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299 Nebraska Report

STATE v. BOTTS

Cite as 299 Neb. 806

State of Nebraska, appellee, v.

Kirk A. Botts, Appel

___ N.W.2d ___

Filed May 4, 2018. No. S-16-985.

1. Constitutional Law: Search and Seizure: Motions to Suppress: 

Appeal and Error. In reviewing a trial court’s ruling on a motion to 

suppress based on a claimed violation of the Fourth Amendment, an 

appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear 

error, but whether those facts trigger or violate Fourth Amendment protection is a question of law that an appellate court reviews independently 

of the trial court’s determination.

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

The ultimate determinations of reasonable suspicion to conduct an 

investigatory stop and probable cause to perform a warrantless search 

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

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

trial judge.

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

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

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

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

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

Seizure. A tier-one police-citizen encounter involves the voluntary 

cooperation of the citizen elicited through noncoercive questioning and 

does not involve any restraint of liberty of the citizen, and such encounters are outside the realm of Fourth Amendment protection.

5. Police Officers and Sheriffs: Search and Seizure. A tier-two policecitizen encounter involves a brief, nonintrusive detention during a frisk 

for weapons or preliminary questioning.

6. Police Officers and Sheriffs: Search and Seizure: Arrests. A tierthree police-citizen encounter constitutes an arrest, which involves a 

highly intrusive or lengthy search or detention.

Nebraska Supreme Court Online Library

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

07/20/2018 01:08 AM CDT
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STATE v. BOTTS

Cite as 299 Neb. 806

7. Constitutional Law: Search and Seizure. A seizure in the Fourth 

Amendment context occurs only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he 

or she was not free to leave.

8. Criminal Law: Warrantless Searches: Probable Cause. Probable 

cause to support a warrantless arrest exists only if law enforcement has 

knowledge at the time of the arrest, based on information that is reasonably trustworthy under the circumstances, that would cause a reasonably 

cautious person to believe that a suspect has committed or is committing a crime. Probable cause is a flexible, commonsense standard that 

depends on the totality of the circumstances.

9. Probable Cause: Appeal and Error. An appellate court determines 

whether probable cause existed under an objective standard of reasonableness, given the known facts and circumstances.

10. Police Officers and Sheriffs: Probable Cause. In assessing probable 

cause, an officer’s relevant inquiry is not whether particular conduct is 

innocent or guilty, but the degree of suspicion that attaches to particular 

types of noncriminal acts.

Petition for further review from the Court of Appeals, 

Inbody, Pirtle, and Riedmann, Judges, on appeal thereto

the District Court for Lancaster County, Robert R. Ott

Judge. Judgment of Court of Appeals reversed, and cause 

remanded with directions.

Matthew K. Kosmicki, of Brennan & Nielsen Law Offices, 

P.C., for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

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

Derr and Urbom, District Judge

Heavican, C

INTRODUCTION

We granted the State’s petition seeking further review of 

the decision of the Nebraska Court of Appeals, remanding the 

cause with directions to vacate Kirk A. Botts’ conviction and to 

dismiss the charge against him. We reverse the decision of the 

Court of Appeals and remand the cause with directions.
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STATE v. BOTTS

Cite as 299 Neb. 806

FACTUAL BACKGROUND

Botts was charged with possession of a deadly weapon by 

a prohibited person under Neb. Rev. Stat. § 28-1206 (Reissue 

2016). Botts’ motion to suppress was denied. Following a jury 

trial, Botts was convicted and eventually sentenced to 1 year’s 

imprisonment and 1 year of postrelease supervision.

Botts appealed to the Court of Appeals, assigning that the 

district court erred in denying his motion to suppress. The 

Court of Appeals agreed, concluding there was not probable 

cause to arrest Botts and that the inventory search of his vehicle must be suppressed.

Facts Leading to Arrest and Search.

The Court of Appeals set forth the following facts in 

its opinion:

Officer Jason Drager of the Lincoln Police Department 

testified that on March 10, 2016, around 2:30 a.m., 

he was driving back to the police station in his police 

cruiser. While driving, he saw a vehicle on a side street 

that was not moving and was partially blocking the roadway. The vehicle was situated at an angle, with the front 

end by the curb and the back end blocking part of the 

street. Drager thought maybe there had been an accident. 

