRASkA RePORTS

peer-to-peer file-sharing program. According to McCoy, the
analyst determined that 10 of the downloaded files contained
“child pornography.” Through an administrative subpoena, the
IP address was traced to the Nuss residence. In the second
undercover investigation, conducted on November 9, an FBI
special agent downloaded 28 files from another IP address
traced to the Nuss residence. Based upon his review, McCoy
concluded that 20 of the files contained what “appear[ed] to
be child pornography.” McCoy did not describe any of the
images downloaded, nor did he attach copies of the images to
the affidavit. Rather, he stated:
There is probable cause to believe that a search of this
premise[s] will result in the seizures of evidence relating
to the possession, receipt, transmission, and distribution
of images depicting the sexual performance by a child
less than eighteen years of age in violation of Nebraska
State statute 28-1463.01 and 28-1463.05.
McCoy concluded the affidavit by stating, “Based on prior expe-
rience and training, affiant believes that the above described
residence and or outbuildings and vehicles contain visual depic-
tions of received files or other computer graphic files which
depict children in a sexually explicit manner . . . .”
The requested search warrant was issued by a county judge
on December 18, 2007. On the same day, McCoy and other
officers conducted a search of the Nuss residence and seized
various items, including a computer. They discovered 38 files
on the computer, described as “depicting children under the age
of 18 engaged in masturbation, real or simulated oral sex, [and]
anal sex.” During the search, Nuss admitted that he down-
loaded certain images. Nuss was subsequently charged with
possession of visual depiction of sexually explicit conduct, in
violation of § 28-813.01.
Nuss filed a motion to suppress all items seized from his
residence; the motion was filed on various grounds, including
that McCoy’s affidavit did not state facts sufficient to constitute
probable cause for issuance of the search warrant. The district
court overruled the motion, noting that while McCoy did not
use statutory language to describe the images claimed to con-
stitute probable cause, “in a common sense review there is
STATe v. NUSS 	651
Cite as 279 Neb. 648

sufficient information available from the totality of the circum-
stances to indicate to the issuing magistrate a fair probability
that there was evidence of a crime located at the particular
place as cited in the Affidavit.”
The parties agreed to a bench trial on stipulated facts. Nuss
renewed his motion to suppress, which was again overruled,
and the court received the evidence obtained as a result of the
search. The court found Nuss guilty of knowingly possessing
visual depictions of sexually explicit conduct, as defined by
Neb. Rev. Stat. § 28-1463.02(5) (Reissue 2008), in violation
of § 28-813.01. Nuss was sentenced to 18 months’ probation
and ordered to register as a sex offender under Nebraska’s Sex
Offender Registration Act.1
ASSIGNMeNTS OF eRROR
Nuss assigns, consolidated and restated, that the district
court erred in overruling his motion to suppress and in finding
him guilty on the basis of the evidence to which his motion
was addressed.
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,
we apply a two-part standard of review. Regarding historical
facts, we review the trial court’s findings for clear error. But
whether those facts trigger or violate Fourth Amendment pro-
tections is a question of law that we review independently of
the trial court’s determination.2
ANALYSIS
SufficieNcy of A ffidAvit
[2-6] The Fourth Amendment to the U.S. Constitution guar-
antees “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures . . . ,” and further provides that “no Warrants shall
issue, but upon probable cause, supported by Oath or affirma-
tion, and particularly describing the place to be searched, and
1 Neb. Rev. Stat. §§ 29-4001 to 29-4014 (Reissue 2008).
2 State v. Hedgcock, 277 Neb. 805, 765 N.W.2d 469 (2009).
652 	279 NeBRASkA RePORTS

