State v. Thomas ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/05/2021 09:08 AM CST
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. THOMAS
Cite as 308 Neb. 312
State of Nebraska, appellee, v.
Arius L. Thomas, appellant.
___ N.W.2d ___
Filed February 5, 2021. No. S-19-1163.
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. 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.
3. Constitutional Law: Search and Seizure. Both the Fourth Amendment
to the U.S. Constitution and article 1, § 7, of the Nebraska Constitution
guarantee against unreasonable searches and seizures.
4. Criminal Law: Search and Seizure: Appeal and Error. In determin-
ing whether a seizure was reasonable, an appellate court balances the
degree of the intrusion against the degree of objective certainty that the
person stopped is or has been engaged in criminal activity.
5. Police Officers and Sheriffs: Search and Seizure. There are three
distinct tiers of police-citizen encounters, each triggering a different
analysis of the balance that should be struck between the government’s
interests and the invasion of privacy interests which a search or sei-
zure entails.
6. Constitutional Law: Police Officers and Sheriffs: Search and Seizure.
The first tier of police-citizen encounters involves no restraint of the
liberty of the citizen involved, but, rather, the voluntary cooperation
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STATE v. THOMAS
Cite as 308 Neb. 312
of the citizen is elicited through noncoercive questioning. This type of
contact is outside the realm of Fourth Amendment protection.
7. Police Officers and Sheriffs: Investigative Stops: Weapons. The sec-
ond tier of police-citizen encounters, the investigative stop, is limited
to brief, nonintrusive detention during a frisk for weapons or prelimi-
nary questioning.
8. Constitutional Law: Criminal Law: Police Officers and Sheriffs:
Search and Seizure. A second-tier encounter is considered a “seizure”
sufficient to invoke Fourth Amendment safeguards; but because of its
less intrusive character, it requires only that the stopping officer have
specific and articulable facts sufficient to give rise to reasonable suspi-
cion that a person has committed or is committing a crime.
9. Police Officers and Sheriffs: Search and Seizure: Arrests. The third
tier of police-citizen encounters, arrests, is characterized by highly intru-
sive or lengthy search or detention.
10. Constitutional Law: Criminal 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.
11. Search and Seizure: Investigative Stops: Arrests. The line between a
second-tier encounter, or investigatory stop, and a third-tier encounter,
or de facto arrest, is sometimes difficult to draw, and it depends on all
the surrounding circumstances.
12. Police Officers and Sheriffs: Search and Seizure: Time. Several
circumstances are deemed relevant to the analysis of whether a seizure
is a second-tier or third-tier encounter, including (1) the law enforce-
ment purposes served by the detention, (2) the diligence with which law
enforcement pursues the investigation, (3) the scope and intrusiveness of
the detention, and (4) the duration of the detention.
13. Criminal Law: Police Officers and Sheriffs: Search and Seizure:
Investigative Stops: Arrests: Motor Vehicles. The fact that a deten-
tion may be considered investigative is not decisive on whether it is a
second-tier encounter. The police may not carry out a full search of a
person, or his or her vehicle, who is no more than suspected of criminal
activity, nor may the police attempt to verify their suspicions by means
that approach the circumstances of an arrest.
14. Police Officers and Sheriffs: Investigative Stops: Time. An investiga-
tive detention must be temporary and last no longer than is necessary
to effectuate the purpose of the stop, and the methods employed should
be the least intrusive means reasonably available to verify or dispel the
officer’s suspicion in a short period of time.
15. Investigative Stops: Arrests: Time. If unreasonable force is used or if
it lasts for an unreasonably long period of time, then an investigatory
detention may turn into a de facto arrest.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. THOMAS
Cite as 308 Neb. 312
16. Criminal Law: Police Officers and Sheriffs: Investigative Stops.
Whether a detention was reasonable under the circumstances depends
on a multitude of factors, including (1) the number of officers and
police vehicles involved; (2) the nature of the crime and whether there
is a reason to believe the suspect might be armed; (3) the strength of
the officers’ articulable, objective suspicions; (4) the erratic behavior of
or suspicious movements by the persons under observation; and (5) the
need for immediate action by the officers and lack of opportunity for
them to have made the stop in less threatening circumstances.
