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Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. BOTTS
Cite as 25 Neb. App. 372
State of Nebraska, appellee, v.
K irk A. Botts, appellant.
___ N.W.2d ___
Filed December 19, 2017. No. A-16-985.
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 pro-
tection is a question of law that an appellate court reviews independently
of the trial court’s determination.
2. 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.
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. Constitutional Law: Search and Seizure. The Fourth Amendment to
the U.S. Constitution and article I, § 7, of the Nebraska Constitution
guarantee against unreasonable searches and seizures.
5. 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.
6. Search and Seizure: Probable Cause: Appeal and Error. To analyze
the legality of the search and seizure, an appellate court must first deter-
mine when the seizure occurred and then address whether the seizure
was supported by probable cause.
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STATE v. BOTTS
Cite as 25 Neb. App. 372
7. Constitutional Law: Police Officers and Sheriffs: Search and
Seizure: Arrests. There are three tiers of police-citizen encounters. A
tier-one police-citizen encounter involves the voluntary cooperation
of the citizen elicited through noncoercive questioning and does not
involve any restraint of liberty of the citizen. Because tier-one encoun-
ters 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 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.
8. 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.
9. Police Officers and Sheriffs: Search and Seizure. In addition to situ-
ations 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.
10. Constitutional Law: Police Officers and Sheriffs: Search and
Seizure. An officer’s merely questioning an individual in a public place,
such as asking for identification, is not a seizure subject to Fourth
Amendment protections, so long as the questioning is carried on without
interrupting or restraining the person’s movement.
11. Constitutional Law: Arrests: Probable Cause. The Fourth Amendment
requires that an arrest be justified by probable cause to believe that a
person has committed or is committing a crime.
12. Warrantless Searches: Probable Cause: Police Officers and Sheriffs.
Probable cause to support a warrantless arrest exists only if law enforce-
ment has knowledge at the time of the arrest, based on information that
is reasonably trustworthy under the circumstances, that would cause a
reasonably cautious person to believe that a suspect has committed or is
committing a crime.
13. Probable Cause: Words and Phrases. Probable cause is a flexible,
commonsense standard that depends on the totality of the circumstances.
14. Probable Cause: Appeal and Error. An appellate court determines
whether probable cause existed under an objective standard of reason-
ableness, given the known facts and circumstances.
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Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. BOTTS
Cite as 25 Neb. App. 372
15. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Reversed and remanded with directions.
Matthew K. Kosmicki, of Brennan & Nielsen Law Offices,
P.C., for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Inbody, Pirtle, and R iedmann, Judges.
Pirtle, Judge.
INTRODUCTION
Kirk A. Botts appeals from his conviction for possession of
a knife by a felon in the district court for Lancaster County.
He challenges the court’s overruling of his motion to sup-
press evidence and statements, its overruling of objections to
certain testimony at trial, its use of a specific jury instruction,
and its failure to find the evidence insufficient to find him
guilty. We conclude that Botts’ motion to suppress should
have been granted, and therefore, we reverse, and remand
with directions.
BACKGROUND
The State filed an amended information charging Botts
with possession of a knife by a felon, a Class III felony. Botts
entered a plea of not guilty. He later filed a motion to sup-
press evidence and statements, and a hearing was held on
the motion.
At the motion to suppress hearing, Officer Jason Drager
of the Lincoln Police Department testified that on March 10,
2016, around 2:30 a.m., he was driving back to the police sta-
tion in his police cruiser. While driving, he saw a vehicle on
a side street that was not moving and was partially blocking
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STATE v. BOTTS
Cite as 25 Neb. App. 372
the roadway. The vehicle was situated at an angle, with the
front end by the curb and the back end blocking part of the
street. Drager thought maybe there had been an accident. He
turned down the street and saw an individual standing by the
driver’s side of the vehicle. Drager turned on his cruiser’s
overhead lights, parked his cruiser behind the vehicle, and
contacted the individual, later identified as Botts. He asked
Botts “what was wrong,” and Botts initially told Drager “to
mind [his] own business.” When Drager asked Botts again
about what had happened, Botts told him “he was out of gas
and was trying to push the vehicle to the side of the road.”
Drager testified that he did not recall Botts’ saying that he
drove the vehicle there. Botts asked Drager if he could help
him, and Drager told him he could not help, based on Lincoln
Police Department policy.
Drager testified that he decided he should remain at the
location because Botts’ vehicle was blocking the roadway and
could cause an accident. Drager then stood back by his cruiser
and watched Botts push the vehicle back and forth. Drager
stated that Botts became “verbally abusive” toward him after
he said he could not help him, so Drager decided to ask other
officers to come to the location “for safety purposes.” Three
other officers responded.
