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316 Nebraska Reports

STATE V. HOEH

Cite as 316 Neb. 634

State of Nebraska, appellee, v.

Michael C. Hoehn, appellant.

___ N.W.3d ___

Filed May 17, 2024. No. S-22-885.

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 historical 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 independently of the trial court’s determination.

2. Constitutional Law: Search and Seizure. The Fourth Amendment protects against unreasonable searches and seizures.

3. Constitutional Law: Search and Seizure: Evidence. Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment 

generally cannot be used in a criminal proceeding against the victim of 

the illegal search and seizure.

4. Constitutional Law: Investigative Stop: Arrests: Probable Cause. An 

investigatory stop supported by reasonable suspicion and an arrest justified by probable cause do not violate the Fourth Amendment.

5. Constitutional Law: Police Officers and Sheriffs: Jurisdiction. A law 

enforcement officer’s statutory power and authority to enforce laws outside of the officer’s primary jurisdiction does not implicate the Fourth 

Amendment or article I, § 7, of the Nebraska Constitution.

6. Constitutional Law: Police Officers and Sheriffs: Jurisdiction: 

Investigative Stops: Arrests: Evidence. A law enforcement officer’s 

jurisdictional power and authority to make a stop or arrest is irrelevant 

to the admissibility, under the Fourth Amendment and article I, § 7, 

of the Nebraska Constitution, of the evidence obtained from the stop 

or arrest.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/10/2024 06:08 PM CDT
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7. Appeal and Error. If an appellee wants the appellate court to review an 

allegedly erroneous determination made by the district court sitting as an 

appellate court, it should cross-appeal to preserve the issue.

8. ____. A party cannot complain of an error the party invited the court 

to commit.

Petition for further review from the Court of Appeals, 

Bishop, Arterburn, and Welch, Judges; on appeal thereto 

from the District Court for Scotts Bluff County, Andrea D. 

Miller, Judge; on appeal thereto from the County Court for 

Scotts Bluff County, Kris D. Mickey, Judge. Judgment of 

Court of Appeals affirmed.

Bell Island, of Island Law Office, P.C., L.L.O., for appellant.

Michael T. Hilgers, Attorney General, Austin N. Relph, and 

Braden Dvorak, Senior Certified Law Student, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Freudenberg, J.

I. INTRODUCTION

Following the county court’s denial of a motion to suppress evidence from his stop and arrest, the defendant was 

convicted of driving under the influence (DUI). The district 

court affirmed the conviction on the ground that the arresting 

officer had jurisdictional authority to make the stop and arrest 

pursuant to Neb. Rev. Stat. § 29-215(3)(c) (Reissue 2016). The 

Nebraska Court of Appeals disagreed with the district court’s 

interpretation of § 29-215(3)(c) and found that the officer 

lacked jurisdictional authority to make the stop and arrest. 1

The Court of Appeals held that under the good faith exception 

to the Fourth Amendment’s exclusionary rule, the defendant’s 

conviction, based on the evidence from his stop and arrest, 

1 See State v. Hoehn, 32 Neb. App. 446, 999 N.W.2d 599 (2023).
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did not violate the Fourth Amendment to the U.S. Constitution 

and article I, § 7, of the Nebraska Constitution. 2

We granted further review. For reasons different than those 

stated by either the Court of Appeals or the district court, 

we affirm the defendant’s conviction based on the evidence 

derived from the stop and arrest. We hold that it is the lack 

of reasonable suspicion or probable cause that renders a warrantless search and seizure unreasonable for purposes of the 

Fourth Amendment’s exclusionary rule, not the law enforcement officer’s jurisdictional authority under state law.

II. BACKGROUND

1. Facts Leading to Arrest

In May 2021, Officer Matt Rockwell of the Minatare Police 

Department left the city limits of Minatare, Nebraska, after a 

citizen reported that a white pickup “was all over the roadway.” 

After leaving his primary jurisdiction, Rockwell observed a 

white pickup make a “wide turn” onto a highway heading east. 

Rockwell observed the pickup straddling the centerline and 

trash coming from the driver’s-side window.

Rockwell activated his vehicle’s lights and began following the pickup. Rockwell “thought there was going to be an 

accident” after he watched the pickup turn into oncoming 

traffic and down into the grass median. The driver “accelerated really hard . . . throwing grass and dirt up . . . away from 

the pickup.”

After driving back up onto the highway and “accelerat[ing] 

rapidly,” the pickup pulled over to the right side of the highway and stopped. Rockwell identified the driver as Michael 

C. Hoehn. Rockwell observed Hoehn had “[s]lurred speech, 

bloodshot, watery eyes” and detected “a strong odor of an 

alcoholic beverage coming out of the vehicle.”

Rockwell administered a preliminary breath test and other 

field sobriety tests, which Hoehn failed, and then Rockwell 

2 See id.
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arrested Hoehn for DUI. These events occurred in Scotts Bluff 

County, and the State does not dispute that “the above events, 

including the pursuit and stop of the vehicle, occurred on roadways outside” of Minatare. 3

Hoehn was charged in Scotts Bluff County Court with firstoffense DUI with a blood alcohol content of .15 or more, a 

Class W misdemeanor.

