Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/20/2017 01:11 AM CDT




                                                         - 916 -
                                  Nebraska Supreme Court A dvance Sheets
                                          297 Nebraska R eports
                                                    STATE v. BRAY
                                                  Cite as 297 Neb. 916




                     State     of   Nebraska,     appellee, v.  Ethan      Bray,    appellant.
                                                    ___ N.W.2d ___

                                        Filed September 29, 2017.   No. S-16-874.

                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.	 Trial: Police Officers and Sheriffs: Search Warrants: Appeal and
                    Error. An appellate court reviews the trial court’s findings of fact for
                    clear error and gives deference to the inferences drawn from those facts
                    by law enforcement officers, the court that issued the search warrants,
                    and the trial court.
                3.	 Constitutional Law: Search and Seizure: Evidence: Appeal and
                    Error. When the State seeks to submit evidence as sufficiently attenu-
                    ated from a previous Fourth Amendment violation, an appellate court
                    will review the trial court’s findings of historical facts for clear error but
                    review de novo the court’s ultimate attenuation determination based on
                    those facts.
                4.	 Police Officers and Sheriffs: Search Warrants: Warrantless
                    Searches. A police officer who has obtained neither an arrest warrant
                    nor a search warrant cannot make a nonconsensual and warrantless entry
                    into a suspect’s home in the absence of exigent circumstances.
                5.	 Search and Seizure: Evidence. The exclusionary rule prohibits the
                    admission of physical and testimonial evidence gathered illegally.
                6.	 Constitutional Law: Search and Seizure: Evidence. One purpose of
                    the exclusionary rule is to compel respect for the constitutional guaranty
                    by removing the incentive to disregard it.
                7.	 Search and Seizure: Evidence. The exclusionary rule is applicable only
                    where its deterrence benefits outweigh its substantial social costs.
                                    - 917 -
             Nebraska Supreme Court A dvance Sheets
                     297 Nebraska R eports
                               STATE v. BRAY
                             Cite as 297 Neb. 916

 8.	 Evidence: Police Officers and Sheriffs. Not all evidence is fruit of the
     poisonous tree simply because it would not have come to light but for
     the illegal action of the police; the question is whether the evidence has
     been obtained by exploiting the primary illegality or has instead been
     obtained by means sufficiently distinguishable so as to be purged of the
     primary taint.
 9.	 Constitutional Law: Search and Seizure: Evidence: Police Officers
     and Sheriffs. Under the attenuation exception to the exclusionary rule,
     evidence is admissible when the connection between unconstitutional
     police conduct and the evidence is remote or has been interrupted by
     some intervening circumstance, so that the interest protected by the
     constitutional guarantee that has been violated would not be served by
     suppression of the evidence obtained.
10.	 Constitutional Law: Search and Seizure: Evidence: Proof. When
     the State asserts that evidence obtained in a search following a Fourth
     Amendment violation is admissible due to the defendant’s consent to the
     search, it must prove two things: (1) The consent was voluntary, and (2)
     the consent was sufficiently attenuated from the violation to be purged
     of the primary taint.
11.	 Search and Seizure: Evidence: Proof. There is overlap between the
     voluntariness and the taint components that the State must prove, but
     they are not identical.
12.	 Constitutional Law: Search and Seizure: Evidence. A court must
     consider the evidence’s admissibility in the light of the Fourth
     Amendment’s distinct policies and interests, even if a consent to search
     is voluntary.
13.	 Search and Seizure: Duress. For consent to be voluntarily given, it
     must be a free and unconstrained choice, not the product of a will over-
     borne, and it cannot be given as the result of duress or coercion, whether
     express, implied, physical, or psychological.
14.	 Constitutional Law: Search and Seizure: Evidence: Time. In deter-
     mining whether the causal chain leading to consent is sufficiently atten-
     uated from a Fourth Amendment violation to allow for the admission
     of the evidence, a court considers three relevant factors: (1) the time
     elapsed between the constitutional violation and the acquisition of the
     evidence (temporal proximity), (2) the presence of intervening circum-
     stances, and (3) the purpose and flagrancy of the official misconduct.
15.	 Search and Seizure: Police Officers and Sheriffs. Being thoroughly
     advised by law enforcement of one’s legal rights, including the right to
     refuse consent, is an intervening circumstance.
16.	 Constitutional Law: Search and Seizure: Attorney and Client. The
     opportunity for legal consultation is an intervening circumstance and
     has been considered under various circumstances critically important
                                     - 918 -
               Nebraska Supreme Court A dvance Sheets
                       297 Nebraska R eports
                                 STATE v. BRAY
                               Cite as 297 Neb. 916