One of the officers who responded, Officer Phillip Tran,
advised Drager that he had stopped Botts a couple hours earlier
that night for traffic violations. Drager testified that Tran told
him he had detected an odor of alcohol on Botts at the time of
the earlier stop. Based on the information from Tran, Drager
decided to approach Botts and ask him if he had been drinking.
Drager testified that when he asked Botts if he had been drink-
ing, Botts became angry, started yelling, and started backing
up away from him.
Drager testified that Botts’ demeanor led him to believe
Botts was under the influence of “some kind of alcohol or
drug.” However, Drager testified that he did not believe
alcohol or drugs were affecting Botts’ ability to answer
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questions. Drager did not recall Botts’ stating that he had
been drinking.
Drager testified that Botts backed up to the other side of the
street and stopped with his back against a light pole. When he
was backing up, he was not coming at the officers and was not
making threats. The four officers surrounded Botts by the light
pole. Botts started yelling “something along the line of shoot
me, shoot me.” Drager testified that Officer David Lopez, one
of the officers at the scene, pulled out his Taser for safety pur-
poses and to try to get Botts to comply with their request to
put his hands behind his back. He eventually did so and was
handcuffed and placed in the back of Drager’s cruiser.
Drager testified that the officers were telling Botts to put his
hands behind his back for their safety and Botts’ safety. Drager
stated that he was concerned for his safety because Botts was
being verbally abusive.
Drager testified that after Botts was arrested, the officers
decided to tow Botts’ vehicle because it was blocking the road.
He stated that it is Lincoln Police Department policy to search
vehicles that are going to be towed. Tran began to search the
vehicle and saw the handle of a machete sticking out from
underneath the driver’s seat. Drager testified that after discov-
ering the machete, Botts was under arrest for being in posses-
sion of a concealed weapon.
Tran also testified at the motion to suppress. He testified
that he had contact with Botts around midnight on March
10, 2016, a couple hours before Drager made contact with
him. Tran testified that he stopped Botts for not having his
headlights on and for driving erratically. Tran testified that
during that contact, he noticed a “slight odor of alcohol,”
and that Botts “and another person in the vehicle had just
purchased some alcohol.” Botts was the driver of the vehicle,
and there was more than one passenger. Tran testified that
he did not initiate a driving under the influence investiga-
tion because he did not see enough signs to believe that Botts
was intoxicated.
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STATE v. BOTTS
Cite as 25 Neb. App. 372
Tran testified that he and another officer responded to
Drager’s call for assistance and that when they arrived, he told
Drager about his previous contact with Botts. Tran testified
that Drager and Lopez then made contact with Botts at his
vehicle, at which time Botts’ statements and demeanor became
erratic. Tran stated Botts backed away from the two officers
and was making statements such as “shoot me, kill me, things
like that.” He also heard Botts make statements indicating the
police were harassing him and treating him differently because
of his race. Tran testified that Botts backed up and stopped
with his back against a light pole and that the four officers
were around Botts. One of the officers asked Botts to put his
hands behind his back, and Botts responded that he was not
doing anything wrong. Tran testified that during that time,
Lopez had his Taser out. Botts eventually put his hands behind
his back and was handcuffed.
Tran testified that as soon as Botts was handcuffed, he
walked over to Botts’ vehicle and looked inside the driver’s
side front window, which was rolled down. He then saw the
handle of a machete sticking out from under the driver’s seat.
He retrieved the machete out of the vehicle after it was decided
that the vehicle would be towed. He testified that the officers
were required to do an inventory search every time a vehicle
is towed.
The State offered exhibits 1 through 3 into evidence, each of
which is a DVD containing a video recording from the encoun-
ter with Botts. Exhibit 1 was the video recording from Drager’s
cruiser. Exhibit 2 was the video recording from Drager’s
body camera. Exhibit 3 was the video recording from Tran’s
cruiser. The exhibits showed the interaction between Botts
and the officers, including Botts’ transport to jail. The video
recording from Drager’s cruiser showed that when Botts was
sitting in Drager’s cruiser, he saw Tran remove the machete
from his vehicle. Botts then began making statements indicat-
ing that the machete was his and that he knew it was in his
vehicle. Specifically, he stated multiple times that he used the
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STATE v. BOTTS
Cite as 25 Neb. App. 372
machete for his business, which involved cutting weeds. Botts
also made statements indicating that the vehicle where the
machete was found was his vehicle. Botts was never read his
Miranda rights.
Following the hearing, the trial court overruled the motion
to suppress.