17. Police Officers and Sheriffs: Investigative Stops: Motor Vehicles:
Weapons. Where the facts available to a law enforcement officer would
warrant a person of reasonable caution in the belief that an occupant of
a vehicle is armed and dangerous and that the use of forceful techniques,
including blocking the vehicle and displaying firearms when ordering
the occupants out of the vehicle, are reasonably necessary to protect the
officer’s personal safety, the use of such techniques does not necessarily
transform a second-tier encounter into a third-tier encounter.
18. Probable Cause: Words and Phrases. Reasonable suspicion entails
some minimal level of objective justification for detention, something
more than an inchoate and unparticularized hunch, but less than the level
of suspicion required for probable cause.
19. 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.
20. ____: ____: ____. Information known to all of the police officers act-
ing in concert can be examined when determining whether the officer
initiating the stop had reasonable suspicion to justify a stop pursuant to
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
21. Criminal Law: Police Officers and Sheriffs: Investigative Stops:
Motor Vehicles: Probable Cause: Time. The passage of time since
the crime was committed is only a factor to consider when determining
whether officers’ stopping a vehicle pursuant to information in a police
bulletin had reasonable suspicion, based on specific and articulable
facts, to justify a second-tier encounter.
22. Police Officers and Sheriffs: Investigative Stops: Probable Cause:
Time. While the passage of time is a relevant factor to consider in
an analysis of whether officers had reasonable suspicion to support a
second-tier encounter, as particularity of the description increases, the
effects of delay decrease.
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. THOMAS
Cite as 308 Neb. 312
Thomas C. Riley, Douglas County Public Defender, and
Travis L. Wampler for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
The defendant challenges the district court’s denial of his
motion to suppress evidence found in his vehicle during a
felony traffic stop that was based upon law enforcement’s
belief that the vehicle matched the description in a police bul-
letin of a vehicle used in a shooting committed 3 days earlier.
The defendant argues that a police bulletin regarding a crime
completed 3 days prior and without a description of the suspect
was insufficient to justify the intrusion of the felony traffic
stop. We affirm.
BACKGROUND
Following a jury trial, Arius L. Thomas was convicted of
possession of a firearm by a prohibited person, a Class ID
felony; possession of a controlled substance, a Class IV felony;
and possession of marijuana, more than 1 ounce, a Class III
misdemeanor. Thomas was sentenced to 5 to 10 years’ impris-
onment on count 1, 2 years’ imprisonment on count 2, and
3 months’ imprisonment on count 3. These sentences were
ordered to run consecutively, and Thomas was given credit for
397 days served against count 1.
The convictions arise out of a stop of the vehicle Thomas
was driving on October 22, 2018, based upon information con-
tained in a police bulletin from a shots-fired incident 3 days ear-
lier near 25th and Maple Streets in Omaha, Nebraska. During
the investigation of the shots-fired incident, law enforcement
obtained a video of the suspect vehicle from a surveillance
camera located near the scene. The vehicle image captured
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STATE v. THOMAS
Cite as 308 Neb. 312
on the surveillance video was “dark gray in color with dam-
age to the rear driver’s side [and] possibly identified as a 2010
Mazda 3.” This information, together with a still shot of the
vehicle from the surveillance video and a reference image of a
2010 Mazda 3, was included in a police bulletin.
On October 22, 2018, a police sergeant observed a vehicle
parked in the area of 24th and Maple Streets that matched the
description of the vehicle involved in the shots-fired incident
on October 19. It was the same make, model, and color, and it
had the same distinct damage to the rear driver’s side as shown
in the photograph contained in the police bulletin. The police
sergeant notified the officers in the north Omaha gang unit of
the location of the suspect vehicle and requested assistance in
its surveillance. Five police officers, including Chad Frodyma
and Cortes Clark, reported to assist in the surveillance. A check
of the vehicle’s license plates revealed that the vehicle was
registered to Thomas.
