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STATE v. HARTZELL

Cite as 304 Neb. 82

State of Nebraska, appellee, v.

Shalynn R. Hartzell, appe

___ N.W.2d ___

Filed September 20, 2019. No. S-18-1105.

1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question 

that does not involve a factual dispute is determined by an appellate 

court as a matter of law, which requires the appellate court to reach a 

conclusion independent of the lower court’s decision.

2. 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.

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. Jurisdiction: Appeal and Error. It is the duty of an appellate court to 

determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties.

5. Sentences: Probation and Parole. The practice of entering separate 

sentencing and probation orders is disapproved. Instead, a sentencing 

court should enter its entire judgment, including all of the terms and 

conditions of probation, at one time.

6. Appeal and Error. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the error to be 

considered by an appellate court.

7. Constitutional Law: Search and Seizure. Both the Fourth Amendment 

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

guarantee against unreasonable searches and seizures.

Nebraska Supreme Court Online Library

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

12/06/2019 09:07 AM CST
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8. Search and Seizure: Evidence: Trial. Evidence obtained as the fruit 

of an illegal search or seizure is inadmissible in a state prosecution and 

must be excluded.

9. 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.

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

Seizure: Arrests. 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. Because 

tier-one encounters do not rise to the level of a seizure, they are outside 

the realm of Fourth Amendment protection. A tier-two police-citizen 

encounter involves a brief, nonintrusive detention during a frisk for 

weapons or preliminary questioning. A tier-three police-citizen encounter constitutes an arrest, which involves a highly intrusive or lengthy 

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

seizures sufficient to invoke the protections of the Fourth Amendment 

to the U.S. Constitution.

11. 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.

12. ____: ____. 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.

13. Police Officers and Sheriffs: Search and Seizure. A seizure does not 

occur simply because a law enforcement officer approaches an individual and asks a few questions or requests permission to search an area, 

provided the officer does not indicate that compliance with his or her 

request is required.

Appeal from the District Court for Adams County: Terri S

Harder and Stephen R. Illingworth, Judges. Aff

John Heieck and Kelsey Helget, Assistant Adams County 

Public Defenders, for appellant.
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Cite as 304 Neb. 82

Douglas J. Peterson, Attorney General, and Jordan Osborne 

for appellee.

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

Papik, and Freudenberg, 

Cassel, J.

I. INTRODUCTION

In Shalynn R. Hartzell’s appeal from her conviction and 

probationary sentence for possession of a controlled substance, 

the legality of the evidence turns upon whether the traffic 

stop concluded and a voluntary police-citizen encounter began 

before she consented to a search of her vehicle. Because the 

totality of circumstances here establishes that this was not, as 

Hartzell contends, an unlawful extended seizure, her appeal 

fails. Before reaching that conclusion, we note jurisdiction but 

disapprove of the practice of entering separate sentencing and 

probation orders, and we direct that a sentencing court should 

instead enter its entire judgment, including all of the terms and 

conditions of probation, at one time.

II. BACKGROUND

1. Encoun

Because the crux of Hartzell’s argument is based upon 

police-citizen encounters, we recount those events first. At 

oral argument, Hartzell conceded that she does not dispute the 

historical facts determined by the district court. Therefore, we 

recount the facts accordingly.

In March 2017, Sgt. Raelee VanWinkle of the Hastings, 

Nebraska, police department conducted a traffic stop of 

Hartzell’s vehicle for expired registration tags. Hartzell was 

alone in the vehicle. VanWinkle issued a “fix-it” ticket, returned 

Hartzell’s license and registration, and told Hartzell to “‘have a 

good night and to drive careful[ly].’” VanWinkle began to walk 

back to her patrol vehicle.

After reaching the rear of Hartzell’s vehicle, VanWinkle 

turned around and again approached Hartzell. VanWinkle 

asked, “‘[H]ey, before you go, do you have a minute to talk to 
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me?’” Hartzell responded, “‘[S]ure, what’s up?’” VanWinkle 

asked to search the vehicle and Hartzell “verbally indicated 

that she didn’t have a problem with that.”