2. Motion to Suppress

Hoehn filed a motion to suppress “all fruits of the illegal 

search and seizure, and his subsequent arrest.” He alleged in 

the motion that the evidence “was unlawfully seized without a warrant and without probable cause in violation of the 

Fourth and Fourteenth Amendment of the U.S. Constitution 

and also Art. I §7 of the Nebraska Constitution, and all applicable statutes.”

(a) Arguments at Suppression Hearing

At the suppression hearing, Rockwell testified to the facts 

set forth above. During direct examination, defense counsel 

told the county court: “[W]e’re going to ask just to limit this 

to the stop and arrest. I don’t think anything after that is necessary for the motion to suppress. We’ll withdraw anything 

beyond that point.” Following Rockwell’s testimony, the following exchange occurred:

[The Court:] I would entertain your argument at this 

time, counsel.

[Defense counsel:] Your Honor, I think that as we discussed, whether or not they have authority and whether or 

not they made a proper exception to the warrant requirement, I think in this instance there’s no demonstration of 

that proper authority.

State vs. Oerlich — and, unfortunately, I don’t know 

how — I think it’s O-e-r-l-i-c-h, but I am not positive 

— I think demonstrates here that there is insufficient 

3 Brief for appellee in support of petition for further review at 4.
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showing in which they were authorized to make this stop, 

Your Honor.

. . . .

[The State:] Yeah . . . I just went ahead and put everything on because the motion to suppress talked about 

not having a warrant, which, of course, you don’t need a 

warrant to make a traffic stop.

The guy is driving drunk. He’s all over the road, 

and he’s throwing beer cans out the window. That’s a 

no-brainer. As far as the warrant issue, he consented 

to a search and voluntarily agreed to give a sample of 

his blood.

That’s an exception to the warrant requirement.

(b) State v. Ohlrich

While not further discussed by the parties at the hearing, in 

State v. Ohlrich,

 4 the Court of Appeals reversed the defend

ant’s conviction and remanded the cause with directions for 

the trial court to grant the defendant’s motion to suppress 

evidence derived from his arrest because there was insufficient evidence of an interlocal agreement under § 29-215(2)(d) 

granting the officer “authority” to execute the warrantless 

arrest that occurred outside of his primary jurisdiction. The 

defendant had alleged the evidence obtained after his arrest 

was “‘fruit of the tree of his illegal arrest.’” 5 The Court of 

Appeals agreed.

(c) County Court’s Decision

Following the parties’ arguments at the hearing on Hoehn’s 

motion to suppress, the county court pronounced it believed 

the State had “proper authority” to stop and arrest Hoehn and 

that there was “probable cause” to do so:

[A]s to the stop and arrest as argued by counsel, I do 

find the state had proper authority to make a traffic 

4 State v. Ohlrich, 20 Neb. App. 67, 74, 817 N.W.2d 797, 804 (2012).

5 Id. at 71, 817 N.W.2d at 801.
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stop upon observing the driving through the median, the 

taking the wide turn, the driving across the center line 

next to the median. The odor of alcoholic beverage, his 

speech being slurred, his eyes bloodshot and watery, his 

inability to complete the field sobriety tests . . . as well 

as the preliminary breath test that was administered, 

I find there was sufficient probable cause to — for 

the arrest.

On that basis I find that there is no merit to the motion 

to suppress and it should be and hereby is overruled.

The county court set forth in its written order: “A careful 

examination of the evidence concerning the stop and arrest of 

[Hoehn] shows the motion to suppress is without merit. There 

was sufficient evidence justifying the traffic stop, and the arrest 

is supported by ample evidence of probable cause.”

3. Stipulated Trial and Sentencing

Pursuant to a plea agreement, the State amended the charge 

to first-offense DUI with a blood alcohol content of .08 or 

more, also a Class W misdemeanor, and said it would not 

oppose a sentence of probation. Further, the parties agreed to a 

bench trial upon the transcript of the suppression hearing and 

stipulated that a blood test produced a result of “.245.”

In the stipulation, defense counsel objected to the evidence 

“based on his Motion to Suppress.” During the stipulated 

bench trial, Hoehn renewed his motion to suppress, stating: 

“And just before we start[,] I’d just make my objection on the 

Fourth and Fourteenth Amendment, similar provisions of the 

Nebraska Constitution, as addressed in the motion to suppress 

hearing on August 16th, Your Honor.” The court overruled 

the objection.

The court found Hoehn guilty of the charged offense and 

sentenced him to 12 months’ probation, 40 hours of community 

service, a $500 fine, and a 60-day license revocation, along 

with an order authorizing an ignition interlock permit.
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4. Appeal to District Court

Hoehn timely appealed to the district court, assigning that 

the county court erred in its decision to overrule his motion 

to suppress and that there was insufficient evidence to sustain 

his conviction. While Hoehn’s brief is not in our record, the 

district court’s written order states that Hoehn argued on appeal 

that Rockwell did not have jurisdictional authority to perform 

the traffic stop. Also, the district court characterized Hoehn’s 

motion to suppress as “challeng[ing] the officer[’]s authority to 

stop [Hoehn] outside of his primary jurisdiction.” The district 

court thus addressed § 29-215.

(a) § 29-215

Section 29-215 generally describes that an officer has “the 

power and authority to enforce the laws of this state . . . anywhere within his or her primary jurisdiction” and identifies 

circumstances when a law enforcement officer who is “beyond 

his or her primary jurisdiction” has “the power and authority 

to enforce the laws of this state.” Section 29-215 provides:

(1) A law enforcement officer has the power and 

authority to enforce the laws of this state and of the 

political subdivision which employs the law enforcement 

officer or otherwise perform the functions of that office 

anywhere within his or her primary jurisdiction.

