Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/13/2018 09:10 AM CDT




                                                       - 806 -
                                  Nebraska Supreme Court A dvance Sheets
                                          299 Nebraska R eports
                                                  STATE v. BOTTS
                                                 Cite as 299 Neb. 806




                                        State of Nebraska, appellee, v.
                                          K irk A. Botts, A ppellant.
                                                   ___ N.W.2d ___

                                          Filed May 4, 2018.     No. S-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: 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, and such encoun-
                    ters are outside the realm of Fourth Amendment protection.
                5.	 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.
                6.	 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.
                                    - 807 -
             Nebraska Supreme Court A dvance Sheets
                     299 Nebraska R eports
                               STATE v. BOTTS
                              Cite as 299 Neb. 806

 7.	 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.
 8.	 Criminal Law: Warrantless Searches: Probable Cause. Probable
     cause to support a warrantless arrest exists only if law enforcement has
     knowledge at the time of the arrest, based on information that is reason-
     ably trustworthy under the circumstances, that would cause a reasonably
     cautious person to believe that a suspect has committed or is commit-
     ting a crime. Probable cause is a flexible, commonsense standard that
     depends on the totality of the circumstances.
 9.	 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.
10.	 Police Officers and Sheriffs: Probable Cause. In assessing probable
     cause, an officer’s relevant inquiry is not whether particular conduct is
     innocent or guilty, but the degree of suspicion that attaches to particular
     types of noncriminal acts.

   Petition for further review from the Court of Appeals,
Inbody, Pirtle, and R iedmann, Judges, on appeal thereto from
the District Court for Lancaster County, Robert R. Otte,
Judge. Judgment of Court of Appeals reversed, and cause
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.
  Heavican, C.J., Miller-Lerman, Cassel, and Funke, JJ., and
Derr and Urbom, District Judges.
   Heavican, C.J.
                       INTRODUCTION
   We granted the State’s petition seeking further review of
the decision of the Nebraska Court of Appeals, remanding the
cause with directions to vacate Kirk A. Botts’ conviction and to
dismiss the charge against him. We reverse the decision of the
Court of Appeals and remand the cause with directions.
                              - 808 -
           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
                         STATE v. BOTTS
                        Cite as 299 Neb. 806

                  FACTUAL BACKGROUND
   Botts was charged with possession of a deadly weapon by
a prohibited person under Neb. Rev. Stat. § 28-1206 (Reissue
2016). Botts’ motion to suppress was denied. Following a jury
trial, Botts was convicted and eventually sentenced to 1 year’s
imprisonment and 1 year of postrelease supervision.
   Botts appealed to the Court of Appeals, assigning that the
district court erred in denying his motion to suppress. The
Court of Appeals agreed, concluding there was not probable
cause to arrest Botts and that the inventory search of his vehi-
cle must be suppressed.

Facts Leading to Arrest and Search.
   The Court of Appeals set forth the following facts in
its opinion:
      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 station in his police
      cruiser. While driving, he saw a vehicle on a side street
      that was not moving and was partially blocking the road-
      way. 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 stand-
      ing 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 identi-
      fied 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 hap-
      pened, Botts told him “he was out of gas and was trying
      to push the vehicle to the side of the road.” Drager testi-
      fied 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.
                         - 809 -
      Nebraska Supreme Court A dvance Sheets
              299 Nebraska R eports
                    STATE v. BOTTS
                   Cite as 299 Neb. 806

   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 testi-
fied that Tran told him he had detected an odor of alco-
hol 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 drinking, 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
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 offi-
cers 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
purposes 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.
                         - 810 -
     Nebraska Supreme Court A dvance Sheets
             299 Nebraska R eports
                    STATE v. BOTTS
                   Cite as 299 Neb. 806

   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 offi-
cers 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 discovering the machete,
Botts was under arrest for being in possession of a con-
cealed weapon.
   Tran also testified at the motion to suppress. He testi-
fied that he had contact with Botts around midnight on
March 10, 2016, a couple hours before Drager made con-
tact 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 passen-
ger. Tran testified that he did not initiate a driving under
the influence investigation because he did not see enough
signs to believe that Botts was intoxicated.
   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 harass-
ing 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
                                     - 811 -
                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                                STATE v. BOTTS
                               Cite as 299 Neb. 806

         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 driv-
         er’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.1
Issues on Appeal and Decision
of Court of Appeals.
   On appeal, Botts contended that the district court erred in
denying his motion to suppress. As noted, the Court of Appeals
agreed, holding that Botts’ arrest was made without probable
cause and that the resulting inventory search was invalid. The
Court of Appeals remanded the cause with directions to the
district court to vacate Botts’ conviction:
         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 person 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 influ-
      ence investigation, because he did not see signs of intoxi-
      cation. 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

