State v. Thompson ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/21/2021 08:12 AM CDT
- 135 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 135State of Nebraska, appellee, v.
Ronda K. Thompson, appellant.
___ N.W.2d ___
Filed September 14, 2021. No. A-20-722.
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. Convictions: Evidence: Appeal and Error. Regardless of whether
the evidence is direct, circumstantial, or a combination thereof, and
regardless of whether the issue is labeled as a failure to direct a verdict,
insufficiency of the evidence, or failure to prove a prima facie case, the
standard is the same: In reviewing a criminal conviction, an appellate
court does not resolve conflicts in the evidence, pass on the credibility
of witnesses, or reweigh the evidence; such matters are for the finder
of fact, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most favor-
ably to the State, is sufficient to support the conviction.
3. Constitutional Law: Search and Seizure. Both the Fourth Amendment
to the U.S. Constitution and article I, § 7, of the Nebraska Constitution
guarantee against unreasonable searches and seizures.
4. Constitutional Law: Search and Seizure: Investigative Stops: Motor
Vehicles. A traffic stop is a seizure for Fourth Amendment purposes, and
therefore is accorded Fourth Amendment protections.
5. Investigative Stops: Motor Vehicles: Probable Cause. A traffic viola-
tion, no matter how minor, creates probable cause to stop the driver of
a vehicle.
6. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs.
Once a vehicle is lawfully stopped, a law enforcement officer may
- 136 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 135conduct an investigation reasonably related in scope to the circum-
stances that justified the traffic stop. This investigation may include
asking the driver for an operator’s license and registration, requesting
that the driver sit in the patrol car, and asking the driver about the
purpose and destination of his or her travel. Also, the officer may run a
computer check to determine whether the vehicle involved in the stop
has been stolen and whether there are any outstanding warrants for any
of its occupants.
7. Investigative Stops: Motor Vehicles: Time. A lawful traffic stop can
become unlawful if it is prolonged beyond the time reasonably required
to complete the mission of the stop, such as issuing a warning ticket.
8. ____: ____: ____. When the mission of an investigative stop is address-
ing a suspected traffic violation, the stop may last no longer than is nec-
essary to effectuate that purpose and authority for the seizure thus ends
when tasks tied to the traffic infraction are, or reasonably should have
been, completed.
9. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs.
An officer’s inquiries into matters unrelated to the justification for the
traffic stop do not cause the stop to become unlawful, so long as those
inquiries do not measurably extend the duration of the stop.
10. Constitutional Law: Police Officers and Sheriffs: Search and
Seizure: Arrests. A tier-one police-citizen encounter involves the vol-
untary cooperation of the citizen elicited through noncoercive question-
ing and does not involve any restraint of liberty of the citizen. Because
tier-one encounters do not rise to the level of a seizure, they are outside
the realm of Fourth Amendment protection. A tier-two police-citizen
encounter involves a brief, nonintrusive detention during a frisk for
weapons or preliminary questioning. A tier-three police-citizen encoun-
ter constitutes an arrest, which involves a highly intrusive or lengthy
search or detention. Tier-two and tier-three police-citizen encounters are
seizures sufficient to invoke the protections of the Fourth Amendment to
the U.S. Constitution.
11. Constitutional Law: Search and Seizure. A seizure in the Fourth
Amendment context occurs only if, in view of all the circumstances sur-
rounding the incident, a reasonable person would have believed that he
or she was not free to leave.
12. ____: ____. In addition to situations where an officer directly tells a sus-
pect 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.
- 137 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 13513. ____: ____. A traffic stop may de-escalate from a seizure to a voluntary
encounter when the circumstances become such that a reasonable person
would feel free to leave or otherwise terminate the encounter with law
enforcement.
14. Constitutional Law: Search and Seizure: Evidence: Proof. When
the State asserts that evidence obtained in a search following a Fourth
Amendment violation is admissible due to the defendant’s consent to the
search, it must prove two things: (1) The consent was voluntary, and (2)
the consent was sufficiently attenuated from the violation to be purged
of the primary taint.
15. Constitutional Law: Search and Seizure. For the consent to be atten­
uated from the Fourth Amendment violation, there must be a sufficient
break in the causal connection between the illegal conduct and the con-
sent to search.
16. Constitutional Law: Search and Seizure: Evidence. A court must con-
sider the evidence’s admissibility in the light of the Fourth Amendment’s
distinct policies and interests, even if a consent to search is voluntary.
17. 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.
18. Search and Seizure: Duress. For consent to be voluntarily given, it
must be a free and unconstrained choice, not the product of a will over-
borne, and it cannot be given as the result of duress or coercion, whether
express, implied, physical, or psychological.
19. ____: ____. In determining whether consent was coerced, account must
be taken of subtly coercive police questions, as well as the possibly vul-
nerable subjective state of the person who consents.
20. Search and Seizure. Mere submission to authority is insufficient to
establish consent to a search.
21. ____. Although the fact that an individual is in police custody is an
important consideration in determining the voluntariness of the consent
to search, such factor, standing alone, does not invalidate the consent to
search as long as the consent was otherwise voluntarily given.
