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Nebraska Court of Appeals Advance Sheets

25 Nebraska Appellate Reports

STATE v. BOTTS

Cite as 25 Neb. App. 372

State of Nebraska, appellee, v. 

Kirk A. Botts, appellant.

___ N.W.2d ___

Filed December 19, 2017. No. A-16-985.

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

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

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

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

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

of the trial court’s determination.

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

The ultimate determinations of reasonable suspicion to conduct an 

investigatory stop and probable cause to perform a warrantless search 

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

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

trial judge.

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

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

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

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

4. Constitutional Law: 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.

5. Search and Seizure: Evidence: Trial. Evidence obtained as the fruit 

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

must be excluded.

6. Search and Seizure: Probable Cause: Appeal and Error. To analyze 

the legality of the search and seizure, an appellate court must first determine when the seizure occurred and then address whether the seizure 

was supported by probable cause.

Nebraska Supreme Court Online Library

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

12/19/2017 09:10 AM CST
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STATE v. BOTTS

Cite as 25 Neb. App. 372

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

Seizure: Arrests. There are three tiers of police-citizen encounters. A 

tier-one police-citizen encounter involves the voluntary cooperation 

of the citizen elicited through noncoercive questioning and does not 

involve any restraint of liberty of the citizen. Because tier-one encounters do not rise to the level of a seizure, they are outside the realm 

of Fourth Amendment protection. A tier-two police-citizen encounter 

involves a brief, nonintrusive detention during a frisk for weapons or 

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

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

sufficient to invoke the protections of the Fourth Amendment to the 

U.S. Constitution.

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

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

or she was not free to leave.

9. Police Officers and Sheriffs: Search and Seizure. In addition to situations where an officer directly tells a suspect that he or she is not free 

to go, circumstances indicative of a seizure may include the threatening presence of several officers, the display of a weapon by an officer, 

some physical touching of the citizen’s person, or the use of language or 

tone of voice indicating the compliance with the officer’s request might 

be compelled.

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

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

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

Amendment protections, so long as the questioning is carried on without 

interrupting or restraining the person’s movement.

11. Constitutional Law: Arrests: Probable Cause. The Fourth Amendment 

requires that an arrest be justified by probable cause to believe that a 

person has committed or is committing a crime.

12. Warrantless Searches: Probable Cause: Police Officers and Sheriffs.

Probable cause to support a warrantless arrest exists only if law enforcement has knowledge at the time of the arrest, based on information that 

is reasonably trustworthy under the circumstances, that would cause a 

reasonably cautious person to believe that a suspect has committed or is 

committing a crime.

13. Probable Cause: Words and Phrases. Probable cause is a flexible, 

commonsense standard that depends on the totality of the circumstances.

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

whether probable cause existed under an objective standard of reasonableness, given the known facts and circumstances.
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Nebraska Court of Appeals Advance Sheets

25 Nebraska Appellate Reports

STATE v. BOTTS

Cite as 25 Neb. App. 372

15. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Appeal from the District Court for Lancaster County: Robert

R. Otte, Judge. Reversed and remanded with directions.

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

P.C., for appellant.

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

for appellee.

Inbody, Pirtle, and Riedmann, Judges.

Pirtle, Judge.

INTRODUCTION

Kirk A. Botts appeals from his conviction for possession of 

a knife by a felon in the district court for Lancaster County. 

He challenges the court’s overruling of his motion to suppress evidence and statements, its overruling of objections to 

certain testimony at trial, its use of a specific jury instruction, 

and its failure to find the evidence insufficient to find him 

guilty. We conclude that Botts’ motion to suppress should 

have been granted, and therefore, we reverse, and remand 

with directions.

BACKGROUND

The State filed an amended information charging Botts 

with possession of a knife by a felon, a Class III felony. Botts 

entered a plea of not guilty. He later filed a motion to suppress evidence and statements, and a hearing was held on 

the motion.

