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STATE v. SAITTA

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State of Nebraska, appellee, v. 

Richard J. Saitta, appellant.

___ N.W.2d ___

Filed July 17, 2020. No. S-19-697.

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: Appeal and Error. An 

appellate court applies a two-part analysis when reviewing whether a 

consent to search was voluntary. As to the historical facts or circumstances leading up to a consent to search, the appellate court reviews 

the trial court’s findings for clear error. However, whether those facts 

or circumstances constituted a voluntary consent to search, satisfying 

the Fourth Amendment, is a question of law, which the appellate court 

reviews independently of the trial court. And where the facts are largely 

undisputed, the ultimate question is an issue of law.

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

Search and Seizure: Investigative Stops: Arrests: Probable Cause: 

Words and Phrases. There are three tiers of police-citizen encounters 

under Nebraska law. 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 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 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 

Nebraska Supreme Court Online Library

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

07/23/2020 12:08 AM CDT
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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. 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. 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.

4. 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. 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.

5. Police Officers and Sheriffs: Investigative Stops: Time. An investigative stop must be temporary and last no longer than is necessary to 

effectuate the purpose of the stop. 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.

6. Police Officers and Sheriffs: Investigative Stops: Probable Cause.

Whether a police officer has a reasonable suspicion based on sufficient 

articulable facts depends on the totality of the circumstances and must 

be determined on a case-by-case basis.

7. Police Officers and Sheriffs: Probable Cause. In determining whether 

a police officer acted reasonably, it is not the officer’s inchoate or unparticularized suspicion or hunch that will be given due weight, but the 

specific reasonable inferences which the officer is entitled to draw from 

the facts in light of the officer’s experience.

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

Warrantless searches and seizures are per se unreasonable under the 

Fourth Amendment, subject to a few established and well-delineated 

exceptions.

9. Warrantless Searches. The warrantless search exceptions Nebraska has 

recognized include: (1) searches undertaken with consent, (2) searches 

under exigent circumstances, (3) inventory searches, (4) searches of 

evidence in plain view, and (5) searches incident to a valid arrest.
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10. Warrantless Searches: Motor Vehicles. Nebraska has recognized that 

among the established exceptions to the warrant requirement is the automobile exception.

11. Warrantless Searches: Probable Cause. Probable cause, standing 

alone, is not an exception that justifies the search of a person without 

a warrant.

12. Warrantless Searches. One well-recognized exception to the warrant 

requirement is a search undertaken with consent.

13. Constitutional Law: Search and Seizure: Duress. Generally, to be 

effective under the Fourth Amendment, consent to a search must be a 

free and unconstrained choice, and not the product of a will overborne.

14. Warrantless Searches: Duress. Consent must be given voluntarily and 

not as a result of duress or coercion, whether express, implied, physical, 

or psychological.

15. Constitutional Law: Search and Seizure. The determination of whether 

the facts and circumstances constitute a voluntary consent to a search, 

satisfying the Fourth Amendment, is a question of law.

16. Search and Seizure. Whether consent to a search was voluntary is to be 

determined from the totality of the circumstances surrounding the giving 

of consent.

17. ____. Consent to search may be implied by action rather than words.

Appeal from the District Court for Douglas County: J 

Russell Derr, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, and 

Mary M. Dvorak for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne 

for appellee.

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

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Richard J. Saitta appeals his conviction and sentence in 

the district court for Douglas County for possession of a controlled substance. The court overruled Saitta’s motion to suppress evidence, and thereafter in a bench trial, it found Saitta 

guilty and sentenced him to probation for 1 year. Saitta claims 
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on appeal that the court erred when it overruled his motion to 

suppress. We affirm Saitta’s conviction and sentence.

STATEMENT OF FACTS

Saitta was arrested on July 3, 2018, after police officers 

found a clear plastic bag containing a substance later identified 

as methamphetamine inside a glove worn by Saitta. Before 

trial, Saitta filed a motion to suppress all evidence obtained as 

a result of his encounter with the police on July 3. He asserted 

that he was seized in violation of the Fourth Amendment 

because the police did not have reasonable suspicion to detain 

and question him and that the search of his personal effects 

was in violation of the Fourth Amendment because the circumstances did not justify a search without a warrant.

