State v. Saitta , 306 Neb. 499 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/31/2020 08:08 AM CDT
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAITTA
Cite as 306 Neb. 499
State of Nebraska, appellee, v.
Richard J. Saitta, appellant.
___ N.W.2d ___
Filed July 17, 2020. No. S-19-697.
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 histori-
cal 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 indepen-
dently of the trial court’s determination.
2. Constitutional Law: Search and Seizure: Appeal and Error. An
appellate court applies a two-part analysis when reviewing whether a
consent to search was voluntary. As to the historical facts or circum-
stances leading up to a consent to search, the appellate court reviews
the trial court’s findings for clear error. However, whether those facts
or circumstances constituted a voluntary consent to search, satisfying
the Fourth Amendment, is a question of law, which the appellate court
reviews independently of the trial court. And where the facts are largely
undisputed, the ultimate question is an issue of law.
3. Constitutional Law: Criminal Law: Police Officers and Sheriffs:
Search and Seizure: Investigative Stops: Arrests: Probable Cause:
Words and Phrases. There are three tiers of police-citizen encounters
under Nebraska law. The first tier of police-citizen encounters involves
no restraint of the liberty of the citizen involved, but, rather, the volun-
tary cooperation of the citizen is elicited through noncoercive question-
ing. This type of contact does not rise to the level of a seizure and there-
fore is outside the realm of Fourth Amendment protection. The second
category, the investigatory stop, as defined by the U.S. Supreme Court
in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968),
is limited to brief, nonintrusive detention during a frisk for weapons or
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STATE v. SAITTA
Cite as 306 Neb. 499
preliminary questioning. This type of encounter is considered a seizure
sufficient to invoke Fourth Amendment safeguards, but because of its
less intrusive character requires only that the stopping officer have spe-
cific and articulable facts sufficient to give rise to reasonable suspicion
that a person has committed or is committing a crime. The third type of
police-citizen encounters, arrests, is characterized by highly intrusive
or lengthy search or detention. The Fourth Amendment requires that
an arrest be justified by probable cause to believe that a person has
committed or is committing a crime. Only the second and third tiers of
police-citizen encounters are seizures sufficient to invoke the protections
of the Fourth Amendment to the U.S. Constitution.
4. Constitutional Law: Search and Seizure. A seizure in the Fourth
Amendment context occurs only if, in view of all the circumstances sur-
rounding 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.
5. Police Officers and Sheriffs: Investigative Stops: Time. An investi-
gative stop must be temporary and last no longer than is necessary to
effectuate the purpose of the stop. Similarly, the investigative methods
employed should be the least intrusive means reasonably available to
verify or dispel the officer’s suspicion in a short period of time.
6. Police Officers and Sheriffs: Investigative Stops: Probable Cause.
Whether a police officer has a reasonable suspicion based on sufficient
articulable facts depends on the totality of the circumstances and must
be determined on a case-by-case basis.
7. Police Officers and Sheriffs: Probable Cause. In determining whether
a police officer acted reasonably, it is not the officer’s inchoate or unpar-
ticularized suspicion or hunch that will be given due weight, but the
specific reasonable inferences which the officer is entitled to draw from
the facts in light of the officer’s experience.
8. Constitutional Law: Warrantless Searches: Search and Seizure.
Warrantless searches and seizures are per se unreasonable under the
Fourth Amendment, subject to a few established and well-delineated
exceptions.
9. Warrantless Searches. The warrantless search exceptions Nebraska has
recognized include: (1) searches undertaken with consent, (2) searches
under exigent circumstances, (3) inventory searches, (4) searches of
evidence in plain view, and (5) searches incident to a valid arrest.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAITTA
Cite as 306 Neb. 499
10. Warrantless Searches: Motor Vehicles. Nebraska has recognized that
among the established exceptions to the warrant requirement is the auto-
mobile exception.
11. Warrantless Searches: Probable Cause. Probable cause, standing
alone, is not an exception that justifies the search of a person without
a warrant.
12. Warrantless Searches. One well-recognized exception to the warrant
requirement is a search undertaken with consent.
13. Constitutional Law: Search and Seizure: Duress. Generally, to be
effective under the Fourth Amendment, consent to a search must be a
free and unconstrained choice, and not the product of a will overborne.
14. Warrantless Searches: Duress. Consent must be given voluntarily and
not as a result of duress or coercion, whether express, implied, physical,
or psychological.
