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302 Nebraska Report

STATE v. SHIFFERMILLER

Cite as 302 Neb. 245

State of Nebraska, appellee, v.

Steven F. Shiffermiller, appel

___ N.W.2d ___

Filed February 15, 2019. No. S-17-675.

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. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error. 

When a motion to suppress is denied pretrial and again during trial on 

renewed objection, an appellate court considers all the evidence, both 

from the trial and from the hearings on the motion to suppress.

3. Trial: Investigative Stops: Warrantless Searches: Appeal and Error. 

The ultimate determinations of reasonable suspicion to conduct an 

investigatory stop and probable cause to perform a warrantless search 

are reviewed de novo, and findings of fact are reviewed for clear error, 

giving due weight to the inferences drawn from those facts by the 

trial judge.

4. Constitutional Law: Police Officers and Sheriffs: Search and 

Seizure: Appeal and Error. To determine whether an encounter 

between an officer and a citizen reaches the level of a seizure under the 

Fourth Amendment to the U.S. Constitution, an appellate court employs 

the analysis set forth in State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 

630 (1993), which describes the three levels, or tiers, of police-citizen 

encounters.

5. Constitutional Law: Police Officers and Sheriffs: Search and 

Seizure. The first tier of police-citizen encounters involves no restraint 

of the liberty of the citizen involved, but, rather, the voluntary cooperation of the citizen is elicited through noncoercive questioning. This type 

Nebraska Supreme Court Online Library

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

02/15/2019 08:06 AM CST
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of contact does not rise to the level of a seizure and therefore is outside 

the realm of Fourth Amendment protection.

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

Investigative Stops: Search and Seizure: Words and Phrases. The 

second category of police-citizen encounters, the investigatory stop, 

as defined by the U.S. Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 

S. Ct. 1868, 20 L. Ed. 2d 889 (1968), is limited to brief, nonintrusive 

detention during a frisk for weapons or preliminary questioning. This 

type of encounter is considered a “seizure” sufficient to invoke Fourth 

Amendment safeguards, but because of its less intrusive character 

requires only that the stopping officer have specific and articulable facts 

sufficient to give rise to reasonable suspicion that a person has committed or is committing a crime.

7. Constitutional Law: Criminal Law: Police Officers and Sheriffs: 

Arrests: Search and Seizure: Probable Cause. The third type of 

police-citizen encounters, arrests, is characterized by highly intrusive 

or lengthy search or detention. The Fourth Amendment requires that an 

arrest be justified by probable cause to believe that a person has committed or is committing a crime.

8. Investigative Stops: Arrests: Time. A detention may evolve into a de 

facto arrest if unreasonable force is used or if a stop lasts for an unreasonable amount of time.

9. Police Officers and Sheriffs: Investigative Stops. Whether a detention is reasonable under the circumstances depends on a multitude of 

factors, including the number of officers and police cars involved, the 

nature of the crime and whether there is reason to believe the suspect 

might be armed, the strength of the officers’ articulable, objective suspicions, the erratic behavior of or suspicious movements by the persons 

under observation, and the need for immediate action by the officers 

and lack of opportunity for them to have made the stop in less threatening circumstances.

10. ____: ____. The use of handcuffs has been approved when it was reasonably necessary to protect officer safety during an investigatory stop, 

but the use of handcuffs is not warranted when the facts do not justify a 

belief that the suspect may be dangerous.

11. Investigative Stops: Time. An investigative stop must be temporary and last no longer than is necessary to effectuate the purpose of 

the stop.

12. Police Officers and Sheriffs: Investigative Stops. In an investigative 

stop, the investigative methods employed should be the least intrusive 

means reasonably available to verify or dispel the officer’s suspicion in 

a short period of time.
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13. Constitutional Law: Police Officers and Sheriffs: Motor Vehicles: 

Public Health and Welfare: Evidence: Words and Phrases. The 

community caretaking exception to the Fourth Amendment provides 

that local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability 

and engage in what, for want of a better term, may be described as 

community caretaking functions, totally divorced from the detection, 

investigation, or acquisition of evidence relating to the violation of a 

criminal statute.

14. Constitutional Law: Police Officers and Sheriffs: Investigative 

Stops: Search and Seizure. In order to determine whether the community caretaking exception to the Fourth Amendment applies, the court 

should assess the totality of the circumstances surrounding the stop, 

including all of the objective observations and considerations, as well 

as the suspicion drawn by a trained and experienced police officer by 

inference and deduction. If, based on the totality of the circumstances, 

the seizing officer had a reasonable basis to believe his assistance was 

necessary, the stop is not unconstitutional.

15. Constitutional Law: Search and Seizure. A search or seizure under 

the community caretaking exception to the Fourth Amendment, like any 

other search or seizure, is subject to the standard test of reasonableness. 

It must be justified at its inception, based on specific articulable facts 

which reasonably warrant the intrusion into the individual’s liberty, and 

it must be reasonably related in scope to the circumstances which justified the interference in the first place.

16. Constitutional Law: Police Officers and Sheriffs: Motor Vehicles. As 

the community caretaking exception to the Fourth Amendment requires 

in general, transportation may be warranted and justified under the community caretaking exception when there is an objectively reasonable 

basis for exercising the community caretaking function.

17. Constitutional Law: Police Officers and Sheriffs: Intoxication: 

Public Health and Welfare. Depending on the particular facts presented, the community caretaking exception to the Fourth Amendment 

may be appropriate when a defendant is visibly intoxicated and presenting a danger to himself and the general public.