He turned down the street and saw an individual standing by the driver’s side of the vehicle. Drager turned on 

his cruiser’s overhead lights, parked his cruiser behind 

the vehicle, and contacted the individual, later identified as Botts. He asked Botts “what was wrong,” and 

Botts initially told Drager “to mind [his] own business.” 

When Drager asked Botts again about what had happened, Botts told him “he was out of gas and was trying 

to push the vehicle to the side of the road.” Drager testified that he did not recall Botts’ saying that he drove the 

vehicle there. Botts asked Drager if he could help him, 

and Drager told him he could not help, based on Lincoln 

Police Department policy.
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Cite as 299 Neb. 806

Drager testified that he decided he should remain at the 

location because Botts’ vehicle was blocking the roadway 

and could cause an accident. Drager then stood back by 

his cruiser and watched Botts push the vehicle back and 

forth. Drager stated that Botts became “verbally abusive” 

toward him after he said he could not help him, so Drager 

decided to ask other officers to come to the location “for 

safety purposes.” Three other officers responded.

One of the officers who responded, Officer Phillip 

Tran, advised Drager that he had stopped Botts a couple 

hours earlier that night for traffic violations. Drager testified that Tran told him he had detected an odor of alcohol on Botts at the time of the earlier stop. Based on the 

information from Tran, Drager decided to approach Botts 

and ask him if he had been drinking. Drager testified 

that when he asked Botts if he had been drinking, Botts 

became angry, started yelling, and started backing up 

away from him.

Drager testified that Botts’ demeanor led him to believe 

Botts was under the influence of “some kind of alcohol or 

drug.” However, Drager testified that he did not believe 

alcohol or drugs were affecting Botts’ ability to answer 

questions. Drager did not recall Botts’ stating that he had 

been drinking.

Drager testified that Botts backed up to the other side 

of the street and stopped with his back against a light 

pole. When he was backing up, he was not coming at 

the officers and was not making threats. The four officers surrounded Botts by the light pole. Botts started 

yelling “something along the line of shoot me, shoot 

me.” Drager testified that Officer David Lopez, one of 

the officers at the scene, pulled out his Taser for safety 

purposes and to try to get Botts to comply with their 

request to put his hands behind his back. He eventually 

did so and was handcuffed and placed in the back of 

Drager’s cruiser.
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Drager testified that the officers were telling Botts to 

put his hands behind his back for their safety and Botts’ 

safety. Drager stated that he was concerned for his safety 

because Botts was being verbally abusive.

Drager testified that after Botts was arrested, the officers decided to tow Botts’ vehicle because it was blocking 

the road. He stated that it is Lincoln Police Department 

policy to search vehicles that are going to be towed. 

Tran began to search the vehicle and saw the handle 

of a machete sticking out from underneath the driver’s 

seat. Drager testified that after discovering the machete, 

Botts was under arrest for being in possession of a concealed weapon.

Tran also testified at the motion to suppress. He testified that he had contact with Botts around midnight on 

March 10, 2016, a couple hours before Drager made contact with him. Tran testified that he stopped Botts for not 

having his headlights on and for driving erratically. Tran 

testified that during that contact, he noticed a “slight odor 

of alcohol,” and that Botts “and another person in the 

vehicle had just purchased some alcohol.” Botts was the 

driver of the vehicle, and there was more than one passenger. Tran testified that he did not initiate a driving under 

the influence investigation because he did not see enough 

signs to believe that Botts was intoxicated.

Tran testified that he and another officer responded to 

Drager’s call for assistance and that when they arrived, he 

told Drager about his previous contact with Botts. Tran 

testified that Drager and Lopez then made contact with 

Botts at his vehicle, at which time Botts’ statements and 

demeanor became erratic. Tran stated Botts backed away 

from the two officers and was making statements such 

as “shoot me, kill me, things like that.” He also heard 

Botts make statements indicating the police were harassing him and treating him differently because of his race. 

Tran testified that Botts backed up and stopped with his 

back against a light pole and that the four officers were 
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STATE v. BOTTS

Cite as 299 Neb. 806

around Botts. One of the officers asked Botts to put his 

hands behind his back, and Botts responded that he was 

not doing anything wrong. Tran testified that during that 

time, Lopez had his Taser out. Botts eventually put his 

hands behind his back and was handcuffed.