A jury trial was subsequently held on the charge. During the
trial, Botts renewed his motion to suppress, which was again
overruled. Drager and Tran both testified, and their testimony
was consistent with that set forth above.
Lopez also testified at trial. He testified that based on
information provided by Tran about the earlier stop, the offi-
cers thought Botts’ vehicle was possibly positioned as it was
because he had an alcohol-related accident. Lopez testified
that when he and Drager approached Botts and asked if he had
been drinking, he became very agitated. It “just didn’t seem
like he was acting very rational,” and he was yelling. Lopez
testified that during the encounter, he drew his Taser because
of Botts’ agitated behavior. He stated the Taser was displayed
as a deescalation tactic and as a means to get Botts to comply
with their directions. He testified that he did not deploy the
Taser and that Botts was eventually handcuffed.
The State also offered exhibits 6 through 8 into evidence.
Exhibit 6 was an edited version of Drager’s cruiser video
recording, exhibit 7 was the machete found in Botts’ vehicle,
and exhibit 8 was an edited version of Tran’s cruiser video
recording. Also, the parties stipulated that Botts had a previ-
ous felony conviction. Botts did not present any evidence. The
jury returned a verdict of guilty, and the court accepted the
jury’s verdict.
The trial court sentenced Botts to 1 year’s imprisonment and
to 1 year of postrelease supervision.
ASSIGNMENTS OF ERROR
Botts assigns that the trial court erred in (1) failing to sus-
tain his motion to suppress, (2) failing to sustain his objections
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STATE v. BOTTS
Cite as 25 Neb. App. 372
to certain testimony, (3) giving an erroneous and prejudicial
jury instruction, and (4) finding that the evidence was suffi-
cient to support a finding of guilt.
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,
an appellate court applies a two-part standard of review. State
v. Woldt, 293 Neb. 265, 876 N.W.2d 891 (2016). Regarding
historical facts, an appellate court reviews the trial court’s
findings for clear error, but whether those facts trigger or
violate Fourth Amendment protection is a question of law that
an appellate court reviews independently of the trial court’s
determination. Id. The ultimate determinations of reason-
able 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. Id.
[3] 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. State v. Rogers, 297 Neb. 265, 899 N.W.2d
626 (2017).
ANALYSIS
Botts first assigns that the trial court erred in failing to sus-
tain his motion to suppress evidence obtained as a result of
his encounter with Drager and the other officers on March 10,
2016, specifically the machete found in his vehicle and state-
ments he made after he was in Drager’s cruiser. He argues that
the encounter amounted to a seizure and that the arrest was not
supported by probable cause.
[4,5] The Fourth Amendment to the U.S. Constitution
and article I, § 7, of the Nebraska Constitution guarantee
against unreasonable searches and seizures. State v. Rogers,
supra. Evidence obtained as the fruit of an illegal search or
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STATE v. BOTTS
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seizure is inadmissible in a state prosecution and must be
excluded. Id.
[6] To analyze the legality of the search and seizure, we must
first determine when the seizure occurred and then address
whether the seizure was supported by probable cause.
Classification of Police-Citizen Encounter.
[7] There are three tiers of police-citizen encounters. A tier-
one police-citizen encounter involves the voluntary cooperation
of the citizen elicited through noncoercive questioning and
does not involve any restraint of liberty of the citizen. State
v. Rogers, supra. Because tier-one encounters do not rise to
the level of a seizure, they are outside the realm of Fourth
Amendment protection. Id. A tier-two police-citizen encounter
involves a brief, nonintrusive detention during a frisk for weap-
ons or preliminary questioning. Id. A tier-three police-citizen
encounter constitutes an arrest, which involves a highly intru-
sive 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. Rogers, supra.
[8-10] 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. Rogers, 297 Neb. 265, 899
N.W.2d 626 (2017). In addition to situations where an officer
directly tells a suspect that he or she is not free to go, circum-
stances 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. But an offi-
cer’s merely questioning an individual in a public place, such
as asking for identification, is not a seizure subject to Fourth
Amendment protections, so long as the questioning is carried
on without interrupting or restraining the person’s movement.
State v. Rogers, supra.
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It is clear that the police-citizen encounter in the instant
case began as a tier-one encounter and escalated to a tier-three
encounter. The question we must answer is when the encoun-
ter became a tier-three encounter, or an arrest. Botts argues
that he was arrested for Fourth Amendment purposes when he
was standing by the light pole with four officers around him,
one with his Taser drawn. The State argues that Botts was not
arrested until he was handcuffed.