22. ____. The determination of whether consent to a search was freely and
voluntarily given is based on the totality of the circumstances.
23. Constitutional Law: Search and Seizure: Evidence: Time. In deter-
mining whether the causal chain leading to consent is sufficiently atten-
uated from a Fourth Amendment violation to allow for the admission
of the evidence, a court considers three relevant factors: (1) the time
elapsed between the constitutional violation and the acquisition of the
evidence (temporal proximity), (2) the presence of intervening circum-
stances, and (3) the purpose and flagrancy of the official misconduct.
- 138 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 13524. Search and Seizure: Police Officers and Sheriffs. Consent to search
given in very close temporal proximity to the official illegality is often
a mere submission or resignation to police authority.
25. Search and Seizure: Evidence. If only a short period of time has
passed, a court is more likely to consider the consent to search as a poi-
sonous fruit of the illegal act.
26. Evidence: Words and Phrases. Intervening circumstances are interven-
ing events of significance that render inapplicable the deterrence and
judicial integrity purposes which justify excluding tainted evidence.
27. Constitutional Law: Search and Seizure: Police Officers and
Sheriffs. In the context of consent to search, an officer’s act of inform-
ing a suspect of his or her right to refuse consent may be sufficient to
break the causal chain between the Fourth Amendment violation and the
suspect’s consent.
28. ____: ____: ____. Absent any other intervening circumstance, an offi-
cer’s advisement, given shortly after a Fourth Amendment violation, that
a suspect may refuse consent to a search does not weigh against exclu-
sion, particularly when the other factors strongly favor exclusion.
29. Search and Seizure: Evidence: Police Officers and Sheriffs. The
purpose and flagrancy of the official misconduct is the most important
attenuation factor.
30. Search and Seizure: Police Officers and Sheriffs. Purposeful and
flagrant misconduct exists when (1) the impropriety of the official’s
misconduct was obvious or the official knew, at the time, that his or
her conduct was likely unconstitutional but engaged in it nevertheless
and (2) the misconduct was investigatory in design and purpose and
executed in the hope that something might turn up.
31. ____: ____. Courts usually do not deem police misconduct as flagrant
unless the illegal conduct was engaged in for the purpose of obtain-
ing consent or the police misconduct was calculated to cause surprise
or fear.
32. Criminal Law: Evidence: New Trial: Appeal and Error. Upon find-
ing reversible error in a criminal trial, an appellate court must determine
whether the total evidence admitted by the district court, erroneously or
not, was sufficient to sustain a guilty verdict.
33. Evidence: New Trial: Double Jeopardy: Appeal and Error. If evi-
dence is not sufficient to sustain a verdict after an appellate court finds
reversible error, then double jeopardy forbids a remand for a new trial.
34. Criminal Law: Intent: Words and Phrases. In the context of a
criminal statute such as Neb. Rev. Stat. § 28-416(3) (Supp. 2017),
“intentionally” means willfully or purposely, and not accidentally or
involuntarily.
- 139 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 13535. Words and Phrases. “Knowingly” means “willfully” as distinguished
from “accidentally or involuntarily.” In other words, to commit an act
knowingly, a defendant must be aware of what he or she is doing.
36. Controlled Substances. A person possesses a controlled substance
when he or she knows of the nature or character of the substance and of
its presence and has dominion or control over it.
Appeal from the District Court for Gage County: Ricky A.
Schreiner, Judge. Reversed and remanded for a new trial.
Lee Timan, of Nelson, Clark & Timan, P.C., for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
Pirtle, Chief Judge, and Moore and Bishop, Judges.
Bishop, Judge.
I. INTRODUCTION
Following a stipulated bench trial in the Gage County
District Court, Ronda K. Thompson was convicted of posses-
sion of methamphetamine, for which she was sentenced to 24
months’ probation. On appeal, Thompson challenges the denial
of her motion to suppress related to a traffic stop, the admission
of evidence from that traffic stop over her objection at trial,
and the sufficiency of the evidence supporting her conviction.
We conclude the district court erred in overruling Thompson’s
motion to suppress and admitting the evidence derived from
the traffic stop. Accordingly, we reverse Thompson’s convic-
tion and remand the cause for a new trial.
II. BACKGROUND
1. Facts Related to Traffic Stop
On September 2, 2019, at around 10 a.m., Officer Derrick
Hosick of the Beatrice Police Department was on patrol in
Beatrice, Nebraska. He observed a vehicle fail to stop at a
stop sign and initiated a traffic stop. Thompson was the driver
of the vehicle and its sole occupant. She was traveling with
- 140 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 135her dog. As Officer Hosick exited his cruiser and approached
Thompson’s vehicle, he switched on his body camera.
The body camera footage shows Officer Hosick approach
the driver’s-side door of Thompson’s vehicle. Thompson’s
window was rolled down. Officer Hosick advised Thompson
of the nature of the stop and asked for her driver’s license
and vehicle registration. After handing him her documents,
Thompson explained that she was aware her license plates had
expired. Officer Hosick then returned to his cruiser to conduct
a records check and print out the citation, having determined to
give a warning for Thompson’s failure to stop and a citation for
the expired registration. According to the footage, the forego-
ing took approximately 10 minutes.