the persons or things to be seized.” The Nebraska Constitution
provides similar protection.3 The execution of a search war-
rant without probable cause is unreasonable and violates these
constitutional guarantees.4 Accordingly, a search warrant, to
be valid, must be supported by an affidavit which establishes
probable cause.5 Probable cause sufficient to justify issuance
of a search warrant means a fair probability that contraband
or evidence of a crime will be found.6 Proof of probable cause
justifying issuance of a search warrant generally must consist
of facts so closely related to the time of issuance of the warrant
as to justify a finding of probable cause at the time.7 In review-
ing the strength of an affidavit submitted as a basis for finding
probable cause to issue a search warrant, an appellate court
applies a “totality of the circumstances” test.8 The question is
whether, under the totality of the circumstances illustrated by
the affidavit, the issuing magistrate had a substantial basis for
finding that the affidavit established probable cause.9
[7] In evaluating the sufficiency of an affidavit used to
obtain a search warrant, an appellate court is restricted to
consideration of the information and circumstances contained
within the four corners of the affidavit, and evidence which
emerges after the warrant is issued has no bearing on whether
the warrant was validly issued.10 Here, McCoy requested that
the issuing magistrate find probable cause based upon McCoy’s
description of the files and images which the FBI obtained from
Nuss’ computer in its undercover investigation. Our review is
guided by the principle that “[s]ufficient information must be
3 See, Neb. Const. art. I, § 7; State v. Bakewell, 273 Neb. 372, 730 N.W.2d
335 (2007).
4 State v. Swift, 251 Neb. 204, 556 N.W.2d 243 (1996).
5 State v. Bossow, 274 Neb. 836, 744 N.W.2d 43 (2008).
6 Id.
7 Id.; State v. Ildefonso, 262 Neb. 672, 634 N.W.2d 252 (2001).
8 State v. Bossow, supra note 5; State v. Ildefonso, supra note 7.
9 State v. Bossow, supra note 5; State v. Lammers, 267 Neb. 679, 676
N.W.2d 716 (2004).
10 State v. Lammers, supra note 9.
STATe v. NUSS 	653
Cite as 279 Neb. 648

presented to the magistrate to allow that official to determine
probable cause; his action cannot be a mere ratification of the
bare conclusions of others.”11
In similar cases where computer images surreptitiously
obtained by law enforcement have been relied upon as prob-
able cause for a search warrant, courts have taken differing
approaches regarding the degree of specificity which must
be used in describing the images to the issuing magistrate. In
U.S. v. Brunette,12 the court held that an officer’s description
of images as meeting the federal statutory definition of child
pornography was insufficient to establish probable cause. The
court reasoned that this was simply a conclusion of the officer,
unaccompanied by any factual specification of the officer’s rea-
sons for believing that the images were pornographic. Noting
the “inherent subjectivity” of this determination, the court con-
cluded that the magistrate should have viewed the actual images
in order to make an independent determination of whether they
depicted child pornography so as to establish probable cause
for the search.13 Similarly, in U.S. v. Genin,14 the court held that
an affidavit which described videos in the defendant’s posses-
sion merely as “child pornography” was insufficient to permit
the magistrate to make an independent determination of prob-
able cause. The court noted that the affiant “could have simply
appended screenshots of the videos to his affidavit or included
in the affidavit a reasonably detailed description of those
videos, thus allowing the issuing magistrate—an impartial and
independent judicial officer—to determine whether probable
cause existed.”15
Other courts require less specificity. For example, in U.S.
v. Lowe,16 the court found that an affiant’s description of the
11 Illinois v. Gates, 462 U.S. 213, 239, 103 S. Ct. 2317, 76 L. ed. 2d 527
(1983).
12 U.S. v. Brunette, 256 F.3d 14 (1st Cir. 2001).
13 Id. at 18.
14 U.S. v. Genin, 594 F. Supp. 2d 412 (S.D.N.Y. 2009).
15 Id. at 425.
16 U.S. v. Lowe, 516 F.3d 580, 586 (7th Cir. 2008).
654 	279 NeBRASkA RePORTS