15. Constitutional Law: Search and Seizure. The determination of whether
the facts and circumstances constitute a voluntary consent to a search,
satisfying the Fourth Amendment, is a question of law.
16. Search and Seizure. Whether consent to a search was voluntary is to be
determined from the totality of the circumstances surrounding the giving
of consent.
17. ____. Consent to search may be implied by action rather than words.
Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Mary M. Dvorak for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Richard J. Saitta appeals his conviction and sentence in
the district court for Douglas County for possession of a con-
trolled substance. The court overruled Saitta’s motion to sup-
press evidence, and thereafter in a bench trial, it found Saitta
guilty and sentenced him to probation for 1 year. Saitta claims
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAITTA
Cite as 306 Neb. 499
on appeal that the court erred when it overruled his motion to
suppress. We affirm Saitta’s conviction and sentence.
STATEMENT OF FACTS
Saitta was arrested on July 3, 2018, after police officers
found a clear plastic bag containing a substance later identified
as methamphetamine inside a glove worn by Saitta. Before
trial, Saitta filed a motion to suppress all evidence obtained as
a result of his encounter with the police on July 3. He asserted
that he was seized in violation of the Fourth Amendment
because the police did not have reasonable suspicion to detain
and question him and that the search of his personal effects
was in violation of the Fourth Amendment because the circum-
stances did not justify a search without a warrant.
At a hearing on the motion to suppress, the State presented
the testimony of Cory Buckley, one of the police officers who
arrested Saitta. Buckley’s testimony is set forth in more detail
below. During Buckley’s testimony, the State offered and the
court received into evidence a video recording from Buckley’s
body camera depicting Buckley’s encounter with Saitta. During
Saitta’s cross-examination of Buckley, Saitta offered and the
court received into evidence three still photographs depict-
ing the scene of the encounter. The State offered no further
testimony or evidence, and Saitta offered no other evidence in
his defense.
Buckley testified that he was an officer with the Omaha
Police Department. At approximately 5:43 a.m. on July 3,
2018, he and his partner were driving on patrol, and as they
drove past an alleyway, they observed a person who appeared
to be looking into the window of a building that was in the
process of being demolished. Buckley testified that he had
been aware of the building’s being demolished and that he had
made observing the building part of his regular route on patrol
because there had been problems with trespassers and people
sleeping in the building. He was also aware that there had
been “scrappers in that area,” which as he further described
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STATE v. SAITTA
Cite as 306 Neb. 499
meant that “[w]herever there’s buildings under construction,
there’s people trying to take metals out of the building being
demolished . . . for money.”
Upon observing a person in the alley, the officers stopped
and backed up their patrol car to get a closer look; Buckley tes-
tified that he “believe[d] the person saw us because when we
reversed the person was gone.” They turned into the alley to try
to make contact or to see if the person had entered the build-
ing; as they drove into the alleyway, they noticed the person,
who would later be identified as Saitta, “hiding in the bushes”
that were “up against the building.” Buckley testified that the
officers’ purpose in making contact with Saitta was “[j]ust to
see why he was looking in the building” and to “[b]asically,
identify him, make sure he’s not breaking in, not stealing any-
thing, that he actually belongs in that area.”
When the officers got out of their patrol car, Saitta came
“out of the bushes to make contact with” them. As Saitta
came out of the bushes, Buckley saw “him shove something
into his left glove with his right hand.” Buckley observed
upon initial contact that Saitta was “super nervous” and “did
not like [the officers’] being there.” Buckley also observed,
based on his “training and experience,” that the glove Saitta
was wearing on his left hand was of “the kind of gloves that
are used by like electricians, so they don’t cut their hands up
when they’re dealing with wires.” Buckley’s partner asked
Saitta what he was doing and whether he was breaking into
the building; Saitta replied that he was doing nothing and
that he did not have any tools on him, and he put his hands
in the air. Buckley’s partner then asked Saitta, “‘Well, what’s
this pile of metal doing right here?’” as he gestured toward
a small pile of scrap metal that was “[u]p against the build-
ing, right by the bush . . . where [Saitta] came out of from
behind.” Saitta replied that the metal was not his, and then
“he began to back away from” the officers. When Saitta began
to back away, Buckley “put [his] hand on [Saitta’s] back to
get him to stop.”