18. Constitutional Law: Warrantless Searches: Search and Seizure. 

Warrantless searches and seizures are per se unreasonable under the 

Fourth Amendment, subject only to a few specifically established and 

well-delineated exceptions, which must be strictly confined by their 

justifications.

19. Warrantless Searches: Search and Seizure: Proof. In the case of a 

search and seizure conducted without a warrant, the State has the burden 
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of showing the applicability of one or more of the exceptions to the warrant requirement.

20. Police Officers and Sheriffs: Investigative Stops: Search and Seizure: 

Weapons: Public Health and Welfare. During a second-tier stop as 

described in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 

(1968), an officer is entitled, for the protection of himself or herself and 

others in the area, to conduct a carefully limited search of outer clothing 

to discover weapons that might be used to assault the officer.

21. Police Officers and Sheriffs: Search and Seizure: Weapons: Public 

Health and Welfare. The purpose of a pat-down search for weapons is 

the protection of the officer and other persons nearby.

22. Constitutional Law: Police Officers and Sheriffs: Investigative Stops: 

Public Health and Welfare. The protection of the officer justification 

applies equally to a second-tier encounter as described in Terry v. Ohio, 

392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), that is warranted 

by the community caretaking exception to the Fourth Amendment.

23. Constitutional Law: Criminal Law: Arrests: Search and Seizure: 

Probable Cause. A valid arrest based on probable cause that a person is 

engaged in criminal activity is allowed by the Fourth Amendment, and if 

an arrest is made based upon probable cause, a full search of the person 

may be made incident to that arrest.

24. Search and Seizure: Arrests: Search Warrants: Warrants: Probable 

Cause. A search without a warrant before an arrest, also without a warrant, is valid as an incident to the subsequent arrest if (1) the search is 

reasonably contemporaneous with the arrest and (2) probable cause for 

the arrest exists before the search.

25. Police Officers and Sheriffs: Arrests: Search and Seizure: Weapons: 

Evidence. A search incident to arrest is not limited to searching the 

arrested person for weapons only; an officer may search for and seize 

any evidence on the arrestee’s person, even if such evidence is unrelated 

to the crime for which the arrest was made, in order to prevent concealment or destruction of evidence.

Petition for further review from the Court of Appeals, Moore,

Chief Judge, and Pirtle and Arterburn, Judges, on appe

thereto from the District Court for Lancaster County, Rober

R. Otte, Judge. Judgment of Court of Appeals affirme

Matthew K. Kosmicki for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.
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STATE v. SHIFFERMILLER

Cite as 302 Neb. 245

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Freudenberg, 

I. NATURE OF CASE

Defendant was arrested after law enforcement stopped and 

searched his person and belongings, including the inside of a 

flashlight, and ultimately found illegal drugs and brass knuckles. Following denial of his motion to suppress and a stipulated 

bench trial, defendant was convicted of three counts of possession of a controlled substance, a Class IV felony, and one 

count of possession of a deadly weapon by a prohibited person, 

a Class III felony. Defendant appealed his convictions to the 

Nebraska Court of Appeals, and the court, applying the narrow 

community caretaking exception, affirmed. We granted defendant’s petition for further review.

II. BACKGROUND

On September 15, 2016, Steven F. Shiffermiller was charged 

with three counts of possession of a controlled substance, 

each count a Class IV felony, and one count of possession of 

a deadly weapon, a Class III felony. Shiffermiller entered a 

plea of not guilty and filed a motion to suppress the evidence 

obtained during his detention and subsequent arrest. A hearing 

on the motion to suppress was held on March 8, 2017, and the 

following evidence was adduced.

At approximately 4:30 a.m. on June 6, 2016, the Lincoln 

Police Department received a report that two individuals were 

fighting near the intersection of South 31st Street and Sequoia 

Drive. When an officer arrived on the scene, Shiffermiller was 

walking toward a parked car with its trunk open on the north 

side of Sequoia Drive. Shiffermiller appeared to have a torn 

shirt and blood on his face, arm, and knuckles. Wearing camouflaged printed pants and a tank top, Shiffermiller matched the 

description of one of the individuals from the police report.

An officer approached Shiffermiller, asking whether he was 

injured and stating that there had been a reported altercation 
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at that location. Shiffermiller appeared to be angry, agitated, 

and under the influence of drugs or alcohol. According to 

the officer, he claimed that he had been “boxing trees” in a 

nearby park and was not involved in a fight. The officer then 

asked Shiffermiller to sit down, as he appeared to be unable 

to stand. A few minutes later, three more officers arrived on 

the scene.

Shiffermiller stated that he wanted to leave, but was told 

that he was not free to leave and that he would stay until the 

situation was investigated. Because Shiffermiller was acting 

uncooperative, he was placed in handcuffs and was seated on 

the curb while officers searched for the other party involved 

in the reported fight. Shiffermiller’s cell phone was lying in 

the middle of the intersection. A “ball cap” was also found in 

the intersection; Shiffermiller denied that it belonged to him. 

No other party was found, so, after approximately 30 to 40 

minutes, the officers discontinued their investigation of the 

potential assault.

The officers determined that Shiffermiller should be transported somewhere both for his safety and to avoid any further 

disturbances or issues. Shiffermiller rejected medical attention and indicated that he wanted to walk home. The officers did not want to leave Shiffermiller alone, in fear that he 

may cause further disturbances or attempt to operate his car. 

