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CONCLUSION

From our de novo review of the record, we conclude that 

the revocation and cease-and-desist order imposed by the PSC 

was excessive. We do not make light of Telrite’s failure to 

use the correct form a mere 6 weeks after the PSC ordered it 

to do so. Nor do we express an opinion whether lesser sanctions are justified. But, considering the low participation rate 

of Nebraska households in the Lifeline program and the purposes of both the Telecommunications Act and the NTUSFA, 

revocation and a cease-and-desist order were not warranted 

by Telrite’s failure to use the correct form during a 1-day 

event. Accordingly, we reverse, and remand to the PSC for 

further proceedings.

 Reversed and remanded

further proceedings

Heavican, C.J., participating on brief

State of Nebraska, appellee, v.

Lucio A. Rodriguez III, app

___ N.W.2d ___

Filed August 29, 2014. No. S-13-062.

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. The Fourth Amendment to the U.S. 

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

unreasonable searches and seizures.

3. Constitutional Law: Investigative Stops: Search and Seizure: Probable 

Cause. The Fourth Amendment guarantee of the right to be free of unreasonable 

searches and seizures requires that an arrest be based upon probable cause and 

limits investigatory stops to those made upon an articulable suspicion of criminal activity.

4. Police Officers and Sheriffs: Investigative Stops: Probable Cause. In determining whether there is reasonable suspicion for an officer to make an investigatory stop, the totality of the circumstances must be taken into account.
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5. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double 

Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence 

admitted by a trial court, whether erroneously or not, would have been sufficient 

to sustain a guilty verdict.

Petition for further review from the Court of Appeals, Inbody

Chief Judge, and Moore and Riedmann, Judges, on app

thereto from the District Court for Scotts Bluff County, Le

Dobrovolny, Judge. Judgment of Court of Appeals reversed

and cause remanded with directions.

Bell Island, of Island & Huff, P.C., L.L.O., for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for 

appellee.

Heavican, C.J., Wright, Connolly, Stephan, M

Miller-Lerman, and Cassel,

Miller-Lerman,

I. NATURE OF CASE

Lucio A. Rodriguez III appealed his conviction in the district court for Scotts Bluff County for driving under the influence (DUI) with a concentration of more than .15 of 1 gram of 

alcohol per 210 liters of breath, third offense, to the Nebraska 

Court of Appeals. He claimed that the district court erred when 

it (1) overruled his motion to suppress evidence obtained from 

a traffic stop that he asserted was based on an anonymous tip 

without corroboration and (2) overruled his motion for a mistrial based on the State’s failure to dismiss another pending 

charge which the State knew prior to trial it could not prove. 

The Court of Appeals affirmed Rodriguez’ conviction and sentence. We granted his petition for further review. We reverse 

the decision of the Court of Appeals and remand the cause 

to the Court of Appeals with directions to reverse Rodriguez’ 

DUI conviction and remand the cause to the district court for 

a new trial.

II. STATEMENT OF FACTS

In its memorandum opinion, the Court of Appeals described 

the facts of this case for which we find support in the record 

as follows:
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On April 28, 2012, the Scotts Bluff County 911 emergency dispatch center received notification of a possible 

disturbance near a rental car business. When the dispatch 

center communicated this information to Officer Aaron 

Kleensang, the dispatcher noted that the caller stated that 

he had been pushed out of a moving vehicle. The dispatcher also stated that the caller identified the vehicle as 

a green GMC Envoy and stated that this vehicle left the 

area heading westbound on Highway 26.

At the time Kleensang received the dispatch, he was 

near the vicinity of the reported activity. [He did not see 

the caller at the rental car business, however, he soon] 

observed a vehicle matching the description he received 

from the dispatch center traveling westbound on Highway 

26. Kleensang made two turns, followed the vehicle onto 

17th Avenue and 20th Street, and observed it stop on 

its own. The vehicle moved to the side of the road and 

parked before Kleensang activated his patrol car’s emergency lights. Kleensang testified that he activated the 

lights to signal the driver that Kleensang wanted to talk 

with him.

Kleensang approached the driver and began to question 

him about the reported disturbance. Rodriguez was identified as the driver. Kleensang had other officers in the area 

make contact with the caller, and the caller was eventually brought to a nearby location. No other evidence was 

adduced about the caller, and there was apparently no 

further action taken in regard to the disturbance. While 

discussing the reported disturbance with Rodriguez, 

Kleensang made several initial observations. He detected 

a strong odor of alcohol and noticed that Rodriguez had a 

flushed face, slurred speech, and bloodshot, watery eyes. 

After administering three field sobriety tests, Kleensang 

believed Rodriguez was heavily intoxicated. Kleensang 

arrested Rodriguez following a preliminary breath test and 

transported him to the detention center in Scotts[b]luff, 

Nebraska. Rodriguez then submitted to a “DataMaster” 

test at the detention center, and his breath tested at .226 

grams of alcohol per 210 liters of breath.
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During the booking process, Rodriguez’ wallet was 

taken from him and inventoried. Kleensang testified this 

is standard procedure whenever he takes someone to jail. 