(2) Any law enforcement officer who is within this 

state, but beyond his or her primary jurisdiction, has the 

power and authority to enforce the laws of this state or 

any legal ordinance of any city or incorporated village 

or otherwise perform the functions of his or her office, 

including the authority to arrest and detain suspects, as 

if enforcing the laws or performing the functions within 

his or her primary jurisdiction in the following cases:

(a) Any such law enforcement officer, if in a fresh 

attempt to apprehend a person suspected of committing 

a felony, may follow such person into any other jurisdiction in this state and there arrest and detain such person 
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and return such person to the law enforcement officer’s 

primary jurisdiction;

(b) Any such law enforcement officer, if in a fresh 

attempt to apprehend a person suspected of committing 

a misdemeanor or a traffic infraction, may follow such 

person anywhere in an area within twenty-five miles of 

the boundaries of the law enforcement officer’s primary 

jurisdiction and there arrest and detain such person and 

return such person to the law enforcement officer’s primary jurisdiction;

. . . .

(d) Any municipality or county may, under the provisions of the Interlocal Cooperation Act or the Joint 

Public Agency Act, enter into a contract with any other 

municipality or county for law enforcement services or 

joint law enforcement services. Under such an agreement, 

law enforcement personnel may have such enforcement 

authority within the jurisdiction of each of the participating political subdivisions if provided for in the agreement. Unless otherwise provided in the agreement, each 

participating political subdivision shall provide liability 

insurance coverage for its own law enforcement personnel 

as provided in section 13-1802.

(3) When probable cause exists to believe that a person 

is operating or in the actual physical control of any motor 

vehicle, motorboat, personal watercraft, or aircraft while 

under the influence of alcoholic liquor or of any drug 

or otherwise in violation of section 28-1465, 28-1466, 

28-1472, 37-1254.01, 37-1254.02, 60-4,163, 60-4,164, 

60-6,196, 60-6,197, 60-6,211.01, or 60-6,211.02, the law 

enforcement officer has the power and authority to do 

any of the following or any combination thereof:

(a) Transport such person to a facility outside of the 

law enforcement officer’s primary jurisdiction for appropriate chemical testing of the person;
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(b) Administer outside of the law enforcement officer’s 

primary jurisdiction any post-arrest test advisement to the 

person; or

(c) With respect to such person, perform other procedures or functions outside of the law enforcement officer’s 

primary jurisdiction which are directly and solely related 

to enforcing the laws that concern a person operating or 

being in the actual physical control of any motor vehicle, 

motorboat, personal watercraft, or aircraft while under 

the influence of alcoholic liquor or of any other drug 

or otherwise in violation of section 28-1465, 28-1466, 

28-1472, 37-1254.01, 37-1254.02, 60-4,163, 60-4,164, 

60-6,196, 60-6,197, 60-6,211.01, or 60-6,211.02.

(b) District Court’s Decision

The district court concluded that, pursuant to § 29-215(3)(c), 

when probable cause exists, officers have authority to perform 

stops and arrests outside of their primary jurisdiction that are 

solely related to enforcing laws that concern a person operating or in actual physical control of any motor vehicle. The 

district court concluded that because Rockwell had probable 

cause to believe Hoehn was operating a motor vehicle under 

the influence and the stop was solely related to his operation 

of a motor vehicle, Rockwell had jurisdictional authority to 

stop and arrest Hoehn, and that the motion to suppress was 

properly overruled. The court rejected Hoehn’s argument that 

there was insufficient evidence to sustain the conviction.

5. Court of Appeals

(a) Issues Raised on Appeal

Hoehn appealed the district court’s determination to the 

Court of Appeals. He assigned as error that the district court 

erred in affirming the county court’s denial of his motion 

to suppress. He did not assign as error the county court’s 

determination that the evidence was insufficient to support 

his conviction. Hoehn argued that observation of his erratic 

driving was insufficient to establish probable cause and that 
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Rockwell could not leave his jurisdiction without probable 

cause pursuant to § 29-215(3). He argued that even if there 

was probable cause for his arrest, § 29-215(3) authorizes only 

postarrest actions and does not authorize an officer to make a 

stop outside of the officer’s jurisdiction. Hoehn did not argue 

that § 29-215 independently granted him a statutory right 

to suppress evidence in a criminal trial when it is violated. 

Rather, he indicated his right to suppress the evidence derived 

from the stop was based solely on the Fourth Amendment and 

article I, § 7, of the Nebraska Constitution.

The State argued on appeal that the district court’s interpretation of § 29-215(3) was correct and encouraged the Court of 

Appeals to affirm for the same reasons stated by the district 

court. The State asserted that pursuant to § 29-215(3), if probable cause exists to believe an individual is operating a motor 

vehicle while under the influence, law enforcement has the 

authority to stop the individual outside of the officer’s primary 

jurisdiction. The State also asserted there was probable cause 

for Rockwell to believe Hoehn was driving while under the 

influence. The State did not suggest the district court erred by 

considering Rockwell’s power and authority under § 29-215, 

because that issue was inadequately raised to, and not determined by, the county court. To the contrary, the State told 

the Court of Appeals at oral arguments that Hoehn had sufficiently raised § 29-215 to the county court.

