State v. Hartzell , 304 Neb. 82 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/22/2019 01:06 AM CST
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Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
STATE v. HARTZELL
Cite as 304 Neb. 82
State of Nebraska, appellee, v.
Shalynn R. H artzell, appellant.
___ N.W.2d ___
Filed September 20, 2019. No. S-18-1105.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question
that does not involve a factual dispute is determined by an appellate
court as a matter of law, which requires the appellate court to reach a
conclusion independent of the lower court’s decision.
2. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment pro-
tection is a question of law that an appellate court reviews independently
of the trial court’s determination.
3. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error.
When a motion to suppress is denied pretrial and again during trial on
renewed objection, an appellate court considers all the evidence, both
from trial and from the hearings on the motion to suppress.
4. Jurisdiction: Appeal and Error. It is the duty of an appellate court to
determine whether it has jurisdiction over the matter before it, irrespec-
tive of whether the issue is raised by the parties.
5. Sentences: Probation and Parole. The practice of entering separate
sentencing and probation orders is disapproved. Instead, a sentencing
court should enter its entire judgment, including all of the terms and
conditions of probation, at one time.
6. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
7. Constitutional Law: Search and Seizure. Both the Fourth Amendment
to the U.S. Constitution and article I, § 7, of the Nebraska Constitution
guarantee against unreasonable searches and seizures.
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STATE v. HARTZELL
Cite as 304 Neb. 82
8. Search and Seizure: Evidence: Trial. Evidence obtained as the fruit
of an illegal search or seizure is inadmissible in a state prosecution and
must be excluded.
9. Constitutional Law: Police Officers and Sheriffs: Search and
Seizure: Appeal and Error. To determine whether an encounter
between an officer and a citizen reaches the level of a seizure under the
Fourth Amendment to the U.S. Constitution, an appellate court employs
the analysis set forth in State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d
630 (1993), which describes the three levels, or tiers, of police-citizen
encounters.
10. Constitutional Law: Police Officers and Sheriffs: Search and
Seizure: Arrests. A tier-one police-citizen encounter involves the 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.
13. Police Officers and Sheriffs: Search and Seizure. A seizure does not
occur simply because a law enforcement officer approaches an indi-
vidual and asks a few questions or requests permission to search an area,
provided the officer does not indicate that compliance with his or her
request is required.
Appeal from the District Court for Adams County: Terri S.
H arder and Stephen R. Illingworth, Judges. Affirmed.
John Heieck and Kelsey Helget, Assistant Adams County
Public Defenders, for appellant.
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STATE v. HARTZELL
Cite as 304 Neb. 82
Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
In Shalynn R. Hartzell’s appeal from her conviction and
probationary sentence for possession of a controlled substance,
the legality of the evidence turns upon whether the traffic
stop concluded and a voluntary police-citizen encounter began
before she consented to a search of her vehicle. Because the
totality of circumstances here establishes that this was not, as
Hartzell contends, an unlawful extended seizure, her appeal
fails. Before reaching that conclusion, we note jurisdiction but
disapprove of the practice of entering separate sentencing and
probation orders, and we direct that a sentencing court should
instead enter its entire judgment, including all of the terms and
conditions of probation, at one time.
II. BACKGROUND
1. Encounters
Because the crux of Hartzell’s argument is based upon
police-citizen encounters, we recount those events first. At
oral argument, Hartzell conceded that she does not dispute the
historical facts determined by the district court. Therefore, we
recount the facts accordingly.
In March 2017, Sgt. Raelee VanWinkle of the Hastings,
Nebraska, police department conducted a traffic stop of
Hartzell’s vehicle for expired registration tags. Hartzell was
alone in the vehicle. VanWinkle issued a “fix-it” ticket, returned
Hartzell’s license and registration, and told Hartzell to “‘have a
good night and to drive careful[ly].’” VanWinkle began to walk
back to her patrol vehicle.
