State v. Shiffermiller

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/29/2019 09:07 AM CDT
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. SHIFFERMILLER
Cite as 302 Neb. 245
State of Nebraska, appellee, v.
Steven F. Shiffermiller, appellant.
___ N.W.2d ___
Filed February 15, 2019. No. S-17-675.
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 the trial and from the hearings on the motion to suppress.
3. Trial: Investigative Stops: Warrantless Searches: Appeal and Error.
The ultimate determinations of reasonable suspicion to conduct an
investigatory stop and probable cause to perform a warrantless search
are reviewed de novo, and findings of fact are reviewed for clear error,
giving due weight to the inferences drawn from those facts by the
trial judge.
4. 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.
5. 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 coopera-
tion of the citizen is elicited through noncoercive questioning. This type
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STATE v. SHIFFERMILLER
Cite as 302 Neb. 245
of contact does not rise to the level of a seizure and therefore is outside
the realm of Fourth Amendment protection.
6. Constitutional Law: Criminal Law: Police Officers and Sheriffs:
Investigative Stops: Search and Seizure: Words and Phrases. The
second category of police-citizen encounters, the investigatory stop,
as defined by the U.S. Supreme Court in Terry v. Ohio, 392 U.S. 1, 88
S. Ct. 1868, 20 L. Ed. 2d 889 (1968), is limited to brief, nonintrusive
detention during a frisk for weapons or preliminary questioning. This
type of encounter is considered a “seizure” sufficient to invoke Fourth
Amendment safeguards, but because of its less intrusive character
requires only that the stopping officer have specific and articulable facts
sufficient to give rise to reasonable suspicion that a person has commit-
ted or is committing a crime.
7. Constitutional Law: Criminal Law: Police Officers and Sheriffs:
Arrests: Search and Seizure: Probable Cause. The third type of
police-citizen encounters, arrests, is characterized by highly intrusive
or lengthy search or detention. The Fourth Amendment requires that an
arrest be justified by probable cause to believe that a person has com-
mitted or is committing a crime.
8. Investigative Stops: Arrests: Time. A detention may evolve into a de
facto arrest if unreasonable force is used or if a stop lasts for an unrea-
sonable amount of time.
9. Police Officers and Sheriffs: Investigative Stops. Whether a deten-
tion is reasonable under the circumstances depends on a multitude of
factors, including the number of officers and police cars involved, the
nature of the crime and whether there is reason to believe the suspect
might be armed, the strength of the officers’ articulable, objective sus-
picions, 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 threaten-
ing circumstances.
10. ____: ____. The use of handcuffs has been approved when it was rea-
sonably necessary to protect officer safety during an investigatory stop,
but the use of handcuffs is not warranted when the facts do not justify a
belief that the suspect may be dangerous.
11. Investigative Stops: Time. An investigative stop must be tempo-
rary and last no longer than is necessary to effectuate the purpose of
the stop.
12. Police Officers and Sheriffs: Investigative Stops. In an investigative
stop, the investigative methods employed should be the least intrusive
means reasonably available to verify or dispel the officer’s suspicion in
a short period of time.
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STATE v. SHIFFERMILLER
Cite as 302 Neb. 245
13. Constitutional Law: Police Officers and Sheriffs: Motor Vehicles:
Public Health and Welfare: Evidence: Words and Phrases. The
community caretaking exception to the Fourth Amendment provides
that local police officers, unlike federal officers, frequently investi-
gate vehicle accidents in which there is no claim of criminal liability
and engage in what, for want of a better term, may be described as
community caretaking functions, totally divorced from the detection,
investigation, or acquisition of evidence relating to the violation of a
criminal statute.
14. Constitutional Law: Police Officers and Sheriffs: Investigative
Stops: Search and Seizure. In order to determine whether the com-
munity caretaking exception to the Fourth Amendment applies, the court
should assess the totality of the circumstances surrounding the stop,
including all of the objective observations and considerations, as well
as the suspicion drawn by a trained and experienced police officer by
inference and deduction. If, based on the totality of the circumstances,
the seizing officer had a reasonable basis to believe his assistance was
necessary, the stop is not unconstitutional.
15. Constitutional Law: Search and Seizure. A search or seizure under
the community caretaking exception to the Fourth Amendment, like any
other search or seizure, is subject to the standard test of reasonableness.
It must be justified at its inception, based on specific articulable facts
which reasonably warrant the intrusion into the individual’s liberty, and
it must be reasonably related in scope to the circumstances which justi-
fied the interference in the first place.
16. Constitutional Law: Police Officers and Sheriffs: Motor Vehicles. As
the community caretaking exception to the Fourth Amendment requires
in general, transportation may be warranted and justified under the com-
munity caretaking exception when there is an objectively reasonable
basis for exercising the community caretaking function.
17. Constitutional Law: Police Officers and Sheriffs: Intoxication:
Public Health and Welfare. Depending on the particular facts pre-
sented, the community caretaking exception to the Fourth Amendment
may be appropriate when a defendant is visibly intoxicated and present-
ing a danger to himself and the general public.
18. Constitutional Law: Warrantless Searches: Search and Seizure.
Warrantless searches and seizures are per se unreasonable under the
Fourth Amendment, subject only to a few specifically established and
well-delineated exceptions, which must be strictly confined by their
justifications.