(b) Court of Appeals’ Decision

The Court of Appeals found that Rockwell had probable 

cause to stop Hoehn’s vehicle. Nevertheless, it agreed with 

Hoehn’s reading of § 29-215(3)(c) and disagreed with the district court’s interpretation of the statute. The Court of Appeals 

held that, even with probable cause, the stop was outside of 

Rockwell’s jurisdictional authority as described by § 29-215.

(i) Construction of § 29-215

Applying the ejusdem generis canon of construction, the 

Court of Appeals interpreted § 29-215(3)(c) as a grant of 
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power of the same limiting type as those powers set forth in 

§ 29-215(3)(a) and (b), which allow an officer to transport a 

person to a facility for chemical testing and to administer a 

postarrest test advisement outside the officer’s primary jurisdiction. In other words, the majority interpreted § 29-215(3)(c) 

“as granting other procedural-type powers relating to enforcing 

laws outside the officer’s primary jurisdiction incident to an 

arrest or detention.” 6

(ii) Fourth Amendment and 

State v. Cuny

The Court of Appeals next addressed whether the Fourth 

Amendment applies to a violation of § 29-215 and, if so, 

whether the exclusionary rule required the suppression of 

evidence obtained from the stop and arrest of Hoehn. Relying 

on State v. Cuny,

 7 the court determined that a violation of the 

jurisdictional requirements in § 29-215 triggers the Fourth 

Amendment, thereby implicating the exclusionary rule.

Cuny involved the stop of a vehicle in Nebraska by out-ofstate officers, who had observed the vehicle in their jurisdiction and followed it beyond the border. The driver was convicted of misdemeanor DUI, following the denial of a motion 

to suppress based on the officers’ alleged lack of power and 

authority to make the stop and arrest. We explained that the 

power of a police officer under common law was limited to 

the boundaries of the governmental unit by which the officer 

was appointed, unless acting in “fresh and continued pursuit” 

of a suspected felon who had committed an offense in the 

officer’s presence and within the officer’s territorial jurisdiction. 8 Because the defendant was charged and convicted of a 

misdemeanor, this common-law “fresh pursuit” exception did 

not apply and any authority of the officers must derive from 

statutory law. We held that § 29-215 applies only to Nebraska 

6 State v. Hoehn, supra note 1, 32 Neb. App. at 461, 999 N.W.2d at 611.

7 State v. Cuny, 257 Neb. 168, 595 N.W.2d 899 (1999).

8 See id. at 172, 595 N.W.2d at 902.
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law enforcement officers and does not authorize an out-of-state 

police officer to stop and arrest a suspect for a misdemeanor 

DUI inside Nebraska. We did not otherwise address the meaning of the various subsections of the statute. We concluded 

that the evidence obtained from the stop and arrest of the 

defendant, which “was the fruit of an illegal search or seizure, 

in violation of the Fourth Amendment to the U.S. Constitution 

and article I, § 7, of the Nebraska Constitution, [was] inadmissible in a state prosecution, and must be excluded.” 9

The Court of Appeals acknowledged that this court’s decision in Cuny lacked any analysis regarding the interplay 

between a statutory jurisdictional violation under § 29-215 

and the Fourth Amendment. It further recognized the existence 

of case law from other jurisdictions holding that statutory 

violations do not implicate an individual’s Fourth Amendment 

rights. Nevertheless, the majority elected to follow this court’s 

holding in Cuny, because of its factual similarities and to 

avoid reaching an outcome inconsistent with our precedent. 

Thus, the Court of Appeals held that Hoehn’s rights under 

the Fourth Amendment to the U.S. Constitution and article I, 

§ 7, of the Nebraska Constitution were violated, invoking the 

exclusionary rule.

(iii) Good Faith Exception to 

Exclusionary Rule

Lastly, the Court of Appeals determined that the good 

faith exception to the exclusionary rule applied. 10 Because 

the exclusionary rule was created to deter police misconduct 

rather than to punish errors, 11 it does not apply to objectively 

reasonable law enforcement activity. 12 Because § 29-215(3)(c) 

had not previously been construed by an appellate court at the 

9 See id. at 173, 595 N.W.2d at 903.

10 See, e.g., State v. Simons, 315 Neb. 415, 996 N.W.2d 607 (2023); State v. 

Hatfield, 304 Neb. 66, 933 N.W.2d 78 (2019).

11 See State v. Kruse, 303 Neb. 799, 931 N.W.2d 148 (2019).

12 See State v. Hoerle, 297 Neb. 840, 901 N.W.2d 327 (2017).
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time of the violation, the Court of Appeals held that “Rockwell 

could have reasonably believed that he had jurisdictional 

authority to stop and arrest Hoehn.” 13 And because Rockwell 

had probable cause justifying the stop and arrest, the Court 

of Appeals determined Rockwell’s actions were not carried 

out in a deliberate, reckless, or grossly negligent disregard of 

Hoehn’s Fourth Amendment rights. Accordingly, albeit on different grounds from those assigned by the district court, the 

Court of Appeals affirmed the district court’s decision, affirming Hoehn’s conviction in the county court based on evidence 

derived from the stop and arrest.