After reaching the rear of Hartzell’s vehicle, VanWinkle
turned around and again approached Hartzell. VanWinkle
asked, “‘[H]ey, before you go, do you have a minute to talk to
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STATE v. HARTZELL
Cite as 304 Neb. 82
me?’” Hartzell responded, “‘[S]ure, what’s up?’” VanWinkle
asked to search the vehicle and Hartzell “verbally indicated
that she didn’t have a problem with that.”
After a search of Hartzell’s vehicle, VanWinkle found a
marijuana joint, marijuana stems and leaves, a digital gram
scale with a white crystalline substance on it, and a metham-
phetamine pipe. When confronted about these items, Hartzell
stated that she was a marijuana user and used the scale to
weigh her marijuana. A field test of the pipe residue resulted
in a presumptive positive for methamphetamine. VanWinkle
arrested Hartzell and searched her person. VanWinkle found
“a baggie of methamphetamine in [Hartzell’s] bra.” Later, the
Nebraska State Patrol Crime Laboratory tested the “baggie”
and confirmed it contained methamphetamine with a weight of
.94 grams.
While being taken to jail, Hartzell stated that she had
tried to “stay clean” and that she had relapsed the prior
night. VanWinkle denied conducting an interview in the patrol
vehicle.
Once at the jail and after Hartzell waived her Miranda
rights, VanWinkle interviewed her. Hartzell admitted that
she had relapsed and that she came to Hastings to purchase
methamphetamine.
Prior to a stipulated bench trial, Hartzell moved to sup-
press all evidence found during the search of her vehicle or on
her person and all statements made to law enforcement. The
district court denied the motion and determined that neither
the Fourth Amendment nor the Fifth Amendment had been
violated. Because Hartzell’s argument on appeal relies solely
on the Fourth Amendment, in that she claims the seizure
of the traffic stop was continuous until her ultimate arrest,
we summarize only those findings pertinent to the Fourth
Amendment analysis.
Regarding Hartzell’s Fourth Amendment claim, the court
determined that “a reasonable person would not conclude
[she was] not free to leave,” because VanWinkle told her to
“‘drive safe[ly]’” and did not indicate that her compliance
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STATE v. HARTZELL
Cite as 304 Neb. 82
with the request to search was required. It noted that although
VanWinkle’s patrol vehicle’s lights were still activated, Hartzell
knew that VanWinkle had not returned to the patrol vehicle. It
determined that VanWinkle did not display a weapon, touch
Hartzell, or use an authoritative tone. It concluded that Hartzell
was not seized and that VanWinkle did not need reasonable,
articulable suspicion to reapproach Hartzell and request con-
sent to search. Hartzell later moved to reconsider and vacate
the order on the motion to suppress. She contended that the
court entered the order on the day that the court had sched-
uled the parties to submit their reply briefs. The court then
reviewed the reply briefs and declined to vacate the motion to
suppress order.
At trial, Hartzell renewed her motion to suppress. The
district court adhered to its prior ruling. The district court
found Hartzell guilty of possession of a controlled substance,
methamphetamine, pursuant to Neb. Rev. Stat. § 28-416(3)
(Reissue 2016).
2. October Sentencing Order
At a sentencing hearing, the district court sentenced Hartzell
to 2 years of probation and pronounced several conditions for
probation. A few days after the hearing, on October 29, 2018,
the court entered a sentencing order, styled as a journal entry
(October sentencing order), which also stated that Hartzell
“should be ordered to comply with the terms and conditions
set out in the separate Order of Probation.”
Within 30 days of the entry of the October sentencing order,
Hartzell filed her notice of appeal. We moved the appeal to
our docket.1
3. Inquiry R egarding Jurisdiction
After reviewing the transcript, this court noted that no
“separate Order of Probation” appeared in our record. After
we notified the parties of this situation, Hartzell supplemented
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
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STATE v. HARTZELL
Cite as 304 Neb. 82
the record with an order of probation entered on July 17, 2019
(July order of probation). This order was entered after our noti-
fication to the parties.
We then ordered the parties to submit simultaneous sup­
plemental briefing on jurisdiction. The parties did so prior to
oral argument.
