State v. Thomas ( 2021 )


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    www.nebraska.gov/apps-courts-epub/
    04/16/2021 09:08 AM CDT
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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
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    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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    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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    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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    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
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    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
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    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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    STATE v. THOMAS
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    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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    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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    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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    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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    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.