When the wallet was opened, two clear plastic baggies 

containing apparent controlled substances were discovered at the bottom. Preliminary tests were conducted 

on these substances at the jail. Subsequent tests at the 

Nebraska State Patrol crime laboratory revealed that one 

substance was cocaine and that the other substance was 

not a controlled substance.

On May 10, 2012, the State filed an information charging Rodriguez with DUI with a blood alcohol level greater 

than .15, third offense; possession of methamphetamine; 

and possession of cocaine. Rodriguez moved to suppress 

any evidence gathered from the stop and subsequent 

search, contending that the stop was not based on reasonable and articulable suspicion that a crime had been committed or was about to be committed.

The district court overruled the motion to suppress. In 

its order, the court noted that the stop was justified under 

two separate analyses. First, the court concluded that the 

stop could be considered to be a “‘first-tier’ contact” 

for which no Fourth Amendment protections apply. The 

court found Kleensang had not used emergency lights 

or a siren to cause Rodriguez to stop. Thus, the court 

determined that a reasonable person would not have 

believed he was required to stop or that his movement 

was impeded in any way before Kleensang activated 

his patrol car’s emergency lights. Second, analyzing 

the stop as a “‘tier-two’” encounter, the court determined reasonable suspicion existed for the stop because 

Kleensang had corroborated the information from the 

dispatch center.

On December 18, 2012, the case proceeded to a jury 

trial. Despite having received laboratory reports demonstrating that Rodriguez did not possess methamphetamine 

on the night he was arrested, the State did not dismiss the 

charge in advance of trial. Rodriguez’ motions for mistrial 

based on this failure to dismiss were denied, but the court 
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entered a directed verdict in his favor on the possession 

of methamphetamine charge at the close of the State’s 

evidence. The jury convicted Rodriguez of DUI, but 

acquitted him of the possession of cocaine charge. The 

court sentenced Rodriguez to 60 days in jail and a term of 

probation, suspended his license for 5 years, and ordered 

him to pay court costs.

State v. Rodriguez, No. A-13-062, 2013 WL 6246792, *1-2 

(Neb. App. Dec. 3, 2013) (selected for posting to court 

Web site).

Rodriguez appealed his DUI conviction to the Court of 

Appeals. He claimed that the district court erred when it (1) 

analyzed the traffic stop as a first-tier police contact; (2) overruled his motion to suppress, despite a lack of corroboration 

of the anonymous tip; and (3) overruled his motion for a mistrial based on the State’s failure to dismiss the methamphetamine charge.

The Court of Appeals affirmed Rodriguez’ conviction and 

sentence. With regard to the assignment of error related to a 

first-tier police contact, the Court of Appeals noted that the 

State did little to challenge Rodriguez’ argument that he was 

seized when Kleensang activated his patrol car’s lights and that 

the contact was therefore a second-tier traffic stop requiring 

reasonable suspicion. The Court of Appeals determined that 

the State had conceded that the contact was a traffic stop and 

concluded that because the district court had alternatively concluded that there was reasonable suspicion to support a traffic 

stop, it was unnecessary for the Court of Appeals to address the 

first assignment of error related to a first-tier stop.

With regard to whether there was reasonable suspicion for 

a traffic stop, the Court of Appeals cited Nebraska precedent 

and concluded that the content of the dispatch and Kleensang’s 

observations consistent with the dispatch gave Kleensang a 

reasonable suspicion to justify the traffic stop.

With regard to Rodriguez’ motion for a mistrial, the Court 

of Appeals disapproved of the county attorney’s failure to 

dismiss the methamphetamine charge prior to trial and stated 

that such conduct was “improper in the course of conducting a 

fair trial because it may tend to expose a jury to irrelevant and 
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prejudicial matters.” State v. Rodriguez, 2013 WL 6246792 at 

*5. Although it disapproved of the prosecution’s conduct, the 

Court of Appeals determined that such conduct did not reach 

a level requiring the declaration of a mistrial. The Court of 

Appeals concluded that the district court did not abuse its discretion when it overruled Rodriguez’ motion for a mistrial. The 

Court of Appeals affirmed. Id.

We granted Rodriguez’ petition for further review.

III. ASSIGNMENTS OF ERROR

On further review, Rodriguez claims, restated, that the Court 

of Appeals erred when it (1) determined that the district court 

did not err when it overruled Rodriguez’ motion to suppress 

and (2) determined that the district court did not err when it 

overruled his motion for a mistrial based on the State’s pursuit of the methamphetamine charge after it knew it could not 

prove the charge.

