Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/29/2016 09:07 AM CDT




                                                       - 375 -
                                  Nebraska Supreme Court A dvance Sheets
                                          294 Nebraska R eports
                                                 STATE v. MILOS
                                                Cite as 294 Neb. 375




                                        State of Nebraska, appellee,
                                          v. Josip M ilos, appellant.
                                                   ___ N.W.2d ___

                                        Filed July 29, 2016.     No. S-15-1025.

                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.	 Constitutional Law: Search and Seizure. The determination of
                    whether the facts and circumstances constitute a voluntary consent to
                    search, satisfying the Fourth Amendment, is a question of law.
                3.	 Criminal Law: Evidence: Appeal and Error. The relevant question
                    when an appellate court reviews a sufficiency of the evidence claim is
                    whether, after viewing the evidence in the light most favorable to the
                    prosecution, any rational trier of fact could have found the essential ele-
                    ments of the crime beyond a reasonable doubt.
                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.	 Constitutional Law: Police Officers and Sheriffs: Search and
                    Seizure. 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
                    encounters do not rise to the level of a seizure, they are outside the
                    realm of Fourth Amendment protection.
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              Nebraska Supreme Court A dvance Sheets
                      294 Nebraska R eports
                               STATE v. MILOS
                              Cite as 294 Neb. 375

 7.	 Police Officers and Sheriffs: Search and Seizure. A tier-two police-
     citizen encounter involves a brief, nonintrusive detention during a frisk
     for weapons or preliminary questioning.
 8.	 Police Officers and Sheriffs: Search and Seizure: Arrests. A tier-
     three police-citizen encounter constitutes an arrest, which involves a
     highly intrusive or lengthy search or detention.
 9.	 Constitutional Law: Police Officers and Sheriffs: Search and
     Seizure. Tier-two and tier-three police-citizen encounters are seizures
     sufficient to invoke the protections of the Fourth Amendment to the
     U.S. Constitution.
10.	 Constitutional Law: Search and Seizure. 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.
11.	 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.
12.	 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.
13.	 Constitutional Law: Warrantless Searches: Search and Seizure.
     Warrantless searches and seizures are per se unreasonable under the
     Fourth Amendment, but a search undertaken with consent is a recog-
     nized exception.
14.	 Search and Seizure. In order for a consent to search to be effective, it
     must be a free and unconstrained choice and not the product of a will
     overborne.
15.	 ____. Whether consent to search was voluntary is to be determined from
     the totality of the circumstances surrounding the giving of consent.
16.	____. Once given, consent to search may be withdrawn.
17.	 ____. Withdrawal of consent to search need not be communicated by
     “magic words,” but an intent to withdraw consent must be made by
     unequivocal act or statement.
18.	 Constitutional Law: Police Officers and Sheriffs: Search and Seizure.
     The standard for measuring the scope of a suspect’s consent to search
     under the Fourth Amendment is that of objective reasonableness—what
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             Nebraska Supreme Court A dvance Sheets
                     294 Nebraska R eports
                              STATE v. MILOS
                             Cite as 294 Neb. 375

     would the typical reasonable person have understood by the exchange
     between the officer and the suspect?
19.	 Police Officers and Sheriffs: Search and Seizure. Conduct withdraw-
     ing consent must be an act clearly inconsistent with the apparent consent
     to search, an unambiguous statement challenging the officer’s authority
     to conduct the search, or some combination of both.
20.	 Warrantless Searches: Evidence. A search of evidence in plain view is
     a recognized warrantless search exception.
21.	 Police Officers and Sheriffs: Search and Seizure: Evidence. A war-
     rantless seizure is justified under the plain view doctrine if (1) a law
     enforcement officer has a legal right to be in the place from which the
     object subject to seizure could be plainly viewed, (2) the seized object’s
     incriminating nature is immediately apparent, and (3) the officer has a
     lawful right of access to the seized object itself.

  Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.

   Mariclare Thomas for appellant.

   Douglas J. Peterson, Attorney General, and George R. Love
for appellee.

   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, and
K elch, JJ.