images established probable cause, reasoning that, as a general
rule, “an issuing court does not need to look at the images
described in an affidavit in order to determine whether there
is probable cause to believe that they constitute child pornog-
raphy. A detailed verbal description is sufficient.” In U.S. v.
Chrobak,17 the affiant described images sent by the defendant
to a newsgroup Web site known to be frequented by child por-
nographers and pedophiles as depicting “‘sexually explicit con-
duct involving children under the age of 16.’” The court deter-
mined that this description was sufficient to establish probable
cause, noting that it was almost identical to the language of
the federal statute18 under which the defendant was charged
with possession and transport in interstate commerce of child
pornography. In U.S. v. Stults,19 the court reviewed an affidavit
which included the descriptive names of files obtained from the
defendant’s computer by law enforcement using file-sharing
software; such filenames included “Photo by Carl—pedo incest
13yr girl f* * * *d by daddy.” The affiant also stated that the
files contained “‘numerous images of child pornography.’”20
The court held this was sufficient to establish probable cause.
We note that the term “child pornography” is specifically
defined in the federal criminal statutes.21
[8] We now hold as a matter of first impression that, while
copies of images obtained during a law enforcement inves-
tigation may be used to establish probable cause to search
for evidence of crimes involving visual depiction of sexually
explicit conduct involving minors, they are not absolutely
required. Probable cause may also be established by a detailed
verbal description of the conduct depicted in such images.
Under this standard, the affidavit in this case was insufficient
to establish probable cause. In the affidavit, McCoy stated that
he expected to find “images depicting the sexual performance
17 U.S. v. Chrobak, 289 F.3d 1043, 1045 (8th Cir. 2002).
18 See 18 U.S.C. § 2252 (2006).
19 U.S. v. Stults, 575 F.3d 834, 838 (8th Cir. 2009).
20 Id. at 844.
21 See 18 U.S.C. § 2256(8) (2006).
STATe v. NUSS 	655
Cite as 279 Neb. 648

by a child less than eighteen years of age in violation of
Nebraska State statute 28-1463.01 and 28-1463.05” if the
requested search warrant for the Nuss residence were issued.
But he did not utilize language from these statutes in describ-
ing the files and images he relied upon to establish probable
cause for the warrant. Instead, McCoy referred to filenames
“which are consistent with child pornography” and images
which “appear to be child pornography” without stating the
actual filenames or describing the particular conduct depicted
in the images. These are mere conclusions. Unlike its fed-
eral counterpart, Nebraska’s Child Pornography Prevention
Act22 does not define the phrase “child pornography.” Instead,
§ 28-1463.02(5) defines the phrase “[s]exually explicit con-
duct,” as used in the statute under which Nuss was charged, to
include very specific sexual acts, such as “[r]eal or simulated
intercourse,” “real or simulated masturbation,” and “erotic
fondling.” McCoy’s affidavit does not use or even refer to the
statutory definitions of sexually explicit conduct in describing
the images intercepted during the undercover investigation and
relied upon as probable cause for the requested search war-
rant. And as noted, the actual images did not accompany the
affidavit. On this record, we must conclude that the affidavit
lacked factual information upon which the issuing magistrate
could make an independent assessment of McCoy’s conclu-
sions that the files and images constituted “child pornography”
or his belief that a search would yield depictions of children
“in a sexually explicit manner.” Accordingly, the affidavit was
insufficient to establish probable cause for the issuance of the
search warrant.
good fAitH exceptioN
[9,10] Our determination that the warrant was issued without
a showing of probable cause does not end the inquiry, because
the State has preserved the issue of whether, notwithstanding
the defective affidavit, the evidence obtained during the search
is admissible under the good faith exception to the exclusionary
22 Neb. Rev. Stat. §§ 28-1463.01 to 28-1463.05 (Reissue 2008).
656 	279 NeBRASkA RePORTS