Because he appeared to be under the influence of alcohol or 

drugs, they were worried about his ability to care for himself 

and were concerned for the safety of the public if he chose to 

drive. Eventually, the officers found contact information for 

Shiffermiller’s father, who agreed that Shiffermiller could be 

brought to his home.

In preparing to transport Shiffermiller to his father’s home, 

two police officers patted Shiffermiller down to make sure 

he did not have any weapons before placing him in a police 

cruiser. The officers testified that the pat-down was conducted 

for officer safety reasons, because Shiffermiller had potentially 

been in a fight and it was unclear whether weapons had been 
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involved. During the pat-down, an officer felt an object in 

Shiffermiller’s pocket that he “immediately recognized” to be 

brass knuckles. The officer extracted the brass knuckles from 

Shiffermiller’s pocket and noticed that there was a small trace 

of blood on them. He seized the object, and Shiffermiller was 

placed under arrest.

A search of the police database conducted in one of the officer’s cruisers revealed that Shiffermiller had a previous felony 

conviction, which meant that the arrest related to the brass 

knuckles became a felony arrest as opposed to a misdemeanor. 

The officers then determined that Shiffermiller would be transported to jail and informed Shiffermiller’s father of the change 

in circumstances.

Shortly after or nearly contemporaneous to the discovery 

of the brass knuckles, the officers conducted a complete 

search of Shiffermiller’s person, finding keys and a flashlight 

in Shiffermiller’s right pocket. The officer who found the 

flashlight noticed that it “rattle[d]” and that he “could just 

feel there weren’t batteries inside.” He opened the flashlight 

and found several pills and a small baggie of marijuana. 

Shiffermiller did not produce a prescription for the pills. 

The officers checked the pills, which had identifying markings, and confirmed that they were controlled substances. At 

that time, Shiffermiller was also placed under arrest for possession of a controlled substance. According to the officers 

present at the scene of the arrest and Shiffermiller’s father, 

approximately 45 minutes to 1 hour passed between the initial 

stop and Shiffermiller’s arrest. The district court overruled 

Shiffermiller’s motion to suppress.

On April 25, 2017, a stipulated bench trial was held. At this 

trial, Shiffermiller renewed his motion to suppress, which was 

again overruled by the district court. The State offered two 

exhibits that were accepted into evidence, one a complete set 

of police reports and a laboratory report regarding the June 6, 

2016, arrest and the other a certified copy of Shiffermiller’s 

prior felony conviction. The parties stipulated that if witnesses 
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Cite as 302 Neb. 245

were called to testify in this matter, they would testify consistently with the information contained in those exhibits. The 

parties also stipulated as to the necessary foundation for the 

first exhibit which established venue and the chain of custody 

for the brass knuckles and the narcotics seized at the time of 

the arrest.

The district court found Shiffermiller guilty on each count 

alleged. On June 1, 2017, Shiffermiller was sentenced to jail 

for a period of 50 days on each count and ordered credit 

for 117 days already served in jail. The court then placed 

Shiffermiller on probation for a period of 1 year on count I, 2 

years on count II, 3 years on count III, and 4 years on count IV, 

to run concurrently.

Shiffermiller appealed to the Nebraska Court of Appeals, 

asserting that the district court erred in overruling his motion 

to suppress the evidence obtained on June 6, 2017. The Court 

of Appeals affirmed the district court’s decision, applying the 

“community caretaking” exception to the Fourth Amendment 

to justify Shiffermiller’s continued detention after officers 

completed their initial investigation related to the reported 

altercation.1 Shiffermiller petitioned this court for further 

review of the Court of Appeals’ decision, alleging it erred in 

concluding that evidence found on Shiffermiller’s person was 

properly admitted.

III. ASSIGNMENTS OF ERROR

Shiffermiller assigns that the district court erred in failing 

to suppress evidence because (1) the government exceeded the 

permissible scope and duration of a stop pursuant to Terry v. 

Ohio2 and (2) the warrantless search of Shiffermiller violated 

the Fourth Amendment because law enforcement did not have 

a reasonable suspicion that Shiffermiller was armed and dangerous and there was no basis in law to justify the search of 

his flashlight.

1 State v. Shiffermiller, 26 Neb. App. 250, 265, 919 N.W.2d 163, 176 (2018).

2 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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IV. STANDARD OF REVIEW

[1,2] In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, 

we apply a two-part standard of review.3 Regarding historical 

facts, we review the trial court’s findings for clear error.4 But 

whether those facts trigger or violate Fourth Amendment protections is a question of law that we review independently of 

the trial court’s determination.5 When a motion to suppress is 

denied pretrial and again during trial on renewed objection, an 

appellate court considers all the evidence, both from the trial 

and from the hearings on the motion to suppress.6

[3] The ultimate determinations of reasonable suspicion to 

conduct an investigatory stop and probable cause to perform a 

warrantless search are reviewed de novo, and findings of fact 

are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge.7

V. ANALYSIS

Shiffermiller asserts that the district court and Court of 

Appeals erred in finding that the stop did not exceed the permissible scope and duration of a Terry stop and in determining 

the search of Shiffermiller, including the inside of his flashlight, was proper under the Fourth Amendment.8

 In sum, he 

argues that the court erred in concluding that Shiffermiller’s 

rights were not violated in such a manner that required the suppression of the evidence gathered during the stop and subsequent search. Because we also find that Shiffermiller’s Fourth 

Amendment rights were not violated, we affirm.