19. Warrantless Searches: Search and Seizure: Proof. In the case of a
search and seizure conducted without a warrant, the State has the burden
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Cite as 302 Neb. 245
of showing the applicability of one or more of the exceptions to the war-
rant requirement.
20. Police Officers and Sheriffs: Investigative Stops: Search and Seizure:
Weapons: Public Health and Welfare. During a second-tier stop as
described in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968), an officer is entitled, for the protection of himself or herself and
others in the area, to conduct a carefully limited search of outer clothing
to discover weapons that might be used to assault the officer.
21. Police Officers and Sheriffs: Search and Seizure: Weapons: Public
Health and Welfare. The purpose of a pat-down search for weapons is
the protection of the officer and other persons nearby.
22. Constitutional Law: Police Officers and Sheriffs: Investigative Stops:
Public Health and Welfare. The protection of the officer justification
applies equally to a second-tier encounter as described in Terry v. Ohio,
392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), that is warranted
by the community caretaking exception to the Fourth Amendment.
23. Constitutional Law: Criminal Law: Arrests: Search and Seizure:
Probable Cause. A valid arrest based on probable cause that a person is
engaged in criminal activity is allowed by the Fourth Amendment, and if
an arrest is made based upon probable cause, a full search of the person
may be made incident to that arrest.
24. Search and Seizure: Arrests: Search Warrants: Warrants: Probable
Cause. A search without a warrant before an arrest, also without a war-
rant, is valid as an incident to the subsequent arrest if (1) the search is
reasonably contemporaneous with the arrest and (2) probable cause for
the arrest exists before the search.
25. Police Officers and Sheriffs: Arrests: Search and Seizure: Weapons:
Evidence. A search incident to arrest is not limited to searching the
arrested person for weapons only; an officer may search for and seize
any evidence on the arrestee’s person, even if such evidence is unrelated
to the crime for which the arrest was made, in order to prevent conceal-
ment or destruction of evidence.
Petition for further review from the Court of Appeals, Moore,
Chief Judge, and Pirtle and A rterburn, Judges, on appeal
thereto from the District Court for Lancaster County, Robert
R. Otte, Judge. Judgment of Court of Appeals affirmed.
Matthew K. Kosmicki for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
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STATE v. SHIFFERMILLER
Cite as 302 Neb. 245
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. NATURE OF CASE
Defendant was arrested after law enforcement stopped and
searched his person and belongings, including the inside of a
flashlight, and ultimately found illegal drugs and brass knuck-
les. Following denial of his motion to suppress and a stipulated
bench trial, defendant was convicted of three counts of pos-
session of a controlled substance, a Class IV felony, and one
count of possession of a deadly weapon by a prohibited person,
a Class III felony. Defendant appealed his convictions to the
Nebraska Court of Appeals, and the court, applying the narrow
community caretaking exception, affirmed. We granted defend­
ant’s petition for further review.
II. BACKGROUND
On September 15, 2016, Steven F. Shiffermiller was charged
with three counts of possession of a controlled substance,
each count a Class IV felony, and one count of possession of
a deadly weapon, a Class III felony. Shiffermiller entered a
plea of not guilty and filed a motion to suppress the evidence
obtained during his detention and subsequent arrest. A hearing
on the motion to suppress was held on March 8, 2017, and the
following evidence was adduced.
At approximately 4:30 a.m. on June 6, 2016, the Lincoln
Police Department received a report that two individuals were
fighting near the intersection of South 31st Street and Sequoia
Drive. When an officer arrived on the scene, Shiffermiller was
walking toward a parked car with its trunk open on the north
side of Sequoia Drive. Shiffermiller appeared to have a torn
shirt and blood on his face, arm, and knuckles. Wearing camou-
flaged printed pants and a tank top, Shiffermiller matched the
description of one of the individuals from the police report.
An officer approached Shiffermiller, asking whether he was
injured and stating that there had been a reported altercation
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STATE v. SHIFFERMILLER
Cite as 302 Neb. 245
at that location. Shiffermiller appeared to be angry, agitated,
and under the influence of drugs or alcohol. According to
the officer, he claimed that he had been “boxing trees” in a
nearby park and was not involved in a fight. The officer then
asked Shiffermiller to sit down, as he appeared to be unable
to stand. A few minutes later, three more officers arrived on
the scene.
Shiffermiller stated that he wanted to leave, but was told
that he was not free to leave and that he would stay until the
situation was investigated. Because Shiffermiller was acting
uncooperative, he was placed in handcuffs and was seated on
the curb while officers searched for the other party involved
in the reported fight. Shiffermiller’s cell phone was lying in
the middle of the intersection. A “ball cap” was also found in
the intersection; Shiffermiller denied that it belonged to him.
No other party was found, so, after approximately 30 to 40
minutes, the officers discontinued their investigation of the
potential assault.
The officers determined that Shiffermiller should be trans-
ported somewhere both for his safety and to avoid any further
disturbances or issues. Shiffermiller rejected medical atten-
tion and indicated that he wanted to walk home. The offi-
cers did not want to leave Shiffermiller alone, in fear that he
may cause further disturbances or attempt to operate his car.