Tran testified that as soon as Botts was handcuffed, he 

walked over to Botts’ vehicle and looked inside the driver’s side front window, which was rolled down. He then 

saw the handle of a machete sticking out from under the 

driver’s seat. He retrieved the machete out of the vehicle 

after it was decided that the vehicle would be towed. He 

testified that the officers were required to do an inventory 

search every time a vehicle is towed.1

Issues on Appeal and Decision 

of Court of Appeals.

On appeal, Botts contended that the district court erred in 

denying his motion to suppress. As noted, the Court of Appeals 

agreed, holding that Botts’ arrest was made without probable 

cause and that the resulting inventory search was invalid. The 

Court of Appeals remanded the cause with directions to the 

district court to vacate Botts’ conviction:

The State contends that the officers had probable cause 

to believe that Botts had committed the offense of driving 

under the influence. The evidence showed that Tran had 

stopped Botts around midnight for traffic offenses and 

detected a “slight odor of alcohol” and noted that Botts 

and another person in the vehicle had recently purchased 

alcohol. Botts was driving, and there were passengers in 

the vehicle. Tran did not initiate a driving under the influence investigation, because he did not see signs of intoxication. When Drager contacted Botts around 2:30 a.m., 

about 21⁄2 hours after Tran had stopped Botts, Botts was 

pushing a vehicle that was inoperable. Botts told Drager 

that his vehicle had run out of gas and that he was trying 

1 State v. Botts, 25 Neb. App. 372, 374-77, 905 N.W.2d 704, 708-10 (2017).
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to get it to the side of the road. Botts asked Drager for 

help, and Drager told him he could not help him based on 

Lincoln Police Department policy. This apparently upset 

Botts. Botts continued pushing his vehicle and trying to 

maneuver it to the side of the road while Drager stood 

back by his cruiser and watched.

It was not until Tran arrived at the scene and told 

Drager about the earlier stop that Drager decided to 

approach Botts face to face and ask him if he had been 

drinking. At this point, all Drager knew was that Tran 

had smelled an odor of alcohol on Botts and that there 

was alcohol in the vehicle at the time Tran stopped him. 

Neither Drager nor any of the officers testified that they 

smelled an odor of alcohol on Botts. Drager also did not 

recall Botts’ indicating that he had been drinking.

Drager testified that Bolts’ demeanor led him to believe 

he was under the influence of alcohol or drugs. However, 

Botts’ demeanor could also be attributed to Drager’s telling Botts he could not help him push the vehicle. Drager 

testified that it was at that point Botts became “verbally 

abusive” toward him. Botts also indicated that he believed 

the police were harassing him and that he was being 

treated differently because of his race.

In addition, Drager did not know if Botts had driven 

the vehicle to the location where Drager found it. He 

never saw him in the vehicle, and Botts never indicated 

that he had been driving the vehicle. The officers did not 

have probable cause to believe that Botts had been driving under the influence of alcohol.

We conclude that Botts was seized at the time the officers surrounded him by the light pole and Lopez had his 

Taser drawn and that the officers did not have probable 

cause to arrest him at that time. Consequently, the trial 

court erred in overruling Botts’ motion to suppress.2

2 Id. at 382-83, 905 N.W.2d at 713.
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STATE v. BOTTS

Cite as 299 Neb. 806

ASSIGNMENTS OF ERROR

The State filed a petition for further review, arguing that the 

Court of Appeals erred in holding that (1) Botts was seized at 

the time he was handcuffed and not at the time he was surrounded by the officers and (2) Botts’ arrest was made without 

probable cause.

STANDARD OF REVIEW

[1,2] In reviewing a trial court’s ruling on a motion to 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 protection is a question of 

law that an appellate court reviews independently of the trial 

court’s determination.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.4

[3] When a motion to suppress is denied pretrial and again 

during trial on renewed objection, an appellate court considers 

all the evidence, both from trial and from the hearings on the 

motion to suppress.5

ANALYSIS

Classification of Police-Citizen Encounters.

