- 916 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. BRAY

Cite as 297 Neb. 916

State of Nebraska, appellee, v. Ethan Bray, appellant.

___ N.W.2d ___

Filed September 29, 2017. No. S-16-874.

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. Trial: Police Officers and Sheriffs: Search Warrants: Appeal and 

Error. An appellate court reviews the trial court’s findings of fact for 

clear error and gives deference to the inferences drawn from those facts 

by law enforcement officers, the court that issued the search warrants, 

and the trial court.

3. Constitutional Law: Search and Seizure: Evidence: Appeal and 

Error. When the State seeks to submit evidence as sufficiently attenuated from a previous Fourth Amendment violation, an appellate court 

will review the trial court’s findings of historical facts for clear error but 

review de novo the court’s ultimate attenuation determination based on 

those facts.

4. Police Officers and Sheriffs: Search Warrants: Warrantless 

Searches. A police officer who has obtained neither an arrest warrant 

nor a search warrant cannot make a nonconsensual and warrantless entry 

into a suspect’s home in the absence of exigent circumstances.

5. Search and Seizure: Evidence. The exclusionary rule prohibits the 

admission of physical and testimonial evidence gathered illegally.

6. Constitutional Law: Search and Seizure: Evidence. One purpose of 

the exclusionary rule is to compel respect for the constitutional guaranty 

by removing the incentive to disregard it.

7. Search and Seizure: Evidence. The exclusionary rule is applicable only 

where its deterrence benefits outweigh its substantial social costs.

Nebraska Supreme Court Online Library

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

10/06/2017 12:11 AM CDT
- 917 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. BRAY

Cite as 297 Neb. 916

8. Evidence: Police Officers and Sheriffs. Not all evidence is fruit of the 

poisonous tree simply because it would not have come to light but for 

the illegal action of the police; the question is whether the evidence has 

been obtained by exploiting the primary illegality or has instead been 

obtained by means sufficiently distinguishable so as to be purged of the 

primary taint.

9. Constitutional Law: Search and Seizure: Evidence: Police Officers 

and Sheriffs. Under the attenuation exception to the exclusionary rule, 

evidence is admissible when the connection between unconstitutional 

police conduct and the evidence is remote or has been interrupted by 

some intervening circumstance, so that the interest protected by the 

constitutional guarantee that has been violated would not be served by 

suppression of the evidence obtained.

10. Constitutional Law: Search and Seizure: Evidence: Proof. When 

the State asserts that evidence obtained in a search following a Fourth 

Amendment violation is admissible due to the defendant’s consent to the 

search, it must prove two things: (1) The consent was voluntary, and (2) 

the consent was sufficiently attenuated from the violation to be purged 

of the primary taint.

11. Search and Seizure: Evidence: Proof. There is overlap between the 

voluntariness and the taint components that the State must prove, but 

they are not identical.

12. Constitutional Law: Search and Seizure: Evidence. A court must 

consider the evidence’s admissibility in the light of the Fourth 

Amendment’s distinct policies and interests, even if a consent to search 

is voluntary.

13. Search and Seizure: Duress. For consent to be voluntarily given, it 

must be a free and unconstrained choice, not the product of a will overborne, and it cannot be given as the result of duress or coercion, whether 

express, implied, physical, or psychological.

14. Constitutional Law: Search and Seizure: Evidence: Time. In determining whether the causal chain leading to consent is sufficiently attenuated from a Fourth Amendment violation to allow for the admission 

of the evidence, a court considers three relevant factors: (1) the time 

elapsed between the constitutional violation and the acquisition of the 

evidence (temporal proximity), (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct.

15. Search and Seizure: Police Officers and Sheriffs. Being thoroughly 

advised by law enforcement of one’s legal rights, including the right to 

refuse consent, is an intervening circumstance.

16. Constitutional Law: Search and Seizure: Attorney and Client. The 

opportunity for legal consultation is an intervening circumstance and 

has been considered under various circumstances critically important 
- 918 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. BRAY

Cite as 297 Neb. 916

in determining that consent was attenuated from a Fourth Amendment 

violation.

17. Search and Seizure. A suspect’s knowledge of a prior illegal search can 

sometimes give rise to a sense that refusing to consent would be futile.

18. Search and Seizure: Evidence: Police Officers and Sheriffs. The 

purpose and flagrancy of the official misconduct is the most important 

attenuation factor.

19. Search and Seizure: Evidence. The underlying purpose of the attenuation exception is to mark the point of diminishing returns of the deterrence principle underlying the exclusionary rule.

20. Search and Seizure: Evidence: Police Officers and Sheriffs. If law 

enforcement did not likely foresee the challenged evidence as a probable 

product of their illegality, then it could not have been the motivating 

force behind it and the threat of exclusion could not possibly operate as 

a deterrent to such conduct.