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAITTA
Cite as 306 Neb. 499
Buckley replied in the affirmative to the State’s question
whether he “inquire[d] to [Saitta] what was in his glove.”
He then testified that he “asked [Saitta] to remove the glove
and [Saitta] complied.” Buckley then “asked [Saitta] to hand
[him] the glove,” and when Saitta handed the glove to him,
Buckley saw that “inside the glove was a clear plastic bag”
that contained a substance that “later field-tested positive for
methamphetamine.” Upon finding the bag and its contents,
the officers “immediately placed [Saitta] into handcuffs” and
arrested him.
On cross-examination, Saitta referred to Buckley’s testi-
mony that he “asked” Saitta to remove his glove. Saitta asked
Buckley whether “[i]n fact, [he] directed [Saitta] to remove his
gloves,” and whether he “told [Saitta] to give it to [him] so that
[he] could inspect it.” Buckley agreed with both characteriza-
tions. Buckley also agreed with Saitta’s characterization that
he and his partner got only a “fairly quick glance” at Saitta
when he was looking into a window of the building as they
first drove past the alleyway and before they reversed course
and turned into the alley. Buckley acknowledged that he had
not previously encountered anyone trying to steal scrap metal
from that particular building. Buckley further acknowledged
that when he approached Saitta, he did not observe any metal
in Saitta’s hands and did not observe a vehicle, shopping cart,
or other mode of transport available to carry metal. Buckley
acknowledged that he and his partner had not found evidence
that Saitta was trying to take metal from the building and that
at the date of the suppression hearing, he did not “actually
know whether . . . Saitta was or was not attempting to get
metal from this particular building.”
Following the suppression hearing, the district court filed an
order overruling Saitta’s motion to suppress. The district court
evaluated the evidence and, at the beginning of its analysis,
stated with regard to the glove that “this is not a ‘seizure’ as
characterized by” Saitta. Instead, the court found that “Officer
Buckley simply asked [Saitta] for his glove and [Saitta] gave
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306 Nebraska Reports
STATE v. SAITTA
Cite as 306 Neb. 499
it to him. There was no seizure at all.” Despite this finding, the
court discussed arguendo that there had been a seizure of the
glove and continued its analysis accordingly.
After discussing the different levels of police-citizen encoun-
ters, the court determined that the encounter between Saitta and
the officers began as a “tier-one encounter” in which Saitta’s
liberty was not constrained but then became an “investigatory
stop,” or a “tier-two encounter,” which enjoys a level of Fourth
Amendment protection. The court found that the investigatory
stop was proper “because, under the totality of the circum-
stances, the officers had reasonable suspicion that [Saitta] had,
was about to, or was in the process of committing a crime.”
The court noted Buckley’s testimony that he saw Saitta when
he was looking into the building at around 5:43 a.m., that he
knew the building was in the process of being demolished and
individuals frequently stole scrap metal from such buildings,
and that when he and his partner drove into the alley, Saitta
tried to hide in the bushes. The court found these to be “spe-
cific and articulable facts that criminal activity was afoot,”
and it concluded that reasonable suspicion supported a lawful
detention for an investigatory stop.
The court then reviewed law to the effect that searches with-
out a valid warrant are per se unreasonable, subject to certain
exceptions. The court noted that in addition to the evidence
which supported reasonable suspicion justifying the investiga-
tory stop, Buckley testified that he saw Saitta put something
in his left glove when the officers approached him. The court
found that it was “reasonable for the officers to believe the
furtive gestures of [Saitta were] an attempt to conceal items
of a crime.” The court concluded that “probable cause existed
in order to justify the search of [Saitta’s] glove” and that
Saitta’s “Fourth Amendment rights were not violated because
probable cause existed.” The court overruled Saitta’s motion
to suppress.
After Saitta waived his right to a jury trial, the court con-
ducted a bench trial in which the State offered two exhibits—a
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAITTA
Cite as 306 Neb. 499
stipulation of the parties regarding laboratory testing of the
substance in the plastic bag found in Saitta’s glove and sepa-
rately the transcript of the suppression hearing. Saitta objected
to the admission of both exhibits based on the reasons set forth
in his motion to suppress, and he renewed the motion to sup-
press. The court overruled the renewed motion to suppress and
received the evidence over Saitta’s objection. Saitta offered no
evidence in his defense, and the court thereafter found Saitta
guilty of possession of a controlled substance. After hearing
argument by the parties on the issue of sentencing, the court
sentenced Saitta to probation for a term of 1 year.