After approximately 3 hours of observation by the officers,
an individual entered the vehicle. This person was later iden-
tified as Thomas. The officers continued surveillance of the
vehicle as it left the area. As the vehicle approached the inter-
section of 72d Street and Ames Avenue, Frodyma observed the
vehicle make what he thought to be an improper lane change,
moving from the right-turn lane to the left-turn lane over the
solid white line separating the two lanes. However, a traffic
stop was not immediately made due to officer safety concerns
based upon the suspicion that this vehicle had been involved in
a shots-fired incident and the occupant could be armed.
The officers continued following the vehicle until it pulled
into an apartment complex parking lot. At that point, the offi-
cers conducted what they described as a felony traffic stop.
They activiated the emergency lights on their vehicles and
exited them with their weapons drawn. The officers then com-
manded Thomas to put his hands out of the window and open
the door from the outside so he could exit the vehicle. Thomas
put his hands out of the window, but he refused to get out of
the vehicle.
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STATE v. THOMAS
Cite as 308 Neb. 312
Within seconds, officers approached the driver’s side of the
vehicle, weapons still drawn, and attempted to pull Thomas
out of the vehicle through the window. Thomas continued to
resist while officers were trying to grab his hands to remove
him from the vehicle. Frodyma could see Thomas pull his right
hand back into the vehicle and reach between his legs and
under the driver’s seat. Frodyma believed Thomas was possibly
reaching for a weapon, so he deployed his Taser on Thomas.
Thereafter, Thomas was removed from the vehicle, where he
was placed on the ground and handcuffed.
After Thomas was removed from the vehicle, officers
observed through the windshield and the driver’s side window
the butt of a handgun under the driver’s seat. Thomas was
searched, and $522 cash in small denominations was found on
his person. Based on the observation of the handgun, officers
conducted a search of the rest of the vehicle and located a
backpack in the back seat with 41 grams of marijuana, multiple
alprazolam pills, plastic baggies, and a digital scale.
Prior to trial, Thomas filed a motion to suppress the evi-
dence found on his person and in the vehicle, asserting that
“the arresting officers lacked probable cause and/or reasonable
suspicion to conduct a ‘felony traffic stop’ and illegally detain
[Thomas]; and further, the arresting officers conducted a war-
rantless search of [Thomas’] property and persona” and “all
evidence obtained as a result of this illegal traffic stop, deten-
tion, and search” should be suppressed.
At the suppression hearing, Frodyma testified to the facts
as previously set forth regarding the incident on October 22,
2018. Clark testified similarly, but stated he did not ­personally
see Thomas commit a traffic violation; his observations of
Thomas’ vehicle were obstructed at times by other vehicles.
After the hearing, the court overruled Thomas’ motion to
suppress. The court found that any inconsistencies in the offi-
cers’ testimonies regarding whether a traffic violation occurred
could be used at trial to challenge their credibility on the
matter. The court did not explicitly make findings of fact that
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STATE v. THOMAS
Cite as 308 Neb. 312
a traffic violation actually occurred, but generally noted that
“a traffic violation, no matter how minor, creates probable
cause to stop the driver of a vehicle.” Further, the court found
that, in considering the totality of the circumstances, based on
the information obtained from the surveillance video related
to the shots-fired incident, “the officers had probable cause to
conduct an investigative stop of [Thomas’] vehicle.”
At trial, Thomas renewed the motion to suppress. The State
offered substantially similar evidence regarding the events of
October 22, 2018, from the perspective of multiple officers.
The district court acknowledged that the motion to suppress
was heard on May 29, 2019, and that the order overruling the
motion was entered on August 2. It again overruled the motion,
but made no additional findings of fact.
ASSIGNMENT OF ERROR
Thomas assigns that the trial court erred in denying Thomas’
motion to suppress.
STANDARD 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. 1
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination. 2
[2] 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. 3
1
See State v. Cox, 307 Neb. 762, 950 N.W.2d 631 (2020).
2
See id.