rule first recognized in United States v. Leon.23 The good faith
exception provides that even in the absence of a valid affidavit
to support a search warrant, evidence seized under the warrant
need not be suppressed when police officers act in objectively
reasonable good faith in reliance upon the warrant.24 evidence
may be suppressed if (1) the magistrate or judge in issuing
a warrant was misled by information in an affidavit that the
affiant knew was false or would have known was false except
for his or her reckless disregard of the truth, (2) the issuing
magistrate wholly abandoned his or her judicial role, (3) the
warrant is based on an affidavit so lacking in indicia of prob-
able cause as to render official belief in its existence entirely
unreasonable, or (4) the warrant is so facially deficient that the
executing officer cannot reasonably presume it to be valid.25 In
Leon, the Supreme Court noted that “an assessment of the fla-
grancy of the police misconduct constitutes an important step
in the calculus” of the exclusionary rule.26 The Court recently
provided further guidance on this point, writing in Herring
v. United States27:
To trigger the exclusionary rule, police conduct must be
sufficiently deliberate that exclusion can meaningfully
deter it, and sufficiently culpable that such deterrence
is worth the price paid by the justice system. . . . [T]he
exclusionary rule serves to deter deliberate, reckless,
or grossly negligent conduct, or in some circumstances
recurring or systemic negligence.
23 United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. ed. 2d 677
(1984). See, also, State v. Tompkins, 272 Neb. 547, 723 N.W.2d 344
(2006), modified on denial of rehearing 272 Neb. 865, 727 N.W.2d 423
(2007).
24 State v. Tomkins, supra note 23; State v. Johnson, 256 Neb. 133, 589
N.W.2d 108 (1999), overruled on other grounds, State v. Davidson, 260
Neb. 417, 618 N.W.2d 418 (2000). See, also, United States v. Leon, supra
note 23.
25 State v. Tompkins, supra note 23; State v. Edmonson, 257 Neb. 468, 598
N.W.2d 450 (1999). See, also, United States v. Leon, supra note 23.
26 United States v. Leon, supra note 23, 468 U.S. at 911.
27 Herring v. United States, 555 U.S. 135, 144, 129 S. Ct. 695, 172 L. ed. 2d
496 (2009).
STATe v. NUSS 	657
Cite as 279 Neb. 648

In this case, Nuss argues that McCoy’s affidavit was “so
lacking in a factual basis that his belief in the legitimacy of the
resulting search warrant was entirely unreasonable.”28 He notes
that while a court in assessing an officer’s good faith in con-
ducting a search pursuant to a warrant may consider the totality
of the circumstances surrounding the issuance of the warrant,
including information not contained within the four corners of
the affidavit, there is no such evidence in this case.
But we are not persuaded that the deficiency in the affi-
davit precludes application of the good faith exception. In
U.S. v. Jasorka,29 the court concluded that it need not decide
whether a magistrate in issuing a search warrant was justified
in relying upon an affiant’s assertion that intercepted images
depicted “‘male children displaying a lewd and lascivious
exhibition of the genitals and pubic areas,’” because the law
on this point was unclear and the conduct of the customs
agents who executed the warrant was objectively reasonable
under Leon. In U.S. v. Brunette,30 the court specifically deter-
mined that the description of intercepted images in an affida-
vit was insufficient to establish probable cause but employed
the Jasorka reasoning in concluding that the good faith excep-
tion applied.
We think the same principle applies here. Until our holding
in this case, it was not clear under Nebraska law that labeling
intercepted computer images as “child pornography” was insuf-
ficient, standing alone, to establish probable cause to search
for evidence of visual depiction of sexually explicit conduct
involving minors. We acknowledge the observation of the dis-
trict court that the phrase “child pornography” has a commonly
accepted meaning, and the existence of some federal case law
indicating that an affidavit describing intercepted images as
“child pornography” is sufficient to establish probable cause
for a search warrant.31 While our decision today turns in part on
28 Reply brief for appellant at 5.
29 U.S. v. Jasorka, 153 F.3d 58, 59 (2d Cir. 1998).
30 U.S. v. Brunette, supra note 12.
31 See, U.S. v. Stults, supra note 19; U.S. v. Grant, 434 F. Supp. 2d 735 (D.
Neb. 2006).
658 	279 NeBRASkA RePORTS