(iv) Concurring Opinion

In a concurring opinion, Judge Bishop agreed with the district court’s interpretation of § 29-215(3)(c) and disagreed with 

the majority opinion’s reading of the statute. Judge Bishop 

observed that § 29-215(3) makes no reference to whether 

the officer is within or beyond the officer’s primary jurisdiction. Thus,

if there is probable cause to believe a person is operating a vehicle under the influence of alcohol or drugs, 

whether within or beyond an officer’s primary jurisdiction, a law enforcement officer has the power and 

authority to transport the person to a facility outside the 

officer’s primary jurisdiction for chemical testing, see 

§ 29-215(3)(a); to administer, outside the officer’s primary jurisdiction, any post-arrest test advisement to the 

person, see § 29-215(3)(b); and then the catch-all provision, to “perform other procedures or functions outside of 

the law enforcement officer’s primary jurisdiction which 

are directly and solely related to enforcing the laws that 

concern a person operating or being in the actual physical 

control of any motor vehicle . . . while under the influence” of alcohol or drugs, § 29-215(3)(c). 14

13 State v. Hoehn, supra note 1, 32 Neb. App. at 465, 999 N.W.2d at 613.

14 Id. at 471, 999 N.W.2d at 616 (Bishop, J., concurring).
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Judge Bishop further stated that even if the majority properly 

construed § 29-215(3), she disagreed with its determination 

that a violation of the statute implicates the Fourth Amendment. 

Relying on cases such as Virginia v. Moore 15 and Marksmeier 

v. Davie,

 16 Judge Bishop explained that state restrictions do not 

alter Fourth Amendment protections.

We granted the State’s and Hoehn’s petitions for further 

review.

III. ASSIGNMENTS OF ERROR

Hoehn assigns that the Court of Appeals erred in “determining the exclusionary rule did not apply” to Rockwell’s allegedly unconstitutional stop outside of his primary jurisdiction.

The State assigns that the Court of Appeals erred in (1) 

addressing the merits of Hoehn’s argument because he allegedly did not raise it to the county court, (2) its interpretation 

of § 29-215(3)(c), and (3) determining that a violation of 

§ 29-215 implicates the Fourth Amendment.

IV. STANDARD OF REVIEW

[1] 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. 17

Regarding historical 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 independently of the trial 

court’s determination. 18

V. ANALYSIS

At issue is whether the Court of Appeals was correct in 

holding that the district court did not err in affirming the 

15 Virginia v. Moore, 553 U.S. 164, 128 S. Ct. 1598, 170 L. Ed. 2d 559 

(2008).

16 Marksmeier v. Davie, 622 F.3d 896 (8th Cir. 2010).

17 State v. Simons, supra note 10.

18 Id.
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county court’s ruling denying Hoehn’s motion to suppress 

and overruling Hoehn’s renewal of the motion at trial based 

“on the Fourth and Fourteenth Amendment, similar provisions 

of the Nebraska Constitution.” Hoehn’s sole argument on 

further review is that the Court of Appeals erred in determining it was reasonable for an officer in Rockwell’s position to 

mistakenly believe he had the statutory power and authority 

to make the stop and that therefore, it serves no deterrent 

purpose to apply the exclusionary rule. He does not argue 

that the Court of Appeals erred in determining Rockwell had 

probable cause to make the stop.

[2-4] The Fourth Amendment protects against unreasonable 

searches and seizures. 19 Under the exclusionary rule, evidence 

obtained in violation of the Fourth Amendment generally 

cannot be used in a criminal proceeding against the victim 

of the illegal search and seizure. 20 However, an investigatory 

stop supported by reasonable suspicion and an arrest justified 

by probable cause do not violate the Fourth Amendment. 21

Article I, § 7, of the Nebraska Constitution is phrased identically to the Fourth Amendment. We have previously declined 

to afford greater protections against governmental searches 

and seizures under the Nebraska Constitution than its federal 

counterpart. 22 Hoehn makes no argument that we should do 

so here.

[5] In line with the U.S. Supreme Court’s holding in 2008 

in Moore,

 23 we hold that a law enforcement officer’s statutory 

power and authority to enforce laws outside of the officer’s 

primary jurisdiction does not implicate the Fourth Amendment 

or article I, § 7, of the Nebraska Constitution. We thus find 

merit to the State’s assignment that the Court of Appeals 

19 See id.

20 See id.

21 See State v. Drake, 311 Neb. 219, 971 N.W.2d 759 (2022).

22 See State v. Havlat, 222 Neb. 554, 385 N.W.2d 436 (1986).

23 Virginia v. Moore, supra note 15.
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erred in determining a violation of § 29-215 implicates the 

Fourth Amendment. Nevertheless, we affirm the Court of 

Appeals’ ultimate determination that the evidence obtained 

from the stop and arrest was properly admitted at trial and 

that Hoehn’s conviction should stand.

1. Virginia v. Moore

In Moore, the U.S. Supreme Court clarified that whether 

a search is reasonable under the Fourth Amendment “has 

never depend[ed] on the law of the particular State in which 

the search occurs.” 24 The Court accordingly held that where 

there was probable cause for the defendant’s arrest for driving 

with a suspended license, the trial court properly denied the 

defendant’s motion to suppress evidence found in the search 

pursuant to that arrest, even though the arresting officer lacked 

authority to make the arrest because driving with a suspended 

license was not an arrestable offense under state law. 25

The Court explained that the reasonableness of a search 

and seizure under the Fourth Amendment is analyzed “‘by 

assessing, on the one hand, the degree to which it intrudes 

upon an individual’s privacy and, on the other, the degree to 

which it is needed for the promotion of legitimate governmental interests.’” 26 “In a long line of cases,” said the Court, 

it has been held that “when an officer has probable cause to 

believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in 

doubt. The arrest is constitutionally reasonable.” 27 This test 

24 Id., 553 U.S. at 172 (internal quotation marks omitted). See, Whren v. 

United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996); 

California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30 

(1988); Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 

(1967).