Because he appeared to be under the influence of alcohol or
drugs, they were worried about his ability to care for himself
and were concerned for the safety of the public if he chose to
drive. Eventually, the officers found contact information for
Shiffermiller’s father, who agreed that Shiffermiller could be
brought to his home.
In preparing to transport Shiffermiller to his father’s home,
two police officers patted Shiffermiller down to make sure
he did not have any weapons before placing him in a police
cruiser. The officers testified that the pat-down was conducted
for officer safety reasons, because Shiffermiller had potentially
been in a fight and it was unclear whether weapons had been
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STATE v. SHIFFERMILLER
Cite as 302 Neb. 245
involved. During the pat-down, an officer felt an object in
Shiffermiller’s pocket that he “immediately recognized” to be
brass knuckles. The officer extracted the brass knuckles from
Shiffermiller’s pocket and noticed that there was a small trace
of blood on them. He seized the object, and Shiffermiller was
placed under arrest.
A search of the police database conducted in one of the offi-
cer’s cruisers revealed that Shiffermiller had a previous felony
conviction, which meant that the arrest related to the brass
knuckles became a felony arrest as opposed to a misdemeanor.
The officers then determined that Shiffermiller would be trans-
ported to jail and informed Shiffermiller’s father of the change
in circumstances.
Shortly after or nearly contemporaneous to the discovery
of the brass knuckles, the officers conducted a complete
search of Shiffermiller’s person, finding keys and a flashlight
in Shiffermiller’s right pocket. The officer who found the
flashlight noticed that it “rattle[d]” and that he “could just
feel there weren’t batteries inside.” He opened the flashlight
and found several pills and a small baggie of marijuana.
Shiffermiller did not produce a prescription for the pills.
The officers checked the pills, which had identifying mark-
ings, and confirmed that they were controlled substances. At
that time, Shiffermiller was also placed under arrest for pos-
session of a controlled substance. According to the officers
present at the scene of the arrest and Shiffermiller’s father,
approximately 45 minutes to 1 hour passed between the initial
stop and Shiffermiller’s arrest. The district court overruled
Shiffermiller’s motion to suppress.
On April 25, 2017, a stipulated bench trial was held. At this
trial, Shiffermiller renewed his motion to suppress, which was
again overruled by the district court. The State offered two
exhibits that were accepted into evidence, one a complete set
of police reports and a laboratory report regarding the June 6,
2016, arrest and the other a certified copy of Shiffermiller’s
prior felony conviction. The parties stipulated that if witnesses
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STATE v. SHIFFERMILLER
Cite as 302 Neb. 245
were called to testify in this matter, they would testify con­
sistently with the information contained in those exhibits. The
parties also stipulated as to the necessary foundation for the
first exhibit which established venue and the chain of custody
for the brass knuckles and the narcotics seized at the time of
the arrest.
The district court found Shiffermiller guilty on each count
alleged. On June 1, 2017, Shiffermiller was sentenced to jail
for a period of 50 days on each count and ordered credit
for 117 days already served in jail. The court then placed
Shiffermiller on probation for a period of 1 year on count I, 2
years on count II, 3 years on count III, and 4 years on count IV,
to run concurrently.
Shiffermiller appealed to the Nebraska Court of Appeals,
asserting that the district court erred in overruling his motion
to suppress the evidence obtained on June 6, 2017. The Court
of Appeals affirmed the district court’s decision, applying the
“community caretaking” exception to the Fourth Amendment
to justify Shiffermiller’s continued detention after officers
completed their initial investigation related to the reported
altercation.1 Shiffermiller petitioned this court for further
review of the Court of Appeals’ decision, alleging it erred in
concluding that evidence found on Shiffermiller’s person was
properly admitted.
III. ASSIGNMENTS OF ERROR
Shiffermiller assigns that the district court erred in failing
to suppress evidence because (1) the government exceeded the
permissible scope and duration of a stop pursuant to Terry v.
Ohio 2 and (2) the warrantless search of Shiffermiller violated
the Fourth Amendment because law enforcement did not have
a reasonable suspicion that Shiffermiller was armed and dan-
gerous and there was no basis in law to justify the search of
his flashlight.
1
State v. Shiffermiller, 26 Neb. Ct. App. 250, 265, 919 N.W.2d 163, 176 (2018).
2
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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STATE v. SHIFFERMILLER
Cite as 302 Neb. 245
IV. STANDARD OF REVIEW
[1,2] 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.3 Regarding historical
facts, we review the trial court’s findings for clear error.4 But
whether those facts trigger or violate Fourth Amendment pro-
tections is a question of law that we review independently of
the trial court’s determination.5 When a motion to suppress is
denied pretrial and again during trial on renewed objection, an
appellate court considers all the evidence, both from the trial
and from the hearings on the motion to suppress.6
[3] The ultimate determinations of reasonable suspicion to
conduct an investigatory stop and probable cause to perform a
warrantless search are reviewed de novo, and findings of fact
are reviewed for clear error, giving due weight to the infer-
ences drawn from those facts by the trial judge.7
V. ANALYSIS
Shiffermiller asserts that the district court and Court of
Appeals erred in finding that the stop did not exceed the per-
missible scope and duration of a Terry stop and in determining
the search of Shiffermiller, including the inside of his flash-
light, was proper under the Fourth Amendment.8 In sum, he
argues that the court erred in concluding that Shiffermiller’s
rights were not violated in such a manner that required the sup-
pression of the evidence gathered during the stop and subse-
quent search. Because we also find that Shiffermiller’s Fourth
Amendment rights were not violated, we affirm.