       in determining that consent was attenuated from a Fourth Amendment
       violation.
17.	   Search and Seizure. A suspect’s knowledge of a prior illegal search can
       sometimes give rise to a sense that refusing to consent would be futile.
18.	   Search and Seizure: Evidence: Police Officers and Sheriffs. The
       purpose and flagrancy of the official misconduct is the most important
       attenuation factor.
19.	   Search and Seizure: Evidence. The underlying purpose of the attenu-
       ation exception is to mark the point of diminishing returns of the deter-
       rence principle underlying the exclusionary rule.
20.	   Search and Seizure: Evidence: Police Officers and Sheriffs. If law
       enforcement did not likely foresee the challenged evidence as a probable
       product of their illegality, then it could not have been the motivating
       force behind it and the threat of exclusion could not possibly operate as
       a deterrent to such conduct.
21.	   Search and Seizure: Police Officers and Sheriffs. Purposeful and
       flagrant misconduct exists when (1) the impropriety of the official’s
       misconduct was obvious or the official knew, at the time, that his or
       her conduct was likely unconstitutional but engaged in it nevertheless
       and (2) the misconduct was investigatory in design and purpose and
       executed in the hope that something might turn up.
22.	   ____: ____. Courts usually do not deem police misconduct as flagrant
       unless the illegal conduct was engaged in for the purpose of obtain-
       ing consent or the police misconduct was calculated to cause surprise
       or fear.
23.	   Search and Seizure: Search Warrants: Police Officers and Sheriffs.
       Officers can take reasonable measures to prevent occupants from becom-
       ing disruptive, dangerous, or otherwise frustrating the search; and such
       routine and preventative measures do not depend on the presence of a
       threat, actual or perceived, to the officers executing the warrant.

   Appeal from the District Court for Nemaha County: Daniel
E. Bryan, Jr., Judge. Affirmed.
  Keith M. Kollasch, Nemaha County Public Defender, for
appellant.
   Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
                                   - 919 -
               Nebraska Supreme Court A dvance Sheets
                       297 Nebraska R eports
                               STATE v. BRAY
                             Cite as 297 Neb. 916

      Wright, J.
                     I. NATURE OF CASE
   While carrying out a search warrant for the common areas
of a house and a roommate’s bedroom, law enforcement
observed through an open doorway drug paraphernalia in the
defendant’s bedroom. The district court overruled the defend­
ant’s motion to suppress evidence seized from his bedroom
following the defendant’s consent to a search. Because of the
omission of the fact that the informant was in custody when
he reported the illegal activities forming the basis for the war-
rant affidavit, the district court found the search warrant for
the common areas was invalid. But the court found that the
defend­ant’s consultation over his cell phone with a person
identified as his legal counsel, as well as law enforcement’s
advisement of the defendant’s right to refuse consent, resulted
in voluntary consent to the search that was sufficiently attenu-
ated from the invalid warrant.
                     II. BACKGROUND
   Ethan Bray was charged under Neb. Rev. Stat. § 28-416
(Cum. Supp. 2014) with one count of possession of a con-
trolled substance with intent to deliver, a Class III felony;
three counts of possession of a controlled substance, which are
Class IV felonies; and one count of possession of money used
or intended to be used to facilitate a violation of § 28-416(1),
a Class IV felony. Before trial, Bray moved to suppress all evi-
dence gathered by law enforcement as a direct or indirect result
of the entry and search of his residence on August 23, 2015.
The entry of the residence was pursuant to a warrant directed
toward one of his roommates, Alexander Gonsalves.
   Bray asked for a hearing under Franks v. Delaware1 to
determine whether omissions in the warrant were made in
reckless disregard for the truth and resulted in the warrant’s
being issued without probable cause. The district court found

 1	
      Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667
      (1978).
                              - 920 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                          STATE v. BRAY
                        Cite as 297 Neb. 916

the evidence sufficient to warrant a Franks hearing, and the
following evidence was adduced.
                            1. Warrant
   Officer Steven Bures prepared and signed the affidavit for
the search warrant. The affidavit described that one of sev-
eral roommates at Gonsalves’ residence, Deven Moore, had
reported that drug use and distribution were occurring in the
home. Specifically, Moore reported to Bures that Gonsalves
was involved in using marijuana. Moore told Bures that he had
recently smelled marijuana in the house and had seen bongs
and baggies. He had also taken baggies consistent with “dime
bags” up to Gonsalves’ room 2 to 3 weeks before. Finally,
Moore had observed between 6 and 12 people visiting the
house in the last 48 hours asking to see Gonsalves and going
to Gonsalves’ bedroom. Moore explained that he suspected the
visitors were there to buy marijuana.
   The parties stipulated that at the time Moore gave the
information to Bures, he was in custody for driving under the
influence. Additionally, Bures admitted on cross-examination
that Moore had alcohol in his system when he gave Bures
the information about Gonsalves’ drug usage. Bures did not
describe in the warrant affidavit either that Moore was in cus-
tody or that he was under the influence of alcohol when he
informed Bures of Gonsalves’ illegal activities.
   Bures had been a law enforcement officer since 2012. He
testified that he did not have any training or experience in
preparing an affidavit based on information from an informant
who is in custody. He did not know that it was important to
specify in the affidavit that the informant was in custody. Bures
believed at the time that the warrant was valid.
            2. Observation of Bray’s Room During
                    Execution of Warrant
   The warrant was to be served during the daylight hours
and was to search for drugs and related items in the common
areas of the house and in Gonsalves’ bedroom. Officers Kaleb
                             - 921 -
          Nebraska Supreme Court A dvance Sheets
                  297 Nebraska R eports
                         STATE v. BRAY
                       Cite as 297 Neb. 916