3
State v. Hartzell, 304 Neb. 82, 933 N.W.2d 441 (2019).
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. THOMAS
Cite as 308 Neb. 312
ANALYSIS
[3] Thomas assigns that the trial court erred in ­overruling
his motion to suppress evidence that was allegedly obtained
as the fruit of an illegal seizure in violation of the Fourth
Amendment. Both the Fourth Amendment to the U.S.
Constitution and article 1, § 7, of the Nebraska Constitution
guarantee against unreasonable searches and seizures. 4
Thomas is challenging on appeal only the lawfulness of
the stop. He does not specifically challenge the justification
for the stop’s escalation after he resisted officers’ commands,
whether a weapon was in plain view after he was removed
from the vehicle, or whether the officers were justified in
searching the vehicle after seeing the weapon.
[4] In determining whether a seizure was reasonable, we
balance the degree of the intrusion against the degree of objec-
tive certainty that the person stopped is or has been engaged
in criminal activity. 5 We hold that the officers who stopped
Thomas employed a reasonable threat of force in light of a
reasonable belief that the driver of the suspect vehicle could be
armed or dangerous. Accordingly, and in light of all the other
surrounding circumstances, the initial seizure was a tier-two
encounter. Only reasonable suspicion was required to justify
the seizure, and we conclude that the officers had a particular-
ized and objective basis for suspecting Thomas of breaking
the law. 6 Therefore, the district court did not err in denying
Thomas’ motion to suppress.
Initial Detention
[5] There are three distinct tiers of police-citizen encoun-
ters, each triggering a different analysis of the balance that
4
State v. Briggs, ante p. 84, ___ N.W.2d ___ (2021).
5
See State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993).
6
See Heien v. North Carolina, 574 U.S. 54, 135 S. Ct. 530, 190 L. Ed. 2d
475 (2014).
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STATE v. THOMAS
Cite as 308 Neb. 312
should be struck between the government’s interests and the
invasion of privacy interests which a search or seizure entails. 7
[6] 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 non­
coercive questioning. 8 This type of contact is outside the realm
of Fourth Amendment protection. 9
[7,8] The second tier, the investigative stop, is limited to
brief, nonintrusive detention during a frisk for weapons or
preliminary questioning. 10 It is an intermediate response. 11 A
second-tier encounter is considered a “seizure” sufficient to
invoke Fourth Amendment safeguards; but because of its less
intrusive character, it requires only that the stopping officer
have specific and articulable facts sufficient to give rise to rea-
sonable suspicion that a person has committed or is committing
a crime. 12
[9,10] The third tier of police-citizen encounters, arrests, is
characterized by highly intrusive or lengthy search or deten-
tion. 13 The Fourth Amendment requires that an arrest be justi-
fied by probable cause to believe that a person has committed
or is committing a crime. 14
[11,12] The line between a second-tier encounter, or inves-
tigatory stop, and a third-tier encounter, or de facto arrest, is
sometimes difficult to draw, and it depends on all the surround-
ing circumstances. In distinguishing a second-tier encounter
from a third-tier encounter, “‘we must not adhere to “rigid
7
See State v. Van Ackeren, supra note 5 (quoting United States v. Armstrong,
722 F.2d 681 (11th Cir. 1984)).
8
Van Ackeren, supra note 5.
9
See id.
10
Id.
11
See Van Ackeren, supra note 5.
12
Id. (quoting Armstrong, supra note 7).
13
Id.
14
Id.
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STATE v. THOMAS
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time limitations” or “bright line rules,” . . . but must use
“common sense and ordinary human experience.”’” 15 Several
circumstances are deemed relevant to the analysis of whether
a seizure is a second-tier or third-tier encounter, including (1)
the law enforcement purposes served by the detention, (2) the
diligence with which law enforcement pursues the investiga-
tion, (3) the scope and intrusiveness of the detention, and (4)
the duration of the detention. 16
[13,14] The fact that a detention may be considered investi-
gative is not decisive on whether it is a second-tier encounter.