3 State v. Wiedeman, 286 Neb. 193, 835 N.W.2d 698 (2013).

4 Id.

5 Id.

6 State v. Rivera, 297 Neb. 709, 901 N.W.2d 272 (2017).

7 State v. Botts, 299 Neb. 806, 910 N.W.2d 779 (2018).

8 See Terry v. Ohio, supra note 2.
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1. Initial Dete

Shiffermiller first contends that the district court erred in 

overruling his motion to suppress because the police officers 

exceeded the permissible scope and duration of a second-tier 

Terry stop. He argues that the stop in this case falls within the 

third tier described in State v. Van Ackeren,

9

 an arrest, because 

of its highly intrusive and lengthy nature. And, as a result, the 

officers did not have the requisite probable cause to justify 

Shiffermiller’s detention, necessitating suppression of the evidence collected during the illegal stop. We disagree.

[4-7] To determine whether an encounter between an officer and a citizen reaches the level of a seizure under the 

Fourth Amendment to the U.S. Constitution, an appellate 

court employs the analysis set forth in Van Ackeren, which 

describes the three levels, or tiers, of police-citizen encounters. The first tier of police-citizen encounters involves no 

restraint of the liberty of the citizen involved, but, rather, 

the voluntary cooperation of the citizen is elicited through 

noncoercive questioning.10 This type of contact does not rise 

to the level of a seizure and therefore is outside the realm 

of Fourth Amendment protection. The second category, the 

investigatory stop, as defined by the U.S. Supreme Court 

in Terry,

11 is limited to brief, nonintrusive detention during 

a frisk for weapons or preliminary questioning.12 This type 

of encounter is considered a “seizure” sufficient to invoke 

Fourth Amendment safeguards, but because of its less intrusive character requires only that the stopping officer have 

specific and articulable facts sufficient to give rise to reasonable suspicion that a person has committed or is committing 

a crime. The third type of police-citizen encounters, arrests, 

is characterized by highly intrusive or lengthy search or 

9 State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993).

10 Id.

11 Terry v. Ohio, supra note 2.

12 State v. Van Ackeren, supra note 9.
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detention.13 The Fourth Amendment requires that an arrest be 

justified by probable cause to believe that a person has committed or is committing a crime.14 As noted, only the second 

and third tiers of police-citizen encounters are seizures sufficient to invoke the protections of the Fourth Amendment to 

the U.S. Constitution.15

[8,9] A detention may evolve into a de facto arrest if unreasonable force is used or if a stop lasts for an unreasonable 

amount of time.16 We have noted that there is often a gray 

area between investigatory detentions and arrests.17 In State v. 

Wells,

18 we stated that whether a detention is reasonable under 

the circumstances depends on a multitude of factors, including 

the factors set forth in United States v. Jones19 by the Eighth 

Circuit. These factors include

“the number of officers and police cars involved, the 

nature of the crime and whether there is reason to believe 

the suspect might be armed, the strength of the officers’ 

articulable, objective suspicions, the erratic behavior of or 

suspicious movements by the persons under observation, 

and the need for immediate action by the officers and 

lack of opportunity for them to have made the stop in less 

threatening circumstances.”20

[10] In Wells, this court considered the circumstances under 

which the use of handcuffs could transform a detention into a 

custodial arrest. Considering U.S. Supreme Court precedent, 

we found that the use of handcuffs has been approved when 

13 See id.

14 Id.

15 State v. Gilliam, 292 Neb. 770, 874 N.W.2d 48 (2016); State v. Wells, 290 

Neb. 186, 859 N.W.2d 316 (2015).

16 See State v. Wells, supra note 15.

17 See id.

18 Id.

19 United States v. Jones, 759 F.2d 633 (8th Cir. 1985).

20 State v. Wells, supra note 15, 290 Neb. at 197, 859 N.W.2d at 327.
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it was reasonably necessary to protect officer safety during an 

investigatory stop, but the use of handcuffs is not warranted 

when the facts do not justify a belief that the suspect may 

be dangerous.21

Shiffermiller argues that the police’s use of handcuffs as 

well as a number of the above factors weighing in his favor 

shows that the detention was a tier-three stop. He states that 

there was a significant showing of police presence, through the 

number of both police officers and cruisers present at the scene 

of the stop. He argues that there was no reason for the officers 

to believe he was armed. Shiffermiller also asserts that he 

was compliant throughout the stop, despite his communicated 

desire to go home.

The evidence indicates that the first 30 to 40 minutes of the 

stop were utilized to investigate a reported physical altercation 

at 4:30 a.m. Shiffermiller matched the description of one of 

the men involved, and he was observed to have a ripped shirt 

with blood on his face, arms, and knuckles. When approaching, officers noted that Shiffermiller was unable to stand 

and appeared to be under the influence of drugs or alcohol. 

Shiffermiller appeared to be agitated and angry and expressed 

a desire to leave. An officer even testified that Shiffermiller 

was attempting to leave during the investigation at one point. 

Though the officers may not have had a concrete indication 

that Shiffermiller was armed, these facts supported the use of 

some form of control to maintain the status quo and ensure that 

Shiffermiller did not attempt to leave during the investigation. 