the fact that the applicable Nebraska criminal statutes, unlike
their federal counterparts, do not include a definition of “child
pornography,” we cannot expect that a state trooper executing
an affidavit in 2007 would have anticipated this distinction.
Under the good faith exception as defined in Leon and refined
by Herring, we conclude that McCoy acted in reasonable good
faith and that his conduct was neither sufficiently deliberate
nor culpable to trigger the exclusionary rule. Accordingly, we
conclude that the district court did not err in overruling Nuss’
motion to suppress and receiving the evidence obtained pursu-
ant to the search warrant over Nuss’ objection.
CONCLUSION
For the reasons discussed, we affirm the judgment of the
district court.
A ffirmed.
H eAvicAN, C.J., concurring.
I agree with the majority’s holding that
while copies of images obtained during a law enforce-
ment investigation may be used to establish probable
cause to search for evidence of crimes involving visual
depiction of sexually explicit conduct involving minors,
they are not absolutely required. Probable cause may also
be established by a detailed verbal description of the con-
duct depicted in such images.
I write separately because contrary to the majority’s holding, I
would find that the affidavit in this case was sufficient to estab-
lish probable cause under the above standard.
The affidavit in support of the search warrant in this case
indicated that investigating officers observed images which
“contained child pornography” and that filenames attached
to some of those images were “consistent with child pornog-
raphy.” The averring officer noted that if the search warrant
were issued, he expected to find “images depicting the sexual
performance by a child less than eighteen years of age in viola-
tion of Nebraska State statute 28-1463.01 and 28-1463.05.”
In support of its conclusion that McCoy’s affidavit did not
establish probable cause, the majority relies in part on the fact
that the term “child pornography” is not defined by the Child
STATe v. NUSS 	659
Cite as 279 Neb. 648

Pornography Prevention Act and that, instead, a violation of
Neb. Rev. Stat. § 28-1463.05 (Reissue 2008) occurs when
one possesses materials that visually depict children engaged
in “sexually explicit conduct.” Thus, the majority concludes
that McCoy’s references to only “child pornography” are insuf-
ficient to establish probable cause.
While I would agree with the majority that “child pornog-
raphy” is not defined by the act, I would disagree that McCoy’s
reference to that term fails to establish probable cause. It is
clear that the purpose of the act as a whole is to criminalize the
possession or creation of “child pornography.” For example, as
is provided by Neb. Rev. Stat. § 28-1463.01 (Reissue 2008),
the name of the act under which the prohibition against posses-
sion of materials depicting “sexually explicit conduct” is the
“Child Pornography Prevention Act.”
Moreover, 	child 	pornography 	certainly 	has 	a 	generally
accepted meaning. “Pornography” is defined as “[m]aterial
. . . depicting sexual activity or erotic behavior in a way that
is designed to arouse sexual excitement,”1 while “child pornog-
raphy” is defined as “[m]aterial depicting a person under the
age of 18 engaged in sexual activity.”2 And these definitions are
certainly consistent with “sexually explicit conduct” as envi-
sioned by Neb. Rev. Stat. § 28-1463.02(5) (Reissue 2008).
McCoy’s affidavit plainly sets forth that two investigating
officers, both special agents with the FBI, downloaded and
viewed visual depictions which the officers determined were
child pornography and that those files were traced to an IP
address registered to Nuss. That affidavit also indicated that
McCoy believed that more items constituting child pornog-
raphy in violation of the act were likely to be found in a search
of Nuss’ home.
As 	noted 	above, 	“child 	pornography” 	has 	a 	generally
accepted definition and that definition is certainly consistent
with the meaning of “sexually explicit conduct.” McCoy’s
affidavit referred to the applicable statutes. In addition, McCoy
averred that he had previous experience with “investigations
1 Black’s Law Dictionary 1279 (9th ed. 2009).
2 Id.
660 	279 NeBRASkA RePORTS

relating to the sexual exploitations of children” and had previ-
ously “observe[d] and review[ed] numerous examples of child
pornography,” including the images in this case. And, similar
conclusions were also reached by both FBI agents. To para-
phrase U.S. v. Chrobak,3 an eighth Circuit Court of Appeals
case with similar facts, it is unlikely that the issuing judge
would have disagreed with the affiant’s characterization of the
images reviewed by the affiant as child pornography, and it is
likewise unlikely that the issuing judge would have concluded
that the images were not encompassed by the definition of
“sexually explicit conduct” as set forth in § 28-1463.02(5).
For the above reasons, I would find that probable cause was
established and I would affirm on this basis. I therefore concur
in the judgment of the court.
3 U.S. v. Chrobak, 289 F.3d 1043 (8th Cir. 2002).
STATe v. NUSS 	661
Cite as 279 Neb. 648