21. Search and Seizure: Police Officers and Sheriffs. Purposeful and 

flagrant misconduct exists when (1) the impropriety of the official’s 

misconduct was obvious or the official knew, at the time, that his or 

her conduct was likely unconstitutional but engaged in it nevertheless 

and (2) the misconduct was investigatory in design and purpose and 

executed in the hope that something might turn up.

22. ____: ____. Courts usually do not deem police misconduct as flagrant 

unless the illegal conduct was engaged in for the purpose of obtaining consent or the police misconduct was calculated to cause surprise 

or fear.

23. Search and Seizure: Search Warrants: Police Officers and Sheriffs. 

Officers can take reasonable measures to prevent occupants from becoming disruptive, dangerous, or otherwise frustrating the search; and such 

routine and preventative measures do not depend on the presence of a 

threat, actual or perceived, to the officers executing the warrant.

Appeal from the District Court for Nemaha County: Daniel

E. Bryan, Jr., Judge. Affirmed.

Keith M. Kollasch, Nemaha County Public Defender, for 

appellant.

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

for appellee.

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

Kelch, and Funke, JJ.
- 919 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. BRAY

Cite as 297 Neb. 916

Wright, J.

I. NATURE OF CASE

While carrying out a search warrant for the common areas 

of a house and a roommate’s bedroom, law enforcement 

observed through an open doorway drug paraphernalia in the 

defendant’s bedroom. The district court overruled the defendant’s motion to suppress evidence seized from his bedroom 

following the defendant’s consent to a search. Because of the 

omission of the fact that the informant was in custody when 

he reported the illegal activities forming the basis for the warrant affidavit, the district court found the search warrant for 

the common areas was invalid. But the court found that the 

defendant’s consultation over his cell phone with a person 

identified as his legal counsel, as well as law enforcement’s 

advisement of the defendant’s right to refuse consent, resulted 

in voluntary consent to the search that was sufficiently attenuated from the invalid warrant.

II. BACKGROUND

Ethan Bray was charged under Neb. Rev. Stat. § 28-416 

(Cum. Supp. 2014) with one count of possession of a controlled substance with intent to deliver, a Class III felony; 

three counts of possession of a controlled substance, which are 

Class IV felonies; and one count of possession of money used 

or intended to be used to facilitate a violation of § 28-416(1), 

a Class IV felony. Before trial, Bray moved to suppress all evidence gathered by law enforcement as a direct or indirect result 

of the entry and search of his residence on August 23, 2015. 

The entry of the residence was pursuant to a warrant directed 

toward one of his roommates, Alexander Gonsalves.

Bray asked for a hearing under Franks v. Delaware1 to 

determine whether omissions in the warrant were made in 

reckless disregard for the truth and resulted in the warrant’s 

being issued without probable cause. The district court found 

1 Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 

(1978).
- 920 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. BRAY

Cite as 297 Neb. 916

the evidence sufficient to warrant a Franks hearing, and the 

following evidence was adduced.

1. Warrant

Officer Steven Bures prepared and signed the affidavit for 

the search warrant. The affidavit described that one of several roommates at Gonsalves’ residence, Deven Moore, had 

reported that drug use and distribution were occurring in the 

home. Specifically, Moore reported to Bures that Gonsalves 

was involved in using marijuana. Moore told Bures that he had 

recently smelled marijuana in the house and had seen bongs 

and baggies. He had also taken baggies consistent with “dime 

bags” up to Gonsalves’ room 2 to 3 weeks before. Finally, 

Moore had observed between 6 and 12 people visiting the 

house in the last 48 hours asking to see Gonsalves and going 

to Gonsalves’ bedroom. Moore explained that he suspected the 

visitors were there to buy marijuana.

The parties stipulated that at the time Moore gave the 

information to Bures, he was in custody for driving under the 

influence. Additionally, Bures admitted on cross-examination 

that Moore had alcohol in his system when he gave Bures 

the information about Gonsalves’ drug usage. Bures did not 

describe in the warrant affidavit either that Moore was in custody or that he was under the influence of alcohol when he 

informed Bures of Gonsalves’ illegal activities.

Bures had been a law enforcement officer since 2012. He 

testified that he did not have any training or experience in 

preparing an affidavit based on information from an informant 

who is in custody. He did not know that it was important to 

specify in the affidavit that the informant was in custody. Bures 

believed at the time that the warrant was valid.

2. Observation of Bray’s Room During

Execution of Warrant

The warrant was to be served during the daylight hours 

and was to search for drugs and related items in the common 

areas of the house and in Gonsalves’ bedroom. Officers Kaleb 
- 921 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. BRAY

Cite as 297 Neb. 916

Bruggeman, Matthew Kadavy, Jeff Timmerman, Harold Silvey, 

Dan White, and Bures conducted the search in the late afternoon of August 23, 2015.

While conducting the search, the officers observed Bray 

in his bedroom from the open doorway on the main level. 

