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STATE v. THOMPSON

Cite as 30 Neb. App. 135

State of Nebraska, appellee, v. 

Ronda K. Thompson, appellant.

___ N.W.2d ___

Filed September 14, 2021. No. A-20-722.

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. Convictions: Evidence: Appeal and Error. Regardless of whether 

the evidence is direct, circumstantial, or a combination thereof, and 

regardless of whether the issue is labeled as a failure to direct a verdict, 

insufficiency of the evidence, or failure to prove a prima facie case, the 

standard is the same: In reviewing a criminal conviction, an appellate 

court does not resolve conflicts in the evidence, pass on the credibility 

of witnesses, or reweigh the evidence; such matters are for the finder 

of fact, and a conviction will be affirmed, in the absence of prejudicial 

error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.

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

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

guarantee against unreasonable searches and seizures.

4. Constitutional Law: Search and Seizure: Investigative Stops: Motor 

Vehicles. A traffic stop is a seizure for Fourth Amendment purposes, and 

therefore is accorded Fourth Amendment protections.

5. Investigative Stops: Motor Vehicles: Probable Cause. A traffic violation, no matter how minor, creates probable cause to stop the driver of 

a vehicle.

6. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs.

Once a vehicle is lawfully stopped, a law enforcement officer may 

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Cite as 30 Neb. App. 135

conduct an investigation reasonably related in scope to the circumstances that justified the traffic stop. This investigation may include 

asking the driver for an operator’s license and registration, requesting 

that the driver sit in the patrol car, and asking the driver about the 

purpose and destination of his or her travel. Also, the officer may run a 

computer check to determine whether the vehicle involved in the stop 

has been stolen and whether there are any outstanding warrants for any 

of its occupants.

7. Investigative Stops: Motor Vehicles: Time. A lawful traffic stop can 

become unlawful if it is prolonged beyond the time reasonably required 

to complete the mission of the stop, such as issuing a warning ticket.

8. ____: ____: ____. When the mission of an investigative stop is addressing a suspected traffic violation, the stop may last no longer than is necessary to effectuate that purpose and authority for the seizure thus ends 

when tasks tied to the traffic infraction are, or reasonably should have 

been, completed.

9. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs.

An officer’s inquiries into matters unrelated to the justification for the 

traffic stop do not cause the stop to become unlawful, so long as those 

inquiries do not measurably extend the duration of the stop.

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

Seizure: Arrests. A tier-one police-citizen encounter involves the voluntary cooperation of the citizen elicited through noncoercive questioning and does not involve any restraint of liberty of the citizen. Because 

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

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

encounter involves a brief, nonintrusive detention during a frisk for 

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

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

seizures sufficient to invoke the protections of the Fourth Amendment to 

the U.S. Constitution.

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

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

or she was not free to leave.

12. ____: ____. In addition to situations where an officer directly tells a suspect that he or she is not free to go, circumstances indicative of a seizure 

may include the threatening presence of several officers, the display of a 

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

the use of language or tone of voice indicating the compliance with the 

officer’s request might be compelled.
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STATE v. THOMPSON

Cite as 30 Neb. App. 135

13. ____: ____. A traffic stop may de-escalate from a seizure to a voluntary 

encounter when the circumstances become such that a reasonable person 

would feel free to leave or otherwise terminate the encounter with law 

enforcement.

14. 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.

15. Constitutional Law: Search and Seizure. For the consent to be attenuated from the Fourth Amendment violation, there must be a sufficient 

break in the causal connection between the illegal conduct and the consent to search.

16. 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.

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

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

satisfying the Fourth Amendment, is a question of law.

18. 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.

19. ____: ____. In determining whether consent was coerced, account must 

be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.

20. Search and Seizure. Mere submission to authority is insufficient to 

establish consent to a search.