After a search of Hartzell’s vehicle, VanWinkle found a 

marijuana joint, marijuana stems and leaves, a digital gram 

scale with a white crystalline substance on it, and a methamphetamine pipe. When confronted about these items, Hartzell 

stated that she was a marijuana user and used the scale to 

weigh her marijuana. A field test of the pipe residue resulted 

in a presumptive positive for methamphetamine. VanWinkle 

arrested Hartzell and searched her person. VanWinkle found 

“a baggie of methamphetamine in [Hartzell’s] bra.” Later, the 

Nebraska State Patrol Crime Laboratory tested the “baggie” 

and confirmed it contained methamphetamine with a weight of 

.94 grams.

While being taken to jail, Hartzell stated that she had 

tried to “stay clean” and that she had relapsed the prior 

night. VanWinkle denied conducting an interview in the patrol 

vehicle.

Once at the jail and after Hartzell waived her Miranda

rights, VanWinkle interviewed her. Hartzell admitted that 

she had relapsed and that she came to Hastings to purchase 

methamphetamine.

Prior to a stipulated bench trial, Hartzell moved to suppress all evidence found during the search of her vehicle or on 

her person and all statements made to law enforcement. The 

district court denied the motion and determined that neither 

the Fourth Amendment nor the Fifth Amendment had been 

violated. Because Hartzell’s argument on appeal relies solely 

on the Fourth Amendment, in that she claims the seizure 

of the traffic stop was continuous until her ultimate arrest, 

we summarize only those findings pertinent to the Fourth 

Amendment analysis.

Regarding Hartzell’s Fourth Amendment claim, the court 

determined that “a reasonable person would not conclude 

[she was] not free to leave,” because VanWinkle told her to 

“‘drive safe[ly]’” and did not indicate that her compliance 
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with the request to search was required. It noted that although 

VanWinkle’s patrol vehicle’s lights were still activated, Hartzell 

knew that VanWinkle had not returned to the patrol vehicle. It 

determined that VanWinkle did not display a weapon, touch 

Hartzell, or use an authoritative tone. It concluded that Hartzell 

was not seized and that VanWinkle did not need reasonable, 

articulable suspicion to reapproach Hartzell and request consent to search. Hartzell later moved to reconsider and vacate 

the order on the motion to suppress. She contended that the 

court entered the order on the day that the court had scheduled the parties to submit their reply briefs. The court then 

reviewed the reply briefs and declined to vacate the motion to 

suppress order.

At trial, Hartzell renewed her motion to suppress. The 

district court adhered to its prior ruling. The district court 

found Hartzell guilty of possession of a controlled substance, 

methamphetamine, pursuant to Neb. Rev. Stat. § 28-416(3) 

(Reissue 2016).

2. October Sentenci

At a sentencing hearing, the district court sentenced Hartzell 

to 2 years of probation and pronounced several conditions for 

probation. A few days after the hearing, on October 29, 2018, 

the court entered a sentencing order, styled as a journal entry 

(October sentencing order), which also stated that Hartzell 

“should be ordered to comply with the terms and conditions 

set out in the separate Order of Probation.”

Within 30 days of the entry of the October sentencing order, 

Hartzell filed her notice of appeal. We moved the appeal to 

our docket.1

3. Inquiry Regarding Jurisd

After reviewing the transcript, this court noted that no 

“separate Order of Probation” appeared in our record. After 

we notified the parties of this situation, Hartzell supplemented 

1 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
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the record with an order of probation entered on July 17, 2019 

(July order of probation). This order was entered after our notification to the parties.

We then ordered the parties to submit simultaneous supplemental briefing on jurisdiction. The parties did so prior to 

oral argument.

III. ASSIGNMENTS OF ERROR

Hartzell assigns, consolidated and restated, that the district 

court erred in denying her motion to suppress, motion to reconsider and vacate, and renewed motion to suppress.