At about the 10-minute mark in the recording, Officer Hosick
left his cruiser and again approached Thompson’s vehicle on
the driver’s side. The driver’s-side door was ajar, and Officer
Hosick opened the door further to speak with Thompson, step-
ping between the open door and Thompson, who remained
in the driver’s seat. He prepared the citation standing next to
Thompson’s vehicle while reviewing the information in her
documents. He explained that he decided to issue a formal
citation for the expired registration and give her a verbal warn-
ing regarding the failure to stop. Officer Hosick continued to
explain the options available to Thompson in handling that
citation. Thompson then held the signed citation out for Officer
Hosick to take.
As Officer Hosick retrieved the signed citation, he said to
Thompson, “Okay, I’ll get you your stuff back so you can get
out of here.” While putting Thompson’s copy of the citation
together with her documents still in his possession, he asked
Thompson, “Nothing illegal in the car?” Thompson immedi-
ately answered, “No.” Officer Hosick followed up by asking,
“Nothing that a drug dog would indicate on or anything like
that?” Thompson again answered, “No.” Officer Hosick then
handed Thompson her documents and her copy of the citation.
At this time, he was still positioned within the threshold of
- 141 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 135the open driver’s-side door of Thompson’s vehicle. As he was
handing Thompson her documents, he asked her, “Do you have
any problems if I look in your car to make sure there’s noth-
ing illegal in the car?” Thompson replied, “No, go ahead. Help
yourself.” Officer Hosick then said, “Would you want to hold
on to the pup for me?” Thompson indicated that she told her
dog she had done a good job of not barking. Thompson then
asked, “You want us to get out or anything?” Officer Hosick
responded, “Would you please,” and he then turned and walked
back toward his cruiser, but stopped short and turned around as
Thompson began to exit her vehicle.
Thompson directed her dog to stay “on the green,” and
then she unlocked the doors to her vehicle. Standing next to
Thompson, Officer Hosick asked, “Do you have anything in
your pockets or anything like that?” Thompson answered,
“No.” Officer Hosick then asked her, “Would you turn out your
pockets for me?” Thompson immediately proceeded to do so.
Thompson pulled a small plastic baggie out of her pocket
and, upon seeing it, declared, “That is so not mine.” The bag-
gie had a crystalline residue inside, and upon further question-
ing from Officer Hosick, Thompson stated that she had put an
antihistamine tablet in the baggie “to dissolve it.” She further
explained that she had “picked up the baggie from somewhere
else,” describing that she had picked it up “out of the trash, . . .
boxes, dumpster, whatever.”
After taking the baggie from Thompson, Officer Hosick
called a female officer to the scene to conduct a more thor-
ough search of Thompson’s person. After the female officer
arrived and began to search Thompson, Officer Hosick con-
ducted a search of Thompson’s vehicle. No further contraband
was found during these searches of Thompson’s person and
her vehicle. Officer Hosick thereafter conducted a field test
of the residue in the baggie, and the residue tested positive
for methamphetamine. He then placed Thompson under arrest.
Later, as he was preparing to transport Thompson to jail,
Officer Hosick asked her if she had any other contraband on
- 142 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 135her person. In response, she produced a red straw with a small
amount of white residue inside of it. The baggie and straw
were subsequently sent to the Nebraska State Patrol Crime
Laboratory, and the baggie tested positive for methamphet-
amine after laboratory analysis. No analysis was conducted on
the straw.
2. Procedural History
Thompson was charged with possession of a controlled sub-
stance, methamphetamine. On December 28, 2019, she filed
a motion to suppress “any and all physical evidence obtained
as a result from the law enforcement search” of her person.
She alleged the traffic stop extended “beyond that which was
necessary for Officer Hosick to complete his investigation
into the No Valid Registration issue” and that her continued
detention was not supported by probable cause or reasonable
suspicion, all in violation of the Nebraska Constitution and
the 4th and 14th Amendments to the U.S. Constitution. There
was a hearing on Thompson’s motion, and on March 24, 2020,
the district court issued an order overruling the motion to sup-
press. The court concluded that “Officer Hosick’s request to
search [Thompson’s] person at the conclusion of the traffic
stop was not an unreasonable search or seizure, because [she]
knowingly, voluntarily and intelligently consented to a search
of her person.”
The district court held a stipulated bench trial submitted on
stipulated facts. Thompson objected to the admission of the
evidence acquired from the traffic stop, and the court overruled
the objection. The court found Thompson guilty and sentenced
her to 24 months’ probation. Thompson now appeals.
III. ASSIGNMENTS OF ERROR
On appeal, Thompson claims the district court erred in
overruling her motion to suppress and overruling her objec-
tion to the admission of evidence presented by the State.
She also claims the evidence was insufficient to support her
conviction.