 1	
      State v. Botts, 25 Neb. App. 372, 374-77, 905 N.W.2d 704, 708-10 (2017).
                                     - 812 -
                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                                STATE v. BOTTS
                               Cite as 299 Neb. 806

         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.
            Drager testified that Bolts’ demeanor led him to believe
         he was under the influence of alcohol or drugs. However,
         Botts’ demeanor could also be attributed to Drager’s tell-
         ing 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 harassing 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 driv-
         ing under the influence of alcohol.
            We conclude that Botts was seized at the time the offi-
         cers 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.2

 2	
      Id. at 382-83, 905 N.W.2d at 713.
                                     - 813 -
                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                                STATE v. BOTTS
                               Cite as 299 Neb. 806

                 ASSIGNMENTS OF ERROR
   The State filed a petition for further review, arguing that the
Court of Appeals erred in holding that (1) Botts was seized at
the time he was handcuffed and not at the time he was sur-
rounded by the officers and (2) Botts’ arrest was made without
probable cause.
                   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.
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protection is a question of
law that an appellate court reviews independently of the trial
court’s determination.3 The ultimate determinations of reason-
able suspicion to conduct an investigatory stop and prob-
able 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
   [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.5
                           ANALYSIS
Classification of Police-Citizen Encounters.
   [4-6] There are three tiers of police-citizen encounters. A
tier-one police-citizen encounter involves the voluntary coop-
eration of the citizen elicited through noncoercive questioning
and does not involve any restraint of liberty of the citizen.6

 3	
      State v. Woldt, 293 Neb. 265, 876 N.W.2d 891 (2016).
 4	
      Id.
 5	
      State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017).
 6	
      Id.
                              - 814 -
            Nebraska Supreme Court A dvance Sheets
                    299 Nebraska R eports
                         STATE v. BOTTS
                        Cite as 299 Neb. 806

Because tier-one encounters do not rise to the level of a sei-
zure, they are outside the realm of Fourth Amendment protec-
tion.7 A tier-two police-citizen encounter involves a brief, non-
intrusive detention during a frisk for weapons or preliminary
questioning.8 A tier-three police-citizen encounter constitutes
an arrest, which involves a highly intrusive or lengthy search
or detention.9 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
   [7] 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 In addition to situations where an officer
directly tells a suspect that he or she is not free to go, cir-
cumstances 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 compli-
ance with the officer’s request might be compelled.12 But 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 per-
son’s movement.13
   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 presented here is when the encounter
became a tier-three encounter, or an arrest.

 7	
      Id.
 8	
      Id.
 9	
      Id.
10	
      Id.
11	
      Id.
12	
      Id.
13	
      Id.
                              - 815 -
           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
                         STATE v. BOTTS
                        Cite as 299 Neb. 806

   The State contends that the Court of Appeals erred in find-
ing that Botts was arrested for Fourth Amendment purposes
when he was standing by the light pole surrounded by four
officers, one with his Taser drawn. The State argues instead
that Botts was seized for purposes of the Fourth Amendment
when Officer Jason Drager approached Botts and asked if he
had been drinking—a tier-two investigatory stop for purposes
of a driving under the influence (DUI) investigation.
   The State’s characterization is supported by the record.
Drager found Botts attempting to push his vehicle, which had
stalled on the side of the road. Botts explained that he had run
out of gas, but at the time, Drager had no independent con-
firmation of that fact. Upon his arrival on the scene, Officer
Phillip Tran informed Drager that a few hours earlier, Tran
had stopped Botts in his vehicle for driving erratically, driving
without his headlights on, and failing to signal his turn. Tran
also testified he informed Drager that he had smelled the odor
of alcohol coming from Botts’ vehicle and that he saw alco-
hol in the vehicle. In addition, Drager testified at the motion
to suppress hearing that Botts’ “behavior would have led me
to believe that he was under the influence of something, just
his demeanor and how upset he was. I would have guessed
he was under some kind of alcohol or drug.” Based upon his
own observations and the information he obtained from Tran,
Drager testified that he approached Botts with the intent to
begin a DUI investigation.
   Although the Court of Appeals concluded that Botts was not
seized until later, we conclude that Botts’ seizure began at the
time Drager approached him to begin the DUI investigation.
But this does not end our inquiry.
   The Court of Appeals concluded that not only was Botts
seized when he was surrounded by officers—and one of those
officers drew his Taser—but that Botts was arrested at that
time as well. The State disagrees, again contending that Botts
was not arrested until he was handcuffed. The State argues that
officers are permitted to take such steps as are “‘reasonably
                                      - 816 -
                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                                 STATE v. BOTTS
                                Cite as 299 Neb. 806