At the motion to suppress hearing, Officer Jason Drager 

of the Lincoln Police Department testified that on March 10, 

2016, around 2:30 a.m., he was driving back to the police station in his police cruiser. While driving, he saw a vehicle on 

a side street that was not moving and was partially blocking 
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STATE v. BOTTS

Cite as 25 Neb. App. 372

the roadway. The vehicle was situated at an angle, with the 

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

street. Drager thought maybe there had been an accident. He 

turned down the street and saw an individual standing by the 

driver’s side of the vehicle. Drager turned on his cruiser’s 

overhead lights, parked his cruiser behind the vehicle, and 

contacted the individual, later identified as Botts. He asked 

Botts “what was wrong,” and Botts initially told Drager “to 

mind [his] own business.” When Drager asked Botts again 

about what had happened, Botts told him “he was out of gas 

and was trying to push the vehicle to the side of the road.” 

Drager testified that he did not recall Botts’ saying that he 

drove the vehicle there. Botts asked Drager if he could help 

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

Police Department policy.

Drager testified that he decided he should remain at the 

location because Botts’ vehicle was blocking the roadway and 

could cause an accident. Drager then stood back by his cruiser 

and watched Botts push the vehicle back and forth. Drager 

stated that Botts became “verbally abusive” toward him after 

he said he could not help him, so Drager decided to ask other 

officers to come to the location “for safety purposes.” Three 

other officers responded.

One of the officers who responded, Officer Phillip Tran, 

advised Drager that he had stopped Botts a couple hours earlier 

that night for traffic violations. Drager testified that Tran told 

him he had detected an odor of alcohol on Botts at the time of 

the earlier stop. Based on the information from Tran, Drager 

decided to approach Botts and ask him if he had been drinking. 

Drager testified that when he asked Botts if he had been drinking, Botts became angry, started yelling, and started backing 

up away from him.

Drager testified that Botts’ demeanor led him to believe 

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

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

alcohol or drugs were affecting Botts’ ability to answer 
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STATE v. BOTTS

Cite as 25 Neb. App. 372

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

been drinking.

Drager testified that Botts backed up to the other side of the 

street and stopped with his back against a light pole. When he 

was backing up, he was not coming at the officers and was not 

making threats. The four officers surrounded Botts by the light 

pole. Botts started yelling “something along the line of shoot 

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

of the officers at the scene, pulled out his Taser for safety purposes and to try to get Botts to comply with their request to 

put his hands behind his back. He eventually did so and was 

handcuffed and placed in the back of Drager’s cruiser.

Drager testified that the officers were telling Botts to put his 

hands behind his back for their safety and Botts’ safety. Drager 

stated that he was concerned for his safety because Botts was 

being verbally abusive.

Drager testified that after Botts was arrested, the officers 

decided to tow Botts’ vehicle because it was blocking the road. 

He stated that it is Lincoln Police Department policy to search 

vehicles that are going to be towed. Tran began to search the 

vehicle and saw the handle of a machete sticking out from 

underneath the driver’s seat. Drager testified that after discovering the machete, Botts was under arrest for being in possession of a concealed weapon.

Tran also testified at the motion to suppress. He testified 

that he had contact with Botts around midnight on March 

10, 2016, a couple hours before Drager made contact with 

him. Tran testified that he stopped Botts for not having his 

headlights on and for driving erratically. Tran testified that 

during that contact, he noticed a “slight odor of alcohol,” 

and that Botts “and another person in the vehicle had just 

purchased some alcohol.” Botts was the driver of the vehicle, 

and there was more than one passenger. Tran testified that 

he did not initiate a driving under the influence investigation because he did not see enough signs to believe that Botts 

was intoxicated.
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25 Nebraska Appellate Reports

STATE v. BOTTS

Cite as 25 Neb. App. 372

Tran testified that he and another officer responded to 

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

Drager about his previous contact with Botts. Tran testified 

that Drager and Lopez then made contact with Botts at his 

vehicle, at which time Botts’ statements and demeanor became 

erratic. Tran stated Botts backed away from the two officers 

and was making statements such as “shoot me, kill me, things 

like that.” He also heard Botts make statements indicating the 

police were harassing him and treating him differently because 

of his race. Tran testified that Botts backed up and stopped 

with his back against a light pole and that the four officers 

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

hands behind his back, and Botts responded that he was not 

doing anything wrong. Tran testified that during that time, 

Lopez had his Taser out. Botts eventually put his hands behind 

his back and was handcuffed.