- 143 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 135IV. 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,
we apply a two-part standard of review. State v. Shiffermiller,
302 Neb. 245, 922 N.W.2d 763 (2019). Regarding historical
facts, we review the trial court’s findings for clear error. Id.But whether those facts trigger or violate Fourth Amendment
protections is a question of law that we review indepen-
dently of the trial court’s determination. State v. Shiffermiller,
supra.[2] Regardless of whether the evidence is direct, circumstan-
tial, or a combination thereof, and regardless of whether the
issue is labeled as a failure to direct a verdict, insufficiency of
the evidence, or failure to prove a prima facie case, the stan-
dard is the same: In reviewing a criminal conviction, an appel-
late court does not resolve conflicts in the evidence, pass on
the credibility of witnesses, or reweigh the evidence; such mat-
ters are for the finder of fact, and a conviction will be affirmed,
in the absence of prejudicial error, if the evidence admitted at
trial, viewed and construed most favorably to the State, is suf-
ficient to support the conviction. State v. Price, 306 Neb. 38,
944 N.W.2d 279 (2020).
V. ANALYSIS
1. Motion to Suppress and Admission of
Evidence Derived From Traffic Stop
[3] Thompson claims the district court erred by denying
her motion to suppress and admitting the evidence acquired
from the traffic stop. Both the Fourth Amendment to the U.S.
Constitution and article I, § 7, of the Nebraska Constitution
guarantee against unreasonable searches and seizures. State v.
Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).
(a) Initial Traffic Stop
[4,5] A traffic stop is a seizure for Fourth Amendment
purposes, and therefore is accorded Fourth Amendment pro-
tections. State v. Barbeau, 301 Neb. 293, 917 N.W.2d 913- 144 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 135(2018). Thompson does not contest the validity of the initial
traffic stop for her failure to stop, and we find no impropriety
regarding that initial traffic stop. See id. (traffic violation,
no matter how minor, creates probable cause to stop driver
of vehicle).
(b) Inquiries Into Presence of Contraband and
Request for Consent to Search of Vehicle
Thompson asserts that “[t]he ultimate issue for this [c]ourt
to determine is whether or not the further inquiry by Officer
Hosick . . . should be seen as an extension of the initial [traffic
stop] or [as] a voluntary encounter occurring between Officer
Hosick and [Thompson].” Brief for appellant at 6. We pro-
ceed to examine the traffic stop and Officer Hosick’s inquiries
through the lens of applicable case law.
(i) Extension of Traffic Stop
[6] Once a vehicle is lawfully stopped, a law enforcement
officer may conduct an investigation reasonably related in
scope to the circumstances that justified the traffic stop. State
v. Barbeau, supra. This investigation may include asking the
driver for an operator’s license and registration, requesting that
the driver sit in the patrol car, and asking the driver about the
purpose and destination of his or her travel. Id. Also, the offi-
cer may run a computer check to determine whether the vehicle
involved in the stop has been stolen and whether there are any
outstanding warrants for any of its occupants. Id.[7-9] However, the U.S. Supreme Court has cautioned that
a lawful traffic stop can become unlawful if it is prolonged
beyond the time reasonably required to complete the mission of
the stop, such as issuing a citation. See Rodriguez v. U.S., 575
U.S. 348, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015). When
the mission of an investigative stop is addressing a suspected
traffic violation, the stop may last no longer than is necessary
to effectuate that purpose. See id. Authority for the seizure thus
ends when tasks tied to the traffic infraction are, or reasonably
- 145 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 135should have been, completed. Id. However, an officer’s inquir­
ies into matters unrelated to the justification for the traffic stop
do not cause the stop to become unlawful, so long as those
inquiries do not measurably extend the duration of the stop.
See Arizona v. Johnson, 555 U.S. 323, 129 S. Ct. 781, 172 L.
Ed. 2d 694 (2009). See, also, Rodriguez v. U.S., supra (officer
may conduct certain unrelated checks during otherwise lawful
traffic stop, but may not do so in way that prolongs stop absent
reasonable suspicion).
As we set forth previously, the body camera footage shows
that Officer Hosick, while standing within the threshold of the
driver’s-side door of Thompson’s vehicle, asked Thompson if
there was anything “illegal” or that “a drug dog would indi-
cate on” in her vehicle as he was in the process of gathering
Thompson’s copy of the signed citation together with her other
documents. The footage then shows he asked Thompson as he
was handing those documents back to her if she would “have
any problems if [he] look[ed] in [her] car.” With her documents
in hand, Thompson responded, “No, go ahead. Help yourself.”
Officer Hosick then asked Thompson “to hold on to the pup
for [him].” Thompson made a comment about her dog doing a
good job of not barking, and while Officer Hosick continued to
stand inside the threshold of her door, she asked, “You want us
to get out or anything?” Officer Hosick then replied affirma-
tively and stepped away from Thompson’s vehicle. Thompson
thereafter exited her vehicle.
We initially note there is no dispute Officer Hosick’s ques-
tions concerning the presence of illegal drugs and request
for consent to search were unrelated to the purpose of the
traffic stop. The State does not argue on appeal that Officer
Hosick had reasonable suspicion or probable cause that any
contraband was present in Thompson’s vehicle or on her per-
son. Our review of the record likewise does not indicate such
reasonable suspicion or probable cause existed to otherwise
justify Officer Hosick’s extension of the traffic stop and sub-
sequent inquiries.