At a hearing on the motion to suppress, the State presented 

the testimony of Cory Buckley, one of the police officers who 

arrested Saitta. Buckley’s testimony is set forth in more detail 

below. During Buckley’s testimony, the State offered and the 

court received into evidence a video recording from Buckley’s 

body camera depicting Buckley’s encounter with Saitta. During 

Saitta’s cross-examination of Buckley, Saitta offered and the 

court received into evidence three still photographs depicting the scene of the encounter. The State offered no further 

testimony or evidence, and Saitta offered no other evidence in 

his defense.

Buckley testified that he was an officer with the Omaha 

Police Department. At approximately 5:43 a.m. on July 3, 

2018, he and his partner were driving on patrol, and as they 

drove past an alleyway, they observed a person who appeared 

to be looking into the window of a building that was in the 

process of being demolished. Buckley testified that he had 

been aware of the building’s being demolished and that he had 

made observing the building part of his regular route on patrol 

because there had been problems with trespassers and people 

sleeping in the building. He was also aware that there had 

been “scrappers in that area,” which as he further described 
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meant that “[w]herever there’s buildings under construction, 

there’s people trying to take metals out of the building being 

demolished . . . for money.”

Upon observing a person in the alley, the officers stopped 

and backed up their patrol car to get a closer look; Buckley testified that he “believe[d] the person saw us because when we 

reversed the person was gone.” They turned into the alley to try 

to make contact or to see if the person had entered the building; as they drove into the alleyway, they noticed the person, 

who would later be identified as Saitta, “hiding in the bushes” 

that were “up against the building.” Buckley testified that the 

officers’ purpose in making contact with Saitta was “[j]ust to 

see why he was looking in the building” and to “[b]asically, 

identify him, make sure he’s not breaking in, not stealing anything, that he actually belongs in that area.”

When the officers got out of their patrol car, Saitta came 

“out of the bushes to make contact with” them. As Saitta 

came out of the bushes, Buckley saw “him shove something 

into his left glove with his right hand.” Buckley observed 

upon initial contact that Saitta was “super nervous” and “did 

not like [the officers’] being there.” Buckley also observed, 

based on his “training and experience,” that the glove Saitta 

was wearing on his left hand was of “the kind of gloves that 

are used by like electricians, so they don’t cut their hands up 

when they’re dealing with wires.” Buckley’s partner asked 

Saitta what he was doing and whether he was breaking into 

the building; Saitta replied that he was doing nothing and 

that he did not have any tools on him, and he put his hands 

in the air. Buckley’s partner then asked Saitta, “‘Well, what’s 

this pile of metal doing right here?’” as he gestured toward 

a small pile of scrap metal that was “[u]p against the building, right by the bush . . . where [Saitta] came out of from 

behind.” Saitta replied that the metal was not his, and then 

“he began to back away from” the officers. When Saitta began 

to back away, Buckley “put [his] hand on [Saitta’s] back to 

get him to stop.”
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Buckley replied in the affirmative to the State’s question 

whether he “inquire[d] to [Saitta] what was in his glove.” 

He then testified that he “asked [Saitta] to remove the glove 

and [Saitta] complied.” Buckley then “asked [Saitta] to hand 

[him] the glove,” and when Saitta handed the glove to him, 

Buckley saw that “inside the glove was a clear plastic bag” 

that contained a substance that “later field-tested positive for 

methamphetamine.” Upon finding the bag and its contents, 

the officers “immediately placed [Saitta] into handcuffs” and 

arrested him.