Saitta appeals his conviction and sentence.
ASSIGNMENTS OF ERROR
Saitta claims generally that the district court erred when it
overruled his motion to suppress. He specifically claims the
court erred when it determined that (1) reasonable and articu-
lable suspicion of criminal activity existed to support Saitta’s
detention, (2) probable cause existed to search Saitta’s glove,
and (3) probable cause to conduct a search provides a valid
exception to the Fourth Amendment’s warrant requirement.
STANDARDS 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,
an appellate court applies a two-part standard of review. State
v. Degarmo, 305 Neb. 680, 942 N.W.2d 217 (2020). Regarding
historical facts, an appellate court reviews the trial court’s find-
ings for clear error, but whether those facts trigger or violate
Fourth Amendment protections is a question of law that an
appellate court reviews independently of the trial court’s deter-
mination. Id.
[2] Likewise, we apply the same two-part analysis when
reviewing whether a consent to search was voluntary. Id. As to
the historical facts or circumstances leading up to a consent to
search, we review the trial court’s findings for clear error. Id.
However, whether those facts or circumstances constituted a
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STATE v. SAITTA
Cite as 306 Neb. 499
voluntary consent to search, satisfying the Fourth Amendment,
is a question of law, which we review independently of the trial
court. State v. Degarmo, supra. And where the facts are largely
undisputed, the ultimate question is an issue of law. Id.
ANALYSIS
Saitta claims that the district court erred when it overruled
his motion to suppress evidence obtained as a result of his
encounter with police on July 3, 2018. He generally challenges
two aspects of the encounter: the seizure of his person and the
search of his glove. He argues that the seizure of his person
was illegal because the police lacked reasonable suspicion for
an investigatory stop, and he argues that the search of the glove
was illegal both because the police lacked probable cause to
conduct the search and because probable cause alone does not
justify a search without a warrant. We conclude that the seizure
of Saitta’s person was proper because the police had reasonable
suspicion to conduct an investigatory stop, and we conclude
that the search of the glove was proper because it was under-
taken with consent.
Seizure of Saitta’s Person Was Proper Because
Police Had Reasonable Suspicion to
Conduct an Investigatory Stop.
We first address whether the seizure of Saitta’s person was
proper. The evidence Saitta sought to suppress was found as
a result of the search of the glove, and that search occurred
as a result of the seizure of Saitta’s person. Therefore, if the
seizure was illegal, then evidence obtained from the search of
the glove should have been suppressed. However, we conclude
that the detention of Saitta was an investigatory stop that was
justified by reasonable suspicion.
The State acknowledges that Saitta was detained at the
point that Buckley, as he testified, “put [his] hand on [Saitta’s]
back to get him to stop.” The State contends, and we agree,
that prior to that time, the encounter involved no restraint
on Saitta’s liberty. The State further contends that Buckley’s
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STATE v. SAITTA
Cite as 306 Neb. 499
act of detaining Saitta by putting his hand on Saitta’s back
was justified as an investigatory stop supported by reason-
able suspicion.
[3] There are three tiers of police-citizen encounters under
Nebraska law. The first tier of police-citizen encounters
involves no restraint of the liberty of the citizen involved,
but, rather, the voluntary cooperation of the citizen is elicited
through noncoercive questioning. State v. Krannawitter, 305
Neb. 66, 939 N.W.2d 335 (2020). This type of contact does
not rise to the level of a seizure and therefore is outside the
realm of Fourth Amendment protection. State v. Krannawitter,
supra. The second category, the investigatory stop, as defined
by the U.S. Supreme Court in Terry v. Ohio, 392 U.S. 1, 88
S. Ct. 1868, 20 L. Ed. 2d 889 (1968), is limited to brief,
nonintrusive detention during a frisk for weapons or prelimi-
nary questioning. State v. Krannawitter, supra. This type of
encounter is considered a seizure sufficient to invoke Fourth
Amendment safeguards, but because of its less intrusive char-
acter requires only that the stopping officer have specific
and articulable facts sufficient to give rise to reasonable
suspicion that a person has committed or is committing a
crime. State v. Krannawitter, supra. The third type of police-
citizen encounters, arrests, is characterized by highly intrusive
or lengthy search or detention. Id. The Fourth Amendment
requires that an arrest be justified by probable cause to believe
that a person has committed or is committing a crime. State v.