- 146 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 135On appeal, we review the trial court’s 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. Saitta, 306 Neb. 499, 945 N.W.2d
888 (2020). We find no clear error in the district court’s
factual findings concerning the course of events during the
traffic stop. However, we conclude that these facts amounted
to a violation of the protections provided by the Fourth
Amendment. The purpose of the traffic stop had been effectu-
ated prior to Officer Hosick’s inquiries into the presence of
anything “illegal” or that “a drug dog would indicate on.”
By that point, Officer Hosick had completed all necessary
paperwork for Thompson to continue on her way and fully
explained Thompson’s options in handling the citation. He
further had just finished advising Thompson that he would
give her “stuff back so [she] can get out of here.” However,
despite handing Thompson her documents and thereby com-
pleting the traffic stop’s purpose, Officer Hosick continued
to stand inside the threshold of the open driver’s-side door of
Thompson’s vehicle and asked additional questions regarding
contraband and if he could “look in [her] car.” Officer Hosick
lacked authority to subject Thompson to further questioning
after the completion of the paperwork necessary to effectuate
the purpose of the traffic stop. See Rodriguez v. U.S., 575 U.S.
348, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015) (authority
for seizure ends when tasks tied to traffic infraction are, or
reasonably should have been, completed). As a result, in the
absence of any de-escalation to a voluntary encounter, Officer
Hosick’s inquiries impermissibly extended the duration of the
traffic stop.
(ii) De-escalation of Traffic Stop
to Voluntary Encounter
Having concluded that justification for the traffic stop
ended before Officer Hosick’s additional inquiries, we must
now determine whether or not the traffic stop had de-­escalated
- 147 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 135to a voluntary encounter at the time of Officer Hosick’s
questions.
[10] There are three tiers of police encounters under
Nebraska law. A tier-one police-citizen encounter involves the
voluntary cooperation of the citizen elicited through noncoer-
cive questioning and does not involve any restraint of liberty
of the citizen. State v. Hartzell, 304 Neb. 82, 933 N.W.2d 441(2019). Because tier-one encounters do not rise to the level
of a seizure, they are outside the realm of Fourth Amendment
protection. State v. Hartzell, supra. A tier-two police-citizen
encounter involves a brief, nonintrusive detention during a
frisk for weapons or preliminary questioning. Id. A tier-three
police-citizen encounter constitutes an arrest, which involves
a highly intrusive or lengthy search or detention. Id. Tier-two
and tier-three police-citizen encounters are seizures sufficient
to invoke the protections of the Fourth Amendment to the U.S.
Constitution. State v. Hartzell, supra.[11-13] 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. Schriner, 303 Neb. 476,
929 N.W.2d 514 (2019). 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.
Id. A traffic stop may de-escalate from a seizure to a vol-
untary encounter when the circumstances become such that
a reasonable person would feel free to leave or otherwise
terminate the encounter with law enforcement. See State v.
Hartzell, supra.In support of her argument that no de-escalation occurred,
Thompson cites to the Nebraska Supreme Court’s decision
in State v. Hartzell, supra, and its examination therein of the
- 148 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 135Utah Supreme Court’s decision in State v. Hansen, 63 P.3d 650(Utah 2002).
In State v. Hartzell, supra, the Nebraska Supreme Court
addressed the question of whether a traffic stop had terminated
and de-escalated to a voluntary encounter when, after returning
the defendant’s documents and walking away from the defend­
ant’s vehicle back toward her cruiser, the police officer reap-
proached the defendant’s vehicle and asked if the defendant
would be willing to talk further. In examining the encounter,
the Supreme Court looked to State v. Hansen, supra, as a point
of factual comparison and observed:
Hartzell relies upon State v. Hansen[, supra,] for a
similar factual scenario. The officer conducted a traf-
fic stop of the defendant’s vehicle for an improper lane
change and uninsured vehicle. When the officer returned
to the defendant, a second officer arrived and activated
his patrol vehicle’s lights. The officer gave the defendant
a verbal warning for being uninsured but did not give a
warning about the improper lane change. Once the officer
returned the defendant’s documents, he asked whether
there was any contraband in the vehicle. The defendant
denied. The officer then asked for consent to search the
vehicle, and the defendant consented.
In Hansen, the Utah Supreme Court reasoned that
there was no evidence of de-escalation. It considered
the factors concerning whether a seizure has occurred. It
discussed that because there were no facts demonstrating
a coercive show of authority in the initial stop, “a reason-
able person would not be able to discern that a seizure
had de-escalated to a consensual encounter due to the
absence of such factors at the time of additional ques-
tioning.” It reasoned that when the second officer arrived
with his vehicle’s lights flashing, a reasonable person
may believe that the encounter was escalating rather than
de-escalating. It discussed that when the officer returned
the defendant’s documents and questioned him about
- 149 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 135contraband, the officer did not address the improper lane
change, tell him he did not have to answer, or tell him he
was free to leave. Under the totality of the circumstances,
the court concluded that the detention did not de-escalate
and that therefore, the officer exceeded the scope of the
stop without reasonable suspicion.