[11] When Drager and Lopez approached Botts, he became
defensive and the situation escalated quickly. He began back-
ing up and was yelling at the officers. All four of the officers
on scene followed him across the street until he stopped with
his back against a light pole. The officers, all in uniform and
armed, were standing around him, and they immediately began
telling him to put his hands behind his back. Lopez had his
Taser drawn in an effort to get Botts to comply. At this point,
there was “the threatening presence of several officers,” “the
display of a weapon by an officer,” and “the use of language
. . . indicating the compliance with the officer’s request [to put
his hands behind his back] might be compelled.” See State v.
Rogers, 297 Neb. at 271, 899 N.W.2d at 632. These circum-
stances would have made a reasonable person believe that he
was not free to leave. We conclude that Botts was seized at
that point in time and that such seizure amounted to a tier-
three police-citizen encounter. Consequently, for the encounter
to be a lawful seizure, the officers needed to have probable
cause to believe that Botts had committed or was committing
a crime. See State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d
630 (1993) (Fourth Amendment requires that arrest be justi-
fied by probable cause to believe that person has committed
or is committing crime).
Probable Cause.
[12-14] Botts argues that Drager and the other officers did
not have probable cause to justify an arrest. Probable cause
to support a warrantless arrest exists only if law enforcement
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has knowledge at the time of the arrest, based on information
that is reasonably trustworthy under the circumstances, that
would cause a reasonably cautious person to believe that a sus-
pect has committed or is committing a crime. State v. McClain,
285 Neb. 537, 827 N.W.2d 814 (2013). Probable cause is a
flexible, commonsense standard that depends on the totality of
the circumstances. Id. An appellate court determines whether
probable cause existed under an objective standard of reason-
ableness, given the known facts and circumstances. Id.
The State contends that the officers had probable cause to
believe that Botts had committed the offense of driving under
the influence. The evidence showed that Tran had stopped
Botts around midnight for traffic offenses and detected a
“slight odor of alcohol” and noted that Botts and another per-
son in the vehicle had recently purchased alcohol. Botts was
driving, and there were passengers in the vehicle. Tran did not
initiate a driving under the influence investigation, because
he did not see signs of intoxication. When Drager contacted
Botts around 2:30 a.m., about 21⁄2 hours after Tran had stopped
Botts, Botts was pushing a vehicle that was inoperable. Botts
told Drager that his vehicle had run out of gas and that he
was trying to get it to the side of the road. Botts asked Drager
for help, and Drager told him he could not help him based on
Lincoln Police Department policy. This apparently upset Botts.
Botts continued pushing his vehicle and trying to maneuver it
to the side of the road while Drager stood back by his cruiser
and watched.
It was not until Tran arrived at the scene and told Drager
about the earlier stop that Drager decided to approach Botts
face to face and ask him if he had been drinking. At this
point, all Drager knew was that Tran had smelled an odor
of alcohol on Botts and that there was alcohol in the vehicle
at the time Tran stopped him. Neither Drager nor any of the
officers testified that they smelled an odor of alcohol on
Botts. Drager also did not recall Botts’ indicating that he had
been drinking.
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Drager testified that Botts’ demeanor led him to believe he
was under the influence of alcohol or drugs. However, Botts’
demeanor could also be attributed to Drager’s telling Botts he
could not help him push the vehicle. Drager testified that it
was at that point Botts became “verbally abusive” toward him.
Botts also indicated that he believed the police were harass-
ing him and that he was being treated differently because of
his race.
In addition, Drager did not know if Botts had driven the
vehicle to the location where Drager found it. He never saw
him in the vehicle, and Botts never indicated that he had been
driving the vehicle. The officers did not have probable cause
to believe that Botts had been driving under the influence
of alcohol.
We conclude that Botts was seized at the time the officers
surrounded him by the light pole and Lopez had his Taser
drawn and that the officers did not have probable cause to
arrest him at that time. Consequently, the trial court erred in
overruling Botts’ motion to suppress.
[15] Because we have concluded that Botts’ motion to sup-
press should have been granted, we do not address his remain-
ing assignments of error. An appellate court is not obligated
to engage in an analysis that is not necessary to adjudicate the
case and controversy before it. State v. Jedlicka, 297 Neb. 276,
900 N.W.2d 454 (2017).
CONCLUSION
We conclude that Botts was arrested without probable cause,
resulting in an unreasonable search and seizure in violation of
the Fourth Amendment. Therefore, Botts’ statements and the
evidence seized following his arrest should have been sup-
pressed. Moreover, because the illegally obtained evidence was
the only evidence as to Botts’ guilt, the cause is remanded with
directions to vacate Botts’ conviction and dismiss the charge
against him.
R eversed and remanded with directions.