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, 

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

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

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

the trial court’s determination. State v. Schuller, 287 Neb. 500, 

843 N.W.2d 626 (2014).

V. ANALYSIS

1. Court of Appeals Erred Wh

Affirmed Overruling of Rodrigu

Motion to Suppr

Rodriguez first claims that the Court of Appeals erred when 

it determined that the traffic stop was justified and that the 

motion to suppress was properly overruled. We conclude on the 

record of admitted evidence before us that the anonymous tip 

in this case did not justify the stop. Therefore, the district court 

erred when it overruled Rodriguez’ motion to suppress and the 

Court of Appeals erred when it affirmed this ruling.
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[2-4] The Fourth Amendment to the U.S. Constitution and 

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

unreasonable searches and seizures. State v. Dalland, 287 Neb. 

231, 842 N.W.2d 92 (2014). The Fourth Amendment guarantee 

of the right to be free of unreasonable searches and seizures 

requires that an arrest be based upon probable cause and limits 

investigatory stops to those made upon an articulable suspicion of criminal activity. State v. Wollam, 280 Neb. 43, 783 

N.W.2d 612 (2010). In determining whether there is reasonable suspicion for an officer to make an investigatory stop, 

the totality of the circumstances must be taken into account. 

See id.

In the present case, the Court of Appeals first addressed 

Rodriguez’ claim that the district court erred when it determined that the contact between Kleensang and Rodriguez was 

a “first-tier” contact that did not trigger Fourth Amendment 

protections. Because the State conceded on appeal that the 

contact was a “second-tier” traffic stop, the Court of Appeals 

reviewed the district court’s alternative determination that there 

was reasonable suspicion to support a traffic stop. Because neither party complains of this determination on further review, 

we accept that the contact was a traffic stop. Thus, we review 

the lower courts’ determinations that the content of the dispatch 

plus Kleensang’s observation of Rodriguez’ vehicle in the location indicated in the dispatch provided reasonable suspicion to 

justify the traffic stop.

Because the stop was based on information supplied by a 

caller, the reliability of such information is key to determining 

whether there was reasonable suspicion. As discussed below, 

Fourth Amendment case law indicates that an important factor 

in assessing the reliability of such information is the distinction between whether the person supplying the information is 

known to law enforcement or the information comes from an 

anonymous source.

Both the district court and the Court of Appeals treated the 

call in this case as an anonymous tip. Upon our review of the 

record, we note that there was no evidence received in the 

district court that indicates the name of the caller was known 
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to law enforcement at the time Kleensang initiated the traffic 

stop. The State acknowledges in its appellate briefs that no evidence was received by the district court establishing the identity of the caller prior to the stop, and the State suggests that 

the call be treated as an anonymous tip for purposes of Fourth 

Amendment analysis. We agree.

Although the district court and the Court of Appeals both 

treated the caller as anonymous, neither court relied on certain 

relevant precedent from the U.S. Supreme Court regarding 

anonymous tips in the context of Fourth Amendment analysis. 

Both relied on this court’s opinion in State v. Bowley, 232 

Neb. 771, 442 N.W.2d 215 (1989). In Bowley, we noted that 

the factual basis for a traffic stop need not arise from the officer’s personal observation, but may be supplied by information acquired from another person. We further noted that when 

the factual basis is supplied by another, the information must 

contain sufficient indicia of reliability, and we stated that a 

citizen informant who has personally observed the commission 

of a crime is presumptively reliable. We concluded that the 

investigatory stop in Bowley was reasonable, and in making 

this determination, we noted that “[w]hile the informants were 

unidentified until after [the defendant] was stopped, they did 

remain and identify themselves to police.” 232 Neb. at 773, 

442 N.W.2d at 217.

Based on its reading of Bowley, the Court of Appeals 

rejected Rodriguez’ argument to the effect that, in the 

absence of identification of the caller, there was not sufficient indicia of the caller’s reliability to support the stop. 

The Court of Appeals recited that the caller reported having 

been pushed from a moving vehicle, and it therefore reasoned that the caller should be treated as a citizen informant 

whose personal observation of the commission of a crime 

was presumptively reliable under Bowley. The Court of 

Appeals appeared to determine that the caller’s reliability 

was enhanced through corroboration when “Kleensang personally observed a vehicle which matched the description 

in the dispatch and was heading in the direction indicated 

by the caller to dispatch.” State v. Rodriguez, No. A-13-062, 
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2013 WL 6246792, *4 (Neb. App. Dec. 3, 2013) (selected for 

posting to court Web site).

Since our decision in Bowley in 1989, the U.S. Supreme 

Court has decided key Fourth Amendment cases involving 

anonymous tips but we have not had occasion to discuss these 

cases. We therefore review the development of relevant Fourth 

Amendment law regarding anonymous tips since we decided 

Bowley before applying such law to this case.