In addition, Shiffermiller’s anger and agitation in conjunction 

with the evidence of blood on his person would indicate that 

his detention would be reasonable to ensure that Shiffermiller 

was not a danger to himself or others throughout the investigation. These facts provided ample justification for the manner 

of detention.

Shiffermiller also argues that, considering the nature of the 

crime and the fact that Shiffermiller was alone, the officers 

21 State v. Wells, supra note 15.
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lacked a sense of urgency in their investigation and should 

have completed the investigation quickly. In other words, he 

contends that the continued detention was unreasonable in 

terms of its scope and length. This contention has no merit.

[11,12] An investigative stop must be temporary and last no 

longer than is necessary to effectuate the purpose of the stop.22

Similarly, the investigative methods employed should be the 

least intrusive means reasonably available to verify or dispel 

the officer’s suspicion in a short period of time.23 The initial 

portion of the stop used to investigate the reported altercation 

lasted approximately 30 to 40 minutes. By finding items lying 

in the middle of the intersection, including Shiffermiller’s cell 

phone and an unclaimed hat, the officers acted reasonably in 

continuing their investigation in order to search the area to 

determine if anyone else was present and injured as indicated 

in the original report the officers had received. There is nothing in the record to indicate any lack of diligence or urgency or 

an abuse of discretion on the part of the investigating officers. 

The initial detention was not unreasonable, highly intrusive, or 

excessive in length. As a result, we find that the initial detention and investigation, consisting of the first 30 to 40 minutes 

of the stop used to investigate the reported assault, were reasonable and did not amount to a de facto arrest.

2. Continued Dete

Shiffermiller, citing U.S. v. Maltais24 as authority, argues that 

an investigative detention may turn into an arrest if it “‘lasts 

for an unreasonably long time.’”25 He asserts that although 

the officers testified that they believed that Shiffermiller may 

have been under the influence of drugs, nothing was done 

to determine whether he was actually impaired. Therefore, 

his continued detention after the initial investigation of the 

22 State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011).

23 Id.

24 U.S. v. Maltais, 403 F.3d 550 (8th Cir. 2005).

25 Brief for appellant at 14.
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reported altercation was improper and unconstitutional under 

the Fourth Amendment.

Here, there was a valid indication that a crime had been 

committed when the officers initially contacted Shiffermiller 

after a fight had been reported. Above we found that the 

officers engaged in a reasonable investigation of that crime 

that did not violate Shiffermiller’s Fourth Amendment rights. 

However, after the initial investigation into the reported physical altercation yielded no further evidence of a crime’s having 

been committed, the officers continued to detain Shiffermiller 

for “safety purposes.”

[13] Based on the absence of any evidence that a crime 

had been or was being committed after the initial criminal investigation was completed, this court must determine 

whether any exceptions to the Fourth Amendment apply to 

justify Shiffermiller’s continued detention for the remainder 

of the stop.26 One such exception is the community caretaking exception, first recognized by the U.S. Supreme Court in 

Cady v. Dombrowski27 and later adopted by this court in State 

v. Bakewell.

28 The exception provides that

“[l]ocal police officers, unlike federal officers, frequently 

investigate vehicle accidents in which there is no claim of 

criminal liability and engage in what, for want of a better 

term, may be described as community caretaking functions, totally divorced from the detection, investigation, 

or acquisition of evidence relating to the violation of a 

criminal statute.”29

[14,15] In Bakewell, we adopted and applied the community caretaking exception to determine whether the stop of a 

26 See State v. Rohde, 22 Neb. App. 926, 864 N.W.2d 704 (2015).

27 Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 

(1973).

28 State v. Bakewell, 273 Neb. 372, 730 N.W.2d 335 (2007).

29 Id. at 376, 730 N.W.2d at 338 (quoting Cady v. Dombrowski, supra

note 27).
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vehicle was reasonable when an officer stopped its driver at 

3:15 a.m. after the officer observed the vehicle stop and decelerate considerably five times within approximately 90 seconds 

while traveling down the highway, with the vehicle eventually 

pulling off onto the shoulder of the road. In that case, we held 

that in order to determine whether the community caretaking 

exception applies, the court should assess the totality of the circumstances surrounding the stop, including all of the objective 

observations and considerations, as well as the suspicion drawn 

by a trained and experienced police officer by inference and 

deduction.30 If, based on the totality of the circumstances, the 

seizing officer had a reasonable basis to believe his assistance 

was necessary, the stop is not unconstitutional.31 Thus, a search 

or seizure under the community caretaking exception, like any 

other search or seizure, is subject to the standard test of reasonableness. It must be justified at its inception, based on specific 

articulable facts which reasonably warrant the intrusion into 

the individual’s liberty, and it must be reasonably related in 

scope to the circumstances which justified the interference in 

the first place.32

The community caretaking exception should be narrowly 

and carefully applied to avoid its abuse.33 The Court of Appeals 

has applied the exception in cases involving an exigency or 

need to protect or assist an occupant of a vehicle, mirroring our 

application in Bakewell.

34

Insofar as Shiffermiller was not occupying a vehicle at the 

time of the stop, the facts of this case are different from those 

of prior cases in which we have applied the community caretaking exception. Our courts have never addressed whether the 

30 State v. Bakewell, supra note 28.

31 See, State v. Rohde, supra note 26; State v. Smith, 4 Neb. App. 219, 540 

N.W.2d 347 (1995).