On cross-examination, Saitta referred to Buckley’s testimony that he “asked” Saitta to remove his glove. Saitta asked 

Buckley whether “[i]n fact, [he] directed [Saitta] to remove his 

gloves,” and whether he “told [Saitta] to give it to [him] so that 

[he] could inspect it.” Buckley agreed with both characterizations. Buckley also agreed with Saitta’s characterization that 

he and his partner got only a “fairly quick glance” at Saitta 

when he was looking into a window of the building as they 

first drove past the alleyway and before they reversed course 

and turned into the alley. Buckley acknowledged that he had 

not previously encountered anyone trying to steal scrap metal 

from that particular building. Buckley further acknowledged 

that when he approached Saitta, he did not observe any metal 

in Saitta’s hands and did not observe a vehicle, shopping cart, 

or other mode of transport available to carry metal. Buckley 

acknowledged that he and his partner had not found evidence 

that Saitta was trying to take metal from the building and that 

at the date of the suppression hearing, he did not “actually 

know whether . . . Saitta was or was not attempting to get 

metal from this particular building.”

Following the suppression hearing, the district court filed an 

order overruling Saitta’s motion to suppress. The district court 

evaluated the evidence and, at the beginning of its analysis, 

stated with regard to the glove that “this is not a ‘seizure’ as 

characterized by” Saitta. Instead, the court found that “Officer 

Buckley simply asked [Saitta] for his glove and [Saitta] gave 
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Cite as 306 Neb. 499

it to him. There was no seizure at all.” Despite this finding, the 

court discussed arguendo that there had been a seizure of the 

glove and continued its analysis accordingly.

After discussing the different levels of police-citizen encounters, the court determined that the encounter between Saitta and 

the officers began as a “tier-one encounter” in which Saitta’s 

liberty was not constrained but then became an “investigatory 

stop,” or a “tier-two encounter,” which enjoys a level of Fourth 

Amendment protection. The court found that the investigatory 

stop was proper “because, under the totality of the circumstances, the officers had reasonable suspicion that [Saitta] had, 

was about to, or was in the process of committing a crime.” 

The court noted Buckley’s testimony that he saw Saitta when 

he was looking into the building at around 5:43 a.m., that he 

knew the building was in the process of being demolished and 

individuals frequently stole scrap metal from such buildings, 

and that when he and his partner drove into the alley, Saitta 

tried to hide in the bushes. The court found these to be “specific and articulable facts that criminal activity was afoot,” 

and it concluded that reasonable suspicion supported a lawful 

detention for an investigatory stop.

The court then reviewed law to the effect that searches without a valid warrant are per se unreasonable, subject to certain 

exceptions. The court noted that in addition to the evidence 

which supported reasonable suspicion justifying the investigatory stop, Buckley testified that he saw Saitta put something 

in his left glove when the officers approached him. The court 

found that it was “reasonable for the officers to believe the 

furtive gestures of [Saitta were] an attempt to conceal items 

of a crime.” The court concluded that “probable cause existed 

in order to justify the search of [Saitta’s] glove” and that 

Saitta’s “Fourth Amendment rights were not violated because 

probable cause existed.” The court overruled Saitta’s motion 

to suppress.

After Saitta waived his right to a jury trial, the court conducted a bench trial in which the State offered two exhibits—a 
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stipulation of the parties regarding laboratory testing of the 

substance in the plastic bag found in Saitta’s glove and separately the transcript of the suppression hearing. Saitta objected 

to the admission of both exhibits based on the reasons set forth 

in his motion to suppress, and he renewed the motion to suppress. The court overruled the renewed motion to suppress and 

received the evidence over Saitta’s objection. Saitta offered no 

evidence in his defense, and the court thereafter found Saitta 

guilty of possession of a controlled substance. After hearing 

argument by the parties on the issue of sentencing, the court 

sentenced Saitta to probation for a term of 1 year.

Saitta appeals his conviction and sentence.

ASSIGNMENTS OF ERROR

Saitta claims generally that the district court erred when it 

overruled his motion to suppress. He specifically claims the 

court erred when it determined that (1) reasonable and articulable suspicion of criminal activity existed to support Saitta’s 

detention, (2) probable cause existed to search Saitta’s glove, 

and (3) probable cause to conduct a search provides a valid 

exception to the Fourth Amendment’s warrant requirement.