Bruggeman, Matthew Kadavy, Jeff Timmerman, Harold Silvey,
Dan White, and Bures conducted the search in the late after-
noon of August 23, 2015.
   While conducting the search, the officers observed Bray
in his bedroom from the open doorway on the main level.
They asked him to come out to the living room. Bray joined
Gonsalves and another roommate on the couch in the living
room. The roommates were monitored by Bruggeman and
White while the remaining officers conducted the search of
the common areas and Gonsalves’ bedroom upstairs. None of
the occupants who waited on the couch were patted down for
weapons. They moved around the living room freely, but were
asked to stay in that room.
   While waiting for the other officers to conduct the search,
Bray asked Bruggeman about the search warrant. Bruggeman
explained the process of applying for a warrant and allowed
Bray to examine it. Bruggeman described their tone as con-
versational. Bray understood that the warrant was not directed
toward him.
   Bray used his cell phone freely while in the living room.
When it ran out of charge, he asked Bruggeman if he could
retrieve a cell phone charger from his room. Bruggeman told
Bray that he could, but that Bruggeman would have to accom-
pany Bray into the room for the safety and security of every-
body involved in the search warrant. Bray said that was fine.
Bruggeman testified at the hearing that he wanted to ensure
Bray did not obtain any weapons from the room and that
accompanying Bray was standard protocol.
   When Bruggeman accompanied Bray into the room, he
observed a bong and a grinder with loose-leaf marijuana
around it. Bruggeman also detected a strong odor of raw mari-
juana. Bruggeman did not make any statements at that time
to Bray about what he observed, and Bray returned to the liv-
ing room.
   When Timmerman completed his part of the search, he
waited in the living room while Bures completed some
                             - 922 -
          Nebraska Supreme Court A dvance Sheets
                  297 Nebraska R eports
                         STATE v. BRAY
                       Cite as 297 Neb. 916

paperwork. While doing so, Timmerman observed through the
open doorway the bong in Bray’s bedroom. He voiced this
observation, and Bray responded that it was a vase. Bruggeman
interjected that it was a bong.
   About 45 minutes after the officers had arrived at the resi-
dence and begun their search, Bures joined the others in the
living room. Bruggeman and Timmerman advised Bures that
there was a bong, a grinder, and some marijuana in Bray’s
bedroom. From the living room, Bures looked into the room
through the open doorway. He was able to observe these three
items. He could also smell the odor of marijuana. Bures briefly
walked into Bray’s room but quickly left, without observing
additional items.

                           3. Consent
   Bures asked Bray if he could have a conversation with him
out on the porch. Bray consented, and Timmerman and Silvey
joined them. Bures stood nearest to Bray, while Timmerman
and Silvey were farther away at other locations on the porch
and did not directly engage in the conversation. Bures told
Bray that he had seen drug paraphernalia and marijuana in
Bray’s bedroom. Bures asked Bray for consent to search
his room, explaining that if Bray did not consent, he would
apply for a search warrant. Bures described his tone as
conversational.
   Bray asked if he could call his legal counsel. Bures said
he could, and Bray stepped away for a private conversa-
tion with someone on his cell phone. After that conversation,
which lasted about 5 minutes, Bray said he would consent to
the search. Bures retrieved a standard consent form from his
vehicle. When Bures returned, he read the form to Bray. Bray
also read the form on his own. The form advised Bray of his
right to refuse to consent to a search.
   Bray filled in his biographical information and then signed
the consent form. Bray affirmed on the form that he was giv-
ing permission to search his room and vehicle freely and
                              - 923 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                          STATE v. BRAY
                        Cite as 297 Neb. 916

voluntarily and that he had been informed of his right to refuse
to permit the search.
   After signing the form, Bray told the officers that he had
over an ounce of marijuana in his room and wanted to show
them other items in the room too. Bray “led the way” and
showed them items in the room that were not particularly
incriminating. Eventually, Bures informed Bray that they could
conduct the search unassisted. The officers did so, though Bray
continued to watch.
   The officers seized a small amount of marijuana, the bong,
and the grinder that were visible from the doorway. Several
additional items that had not been plainly visible were found
and seized during the search: two additional containers of mar-
ijuana, marijuana resin, two bottles of hashish oil, psilocybin
mushrooms, a bottle of hydrocodone prescribed to Gonsalves,
three loose amphetamine pills, a 100-gram weight, a digital
scale, plastic wrap, small plastic bags, and $1,500 in cash.
Bray was taken into custody, at which point he refused to make
any statements and requested legal counsel.
                     4. A rguments Below
   At the hearing on the motion to suppress, the county attor-
ney acknowledged that the judge had said he would find the
search warrant invalid if the informant who provided the
information for the warrant affidavit was in custody when
he provided the information. Therefore, the county attorney
focused on arguing that Bray’s consent to the search was suf-
ficiently attenuated from any taint deriving from an illegal
search warrant, such that suppression of the evidence was
not warranted.
   Defense counsel argued that the case law does not support
the concept of voluntary consent to a search requested pursu-
ant to observations while on the premises under an invalid
warrant. Counsel argued that in such situations, there is never
sufficient attenuation from the illegal warrant to purge the
primary taint. Counsel further asserted that the Eighth Circuit
and several other courts do not expand protective sweeps to
                                    - 924 -
               Nebraska Supreme Court A dvance Sheets
                       297 Nebraska R eports
                                STATE v. BRAY
                              Cite as 297 Neb. 916