   Cassel, J.
                      INTRODUCTION
   Josip Milos appeals the overruling of his motion to sup-
press and his conviction for possession of a controlled sub-
stance. The totality of the circumstances demonstrates that
(1) Milos’ interaction with law enforcement was a tier-one
police-citizen encounter and (2) he consented to a search.
After Milos withdrew consent by placing his hand in the
pocket being searched, the search did not continue. Rather,
Milos threw the controlled substance to the ground in plain
view. Because the district court did not err in overruling the
motion to suppress and the evidence was sufficient to convict
Milos, we affirm.
                              - 378 -
           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                         STATE v. MILOS
                        Cite as 294 Neb. 375

                        BACKGROUND
   On March 17, 2014, at some point after 9 p.m., three
law enforcement officers in plain clothes and an undercover
vehicle were in the area of a carwash that was known for
drug transactions. They were not investigating any report of
criminal activity at that time, but, rather, were patrolling usual
spots where drug transactions had occurred in the past. The
officers turned into the carwash and observed two vehicles,
a Dodge Caravan and a Chevrolet Tahoe, leave the parking
lot. The officers lost track of the Tahoe and decided to fol-
low the Caravan. As they were following the Caravan, two of
the officers looked up the Tahoe’s license plate on a mobile
data terminal and discovered it belonged to an individual
known to the officers as “a possible party who may be dealing
in methamphetamine.”
   The Caravan appeared to approach the drive-through win-
dow of a fast-food restaurant and then parked in the restau-
rant’s parking lot. The officers parked two stalls away from
the Caravan. As one officer approached the passenger side of
the Caravan, another officer spoke with Milos, the driver. The
officer, who had his badge displayed, asked Milos if he would
be “willing” to show his identification and to step out of the
vehicle. Milos complied.
   The officer asked if he could search Milos’ pockets, and
Milos gave permission. The officer thanked Milos “since this
is all consensual” and again asked Milos if he would be will-
ing to let the officer search Milos’ pockets. Milos said “yes”
and turned to face the car. When the officer tried to search
Milos’ front right pants pocket, Milos “jammed” his own hand
into the pocket. The officer was concerned that Milos was
reaching for a weapon, so the officer removed Milos’ hand
from the pocket and asked what he was doing. Milos replied
that he was getting his cell phone charger. At that time, Milos
had a cell phone charger in his right hand, which was in a
tightly closed fist. Milos then “swiped” his left hand over his
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                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                                STATE v. MILOS
                               Cite as 294 Neb. 375

right fist and threw a plastic baggie of what appeared to be
methamphetamine on the ground. According to the officer,
Milos did not withdraw his consent or attempt to limit the
scope of the search. The State subsequently charged Milos
with possession of a controlled substance.
   Milos filed a motion to suppress statements and physical
evidence obtained during the search. Following a hearing,
the district court overruled the motion. The court found that
consent was freely and voluntarily given. With regard to with-
drawal of consent, the court stated:
      The instantaneous act of the officer starting into the
      pocket, [Milos] doing the same thing, whether that is
      particularly withdrawal of consent, I think the officer has
      some right . . . to worry about personal safety. At that
      point the hands come out of the pocket, . . . [Milos] then
      pulled his hands out of the pocket and discarded the bag-
      gie and [Milos] threw the baggie on the ground.
         . . . [W]hether or not that consent was revoked or not,
      I’m not sure is relevant, maybe the Supreme Court will
      say it’s relevant, but I don’t think that’s relevant because
      the hands come out of the pocket and then the drugs are
      displayed. To the extent — and I understand the factual
      nuances to the extent that [Milos] says at any point stop
      that, I think the officer has to stop. But the point where
      everybody reaches for the pocket and the drugs come
      out, I think that kind of instantaneous thing gives me at
      least enough to overrule the motion to suppress.
   The case proceeded to a bench trial. The parties stipulated
to the evidence, and Milos preserved his objection raised in
the motion to suppress. The district court convicted Milos
of possession of a controlled substance and sentenced Milos
to probation.
   Milos appealed, and we moved the case to our docket.1

 1	
      See Neb. Rev. Stat. § 24-1106(3) (Supp. 2015).
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                     Nebraska Supreme Court A dvance Sheets
                             294 Nebraska R eports
                                     STATE v. MILOS
                                    Cite as 294 Neb. 375