IV. STANDARD OF REVIEW

[1] A jurisdictional question that does not involve a factual 

dispute is determined by an appellate court as a matter of law, 

which requires the appellate court to reach a conclusion independent of the lower court’s decision.2

[2,3] 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 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

V. ANALYSIS

1. Jurisdicti

[4] Before reaching Hartzell’s assignments of error, we 

must determine whether this court has jurisdiction. It is the 

2 State v. Thalmann, 302 Neb. 110, 921 N.W.2d 816 (2019).

3 State v. Petsch, 300 Neb. 401, 914 N.W.2d 448 (2018).

4 State v. Rivera, 297 Neb. 709, 901 N.W.2d 272 (2017).
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duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of whether the 

issue is raised by the parties.5 Obviously, the question arose 

because the October sentencing order contemplated a “separate Order of Probation” that was not entered until nearly 8 

months after the notice of appeal. However, this appeal does 

not challenge the content of either the October sentencing 

order or the July order of probation. Thus, no claim is made 

that either order conflicted with the pronouncement of sentence. Here, we need only determine whether we have jurisdiction of this appeal, and our statutes provide a clear jurisdictional basis.

Under Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2018), which 

includes appeals from “judgments and sentences upon convictions for felonies and misdemeanors”6

 and which must be 

read together with other statutes governing appeals in criminal 

cases,7 a notice of appeal filed after the announcement of a 

decision or final order but before the entry of the judgment, 

decree, or final order shall be treated as filed after the entry of 

the judgment, decree, or final order and on the date of entry.8

“In other words, to trigger the savings clause for premature 

notices of appeal under § 25-1912(2), an announcement must 

pertain to a decision or order that, once entered, would be final 

and appealable.”9

Here, the oral announcement of a sentence and the content 

of the October sentencing order, which stated a “separate Order 

of Probation” would be forthcoming, triggered the savings 

clause under § 25-1912(2). Although the notice of appeal was 

filed almost 8 months before the remainder of the judgment 

5 See Thalmann, supra note 2.

6 § 25-1912(1).

7 See Neb. Rev. Stat. §§ 29-2301 and 29-2306 (Reissue 2016).

8 See § 25-1912(2).

9 Lindsay Internat. Sales & Serv. v. Wegener, 297 Neb. 788, 795, 901 

N.W.2d 278, 282 (2017).
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was entered, it was filed after the announcement of the October 

sentencing order, which in turn announced the July order of 

probation. Taken together, the October sentencing order, which 

was initially interlocutory, and the July order of probation composed a complete sentencing judgment, from which Hartzell 

could appeal. Because her notice of appeal was filed after the 

announcement but before the entry of the judgment, her premature notice of appeal sprang into effect after the entry of the 

July order of probation.

[5] But we emphasize that this jurisdictional tangle could 

and should have been avoided. The practice of entering separate sentencing and probation orders is disapproved. Instead, a 

sentencing court should enter its entire judgment, including all 

of the terms and conditions of probation, at one time. And we 

remind trial courts that when imposing a sentence, the court 

should state with care the precise terms of the sentence which 

is imposed. This same rule applies to the terms of probation 

imposed upon a defendant.10

2. Motion to Suppr

(a) Seizure

Hartzell argues that the district court erred when it failed to 

grant her motion to suppress evidence found during a search 

of her vehicle and person, as well as statements she made 

to law enforcement. She asserts that because the encounter 

with VanWinkle never de-escalated to a voluntary encounter, 

VanWinkle “unlawfully expanded the scope and extended the 

duration of the investigative stop . . . and thus obtained evidence and statements from [Hartzell] in violation of the Fourth 

Amendment.”11 The State argues that the traffic stop terminated 

when VanWinkle told Hartzell, in effect, she was free to leave 

and that what followed was a separate encounter not subject to 

the Fourth Amendment. We agree with the State.

