Judgments: Jurisdiction: Appeal and Error. A
jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion
independent of the lower court's decision.
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
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.
Jurisdiction: Appeal and Error. It is the
duty of an appellate court to determine whether it has
jurisdiction over the matter before it, irrespective of
whether the issue is raised by the parties.
Sentences: Probation and Parole. The
practice of entering separate sentencing and probation orders
is disapproved. Instead, a sentencing court should enter its
entire judgment, including all of the terms and conditions of
probation, at one time.
Appeal and Error. An alleged error must be
both specifically assigned and specifically argued in the
brief of the party asserting the error to be considered by an
Constitutional Law: Search and Seizure. Both
the Fourth Amendment to the U.S. Constitution and article I,
§ 7, of the Nebraska Constitution guarantee against
unreasonable searches and seizures.
Neb. 83] 8. 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.
Constitutional Law: Police Officers and Sheriffs:
Search and Seizure: Appeal and Error. To determine
whether an encounter between an officer and a citizen reaches
the level of a seizure under the Fourth Amendment to the U.S.
Constitution, an appellate court employs the analysis set
forth in State v. Van Ackeren, 242 Neb. 479, 495
N.W.2d 630 (1993), which describes the three levels, or
tiers, of police-citizen encounters.
Constitutional Law: Police Officers and Sheriffs:
Search and Seizure: Arrests. 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.
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.
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.
Police Officers and Sheriffs: Search and
Seizure. A seizure does not occur simply because a
law enforcement officer approaches an individual and asks a
few questions or requests permission to search an area,
provided the officer does not indicate that compliance with
his or her request is required.
from the District Court for Adams County: Terri S. Harder and
Stephen R. Illingworth, Judges. Affirmed.
Heieck and Kelsey Helget, Assistant Adams County Public
Defenders, for appellant.
Neb. 84] Douglas J. Peterson, Attorney General, and Jordan
Osborne for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
Shalynn R. Hartzell's appeal from her conviction and
probationary sentence for possession of a controlled
substance, the legality of the evidence turns upon whether
the traffic stop concluded and a voluntary police-citizen
encounter began before she consented to a search of her
vehicle. Because the totality of circumstances here
establishes that this was not, as Hartzell contends, an
unlawful extended seizure, her appeal fails. Before reaching
that conclusion, we note jurisdiction but disapprove of the
practice of entering separate sentencing and probation
orders, and we direct that a sentencing court should instead
enter its entire judgment, including all of the terms and
conditions of probation, at one time.
the crux of Hartzell's argument is based upon
police-citizen encounters, we recount those events first. At
oral argument, Hartzell conceded that she does not dispute
the historical facts determined by the district court.
Therefore, we recount the facts accordingly.
March 2017, Sgt. Raelee VanWinkle of the Hastings, Nebraska,
police department conducted a traffic stop of Hartzell's
vehicle for expired registration tags. Hartzell was alone in
the vehicle. VanWinkle issued a "fix-it" ticket,
returned Hartzell's license and registration, and told
Hartzell to '"have a good night and to drive
careful[ly].'" VanWinkle began to walk back to her
reaching the rear of Hartzell's vehicle, VanWinkle turned
around and again approached Hartzell. VanWinkle asked,
'"[H]ey, before you go, do you have a minute to talk
to [304 Neb. 85] me?'" Hartzell responded,
'"[S]ure, what's up?'" Van Winkle asked
to search the vehicle and Hartzell "verbally indicated
that she didn't have a problem with that."
search of Hartzell's vehicle, Van Winkle found a
marijuana joint, marijuana stems and leaves, a digital gram
scale with a white crystalline substance on it, and a
metham-phetamine pipe. When confronted about these items,
Hartzell stated that she was a marijuana user and used the
scale to weigh her marijuana. A field test of the pipe
residue resulted in a presumptive positive for
methamphetamine. VanWinkle arrested Hartzell and searched her
person. VanWinkle found "a baggie of methamphetamine in
[Hartzell's] bra." Later, the Nebraska State Patrol
Crime Laboratory tested the "baggie" and confirmed
it contained methamphetamine with a weight of .94 grams.
being taken to jail, Hartzell stated that she had tried to
"stay clean" and that she had relapsed the prior
night. VanWinkle denied conducting an interview in the patrol
the jail and after Hartzell waived her Miranda
rights, VanWinkle interviewed her. Hartzell admitted that she
had relapsed and that she came to Hastings to purchase
to a stipulated bench trial, Hartzell moved to suppress all
evidence found during the search of her vehicle or on her
person and all statements made to law enforcement. The
district court denied the motion and determined that neither
the Fourth Amendment nor the Fifth Amendment had been
violated. Because Hartzell's argument on appeal relies
solely on the Fourth Amendment, in that she claims the
seizure of the traffic stop was continuous until her ultimate
arrest, we summarize only those findings pertinent to the
Fourth Amendment analysis.
Hartzell's Fourth Amendment claim, the court determined
that "a reasonable person would not conclude [she was]
not free to leave, " because VanWinkle told her to
"'drive safe[ly]'" and did not indicate
that her compliance [304 Neb. 86] with the request to search
was required. It noted that although Van Winkle's patrol
vehicle's lights were still activated, Hartzell knew that
VanWinkle had not returned to the patrol vehicle. It
determined that VanWinkle did not display a weapon, touch
Hartzell, or use an authoritative tone. It concluded that
Hartzell was not seized and that VanWinkle did not need
reasonable, articulable suspicion to reapproach Hartzell and
request consent to search. Hartzell later moved to reconsider
and vacate the order on the motion to suppress. She contended