(a) U.S. Supreme Court Precedent 

Regarding Anonymous Tips in 

Fourth Amendment Cases

Although the caller in the instant case did not supply predictive behavior of the defendant, the district court cited the 

case of Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412, 110 

L. Ed. 2d 301 (1990), as support of its conclusion that “the 

anonymous tip was sufficiently corroborated to furnish reasonable suspicion.” In White, the U.S. Supreme Court determined 

that an anonymous tip from a telephone caller provided justification for a traffic stop when certain details provided by 

the caller were corroborated by police observation. The caller 

stated that the defendant would leave a particular location at 

a particular time in a particular vehicle, that she would go to 

another particular location, and that she would be in possession 

of cocaine. Officers’ personal observations corroborated that 

the defendant left the general location during the general timeframe indicated by the caller, that she got into the particular 

vehicle identified by the caller, and that she proceeded on the 

most direct route toward the location indicated by the caller. 

The officers stopped the defendant’s vehicle prior to reaching 

that location.

In considering whether the stop in White was justified, the 

U.S. Supreme Court noted that the caller’s ability to predict 

the defendant’s future behavior demonstrated inside information and a special familiarity with her affairs which, the 

Court determined, gave the police reason to believe that the 

caller was also likely to have access to information about her 

illegal activity. The Court described the decision in White as 

“a close case” but concluded that “under the totality of the 
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circumstances the anonymous tip, as corroborated, exhibited 

sufficient indicia of reliability to justify the investigatory stop.” 

496 U.S. at 332.

Neither the district court nor the Court of Appeals in this 

case cited Florida v. J. L., 529 U.S. 266, 120 S. Ct. 1375, 146 

L. Ed. 2d 254 (2000), in which the Court held that an anonymous tip lacked sufficient indicia of reliability to establish 

reasonable suspicion for an investigatory stop. The anonymous 

caller in J. L. reported that “a young black male standing at 

a particular bus stop and wearing a plaid shirt was carrying a 

gun.” 529 U.S. at 268. Officers were instructed to respond to 

the tip, and when they arrived at the indicated location, they 

saw three black males, one of whom was wearing a plaid shirt. 

They made no other observation that would indicate illegal 

activity; nevertheless, one of the officers approached the man, 

told him to put his hands up on the bus stop, frisked him, and 

seized a gun from his pocket.

The Court in J. L. compared the facts of the case to those 

in White and determined that “[t]he tip in [J. L.] lacked the 

moderate indicia of reliability present in White and essential to 

the Court’s decision in that case.” 529 U.S. at 271. The Court 

noted that the call in J. L. “provided no predictive information” 

as was present in White. 529 U.S. at 271. The Court in J. L.

rejected Florida’s argument that the tip was reliable because 

the defendant met the anonymous informant’s description of a 

particular person at a particular location; the Court stated that 

“[s]uch a tip . . . does not show that the tipster has knowledge 

of concealed criminal activity” and that “reasonable suspicion 

. . . requires that a tip be reliable in its assertion of illegality, 

not just in its tendency to identify a determinate person.” 529 

U.S. at 272. The Court in J. L. described its decision in White

as “borderline” and stated that “[i]f White was a close case on 

the reliability of anonymous tips, this one surely falls on the 

other side of the line.” 529 U.S. at 271.

After the Court of Appeals’ decision in this case, and after 

oral argument on further review to this court, the U.S. Supreme 

Court filed another opinion involving the Fourth Amendment 

and anonymous tips, Navarette v. California, ___ U.S. ___, 

134 S. Ct. 1683, 188 L. Ed. 2d 680 (2014). At this court’s 
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direction, the parties filed supplemental briefs. In Navarette, 

the U.S. Supreme Court concluded that under the totality of 

the circumstances in that case, an anonymous tip regarding 

reckless driving gave police reasonable suspicion that justified 

a traffic stop. In Navarette, an unidentified 911 emergency dispatch caller reported that another vehicle had run her vehicle 

off the road. The caller gave her location and a description 

of the other vehicle, including the license plate number. A 

police officer in the reported area saw a vehicle meeting the 

description and, without personally observing reckless driving 

or other violation of law, pulled the defendant’s vehicle over. 

A second officer, who had separately responded to the report, 

also arrived on the scene. As a result of the stop, the officers 

found 30 pounds of marijuana in the vehicle, which evidence 

the defendant sought to suppress on the basis that it had been 

obtained as the result of a traffic stop that was not supported 

by reasonable suspicion.

Referring to its decisions in Alabama v. White, 496 U.S. 

325, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990), and Florida 

v. J. L., supra, the U.S. Supreme Court stated that the initial 

question in its Fourth Amendment analysis was whether the 

anonymous tip was reliable. Under the facts in Navarette, the 

immediate focus was whether the call was sufficiently reliable 

to credit the allegation that the defendant’s vehicle had run 

the caller off the road. The majority in Navarette determined 

that due to certain factors, the call did bear adequate indicia 

of reliability. The factors on which the majority in Navarette

relied were: (1) eyewitness knowledge, i.e., the caller necessarily claimed to have personally observed the alleged dangerous 

driving; (2) contemporaneous reporting, i.e., the caller reported 

the incident soon after it occurred; and (3) the caller’s use of 

the 911 emergency dispatch system, which system allows for 

identifying and tracing callers, thus providing some safeguard 

against false reports.