10 See State v. Salyers, 239 Neb. 1002, 480 N.W.2d 173 (1992).

11 Brief for appellant at 20.
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[6] Hartzell’s argument depends solely on the Fourth 

Amendment analysis. She does not argue that her consent was 

not voluntary or that her statements were procured in violation 

of her Miranda rights and the Fifth Amendment. An alleged 

error must be both specifically assigned and specifically argued 

in the brief of the party asserting the error to be considered by 

an appellate court.12

[7,8] Both the Fourth Amendment to the U.S. Constitution 

and article I, § 7, of the Nebraska Constitution guarantee against 

unreasonable searches and seizures.13 Evidence obtained as the 

fruit of an illegal search or seizure is inadmissible in a state 

prosecution and must be excluded.14

[9,10] 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,

15 which 

describes the three levels, or tiers, of police-citizen encounters.16 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. Because tier-one encounters do not rise to the level 

of a seizure, they are outside the realm of Fourth Amendment 

protection. A tier-two police-citizen encounter involves a brief, 

nonintrusive detention during a frisk for weapons or preliminary questioning. A tier-three police-citizen encounter constitutes an arrest, which involves a highly intrusive or lengthy 

search or detention. Tier-two and tier-three police-citizen 

encounters are seizures sufficient to invoke the protections of 

the Fourth Amendment to the U.S. Constitution.17

12 State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019).

13 State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).

14 State v. Gilliam, 292 Neb. 770, 874 N.W.2d 48 (2016).

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

16 Gilliam, supra note 14.

17 Petsch, supra note 3.
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[11-13] 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.18 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.19 A seizure does not 

occur simply because a law enforcement officer approaches an 

individual and asks a few questions or requests permission to 

search an area, provided the officer does not indicate that compliance with his or her request is required.20

We begin by noting that neither party has challenged the original traffic stop. The traffic stop resulted in a tier-two seizure 

sufficient to invoke the protections of the Fourth Amendment.21

What we must determine is whether the initial traffic stop terminated and de-escalated to a voluntary encounter.

Hartzell relies upon State v. Hansen22 for a similar factual 

scenario. The officer conducted a traffic stop of the defendant’s 

vehicle for an improper lane change and uninsured vehicle. 

When the officer returned to the defendant, a second officer 

arrived and activated his patrol vehicle’s lights. The officer 

gave the defendant a verbal warning for being uninsured 

but did not give a warning about the improper lane change. 

Once the officer returned the defendant’s documents, he asked 

whether there was any contraband in the vehicle. The defendant denied. The officer then asked for consent to search the 

vehicle, and the defendant consented.

18 State v. Schriner, 303 Neb. 476, 929 N.W.2d 514 (2019).

19 Id.

20 State v. Hedgcock, 277 Neb. 805, 765 N.W.2d 469 (2009).

21 See State v. Barbeau, 301 Neb. 293, 917 N.W.2d 913 (2018).

22 State v. Hansen, 63 P.3d 650 (Utah 2002).
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In Hansen, the Utah Supreme Court reasoned that there 

was no evidence of de-escalation. It considered the factors 

concerning whether a seizure has occurred. It discussed that 

because there were no factors demonstrating a coercive show 

of authority in the initial stop, “a reasonable person would not 

be able to discern that a seizure had de-escalated to a consensual encounter due to the absence of such factors at the time 

of additional questioning.”23 It reasoned that when the second 

officer arrived with his vehicle’s lights flashing, a reasonable 

person may believe that the encounter was escalating rather 

than de-escalating. It discussed that when the officer returned 

the defendant’s documents and questioned him about contraband, the officer did not address the improper lane change, 

tell him he did not have to answer, or tell him he was free to 

leave. Under the totality of the circumstances, the court concluded that the detention did not de-escalate and that therefore, 

the officer exceeded the scope of the stop without reasonable suspicion.

Here, the facts differ significantly. Based upon the record 

before us, VanWinkle completed the traffic stop. VanWinkle 

returned Hartzell’s documents and told her to “‘have a good 

night and to drive careful[ly].’” She then walked away from 

the encounter. After this exchange, a reasonable person would 

believe that he or she was free to leave. This was a definitive 

end to the seizure.

At oral argument, Hartzell argued that a reasonable person 

would not feel free to leave until the officer was inside his 

or her vehicle for fear of injuring the officer. We disagree. 