The police may not carry out a full search of a person, or his or
her vehicle, who is no more than suspected of criminal activ-
ity, nor may the police attempt to verify their suspicions by
means that approach the circumstances of an arrest. 17 What is
permitted for police to verify their suspicions will vary based
on the particular facts and circumstances; but, certainly, “‘an
investigative detention must be temporary and last no longer
than is necessary to effectuate the purpose of the stop’” and
the “‘methods employed should be the least intrusive means
reasonably available to verify or dispel the officer’s suspicion
in a short period of time.’” 18
The police sergeant and two officers, Frodyma and Clark,
testified that they employed felony traffic stop measures in
stopping Thomas. These involve staying in a position of safety
away from the suspect vehicle with weapons drawn and ver-
bally ordering the occupants to exit the suspect vehicle with
their hands up and to walk backward toward the officers. The
police do this as a precautionary measure when there is reason
to believe that a person in a vehicle is armed or dangerous.
The U.S. Supreme Court has not yet specifically addressed
such felony traffic stop procedures. But, in the seminal
15
Van Ackeren, supra note 5. Accord United States v. Sharpe, 470 U.S. 675,
105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985).
16
See Van Ackeren, supra note 5.
17
See id.
18
Id. at 487, 495 N.W.2d at 637.
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STATE v. THOMAS
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second-tier case of Terry v. Ohio, 19 there was some use of
force. The officer grabbed the defendant, spun him around,
and patted him down, believing he was involved in criminal
activity and possibly armed. Despite this use of force, the U.S.
Supreme Court held that the intensity and scope of the sei-
zure was not that of an arrest, but was what we now describe
as a second-tier encounter. The Court held that regardless of
whether an officer has reasonable cause to arrest an individual
for a crime, where a reasonable officer would be warranted in
the belief that the safety of the officer or others is in danger, a
protective search and seizure for weapons is reasonable so long
as it is confined in scope to an intrusion reasonably designed
to achieve its purpose, or “strictly circumscribed by the exigen-
cies which justify its initiation.” 20
While not discussing the type of felony traffic stop pro-
cedures here presented, we have similarly found seizures to
be second-tier encounters despite intrusions going somewhat
beyond a typical investigatory stop, when the facts justi-
fied a reasonable belief that an officer or public safety was
in danger. 21 In State v. Wells, 22 we explained that the use of
handcuffs does not transform a tier-two encounter into a tier-
three encounter when using handcuffs is reasonably necessary
to protect officer safety during an investigative stop, but that
using handcuffs will transform the tier-two encounter into tier-
three encounter when the facts do not justify a belief that the
suspect may be dangerous.
[15,16] We said that, generally, if unreasonable force is used
or if it lasts for an unreasonably long period of time, then
an investigatory detention may turn into a de facto arrest. 23
19
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
20
Id., 392 U.S. at 26.
21
See, State v. Shiffermiller, 302 Neb. 245, 922 N.W.2d 763 (2019); State v.
Wells, 290 Neb. 186, 859 N.W.2d 316 (2015). See, also, State v. Rogers,
297 Neb. 265, 899 N.W.2d 626 (2017).
22
State v. Wells, supra note 21.
23
Id.
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STATE v. THOMAS
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Whether a detention was reasonable under the circumstances
depends on a multitude of factors, including (1) the number
of officers and police vehicles involved; (2) the nature of the
crime and whether there is a reason to believe the suspect
might be armed; (3) the strength of the officers’ articulable,
objective suspicions; (4) the erratic behavior of or suspicious
movements by the persons under observation; and (5) the need
for immediate action by the officers and lack of opportunity
for them to have made the stop in less threatening circum-
stances. 24 In Wells, noting the nature of the suspected crime of
narcotics trafficking and that the defendant was digging in his
pocket and concealing his right arm, we found that the officers’
decision to gain control of the defendant’s arm and handcuff
him for a short time while conducting the investigation was a
reasonable precaution and did not escalate the encounter to a
tier three.