                ASSIGNMENTS OF ERROR
   Milos assigns that the district court erred in overruling his
motion to suppress and in finding sufficient evidence to con-
vict him.
                   STANDARD OF REVIEW
   [1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.
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.2
   [2] The determination of whether the facts and circum-
stances constitute a voluntary consent to search, satisfying the
Fourth Amendment, is a question of law.3
   [3] The relevant question when an appellate court reviews a
sufficiency of the evidence claim is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.4
                         ANALYSIS
   [4,5] The issues in this case center on the legality of the
seizure of the methamphetamine. The Fourth Amendment to
the U.S. Constitution and article I, § 7, of the Nebraska
Constitution guarantee against unreasonable searches and sei-
zures.5 Evidence obtained as the fruit of an illegal search or
seizure is inadmissible in a state prosecution and must be
excluded.6 Milos argues that the baggie of drugs should have

 2	
      State   v.   Woldt, 293 Neb. 265, 876 N.W.2d 891 (2016).
 3	
      State   v.   Tyler, 291 Neb. 920, 870 N.W.2d 119 (2015).
 4	
      State   v.   Jones, 293 Neb. 452, 878 N.W.2d 379 (2016).
 5	
      State   v.   Gilliam, 292 Neb. 770, 874 N.W.2d 48 (2016).
 6	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                               STATE v. MILOS
                              Cite as 294 Neb. 375

been suppressed, because it was discovered as the result of an
illegal search and seizure.
                   Police-Citizen Encounter
   [6-9] We have described three tiers of police-citizen
encounters.7 A tier-one police-citizen encounter involves the
voluntary cooperation of the citizen elicited through non-
coercive 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.8 A tier-two police-citizen
encounter involves a brief, nonintrusive detention during a
frisk for weapons or preliminary questioning.9 A tier-three
police-citizen encounter constitutes an arrest, which involves
a highly intrusive or lengthy search or detention.10 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
   [10-12] 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.12 In addition to situations where
an officer directly tells a suspect that he or she is not free
to go, circumstances indicative of a seizure may include
the threatening presence of several officers, the display of a
weapon by an officer, some physical touching of the citizen’s
person, or the use of language or tone of voice indicating the
compliance with the officer’s request might be compelled.13

 7	
      See State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993).
 8	
      State v. Gilliam, supra note 5.
 9	
      See id.
10	
      See id.
11	
      Id.
12	
      Id.
13	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                                STATE v. MILOS
                               Cite as 294 Neb. 375

But an officer’s merely questioning an individual in a public
place, such as asking for identification, is not a seizure sub-
ject to Fourth Amendment protections, so long as the ques-
tioning is carried on without interrupting or restraining the
person’s movement.14
   The circumstances of the encounter demonstrate that it was
a tier-one encounter. We have already recited the basic facts,
which we do not repeat. It was dark outside, and the officers
did not use their vehicle to trap the Caravan. The officer who
spoke with Milos did not display a gun and did not direct
Milos to step out of the vehicle. There is no evidence that the
officer used a forceful tone of voice, touched Milos, or told
Milos that he was not free to leave.
   An officer’s request that an individual step out of a parked
vehicle does not automatically transform a tier-one police-
citizen encounter into a tier-two encounter. Milos cites to a
case from this court where we determined that an initial, tier-
one encounter became a tier-two investigatory stop when the
driver was asked to step out of his vehicle and to submit to
field sobriety tests.15 But there is no hard-and-fast rule that
such a request results in a tier-two encounter; rather, the deter-
mination is driven by the totality of the circumstances. And as
we discussed above, the totality of the circumstances lead to
the conclusion that Milos was not seized. The circumstances
surrounding the officer’s request would not have made a rea-
sonable person believe that he or she was not free to leave. We
conclude that Milos was not seized when the officer asked if
he would be willing to step out of the vehicle.
                           Search
   [13-15] The officer did not need reasonable suspicion of
criminal activity in order to search Milos, because Milos
gave consent to search. Warrantless searches and seizures

14	
      See id.
15	
      See State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010).
                                    - 383 -
                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                               STATE v. MILOS
                              Cite as 294 Neb. 375

are per se unreasonable under the Fourth Amendment, but a
search undertaken with consent is a recognized exception.16
In order for a consent to search to be effective, it must be a
free and unconstrained choice and not the product of a will
overborne.17 Whether consent to search was voluntary is to be
determined from the totality of the circumstances surround-
ing the giving of consent.18 Here, the officer denied using
any threats, coercion, or force to obtain consent. The officer
asked if Milos would be “willing” to let him search Milos’
pockets, and Milos agreed that the officer could do so. Milos
reaffirmed this permission even after the officer thanked him
and mentioned that “this is all consensual.” Based on the total-
ity of the circumstances, Milos voluntarily consented to the
search of his pockets.
   [16-18] Once given, consent to search may be withdrawn.19
Withdrawal of consent need not be communicated by “magic
words,” but an intent to withdraw consent must be made by
unequivocal act or statement.20 The standard for measuring the
scope of a suspect’s consent under the Fourth Amendment is
that of objective reasonableness—what would the typical rea-
sonable person have understood by the exchange between the
officer and the suspect?21
   [19] Conduct withdrawing consent must be an act clearly
inconsistent with the apparent consent to search, an unam-
biguous statement challenging the officer’s authority to con-
duct the search, or some combination of both.22 And an
officer conducting a consensual search has no authority to
command the person being searched to stop interfering with