Krannawitter, supra. Only the second and third tiers of police-
citizen encounters are seizures sufficient to invoke the protec-
tions of the Fourth Amendment to the U.S. Constitution. State
v. Krannawitter, supra.
[4] 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. State v. Krannawitter, supra. 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
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STATE v. SAITTA
Cite as 306 Neb. 499
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. Id.
[5] In this case, a seizure occurred when Buckley physi-
cally touched Saitta with the purpose of stopping him from
walking away. An investigative stop must be temporary and
last no longer than is necessary to effectuate the purpose of
the stop. State v. Shiffermiller, 302 Neb. 245, 922 N.W.2d 763
(2019). Similarly, the investigative methods employed should
be the least intrusive means reasonably available to verify or
dispel the officer’s suspicion in a short period of time. Id. In
this case, the investigatory stop of Saitta was brief and did
not extend beyond what was necessary to investigate the sus-
picion that prompted Buckley to stop Saitta. Although Saitta
was arrested soon after Buckley stopped him from walking
away, the arrest was based on the discovery of the bag con-
taining methamphetamine, and Saitta does not assert the arrest
per se was improper. Instead, he contends the investigatory
stop that led to the arrest was improper. We must therefore
consider whether Buckley had “specific and articulable facts
sufficient to give rise to reasonable suspicion that [Saitta had]
committed or [was] committing a crime” and whether he was
therefore justified in detaining Saitta for an investigatory stop.
See State v. Krannawitter, 305 Neb. 66, 71, 939 N.W.2d 335,
341 (2020).
[6,7] As we have said above, an investigatory stop of a
person requires that the stopping officer have specific and
articulable facts sufficient to give rise to reasonable suspicion
that a person has committed or is committing a crime. See id.
Whether a police officer has a reasonable suspicion based on
sufficient articulable facts depends on the totality of the cir-
cumstances and must be determined on a case-by-case basis.
State v. Wells, 290 Neb. 186, 859 N.W.2d 316 (2015). In deter-
mining whether a police officer acted reasonably, it is not the
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officer’s inchoate or unparticularized suspicion or hunch that
will be given due weight, but the specific reasonable infer-
ences which the officer is entitled to draw from the facts in
light of the officer’s experience. Id.
In this case, Buckley and his partner saw a person looking
into the window of a building that was in the process of being
demolished. Buckley was familiar with the building because it
was on the route of his regular patrol. He knew of complaints
about people trespassing and sleeping in the building, and he
was also familiar in a general sense that people sometimes
took scrap metal from buildings being demolished. Based on
the time of day, 5:43 a.m., Buckley could reasonably infer that
the person was not there for a proper purpose related to the
building, and based on his general and specific knowledge,
he could infer the person might be trespassing and possibly
attempting to steal metal from the building. During their initial
voluntary encounter with Saitta, Buckley and his partner made
further observations relevant to suspicion of criminal activ-
ity. Buckley’s partner saw a small pile of scrap metal, and he
asked Saitta about it. Buckley saw Saitta “shove something
into his left glove,” and Buckley knew the glove to be the type
one might wear when handling wires. Based on this knowl-
edge and knowing that it was a time of year—July—when one
would not normally be wearing gloves, Buckley had additional
reason to suspect Saitta might be trying to take metal from
the building.
We conclude that considering the totality of the circum-
stances, including the aforementioned observations and rea-
sonable inferences from his knowledge as an officer, at the
time he detained Saitta, Buckley had a reasonable suspicion
based on specific and articulable facts that Saitta had com-
mitted or was committing a crime. The investigative stop of
Saitta was supported by reasonable suspicion, and therefore,
the court did not err when it denied the motion to suppress to
the extent the motion relied on an allegedly illegal seizure of
Saitta’s person.
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Search of Saitta’s Glove Was Proper Because
It Was Undertaken With Consent.
We next consider whether the search of Saitta’s glove vio-
lated the Fourth Amendment. Saitta argues that the district
court erred when it determined that the officers had probable
cause to search the glove and when it determined that prob-
able cause in itself is an exception to the warrant requirement.