After determining that the anonymous tip was a reliable 

report of having been run off the road, the majority in 

Navarette stated that “[e]ven a reliable tip will justify an 

investigative stop only if it creates reasonable suspicion that 

‘criminal activity may be afoot.’” 134 S. Ct. at 1690. The 
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majority therefore found it necessary to determine whether 

the anonymous caller’s tip created a “reasonable suspicion 

of an ongoing crime such as drunk driving as opposed to 

an isolated episode of past recklessness.” Id. The majority 

concluded that the reported behavior of the defendant driver, 

viewed from an objective standpoint, amounted to a reasonable suspicion of drunk driving. The majority in Navarette

stated that rather than a conclusory allegation of drunk or 

reckless driving, the caller alleged a specific and dangerous 

result of the driver’s conduct which resembled “paradigmatic 

manifestations of drunk driving.” 134 S. Ct. at 1691. In concluding that there was reasonable suspicion to justify the traffic stop in Navarette, the majority acknowledged that, like the 

decision in White, the decision was a “‘close case.’” 134 S. 

Ct. at 1692.

Justice Scalia, joined by three other justices, dissented in 

Navarette. The dissent found fault with the factors relied on by 

the majority as indicia of reliability. With regard to the caller’s 

report that the defendant’s vehicle had run her vehicle off the 

road, the dissent stated that “the police had no reason to credit 

that charge and many reasons to doubt it, beginning with the 

peculiar fact that the accusation was anonymous.” Navarette v. 

California, ___ U.S. ___, 134 S. Ct. 1683, 1692, 188 L. Ed. 2d 

680 (2014) (Scalia, J., dissenting; Ginsburg, Sotomayor, and 

Kagan, JJ., join).

The dissent in Navarette did agree with the majority that 

the traffic stop “required suspicion of an ongoing crime, not 

merely suspicion of having run someone off the road earlier.” 

134 S. Ct. at 1695. However, the dissent maintained that the 

caller’s report, at best, indicated careless or reckless driving 

rather than drunk driving and that “driving while being a careless or reckless person, unlike driving while being a drunk 

person, is not an ongoing crime.” Id.

(b) Application of U.S. Supreme Court 

Precedent to This Case

We apply the above-discussed U.S. Supreme Court precedent to the facts of this case. We note first that the district 

court relied on White to conclude that the anonymous tip in 
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this case was sufficiently corroborated to supply reasonable 

suspicion for the traffic stop. This reliance was misplaced. The 

information supplied by the caller in this case is more similar 

to the corroborated information that the Court concluded in 

Florida v. J. L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 

254 (2000), did not supply reasonable suspicion. The information provided by the caller and corroborated by Kleensang 

in this case was merely a description of the vehicle and its 

general location. There was no prediction of future behavior 

as was present in Alabama v. White, 496 U.S. 325, 110 S. 

Ct. 2412, 110 L. Ed. 2d 301 (1990). Under J. L., corroboration of a description of the defendant and the defendant’s 

general location did not supply reasonable suspicion; instead, 

the Court stated that the caller’s information regarding illegal 

activity needed to be reliable.

In Navarette and White, the investigatory stops were 

approved, but both were seen as “close cases” by the U.S. 

Supreme Court. Because there are important differences in 

the totality of the circumstances between the present case and 

relevant precedent, we reach a different outcome. In particular, 

although the indicia of reliability in this case bear a similarity 

to those noted in Navarette, we believe there are two important factors explored below that lead to a different result: (1) 

Kleensang had reason to doubt the reliability of the anonymous 

caller’s report of illegal activity and (2) the anonymous caller 

in this case did not report an ongoing crime.

(i) Reliability of Caller

The majority in Navarette noted the following as indicia 

of reliability: (1) eyewitness knowledge, (2) contemporaneous reporting, and (3) the caller’s use of the 911 emergency 

dispatch system. In the present case, the caller claimed eyewitness knowledge of the event and made the call soon after 

it occurred. The record also indicates that the call was made 

to law enforcement through 911 or a similar emergency dispatch system.

Unlike the facts of Navarette, the officer in the present case 

made observations that raised doubts regarding the reliability 

of the caller’s report. Kleensang testified at the suppression 
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hearing that before he saw Rodriguez’ vehicle, he drove past 

the location where the person reported having been pushed out 

of the vehicle. Upon inspection, Kleensang did not see anyone 

at that location. The fact that Kleensang did not see anyone 

at the location claimed by the caller was a contraindication 

of reliability and weakened the value of the anonymous tip in 

establishing reasonable suspicion to stop Rodriguez’ vehicle. 