nonarrest situations and that there were no specific, articulable
facts in this case indicating there were weapons in the house;
thus, the initial entry into Bray’s room was improper regardless
of the warrant’s validity.
                 5. Order on Motion to Suppress
                      (a) Validity of Warrant
   The district court agreed with Bray that the warrant was
invalid. The court noted that the information in the affidavit in
support of the warrant was based entirely on information from
an informant. The court cited to State v. Lammers,2 in which we
said that the reliability of an informant may be established by
showing in the affidavit that (1) the informant has given reli-
able information to police officers in the past, (2) the informant
is a citizen informant, (3) the informant has made a statement
that is against his or her penal interest, or (4) a police officer’s
independent investigation establishes the informant’s reliability
or the reliability of the information the informant has given.
   The court noted there was no information in the affidavit
indicating that Moore had given reliable information to police
officers in the past, that Moore had made a statement against
his penal interest, or that Bures had conducted an independent
investigation establishing Moore’s reliability or the reliability
of the information Moore gave to Bures. Thus, Bures’ affidavit
to establish probable cause could rest only on whether Moore
was a citizen informant.
   The court concluded that Moore could not be considered a
citizen informant, however, because he was under arrest and in
custody when he gave Bures the information upon which the
affidavit was based. The court reasoned that Moore’s informa-
tion was not self-corroborating under State v. King,3 because
he could not, while in custody, “voluntarily” come forward
with information.

 2	
      State v. Lammers, 267 Neb. 679, 676 N.W.2d 716 (2004).
 3	
      State v. King, 207 Neb. 270, 298 N.W.2d 168 (1980).
                                      - 925 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                  STATE v. BRAY
                                Cite as 297 Neb. 916

   The court concluded that Bures’ omission of the fact that
Moore was in custody was a reckless disregard for the truth or
grossly negligent under Franks.4 Furthermore, the court could
not find the affidavit supported probable cause when consid-
ering the four corners of the affidavit if it had included the
omission. Rather, the district court judge, who had also issued
the warrant, stated “categorically” that if he would have known
Moore was in custody, he would have required additional
information to show reliability of Moore’s assertions before
finding probable cause for the warrant.
                         (b) Good Faith
   The court rejected any contention that Bures acted in good
faith in reliance on the invalid warrant. The court reiterated
that Bures was reckless. The court observed that Bures may
not have had experience with affidavits for search warrants,
but Bures was aware of his lack of experience and should have
sought review of his affidavit by officers with more experience
or by the county attorney before submitting the information to
the court. The court concluded:
         It would be inexplicable to say that the officer acted
      in reckless disregard for the truth or grossly negligent in
      not providing important information to the Court to get
      his search warrant, yet acted in good faith by relying on
      his prepared affidavit for a search warrant that was issued
      with material information that he should have known
      was omitted.
                          (c) Consent
   The court ultimately concluded that Bray’s voluntary con-
sent purged the taint of the Fourth Amendment violation. It
found the facts most similar to U.S. v. Greer,5 wherein the
Eighth Circuit held that the intervening circumstances of con-
sulting with a brother and a written advisement of the right to

 4	
      Franks v. Delaware, supra note 1.
 5	
      U.S. v. Greer, 607 F.3d 559 (8th Cir. 2010).
                              - 926 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                          STATE v. BRAY
                        Cite as 297 Neb. 916

refuse consent made the consent to search attenuated from the
illegal entry, despite the fact that there was not a long lapse of
time between the violation and the consent to search.
   The district court noted the facts supporting attenuation of
Bray’s consent from the illegal entry into the home:
      Bray was not the subject of the original investigation.
      The search was intended to be only for another resident
      (Gonsalves). Bray was instructed he needed to stay in the
      common living area while the search was being conducted
      in Gonsalves’s room and the common areas. The investi-
      gation was never intended to focus on Bray. Bray was
      aware of this because he asked and was given the war-
      rant to read while in the common area before any of the
      events in regard to Bray unfolded. It was Bray’s personal
      request to leave the common area and go into his room
      that triggered the events that lead [sic] to his consent to
      search his room and vehicle. Bray was told if he wanted
      to go into his room it would be with the company of an
      officer for security reasons. Bray was ok with that. This
      was not an attempt by the officer to exploit the search
      beyond the warrant. There was no pretext. It was Bray
      that willing [sic] and freely opened this door to expand
      this investigation. Also, . . . Bures took Bray aside after
      being told of the observations of the officers and told
      Bray about what was observed and requested consent to
      search. He did inform Bray that if he did not consent he
      would apply for a search warrant. Bray asked to consult
      with his attorney. Bray was given the opportunity by the
      officer to call his attorney. Bray made a call and consulted
      with someone after which he then verbally consented. The
      officer wanted Bray’s consent in writing so he had him
      fill out and sign exhibit # 3. That form specifically tells
      Bray he had a right to decline the search and seizure of
      any property from his residence and vehicle. Bray signed
      it in any event.
   The court balanced these facts of attenuation against the
court’s conclusion that Bures did not act in an intentionally
                                    - 927 -
               Nebraska Supreme Court A dvance Sheets
                       297 Nebraska R eports
                                STATE v. BRAY
                              Cite as 297 Neb. 916