32 U.S. v. King, 990 F.2d 1552 (10th Cir. 1993).

33 State v. Bakewell, supra note 28.

34 See, e.g., State v. Rohde, supra note 26; State v. Smith, supra note 31.
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community caretaking exception applies when those needing 

protection are located outside a vehicle. In Dombrowski, the 

Supreme Court clearly stated that the community caretaking 

exception was manifested in contemplation of the “extensive 

regulation of motor vehicles and traffic” and the frequency of 

local police officers’ investigations that are “totally divorced 

from the detection, investigation, or acquisition of evidence 

relating to the violation of a criminal statute.”35

Nonetheless, it was the general public that the Supreme 

Court sought to protect when first applying this exception.36 A 

number of federal courts have applied the community caretaking exception to apparently intoxicated individuals who were 

not occupants of vehicles.37

For example, the Fifth Circuit in U.S. v. Rideau38 applied the 

community caretaking exception when officers stopped an individual who was wearing dark clothing and was standing and 

stumbling in the road at approximately 10:30 p.m.39 The court 

held that the officers were justified in detaining the individual, 

even without suspicion of criminal activity, because they were 

engaging in local community caretaking functions.40 The court 

explained that intoxicated people in public streets pose a hazard to themselves and others.41

35 Cady v. Dombrowski, supra note 27, 413 U.S. at 441.

36 See, generally, Cady v. Dombrowski, supra note 27.

37 U.S. v. Rideau, 949 F.2d 718 (5th Cir. 1991), reversed on rehearing on 

other grounds 969 F.2d 1572 (5th Cir. 1992); Samuelson v. City of New 

Ulm, 455 F.3d 871 (8th Cir. 2006); Winters v. Adams, 254 F.3d 758 (8th 

Cir. 2001); Novitsky v. City of Aurora, 491 F.3d 1244 (10th Cir. 2007).

38 U.S. v. Rideau, supra note 37.

39 See, also, U.S. v. Rideau, 969 F.2d 1572 (5th Cir. 1992) (recognizing 

that community caretaking exception serves as justification for police 

removing intoxicated people from public streets where they pose hazard to 

themselves and others).

40 See, U.S. v. Rideau, supra note 39; U.S. v. Rideau, supra note 37.

41 U.S. v. Rideau, supra note 37.
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In Winters v. Adams,

42 officers stopped and searched an 

apparently intoxicated individual when the individual was 

observed exiting and reentering a vehicle that was parked on 

a dead-end street. The Eighth Circuit Court of Appeals found 

that the officers “‘would have been derelict in their duties’” 

had they not detained the individual.43 In addition, in later 

cases, the Eighth Circuit has continuously recognized that the 

“‘community caretaking’” exception may justify noninvestigatory searches and seizures in certain limited situations, including when law enforcement officers are seeking to help those 

in danger.44

[16] Courts have also justified the transport in a police 

cruiser of potentially intoxicated individuals for their safety 

under the community caretaking exception.45 For example, the 

Wisconsin Supreme Court in State v. Blatterman46 held that, 

under the community caretaking exception, a police officer 

was justified in transporting a defendant to a hospital when 

the officer observed the defendant exhibiting erratic and disoriented behavior, complaining of chest pain, and wearing 

only a short-sleeved shirt and jeans in very cold weather.47 The 

officer stated that he had concerns about alcohol use and the 

defendant’s mental health.48 The court found the community 

caretaking exception justified the detention necessary to transport the defendant to the hospital even when the defendant 

refused medical treatment.49 We find that transportation may 

42 Winters v. Adams, supra note 37.

43 Id. at 764 (citing U.S. v. Rideau, supra note 37).

44 U.S. v. Harris, 747 F.3d 1013, 1017 (8th Cir. 2014) (compiling cases that 

have applied community caretaking doctrine to noninvestigatory seizures). 

See, also, U.S. v. Quezada, 448 F.3d 1005 (8th Cir. 2006).

45 See, e.g., State v. Blatterman, 362 Wis. 2d 138, 864 N.W.2d 26 (2015).

46 Id.

47 Id.

48 Id.

49 Id.
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be warranted and justified under the community caretaking 

exception when there is an objectively reasonable basis for 

exercising such community caretaking function.

[17] Shiffermiller, while conceding that the community caretaking exception allows an officer to seize an individual when 

that officer reasonably believes that the individual is a danger 

to himself or others, argues that applying the community caretaking exception to this case would be an improper expansion of the exception, as Nebraska courts have construed the 

exception only in cases involving vehicle stops. We disagree. 

We conclude that, depending on the particular facts presented, 

the community caretaking exception may be appropriate when 

a defendant is visibly intoxicated and presenting a danger to 

himself and the general public.

In the present case, the evidence shows that Shiffermiller 

was walking toward a parked car with the trunk open. The 

car was determined to belong to him. He communicated his 

desire to go home during the investigation, and although at one 

point he stated that he wanted to walk, the officers reasonably 

believed it likely he would drive. The officers testified that 

Shiffermiller seemed to be agitated and under the influence of 

drugs or alcohol. One of the officers also stated that he felt that 

if someone is exhibiting signs of being under the influence, it 

is the responsibility of the officers to find him or her a safe 

place to go.

The evidence shows that the continued detention was based 

upon the officers’ observations that Shiffermiller appeared to 

be under the influence of drugs or alcohol and was potentially unable to care for himself, as well as the officers’ duty 

to protect the community from a hazard created by a person 

who may attempt to operate a motor vehicle while under the 

influence. The evidence additionally shows that after the initial investigation into the reported assault, the officers held 

Shiffermiller only long enough to determine where the best 

place would be to transport him.