State v. Hartzell, 304 Neb. 82, 91-92, 933 N.W.2d 441, 449
(2019). Contrasting the facts of State v. Hansen, supra, with
the facts before it, the Nebraska Supreme Court determined
the traffic stop had ended when the officer “returned Hartzell’s
documents,” “told her to ‘“have a good night and to drive
careful[ly],”’” and “walked away from the encounter.” State
v. Hartzell, 304 Neb. at 92, 933 N.W.2d at 449. The court
then concluded that when the officer returned and began to
ask Hartzell further questions, the encounter became volun-
tary because
[f]irst, [the officer] did not show coercive authority.
Upon reapproaching Hartzell, [the officer] did not use
an authoritative tone, brandish her weapon, or touch
Hartzell. Although these factors were not present in the
initial encounter, the second encounter did not begin
under the guise of the initial encounter. The termination
of the prior encounter signaled the start of a new encoun-
ter. Additionally, until Hartzell gave consent to search,
there was only one officer present. There was no evidence
of coercive authority to escalate the voluntary encounter
to a seizure.
Second, [the officer] did not require compliance with
her request. [The officer] asked, “‘[H]ey, before you go,
do you have a minute to talk to me?’” The question was
casual, not authoritative. The question did not demand
compliance; it simply asked for a willingness to consent.
Third, the continued flashing of the patrol vehicle’s
lights does not dictate a different outcome. Hartzell
emphasizes that the lights were not extinguished at the
point when [the officer] began to return to her patrol
- 150 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 135vehicle. But Hartzell was aware that the patrol vehi-
cle’s lights were activated for the initial encounter, and
“[Hartzell] knew [the officer] had not been back to her
unit to turn [the patrol vehicle’s lights] off.” [The offi-
cer’s] requests contradicted the notion that the flashing
lights continued to command Hartzell’s presence. And
as we reasoned in State v. Gilliam, [292 Neb. 770, 874
N.W.2d 48 (2016),] patrol vehicle lights alone would not
cause a reasonable person to believe that he or she was
not free to leave.
State v. Hartzell, 304 Neb. at 93, 933 N.W.2d at 449-50.
The circumstances before us do not indicate that the traf-
fic stop had de-escalated into a voluntary encounter by the
time Officer Hosick inquired into the presence of contraband
and asked Thompson if she would “have any problems if [he]
look[ed] in [her] car.” We note, in contrast to the facts set forth
in State v. Hartzell, supra, there was no clear temporal divide
between Officer Hosick’s completion of the purpose of the
stop and his further questions. Additionally, Officer Hosick’s
inquiries into the presence of contraband came as he remained
standing inside the threshold of the open driver’s-side door of
Thompson’s vehicle. His presence in that location would serve
to physically impede Thompson from terminating the encoun-
ter and continuing on her way after the effective completion
of the traffic stop’s purpose. While Officer Hosick did not
expressly require Thompson to remain and answer his ques-
tions, we do not observe any change in Officer Hosick’s tone
or conduct throughout the encounter that would indicate to
Thompson that her answering Officer Hosick’s questions and
compliance with his request would not be required as part of
the traffic stop.
Based on the totality of the circumstances, we conclude that
the traffic stop did not de-escalate to a voluntary encounter, as
a reasonable person in this situation would not believe that he
or she was free to leave. We therefore find that Officer Hosick’s
further inquiries exceeded the permissible scope of the traffic
- 151 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 135stop without reasonable suspicion or de-escalation of the stop
to a voluntary encounter. Our inquiry does not end here, how-
ever, as we must next consider whether this Fourth Amendment
violation necessarily requires exclusion of the subsequently
obtained evidence in light of Thompson’s consent.
(c) Admissibility of Evidence Acquired
Following Thompson’s Consent
[14-16] When the State asserts that evidence obtained in a
search following a Fourth Amendment violation is admissible
due to the defendant’s consent to the search, it must prove
two things: (1) The consent was voluntary, and (2) the consent
was sufficiently attenuated from the violation to be purged of
the primary taint. State v. Bray, 297 Neb. 916, 902 N.W.2d
98 (2017). For the consent to be attenuated from the Fourth
Amendment violation, there must be a sufficient break in the
causal connection between the illegal conduct and the consent
to search. See State v. Bond, 23 Neb. App. 916, 877 N.W.2d
254 (2016). A court must consider the evidence’s admissibil-
ity in the light of the Fourth Amendment’s distinct policies
and interests, even if a consent to search is voluntary. State v.
Bray, supra.(i) Voluntariness of Thompson’s Consent
to Officer Hosick’s Requests
While Thompson does not claim that she involuntarily con-
sented to Officer Hosick’s requests to search her vehicle and
person, we nonetheless proceed as part of our attenuation
analysis to assess whether such consent was voluntary in light
of the totality of the circumstances.