deceitful manner.6 Considering the totality of the circum-
stances, the court found that the flagrancy of the official mis-
conduct was not so serious that it tainted the consent given by
Bray. In other words, the court found that the officer’s procure-
ment of Bray’s consent to the search was not an exploitation of
the illegality of the initial warrant. As such, the court overruled
Bray’s motion to suppress.
                  6. Conviction and Sentence
   Following a stipulated bench trial, the court found Bray
guilty of all charges. Bray was sentenced to 4 years of proba-
tion. Bray appeals.
              III. ASSIGNMENTS OF ERROR
   Bray assigns that the district court erred in overruling his
motion to suppress, because it erred in finding that his consent
was voluntarily given and that the consent was sufficiently
attenuated from the illegal search.
                IV. 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.7
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 protections is a question of
law that an appellate court reviews independently of the trial
court’s determination.8
   [2] We review the trial court’s findings of fact for clear
error, and we give deference to the inferences drawn from
those facts by law enforcement officers, the court that issued
the search warrants, and the trial court.9

 6	
      See Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416
      (1975).
 7	
      State v. Rogers, ante p. 265, 899 N.W.2d 626 (2017).
 8	
      Id.
 9	
      U.S. v. Reinholz, 245 F.3d 765 (8th Cir. 2001).
                                      - 928 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                  STATE v. BRAY
                                Cite as 297 Neb. 916

   [3] When the State seeks to submit evidence as sufficiently
attenuated from a previous Fourth Amendment violation, we
will review the trial court’s findings of historical facts for clear
error but review de novo the court’s ultimate attenuation deter-
mination based on those facts.10
                         V. ANALYSIS
   [4] The U.S. Supreme Court has consistently held that the
entry into a home to conduct a search or make an arrest is
unreasonable under the Fourth Amendment unless done pursu-
ant to a warrant.11 A police officer who has obtained neither an
arrest warrant nor a search warrant cannot make a nonconsen-
sual and warrantless entry into a suspect’s home in the absence
of exigent circumstances.12
   The district court found that Bray voluntarily consented to
the search of his room and that his consent was sufficiently
attenuated from the warrantless entry into the home to render
the exclusionary rule inapplicable. We agree with the district
court. And because we affirm on the ground that Bray’s volun-
tary consent was attenuated from any illegality deriving from
the warrant affidavit, we do not reassess the district court’s
determination that the omissions from the warrant affidavit
were reckless and that the affidavit failed to support probable
cause when supplanted with the omitted information.13
   [5,6] The exclusionary rule prohibits the admission of phys-
ical and testimonial evidence gathered illegally.14 One purpose
of the exclusionary rule is to compel respect for the consti-
tutional guaranty by removing the incentive to disregard it.15

10	
      State v. Gorup, 279 Neb. 841, 782 N.W.2d 16 (2010).
11	
      State v. Eberly, 271 Neb. 893, 716 N.W.2d 671 (2006).
12	
      Id.
13	
      See U.S. v. Reinholz, supra note 9.
14	
      Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441
      (1963).
15	
      See Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669
      (1960).
                                      - 929 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                  STATE v. BRAY
                                Cite as 297 Neb. 916

The exclusionary rule includes all evidence derivative of the
illegality, referred to as the “fruit of the poisonous tree.”16
   [7,8] However, the exclusionary rule is applicable only
where its deterrence benefits outweigh its substantial social
costs.17 Not all evidence is fruit of the poisonous tree simply
because it would not have come to light but for the illegal
action of the police.18 The question is whether the evidence
has been obtained by exploiting the primary illegality or has
instead been obtained by means sufficiently distinguishable so
as to be purged of the primary taint.19
   [9] With this in mind, several exceptions to the exclusion-
ary rule have been recognized.20 Under the attenuation excep-
tion, evidence is admissible when “the connection between
unconstitutional police conduct and the evidence is remote
or has been interrupted by some intervening circumstance, so
that ‘the interest protected by the constitutional guarantee that
has been violated would not be served by suppression of the
evidence obtained.’”21
   [10-12] When the State asserts that evidence obtained in a
search following a Fourth Amendment violation is admissible
due to the defendant’s consent to the search, it must prove two
things: (1) The consent was voluntary, and (2) the consent was
sufficiently attenuated from the violation to be purged of the
primary taint.22 There is overlap between the voluntariness and
the taint components that the State must prove, but they are