STANDARDS 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. State 

v. Degarmo, 305 Neb. 680, 942 N.W.2d 217 (2020). 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. Id.

[2] Likewise, we apply the same two-part analysis when 

reviewing whether a consent to search was voluntary. Id. As to 

the historical facts or circumstances leading up to a consent to 

search, we review the trial court’s findings for clear error. Id. 

However, whether those facts or circumstances constituted a 
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voluntary consent to search, satisfying the Fourth Amendment, 

is a question of law, which we review independently of the trial 

court. State v. Degarmo, supra. And where the facts are largely 

undisputed, the ultimate question is an issue of law. Id.

ANALYSIS

Saitta claims that the district court erred when it overruled 

his motion to suppress evidence obtained as a result of his 

encounter with police on July 3, 2018. He generally challenges 

two aspects of the encounter: the seizure of his person and the 

search of his glove. He argues that the seizure of his person 

was illegal because the police lacked reasonable suspicion for 

an investigatory stop, and he argues that the search of the glove 

was illegal both because the police lacked probable cause to 

conduct the search and because probable cause alone does not 

justify a search without a warrant. We conclude that the seizure 

of Saitta’s person was proper because the police had reasonable 

suspicion to conduct an investigatory stop, and we conclude 

that the search of the glove was proper because it was undertaken with consent.

Seizure of Saitta’s Person Was Proper Because 

Police Had Reasonable Suspicion to 

Conduct an Investigatory Stop.

We first address whether the seizure of Saitta’s person was 

proper. The evidence Saitta sought to suppress was found as 

a result of the search of the glove, and that search occurred 

as a result of the seizure of Saitta’s person. Therefore, if the 

seizure was illegal, then evidence obtained from the search of 

the glove should have been suppressed. However, we conclude 

that the detention of Saitta was an investigatory stop that was 

justified by reasonable suspicion.

The State acknowledges that Saitta was detained at the 

point that Buckley, as he testified, “put [his] hand on [Saitta’s] 

back to get him to stop.” The State contends, and we agree, 

that prior to that time, the encounter involved no restraint 

on Saitta’s liberty. The State further contends that Buckley’s 
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act of detaining Saitta by putting his hand on Saitta’s back 

was justified as an investigatory stop supported by reasonable suspicion.

[3] There are three tiers of police-citizen encounters under 

Nebraska law. 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. State v. Krannawitter, 305 

Neb. 66, 939 N.W.2d 335 (2020). This type of contact does 

not rise to the level of a seizure and therefore is outside the 

realm of Fourth Amendment protection. State v. Krannawitter, 

supra. The second category, 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. State v. Krannawitter, supra. 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. State v. Krannawitter, supra. The third type of policecitizen encounters, arrests, is characterized by highly intrusive 

or lengthy search or detention. Id. The Fourth Amendment 

requires that an arrest be justified by probable cause to believe 

that a person has committed or is committing a crime. State v. 

Krannawitter, supra. Only the second and third tiers of policecitizen encounters are seizures sufficient to invoke the protections of the Fourth Amendment to the U.S. Constitution. State 

v. Krannawitter, supra.

[4] 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. State v. Krannawitter, supra. 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 
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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. Id.

[5] In this case, a seizure occurred when Buckley physically touched Saitta with the purpose of stopping him from 

walking away. An investigative stop must be temporary and 

last no longer than is necessary to effectuate the purpose of 

the stop. State v. Shiffermiller, 302 Neb. 245, 922 N.W.2d 763 

(2019). 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. Id. In 

this case, the investigatory stop of Saitta was brief and did 

not extend beyond what was necessary to investigate the suspicion that prompted Buckley to stop Saitta. Although Saitta 

was arrested soon after Buckley stopped him from walking 

away, the arrest was based on the discovery of the bag containing methamphetamine, and Saitta does not assert the arrest 

per se was improper. Instead, he contends the investigatory 

stop that led to the arrest was improper. We must therefore 

consider whether Buckley had “specific and articulable facts 

sufficient to give rise to reasonable suspicion that [Saitta had] 

committed or [was] committing a crime” and whether he was 

therefore justified in detaining Saitta for an investigatory stop. 