3
State v. Wiedeman, 286 Neb. 193, 835 N.W.2d 698 (2013).
4
Id.
5
Id.
6
State v. Rivera, 297 Neb. 709, 901 N.W.2d 272 (2017).
7
State v. Botts, 299 Neb. 806, 910 N.W.2d 779 (2018).
8
See Terry v. Ohio, supra note 2.
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STATE v. SHIFFERMILLER
Cite as 302 Neb. 245
1. Initial Detention
Shiffermiller first contends that the district court erred in
overruling his motion to suppress because the police officers
exceeded the permissible scope and duration of a second-tier
Terry stop. He argues that the stop in this case falls within the
third tier described in State v. Van Ackeren,9 an arrest, because
of its highly intrusive and lengthy nature. And, as a result, the
officers did not have the requisite probable cause to justify
Shiffermiller’s detention, necessitating suppression of the evi-
dence collected during the illegal stop. We disagree.
[4-7] 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 Van Ackeren, which
describes the three levels, or tiers, of police-citizen encoun-
ters. The first tier of police-citizen encounters involves no
restraint of the liberty of the citizen involved, but, rather,
the voluntary cooperation of the citizen is elicited through
noncoercive questioning.10 This type of contact does not rise
to the level of a seizure and therefore is outside the realm
of Fourth Amendment protection. The second category, the
investigatory stop, as defined by the U.S. Supreme Court
in Terry,11 is limited to brief, nonintrusive detention during
a frisk for weapons or preliminary questioning.12 This type
of encounter is considered a “seizure” sufficient to invoke
Fourth Amendment safeguards, but because of its less intru-
sive character requires only that the stopping officer have
specific and articulable facts sufficient to give rise to reason-
able suspicion that a person has committed or is committing
a crime. The third type of police-citizen encounters, arrests,
is characterized by highly intrusive or lengthy search or
9
State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993).
10
Id.
11
Terry v. Ohio, supra note 2.
12
State v. Van Ackeren, supra note 9.
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detention.13 The Fourth Amendment requires that an arrest be
justified by probable cause to believe that a person has com-
mitted or is committing a crime.14 As noted, only the second
and third tiers of police-citizen encounters are seizures suf-
ficient to invoke the protections of the Fourth Amendment to
the U.S. Constitution.15
[8,9] A detention may evolve into a de facto arrest if unrea-
sonable force is used or if a stop lasts for an unreasonable
amount of time.16 We have noted that there is often a gray
area between investigatory detentions and arrests.17 In State v.
Wells,18 we stated that whether a detention is reasonable under
the circumstances depends on a multitude of factors, including
the factors set forth in United States v. Jones19 by the Eighth
Circuit. These factors include
“the number of officers and police cars involved, the
nature of the crime and whether there is reason to believe
the suspect might be armed, the strength of the officers’
articulable, objective suspicions, 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.”20
[10] In Wells, this court considered the circumstances under
which the use of handcuffs could transform a detention into a
custodial arrest. Considering U.S. Supreme Court precedent,
we found that the use of handcuffs has been approved when
13
See id.
14
Id.
15
State v. Gilliam, 292 Neb. 770, 874 N.W.2d 48 (2016); State v. Wells, 290
Neb. 186, 859 N.W.2d 316 (2015).
16
See State v. Wells, supra note 15.
17
See id.
18
Id.
19
United States v. Jones, 759 F.2d 633 (8th Cir. 1985).
20
State v. Wells, supra note 15, 290 Neb. at 197, 859 N.W.2d at 327.
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it was reasonably necessary to protect officer safety during an
investigatory stop, but the use of handcuffs is not warranted
when the facts do not justify a belief that the suspect may
be dangerous.21
Shiffermiller argues that the police’s use of handcuffs as
well as a number of the above factors weighing in his favor
shows that the detention was a tier-three stop. He states that
there was a significant showing of police presence, through the
number of both police officers and cruisers present at the scene
of the stop. He argues that there was no reason for the officers
to believe he was armed. Shiffermiller also asserts that he
was compliant throughout the stop, despite his communicated
desire to go home.
The evidence indicates that the first 30 to 40 minutes of the
stop were utilized to investigate a reported physical altercation
at 4:30 a.m. Shiffermiller matched the description of one of
the men involved, and he was observed to have a ripped shirt
with blood on his face, arms, and knuckles. When approach-
ing, officers noted that Shiffermiller was unable to stand
and appeared to be under the influence of drugs or alcohol.
Shiffermiller appeared to be agitated and angry and expressed
a desire to leave. An officer even testified that Shiffermiller
was attempting to leave during the investigation at one point.
Though the officers may not have had a concrete indication
that Shiffermiller was armed, these facts supported the use of
some form of control to maintain the status quo and ensure that
Shiffermiller did not attempt to leave during the investigation.
In addition, Shiffermiller’s anger and agitation in conjunction
with the evidence of blood on his person would indicate that
his detention would be reasonable to ensure that Shiffermiller
was not a danger to himself or others throughout the investiga-
tion. These facts provided ample justification for the manner
of detention.