III. ASSIGNMENTS OF ERROR
Hartzell assigns, consolidated and restated, that the district
court erred in denying her motion to suppress, motion to recon-
sider and vacate, and renewed motion to suppress.
IV. STANDARD OF REVIEW
[1] A jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of law,
which requires the appellate court to reach a conclusion inde-
pendent of the lower court’s decision.2
[2,3] 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.
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 protection is a question of
law that an appellate court reviews independently of the trial
court’s determination.3 When a motion to suppress is denied
pretrial and again during trial on renewed objection, an appel-
late court considers all the evidence, both from trial and from
the hearings on the motion to suppress.4
V. ANALYSIS
1. Jurisdiction
[4] Before reaching Hartzell’s assignments of error, we
must determine whether this court has jurisdiction. It is the
2
State v. Thalmann, 302 Neb. 110, 921 N.W.2d 816 (2019).
3
State v. Petsch, 300 Neb. 401, 914 N.W.2d 448 (2018).
4
State v. Rivera, 297 Neb. 709, 901 N.W.2d 272 (2017).
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duty of an appellate court to determine whether it has juris-
diction over the matter before it, irrespective of whether the
issue is raised by the parties.5 Obviously, the question arose
because the October sentencing order contemplated a “sepa-
rate Order of Probation” that was not entered until nearly 8
months after the notice of appeal. However, this appeal does
not challenge the content of either the October sentencing
order or the July order of probation. Thus, no claim is made
that either order conflicted with the pronouncement of sen-
tence. Here, we need only determine whether we have juris-
diction of this appeal, and our statutes provide a clear juris­
dictional basis.
Under Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2018), which
includes appeals from “judgments and sentences upon con-
victions for felonies and misdemeanors”6 and which must be
read together with other statutes governing appeals in criminal
cases,7 a notice of appeal filed after the announcement of a
decision or final order but before the entry of the judgment,
decree, or final order shall be treated as filed after the entry of
the judgment, decree, or final order and on the date of entry.8
“In other words, to trigger the savings clause for premature
notices of appeal under § 25-1912(2), an announcement must
pertain to a decision or order that, once entered, would be final
and appealable.”9
Here, the oral announcement of a sentence and the content
of the October sentencing order, which stated a “separate Order
of Probation” would be forthcoming, triggered the savings
clause under § 25-1912(2). Although the notice of appeal was
filed almost 8 months before the remainder of the judgment
5
See Thalmann, supra note 2.
6
§ 25-1912(1).
7
See Neb. Rev. Stat. §§ 29-2301 and 29-2306 (Reissue 2016).
8
See § 25-1912(2).
9
Lindsay Internat. Sales & Serv. v. Wegener, 297 Neb. 788, 795, 901
N.W.2d 278, 282 (2017).
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STATE v. HARTZELL
Cite as 304 Neb. 82
was entered, it was filed after the announcement of the October
sentencing order, which in turn announced the July order of
probation. Taken together, the October sentencing order, which
was initially interlocutory, and the July order of probation com-
posed a complete sentencing judgment, from which Hartzell
could appeal. Because her notice of appeal was filed after the
announcement but before the entry of the judgment, her pre-
mature notice of appeal sprang into effect after the entry of the
July order of probation.
[5] But we emphasize that this jurisdictional tangle could
and should have been avoided. The practice of entering sepa-
rate sentencing and probation orders is disapproved. Instead, a
sentencing court should enter its entire judgment, including all
of the terms and conditions of probation, at one time. And we
remind trial courts that when imposing a sentence, the court
should state with care the precise terms of the sentence which
is imposed. This same rule applies to the terms of probation
imposed upon a defendant.10
2. Motion to Suppress
(a) Seizure
Hartzell argues that the district court erred when it failed to
grant her motion to suppress evidence found during a search
of her vehicle and person, as well as statements she made
to law enforcement. She asserts that because the encounter
with VanWinkle never de-escalated to a voluntary encounter,
VanWinkle “unlawfully expanded the scope and extended the
duration of the investigative stop . . . and thus obtained evi-
dence and statements from [Hartzell] in violation of the Fourth
Amendment.”11 The State argues that the traffic stop terminated
when VanWinkle told Hartzell, in effect, she was free to leave
and that what followed was a separate encounter not subject to
the Fourth Amendment. We agree with the State.