Similarly, in State v. Shiffermiller, 25 we held that the use of
handcuffs and a 30-to-40 minute investigation of a reported
assault did not amount to third-tier encounter because this ini-
tial detention was not unreasonable, highly intrusive, or exces-
sive in length. In Shiffermiller, an officer responded to a report
that two individuals were fighting. The officer who arrived on
scene observed the defendant, with a torn shirt and blood on
his face, arm, and knuckles, walking toward a parked car with
its trunk open. When the officer approached the defendant and
asked about the reported altercation, the defendant appeared to
be angry, agitated, and under the influence of drugs or alcohol.
Three more officers then arrived on scene. When the defend­
ant stated he wanted to leave, the officers told him he was
not free to leave until the situation was investigated. Due to
the defendant’s being agitated, uncooperative, and appearing
to be under the influence of drugs or alcohol, officers placed
the defendant in handcuffs and seated him on the curb while
24
Id. See, also, United States v. Jones, 759 F.2d 633, 639-40 (8th Cir. 1985).
25
Shiffermiller, supra note 21.
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they searched for the other party involved in the reported
fight. We held that the officers did not exceed the scope of a
second-tier encounter. While the officers may not have had any
indication that the defendant was armed, the circumstances jus-
tified the use of some sort of control to ensure that the defend­
ant did not attempt to leave during the investigation and to
ensure that he was not a danger to himself or others throughout
the investigation. 26
Other jurisdictions have more directly addressed procedures
involving felony stops or felony traffic stops and have indi-
cated that the use of reasonable force or threat of force does
not transform a second-tier encounter into a third-tier encoun-
ter so long as the facts justify a reasonable belief that the sus-
pect may be armed or dangerous. 27 These jurisdictions distin-
guish felony stops from third-tier encounters by acknowledging
that felony stop procedures are used when the circumstances
warrant such measures in order for officers to safely conduct a
second-tier stop. 28
The 10th Circuit Court of Appeals has analyzed on multiple
occasions when forceful techniques used by police officers
transform a second-tier encounter into a third-tier encoun­
ter, and its comparisons are helpful in this case. In U.S. v.
Shareef, 29 the court held that a display of firearms, remov-
ing occupants from three stopped vehicles, and frisking and
handcuffing them did not transform the second-tier encounter
into a third-tier enounter because of the officers’ reasonable
belief that one of the motorists was armed and dangerous.
Similarly, in U.S. v. Perdue, 30 the court held that the fact that
26
Id.
27
See, e.g., Maresca v. Bernalillo County, 804 F.3d 1301 (10th Cir. 2015);
U.S. v. Gomez, 623 F.3d 265 (5th Cir. 2010); Smoak v. Hall, 460 F.3d 768
(6th Cir. 2006).
28
See, Maresca, supra note 27; Smoak, supra note 27.
29
U.S. v. Shareef, 100 F.3d 1491 (10th Cir. 1996).
30
U.S. v. Perdue, 8 F.3d 1455 (10th Cir. 1993).
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two officers removed two occupants from a vehicle at gunpoint
in a remote area and made them lie on the ground did not
transform the second-tier encounter into a third-tier encoun-
ter, where officers reasonably believed occupants were armed
and dangerous.
In contrast, in Maresca v. Bernalillo County, 31 the 10th
Circuit Court of Appeals concluded that under the circum-
stances, the felony stop procedures were unreasonable and
therefore transformed a second-tier encounter into a third-tier
encounter. 32 Two officers driving separate cars had pulled the
driver and his family over and, with the assistance of more
officers called to the scene, conducted a felony traffic stop
when the officer believed that the vehicle was stolen. But there
was no information regarding the theft that indicated any weap-
ons were involved. The stop was along a highway in broad
daylight, and the family fully cooperated and complied with
every directive. The court determined that the actions the offi-
cers took—ordering the family out of their truck at gunpoint,
requiring them to lift their clothes for the officers to check their
waistbands for weapons, forcing them to lie face down on the
highway, and handcuffing four of them and locking them in
separate patrol cars—effected an arrest because the deputies
had no objectively reasonable basis to believe that such force-
ful measures were necessary for them to conduct the investiga-
tive detention. 33
[17] We hold that where the facts available to a law enforce-
ment officer would warrant a person of reasonable caution in
the belief that an occupant of a vehicle is armed and danger-
ous and that the use of forceful techniques, including blocking
the vehicle and displaying firearms when ordering the occu-
pants out of the vehicle, are reasonably necessary to protect
the officer’s personal safety, the use of such techniques does
31
Maresca, supra note 27.