25 See Virginia v. Moore, supra note 15.

26 Id., 553 U.S. at 171 (quoting Wyoming v. Houghton, 526 U.S. 295, 119 S. 

Ct. 1297, 143 L. Ed. 2d 408 (1999)).

27 Virginia v. Moore, supra note 15, 553 U.S. at 171.
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of reasonableness “serves interests that have long been seen 

as sufficient to justify the seizure,” ensuring that “a suspect 

appears to answer charges and does not continue a crime, 

and it safeguards evidence and enables officers to conduct an 

in-custody investigation.” 28 It also serves the “‘essential interest in readily administrable rules’” and the “need for a brightline constitutional standard.” 29

The Court explained that the Fourth Amendment was never 

understood as “a redundant guarantee of whatever limits on 

search and seizure legislatures might have enacted” 30 and, 

“if anything,” reflected a skepticism of the “index of reasonableness” set forth under those laws. 31 Furthermore, said the 

Court, nothing suggests the Fourth Amendment was intended 

to incorporate subsequently enacted statutes. Even in states 

with similar constitutional provisions prohibiting unreasonable searches and seizures, “citizens who claimed officers 

had violated state restrictions on arrest did not claim that the 

violations also ran afoul of the state constitutions.” 32

Additional state protections of privacy beyond what the 

Fourth Amendment requires are exclusively matters of state 

law. 33 Indeed, to extend Fourth Amendment protections, which 

often include the exclusionary rule, to violations of state 

laws protecting “individual privacy and dignity more than 

the Fourth Amendment requires,” 34 would take control away 

from states to decide what remedy should attach to such state 

law violations.

28 Id., 553 U.S. at 173.

29 Id., 553 U.S. at 175.

30 Id., 553 U.S. at 168.

31 Id., 553 U.S. at 169.

32 Id., 553 U.S. at 170.

33 See Virginia v. Moore, supra note 15.

34 Id., 453 U.S. at 174.
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The Court pointed to a prior case, Whren v. United States,

 35

wherein it held that the police had acted reasonably, under 

the Fourth Amendment, in stopping a car, even though they 

lacked “authority” under state law to make the stop because 

they were in plainclothes in an unmarked vehicle. 36 It reiterated what it said in Whren—that the Fourth Amendment protections cannot vary from place to place and time to time in 

accordance with state laws governing “local law enforcement 

practices.” 37 “[W]hen States go above the Fourth Amendment 

minimum, the Constitution’s protections concerning search 

and seizure remain the same.” 38 To do otherwise would produce a vague and unpredictable constitutional regime “only as 

easy to apply as the underlying state law, and state law can be 

complicated indeed.” 39

2. Eighth Circuit

Applying Moore to an arrest by an off-duty Nebraska law 

enforcement officer, the Eighth Circuit Court of Appeals, 

in Marksmeier,

 40 held that an arrest outside of the officer’s 

power and authority pursuant to § 29-215, but with probable 

cause, does not violate the Fourth Amendment. In an action 

brought under “42 U.S.C. § 1983,” the plaintiff in Marksmeier 

asserted that, pursuant to § 29-215(1), the arresting officer 

lacked the power and authority to effectuate the arrest. 41 The 

Eighth Circuit responded that it was unnecessary to decide 

whether the arresting officer was acting within his jurisdictional authority at the time of the arrest. It held that even if 

35 Whren v. United States, supra note 24.

36 Id., 517 U.S. at 172.

37 Id.

38 Id., 517 U.S. at 173.

39 Id., 517 U.S. at 175.

40 Marksmeier v. Davie, supra note 16.

41 Id. at 897.
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the arrest violated Nebraska law, it did not violate the Fourth 

Amendment, as it was supported by probable cause. 42

A similar result was reached by the Eighth Circuit in Rose 

v. City of Mulberry, Arkansas.

 43 The court held that the arrest 

by an Arkansas officer who was acting outside of his jurisdiction in violation of state law did not violate the Fourth 

Amendment, because the officer had probable cause to detain 

and arrest the driver after witnessing the driver commit a traffic violation.

3. Other State and Federal Decisions

Several other state and federal courts have likewise held 

that a stop supported by reasonable suspicion, or an arrest 

supported by probable cause, does not violate the Fourth 

Amendment, even if the officer acted outside of the officer’s 

statutory jurisdiction. 44

For example, the First Circuit Court of Appeals, in U.S. v. 

Ryan,

 45 held that the Fourth Amendment does not require the 

exclusion of evidence gathered after an arrest made outside 

of a federal law enforcement officer’s statutory jurisdiction. 