See State v. Krannawitter, 305 Neb. 66, 71, 939 N.W.2d 335, 

341 (2020).

[6,7] As we have said above, an investigatory stop of a 

person requires 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. See id.

Whether a police officer has a reasonable suspicion based on 

sufficient articulable facts depends on the totality of the circumstances and must be determined on a case-by-case basis.

State v. Wells, 290 Neb. 186, 859 N.W.2d 316 (2015). In determining whether a police officer acted reasonably, it is not the 
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officer’s inchoate or unparticularized suspicion or hunch that 

will be given due weight, but the specific reasonable inferences which the officer is entitled to draw from the facts in 

light of the officer’s experience. Id.

In this case, Buckley and his partner saw a person looking 

into the window of a building that was in the process of being 

demolished. Buckley was familiar with the building because it 

was on the route of his regular patrol. He knew of complaints 

about people trespassing and sleeping in the building, and he 

was also familiar in a general sense that people sometimes 

took scrap metal from buildings being demolished. Based on 

the time of day, 5:43 a.m., Buckley could reasonably infer that 

the person was not there for a proper purpose related to the 

building, and based on his general and specific knowledge, 

he could infer the person might be trespassing and possibly 

attempting to steal metal from the building. During their initial 

voluntary encounter with Saitta, Buckley and his partner made 

further observations relevant to suspicion of criminal activity. Buckley’s partner saw a small pile of scrap metal, and he 

asked Saitta about it. Buckley saw Saitta “shove something 

into his left glove,” and Buckley knew the glove to be the type 

one might wear when handling wires. Based on this knowledge and knowing that it was a time of year—July—when one 

would not normally be wearing gloves, Buckley had additional 

reason to suspect Saitta might be trying to take metal from 

the building.

We conclude that considering the totality of the circumstances, including the aforementioned observations and reasonable inferences from his knowledge as an officer, at the 

time he detained Saitta, Buckley had a reasonable suspicion 

based on specific and articulable facts that Saitta had committed or was committing a crime. The investigative stop of 

Saitta was supported by reasonable suspicion, and therefore, 

the court did not err when it denied the motion to suppress to 

the extent the motion relied on an allegedly illegal seizure of 

Saitta’s person.
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Search of Saitta’s Glove Was Proper Because 

It Was Undertaken With Consent.

We next consider whether the search of Saitta’s glove violated the Fourth Amendment. Saitta argues that the district 

court erred when it determined that the officers had probable 

cause to search the glove and when it determined that probable cause in itself is an exception to the warrant requirement. 

The State concedes that probable cause alone did not justify 

the warrantless search and that the district court’s reasoning 

was erroneous. See State v. Perry, 292 Neb. 708, 874 N.W.2d 

36 (2010). Notwithstanding the district court’s rationale, the 

State argues that an exception to the warrant requirement was 

present because the search was incident to an arrest that was 

supported by probable cause. However, we need not consider 

whether there was a proper search incident to an arrest because 

we conclude that, given the district court’s factual finding, a 

warrantless search was proper in this case for the reason that it 

was within a different exception to the warrant requirement—

that is, it was conducted with consent.

[8-10] Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject to a few established 

and well-delineated exceptions. State v. Schriner, 303 Neb. 

476, 929 N.W.2d 514 (2019). The warrantless search exceptions Nebraska has recognized include: (1) searches undertaken 

with consent, (2) searches under exigent circumstances, (3) 

inventory searches, (4) searches of evidence in plain view, and 

(5) searches incident to a valid arrest. State v. Degarmo, 305 

Neb. 680, 942 N.W.2d 217 (2020). We have also recognized 

that among the established exceptions to the warrant requirement is the automobile exception. State v. Lang, 305 Neb. 726, 

942 N.W.2d 388 (2020).

[11] The district court in this case determined that “probable 

cause existed in order to justify the search of [Saitta’s] glove.” 