They asked him to come out to the living room. Bray joined 

Gonsalves and another roommate on the couch in the living 

room. The roommates were monitored by Bruggeman and 

White while the remaining officers conducted the search of 

the common areas and Gonsalves’ bedroom upstairs. None of 

the occupants who waited on the couch were patted down for 

weapons. They moved around the living room freely, but were 

asked to stay in that room.

While waiting for the other officers to conduct the search, 

Bray asked Bruggeman about the search warrant. Bruggeman 

explained the process of applying for a warrant and allowed 

Bray to examine it. Bruggeman described their tone as conversational. Bray understood that the warrant was not directed 

toward him.

Bray used his cell phone freely while in the living room. 

When it ran out of charge, he asked Bruggeman if he could 

retrieve a cell phone charger from his room. Bruggeman told 

Bray that he could, but that Bruggeman would have to accompany Bray into the room for the safety and security of everybody involved in the search warrant. Bray said that was fine. 

Bruggeman testified at the hearing that he wanted to ensure 

Bray did not obtain any weapons from the room and that 

accompanying Bray was standard protocol.

When Bruggeman accompanied Bray into the room, he 

observed a bong and a grinder with loose-leaf marijuana 

around it. Bruggeman also detected a strong odor of raw marijuana. Bruggeman did not make any statements at that time 

to Bray about what he observed, and Bray returned to the living room.

When Timmerman completed his part of the search, he 

waited in the living room while Bures completed some 
- 922 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. BRAY

Cite as 297 Neb. 916

paperwork. While doing so, Timmerman observed through the 

open doorway the bong in Bray’s bedroom. He voiced this 

observation, and Bray responded that it was a vase. Bruggeman 

interjected that it was a bong.

About 45 minutes after the officers had arrived at the residence and begun their search, Bures joined the others in the 

living room. Bruggeman and Timmerman advised Bures that 

there was a bong, a grinder, and some marijuana in Bray’s 

bedroom. From the living room, Bures looked into the room 

through the open doorway. He was able to observe these three 

items. He could also smell the odor of marijuana. Bures briefly 

walked into Bray’s room but quickly left, without observing 

additional items.

3. Consent

Bures asked Bray if he could have a conversation with him 

out on the porch. Bray consented, and Timmerman and Silvey 

joined them. Bures stood nearest to Bray, while Timmerman 

and Silvey were farther away at other locations on the porch 

and did not directly engage in the conversation. Bures told 

Bray that he had seen drug paraphernalia and marijuana in 

Bray’s bedroom. Bures asked Bray for consent to search 

his room, explaining that if Bray did not consent, he would 

apply for a search warrant. Bures described his tone as 

conversational.

Bray asked if he could call his legal counsel. Bures said 

he could, and Bray stepped away for a private conversation with someone on his cell phone. After that conversation, 

which lasted about 5 minutes, Bray said he would consent to 

the search. Bures retrieved a standard consent form from his 

vehicle. When Bures returned, he read the form to Bray. Bray 

also read the form on his own. The form advised Bray of his 

right to refuse to consent to a search.

Bray filled in his biographical information and then signed 

the consent form. Bray affirmed on the form that he was giving permission to search his room and vehicle freely and 
- 923 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. BRAY

Cite as 297 Neb. 916

voluntarily and that he had been informed of his right to refuse 

to permit the search.

After signing the form, Bray told the officers that he had 

over an ounce of marijuana in his room and wanted to show 

them other items in the room too. Bray “led the way” and 

showed them items in the room that were not particularly 

incriminating. Eventually, Bures informed Bray that they could 

conduct the search unassisted. The officers did so, though Bray 

continued to watch.

The officers seized a small amount of marijuana, the bong, 

and the grinder that were visible from the doorway. Several 

additional items that had not been plainly visible were found 

and seized during the search: two additional containers of marijuana, marijuana resin, two bottles of hashish oil, psilocybin 

mushrooms, a bottle of hydrocodone prescribed to Gonsalves, 

three loose amphetamine pills, a 100-gram weight, a digital 

scale, plastic wrap, small plastic bags, and $1,500 in cash. 

Bray was taken into custody, at which point he refused to make 

any statements and requested legal counsel.

4. Arguments Below

At the hearing on the motion to suppress, the county attorney acknowledged that the judge had said he would find the 

search warrant invalid if the informant who provided the 

information for the warrant affidavit was in custody when 

he provided the information. Therefore, the county attorney 

focused on arguing that Bray’s consent to the search was sufficiently attenuated from any taint deriving from an illegal 

search warrant, such that suppression of the evidence was 

not warranted.

Defense counsel argued that the case law does not support 

the concept of voluntary consent to a search requested pursuant to observations while on the premises under an invalid 

warrant. Counsel argued that in such situations, there is never 

sufficient attenuation from the illegal warrant to purge the 

primary taint. Counsel further asserted that the Eighth Circuit 

and several other courts do not expand protective sweeps to 
- 924 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. BRAY

Cite as 297 Neb. 916

nonarrest situations and that there were no specific, articulable 

facts in this case indicating there were weapons in the house; 

thus, the initial entry into Bray’s room was improper regardless 

of the warrant’s validity.