The anonymous tip in this case bore weaker indicia of reliability than the tip in Navarette.

(ii) Ongoing Crime

As we have explained above, the fact that the reported crime 

was seen as ongoing was critical to the outcome in Navarette v. 

California, ___ U.S. ___, 134 S. Ct. 1683, 188 L. Ed. 2d 680 

(2014). Even though the majority and the dissent disagreed 

on whether the report of driving another vehicle off the road 

indicated ongoing drunk driving, the majority and the dissent agreed that the officer needed reasonable suspicion of an 

ongoing crime to justify an investigatory stop. In this regard, 

it has been stated that “an anonymous 911 call reporting an 

ongoing emergency is entitled to a higher degree of reliability 

and requires a lesser showing of corroboration than a tip that 

alleges general criminality.” U.S. v. Simmons, 560 F.3d 98, 105 

(2d Cir. 2009).

In the present case, the caller indicated only that he had 

been pushed from the described vehicle. There was nothing in 

the content of the call that indicated that the driver was driving drunk or that the driver posed a threat of public harm by 

driving recklessly. The caller did not report an ongoing crime 

and instead indicated an isolated past episode. The majority in 

Navarette found that the anonymous caller reported an ongoing 

crime, which finding was key to its decision. Such factor is not 

present in this case.

(iii) Resolution

Keeping in mind that the decision in Navarette that the stop 

was justified was, in the words of the Court, a “close case,” 

we determine that the important differences present in the 

instant case as compared to Navarette are sufficient to tip the 
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reasonable suspicion analysis in the other direction. The fact 

that Kleensang saw no one at the location where the caller 

reported having been thrown from a vehicle created doubt as to 

the anonymous caller’s reliability. Furthermore, the caller did 

not report an ongoing crime, which under Navarette and other 

case law is necessary to support the finding of reasonable suspicion justifying a traffic stop.

We conclude that on the record presented to the district 

court in this case, the court erred when it determined that 

there was reasonable suspicion to justify the traffic stop and 

overruled Rodriguez’ motion to suppress. Therefore, the Court 

of Appeals committed reversible error when it affirmed the 

overruling of the motion to suppress and affirmed Rodriguez’ 

conviction of DUI.

(iv) Double Jeopardy Analysis

[5] Having concluded that the denial of the motion to suppress was reversible error, we must determine whether the 

totality of the evidence admitted by the district court was sufficient to sustain Rodriguez’ conviction for DUI. If it was not, 

then double jeopardy forbids a remand for a new trial. State v. 

Ash, 286 Neb. 681, 838 N.W.2d 273 (2013). But the Double 

Jeopardy Clause does not forbid a retrial so long as the sum 

of all the evidence admitted by a trial court, whether erroneously or not, would have been sufficient to sustain a guilty 

verdict. Id.

After reviewing the record, we conclude that the evidence 

presented at trial, including the evidence that should have been 

suppressed, was sufficient to support the DUI conviction. As 

such, we conclude that double jeopardy does not preclude a 

remand for a new trial of the DUI charge. We note that there 

will not be a new trial on either the possession of methamphetamine charge or the possession of cocaine charge, because the 

methamphetamine charge was dismissed and the jury acquitted 

Rodriguez of the cocaine charge.

We conclude that the Court of Appeals’ decision must be 

reversed and the cause remanded to the Court of Appeals with 

directions to reverse the DUI conviction and remand the cause 

to the district court for a new trial.
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2. Court of Appeals Properly Disapproved of St

Failure to Dismiss Methamphetamine Charge

to Trial But We Need Not Determine Whe

State’s Misconduct Warranted Mis

For his second assignment of error, Rodriguez claims the 

district court erred when it overruled his motions for mistrial 

based on the State’s having failed to dismiss the methamphetamine charge prior to trial knowing it lacked evidence 

and nevertheless proceeded to comment on the charge to the 

jury. We agree with the Court of Appeals’ disapproval of the 

State’s conduct. However, because we have concluded above 

that Rodriguez’ DUI conviction should be reversed based on 

the suppression issue, we need not decide whether the State’s 

misconduct warranted declaration of a mistrial.

During voir dire, it was made clear to the jury that three 

counts were involved in the case and that one count of possession of methamphetamine would be at issue. One juror volunteered that he had “a family member that’s on meth and it’s 

destroyed his life totally.” After further inquiry by the district 

court, the juror was excused.

Notwithstanding the methamphetamine-related colloquy 

during the voir dire of the jury, in his opening statement, the 

prosecutor admitted that the State would not be able to prove 

the charge of possession of methamphetamine. Rodriguez 

moved for a mistrial at the end of the State’s opening statement. In a conference outside the jury’s presence, the county 

attorney stated that months prior to trial, he had received the 

report showing that neither substance was methamphetamine. 

He indicated that he had shared the report with defense counsel. The county attorney stated that his failure to dismiss the 

charge was “an oversight,” but he did not adequately explain 

why he nevertheless commented on the methamphetamine 

charge to the jury.