Tran testified that as soon as Botts was handcuffed, he 

walked over to Botts’ vehicle and looked inside the driver’s 

side front window, which was rolled down. He then saw the 

handle of a machete sticking out from under the driver’s seat. 

He retrieved the machete out of the vehicle after it was decided 

that the vehicle would be towed. He testified that the officers 

were required to do an inventory search every time a vehicle 

is towed.

The State offered exhibits 1 through 3 into evidence, each of 

which is a DVD containing a video recording from the encounter with Botts. Exhibit 1 was the video recording from Drager’s 

cruiser. Exhibit 2 was the video recording from Drager’s 

body camera. Exhibit 3 was the video recording from Tran’s 

cruiser. The exhibits showed the interaction between Botts 

and the officers, including Botts’ transport to jail. The video 

recording from Drager’s cruiser showed that when Botts was 

sitting in Drager’s cruiser, he saw Tran remove the machete 

from his vehicle. Botts then began making statements indicating that the machete was his and that he knew it was in his 

vehicle. Specifically, he stated multiple times that he used the 
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STATE v. BOTTS

Cite as 25 Neb. App. 372

machete for his business, which involved cutting weeds. Botts 

also made statements indicating that the vehicle where the 

machete was found was his vehicle. Botts was never read his 

Miranda rights.

Following the hearing, the trial court overruled the motion 

to suppress.

A jury trial was subsequently held on the charge. During the 

trial, Botts renewed his motion to suppress, which was again 

overruled. Drager and Tran both testified, and their testimony 

was consistent with that set forth above.

Lopez also testified at trial. He testified that based on 

information provided by Tran about the earlier stop, the officers thought Botts’ vehicle was possibly positioned as it was 

because he had an alcohol-related accident. Lopez testified 

that when he and Drager approached Botts and asked if he had 

been drinking, he became very agitated. It “just didn’t seem 

like he was acting very rational,” and he was yelling. Lopez 

testified that during the encounter, he drew his Taser because 

of Botts’ agitated behavior. He stated the Taser was displayed 

as a deescalation tactic and as a means to get Botts to comply 

with their directions. He testified that he did not deploy the 

Taser and that Botts was eventually handcuffed.

The State also offered exhibits 6 through 8 into evidence. 

Exhibit 6 was an edited version of Drager’s cruiser video 

recording, exhibit 7 was the machete found in Botts’ vehicle, 

and exhibit 8 was an edited version of Tran’s cruiser video 

recording. Also, the parties stipulated that Botts had a previous felony conviction. Botts did not present any evidence. The 

jury returned a verdict of guilty, and the court accepted the 

jury’s verdict.

The trial court sentenced Botts to 1 year’s imprisonment and 

to 1 year of postrelease supervision.

ASSIGNMENTS OF ERROR

Botts assigns that the trial court erred in (1) failing to sustain his motion to suppress, (2) failing to sustain his objections 
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STATE v. BOTTS

Cite as 25 Neb. App. 372

to certain testimony, (3) giving an erroneous and prejudicial 

jury instruction, and (4) finding that the evidence was sufficient to support a finding of guilt.

STANDARD OF REVIEW

[1,2] In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, 

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

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

historical facts, an appellate court reviews the trial court’s 

findings for clear error, but whether those facts trigger or 

violate Fourth Amendment protection is a question of law that 

an appellate court reviews independently of the trial court’s 

determination. Id. The ultimate determinations of reasonable suspicion to conduct an investigatory stop and probable 

cause to perform a warrantless search are reviewed de novo, 

and findings of fact are reviewed for clear error, giving due 

weight to the inferences drawn from those facts by the trial 

judge. Id.