16	
      See State v. Smith, 279 Neb. 918, 782 N.W.2d 913 (2010).
17	
      State v. Tyler, supra note 3.
18	
      Id.
19	
      See State v. Smith, supra note 16.
20	
      See State v. Modlin, 291 Neb. 660, 867 N.W.2d 609 (2015).
21	
      Id.
22	
      State v. Smith, supra note 16.
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                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                                STATE v. MILOS
                               Cite as 294 Neb. 375

the search.23 We have explained that a “suspect’s deliberate
interference with the search—actions designed to prevent law
enforcement from searching further—are clearly sufficient to
communicate a withdrawal of consent, because no reasonable
observer could conclude that the suspect wanted the search
to continue.”24
   Here, Milos placed his hand in the same pocket that the
officer was trying to search, thereby interfering with the offi-
cer’s ability to search. The officer then removed Milos’ hand.
These actions are inconsistent with a consensual search. The
district court did not clearly decide whether Milos withdrew
his consent, but we conclude that his actions sufficiently dem-
onstrated a withdrawal of consent.
                           Plain View
   Although Milos withdrew his consent to the search, the
baggie of drugs was not discovered due to a continuation of
the search. Rather, the evidence became plainly viewable due
to Milos’ own actions. After removing Milos’ hand from the
pocket, the officer saw Milos throw a baggie of what appeared
to be methamphetamine on the ground.
   [20,21] A search of evidence in plain view is another rec-
ognized warrantless search exception.25 A warrantless seizure
is justified under the plain view doctrine if (1) a law enforce-
ment officer has a legal right to be in the place from which
the object subject to seizure could be plainly viewed, (2) the
seized object’s incriminating nature is immediately apparent,
and (3) the officer has a lawful right of access to the seized
object itself.26
   All three elements were satisfied here. The officer was law-
fully in the restaurant’s parking lot. The baggie was in plain

23	
      Id.
24	
      Id. at 932, 782 N.W.2d at 926.
25	
      State v. Borst, 281 Neb. 217, 795 N.W.2d 262 (2011).
26	
      State v. Reinpold, 284 Neb. 950, 824 N.W.2d 713 (2013).
                              - 385 -
           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                         STATE v. MILOS
                        Cite as 294 Neb. 375

view from that location. Based on the officer’s training and
experience, the incriminating nature of the baggie containing
a crystalline substance that appeared to be methamphetamine
was immediately apparent. And because the baggie was thrown
in the same public area, the officer had a lawful right of access
to the baggie.
   The evidence was in plain view due to Milos’ act of throw-
ing the baggie on the ground. The district court did not err in
overruling Milos’ motion to suppress.
                   Sufficiency of Evidence
   Milos premised his claim of insufficiency of the evidence
on his argument that the evidence should have been sup-
pressed. But we have already rejected his premise. It neces-
sarily follows that his insufficiency argument fails. And he
does not otherwise argue that the admitted evidence, includ-
ing the baggie of methamphetamine, was insufficient to con-
vict him of possession of a controlled substance. It clearly
was sufficient.
                        CONCLUSION
   We conclude that Milos was not seized for purposes of the
Fourth Amendment, because the totality of the circumstances
demonstrates that his interaction with law enforcement was
a tier-one police-citizen encounter. The officer did not need
reasonable suspicion of criminal activity to search Milos,
because he consented to the search. Although Milos withdrew
his consent to the search by placing his hand in the pocket
being searched, there is no evidence that the officer continued
the search after that point. Rather, the baggie of methamphet-
amine was in plain view of the officer after Milos threw it on
the ground. Because the district court did not err in overrul-
ing the motion to suppress and the evidence was sufficient to
convict Milos, we affirm.
                                                    A ffirmed.
   Connolly, J., not participating.