Although roadside safety is a paramount concern for officers 

and citizens, there is no per se rule extending the length of 

a traffic stop in this way. Based upon the totality of the circumstances, we conclude that VanWinkle terminated the first 

encounter before beginning a new one.

23 Id. at 662.
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We must also determine whether the second encounter was a 

seizure. For three reasons, we conclude that it was only a tierone encounter.

First, VanWinkle did not show coercive authority. Upon 

reapproaching Hartzell, VanWinkle did not use an authoritative 

tone, brandish her weapon, or touch Hartzell. Although these 

factors were not present in the initial encounter, the second 

encounter did not begin under the guise of the initial encounter. The termination of the prior encounter signaled the start of 

a new encounter. Additionally, until Hartzell gave consent to 

search, there was only one officer present. There was no evidence of coercive authority to escalate the voluntary encounter 

to a seizure.

Second, VanWinkle did not require compliance with her 

request. VanWinkle asked, “‘[H]ey, before you go, do you have 

a minute to talk to me?’” The question was casual, not authoritative. The question did not demand compliance24; it simply 

asked for a willingness to consent.

Third, the continued flashing of the patrol vehicle’s lights 

does not dictate a different outcome. Hartzell emphasizes that 

the lights were not extinguished at the point when VanWinkle 

began to return to her patrol vehicle. But Hartzell was aware 

that the patrol vehicle’s lights were activated for the initial 

encounter, and “[Hartzell] knew [VanWinkle] had not been 

back to her unit to turn [the patrol vehicle’s lights] off.” 

VanWinkle’s requests contradicted the notion that the flashing 

lights continued to command Hartzell’s presence. And as we 

reasoned in State v. Gilliam,

25 patrol vehicle lights alone would 

not cause a reasonable person to believe that he or she was not 

free to leave.

Under the totality of the circumstances, the factors regarding the second encounter do not support that a seizure 

24 See Hedgcock, supra note 20.

25 See Gilliam, supra note 14.
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occurred. The evidence failed to show how VanWinkle applied 

coercive authority or required compliance with her requests. 

Accordingly, VanWinkle did not seize Hartzell. We conclude 

that the district court did not err in overruling Hartzell’s 

motion to suppress.

Hartzell further argues that even if the encounter de-escalated, 

“[her] purported consent to search her vehicle was the product of police exploitation of a prior illegality,”26 a concept 

known as the attenuation doctrine. If the consent to search was 

not sufficiently attenuated, it is invalid as an exploitation of 

the prior illegal act and a court must exclude both the consent 

and the evidence found as a result of that consent as fruit of 

the poisonous tree.27 Because we determined that VanWinkle 

did not violate the Fourth Amendment when asking for consent to search, attenuation is inapplicable. This argument 

lacks merit.

(b) Remaining Arguments

Hartzell’s remaining arguments address the district court’s 

denials of her motion to reconsider and vacate and her renewed 

motion to suppress. Hartzell asserts that because the district 

court rendered a decision on her motion to suppress before the 

court received the parties’ reply briefs, it was error. Hartzell 

does not cite to any authority to support her assertion.

Based upon the record, the court did recognize that it had 

entered the order before the parties’ scheduled reply brief date. 

In its order on the motion to reconsider and vacate, it stated 

that “[it] ha[d] reviewed the reply briefs submitted by both 

the State and [Hartzell] and decline[d] to vacate its earlier 

ORDER.” We find no prejudicial error.

Because we have considered the evidence from all the hearings and trial and found that the district court did not err in 

overruling the motion to suppress, it necessarily follows that 

26 Brief for appellant at 33.

27 See State v. Gorup, 279 Neb. 841, 782 N.W.2d 16 (2010).
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the court did not err in overruling the motion to reconsider and 

vacate and the renewed motion to suppress.

VI. CONCLUSION

We determine that we have jurisdiction pursuant to 

§ 25-1912(2). Additionally, because there was no seizure during the second encounter, we conclude that the district court 

did not err by overruling Hartzell’s motion to suppress, motion 

to reconsider and vacate, and renewed motion to suppress. 

Thus, we affirm her conviction and sentence.

Affirmed