[4-6] There are three tiers of police-citizen encounters. A 

tier-one police-citizen encounter involves the voluntary cooperation of the citizen elicited through noncoercive questioning 

and does not involve any restraint of liberty of the citizen.6

3 State v. Woldt, 293 Neb. 265, 876 N.W.2d 891 (2016).

4 Id.

5 State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017).

6 Id.
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Cite as 299 Neb. 806

Because tier-one encounters do not rise to the level of a seizure, they are outside the realm of Fourth Amendment protection.7

 A tier-two police-citizen encounter involves a brief, nonintrusive detention during a frisk for weapons or preliminary 

questioning.8 A tier-three police-citizen encounter constitutes 

an arrest, which involves a highly intrusive or lengthy search 

or detention.9 Tier-two and tier-three police-citizen encounters 

are seizures sufficient to invoke the protections of the Fourth 

Amendment to the U.S. Constitution.10

[7] A seizure in the Fourth Amendment context occurs only 

if, in view of all the circumstances surrounding the incident, 

a reasonable person would have believed that he or she was 

not free to leave.11 In addition to situations where an officer 

directly tells a suspect that he or she is not free to go, circumstances indicative of a seizure may include the threatening presence of several officers, the display of a weapon by 

an officer, some physical touching of the citizen’s person, or 

the use of language or tone of voice indicating the compliance with the officer’s request might be compelled.12 But an 

officer’s merely questioning an individual in a public place, 

such as asking for identification, is not a seizure subject to 

Fourth Amendment protections, so long as the questioning 

is carried on without interrupting or restraining the person’s movement.13

It is clear that the police-citizen encounter in the instant 

case began as a tier-one encounter and escalated to a tier-three 

encounter. The question presented here is when the encounter 

became a tier-three encounter, or an arrest.

7 Id.

8 Id.

9 Id.

10 Id.

11 Id.

12 Id.

13 Id.
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STATE v. BOTTS

Cite as 299 Neb. 806

The State contends that the Court of Appeals erred in finding that Botts was arrested for Fourth Amendment purposes 

when he was standing by the light pole surrounded by four 

officers, one with his Taser drawn. The State argues instead 

that Botts was seized for purposes of the Fourth Amendment 

when Officer Jason Drager approached Botts and asked if he 

had been drinking—a tier-two investigatory stop for purposes 

of a driving under the influence (DUI) investigation.

The State’s characterization is supported by the record. 

Drager found Botts attempting to push his vehicle, which had 

stalled on the side of the road. Botts explained that he had run 

out of gas, but at the time, Drager had no independent confirmation of that fact. Upon his arrival on the scene, Officer 

Phillip Tran informed Drager that a few hours earlier, Tran 

had stopped Botts in his vehicle for driving erratically, driving 

without his headlights on, and failing to signal his turn. Tran 

also testified he informed Drager that he had smelled the odor 

of alcohol coming from Botts’ vehicle and that he saw alcohol in the vehicle. In addition, Drager testified at the motion 

to suppress hearing that Botts’ “behavior would have led me 

to believe that he was under the influence of something, just 

his demeanor and how upset he was. I would have guessed 

he was under some kind of alcohol or drug.” Based upon his 

own observations and the information he obtained from Tran, 

Drager testified that he approached Botts with the intent to 

begin a DUI investigation.

Although the Court of Appeals concluded that Botts was not 

seized until later, we conclude that Botts’ seizure began at the 

time Drager approached him to begin the DUI investigation. 

But this does not end our inquiry.

The Court of Appeals concluded that not only was Botts 

seized when he was surrounded by officers—and one of those 

officers drew his Taser—but that Botts was arrested at that 

time as well. The State disagrees, again contending that Botts 

was not arrested until he was handcuffed. The State argues that 

officers are permitted to take such steps as are “‘reasonably 
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necessary to protect their personal safety and to maintain the 

status quo,’” so that the limited purposes of an investigatory 

stop may be achieved, and that doing so does not change 

an investigatory stop into an arrest.14 In the State’s view, all 

actions taken by the officers in advance of handcuffing Botts 

fall under this rule.

But in any case, the record shows that about 10 seconds 

elapsed between the time the officers surrounded Botts and the 

time Botts was handcuffed. Thus, for purposes of the real issue 

on appeal—whether there was probable cause to support Botts’ 

arrest—it does not much matter at which of these two points in 

time the arrest occurred.

