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State v. Hartzell

Supreme Court of Nebraska

September 20, 2019

State of Nebraska, Appellee,
Shalynn R. Hartzell, Appellant. v.

         1. 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.

         2. 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.

         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. 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.

         5. 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.

         6. 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 appellate court.

         7. 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.

         [304 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.

         9. 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.

         10. 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. Constitution.

         11. 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.

         12.___:___. 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.

         13. 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.

          Appeal from the District Court for Adams County: Terri S. Harder and Stephen R. Illingworth, Judges. Affirmed.

          John Heieck and Kelsey Helget, Assistant Adams County Public Defenders, for appellant.

         [304 Neb. 84] Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Cassel, J.


         In 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.


         1. Encounters

         Because 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.

         In 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 patrol vehicle.

         After 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."

         After a 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.

         While 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 vehicle.

         Once at 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 methamphetamine.

         Prior 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.

         Regarding 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 that ...

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