21. ____. Although the fact that an individual is in police custody is an 

important consideration in determining the voluntariness of the consent 

to search, such factor, standing alone, does not invalidate the consent to 

search as long as the consent was otherwise voluntarily given.

22. ____. The determination of whether consent to a search was freely and 

voluntarily given is based on the totality of the circumstances.

23. 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.
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24. Search and Seizure: Police Officers and Sheriffs. Consent to search 

given in very close temporal proximity to the official illegality is often 

a mere submission or resignation to police authority.

25. Search and Seizure: Evidence. If only a short period of time has 

passed, a court is more likely to consider the consent to search as a poisonous fruit of the illegal act.

26. Evidence: Words and Phrases. Intervening circumstances are intervening events of significance that render inapplicable the deterrence and 

judicial integrity purposes which justify excluding tainted evidence.

27. Constitutional Law: Search and Seizure: Police Officers and 

Sheriffs. In the context of consent to search, an officer’s act of informing a suspect of his or her right to refuse consent may be sufficient to 

break the causal chain between the Fourth Amendment violation and the 

suspect’s consent.

28. ____: ____: ____. Absent any other intervening circumstance, an officer’s advisement, given shortly after a Fourth Amendment violation, that 

a suspect may refuse consent to a search does not weigh against exclusion, particularly when the other factors strongly favor exclusion.

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

purpose and flagrancy of the official misconduct is the most important 

attenuation factor.

30. 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.

31. ____: ____. 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.

32. Criminal Law: Evidence: New Trial: Appeal and Error. Upon finding reversible error in a criminal trial, an appellate court must determine 

whether the total evidence admitted by the district court, erroneously or 

not, was sufficient to sustain a guilty verdict.

33. Evidence: New Trial: Double Jeopardy: Appeal and Error. If evidence is not sufficient to sustain a verdict after an appellate court finds 

reversible error, then double jeopardy forbids a remand for a new trial.

34. Criminal Law: Intent: Words and Phrases. In the context of a 

criminal statute such as Neb. Rev. Stat. § 28-416(3) (Supp. 2017), 

“intentionally” means willfully or purposely, and not accidentally or 

involuntarily.
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STATE v. THOMPSON

Cite as 30 Neb. App. 135

35. Words and Phrases. “Knowingly” means “willfully” as distinguished 

from “accidentally or involuntarily.” In other words, to commit an act 

knowingly, a defendant must be aware of what he or she is doing.

36. Controlled Substances. A person possesses a controlled substance 

when he or she knows of the nature or character of the substance and of 

its presence and has dominion or control over it.

Appeal from the District Court for Gage County: Ricky A. 

Schreiner, Judge. Reversed and remanded for a new trial.

Lee Timan, of Nelson, Clark & Timan, P.C., for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.

Pirtle, Chief Judge, and Moore and Bishop, Judges.

Bishop, Judge.

I. INTRODUCTION

Following a stipulated bench trial in the Gage County 

District Court, Ronda K. Thompson was convicted of possession of methamphetamine, for which she was sentenced to 24 

months’ probation. On appeal, Thompson challenges the denial 

of her motion to suppress related to a traffic stop, the admission 

of evidence from that traffic stop over her objection at trial, 

and the sufficiency of the evidence supporting her conviction. 

We conclude the district court erred in overruling Thompson’s 

motion to suppress and admitting the evidence derived from 

the traffic stop. Accordingly, we reverse Thompson’s conviction and remand the cause for a new trial.

II. BACKGROUND

1. Facts Related to Traffic Stop

On September 2, 2019, at around 10 a.m., Officer Derrick 

Hosick of the Beatrice Police Department was on patrol in 

Beatrice, Nebraska. He observed a vehicle fail to stop at a 

stop sign and initiated a traffic stop. Thompson was the driver 

of the vehicle and its sole occupant. She was traveling with 
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STATE v. THOMPSON

Cite as 30 Neb. App. 135

her dog. As Officer Hosick exited his cruiser and approached 

Thompson’s vehicle, he switched on his body camera.