Probable Cause.

[8,9] The State next contends that the Court of Appeals 

erred in concluding there was not probable cause to support 

an arrest. Probable cause to support a warrantless arrest exists 

only if law enforcement has knowledge at the time of the arrest, 

based on information that is reasonably trustworthy under the 

circumstances, that would cause a reasonably cautious person 

to believe that a suspect has committed or is committing a 

crime.15 Probable cause is a flexible, commonsense standard 

that depends on the totality of the circumstances.16 An appellate court determines whether probable cause existed under an 

objective standard of reasonableness, given the known facts 

and circumstances.17

But, in the words of the U.S. Supreme Court, appellate courts 

should avoid an “‘excessively technical dissection’ of the factors supporting probable cause.”18 The test to be employed is 

14 Memorandum brief in support of petition for further review for appellee at 

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

15 State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).

16 Id.

17 Id.

18 District of Columbia v. Wesby, ___ U.S. ___, 138 S. Ct. 577, 588, 199 L. 

Ed. 2d 453 (2018).
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whether the totality of the circumstances would suggest that 

probable cause existed.19 It is improper to view

each fact “in isolation, rather than as a factor in the 

totality of the circumstances.” . . . The “totality of the 

circumstances” requires courts to consider “the whole 

picture.” . . . Our precedents recognize that the whole is 

often greater than the sum of its parts—especially when 

the parts are viewed in isolation. . . .

. . . .

. . . A factor viewed in isolation is often more “readily 

susceptible to an innocent explanation” than one viewed 

as part of a totality.20

[10] Thus, “probable cause does not require officers to rule 

out a suspect’s innocent explanation for suspicious facts.”21 In 

assessing probable cause, an officer’s “‘relevant inquiry is not 

whether particular conduct is “innocent” or “guilty,” but the 

degree of suspicion that attaches to particular types of noncriminal acts.’”22

The Court of Appeals concluded there was not probable 

cause to support Botts’ arrest for DUI. But in reaching its 

conclusion, the Court of Appeals emphasized that there were 

innocent explanations for Botts’ erratic behavior. Specifically, 

the Court of Appeals discounted the testimony regarding Botts’ 

demeanor, suggesting that such behavior could be explained 

by Botts’ being upset that Drager was not helping him push 

his vehicle, and noted that the officers testified they did not 

know whether Botts had driven the car to the location where 

it was found. In addition, the Court of Appeals noted that no 

officers testified they smelled the odor of alcohol on Botts 

during the latter stop, nor could Drager recall if Botts indicated that he had been drinking.

19 Id.

20 Id., 138 S. Ct. at 588-89 (citations omitted).

21 Id., 138 S. Ct. at 588.

22 Id.
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We conclude that the Court of Appeals erred in discounting the officers’ assessment of probable cause based upon 

innocent explanations for Botts’ suspicious behavior. Law 

enforcement is not required to rule out such explanations 

when assessing whether probable cause exists.

Botts and his vehicle were found stalled by the side of the 

road. Botts was acting erratically, and Drager in particular 

noted that Botts’ behavior was suggestive of being under the 

influence of drugs or alcohol. Tran had notified Drager of the 

earlier stop of Botts and his vehicle for various traffic violations, that alcohol was present in Botts’ vehicle, and that Tran 

had smelled alcohol during that earlier stop. When considered alongside the escalation of Botts’ erratic behavior when 

Drager asked if he had been drinking, we conclude the officers 

had probable cause to arrest Botts for DUI. And because there 

was probable cause to support Botts’ arrest, the inventory 

search of Botts’ vehicle prior to its towing was authorized and 

the machete found in that search admissible.

We observe that the State also argues there was probable 

cause to arrest Botts for failure to comply with a lawful order. 

We need not reach that argument, because we conclude probable cause existed for a DUI arrest.

We conclude that the Court of Appeals erred in vacating 

Botts’ conviction. Accordingly, we reverse the decision of the 

Court of Appeals and remand this appeal to that court to consider Botts’ other assignments of error.

CONCLUSION

The Court of Appeals erred in vacating Botts’ conviction. 

We reverse, and remand with directions.

Reversed and remanded with direct

Stacy, J., not participatin