necessary to protect their personal safety and to maintain the
status quo,’” so that the limited purposes of an investigatory
stop may be achieved, and that doing so does not change
an investigatory stop into an arrest.14 In the State’s view, all
actions taken by the officers in advance of handcuffing Botts
fall under this rule.
   But in any case, the record shows that about 10 seconds
elapsed between the time the officers surrounded Botts and the
time Botts was handcuffed. Thus, for purposes of the real issue
on appeal—whether there was probable cause to support Botts’
arrest—it does not much matter at which of these two points in
time the arrest occurred.
Probable Cause.
   [8,9] The State next contends that the Court of Appeals
erred in concluding there was not probable cause to support
an arrest. Probable cause to support a warrantless arrest exists
only if law enforcement 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.15 Probable cause is a flexible, commonsense standard
that depends on the totality of the circumstances.16 An appel-
late court determines whether probable cause existed under an
objective standard of reasonableness, given the known facts
and circumstances.17
   But, in the words of the U.S. Supreme Court, appellate courts
should avoid an “‘excessively technical dissection’ of the fac-
tors supporting probable cause.”18 The test to be employed is

14	
      Memorandum brief in support of petition for further review for appellee at
      9, quoting United States v. Jones, 759 F.2d 633 (8th Cir. 1985).
15	
      State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).
16	
      Id.
17	
      Id.
18	
      District of Columbia v. Wesby, ___ U.S. ___, 138 S. Ct. 577, 588, 199 L.
      Ed. 2d 453 (2018).
                                       - 817 -
                 Nebraska Supreme Court A dvance Sheets
                         299 Nebraska R eports
                                  STATE v. BOTTS
                                 Cite as 299 Neb. 806

whether the totality of the circumstances would suggest that
probable cause existed.19 It is improper to view
      each fact “in isolation, rather than as a factor in the
      totality of the circumstances.” . . . The “totality of the
      circumstances” requires courts to consider “the whole
      picture.” . . . Our precedents recognize that the whole is
      often greater than the sum of its parts—especially when
      the parts are viewed in isolation. . . .
         ....
         . . . A factor viewed in isolation is often more “readily
      susceptible to an innocent explanation” than one viewed
      as part of a totality.20
   [10] Thus, “probable cause does not require officers to rule
out a suspect’s innocent explanation for suspicious facts.”21 In
assessing probable cause, an officer’s “‘relevant inquiry is not
whether particular conduct is “innocent” or “guilty,” but the
degree of suspicion that attaches to particular types of non-
criminal acts.’”22
   The Court of Appeals concluded there was not probable
cause to support Botts’ arrest for DUI. But in reaching its
conclusion, the Court of Appeals emphasized that there were
innocent explanations for Botts’ erratic behavior. Specifically,
the Court of Appeals discounted the testimony regarding Botts’
demeanor, suggesting that such behavior could be explained
by Botts’ being upset that Drager was not helping him push
his vehicle, and noted that the officers testified they did not
know whether Botts had driven the car to the location where
it was found. In addition, the Court of Appeals noted that no
officers testified they smelled the odor of alcohol on Botts
during the latter stop, nor could Drager recall if Botts indi-
cated that he had been drinking.

19	
      Id.
20	
      Id., 138 S. Ct. at 588-89 (citations omitted).
21	
      Id., 138 S. Ct. at 588.
22	
      Id.
                              - 818 -
           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
                         STATE v. BOTTS
                        Cite as 299 Neb. 806

   We conclude that the Court of Appeals erred in discount-
ing the officers’ assessment of probable cause based upon
innocent explanations for Botts’ suspicious behavior. Law
enforcement is not required to rule out such explanations
when assessing whether probable cause exists.
   Botts and his vehicle were found stalled by the side of the
road. Botts was acting erratically, and Drager in particular
noted that Botts’ behavior was suggestive of being under the
influence of drugs or alcohol. Tran had notified Drager of the
earlier stop of Botts and his vehicle for various traffic viola-
tions, that alcohol was present in Botts’ vehicle, and that Tran
had smelled alcohol during that earlier stop. When consid-
ered alongside the escalation of Botts’ erratic behavior when
Drager asked if he had been drinking, we conclude the officers
had probable cause to arrest Botts for DUI. And because there
was probable cause to support Botts’ arrest, the inventory
search of Botts’ vehicle prior to its towing was authorized and
the machete found in that search admissible.
   We observe that the State also argues there was probable
cause to arrest Botts for failure to comply with a lawful order.
We need not reach that argument, because we conclude prob-
able cause existed for a DUI arrest.
   We conclude that the Court of Appeals erred in vacating
Botts’ conviction. Accordingly, we reverse the decision of the
Court of Appeals and remand this appeal to that court to con-
sider Botts’ other assignments of error.
                        CONCLUSION
 The Court of Appeals erred in vacating Botts’ conviction.
We reverse, and remand with directions.
                   R eversed and remanded with directions.
 Stacy, J., not participating.