16	
      See, Utah v. Strieff, ___ U.S. ___, 136 S. Ct. 2056, 195 L. Ed. 2d 400
      (2016); Elkins v. United States, supra note 15.
17	
      Utah v. Strieff, supra note 16.
18	
      See, Wong Sun v. United States, supra note 14; In re Interest of Ashley W.,
      284 Neb. 424, 821 N.W.2d 706 (2012).
19	
      See id.
20	
      See Utah v. Strieff, supra note 16.
21	
      Id., 136 S. Ct. at 2061.
22	
      See, In re Interest of Ashley W., supra note 18; State v. Gorup, supra
      note 10.
                                      - 930 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                 STATE v. BRAY
                               Cite as 297 Neb. 916

not identical.23 A court must consider the evidence’s admissi-
bility in the light of the Fourth Amendment’s distinct policies
and interests, even if a consent to search is voluntary.24
                        1. Voluntariness
   [13] We agree with the district court that Bray’s consent to
the search of his room was voluntary. For consent to be vol-
untarily given, it must be a free and unconstrained choice, not
the product of a will overborne, and it cannot be given as the
result of duress or coercion, whether express, implied, physi-
cal, or psychological.25 The determination of whether consent
to search was freely and voluntarily given is based on the total-
ity of the circumstances.26
   Bray argues that he was under duress because he was
detained by six officers for over 45 minutes and because the
officers confronted him with the evidence they had observed
in his room. But, to the contrary, the evidence shows that Bray
was not in a particularly vulnerable subjective state.27 The
evidence indicates Bray was calm throughout the search of the
home. While waiting for the search to be completed, Bray was
allowed to move around the living room freely and use his cell
phone. He was monitored, along with his two roommates, by
only two officers. Bray was even allowed, with accompani-
ment, to enter his room to retrieve a cell phone charger. During
the search of the common areas and Gonsalves’ room, Bray
asked Bruggeman questions about the legal process, which
Bruggeman answered in some detail. Bray was allowed to
examine the warrant. Bray was well aware that he was not the
subject of the search being conducted.

23	
      4 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth
      Amendment § 8.2(d) (5th ed. 2012).
24	
      See id. See, also, State v. Gorup, supra note 10.
25	
      See State v. Tyler, 291 Neb. 920, 870 N.W.2d 119 (2015).
26	
      State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996).
27	
      See State v. Graham, 241 Neb. 995, 492 N.W.2d 845 (1992) (account must
      be taken of possibly vulnerable subjective state of person who consents).
                                     - 931 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                 STATE v. BRAY
                               Cite as 297 Neb. 916

   After the search of the house was complete, Bray agreed
to speak with Bures out on the porch. Bray and Bures dis-
cussed whether Bray might consent to a search of his room.
At all times, the tone between Bray and Bures was conver-
sational. Bray was not physically restrained, and the officers
who accompanied Bures on the porch kept their distance.
When Bray made a call on his cell phone to discuss with
his legal counsel the possibility of giving consent, he was
given privacy.
   Bray was not restrained while Bures left the porch to
retrieve the consent form from his vehicle. Bray’s thorough
review of the consent form, discussions with Bures, and cell
phone call to an outside advisor, resulted in clear knowledge
of his right to withhold consent.28
   While Bray was likely motivated to consent by Bures’ state-
ment that he would otherwise seek a search warrant, courts
have never found statements by officers that they will seek a
warrant to be coercive per se.29 Bures did not deliberately give
Bray false information in order to coerce Bray into consenting.
And there is no evidence that Bures told Bray that a warrant
would certainly be approved.
   We can find no support under these facts for Bray’s claim
that his consent was involuntary because he was under duress.
Rather, the State proved that it was the product of free and
unconstrained choice.
                        2. Attenuation
   [14] We also agree with the district court that Bray’s con-
sent was sufficiently attenuated from the Fourth Amendment
violation such that the policies behind the exclusionary rule
were not served by suppressing the evidence seized during
the search. In determining whether the causal chain leading to
consent is sufficiently attenuated from a Fourth Amendment
violation to allow for the admission of the evidence, we

28	
      See State v. Konfrst, supra note 26.
29	
      See State v. Tucker, 262 Neb. 940, 636 N.W.2d 853 (2001).
                                       - 932 -
                 Nebraska Supreme Court A dvance Sheets
                         297 Nebraska R eports
                                   STATE v. BRAY
                                 Cite as 297 Neb. 916

consider three relevant factors: (1) the time elapsed between
the constitutional violation and the acquisition of the evidence
(temporal proximity), (2) the presence of intervening circum-
stances, and (3) the purpose and flagrancy of the official mis-
conduct.30 All relevant facts should be considered to determine
whether, under all the circumstances presented, the consent
was obtained by exploitation of the prior illegality.31

                    (a) Temporal Proximity
   Cases generally decline to find that the temporal proxim-
ity factor favors attenuation unless substantial time elapses
between an unlawful act and when the evidence is obtained.32
In this case, there was some adjournment after the illegal
search was completed. After the illegal search and before
Bray’s consent, Bures conversed with other officers, Bray and
Bures conversed on the back porch, Bray consulted with an
outside advisor on his cell phone, Bures retrieved the consent
form from his vehicle, Bures orally reviewed the form with
Bray, and Bray carefully read it. Still, these events did not take
a substantial period of time. We accordingly find that the tem-
poral proximity factor weighs against attenuation. But temporal
proximity is generally considered the least determinative factor
involved in the attenuation analysis.33