5. Order on Motion to Suppress

(a) Validity of Warrant

The district court agreed with Bray that the warrant was 

invalid. The court noted that the information in the affidavit in 

support of the warrant was based entirely on information from 

an informant. The court cited to State v. Lammers,

2

 in which we 

said that the reliability of an informant may be established by 

showing in the affidavit that (1) the informant has given reliable information to police officers in the past, (2) the informant 

is a citizen informant, (3) the informant has made a statement 

that is against his or her penal interest, or (4) a police officer’s 

independent investigation establishes the informant’s reliability 

or the reliability of the information the informant has given.

The court noted there was no information in the affidavit 

indicating that Moore had given reliable information to police 

officers in the past, that Moore had made a statement against 

his penal interest, or that Bures had conducted an independent 

investigation establishing Moore’s reliability or the reliability 

of the information Moore gave to Bures. Thus, Bures’ affidavit 

to establish probable cause could rest only on whether Moore 

was a citizen informant.

The court concluded that Moore could not be considered a 

citizen informant, however, because he was under arrest and in 

custody when he gave Bures the information upon which the 

affidavit was based. The court reasoned that Moore’s information was not self-corroborating under State v. King,

3

 because 

he could not, while in custody, “voluntarily” come forward 

with information.

2 State v. Lammers, 267 Neb. 679, 676 N.W.2d 716 (2004).

3 State v. King, 207 Neb. 270, 298 N.W.2d 168 (1980).
- 925 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. BRAY

Cite as 297 Neb. 916

The court concluded that Bures’ omission of the fact that 

Moore was in custody was a reckless disregard for the truth or 

grossly negligent under Franks.4 Furthermore, the court could 

not find the affidavit supported probable cause when considering the four corners of the affidavit if it had included the 

omission. Rather, the district court judge, who had also issued 

the warrant, stated “categorically” that if he would have known 

Moore was in custody, he would have required additional 

information to show reliability of Moore’s assertions before 

finding probable cause for the warrant.

(b) Good Faith

The court rejected any contention that Bures acted in good 

faith in reliance on the invalid warrant. The court reiterated 

that Bures was reckless. The court observed that Bures may 

not have had experience with affidavits for search warrants, 

but Bures was aware of his lack of experience and should have 

sought review of his affidavit by officers with more experience 

or by the county attorney before submitting the information to 

the court. The court concluded:

It would be inexplicable to say that the officer acted 

in reckless disregard for the truth or grossly negligent in 

not providing important information to the Court to get 

his search warrant, yet acted in good faith by relying on 

his prepared affidavit for a search warrant that was issued 

with material information that he should have known 

was omitted.

(c) Consent

The court ultimately concluded that Bray’s voluntary consent purged the taint of the Fourth Amendment violation. It 

found the facts most similar to U.S. v. Greer,

5

 wherein the 

Eighth Circuit held that the intervening circumstances of consulting with a brother and a written advisement of the right to 

4 Franks v. Delaware, supra note 1.

5 U.S. v. Greer, 607 F.3d 559 (8th Cir. 2010).
- 926 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. BRAY

Cite as 297 Neb. 916

refuse consent made the consent to search attenuated from the 

illegal entry, despite the fact that there was not a long lapse of 

time between the violation and the consent to search.

The district court noted the facts supporting attenuation of 

Bray’s consent from the illegal entry into the home:

Bray was not the subject of the original investigation. 

The search was intended to be only for another resident 

(Gonsalves). Bray was instructed he needed to stay in the 

common living area while the search was being conducted 

in Gonsalves’s room and the common areas. The investigation was never intended to focus on Bray. Bray was 

aware of this because he asked and was given the warrant to read while in the common area before any of the 

events in regard to Bray unfolded. It was Bray’s personal 

request to leave the common area and go into his room 

that triggered the events that lead [sic] to his consent to 

search his room and vehicle. Bray was told if he wanted 

to go into his room it would be with the company of an 

officer for security reasons. Bray was ok with that. This 

was not an attempt by the officer to exploit the search 

beyond the warrant. There was no pretext. It was Bray 

that willing [sic] and freely opened this door to expand 

this investigation. Also, . . . Bures took Bray aside after 

being told of the observations of the officers and told 

Bray about what was observed and requested consent to 

search. He did inform Bray that if he did not consent he 

would apply for a search warrant. Bray asked to consult 

with his attorney. Bray was given the opportunity by the 

officer to call his attorney. Bray made a call and consulted 

with someone after which he then verbally consented. The 

officer wanted Bray’s consent in writing so he had him 

fill out and sign exhibit # 3. That form specifically tells 

Bray he had a right to decline the search and seizure of 

any property from his residence and vehicle. Bray signed 

it in any event.