Shiffermiller also argues that, considering the nature of the
crime and the fact that Shiffermiller was alone, the officers
21
State v. Wells, supra note 15.
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lacked a sense of urgency in their investigation and should
have completed the investigation quickly. In other words, he
contends that the continued detention was unreasonable in
terms of its scope and length. This contention has no merit.
[11,12] An investigative stop must be temporary and last no
longer than is necessary to effectuate the purpose of the stop.22
Similarly, the investigative methods employed should be the
least intrusive means reasonably available to verify or dispel
the officer’s suspicion in a short period of time.23 The initial
portion of the stop used to investigate the reported altercation
lasted approximately 30 to 40 minutes. By finding items lying
in the middle of the intersection, including Shiffermiller’s cell
phone and an unclaimed hat, the officers acted reasonably in
continuing their investigation in order to search the area to
determine if anyone else was present and injured as indicated
in the original report the officers had received. There is noth-
ing in the record to indicate any lack of diligence or urgency or
an abuse of discretion on the part of the investigating officers.
The initial detention was not unreasonable, highly intrusive, or
excessive in length. As a result, we find that the initial deten-
tion and investigation, consisting of the first 30 to 40 minutes
of the stop used to investigate the reported assault, were rea-
sonable and did not amount to a de facto arrest.
2. Continued Detention
Shiffermiller, citing U.S. v. Maltais 24 as authority, argues that
an investigative detention may turn into an arrest if it “‘lasts
for an unreasonably long time.’”25 He asserts that although
the officers testified that they believed that Shiffermiller may
have been under the influence of drugs, nothing was done
to determine whether he was actually impaired. Therefore,
his continued detention after the initial investigation of the
22
State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011).
23
Id.
24
U.S. v. Maltais, 403 F.3d 550 (8th Cir. 2005).
25
Brief for appellant at 14.
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reported altercation was improper and unconstitutional under
the Fourth Amendment.
Here, there was a valid indication that a crime had been
committed when the officers initially contacted Shiffermiller
after a fight had been reported. Above we found that the
officers engaged in a reasonable investigation of that crime
that did not violate Shiffermiller’s Fourth Amendment rights.
However, after the initial investigation into the reported physi-
cal altercation yielded no further evidence of a crime’s having
been committed, the officers continued to detain Shiffermiller
for “safety purposes.”
[13] Based on the absence of any evidence that a crime
had been or was being committed after the initial crimi-
nal investigation was completed, this court must determine
whether any exceptions to the Fourth Amendment apply to
justify Shiffermiller’s continued detention for the remainder
of the stop.26 One such exception is the community caretak-
ing exception, first recognized by the U.S. Supreme Court in
Cady v. Dombrowski 27 and later adopted by this court in State
v. Bakewell.28 The exception provides that
“[l]ocal police officers, unlike federal officers, frequently
investigate vehicle accidents in which there is no claim of
criminal liability and engage in what, for want of a better
term, may be described as community caretaking func-
tions, totally divorced from the detection, investigation,
or acquisition of evidence relating to the violation of a
criminal statute.”29
[14,15] In Bakewell, we adopted and applied the commu-
nity caretaking exception to determine whether the stop of a
26
See State v. Rohde, 22 Neb. Ct. App. 926, 864 N.W.2d 704 (2015).
27
Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706
(1973).
28
State v. Bakewell, 273 Neb. 372, 730 N.W.2d 335 (2007).
29
Id. at 376, 730 N.W.2d at 338 (quoting Cady v. Dombrowski, supra
note 27).
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vehicle was reasonable when an officer stopped its driver at
3:15 a.m. after the officer observed the vehicle stop and decel-
erate considerably five times within approximately 90 seconds
while traveling down the highway, with the vehicle eventually
pulling off onto the shoulder of the road. In that case, we held
that in order to determine whether the community caretaking
exception applies, the court should assess the totality of the cir-
cumstances surrounding the stop, including all of the objective
observations and considerations, as well as the suspicion drawn
by a trained and experienced police officer by inference and
deduction.30 If, based on the totality of the circumstances, the
seizing officer had a reasonable basis to believe his assistance
was necessary, the stop is not unconstitutional.31 Thus, a search
or seizure under the community caretaking exception, like any
other search or seizure, is subject to the standard test of reason-
ableness. It must be justified at its inception, based on specific
articulable facts which reasonably warrant the intrusion into
the individual’s liberty, and it must be reasonably related in
scope to the circumstances which justified the interference in
the first place.32
The community caretaking exception should be narrowly
and carefully applied to avoid its abuse.33 The Court of Appeals
has applied the exception in cases involving an exigency or
need to protect or assist an occupant of a vehicle, mirroring our
application in Bakewell.34
Insofar as Shiffermiller was not occupying a vehicle at the
time of the stop, the facts of this case are different from those
of prior cases in which we have applied the community care-
taking exception. Our courts have never addressed whether the
30
State v. Bakewell, supra note 28.
31
See, State v. Rohde, supra note 26; State v. Smith, 4 Neb. Ct. App. 219, 540
N.W.2d 347 (1995).
32
U.S. v. King, 990 F.2d 1552 (10th Cir. 1993).
33
State v. Bakewell, supra note 28.
34
See, e.g., State v. Rohde, supra note 26; State v. Smith, supra note 31.