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

during trial on renewed objection, an appellate court considers 

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

motion to suppress. State v. Rogers, 297 Neb. 265, 899 N.W.2d 

626 (2017).

ANALYSIS

Botts first assigns that the trial court erred in failing to sustain his motion to suppress evidence obtained as a result of 

his encounter with Drager and the other officers on March 10, 

2016, specifically the machete found in his vehicle and statements he made after he was in Drager’s cruiser. He argues that 

the encounter amounted to a seizure and that the arrest was not 

supported by probable cause.

[4,5] The Fourth Amendment to the U.S. Constitution 

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

against unreasonable searches and seizures. State v. Rogers, 

supra. Evidence obtained as the fruit of an illegal search or 
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STATE v. BOTTS

Cite as 25 Neb. App. 372

seizure is inadmissible in a state prosecution and must be 

excluded. Id.

[6] To analyze the legality of the search and seizure, we must 

first determine when the seizure occurred and then address 

whether the seizure was supported by probable cause.

Classification of Police-Citizen Encounter.

[7] There are three tiers of police-citizen encounters. A tierone police-citizen encounter involves the voluntary cooperation 

of the citizen elicited through noncoercive questioning and 

does not involve any restraint of liberty of the citizen. State 

v. Rogers, supra. Because tier-one encounters do not rise to 

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

Amendment protection. Id. A tier-two police-citizen encounter 

involves a brief, nonintrusive detention during a frisk for weapons or preliminary questioning. Id. A tier-three police-citizen 

encounter constitutes an arrest, which involves a highly intrusive or lengthy search or detention. Id. Tier-two and tier-three 

police-citizen encounters are seizures sufficient to invoke the 

protections of the Fourth Amendment to the U.S. Constitution. 

State v. Rogers, supra.

[8-10] A seizure in the Fourth Amendment context occurs 

only if, in view of all the circumstances surrounding the 

incident, a reasonable person would have believed that he or 

she was not free to leave. State v. Rogers, 297 Neb. 265, 899 

N.W.2d 626 (2017). In addition to situations where an officer 

directly tells a suspect that he or she is not free to go, circumstances indicative of a seizure may include the threatening 

presence of several officers, the display of a weapon by an 

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

use of language or tone of voice indicating the compliance 

with the officer’s request might be compelled. Id. But an officer’s merely questioning an individual in a public place, such 

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

Amendment protections, so long as the questioning is carried 

on without interrupting or restraining the person’s movement. 

State v. Rogers, supra.
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STATE v. BOTTS

Cite as 25 Neb. App. 372

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

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

encounter. The question we must answer is when the encounter became a tier-three encounter, or an arrest. Botts argues 

that he was arrested for Fourth Amendment purposes when he 

was standing by the light pole with four officers around him, 

one with his Taser drawn. The State argues that Botts was not 

arrested until he was handcuffed.

[11] When Drager and Lopez approached Botts, he became 

defensive and the situation escalated quickly. He began backing up and was yelling at the officers. All four of the officers 

on scene followed him across the street until he stopped with 

his back against a light pole. The officers, all in uniform and 

armed, were standing around him, and they immediately began 

telling him to put his hands behind his back. Lopez had his 

Taser drawn in an effort to get Botts to comply. At this point, 

there was “the threatening presence of several officers,” “the 

display of a weapon by an officer,” and “the use of language 

. . . indicating the compliance with the officer’s request [to put 

his hands behind his back] might be compelled.” See State v. 

Rogers, 297 Neb. at 271, 899 N.W.2d at 632. These circumstances would have made a reasonable person believe that he 

was not free to leave. We conclude that Botts was seized at 

that point in time and that such seizure amounted to a tierthree police-citizen encounter. Consequently, for the encounter 

to be a lawful seizure, the officers needed to have probable 

cause to believe that Botts had committed or was committing 

a crime. See State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 

630 (1993) (Fourth Amendment requires that arrest be justified by probable cause to believe that person has committed 

or is committing crime).