The court balanced these facts of attenuation against the 

court’s conclusion that Bures did not act in an intentionally 
- 927 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. BRAY

Cite as 297 Neb. 916

deceitful manner.6 Considering the totality of the circumstances, the court found that the flagrancy of the official misconduct was not so serious that it tainted the consent given by 

Bray. In other words, the court found that the officer’s procurement of Bray’s consent to the search was not an exploitation of 

the illegality of the initial warrant. As such, the court overruled 

Bray’s motion to suppress.

6. Conviction and Sentence

Following a stipulated bench trial, the court found Bray 

guilty of all charges. Bray was sentenced to 4 years of probation. Bray appeals.

III. ASSIGNMENTS OF ERROR

Bray assigns that the district court erred in overruling his 

motion to suppress, because it erred in finding that his consent 

was voluntarily given and that the consent was sufficiently 

attenuated from the illegal search.

IV. STANDARD OF REVIEW

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

an appellate court applies a two-part standard of review.7

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.8

[2] We review the trial court’s findings of fact for clear 

error, and we give deference to the inferences drawn from 

those facts by law enforcement officers, the court that issued 

the search warrants, and the trial court.9

6 See Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 

(1975).

7 State v. Rogers, ante p. 265, 899 N.W.2d 626 (2017).

8 Id.

9 U.S. v. Reinholz, 245 F.3d 765 (8th Cir. 2001).
- 928 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. BRAY

Cite as 297 Neb. 916

[3] When the State seeks to submit evidence as sufficiently 

attenuated from a previous Fourth Amendment violation, we 

will review the trial court’s findings of historical facts for clear 

error but review de novo the court’s ultimate attenuation determination based on those facts.10

V. ANALYSIS

[4] The U.S. Supreme Court has consistently held that the 

entry into a home to conduct a search or make an arrest is 

unreasonable under the Fourth Amendment unless done pursuant to a warrant.11 A police officer who has obtained neither an 

arrest warrant nor a search warrant cannot make a nonconsensual and warrantless entry into a suspect’s home in the absence 

of exigent circumstances.12

The district court found that Bray voluntarily consented to 

the search of his room and that his consent was sufficiently 

attenuated from the warrantless entry into the home to render 

the exclusionary rule inapplicable. We agree with the district 

court. And because we affirm on the ground that Bray’s voluntary consent was attenuated from any illegality deriving from 

the warrant affidavit, we do not reassess the district court’s 

determination that the omissions from the warrant affidavit 

were reckless and that the affidavit failed to support probable 

cause when supplanted with the omitted information.13

[5,6] The exclusionary rule prohibits the admission of physical and testimonial evidence gathered illegally.14 One purpose 

of the exclusionary rule is to compel respect for the constitutional guaranty by removing the incentive to disregard it.15

10 State v. Gorup, 279 Neb. 841, 782 N.W.2d 16 (2010).

11 State v. Eberly, 271 Neb. 893, 716 N.W.2d 671 (2006).

12 Id.

13 See U.S. v. Reinholz, supra note 9.

14 Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 

(1963).

15 See Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 

(1960).
- 929 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. BRAY

Cite as 297 Neb. 916

The exclusionary rule includes all evidence derivative of the 

illegality, referred to as the “fruit of the poisonous tree.”16

[7,8] However, the exclusionary rule is applicable only 

where its deterrence benefits outweigh its substantial social 

costs.17 Not all evidence is fruit of the poisonous tree simply 

because it would not have come to light but for the illegal 

action of the police.18 The question is whether the evidence 

has been obtained by exploiting the primary illegality or has 

instead been obtained by means sufficiently distinguishable so 

as to be purged of the primary taint.19

[9] With this in mind, several exceptions to the exclusionary rule have been recognized.20 Under the attenuation exception, evidence is admissible when “the connection between 

unconstitutional police conduct and the evidence is remote 

or has been interrupted by some intervening circumstance, so 

that ‘the interest protected by the constitutional guarantee that 

has been violated would not be served by suppression of the 

evidence obtained.’”21

[10-12] When the State asserts that evidence obtained in a 

search following a Fourth Amendment violation is admissible 

due to the defendant’s consent to the search, it must prove two 

things: (1) The consent was voluntary, and (2) the consent was 

sufficiently attenuated from the violation to be purged of the 

primary taint.22 There is overlap between the voluntariness and 

the taint components that the State must prove, but they are 

16 See, Utah v. Strieff, ___ U.S. ___, 136 S. Ct. 2056, 195 L. Ed. 2d 400 

(2016); Elkins v. United States, supra note 15.