The State concedes that probable cause alone did not justify
the warrantless search and that the district court’s reasoning
was erroneous. See State v. Perry, 292 Neb. 708, 874 N.W.2d
36 (2010). Notwithstanding the district court’s rationale, the
State argues that an exception to the warrant requirement was
present because the search was incident to an arrest that was
supported by probable cause. However, we need not consider
whether there was a proper search incident to an arrest because
we conclude that, given the district court’s factual finding, a
warrantless search was proper in this case for the reason that it
was within a different exception to the warrant requirement—
that is, it was conducted with consent.
[8-10] Warrantless searches and seizures are per se unreason-
able under the Fourth Amendment, subject to a few established
and well-delineated exceptions. State v. Schriner, 303 Neb.
476, 929 N.W.2d 514 (2019). The warrantless search excep-
tions Nebraska has recognized include: (1) searches undertaken
with consent, (2) searches under exigent circumstances, (3)
inventory searches, (4) searches of evidence in plain view, and
(5) searches incident to a valid arrest. State v. Degarmo, 305
Neb. 680, 942 N.W.2d 217 (2020). We have also recognized
that among the established exceptions to the warrant require-
ment is the automobile exception. State v. Lang, 305 Neb. 726,
942 N.W.2d 388 (2020).
[11] The district court in this case determined that “probable
cause existed in order to justify the search of [Saitta’s] glove.”
However, as Saitta recognizes, we have said that “probable
cause, standing alone, is not an exception that justifies the
search of a person without a warrant.” State v. Perry, 292 Neb.
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at 713, 874 N.W.2d at 41. See, also, City of Beatrice v. Meints,
289 Neb. 558, 567, 856 N.W.2d 410, 417 (2014) (“probable
cause, standing alone, is not an exception to the search warrant
requirement of the Fourth Amendment as applied to real prop-
erty”). Compare State v. Lang, 305 Neb. at 740, 942 N.W.2d at
400 (automobile exception applies “when a vehicle is readily
mobile and there is probable cause to believe that contraband
or evidence of a crime will be found in the vehicle”).
As noted above, the State acknowledges that “probable
cause to search Saitta’s glove, as articulated in the district
court’s written order, is insufficient to resolve whether a Fourth
Amendment violation occurred.” Brief of appellee at 20. The
State argues, however, that the “search incident to lawful
arrest” exception applies. Id. The State explains that for the
same reasons the officers had reasonable suspicion to con-
duct an investigatory stop of Saitta, they also had probable
cause to arrest Saitta “for a criminal offense, such as trespass-
ing, burglary, or theft, or an attempt to commit any of those
offenses.” Id. at 21. Although the officers eventually arrested
Saitta for possession of methamphetamine and did not have
probable cause related to that offense until the search of the
glove, the State maintains that probable cause for one of the
other asserted crimes justified the search as a search incident
to arrest.
The State’s argument regarding search incident to arrest is
problematic because, inter alia, although the officers’ observa-
tions were sufficient to provide reasonable suspicion to inves-
tigate possible criminal activity such as trespass or theft, the
search occurred early in the investigation and at a time when
the officers did not yet have probable cause to arrest Saitta for
those crimes. In this regard, we note that Buckley conceded at
the suppression hearing that he and his partner had not found
evidence that Saitta was trying to take metal from the building
and that even at the date of the suppression hearing, he did not
“actually know whether . . . Saitta was or was not attempting
to get metal from this particular building.”
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[12-16] We need not further consider the State’s argument
related to search incident to arrest because we determine that
a different exception to the warrant requirement applies in
this case—the exception for a search undertaken with consent.
One well-recognized exception to the warrant requirement
is a search undertaken with consent. State v. Schriner, 303
Neb. 476, 929 N.W.2d 514 (2019). Generally, to be effective
under the Fourth Amendment, consent to a search must be a
free and unconstrained choice, and not the product of a will
overborne. State v. Degarmo, 305 Neb. 680, 942 N.W.2d 217
(2020). Consent must be given voluntarily and not as a result
of duress or coercion, whether express, implied, physical, or
psychological. Id. The determination of whether the facts and
circumstances constitute a voluntary consent to a search, sat-
isfying the Fourth Amendment, is a question of law. State v.
Degarmo, supra. Whether consent to a search was voluntary
is to be determined from the totality of the circumstances sur-
rounding the giving of consent. Id.