[17-22] The determination of whether the facts and circum-
stances constitute a voluntary consent to a search, satisfying
the Fourth Amendment, is a question of law. State v. Degarmo,
305 Neb. 680, 942 N.W.2d 217 (2020). For consent to be
voluntarily given, it must be a free and unconstrained choice,
not the product of a will overborne, and it cannot be given
as the result of duress or coercion, whether express, implied,
- 152 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 135physical, or psychological. State v. Bray, supra. In determining
whether consent was coerced, account must be taken of subtly
coercive police questions, as well as the possibly vulnerable
subjective state of the person who consents. State v. Howell,
26 Neb. App. 842, 924 N.W.2d 349 (2019). Mere submission
to authority is insufficient to establish consent to a search. Id.Although the fact that an individual is in police custody is an
important consideration in determining the voluntariness of the
consent to search, such factor, standing alone, does not invali-
date the consent to search as long as the consent was otherwise
voluntarily given. State v. Pope, 239 Neb. 1009, 480 N.W.2d
169 (1992). See, also, State v. Degarmo, supra. The determina-
tion of whether consent to search was freely and voluntarily
given is based on the totality of the circumstances. State v.
Bray, supra.At the time Officer Hosick asked to “look in” Thompson’s
vehicle after handing back her documents, the driver’s-side
door of Thompson’s vehicle remained open, and Officer Hosick
continued standing inside the threshold of the open door as he
spoke with Thompson. His tone was not authoritative or threat-
ening, and we observe no signs that Thompson was threatened,
coerced, or otherwise under duress when she consented to
Officer Hosick’s request to “look in” her vehicle. After Officer
Hosick asked Thompson to “hold on to the pup” for him,
Thompson asked Officer Hosick, “You want us to get out or
anything?” When he responded in the affirmative, she began to
exit the vehicle as Officer Hosick moved away from the open
driver’s-side door. After stepping outside, Thompson unlocked
all doors to her vehicle. We are mindful that Officer Hosick’s
position within the threshold of the open driver’s-side door
of Thompson’s vehicle would physically impede Thompson
from terminating the encounter until he moved away from the
door. While this physical impediment shares similarities to the
impediments imposed by police custody, we find that, in light
of the circumstances, Thompson’s consent to Officer Hosick’s
request to search her vehicle was voluntarily given and not the
result of coercion or duress.
- 153 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 135After Thompson had stepped out of and unlocked her vehi-
cle, Officer Hosick asked whether Thompson had “anything
in [her] pockets or anything like that.” Thompson responded
negatively, and Officer Hosick then requested that Thompson
“turn out [her] pockets for [him].” Thompson did not verbally
respond; she instead immediately reached into her pockets and
withdrew a baggie containing residue that later tested positive
for methamphetamine. We note that the Nebraska Supreme
Court has held that consent to search may be implied by
action rather than words. See State v. Saitta, 306 Neb. 499,
945 N.W.2d 888 (2020). Therefore, we similarly conclude that
Thompson’s act of pulling the baggie from her pocket was an
act of voluntary consent to Officer Hosick’s request and not the
result of coercion or duress.
Having determined that Thompson’s consent in both instances
was voluntary, we must also consider whether the consent was
sufficiently attenuated from the Fourth Amendment violation to
be purged of that primary taint in order to make the evidence
obtained admissible. See State v. Bray, 297 Neb. 916, 902
N.W.2d 98 (2017).
(ii) Attenuation of Thompson’s Consent From
Illegal Extension of Traffic Stop
[23] In determining whether the causal chain leading to con-
sent is sufficiently attenuated from a Fourth Amendment viola-
tion to allow for the admission of evidence, we consider three
relevant factors: (1) the time elapsed between the constitutional
violation and the acquisition of the evidence (temporal proxim-
ity), (2) the presence of intervening circumstances, and (3) the
purpose and flagrancy of the official misconduct. State v. Bray,
supra. All relevant facts should be considered to determine
whether, under all the circumstances presented, the consent
was obtained by exploitation of the prior illegality. Id.[24,25] Consent to search given in very close temporal
proximity to the official illegality is often a mere submission
or resignation to police authority. In re Interest of Ashley W.,
284 Neb. 424, 821 N.W.2d 706 (2012). See, also, State v.
- 154 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 135Gorup, 279 Neb. 841, 782 N.W.2d 16 (2010). If only a short
period of time has passed, a court is more likely to consider
the consent or statement as a “poisonous fruit” of the illegal
act. See State v. Gorup, supra. Thompson’s consent to the
search of her vehicle came immediately after Officer Hosick
illegally extended the traffic stop after the completion of the
stop’s purpose. Her act of turning out her pockets per Officer
Hosick’s request followed shortly thereafter. In consideration
of the timeline of the traffic stop, this factor weighs against
attenuation.
[26-28] Intervening circumstances are intervening events of
significance that render inapplicable the deterrence and judical
integrity purposes which justify excluding tainted evidence.
In re Interest of Ashley W., supra. In the context of consent
to search, an officer’s act of informing a suspect of his or her
right to refuse consent may be sufficient to break the causal
chain between the Fourth Amendment violation and the sus-
pect’s consent. See State v. Gorup, supra. However, absent
any other intervening circumstance, an officer’s advisement,
given shortly after a Fourth Amendment violation, that a sus-
pect may refuse consent to a search does not weigh against
exclusion, particularly when the other factors strongly favor
exclusion. State v. Gorup, supra. Our review of the record
does not show Officer Hosick ever advised Thompson prior
to or after his additional inquiries that she could refuse con-
sent to a search of her vehicle or of her person. We further
do not observe any other intervening circumstances occur-
ring between the illegal extension of the traffic stop and
Thompson’s consent to Officer Hosick’s requests. This factor
also weighs against attenuation.