17 Utah v. Strieff, supra note 16.

18 See, Wong Sun v. United States, supra note 14; In re Interest of Ashley W., 

284 Neb. 424, 821 N.W.2d 706 (2012).

19 See id.

20 See Utah v. Strieff, supra note 16.

21 Id., 136 S. Ct. at 2061.

22 See, In re Interest of Ashley W., supra note 18; State v. Gorup, supra

note 10.
- 930 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. BRAY

Cite as 297 Neb. 916

not identical.23 A court must consider the evidence’s admissibility in the light of the Fourth Amendment’s distinct policies 

and interests, even if a consent to search is voluntary.24

1. Voluntariness

[13] We agree with the district court that Bray’s consent to 

the search of his room was voluntary. For consent to be voluntarily given, it must be a free and unconstrained choice, not 

the product of a will overborne, and it cannot be given as the 

result of duress or coercion, whether express, implied, physical, or psychological.25 The determination of whether consent 

to search was freely and voluntarily given is based on the totality of the circumstances.26

Bray argues that he was under duress because he was 

detained by six officers for over 45 minutes and because the 

officers confronted him with the evidence they had observed 

in his room. But, to the contrary, the evidence shows that Bray 

was not in a particularly vulnerable subjective state.27 The 

evidence indicates Bray was calm throughout the search of the 

home. While waiting for the search to be completed, Bray was 

allowed to move around the living room freely and use his cell 

phone. He was monitored, along with his two roommates, by 

only two officers. Bray was even allowed, with accompaniment, to enter his room to retrieve a cell phone charger. During 

the search of the common areas and Gonsalves’ room, Bray 

asked Bruggeman questions about the legal process, which 

Bruggeman answered in some detail. Bray was allowed to 

examine the warrant. Bray was well aware that he was not the 

subject of the search being conducted.

23 4 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth 

Amendment § 8.2(d) (5th ed. 2012).

24 See id. See, also, State v. Gorup, supra note 10.

25 See State v. Tyler, 291 Neb. 920, 870 N.W.2d 119 (2015).

26 State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996).

27 See State v. Graham, 241 Neb. 995, 492 N.W.2d 845 (1992) (account must 

be taken of possibly vulnerable subjective state of person who consents).
- 931 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. BRAY

Cite as 297 Neb. 916

After the search of the house was complete, Bray agreed 

to speak with Bures out on the porch. Bray and Bures discussed whether Bray might consent to a search of his room. 

At all times, the tone between Bray and Bures was conversational. Bray was not physically restrained, and the officers 

who accompanied Bures on the porch kept their distance. 

When Bray made a call on his cell phone to discuss with 

his legal counsel the possibility of giving consent, he was 

given privacy.

Bray was not restrained while Bures left the porch to 

retrieve the consent form from his vehicle. Bray’s thorough 

review of the consent form, discussions with Bures, and cell 

phone call to an outside advisor, resulted in clear knowledge 

of his right to withhold consent.28

While Bray was likely motivated to consent by Bures’ statement that he would otherwise seek a search warrant, courts 

have never found statements by officers that they will seek a 

warrant to be coercive per se.29 Bures did not deliberately give 

Bray false information in order to coerce Bray into consenting. 

And there is no evidence that Bures told Bray that a warrant 

would certainly be approved.

We can find no support under these facts for Bray’s claim 

that his consent was involuntary because he was under duress. 

Rather, the State proved that it was the product of free and 

unconstrained choice.

2. Attenuation

[14] We also agree with the district court that Bray’s consent was sufficiently attenuated from the Fourth Amendment 

violation such that the policies behind the exclusionary rule 

were not served by suppressing the evidence seized during 

the search. In determining whether the causal chain leading to 

consent is sufficiently attenuated from a Fourth Amendment 

violation to allow for the admission of the evidence, we 

28 See State v. Konfrst, supra note 26.

29 See State v. Tucker, 262 Neb. 940, 636 N.W.2d 853 (2001).
- 932 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. BRAY

Cite as 297 Neb. 916

consider three relevant factors: (1) the time elapsed between 

the constitutional violation and the acquisition of the evidence 

(temporal proximity), (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct.30 All relevant facts should be considered to determine 

whether, under all the circumstances presented, the consent 

was obtained by exploitation of the prior illegality.31

(a) Temporal Proximity

Cases generally decline to find that the temporal proximity factor favors attenuation unless substantial time elapses 

between an unlawful act and when the evidence is obtained.32

In this case, there was some adjournment after the illegal 

search was completed. After the illegal search and before 

Bray’s consent, Bures conversed with other officers, Bray and 

Bures conversed on the back porch, Bray consulted with an 

outside advisor on his cell phone, Bures retrieved the consent 

form from his vehicle, Bures orally reviewed the form with 

Bray, and Bray carefully read it. Still, these events did not take 

a substantial period of time. We accordingly find that the temporal proximity factor weighs against attenuation. But temporal 

proximity is generally considered the least determinative factor 

involved in the attenuation analysis.33

(b) Intervening Circumstances

[15] We find that intervening circumstances weigh in favor 

of attenuation. Being thoroughly advised by law enforcement of one’s legal rights, including the right to refuse 

30 See, Brown v. Illinois, supra note 6; In re Interest of Ashley W., supra note 

18; State v. Gorup, supra note 10.