The court explained that “an officer . . . arrest[ing] an obviously intoxicated driver just outside that officer’s territorial 

jurisdiction, after a lawful traffic stop, is ‘not remotely’ akin 

42 Marksmeier v. Davie, supra note 16.

43 Rose v. City of Mulberry, Arkansas, 533 F.3d 678 (8th Cir. 2008).

44 See, U.S. v. Ryan, 731 F.3d 66 (1st Cir. 2013); U.S. v. Jones, 701 F.3d 

1300 (10th Cir. 2012); U.S. v. Goings, 573 F.3d 1141 (11th Cir. 2009). 

See, also, U.S. v. Castleman, 795 F.3d 904 (8th Cir. 2015); State v. Barton, 

669 S.W.3d 661 (Mo. 2023); Westra v. Iowa Dept. of Transportation, 

929 N.W.2d 754 (Iowa 2019); State v. Gates, 145 So. 3d 288 (La. 2014); 

State v. Morris, 92 A.3d 920 (R.I. 2014); State v. Jones, 121 Ohio St. 

3d 103, 902 N.E.2d 464 (2009); State v. Smith, 154 N.H. 113, 908 A.2d 

786 (2006); People v. Hamilton, 465 Mich. 526, 638 N.W.2d 92 (2002), 

abrogated on other grounds, Bright v. Ailshie, 465 Mich. 770, 641 N.W.2d 

587; People v. Wolf, 635 P.2d 213 (Colo. 1981) (en banc); 1 Charles E. 

Torcia, Wharton’s Criminal Procedure § 59 (13th ed. 1989).

45 U.S. v. Ryan, supra note 44.
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to the invasions of privacy that might call for the exclusion of 

evidence [under the Fourth Amendment].” 46

The Supreme Court of Ohio, in State v. Jones,

 47 similarly held that the fact that the officer conducting the stop 

of the defendant was outside his jurisdiction and his reasons 

for being there were “irrelevant to the Fourth Amendment 

analysis.” 48 Instead, the “sole focus of the inquiry should [be] 

on the stop itself.” 49

The Supreme Court of Michigan, in People v. Hamilton,

 50

also held that the fact that an arrest was made outside of 

the officer’s jurisdiction in violation of state law did not 

require exclusion of the evidence obtained after the arrest. 

“The Fourth Amendment exclusion rule,” explained the court, 

“applies to constitutionally invalid arrests, not merely statutorily illegal arrests.” 51

4. Nebraska Case Law

Cuny was decided by this court before the U.S. Supreme 

Court’s decision in Moore and the Eighth Circuit’s decision in 

Marksmeier.

 52 And we did not discuss in Cuny why the “unlawful” nature of the stop and arrest, due to it being beyond the 

officers’ jurisdictional authority, made the evidence obtained 

therefrom a violation of the Fourth Amendment to the U.S. 

Constitution and article I, § 7, of the Nebraska Constitution.

In Cuny, we cited to State v. Masat,

 53 decided in 1992, 

wherein we conducted a very similar analysis. After discussing that the officer lacked territorial jurisdiction under either 

46 Id. at 70.

47 State v. Jones, supra note 44.

48 Id. at 107-08, 902 N.E.2d at 468.

49 Id. at 108, 902 N.E.2d at 468.

50 People v. Hamilton, supra note 44.

51 Id. at 532-33, 638 N.W.2d at 96.

52 See State v. Cuny, supra note 7. See, also, Virginia v. Moore, supra note 

15; Marksmeier v. Davie, supra note 16.

53 State v. Masat, 239 Neb. 849, 479 N.W.2d 131 (1992).
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statutory or common law to stop the defendant’s vehicle outside the city limits, we held in Masat that the trial court erred 

in failing to suppress the evidence derived from the arrest of a 

driver for DUI. We said, “Evidence obtained as the fruit of an 

illegal search or arrest, in violation of the fourth amendment 

to the U.S. Constitution and the provisions of article I, § 7, 

of the Nebraska Constitution, is inadmissible in a prosecution 

in this state and must be excluded.” 54 We did not examine 

why the lack of jurisdictional authority is cognizable under 

the Fourth Amendment and the identical provision of the 

Nebraska constitution.

In Masat, we relied on State v. Tingle,

 55 decided the year 

before. In Tingle, after determining that the officer’s arrest 

of the defendant was beyond the officer’s “geographical 

jurisdiction” 56 under state law, both statutory and common 

law, we cited to the general proposition that evidence obtained 

as the fruit of an illegal search or seizure, in violation of 

the Fourth amendment to the U.S. Constitution and article I, 

§ 7, of the Nebraska Constitution, is inadmissible in a state 

prosecution and must be excluded. We then held, without 

further discussion or citation to authority, that “the arrest was 

constitutionally illegal and that the trial court was clearly 

wrong in not suppressing all evidence obtained subsequent to 

such arrest.” 57

In Tingle, we cited to State v. Knudsen 58 for the proposition 

that “[a]lthough the illegality of the arrest in question gives 

rise to collateral rights and remedies such as the exclusionary 

rule,” 59 it is not a defense to the crime. In Knudsen, however, 

we made no reference to the exclusionary rule. We affirmed 

54 Id. at 852, 479 N.W.2d at 133.

55 State v. Tingle, 239 Neb. 558, 477 N.W.2d 544 (1991).

56 Id. at 563, 477 N.W.2d at 548.

57 Id. at 566, 477 N.W.2d at 550.

58 State v. Knudsen, 201 Neb. 584, 270 N.W.2d 926 (1978).

59 State v. Tingle, supra note 55, 239 Neb. at 566, 477 N.W.2d at 550.
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a conviction for DUI after the defendant was stopped and 

