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State v. Botts

Court of Appeals of Nebraska

December 19, 2017

State of Nebraska, appellee,
v.
Kirk A. Botts, appellant.

         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 protection is a question of law that an appellate court reviews independently of the trial court's determination.

         2. Trial: Investigative Stops: Warrantless Searches: Appeal and Error. The ultimate determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search are reviewed de novo, and findings of fact are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge.

         3. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error. When a motion to suppress is denied pretrial and again during trial on renewed objection, an appellate court considers all the evidence, both from trial and from the hearings on the motion to suppress.

         4. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution guarantee against unreasonable searches and seizures.

         5. Search and Seizure: Evidence: Trial. Evidence obtained as the fruit of an illegal search or seizure is inadmissible in a state prosecution and must be excluded.

         6. Search and Seizure: Probable Cause: Appeal and Error. To analyze the legality of the search and seizure, an appellate court must first determine when the seizure occurred and then address whether the seizure was supported by probable cause.

         [25 Neb.App. 373] 7. Constitutional Law: Police Officers and Sheriffs: Search and Seizure: Arrests. There are three tiers of police-citizen encounters. A tier-one police-citizen encounter involves the voluntary cooperation of the citizen elicited through noncoercive questioning and does not involve any restraint of liberty of the citizen. Because tier-one encounters do not rise to the level of a seizure, they are outside the realm of Fourth Amendment protection. A tier-two police-citizen encounter involves a brief, nonintrusive detention during a frisk for weapons or preliminary questioning. A tier-three police-citizen encounter constitutes an arrest, which involves a highly intrusive or lengthy search or detention. Tier-two and tier-three police-citizen encounters are seizures sufficient to invoke the protections of the Fourth Amendment to the U.S. Constitution.

         8. Constitutional Law: Search and Seizure. A seizure in the Fourth Amendment context occurs only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave.

         9. Police Officers and Sheriffs: Search and Seizure. In addition to situations where an officer directly tells a suspect that he or she is not free to go, circumstances indicative of a seizure may include the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the citizen's person, or the use of language or tone of voice indicating the compliance with the officer's request might be compelled.

         10. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. An officer's merely questioning an individual in a public place, such as asking for identification, is not a seizure subject to Fourth Amendment protections, so long as the questioning is carried on without interrupting or restraining the person's movement.

         11. Constitutional Law: Arrests: Probable Cause. The Fourth Amendment requires that an arrest be justified by probable cause to believe that a person has committed or is committing a crime.

         12. Warrantless Searches: Probable Cause: Police Officers and Sheriffs. Probable cause to support a warrantless arrest exists only if law enforcement has knowledge at the time of the arrest, based on information that is reasonably trustworthy under the circumstances, that would cause a reasonably cautious person to believe that a suspect has committed or is committing a crime.

         13. Probable Cause: Words and Phrases. Probable cause is a flexible, commonsense standard that depends on the totality of the circumstances.

         14. Probable Cause: Appeal and Error. An appellate court determines whether probable cause existed under an objective standard of reasonableness, given the known facts and circumstances.

         [25 Neb.App. 374] 15. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

         Appeal from the District Court for Lancaster County: Robert R. Otte, Judge. Reversed and remanded with directions.

          Matthew K. Kosmicki, of Brennan & Nielsen Law Offices. PC, for appellant.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

          Inbody, Pirtle, and ...


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