[29-31] We turn now to examine the purpose and flagrancy
of the misconduct. The purpose and flagrancy of the official
misconduct is the most important attenuation factor, as it bears
most heavily on the deterrence principle underlying the exclu-
sionary rule. See State v. Bray, 297 Neb. 916, 902 N.W.2d
98 (2017). Purposeful and flagrant misconduct exists when
- 155 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 135(1) the impropriety of the official’s misconduct was obvious
or the official knew, at the time, that his or her conduct was
likely unconstitutional but engaged in it nevertheless and (2)
the misconduct was investigatory in design and purpose and
executed “‘“in the hope that something might turn up.”’”
Id. at 935, 902 N.W.2d at 113. Courts usually do not deem
police misconduct as “flagrant” unless the illegal conduct was
engaged in for the purpose of obtaining consent or the police
misconduct was calculated to cause surprise or fear. Id. See,
also, State v. Gorup, supra (noting other courts have stated
that purposeful and flagrant conduct includes fishing expedi-
tions in hope that something might turn up). Officer Hosick’s
request for Thompson’s consent to search her vehicle was
certainly investigatory in design and purpose without any sup-
porting justification for such an inquiry. The same is also true
of his request for Thompson to turn out her pockets. Given
there was no reasonable suspicion of unlawful activity afoot,
or any concern for officer safety, Officer Hosick’s requests can
only be considered a “fishing expedition,” which courts have
deemed as purposeful and flagrant conduct. See State v. Gorup,
supra. Based upon the record before us, this factor also weighs
against attenuation.
In light of the totality of the circumstances, we find that
Thompson’s consent to the search of her vehicle and her act
of turning out her pockets in response to Officer Hosick’s
request were not attenuated from the illegal extension of the
traffic stop. The extreme temporal proximity between the
illegal extension of the stop and Thompson’s consent to his
requests, coupled with the lack of intervening circumstances
and Officer Hosick’s purposeful and flagrant conduct, indi-
cate to us that the causal chain between Officer Hosick’s
conduct and Thompson’s consent to his requests was not
broken. As a result, we find that the district court erred in
overruling Thompson’s motion to suppress and admitting at
trial the evidence seized from Thompson’s person during the
traffic stop.
- 156 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 1352. Double Jeopardy and
Sufficiency of Evidence
[32,33] Having found reversible error concerning
Thompson’s motion to suppress and the admission of the evi-
dence derived from the traffic stop, we must determine whether
the evidence admitted by the district court was sufficient to
sustain Thompson’s conviction. Upon finding reversible error
in a criminal trial, an appellate court must determine whether
the total evidence admitted by the district court, erroneously or
not, was sufficient to sustain a guilty verdict. State v. Draper,
289 Neb. 777, 857 N.W.2d 334 (2015). If it was not, then
double jeopardy forbids a remand for a new trial. Id.[34-36] As relevant to this case, pursuant to Neb. Rev.
Stat. § 28-416(3) (Cum. Supp. 2018), it is unlawful to
knowingly or intentionally possess a controlled substance.
Methamphetamine is a controlled substance. See Neb. Rev.
Stat. § 28-405(c)(3) [Schedule II] (Cum. Supp. 2018). In
the context of a criminal statute, “intentionally” means will-
fully or purposely, and not accidentally or involuntarily. See
State v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015).
“Knowingly” means “willfully” as distinguished from “acci-
dentally or involuntarily.” State v. Lotter, 255 Neb. 456, 586
N.W.2d 591 (1998). In other words, to commit an act know-
ingly, a defendant must be aware of what he or she is doing.
Id. A person possesses a controlled substance when he or she
knows of the nature or character of the substance and of its
presence and has dominion or control over it. State v. Rocha,
295 Neb. 716, 890 N.W.2d 178 (2017).
As noted previously, our review of whether double jeopardy
forbids the remand of this cause for a new trial requires that we
consider the evidence admitted at trial regardless of whether it
was error for the district court to do so. See State v. Draper,
supra. There is no dispute Thompson had on her person the
baggie with a residue inside that subsequently tested positive
for methamphetamine. When she withdrew the baggie from
her pocket, Thompson denied the baggie was hers and said,
- 157 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. THOMPSON
Cite as 30 Neb. App. 135“That is so not mine.” Upon further questioning from Officer
Hosick, Thompson stated that she had put an antihistamine
tablet in the baggie “to dissolve it.” She later explained that
she picked the baggie up “out of the trash, . . . boxes, dump-
ster, whatever.” We conclude that Thompson’s initial denial
and subsequent conflicting explanations, coupled with her pos-
session of the baggie on her person, were sufficient to sustain
Thompson’s conviction for possession of methamphetamine.
Double jeopardy therefore does not preclude a new trial.
VI. CONCLUSION
For the reasons set forth above, we reverse Thompson’s
conviction and remand the cause to the district court for a
new trial.
Reversed and remanded for a new trial.