Shiffermiller’s intoxication, agitated state, proximity to his 

vehicle, and apparent inability to care for himself at the 
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location of the officer contact provided sufficient justification 

for the officers to detain Shiffermiller in order to engage in 

community caretaking functions. The officers had a legitimate purpose in carrying out an important noninvestigatory 

function by recognizing and resolving a potential threat to 

Shiffermiller’s safety and that of the public at large.

We reiterate that the community caretaking exception is to 

be narrowly and carefully applied, but in view of the totality 

of the circumstances here presented, we find Shiffermiller’s 

continued detention following the initial investigation of the 

reported assault was reasonable. Therefore, the detention was 

not a violation of Shiffermiller’s constitutional rights.

3. Warrantless Sea

Shiffermiller next contends that the warrantless search of his 

person violated the Fourth Amendment because (1) law enforcement did not have a reasonable suspicion that Shiffermiller was 

armed and dangerous to warrant the pat-down search and (2) 

there was no basis in law to justify the search of the interior of 

his flashlight.

[18,19] Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject only to a few 

specifically established and well-delineated exceptions, which 

must be strictly confined by their justifications.50 The search 

here was conducted without a warrant. Thus, to be valid, it 

must fall within one of the warrantless search exceptions recognized by this court.51 The State has the burden of showing 

the applicability of one or more of the exceptions to the warrant requirement.52

(a) Pat-Down

We find that the pat-down, like Shiffermiller’s continued detention, was lawful under the community caretaking 

50 State v. Perry, 292 Neb. 708, 874 N.W.2d 36 (2016).

51 Id.

52 Id.
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exception. Several state courts have upheld various types of 

searches under the community caretaking exception, including 

pat-down searches of an individual before being transported, 

for noncriminal reasons, in a police cruiser.53 The rationale, 

as the Michigan Court of Appeals explained in People v 

Hannaford,

54 is that

[t]he Fourth Amendment was surely not intended to stand 

for the proposition that police officers must either abandon civilians on highways at night or transport them at 

the risk of personal safety, rather than transport them at 

reduced risk of personal safety by first subjecting them to 

a frisk for weapons.

The Supreme Court of Wisconsin in State v. Kelsey C.R.,

55

when discussing in a concurrence case law relevant to patdown searches conducted absent an arrest under the community 

caretaking exception, similarly reasoned:

[P]olice officers are sometimes called upon in the course 

of their duties to transport individuals who are not under 

arrest. Not all of those individuals will behave in such a 

way as to give rise to a reasonable suspicion that they are 

armed and dangerous. Yet they may be. And the risk to 

the officer’s safety is considerably greater during a squad 

car transport than an investigative stop because the officer 

cannot watch the passenger’s hands and cannot defend 

against an attack while driving the squad car. Therefore, 

53 See, e.g., People v. Tobin, 219 Cal. App. 3d 634, 269 Cal. Rptr. 81 (1990); 

People v Hannaford, 167 Mich. App. 147, 421 N.W.2d 608 (1988); People 

v Otto, 91 Mich. App. 444, 284 N.W.2d 273 (1979); State v. Diloreto, 362 

N.J. Super. 600, 829 A.2d 1123 (2003); Com. v. Rehmeyer, 349 Pa. Super. 

176, 502 A.2d 1332 (1985); State v. Lombardi, 727 A.2d 670 (R.I. 1999); 

State v. Acrey, 148 Wash. 2d 738, 64 P.3d 594 (2003); State v. Kelsey C.R., 

243 Wis. 2d 422, 626 N.W.2d 777 (2001).

54 People v Hannaford, supra note 53, 167 Mich. App. at 152, 421 N.W.2d at 

610.

55 State v. Kelsey C.R., supra note 53, 243 Wis. 2d at 464, 626 N.W.2d at 797 

(Sykes, J., concurring; Prosser, J., joins).
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where . . . an officer has an objectively reasonable basis 

to transport a person in a squad car, it is not unreasonable 

to allow him to protect himself from assault during the 

transport by conducting a minimally intrusive protective 

frisk for weapons.

[20-22] We agree with this reasoning. It is well established 

that during a second-tier Terry stop, an officer is entitled, for 

the protection of himself or herself and others in the area, to 

conduct a carefully limited search of outer clothing to discover 

weapons that might be used to assault the officer.56 The purpose of a pat-down search for weapons is the protection of the 

officer and other persons nearby.57 And, in order to justify a 

pat-down, an officer must provide “specific [and] articulable 

facts [that] support an inference that the suspect might be 

armed and dangerous.”58 This justification applies equally to 

a second-tier encounter that is warranted by the community 

caretaking exception.

The officers did not act unreasonably when they patted 

Shiffermiller down to ensure he was not carrying any weapons 

that would endanger the officers while they transported him 

to his father’s home. The search was reasonable under the 

circumstances, given that Shiffermiller matched the description of one of the men who was reported to have been in a 

fight, and he appeared to have a ripped shirt and blood on his 

person. In addition, Shiffermiller was agitated, uncooperative, 

hostile toward the officers, and seemingly under the influence 

of drugs or alcohol. One of the officers conducting the patdown explicitly testified that he simply “wanted to make sure 

before [Shiffermiller] was placed into [the officer’s] cruiser 

that there were no weapons on [Shiffermiller] in the back of 

[the officer’s cruiser].” Shiffermiller does not assert that the 

56 See Terry v. Ohio, supra note 2. See, also, State v. Vasquez-Arenivar, 18 

Neb. App. 265, 779 N.W.2d 117 (2010).