In its order, the district court began its analysis by stating
with regard to the glove that “this is not a ‘seizure’ as char-
acterized by” Saitta. Instead, the court found that “Officer
Buckley simply asked [Saitta] for his glove and [Saitta] gave it
to him. There was no seizure at all.” This order includes find-
ings of fact that Buckley “simply asked” Saitta for the glove
and that Saitta “gave it to him.” Based on those facts, the court
made a conclusion of law that there was no Fourth Amendment
violation because there was no seizure.
On appeal, we review the findings of fact for clear error,
but we reach an independent legal conclusion as to whether
those facts trigger or violate Fourth Amendment protections.
See State v. Degarmo, supra. We determine the district court’s
fact findings in this case were not clearly erroneous. Contrary
to the district court’s analysis, to the effect that the import of
those facts was that there was no seizure, we conclude that
those factual findings support the legal conclusion that the
circumstances constituted a voluntary consent to the search of
the glove.
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STATE v. SAITTA
Cite as 306 Neb. 499
First, we review the fact findings for clear error. The court
found that Buckley “simply asked” for the glove. This finding
is relevant to our legal analysis of consent because it goes to
whether the officers employed duress or coercion to effect the
search of the glove. There was some conflict in the evidence
on this fact because although in direct testimony Buckley tes-
tified that he “asked” Saitta, on cross-examination, he agreed
to Saitta’s characterizations that he “directed” or “told” Saitta
to give him the glove. The court credited Buckley’s char-
acterization on direct examination over his agreement with
Saitta’s characterization on cross-examination. The court was
also able to view the video from Buckley’s body camera. From
our review of the video, we note that in the video, Buckley
appears to say to Saitta, “Let me see your glove.” Although
these words may be ambiguous as to whether it is a request
or a command, the court was able to judge Buckley’s tone of
voice and the circumstances and it found that Buckley “simply
asked” for the glove. After the district court viewed the video
and listened to the testimony, and following our review of the
record, we conclude that the finding of the district court was
not clearly erroneous.
The court also found that Saitta “gave” Buckley the glove.
This is also relevant to consent because it goes to whether
Saitta made a free and unconstrained choice or whether his will
was overborne and he merely acquiesced to duress or coercion.
There does not appear to be conflict in Buckley’s testimony
that Saitta gave him the glove. The video shows that Buckley
did not forcefully take the glove but that instead, almost imme-
diately after Buckley said, “Let me see your glove,” Saitta,
without hesitation or protest, handed the glove to Buckley. The
finding that Saitta “gave” the glove to Buckley was also not
clearly erroneous.
[17] From these fact findings and our review of the record,
we reach a legal conclusion that the search of the glove was
undertaken with consent. Buckley “simply asked” for the glove
and Saitta “gave” it to him. These facts show and the record
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STATE v. SAITTA
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supports that Buckley did not use coercion or duress when
he asked to see the glove, and Saitta almost immediately
handed the glove to Buckley without hesitation or protest,
showing that his will was not overborne and that he did not
merely acquiesce to duress or coercion. Although Saitta did
not verbally indicate his consent, we have held that consent
to search may be implied by action rather than words. See
State v. Modlin, 291 Neb. 660, 867 N.W.2d 609 (2015) (not-
ing that defendant allowed phlebotomist to draw his blood
without doing anything to manifest refusal). See, also, State
v. Tucker, 262 Neb. 940, 636 N.W.2d 853 (2001) (noting that
after request to search his home, defendant responded by step-
ping back and gesturing with his arms raised and his hands
outward and upward); State v. Juhl, 234 Neb. 33, 42, 449
N.W.2d 202, 209 (1989), disapproved on other grounds, State
v. Messersmith, 238 Neb. 924, 473 N.W.2d 83 (1991) (noting
that defendant’s right to be free from unreasonable search and
seizure was not violated when, in response to question from
police officer as to what he had in his jacket, the defendant
raised his right arm and said, “‘[C]heck’”). Saitta handed the
glove to Buckley upon request, and consent may be implied
from such action. We conclude that Buckley’s search of the
glove was undertaken with consent and that therefore, the court
did not err when, to the extent Saitta asserted an illegal search,
it overruled his motion.
CONCLUSION
Because the detention of Saitta was an investigatory stop
justified by reasonable suspicion and because the search of
the glove was undertaken with consent, we conclude that the
district court did not err when it overruled Saitta’s motion to
suppress the evidence obtained as a result of the seizure of his
person and the search of his glove. We therefore affirm Saitta’s
conviction and sentence.
Affirmed.