arrested by a police officer allegedly acting outside of the city 

limits beyond which he had no authority to act. The defend

ant contended that the arrest was illegal because the officer 

had no authority to make an arrest beyond the city limits and, 

therefore, the judgment should be reversed. We said it was 

unnecessary to determine if the arrest was “illegal” because 

“the validity of the arrest was of no consequence so far as the 

prosecution for the offense was concerned.” 60 We continued, 

“Although the illegality of an arrest may give rise to other collateral rights and remedies, it ordinarily is not a defense to the 

crime for which the arrest was made.” 61

The Legislature adopted 1994 Neb. Laws, L.B. 254, § 1, 

now codified at § 29-215, in response to the effect of the 

holding in Tingle. 62 There is no case before Tingle discussing 

the admissibility of evidence derived from a stop or arrest 

conducted by a law enforcement officer outside of that officer’s territorial jurisdiction. The Court of Appeals’ decision 

in Ohlrich 63 is the only case in Nebraska decided after Moore 

and Marksmeier on this issue, but Ohlrich discussed neither 

case, nor Cuny, in reaching its conclusion that the trial court 

did not err in suppressing the evidence obtained following the 

defendant’s arrest that was effectuated by an officer’s acting 

outside of his statutory jurisdiction. Likewise, the opinion presented little reasoning to support its holding.

Our case law holding that the Fourth Amendment and 

the corresponding provision of the Nebraska Constitution 

is implicated by the admission of evidence from an “illegal” stop or arrest outside an officer’s territorial jurisdiction 

appears based on a misunderstanding of the nature and scope 

of the Fourth Amendment, which has since been clarified by 

60 State v. Knudsen, supra note 58, 201 Neb. at 585, 270 N.W.2d at 926.

61 Id.

62 See State v. Connick, 5 Neb. App. 176, 557 N.W.2d 713 (1996).

63 State v. Ohlrich, supra note 4. See, also, State v. Langan, 6 Neb. App. 739, 

577 N.W.2d 752 (1998).
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Moore.

 64 We have never indicated an intent to provide greater 

constitutional protections than those given under the Fourth 

Amendment to stops and arrests effectuated outside of a law 

enforcement officer’s territorial jurisdiction.

[6] We overrule Tingle 65 and its progeny to the extent those 

cases hold that a violation of state law limitations to the 

territorial jurisdiction of law enforcement officers implicates 

the Fourth Amendment and article I, § 7, of the Nebraska 

Constitution. A law enforcement officer’s jurisdictional power 

and authority to make a stop or arrest is irrelevant to the 

admissibility, under the Fourth Amendment and article I, § 7, 

of the Nebraska Constitution, of the evidence obtained from 

the stop or arrest.

5. Application

Thus, regardless of Rockwell’s jurisdictional power and 

authority under § 29-215 to have conducted the stop and arrest 

of Hoehn, since there is no dispute that the stop was supported 

by reasonable suspicion and the arrest was supported by probable cause, the exclusionary rule applicable to violations of 

the Fourth Amendment and article I, § 7, of the Nebraska 

Constitution does not apply to the fruits of the stop. These 

constitutional provisions were the sole basis for Hoehn’s 

objection to the evidence at trial. Accordingly, the county 

court did not err in denying Hoehn’s motion to suppress 

brought under the Fourth Amendment to the U.S. Constitution 

and article I, § 7, of the Nebraska Constitution.

We find no merit to the State’s contention that the Court 

of Appeals erred in determining whether Rockwell was acting outside of his jurisdictional power and authority when 

he stopped and arrested Hoehn, because Hoehn did not adequately raise this issue to the county court. Assuming without 

deciding that the jurisdictional authority of Rockwell was not 

presented to or passed upon by the county court, it was clearly 

64 See Virginia v. Moore, supra note 15.

65 State v. Tingle, supra note 55.
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decided by the district court. And the State did not crossappeal the district court’s decision, but instead invited the 

Court of Appeals to address § 29-215. Furthermore, the State 

conceded at oral arguments before the Court of Appeals that 

Hoehn had adequately raised § 29-215 to the county court.

[7,8] If an appellee wants the appellate court to review an 

allegedly erroneous determination made by the district court 

sitting as an appellate court, it should cross-appeal to preserve 

the issue. 66 Furthermore, a party cannot complain of an error 

the party invited the court to commit. 67

The State cannot now complain that the Court of Appeals 

addressed § 29-215 simply because it does not like its interpretation of the statute. We express no opinion, however, as to the 

correctness of the Court of Appeals’ interpretation of § 29-215, 

because it is not necessary to our holding in this appeal.

VI. CONCLUSION

Because a lack of territorial authority under state law in making a stop or arrest does not implicate the Fourth Amendment 

or article I, § 7, of the Nebraska Constitution, we affirm the 

decision of the Court of Appeals, which affirmed the district 

court’s decision affirming Hoehn’s conviction and sentence 

in the county court based on the admission of the evidence 

obtained from the stop and arrest.

Affirmed.

66 See State v. Jennings, 308 Neb. 835, 957 N.W.2d 143 (2021).

67 See, Nebraska Republican Party v. Shively, 311 Neb. 160, 971 N.W.2d 128 

(2022); Seid v. Seid, 310 Neb. 626, 967 N.W.2d 253 (2021).