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community caretaking exception applies when those needing
protection are located outside a vehicle. In Dombrowski, the
Supreme Court clearly stated that the community caretaking
exception was manifested in contemplation of the “extensive
regulation of motor vehicles and traffic” and the frequency of
local police officers’ investigations that are “totally divorced
from the detection, investigation, or acquisition of evidence
relating to the violation of a criminal statute.”35
Nonetheless, it was the general public that the Supreme
Court sought to protect when first applying this exception.36 A
number of federal courts have applied the community caretak-
ing exception to apparently intoxicated individuals who were
not occupants of vehicles.37
For example, the Fifth Circuit in U.S. v. Rideau 38 applied the
community caretaking exception when officers stopped an indi-
vidual who was wearing dark clothing and was standing and
stumbling in the road at approximately 10:30 p.m.39 The court
held that the officers were justified in detaining the individual,
even without suspicion of criminal activity, because they were
engaging in local community caretaking functions.40 The court
explained that intoxicated people in public streets pose a haz-
ard to themselves and others.41
35
Cady v. Dombrowski, supra note 27, 413 U.S. at 441.
36
See, generally, Cady v. Dombrowski, supra note 27.
37
U.S. v. Rideau, 949 F.2d 718 (5th Cir. 1991), reversed on rehearing on
other grounds 969 F.2d 1572 (5th Cir. 1992); Samuelson v. City of New
Ulm, 455 F.3d 871 (8th Cir. 2006); Winters v. Adams, 254 F.3d 758 (8th
Cir. 2001); Novitsky v. City of Aurora, 491 F.3d 1244 (10th Cir. 2007).
38
U.S. v. Rideau, supra note 37.
39
See, also, U.S. v. Rideau, 969 F.2d 1572 (5th Cir. 1992) (recognizing
that community caretaking exception serves as justification for police
removing intoxicated people from public streets where they pose hazard to
themselves and others).
40
See, U.S. v. Rideau, supra note 39; U.S. v. Rideau, supra note 37.
41
U.S. v. Rideau, supra note 37.
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In Winters v. Adams,42 officers stopped and searched an
apparently intoxicated individual when the individual was
observed exiting and reentering a vehicle that was parked on
a dead-end street. The Eighth Circuit Court of Appeals found
that the officers “‘would have been derelict in their duties’”
had they not detained the individual.43 In addition, in later
cases, the Eighth Circuit has continuously recognized that the
“‘community caretaking’” exception may justify noninvestiga-
tory searches and seizures in certain limited situations, includ-
ing when law enforcement officers are seeking to help those
in danger.44
[16] Courts have also justified the transport in a police
cruiser of potentially intoxicated individuals for their safety
under the community caretaking exception.45 For example, the
Wisconsin Supreme Court in State v. Blatterman 46 held that,
under the community caretaking exception, a police officer
was justified in transporting a defendant to a hospital when
the officer observed the defendant exhibiting erratic and dis-
oriented behavior, complaining of chest pain, and wearing
only a short-sleeved shirt and jeans in very cold weather.47 The
officer stated that he had concerns about alcohol use and the
defend­ant’s mental health.48 The court found the community
caretaking exception justified the detention necessary to trans-
port the defendant to the hospital even when the defendant
refused medical treatment.49 We find that transportation may
42
Winters v. Adams, supra note 37.
43
Id. at 764 (citing U.S. v. Rideau, supra note 37).
44
U.S. v. Harris, 747 F.3d 1013, 1017 (8th Cir. 2014) (compiling cases that
have applied community caretaking doctrine to noninvestigatory seizures).
See, also, U.S. v. Quezada, 448 F.3d 1005 (8th Cir. 2006).
45
See, e.g., State v. Blatterman, 362 Wis. 2d 138, 864 N.W.2d 26 (2015).
46
Id.
47
Id.
48
Id.
49
Id.
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be warranted and justified under the community caretaking
exception when there is an objectively reasonable basis for
exercising such community caretaking function.
[17] Shiffermiller, while conceding that the community care-
taking exception allows an officer to seize an individual when
that officer reasonably believes that the individual is a danger
to himself or others, argues that applying the community care-
taking exception to this case would be an improper expan-
sion of the exception, as Nebraska courts have construed the
exception only in cases involving vehicle stops. We disagree.
We conclude that, depending on the particular facts presented,
the community caretaking exception may be appropriate when
a defendant is visibly intoxicated and presenting a danger to
himself and the general public.
In the present case, the evidence shows that Shiffermiller
was walking toward a parked car with the trunk open. The
car was determined to belong to him. He communicated his
desire to go home during the investigation, and although at one
point he stated that he wanted to walk, the officers reasonably
believed it likely he would drive. The officers testified that
Shiffermiller seemed to be agitated and under the influence of
drugs or alcohol. One of the officers also stated that he felt that
if someone is exhibiting signs of being under the influence, it
is the responsibility of the officers to find him or her a safe
place to go.
The evidence shows that the continued detention was based
upon the officers’ observations that Shiffermiller appeared to
be under the influence of drugs or alcohol and was poten-
tially unable to care for himself, as well as the officers’ duty
to protect the community from a hazard created by a person
who may attempt to operate a motor vehicle while under the
influence. The evidence additionally shows that after the ini-
tial investigation into the reported assault, the officers held
Shiffermiller only long enough to determine where the best
place would be to transport him.