31 See, In re Interest of Ashley W., supra note 18; State v. Gorup, supra

note 10.

32 Utah v. Strieff, supra note 16.

33 See, People v. Lewis, 975 P.2d 160 (Colo. 1999); 6 Wayne R. LaFave, 

Search and Seizure, A Treatise on the Fourth Amendment § 11.4(b) (5th 

ed. 2012).
- 933 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. BRAY

Cite as 297 Neb. 916

consent, is an intervening circumstance.34 As already discussed, Bray was carefully informed by Bures of his legal 

right to refuse consent.

[16] The opportunity for legal consultation is likewise an 

intervening circumstance and has been considered under various circumstances critically important in determining that consent was attenuated from a Fourth Amendment violation.35

Consulting with other advisors, such as family or friends, has 

similarly weighed in favor of attenuation.36 Before deciding 

to consent to the search, Bray consulted over his cell phone 

with a trusted advisor, in privacy and without any time limit 

imposed by the officers. And there is no evidence contradicting 

Bray’s statement to the officers that he was consulting at that 

time with his attorney.

While some courts reason that voluntary consent is not in 

itself an intervening circumstance,37 the facts here show that 

Bray’s consent was not merely voluntary in the sense that 

his will was not overborne. Bray’s thorough inquiries, the 

advisements given, Bray’s consultation with counsel, and his 

calm demeanor suggest that his consent was sufficiently an 

act of free will to be attenuated from the Fourth Amendment 

violation.38

[17] We find no merit to Bray’s argument that his consent 

was an insufficient act of free will because he considered it 

34 See, U.S. v. Perry, 437 F.3d 782 (8th Cir. 2006); U.S. v. Mendoza-Salgado, 

964 F.2d 993 (10th Cir. 1992); U.S. v. Oguns, 921 F.2d 442 (2d Cir. 1990); 

State v. Lane, 726 N.W.2d 371 (Iowa 2007).

35 See, United States v. Wellins, 654 F.2d 550 (9th Cir. 1981); 29 Am. Jur. 2d 

Evidence § 651 (2008). See, also, e.g., U.S. v. Fox, 600 F.3d 1253 (10th 

Cir. 2010); State v. Weekes, 268 N.W.2d 705 (Minn. 1978); State v. Walsh, 

305 N.W.2d 687 (S.D. 1981).

36 See, U.S. v. Barone, 721 F. Supp. 2d 261 (S.D.N.Y. 2010); State v. 

Huddleston, 924 S.W.2d 666 (Tenn. 1996); Wicker v. State, 667 S.W.2d 

137 (Tex. Crim. App. 1984).

37 See, e.g., U.S. v. Fox, supra note 35.

38 See, Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 

(1979); U.S. v. Herrera-Gonzalez, 474 F.3d 1105 (8th Cir. 2007).
- 934 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. BRAY

Cite as 297 Neb. 916

futile to refuse consent once confronted with the items plainly 

visible in his room. It is true that a suspect’s knowledge of 

a prior illegal search can sometimes give rise to a sense that 

refusing to consent would be futile.39 “‘[A] person might reasonably think that refusing to consent to a search of his home 

when he knows that the police have, in fact, already conducted 

a search of his home, would be a bit like closing the barn door 

after the horse is out.’”40

In this case, though, there were still several horses in the 

barn. The officers confronted Bray with a bong, a grinder, 

and a small amount of marijuana that were plainly visible. 

But Bray knew that the officers had not yet seen many other 

incriminating items hidden in his room: two additional containers of marijuana, marijuana resin, two bottles of hashish oil, 

psilocybin mushrooms, a bottle of hydrocodone prescribed to 

Gonsalves, three loose amphetamine pills, a 100-gram weight, 

a digital scale, plastic wrap, small plastic bags, and $1,500 

in cash.

In light of this, it was not futile to close the barn door. 

Rather, Bray assessed the situation and determined he might 

benefit from trying to cooperate instead of running the risk that 

a search warrant for his room would be obtained. Indeed, his 

attempts to lead and supervise the search indicate Bray may 

have hoped to control the amount of incriminating evidence 

that would be uncovered. The fact that the search did not turn 

out as Bray may have hoped does not make his choice to consent less an act of free will. We find that intervening circumstances weigh in favor of attenuation.