The body camera footage shows Officer Hosick approach 

the driver’s-side door of Thompson’s vehicle. Thompson’s 

window was rolled down. Officer Hosick advised Thompson 

of the nature of the stop and asked for her driver’s license 

and vehicle registration. After handing him her documents, 

Thompson explained that she was aware her license plates had 

expired. Officer Hosick then returned to his cruiser to conduct 

a records check and print out the citation, having determined to 

give a warning for Thompson’s failure to stop and a citation for 

the expired registration. According to the footage, the foregoing took approximately 10 minutes.

At about the 10-minute mark in the recording, Officer Hosick 

left his cruiser and again approached Thompson’s vehicle on 

the driver’s side. The driver’s-side door was ajar, and Officer 

Hosick opened the door further to speak with Thompson, stepping between the open door and Thompson, who remained 

in the driver’s seat. He prepared the citation standing next to 

Thompson’s vehicle while reviewing the information in her 

documents. He explained that he decided to issue a formal 

citation for the expired registration and give her a verbal warning regarding the failure to stop. Officer Hosick continued to 

explain the options available to Thompson in handling that 

citation. Thompson then held the signed citation out for Officer 

Hosick to take.

As Officer Hosick retrieved the signed citation, he said to 

Thompson, “Okay, I’ll get you your stuff back so you can get 

out of here.” While putting Thompson’s copy of the citation 

together with her documents still in his possession, he asked 

Thompson, “Nothing illegal in the car?” Thompson immediately answered, “No.” Officer Hosick followed up by asking, 

“Nothing that a drug dog would indicate on or anything like 

that?” Thompson again answered, “No.” Officer Hosick then 

handed Thompson her documents and her copy of the citation. 

At this time, he was still positioned within the threshold of 
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Cite as 30 Neb. App. 135

the open driver’s-side door of Thompson’s vehicle. As he was 

handing Thompson her documents, he asked her, “Do you have 

any problems if I look in your car to make sure there’s nothing illegal in the car?” Thompson replied, “No, go ahead. Help 

yourself.” Officer Hosick then said, “Would you want to hold 

on to the pup for me?” Thompson indicated that she told her 

dog she had done a good job of not barking. Thompson then 

asked, “You want us to get out or anything?” Officer Hosick 

responded, “Would you please,” and he then turned and walked 

back toward his cruiser, but stopped short and turned around as 

Thompson began to exit her vehicle.

Thompson directed her dog to stay “on the green,” and 

then she unlocked the doors to her vehicle. Standing next to 

Thompson, Officer Hosick asked, “Do you have anything in 

your pockets or anything like that?” Thompson answered, 

“No.” Officer Hosick then asked her, “Would you turn out your 

pockets for me?” Thompson immediately proceeded to do so.

Thompson pulled a small plastic baggie out of her pocket 

and, upon seeing it, declared, “That is so not mine.” The baggie had a crystalline residue inside, and upon further questioning from Officer Hosick, Thompson stated that she had put an 

antihistamine tablet in the baggie “to dissolve it.” She further 

explained that she had “picked up the baggie from somewhere 

else,” describing that she had picked it up “out of the trash, . . . 

boxes, dumpster, whatever.”

After taking the baggie from Thompson, Officer Hosick 

called a female officer to the scene to conduct a more thorough search of Thompson’s person. After the female officer 

arrived and began to search Thompson, Officer Hosick conducted a search of Thompson’s vehicle. No further contraband 

was found during these searches of Thompson’s person and 

her vehicle. Officer Hosick thereafter conducted a field test 

of the residue in the baggie, and the residue tested positive 

for methamphetamine. He then placed Thompson under arrest. 

Later, as he was preparing to transport Thompson to jail, 

Officer Hosick asked her if she had any other contraband on 
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her person. In response, she produced a red straw with a small 

amount of white residue inside of it. The baggie and straw 

were subsequently sent to the Nebraska State Patrol Crime 

Laboratory, and the baggie tested positive for methamphetamine after laboratory analysis. No analysis was conducted on 

the straw.