32
See, also, U.S. v. Melendez-Garcia, 28 F.3d 1046 (10th Cir. 1994).
33
Maresca, supra note 27.
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not necessarily transform a second-tier encounter into a third-
tier encounter. Such techniques, designated here as a “felony
traffic stop,” may under the circumstances be the least intru-
sive means reasonably available to verify or dispel the offi-
cer’s suspicion.
That said, the tier of the encounter is determined by all of
the circumstances, including the law enforcement purposes
served by the detention, the diligence with which law enforce-
ment pursues the investigation, the scope and intrusiveness
of the detention, and the duration of the detention. 34 And, in
analyzing whether a threat or use of force transforms a tier-two
encounter into a tier-three encounter, we consider the number
of officers and police vehicles involved; the nature of the crime
and whether there is a reason to believe the suspect might be
armed; the strength of the officers’ articulable, objective suspi-
cions; the erratic behavior of or suspicious movements by the
persons under observation; and the need for immediate action
by the officers and lack of opportunity for them to have made
the stop in less threatening circumstances. 35
In this case, the officers looked for a vehicle matching a
description in the police bulletin of the vehicle involved in
the crime and observed one such vehicle near the scene of the
crime. After Thomas drove off in the vehicle, officers followed
it until it could be stopped safely. The crime under investiga-
tion was a shots-fired incident 3 days earlier, and the weapon
used during the incident had not been recovered. To approach
the vehicle safely to conduct their investigation of the crime,
the officers blocked Thomas’ vehicle in, stayed in a position
of safety near their vehicles with weapons drawn, and com-
manded Thomas to put his hands out the window of his vehi-
cle, open the door from the outside, and exit the vehicle. We
find that the purpose served by the detention was a temporary
seizure for investigatory purposes and that law enforcement
34
See Van Ackeren, supra note 5.
35
See Wells, supra note 21. See, also, Jones, supra note 24.
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pursued its investigation diligently. Further, the scope and
intrusiveness of the investigatory detention was justified by the
officers’ reasonable belief that the driver might be armed, and
it did not exceed the scope circumscribed by that exigency. The
seizure was a tier-two encounter.
Reasonable Suspicion
[18,19] Having determined that the felony traffic stop in this
case was a tier-two police-citizen encounter, we now examine
whether, under the totality of the circumstances, the officers
had reasonable suspicion. Reasonable suspicion entails some
minimal level of objective justification for detention, some-
thing more than an inchoate and unparticularized hunch, but
less than the level of suspicion required for probable cause. 36
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. 37
The totality of the circumstances analysis is based on an objec-
tive standard. 38
[20] At the time Thomas’ vehicle was put under surveillance,
officers were aware of the information in the police bulletin
that a vehicle matching the make, model, and distinctive dam-
age to the rear driver’s side of Thomas’ vehicle was involved
in the crime 3 days before. The fact that the officers had no
personal knowledge regarding the specific circumstances of the
shots-fired incident is irrelevant, because this court has adopted
the collective knowledge doctrine. “‘[I]nformation known to
all of the police officers acting in concert can be examined
when determining whether the officer initiating the stop had
reasonable suspicion to justify a Terry stop.’” 39
Thomas concedes that reasonable suspicion may be based
on a vehicle description alone when in relation to a crime
36
State v. Montoya, 305 Neb. 581, 941 N.W.2d 474 (2020).
37
Id.
38
See Terry, supra note 19.
39
State v. Wollam, 280 Neb. 43, 57, 783 N.W.2d 612, 624 (2010).
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that is afoot. Nevertheless, Thomas argues that the 3-day span
of time since the incident made the vehicle description, espe-
cially when it lacked a description of the suspect, insufficient
to establish reasonable suspicion for the seizure in this case.