The district court overruled Rodriguez’ motion for a mistrial. The charge remained in the case during the receipt of 

the State’s evidence. Thereafter, the court granted Rodriguez’ 

“motion for a directed verdict” on the charge of possession 

of methamphetamine at the close of the State’s evidence and 
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894 288 NEBRASKA REPORTS

dismissed the count. We agree with the Court of Appeals that 

the State’s inaction prior to trial and its action during the preliminary stages of the trial were improper because they exposed 

the jury to irrelevant and prejudicial matters. The State should 

have dismissed the charge promptly after it knew it could not 

prove the charge, and the State had ample opportunity prior to 

and on the eve of trial to do so.

In the Court of Appeals’ opinion, it concluded that the district 

court did not abuse its discretion when it overruled Rodriguez’ 

motions for a mistrial based on the State’s improper conduct. 

Because we have determined that Rodriguez’ DUI conviction 

should be reversed on other grounds and because there is no 

reason for the State to engage in the same conduct on remand, 

it is not necessary to our disposition of this appeal to decide 

whether the district court abused its discretion and should have 

declared a mistrial at the first opportunity on the basis of the 

State’s conduct in this trial. Notwithstanding our disapproval 

of the State’s conduct on this issue, we are not obligated to 

engage in an analysis that is not necessary to adjudicate the 

case and controversy before us. See State v. Pangborn, 286 

Neb. 363, 836 N.W.2d 790 (2013).

VI. CONCLUSION

We conclude that the district court erred when it overruled 

Rodriguez’ motion to suppress evidence obtained as a result 

of the traffic stop and that the Court of Appeals erred when 

it affirmed this ruling and Rodriguez’ DUI conviction. We 

reverse the decision of the Court of Appeals and remand the 

cause to the Court of Appeals with directions to reverse the 

DUI conviction and remand the cause to the district court for a 

new trial. With regard to the State’s failure to dismiss the possession of methamphetamine count prior to the trial, we share 

the Court of Appeals’ disapproval of the State’s conduct. We 

conclude, however, that it is not necessary for us to decide the 

correctness of the lower courts’ decisions to the effect that a 

mistrial was not warranted for the misconduct, because it will 

not be repeated upon remand for a new trial.

Reversed and remanded with direct
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STATE v. RODRIGUEZ 895

Cite as 288 Neb. 878

Heavican, C.J., dissentin

I respectfully dissent from the majority’s determination that 

the district court erred in overruling Rodriguez’ motion to suppress. I would conclude that the stop of Rodriguez’ vehicle was 

supported by reasonable suspicion.

The principles of law are well established. As the U.S. 

Supreme Court noted in Navarette v. California1:

The Fourth Amendment permits brief investigative 

stops—such as the traffic stop in this case—when a law 

enforcement officer has “a particularized and objective 

basis for suspecting the particular person stopped of criminal activity.” . . . The “reasonable suspicion” necessary 

to justify such a stop “is dependent upon both the content 

of information possessed by police and its degree of reliability.” . . . The standard takes into account “the totality 

of the circumstances—the whole picture.” . . . Although a 

mere “‘hunch’” does not create reasonable suspicion . . . , 

the level of suspicion the standard requires is “considerably less than proof of wrongdoing by a preponderance of 

the evidence,” and “obviously less” than is necessary for 

probable cause.

And these principles “apply with full force to investigative 

stops based on information from anonymous tips.”2 While an 

anonymous tip, standing alone, “‘seldom demonstrates the 

informant’s basis of knowledge or veracity,’” in the right circumstances, “an anonymous tip can demonstrate ‘sufficient 

indicia of reliability to provide reasonable suspicion to make 

[an] investigatory stop.’”3

In my view, and considered in light of Navarette, the anonymous tip received by law enforcement was sufficiently reliable to provide law enforcement with reasonable suspicion to 

stop Rodriguez.

1 Navarette v. California, ___ U.S. ___, 134 S. Ct. 1683, 1687, 188 L. Ed. 

2d 680 (2014) (citations omitted).

2 Id., 134 S. Ct. at 1688.

3 Id. (citations omitted).
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896 288 NEBRASKA REPORTS

First, the caller in this case reported that he had been pushed 

out of a moving vehicle. The Court in Navaratte noted that the 

caller in that case, who had reported her vehicle’s being run off 

the road by a particular vehicle, “claimed eyewitness knowledge” of the incident and that such lends “significant support 

to the tip’s reliability.”4

In addition, the caller was able to describe the vehicle in 

which he had been riding as a dark-colored GMC Envoy, and 

to further report that the vehicle was heading westbound on 

Highway 26. Kleensang testified that he was about 1 to 11⁄2

miles away from the location of the incident at the time of 

the dispatch and that he proceeded directly to Highway 26. 