However, as Saitta recognizes, we have said that “probable 

cause, standing alone, is not an exception that justifies the 

search of a person without a warrant.” State v. Perry, 292 Neb. 
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at 713, 874 N.W.2d at 41. See, also, City of Beatrice v. Meints, 

289 Neb. 558, 567, 856 N.W.2d 410, 417 (2014) (“probable 

cause, standing alone, is not an exception to the search warrant 

requirement of the Fourth Amendment as applied to real property”). Compare State v. Lang, 305 Neb. at 740, 942 N.W.2d at 

400 (automobile exception applies “when a vehicle is readily 

mobile and there is probable cause to believe that contraband 

or evidence of a crime will be found in the vehicle”).

As noted above, the State acknowledges that “probable 

cause to search Saitta’s glove, as articulated in the district 

court’s written order, is insufficient to resolve whether a Fourth 

Amendment violation occurred.” Brief of appellee at 20. The 

State argues, however, that the “search incident to lawful 

arrest” exception applies. Id. The State explains that for the 

same reasons the officers had reasonable suspicion to conduct an investigatory stop of Saitta, they also had probable 

cause to arrest Saitta “for a criminal offense, such as trespassing, burglary, or theft, or an attempt to commit any of those 

offenses.” Id. at 21. Although the officers eventually arrested 

Saitta for possession of methamphetamine and did not have 

probable cause related to that offense until the search of the 

glove, the State maintains that probable cause for one of the 

other asserted crimes justified the search as a search incident 

to arrest.

The State’s argument regarding search incident to arrest is 

problematic because, inter alia, although the officers’ observations were sufficient to provide reasonable suspicion to investigate possible criminal activity such as trespass or theft, the 

search occurred early in the investigation and at a time when 

the officers did not yet have probable cause to arrest Saitta for 

those crimes. In this regard, we note that Buckley conceded at 

the suppression hearing that he and his partner had not found 

evidence that Saitta was trying to take metal from the building 

and that even at the date of the suppression hearing, he did not 

“actually know whether . . . Saitta was or was not attempting 

to get metal from this particular building.”
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[12-16] We need not further consider the State’s argument 

related to search incident to arrest because we determine that 

a different exception to the warrant requirement applies in 

this case—the exception for a search undertaken with consent. 

One well-recognized exception to the warrant requirement 

is a search undertaken with consent. State v. Schriner, 303 

Neb. 476, 929 N.W.2d 514 (2019). Generally, to be effective 

under the Fourth Amendment, consent to a search must be a 

free and unconstrained choice, and not the product of a will 

overborne. State v. Degarmo, 305 Neb. 680, 942 N.W.2d 217 

(2020). Consent must be given voluntarily and not as a result 

of duress or coercion, whether express, implied, physical, or 

psychological. Id. The determination of whether the facts and 

circumstances constitute a voluntary consent to a search, satisfying the Fourth Amendment, is a question of law. State v. 

Degarmo, supra. Whether consent to a search was voluntary 

is to be determined from the totality of the circumstances surrounding the giving of consent. Id.

In its order, the district court began its analysis by stating 

with regard to the glove that “this is not a ‘seizure’ as characterized by” Saitta. Instead, the court found that “Officer 

Buckley simply asked [Saitta] for his glove and [Saitta] gave it 

to him. There was no seizure at all.” This order includes findings of fact that Buckley “simply asked” Saitta for the glove 

and that Saitta “gave it to him.” Based on those facts, the court 

made a conclusion of law that there was no Fourth Amendment 

violation because there was no seizure.

On appeal, we review the findings of fact for clear error, 

but we reach an independent legal conclusion as to whether 

those facts trigger or violate Fourth Amendment protections. 