Shiffermiller’s intoxication, agitated state, proximity to his
vehicle, and apparent inability to care for himself at the
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location of the officer contact provided sufficient justification
for the officers to detain Shiffermiller in order to engage in
community caretaking functions. The officers had a legiti-
mate purpose in carrying out an important noninvestigatory
function by recognizing and resolving a potential threat to
Shiffermiller’s safety and that of the public at large.
We reiterate that the community caretaking exception is to
be narrowly and carefully applied, but in view of the totality
of the circumstances here presented, we find Shiffermiller’s
continued detention following the initial investigation of the
reported assault was reasonable. Therefore, the detention was
not a violation of Shiffermiller’s constitutional rights.
3. Warrantless Search
Shiffermiller next contends that the warrantless search of his
person violated the Fourth Amendment because (1) law enforce-
ment did not have a reasonable suspicion that Shiffermiller was
armed and dangerous to warrant the pat-down search and (2)
there was no basis in law to justify the search of the interior of
his flashlight.
[18,19] Warrantless searches and seizures are per se unrea-
sonable under the Fourth Amendment, subject only to a few
specifically established and well-delineated exceptions, which
must be strictly confined by their justifications.50 The search
here was conducted without a warrant. Thus, to be valid, it
must fall within one of the warrantless search exceptions rec-
ognized by this court.51 The State has the burden of showing
the applicability of one or more of the exceptions to the war-
rant requirement.52
(a) Pat-Down
We find that the pat-down, like Shiffermiller’s contin-
ued detention, was lawful under the community caretaking
50
State v. Perry, 292 Neb. 708, 874 N.W.2d 36 (2016).
51
Id.
52
Id.
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exception. Several state courts have upheld various types of
searches under the community caretaking exception, including
pat-down searches of an individual before being transported,
for noncriminal reasons, in a police cruiser.53 The rationale,
as the Michigan Court of Appeals explained in People v
Hannaford,54 is that
[t]he Fourth Amendment was surely not intended to stand
for the proposition that police officers must either aban-
don civilians on highways at night or transport them at
the risk of personal safety, rather than transport them at
reduced risk of personal safety by first subjecting them to
a frisk for weapons.
The Supreme Court of Wisconsin in State v. Kelsey C.R.,55
when discussing in a concurrence case law relevant to pat-
down searches conducted absent an arrest under the community
caretaking exception, similarly reasoned:
[P]olice officers are sometimes called upon in the course
of their duties to transport individuals who are not under
arrest. Not all of those individuals will behave in such a
way as to give rise to a reasonable suspicion that they are
armed and dangerous. Yet they may be. And the risk to
the officer’s safety is considerably greater during a squad
car transport than an investigative stop because the officer
cannot watch the passenger’s hands and cannot defend
against an attack while driving the squad car. Therefore,
53
See, e.g., People v. Tobin, 219 Cal. App. 3d 634, 269 Cal. Rptr. 81 (1990);
People v Hannaford, 167 Mich. App. 147, 421 N.W.2d 608 (1988); People
v Otto, 91 Mich. App. 444, 284 N.W.2d 273 (1979); State v. Diloreto, 362
N.J. Super. 600, 829 A.2d 1123 (2003); Com. v. Rehmeyer, 349 Pa. Super.
176, 502 A.2d 1332 (1985); State v. Lombardi, 727 A.2d 670 (R.I. 1999);
State v. Acrey, 148 Wash. 2d 738, 64 P.3d 594 (2003); State v. Kelsey C.R.,
243 Wis. 2d 422, 626 N.W.2d 777 (2001).
54
People v Hannaford, supra note 53, 167 Mich. App. at 152, 421 N.W.2d at
610.
55
State v. Kelsey C.R., supra note 53, 243 Wis. 2d at 464, 626 N.W.2d at 797
(Sykes, J., concurring; Prosser, J., joins).
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where . . . an officer has an objectively reasonable basis
to transport a person in a squad car, it is not unreasonable
to allow him to protect himself from assault during the
transport by conducting a minimally intrusive protective
frisk for weapons.
[20-22] We agree with this reasoning. It is well established
that during a second-tier Terry stop, an officer is entitled, for
the protection of himself or herself and others in the area, to
conduct a carefully limited search of outer clothing to discover
weapons that might be used to assault the officer.56 The pur-
pose of a pat-down search for weapons is the protection of the
officer and other persons nearby.57 And, in order to justify a
pat-down, an officer must provide “specific [and] articulable
facts [that] support an inference that the suspect might be
armed and dangerous.”58 This justification applies equally to
a second-tier encounter that is warranted by the community
caretaking exception.
The officers did not act unreasonably when they patted
Shiffermiller down to ensure he was not carrying any weapons
that would endanger the officers while they transported him
to his father’s home. The search was reasonable under the
circumstances, given that Shiffermiller matched the descrip-
tion of one of the men who was reported to have been in a
fight, and he appeared to have a ripped shirt and blood on his
person. In addition, Shiffermiller was agitated, uncooperative,
hostile toward the officers, and seemingly under the influence
of drugs or alcohol. One of the officers conducting the pat-
down explicitly testified that he simply “wanted to make sure
before [Shiffermiller] was placed into [the officer’s] cruiser
that there were no weapons on [Shiffermiller] in the back of
[the officer’s cruiser].” Shiffermiller does not assert that the
56
See Terry v. Ohio, supra note 2. See, also, State v. Vasquez-Arenivar, 18
Neb. Ct. App. 265, 779 N.W.2d 117 (2010).