Probable Cause.

[12-14] Botts argues that Drager and the other officers did 

not have probable cause to justify an arrest. Probable cause 

to support a warrantless arrest exists only if law enforcement 
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Cite as 25 Neb. App. 372

has knowledge at the time of the arrest, based on information 

that is reasonably trustworthy under the circumstances, that 

would cause a reasonably cautious person to believe that a suspect has committed or is committing a crime. State v. McClain, 

285 Neb. 537, 827 N.W.2d 814 (2013). Probable cause is a 

flexible, commonsense standard that depends on the totality of 

the circumstances. Id. An appellate court determines whether 

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

The State contends that the officers had probable cause to 

believe that Botts had committed the offense of driving under 

the influence. The evidence showed that Tran had stopped 

Botts around midnight for traffic offenses and detected a 

“slight odor of alcohol” and noted that Botts and another person in the vehicle had recently purchased alcohol. Botts was 

driving, and there were passengers in the vehicle. Tran did not 

initiate a driving under the influence investigation, because 

he did not see signs of intoxication. When Drager contacted 

Botts around 2:30 a.m., about 21⁄2 hours after Tran had stopped 

Botts, Botts was pushing a vehicle that was inoperable. Botts 

told Drager that his vehicle had run out of gas and that he 

was trying to get it to the side of the road. Botts asked Drager 

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

Lincoln Police Department policy. This apparently upset Botts. 

Botts continued pushing his vehicle and trying to maneuver it 

to the side of the road while Drager stood back by his cruiser 

and watched.

It was not until Tran arrived at the scene and told Drager 

about the earlier stop that Drager decided to approach Botts 

face to face and ask him if he had been drinking. At this 

point, all Drager knew was that Tran had smelled an odor 

of alcohol on Botts and that there was alcohol in the vehicle 

at the time Tran stopped him. Neither Drager nor any of the 

officers testified that they smelled an odor of alcohol on 

Botts. Drager also did not recall Botts’ indicating that he had 

been drinking.
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STATE v. BOTTS

Cite as 25 Neb. App. 372

Drager testified that Botts’ demeanor led him to believe he 

was under the influence of alcohol or drugs. However, Botts’ 

demeanor could also be attributed to Drager’s telling Botts he 

could not help him push the vehicle. Drager testified that it 

was at that point Botts became “verbally abusive” toward him. 

Botts also indicated that he believed the police were harassing him and that he was being treated differently because of 

his race.

In addition, Drager did not know if Botts had driven the 

vehicle to the location where Drager found it. He never saw 

him in the vehicle, and Botts never indicated that he had been 

driving the vehicle. The officers did not have probable cause 

to believe that Botts had been driving under the influence 

of alcohol.

We conclude that Botts was seized at the time the officers 

surrounded him by the light pole and Lopez had his Taser 

drawn and that the officers did not have probable cause to 

arrest him at that time. Consequently, the trial court erred in 

overruling Botts’ motion to suppress.

[15] Because we have concluded that Botts’ motion to suppress should have been granted, we do not address his remaining assignments of error. An appellate court is not obligated 

to engage in an analysis that is not necessary to adjudicate the 

case and controversy before it. State v. Jedlicka, 297 Neb. 276, 

900 N.W.2d 454 (2017).

CONCLUSION

We conclude that Botts was arrested without probable cause, 

resulting in an unreasonable search and seizure in violation of 

the Fourth Amendment. Therefore, Botts’ statements and the 

evidence seized following his arrest should have been suppressed. Moreover, because the illegally obtained evidence was 

the only evidence as to Botts’ guilt, the cause is remanded with 

directions to vacate Botts’ conviction and dismiss the charge 

against him.

Reversed and remanded with directions.