10
See State v. Salyers, 239 Neb. 1002, 480 N.W.2d 173 (1992).
11
Brief for appellant at 20.
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STATE v. HARTZELL
Cite as 304 Neb. 82
[6] Hartzell’s argument depends solely on the Fourth
Amendment analysis. She does not argue that her consent was
not voluntary or that her statements were procured in violation
of her Miranda rights and the Fifth Amendment. An alleged
error must be both specifically assigned and specifically argued
in the brief of the party asserting the error to be considered by
an appellate court.12
[7,8] Both the Fourth Amendment to the U.S. Constitution
and article I, § 7, of the Nebraska Constitution guarantee against
unreasonable searches and seizures.13 Evidence obtained as the
fruit of an illegal search or seizure is inadmissible in a state
prosecution and must be excluded.14
[9,10] To determine whether an encounter between an offi-
cer and a citizen reaches the level of a seizure under the
Fourth Amendment to the U.S. Constitution, an appellate court
employs the analysis set forth in State v. Van Ackeren,15 which
describes the three levels, or tiers, of police-citizen encoun-
ters.16 A tier-one police-citizen encounter involves the volun-
tary cooperation of the citizen elicited through noncoercive
questioning and does not involve any restraint of liberty of the
citizen. Because tier-one encounters do not rise to the level
of a seizure, they are outside the realm of Fourth Amendment
protection. A tier-two police-citizen encounter involves a brief,
nonintrusive detention during a frisk for weapons or prelimi-
nary questioning. A tier-three police-citizen encounter consti-
tutes 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.17
12
State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019).
13
State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).
14
State v. Gilliam, 292 Neb. 770, 874 N.W.2d 48 (2016).
15
State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993).
16
Gilliam, supra note 14.
17
Petsch, supra note 3.
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STATE v. HARTZELL
Cite as 304 Neb. 82
[11-13] A seizure in the Fourth Amendment context occurs
only if, in view of all the circumstances surrounding the inci-
dent, a reasonable person would have believed that he or she
was not free to leave.18 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 threaten-
ing 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.19 A seizure does not
occur simply because a law enforcement officer approaches an
individual and asks a few questions or requests permission to
search an area, provided the officer does not indicate that com-
pliance with his or her request is required.20
We begin by noting that neither party has challenged the orig-
inal traffic stop. The traffic stop resulted in a tier-two seizure
sufficient to invoke the protections of the Fourth Amendment.21
What we must determine is whether the initial traffic stop ter-
minated and de-escalated to a voluntary encounter.
Hartzell relies upon State v. Hansen 22 for a similar factual
scenario. The officer conducted a traffic 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 defend­
ant denied. The officer then asked for consent to search the
vehicle, and the defendant consented.
18
State v. Schriner, 303 Neb. 476, 929 N.W.2d 514 (2019).
19
Id.
20
State v. Hedgcock, 277 Neb. 805, 765 N.W.2d 469 (2009).
21
See State v. Barbeau, 301 Neb. 293, 917 N.W.2d 913 (2018).
22
State v. Hansen, 63 P.3d 650 (Utah 2002).
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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 factors demonstrating a coercive show
of authority in the initial stop, “a reasonable person would not
be able to discern that a seizure had de-escalated to a consen-
sual encounter due to the absence of such factors at the time
of additional questioning.”23 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 contra-
band, 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 con-
cluded that the detention did not de-escalate and that therefore,
the officer exceeded the scope of the stop without reason-
able suspicion.
Here, the facts differ significantly. Based upon the record
before us, VanWinkle completed the traffic stop. VanWinkle
returned Hartzell’s documents and told her to “‘have a good
night and to drive careful[ly].’” She then walked away from
the encounter. After this exchange, a reasonable person would
believe that he or she was free to leave. This was a definitive
end to the seizure.