57
See Terry v. Ohio, supra note 2.
58
United States v. Cole, 628 F.2d 897, 899 (1980).
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pat-down conducted was more than a minimally intrusive pro-
tective frisk for weapons.
During the pat-down search, one of the officers felt an
object in Shiffermiller’s left front pocket that the officer
“immediately recognized . . . to be . . . brass knuckles.”
Under the plain feel doctrine, the findings of a lawful pat-
down can establish probable cause to extend the scope of a
search.59 The legality of the remainder of the search depends
upon the incriminating character of the object’s being imme-
diately apparent.60 If a police officer lawfully pats down a
suspect’s outer clothing and feels an object’s whose contour
or mass makes its identity immediately apparent, there has
been no invasion of the suspect’s privacy beyond that already
authorized by the officer’s search for weapons; if the object
is contraband, its warrantless seizure would be justified by
the same practical considerations that inhere in the plain-
view context.61
When the officer removed the object, he confirmed that it
was brass knuckles. After a search of Shiffermiller’s criminal
record, it was discovered that he was a convicted felon. At
that point, the brass knuckles were seized and Shiffermiller
was placed under arrest for possession of a deadly weapon
by a prohibited person. The court did not err in overruling
Shiffermiller’s motion to suppress as it related to the pat-down
search and the subsequent discovery of the brass knuckles.
(b) Search of Flashlight
[23] We agree with the State that the search of the flashlight
was a valid search incident to arrest. A valid arrest based on
probable cause that a person is engaged in criminal activity is
allowed by the Fourth Amendment, and if an arrest is made
59
State v. Smith, 279 Neb. 918, 782 N.W.2d 913 (2010).
60
See id.
61
Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334
(1993); State v. Smith, supra note 59; State v. Craven, 253 Neb. 601, 571
N.W.2d 612 (1997).
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based upon probable cause, a full search of the person may be
made incident to that arrest.62
Shiffermiller asserts that the search incident to arrest excep-
tion does not apply, because the officers found the flashlight
and searched its interior within seconds of finding the brass
knuckles. He reasons that because the search of the interior of
the flashlight was only seconds after the discovery of the brass
knuckles, he was not “‘officially’” under arrest yet and the
search could not be incident to arrest.63 We disagree.
[24] It is well settled under Nebraska law that a search
without a warrant before an arrest, also without a warrant, is
valid as an incident to the subsequent arrest if (1) the search is
reasonably contemporaneous with the arrest and (2) probable
cause for the arrest exists before the search.64 Both require-
ments were met here. Before the flashlight was discovered on
Shiffermiller’s person, the officers arrested Shiffermiller with
probable cause due to the discovery of brass knuckles.
[25] A search incident to arrest is not limited to searching
the arrested person for weapons only; an officer may search
for and seize any evidence on the arrestee’s person, even if
such evidence is unrelated to the crime for which the arrest
was made, in order to prevent concealment or destruction of
evidence.65 The flashlight was on Shiffermiller’s person; thus,
it can be considered to be a valid product of a search incident
to arrest.
So too were the contents of the flashlight. In United States
v. Robinson,66 the U.S. Supreme Court upheld the search of a
crumpled cigarette package containing gelatin capsules filled
with heroin. In that case, an officer testified that he felt an
62
State v. Perry, supra note 50.
63
Brief for appellant at 21.
64
State v. Perry, supra note 50.
65
State v. Ranson, 245 Neb. 71, 511 N.W.2d 97 (1994).
66
United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427
(1973).
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object in a pocket of the respondent’s coat, but could not tell
what the item was.67 The officer testified that he then removed
the object and found a “‘crumpled up cigarette package.’”68
The officer testified that though he did not know what was in
the package, he could feel that the objects inside “‘“weren’t
cigarettes.”’”69 The Court ultimately held that based on his
coming upon the crumpled package of cigarettes in the course
of a lawful search, the officer was entitled to inspect the con-
tents of the package.70 And, because the inspection revealed
heroin capsules, the officer was entitled to “seize them as
‘fruits, instrumentalities, or contraband’ probative of crimi-
nal conduct.”71
The facts of this case mirror those of Robinson. The officer
shook the flashlight and testified that it rattled as if some-
thing was inside. He noted that the weight of the flashlight
was unusual and that it felt as though there were no batteries
inside. Applying the U.S. Supreme Court’s reasoning utilized
in Robinson, the search of the interior of the flashlight was
reasonable and lawful under the circumstances as a search
incident to arrest.
We find that the search of the flashlight was a lawful search
incident to arrest and, as a result, that the trial court did not err
in overruling Shiffermiller’s motion to suppress the evidence
found in the flashlight.
VI. CONCLUSION
For the foregoing reasons, we affirm the decision of the
Court of Appeals affirming that of the district court.
A ffirmed.
67
Id.
68
Id., 414 U.S. at 223.
69
Id.
70
See United States v. Robinson, supra note 66.
71
Id., 414 U.S. at 236.