Kleensang testified that about a quarter of a mile away from 

the site of the incident, he observed a green GMC Envoy westbound on Highway 26 getting ready to exit the highway. Thus, 

the distances and time involved suggest that the caller’s report 

of the incident was relatively contemporaneous with the incident. The Court in Navarette noted that such a report “has long 

been treated as especially reliable.”5

Furthermore, the caller here, like the caller in Navarette, 

used the 911 system, or a similar dispatch system. Such lends 

further reliability to the caller’s tip, because the safeguards and 

identification features of the system are such that “a reasonable 

officer could conclude that a false tipster would think twice 

before using” it.6

I am not concerned, as the majority is, that no one was at 

the place of the incident when Kleensang originally drove past 

it. In my view, in this circumstance, the fact that a person who 

had just been pushed out of a moving vehicle did not stay at 

the scene of the incident does not affect the reliability of that 

person’s report.

Nor am I concerned about any lack of additional suspicious 

conduct by Rodriguez following this anonymous report. The 

Court in Navarette noted that

4 Id., 134 S. Ct. at 1689.

5 Id.

6 Id., 134 S. Ct. at 1690.
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STATE v. RODRIGUEZ 897

Cite as 288 Neb. 878

the absence of additional suspicious conduct [did not] 

dispel the reasonable suspicion of drunk driving. . . . 

Once reasonable suspicion of drunk driving arises, “[t]he 

reasonableness of the officer’s decision to stop a suspect 

does not turn on the availability of less intrusive investigatory techniques.” . . . This would be a particularly inappropriate context to depart from that settled rule, because 

allowing a drunk driver a second chance for dangerous 

conduct could have disastrous consequences.7

In the same way, once Kleensang had a report that an individual had been pushed out of a moving vehicle, the failure to 

follow up on that report, especially when faced with a vehicle 

that matched the report’s description, defies reason and “could 

have disastrous consequences.”8

I do acknowledge, of course, that this case is slightly different from Navarette. There, the Court noted that the caller’s 

“claim that another vehicle ran her off the road . . . necessarily implies that the informant knows the other car was driven 

dangerously,”9 while in this case, whatever crime that occurred 

as of the time Rodriguez allegedly pushed the caller out of the 

vehicle was arguably over. And I would agree that the act here 

is perhaps less predictive of drunk driving than the reckless 

driving in Navarette.

Still, on these facts, I ultimately see no reasonable distinction between hitting another vehicle or object and pushing an 

individual out of a moving vehicle. In my view, using the common sense we all hope law enforcement uses, it was reasonable 

for Kleensang to conclude that a driver who had been accused 

of pushing a passenger out of a moving vehicle might pose 

other threats while driving.

In sum, the caller in this case used the 911 emergency dispatch system to report that he had been pushed out of a moving 

vehicle. He described that vehicle and indicated the direction 

that vehicle had been traveling. Law enforcement found a 

7 Id., 134 S. Ct. at 1691 (citations omitted).

8 Id.

9 Id., 134 S. Ct. at 1689.
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898 288 NEBRASKA REPORTS

vehicle matching that description in the area where the caller 

said the vehicle was headed. Taken together, this is sufficient 

to create a reasonable suspicion to support Kleensang’s stop of 

Rodriguez’ vehicle. I would affirm.

Cassel, J., joins in this dissent

Michael E. Kelliher, appellant,

Travis Soundy et al., appelle

___ N.W.2d ___

Filed August 29, 2014. No. S-13-538.

1. Judgments: Jurisdiction. When a jurisdictional question does not involve a 

factual dispute, the issue is a matter of law.

2. Judgments: Appeal and Error. An appellate court reviews questions of law 

independently of the lower court’s conclusion.

3. Statutes: Appeal and Error. Statutory interpretation is a question of law that 

an appellate court resolves independently of the trial court.

4. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for 

review, an appellate court must determine whether it has jurisdiction over the 

matter before it.

5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to 

acquire jurisdiction of an appeal, there must be a final order entered by the court 

from which the appeal is taken; conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders.

6. Final Orders: Appeal and Error. To fall within the collateral order doctrine, 

an order must (1) conclusively determine the disputed question, (2) resolve an 

important issue completely separate from the merits of the action, and (3) be 

effectively unreviewable on appeal from a final judgment.

7. ____: ____. The requirement that a court order must resolve an important issue 

completely separate from the merits of the action prevents piecemeal review.

8. ____: ____. Court orders which involve considerations that are enmeshed 

in the factual and legal issues of the cause of action are not immediately 

reviewable.

9. Property: Sales: Intent. The scope of the lis pendens statute is determined by 

its end and purpose. The purpose of the lis pendens statute is to prevent third 

persons, during the pendency of the litigation, from acquiring interests in the land 

which would preclude the court from granting the relief sought.

10. Actions: Property: Notice. Cancellation of a notice of lis pendens is completely 

separate from the merits of the underlying action.