At oral argument, Hartzell argued that a reasonable person
would not feel free to leave until the officer was inside his
or her vehicle for fear of injuring the officer. We disagree.
Although roadside safety is a paramount concern for officers
and citizens, there is no per se rule extending the length of
a traffic stop in this way. Based upon the totality of the cir-
cumstances, we conclude that VanWinkle terminated the first
encounter before beginning a new one.
23
Id. at 662.
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STATE v. HARTZELL
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We must also determine whether the second encounter was a
seizure. For three reasons, we conclude that it was only a tier-
one encounter.
First, VanWinkle did not show coercive authority. Upon
reapproaching Hartzell, VanWinkle 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 encoun-
ter. The termination of the prior encounter signaled the start of
a new encounter. Additionally, until Hartzell gave consent to
search, there was only one officer present. There was no evi-
dence of coercive authority to escalate the voluntary encounter
to a seizure.
Second, VanWinkle did not require compliance with her
request. VanWinkle asked, “‘[H]ey, before you go, do you have
a minute to talk to me?’” The question was casual, not authori-
tative. The question did not demand compliance24; 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 VanWinkle
began to return to her patrol vehicle. But Hartzell was aware
that the patrol vehicle’s lights were activated for the initial
encounter, and “[Hartzell] knew [VanWinkle] had not been
back to her unit to turn [the patrol vehicle’s lights] off.”
VanWinkle’s requests contradicted the notion that the flashing
lights continued to command Hartzell’s presence. And as we
reasoned in State v. Gilliam,25 patrol vehicle lights alone would
not cause a reasonable person to believe that he or she was not
free to leave.
Under the totality of the circumstances, the factors regard-
ing the second encounter do not support that a seizure
24
See Hedgcock, supra note 20.
25
See Gilliam, supra note 14.
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occurred. The evidence failed to show how VanWinkle applied
coercive authority or required compliance with her requests.
Accordingly, VanWinkle did not seize Hartzell. We conclude
that the district court did not err in overruling Hartzell’s
motion to suppress.
Hartzell further argues that even if the encounter ­de-­escalated,
“[her] purported consent to search her vehicle was the prod-
uct of police exploitation of a prior illegality,”26 a concept
known as the attenuation doctrine. If the consent to search was
not sufficiently attenuated, it is invalid as an exploitation of
the prior illegal act and a court must exclude both the consent
and the evidence found as a result of that consent as fruit of
the poisonous tree.27 Because we determined that VanWinkle
did not violate the Fourth Amendment when asking for con-
sent to search, attenuation is inapplicable. This argument
lacks merit.
(b) Remaining Arguments
Hartzell’s remaining arguments address the district court’s
denials of her motion to reconsider and vacate and her renewed
motion to suppress. Hartzell asserts that because the district
court rendered a decision on her motion to suppress before the
court received the parties’ reply briefs, it was error. Hartzell
does not cite to any authority to support her assertion.
Based upon the record, the court did recognize that it had
entered the order before the parties’ scheduled reply brief date.
In its order on the motion to reconsider and vacate, it stated
that “[it] ha[d] reviewed the reply briefs submitted by both
the State and [Hartzell] and decline[d] to vacate its earlier
ORDER.” We find no prejudicial error.
Because we have considered the evidence from all the hear-
ings and trial and found that the district court did not err in
overruling the motion to suppress, it necessarily follows that
26
Brief for appellant at 33.
27
See State v. Gorup, 279 Neb. 841, 782 N.W.2d 16 (2010).
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the court did not err in overruling the motion to reconsider and
vacate and the renewed motion to suppress.
VI. CONCLUSION
We determine that we have jurisdiction pursuant to
§ 25-1912(2). Additionally, because there was no seizure dur-
ing the second encounter, we conclude that the district court
did not err by overruling Hartzell’s motion to suppress, motion
to reconsider and vacate, and renewed motion to suppress.
Thus, we affirm her conviction and sentence.
A ffirmed.