57 See Terry v. Ohio, supra note 2.

58 United States v. Cole, 628 F.2d 897, 899 (1980).
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pat-down conducted was more than a minimally intrusive protective frisk for weapons.

During the pat-down search, one of the officers felt an 

object in Shiffermiller’s left front pocket that the officer 

“immediately recognized . . . to be . . . brass knuckles.” 

Under the plain feel doctrine, the findings of a lawful patdown can establish probable cause to extend the scope of a 

search.59 The legality of the remainder of the search depends 

upon the incriminating character of the object’s being immediately apparent.60 If a police officer lawfully pats down a 

suspect’s outer clothing and feels an object’s whose contour 

or mass makes its identity immediately apparent, there has 

been no invasion of the suspect’s privacy beyond that already 

authorized by the officer’s search for weapons; if the object 

is contraband, its warrantless seizure would be justified by 

the same practical considerations that inhere in the plainview context.61

When the officer removed the object, he confirmed that it 

was brass knuckles. After a search of Shiffermiller’s criminal 

record, it was discovered that he was a convicted felon. At 

that point, the brass knuckles were seized and Shiffermiller 

was placed under arrest for possession of a deadly weapon 

by a prohibited person. The court did not err in overruling 

Shiffermiller’s motion to suppress as it related to the pat-down 

search and the subsequent discovery of the brass knuckles.

(b) Search of Flashlight

[23] We agree with the State that the search of the flashlight 

was a valid search incident to arrest. A valid arrest based on 

probable cause that a person is engaged in criminal activity is 

allowed by the Fourth Amendment, and if an arrest is made 

59 State v. Smith, 279 Neb. 918, 782 N.W.2d 913 (2010).

60 See id.

61 Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 

(1993); State v. Smith, supra note 59; State v. Craven, 253 Neb. 601, 571 

N.W.2d 612 (1997).
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based upon probable cause, a full search of the person may be 

made incident to that arrest.62

Shiffermiller asserts that the search incident to arrest exception does not apply, because the officers found the flashlight 

and searched its interior within seconds of finding the brass 

knuckles. He reasons that because the search of the interior of 

the flashlight was only seconds after the discovery of the brass 

knuckles, he was not “‘officially’” under arrest yet and the 

search could not be incident to arrest.63 We disagree.

[24] It is well settled under Nebraska law that a search 

without a warrant before an arrest, also without a warrant, is 

valid as an incident to the subsequent arrest if (1) the search is 

reasonably contemporaneous with the arrest and (2) probable 

cause for the arrest exists before the search.64 Both requirements were met here. Before the flashlight was discovered on 

Shiffermiller’s person, the officers arrested Shiffermiller with 

probable cause due to the discovery of brass knuckles.

[25] A search incident to arrest is not limited to searching 

the arrested person for weapons only; an officer may search 

for and seize any evidence on the arrestee’s person, even if 

such evidence is unrelated to the crime for which the arrest 

was made, in order to prevent concealment or destruction of 

evidence.65 The flashlight was on Shiffermiller’s person; thus, 

it can be considered to be a valid product of a search incident 

to arrest.

So too were the contents of the flashlight. In United States 

v. Robinson,

66 the U.S. Supreme Court upheld the search of a 

crumpled cigarette package containing gelatin capsules filled 

with heroin. In that case, an officer testified that he felt an 

62 State v. Perry, supra note 50.

63 Brief for appellant at 21.

64 State v. Perry, supra note 50.

65 State v. Ranson, 245 Neb. 71, 511 N.W.2d 97 (1994).

66 United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 

(1973).
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object in a pocket of the respondent’s coat, but could not tell 

what the item was.67 The officer testified that he then removed 

the object and found a “‘crumpled up cigarette package.’”68

The officer testified that though he did not know what was in 

the package, he could feel that the objects inside “‘“weren’t 

cigarettes.”’”69 The Court ultimately held that based on his 

coming upon the crumpled package of cigarettes in the course 

of a lawful search, the officer was entitled to inspect the contents of the package.70 And, because the inspection revealed 

heroin capsules, the officer was entitled to “seize them as 

‘fruits, instrumentalities, or contraband’ probative of criminal conduct.”71

The facts of this case mirror those of Robinson. The officer 

shook the flashlight and testified that it rattled as if something was inside. He noted that the weight of the flashlight 

was unusual and that it felt as though there were no batteries 

inside. Applying the U.S. Supreme Court’s reasoning utilized 

in Robinson, the search of the interior of the flashlight was 

reasonable and lawful under the circumstances as a search 

incident to arrest.

We find that the search of the flashlight was a lawful search 

incident to arrest and, as a result, that the trial court did not err 

in overruling Shiffermiller’s motion to suppress the evidence 

found in the flashlight.

VI. CONCLUSION

For the foregoing reasons, we affirm the decision of the 

Court of Appeals affirming that of the district court.

Affirmed

67 Id.

68 Id., 414 U.S. at 223.

69 Id.

70 See United States v. Robinson, supra note 66.

71 Id., 414 U.S. at 236.