See State v. Degarmo, supra. We determine the district court’s 

fact findings in this case were not clearly erroneous. Contrary 

to the district court’s analysis, to the effect that the import of 

those facts was that there was no seizure, we conclude that 

those factual findings support the legal conclusion that the 

circumstances constituted a voluntary consent to the search of 

the glove.
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STATE v. SAITTA

Cite as 306 Neb. 499

First, we review the fact findings for clear error. The court 

found that Buckley “simply asked” for the glove. This finding 

is relevant to our legal analysis of consent because it goes to 

whether the officers employed duress or coercion to effect the 

search of the glove. There was some conflict in the evidence 

on this fact because although in direct testimony Buckley testified that he “asked” Saitta, on cross-examination, he agreed 

to Saitta’s characterizations that he “directed” or “told” Saitta 

to give him the glove. The court credited Buckley’s characterization on direct examination over his agreement with 

Saitta’s characterization on cross-examination. The court was 

also able to view the video from Buckley’s body camera. From 

our review of the video, we note that in the video, Buckley 

appears to say to Saitta, “Let me see your glove.” Although 

these words may be ambiguous as to whether it is a request 

or a command, the court was able to judge Buckley’s tone of 

voice and the circumstances and it found that Buckley “simply 

asked” for the glove. After the district court viewed the video 

and listened to the testimony, and following our review of the 

record, we conclude that the finding of the district court was 

not clearly erroneous.

The court also found that Saitta “gave” Buckley the glove. 

This is also relevant to consent because it goes to whether 

Saitta made a free and unconstrained choice or whether his will 

was overborne and he merely acquiesced to duress or coercion. 

There does not appear to be conflict in Buckley’s testimony 

that Saitta gave him the glove. The video shows that Buckley 

did not forcefully take the glove but that instead, almost immediately after Buckley said, “Let me see your glove,” Saitta, 

without hesitation or protest, handed the glove to Buckley. The 

finding that Saitta “gave” the glove to Buckley was also not 

clearly erroneous.

[17] From these fact findings and our review of the record, 

we reach a legal conclusion that the search of the glove was 

undertaken with consent. Buckley “simply asked” for the glove 

and Saitta “gave” it to him. These facts show and the record 
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STATE v. SAITTA

Cite as 306 Neb. 499

supports that Buckley did not use coercion or duress when 

he asked to see the glove, and Saitta almost immediately 

handed the glove to Buckley without hesitation or protest, 

showing that his will was not overborne and that he did not 

merely acquiesce to duress or coercion. Although Saitta did 

not verbally indicate his consent, we have held that consent 

to search may be implied by action rather than words. See 

State v. Modlin, 291 Neb. 660, 867 N.W.2d 609 (2015) (noting that defendant allowed phlebotomist to draw his blood 

without doing anything to manifest refusal). See, also, State 

v. Tucker, 262 Neb. 940, 636 N.W.2d 853 (2001) (noting that 

after request to search his home, defendant responded by stepping back and gesturing with his arms raised and his hands 

outward and upward); State v. Juhl, 234 Neb. 33, 42, 449 

N.W.2d 202, 209 (1989), disapproved on other grounds, State 

v. Messersmith, 238 Neb. 924, 473 N.W.2d 83 (1991) (noting 

that defendant’s right to be free from unreasonable search and 

seizure was not violated when, in response to question from 

police officer as to what he had in his jacket, the defendant 

raised his right arm and said, “‘[C]heck’”). Saitta handed the 

glove to Buckley upon request, and consent may be implied 

from such action. We conclude that Buckley’s search of the 

glove was undertaken with consent and that therefore, the court 

did not err when, to the extent Saitta asserted an illegal search, 

it overruled his motion.

CONCLUSION

Because the detention of Saitta was an investigatory stop 

justified by reasonable suspicion and because the search of 

the glove was undertaken with consent, we conclude that the 

district court did not err when it overruled Saitta’s motion to 

suppress the evidence obtained as a result of the seizure of his 

person and the search of his glove. We therefore affirm Saitta’s 

conviction and sentence.

Affirmed.