(c) Purpose and Flagrancy

[18-20] Lastly, we consider the purpose and flagrancy 

of the misconduct. The purpose and flagrancy of the official misconduct is the most important attenuation factor.41

39 See U.S. v. Washington, 387 F.3d 1060 (9th Cir. 2004).

40 U.S. v. Haynes, 301 F.3d 669, 683 (6th Cir. 2002). 41 U.S. v. Simpson, 439 F.3d 490 (8th Cir. 2006).
- 935 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. BRAY

Cite as 297 Neb. 916

This is because the underlying purpose of the attenuation 

exception is to mark the point of diminishing returns of the 

deterrence principle underlying the exclusionary rule.42 If 

law enforcement did not likely foresee the challenged evidence as a probable product of their illegality, then it could 

not have been the motivating force behind it and the threat 

of exclusion could not possibly operate as a deterrent to 

such conduct.43

[21,22] Purposeful and flagrant misconduct exists when (1) 

the impropriety of the official’s misconduct was obvious or the 

official knew, at the time, that his or her conduct was likely 

unconstitutional but engaged in it nevertheless and (2) the misconduct was investigatory in design and purpose and executed 

“‘in the hope that something might turn up.’”44 Courts usually 

do not deem police misconduct as “flagrant” unless the illegal 

conduct was engaged in for the purpose of obtaining consent 

or the police misconduct was calculated to cause surprise 

or fear.45

[23] The only misconduct in this case was Bures’ reckless 

omission from the warrant affidavit. And it is undisputed 

that Bures did not actually know that the warrant affidavit suffered any infirmities. Although Bray complains that 

Bruggeman acted improperly when he accompanied Bray 

into his room to retrieve a cell phone charger, we disagree. It 

was proper for the officers to supervise and limit the movements of the house’s occupants while conducting the search. 

Officers can take reasonable measures to prevent occupants 

from becoming disruptive, dangerous, or otherwise frustrating 

42 6 LaFave, supra note 33, § 11.4(a). See, also, e.g., Brown v. Illinois, supra 

note 6; U.S. v. Simpson, supra note 41.

43 See id.

44 U.S. v. Simpson, supra note 41, 439 F.3d at 496 (quoting Brown v. Illinois, 

supra note 6).

45 Orosco v. State, 394 S.W.3d 65 (Tex. App. 2012).
- 936 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. BRAY

Cite as 297 Neb. 916

the search.46 Such routine and preventative measures do not 

depend on the presence of a threat, actual or perceived, to the 

officers executing the warrant.47

There is no evidence that the illegal search of the home 

and Gonsalves’ room had a collateral objective of obtaining 

consent to search additional bedrooms of the house. In other 

words, the purpose of the misconduct in omitting information 

from the warrant affidavit was not investigatory in the hope 

that “something might turn up.” Further, the search was not 

conducted in a way calculated to cause surprise or fear. To 

the contrary, the officers were circumspect in carrying out the 

warrant that they believed to be valid. With limited exceptions, 

the officers did not cross the threshold into Bray’s room until 

Bray’s consent was given. They did not seize the items in 

plain view in Bray’s room or search his room before obtaining 

his consent. And, as already discussed, such consent followed 

extensive legal advisements and Bray’s outside consultation 

with counsel.

In sum, the officers’ conduct in obtaining Bray’s consent 

was neither a flagrant nor purposeful exploitation of the primary illegality. We accept for purposes of this opinion that 

Bures should have foreseen that the warrant was illegal, but 

neither he nor the other officers involved should have foreseen 

obtaining other occupants’ consent to search their bedrooms as 

a probable product of the invalid search warrant. The invalid 

search warrant thus could not have been the motivating force 

46 See, Bailey v. United States, 568 U.S. 186, 133 S. Ct. 1031, 185 L. Ed. 2d 

19 (2013); Los Angeles County v. Rettele, 550 U.S. 609, 127 S. Ct. 1989, 

167 L. Ed. 2d 974 (2007); Muehler v. Mena, 544 U.S. 93, 125 S. Ct. 1465, 

161 L. Ed. 2d 299 (2005); Michigan v. Summers, 452 U.S. 692, 101 S. Ct. 

2587, 69 L. Ed. 2d 340 (1981). See, also, e.g., U.S. v. Jennings, 544 F.3d 

815 (7th Cir. 2008); Com. v. Hoffman, 403 Pa. Super. 530, 589 A.2d 737 

(1991).

47 Fields v. State, 203 Md. App. 132, 36 A.3d 1026 (2012). See cases cited 

supra note 46. Compare Dashiell v. State, 374 Md. 85, 821 A.2d 372 

(2003) (particularized suspicion required to frisk occupants).
- 937 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. BRAY

Cite as 297 Neb. 916

behind asking Bray to consent to a search. Accordingly, the 

threat of exclusion could not possibly operate as a deterrent 

to the illegal conduct at issue in this case. We find that the 

last factor of the attenuation analysis weighs heavily in favor 

of attenuation.

Considering the three factors of temporal proximity, intervening circumstances, and the flagrancy and purpose of the 

official misconduct, we agree with the district court that the 

causal chain leading to Bray’s consent was sufficiently attenuated from a Fourth Amendment violation to be purged of the 

primary taint.

VI. CONCLUSION

The district court correctly determined that Bray’s consent 

was voluntary and that it was not obtained by exploitation of 

the prior illegality of the search warrant. Therefore, the court 

properly admitted the evidence obtained during the search of 

Bray’s room. Bray’s assignment of error has no merit.

Affirmed.