We disagree.
In U.S. v. Marxen, 40 the Sixth Circuit Court of Appeals
rejected a similar argument that since 11 days had passed
since the robbery, “any reasonable suspicion that the officers
possessed . . . had evaporated.” In Marxen, two individuals,
described by witnesses, committed an armed robbery of a con-
venience store. Witnesses also described the vehicle the rob-
bers were driving, along with the license plate number of the
vehicle. Based on the license plate number, police determined
the defendant owned the vehicle described, but the defendant
did not match the description of either robber. The defendant
was placed under surveillance and did nothing suspicious nor
did he meet with any individuals fitting the description of the
robbers during this surveillance. Eventually—11 days after the
robbery and 6 days after the defendant was placed under sur-
veillance—police stopped the defendant by blocking his vehi-
cle with several police cars. Even though the defendant had not
committed any traffic violations, the defendant was removed
from the driver’s seat of the vehicle and placed in handcuffs
while the officers conducted their investigation.
The trial court in Marxen had granted the defendant’s
motion to suppress evidence found during the course of the
stop, on the grounds that the police lacked reasonable sus-
picion. But the Sixth Circuit Court of Appeals reversed. The
court determined that the passage of time did not negate the
justification for the stop, but is only a factor to consider when
determining whether the officers had reasonable suspicion,
based on specific and articulable facts, that the defendant’s
vehicle had been involved in criminal activity. The court
reasoned that because the police officers were reasonably
certain of the make, model, and general color of the vehicle
40
U.S. v. Marxen, 410 F.3d 326, 330 (6th Cir. 2005).
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used in the robbery; the description matched the defendant’s
vehicle; and the license plate number of the getaway vehicle
matched the license number of the defendant’s vehicle, under
the totality of the circumstances, the officers had reasonable
suspicion to believe that the defendant’s vehicle was involved
in the robbery.
In reversing the suppression of the evidence by the trial
court in Marxen, the Sixth Circuit Court of Appeals concluded
that police are allowed to conduct investigatory stops for “com-
pleted felonies” if there is reasonable suspicion to believe that
the vehicle was involved in criminal activity. 41 This investiga-
tory stop is allowed “even if officers do not have reasonable
suspicion to believe that the owner and/or driver of the vehicle
was directly involved in the criminal activity.” 42
[21,22] We agree that the passage of time since the crime
was committed is only a factor to consider when determining
whether officers’ stopping a vehicle pursuant to information in
a police bulletin had reasonable suspicion, based on specific
and articulable facts, to justify a second-tier encounter. While
the 3-day passage of time in this case is a relevant factor to
consider in determining whether the officers had reasonable
suspicion to stop Thomas, “[a]s particularity of the description
increases, the effects of delay decrease.” 43
A generic description of a dark gray 2010 Mazda 3 may not
have been sufficient to conduct a felony traffic stop of every
vehicle in Omaha matching that description, but we need not
determine that here based on these facts. Here, the still shot
of the suspect vehicle from the surveillance video showed
distinctive damage to the rear driver’s side. This provided a
more exact detail for the officers to look for in locating a par-
ticular vehicle regardless of the time that had passed since the
shots-fired incident. The fact that the vehicle so specifically
41
Id. at 332.
42
Id.
43
See United States v. Jackson, 700 Fed. Appx. 411, 416 (6th Cir. 2017).
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matched the photograph and description in the police bulletin,
along with the fact that it was initially located within a block
of where the shots-fired incident occurred, provided reason-
able suspicion to conduct an investigatory stop of the vehicle.
Under these circumstances, a particular description of the
suspect who committed the prior shooting was not required to
justify the tier-two stop.
Since the officers had reasonable suspicion to conduct an
investigatory stop of Thomas’ vehicle based on the police bul-
letin alone, we need not determine whether the encounter was
justified by the observation of a traffic violation.
CONCLUSION
For the foregoing reasons, the judgment of the district court
is affirmed.
Affirmed.