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