                (b) Intervening Circumstances
  [15] We find that intervening circumstances weigh in favor
of attenuation. Being thoroughly advised by law enforce-
ment of one’s legal rights, including the right to refuse

30	
      See, Brown v. Illinois, supra note 6; In re Interest of Ashley W., supra note
      18; State v. Gorup, supra note 10.
31	
      See, In re Interest of Ashley W., supra note 18; State v. Gorup, supra
      note 10.
32	
      Utah v. Strieff, supra note 16.
33	
      See, People v. Lewis, 975 P.2d 160 (Colo. 1999); 6 Wayne R. LaFave,
      Search and Seizure, A Treatise on the Fourth Amendment § 11.4(b) (5th
      ed. 2012).
                                      - 933 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                  STATE v. BRAY
                                Cite as 297 Neb. 916

consent, is an intervening circumstance.34 As already dis-
cussed, Bray was carefully informed by Bures of his legal
right to refuse consent.
   [16] The opportunity for legal consultation is likewise an
intervening circumstance and has been considered under vari-
ous circumstances critically important in determining that con-
sent was attenuated from a Fourth Amendment violation.35
Consulting with other advisors, such as family or friends, has
similarly weighed in favor of attenuation.36 Before deciding
to consent to the search, Bray consulted over his cell phone
with a trusted advisor, in privacy and without any time limit
imposed by the officers. And there is no evidence contradicting
Bray’s statement to the officers that he was consulting at that
time with his attorney.
   While some courts reason that voluntary consent is not in
itself an intervening circumstance,37 the facts here show that
Bray’s consent was not merely voluntary in the sense that
his will was not overborne. Bray’s thorough inquiries, the
advisements given, Bray’s consultation with counsel, and his
calm demeanor suggest that his consent was sufficiently an
act of free will to be attenuated from the Fourth Amendment
violation.38
   [17] We find no merit to Bray’s argument that his consent
was an insufficient act of free will because he considered it

34	
      See, U.S. v. Perry, 437 F.3d 782 (8th Cir. 2006); U.S. v. Mendoza-Salgado,
      964 F.2d 993 (10th Cir. 1992); U.S. v. Oguns, 921 F.2d 442 (2d Cir. 1990);
      State v. Lane, 726 N.W.2d 371 (Iowa 2007).
35	
      See, United States v. Wellins, 654 F.2d 550 (9th Cir. 1981); 29 Am. Jur. 2d
      Evidence § 651 (2008). See, also, e.g., U.S. v. Fox, 600 F.3d 1253 (10th
      Cir. 2010); State v. Weekes, 268 N.W.2d 705 (Minn. 1978); State v. Walsh,
      305 N.W.2d 687 (S.D. 1981).
36	
      See, U.S. v. Barone, 721 F. Supp. 2d 261 (S.D.N.Y. 2010); State v.
      Huddleston, 924 S.W.2d 666 (Tenn. 1996); Wicker v. State, 667 S.W.2d
      137 (Tex. Crim. App. 1984).
37	
      See, e.g., U.S. v. Fox, supra note 35.
38	
      See, Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824
      (1979); U.S. v. Herrera-Gonzalez, 474 F.3d 1105 (8th Cir. 2007).
                                     - 934 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                 STATE v. BRAY
                               Cite as 297 Neb. 916

futile to refuse consent once confronted with the items plainly
visible in his room. It is true that a suspect’s knowledge of
a prior illegal search can sometimes give rise to a sense that
refusing to consent would be futile.39 “‘[A] person might rea-
sonably think that refusing to consent to a search of his home
when he knows that the police have, in fact, already conducted
a search of his home, would be a bit like closing the barn door
after the horse is out.’”40
   In this case, though, there were still several horses in the
barn. The officers confronted Bray with a bong, a grinder,
and a small amount of marijuana that were plainly visible.
But Bray knew that the officers had not yet seen many other
incriminating items hidden in his room: two additional contain-
ers of marijuana, marijuana resin, two bottles of hashish oil,
psilocybin mushrooms, a bottle of hydrocodone prescribed to
Gonsalves, three loose amphetamine pills, a 100-gram weight,
a digital scale, plastic wrap, small plastic bags, and $1,500
in cash.
   In light of this, it was not futile to close the barn door.
Rather, Bray assessed the situation and determined he might
benefit from trying to cooperate instead of running the risk that
a search warrant for his room would be obtained. Indeed, his
attempts to lead and supervise the search indicate Bray may
have hoped to control the amount of incriminating evidence
that would be uncovered. The fact that the search did not turn
out as Bray may have hoped does not make his choice to con-
sent less an act of free will. We find that intervening circum-
stances weigh in favor of attenuation.
                  (c) Purpose and Flagrancy
   [18-20] Lastly, we consider the purpose and flagrancy
of the misconduct. The purpose and flagrancy of the offi-
cial misconduct is the most important attenuation factor.41

39	
      See U.S. v. Washington, 387 F.3d 1060 (9th Cir. 2004).
40	
      U.S. v. Haynes, 301 F.3d 669, 683 (6th Cir. 2002).
41	
      U.S. v. Simpson, 439 F.3d 490 (8th Cir. 2006).
                                       - 935 -
                 Nebraska Supreme Court A dvance Sheets
                         297 Nebraska R eports
                                   STATE v. BRAY
                                 Cite as 297 Neb. 916

This is because the underlying purpose of the attenuation
exception is to mark the point of diminishing returns of the
deterrence principle underlying the exclusionary rule.42 If
law enforcement did not likely foresee the challenged evi-
dence as a probable product of their illegality, then it could
not have been the motivating force behind it and the threat
of exclusion could not possibly operate as a deterrent to
such conduct.43
   [21,22] Purposeful and flagrant misconduct exists when (1)
the impropriety of the official’s misconduct was obvious or the
official knew, at the time, that his or her conduct was likely
unconstitutional but engaged in it nevertheless and (2) the mis-
conduct was investigatory in design and purpose and executed
“‘in the hope that something might turn up.’”44 Courts usually
do not deem police misconduct as “flagrant” unless the illegal
conduct was engaged in for the purpose of obtaining consent
or the police misconduct was calculated to cause surprise
or fear.45
   [23] The only misconduct in this case was Bures’ reckless
omission from the warrant affidavit. And it is undisputed
that Bures did not actually know that the warrant affida-
vit suffered any infirmities. Although Bray complains that
Bruggeman acted improperly when he accompanied Bray
into his room to retrieve a cell phone charger, we disagree. It
was proper for the officers to supervise and limit the move-
ments of the house’s occupants while conducting the search.
Officers can take reasonable measures to prevent occupants
from becoming disruptive, dangerous, or otherwise frustrating

42	
      6 LaFave, supra note 33, § 11.4(a). See, also, e.g., Brown v. Illinois, supra
      note 6; U.S. v. Simpson, supra note 41.
43	
      See id.
44	
      U.S. v. Simpson, supra note 41, 439 F.3d at 496 (quoting Brown v. Illinois,
      supra note 6).
45	
      Orosco v. State, 394 S.W.3d 65 (Tex. App. 2012).
                                      - 936 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                  STATE v. BRAY
                                Cite as 297 Neb. 916

the search.46 Such routine and preventative measures do not
depend on the presence of a threat, actual or perceived, to the
officers executing the warrant.47
   There is no evidence that the illegal search of the home
and Gonsalves’ room had a collateral objective of obtaining
consent to search additional bedrooms of the house. In other
words, the purpose of the misconduct in omitting information
from the warrant affidavit was not investigatory in the hope
that “something might turn up.” Further, the search was not
conducted in a way calculated to cause surprise or fear. To
the contrary, the officers were circumspect in carrying out the
warrant that they believed to be valid. With limited exceptions,
the officers did not cross the threshold into Bray’s room until
Bray’s consent was given. They did not seize the items in
plain view in Bray’s room or search his room before obtaining
his consent. And, as already discussed, such consent followed
extensive legal advisements and Bray’s outside consultation
with counsel.
   In sum, the officers’ conduct in obtaining Bray’s consent
was neither a flagrant nor purposeful exploitation of the pri-
mary illegality. We accept for purposes of this opinion that
Bures should have foreseen that the warrant was illegal, but
neither he nor the other officers involved should have foreseen
obtaining other occupants’ consent to search their bedrooms as
a probable product of the invalid search warrant. The invalid
search warrant thus could not have been the motivating force

46	
      See, Bailey v. United States, 568 U.S. 186, 133 S. Ct. 1031, 185 L. Ed. 2d
      19 (2013); Los Angeles County v. Rettele, 550 U.S. 609, 127 S. Ct. 1989,
      167 L. Ed. 2d 974 (2007); Muehler v. Mena, 544 U.S. 93, 125 S. Ct. 1465,
      161 L. Ed. 2d 299 (2005); Michigan v. Summers, 452 U.S. 692, 101 S. Ct.
      2587, 69 L. Ed. 2d 340 (1981). See, also, e.g., U.S. v. Jennings, 544 F.3d
      815 (7th Cir. 2008); Com. v. Hoffman, 403 Pa. Super. 530, 589 A.2d 737
      (1991).
47	
      Fields v. State, 203 Md. App. 132, 36 A.3d 1026 (2012). See cases cited
      supra note 46. Compare Dashiell v. State, 374 Md. 85, 821 A.2d 372
      (2003) (particularized suspicion required to frisk occupants).
                              - 937 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                          STATE v. BRAY
                        Cite as 297 Neb. 916

behind asking Bray to consent to a search. Accordingly, the
threat of exclusion could not possibly operate as a deterrent
to the illegal conduct at issue in this case. We find that the
last factor of the attenuation analysis weighs heavily in favor
of attenuation.
   Considering the three factors of temporal proximity, inter-
vening circumstances, and the flagrancy and purpose of the
official misconduct, we agree with the district court that the
causal chain leading to Bray’s consent was sufficiently attenu-
ated from a Fourth Amendment violation to be purged of the
primary taint.
                       VI. CONCLUSION
   The district court correctly determined that Bray’s consent
was voluntary and that it was not obtained by exploitation of
the prior illegality of the search warrant. Therefore, the court
properly admitted the evidence obtained during the search of
Bray’s room. Bray’s assignment of error has no merit.
                                                    A ffirmed.