2. Procedural History

Thompson was charged with possession of a controlled substance, methamphetamine. On December 28, 2019, she filed 

a motion to suppress “any and all physical evidence obtained 

as a result from the law enforcement search” of her person. 

She alleged the traffic stop extended “beyond that which was 

necessary for Officer Hosick to complete his investigation 

into the No Valid Registration issue” and that her continued 

detention was not supported by probable cause or reasonable 

suspicion, all in violation of the Nebraska Constitution and 

the 4th and 14th Amendments to the U.S. Constitution. There 

was a hearing on Thompson’s motion, and on March 24, 2020, 

the district court issued an order overruling the motion to suppress. The court concluded that “Officer Hosick’s request to 

search [Thompson’s] person at the conclusion of the traffic 

stop was not an unreasonable search or seizure, because [she] 

knowingly, voluntarily and intelligently consented to a search 

of her person.”

The district court held a stipulated bench trial submitted on 

stipulated facts. Thompson objected to the admission of the 

evidence acquired from the traffic stop, and the court overruled 

the objection. The court found Thompson guilty and sentenced 

her to 24 months’ probation. Thompson now appeals.

III. ASSIGNMENTS OF ERROR

On appeal, Thompson claims the district court erred in 

overruling her motion to suppress and overruling her objection to the admission of evidence presented by the State. 

She also claims the evidence was insufficient to support her 

conviction.
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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. State v. Shiffermiller, 

302 Neb. 245, 922 N.W.2d 763 (2019). Regarding historical 

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

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. Shiffermiller, 

supra.

[2] Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the 

issue is labeled as a failure to direct a verdict, insufficiency of 

the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on 

the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, 

in the absence of prejudicial error, if the evidence admitted at 

trial, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Price, 306 Neb. 38, 

944 N.W.2d 279 (2020).

V. ANALYSIS

1. Motion to Suppress and Admission of 

Evidence Derived From Traffic Stop

[3] Thompson claims the district court erred by denying 

her motion to suppress and admitting the evidence acquired 

from the traffic stop. Both the Fourth Amendment to the U.S. 

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

guarantee against unreasonable searches and seizures. State v. 

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

(a) Initial Traffic Stop

[4,5] A traffic stop is a seizure for Fourth Amendment 

purposes, and therefore is accorded Fourth Amendment protections. State v. Barbeau, 301 Neb. 293, 917 N.W.2d 913 
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(2018). Thompson does not contest the validity of the initial 

traffic stop for her failure to stop, and we find no impropriety 

regarding that initial traffic stop. See id. (traffic violation, 

no matter how minor, creates probable cause to stop driver 

of vehicle).

(b) Inquiries Into Presence of Contraband and 

Request for Consent to Search of Vehicle

Thompson asserts that “[t]he ultimate issue for this [c]ourt 

to determine is whether or not the further inquiry by Officer 

Hosick . . . should be seen as an extension of the initial [traffic 

stop] or [as] a voluntary encounter occurring between Officer 

Hosick and [Thompson].” Brief for appellant at 6. We proceed to examine the traffic stop and Officer Hosick’s inquiries 

through the lens of applicable case law.

(i) Extension of Traffic Stop

[6] Once a vehicle is lawfully stopped, a law enforcement 

officer may conduct an investigation reasonably related in 

scope to the circumstances that justified the traffic stop. State 

v. Barbeau, supra. This investigation may include asking the 

driver for an operator’s license and registration, requesting that 

the driver sit in the patrol car, and asking the driver about the 

purpose and destination of his or her travel. Id. Also, the officer may run a computer check to determine whether the vehicle 

involved in the stop has been stolen and whether there are any 

outstanding warrants for any of its occupants. Id.

[7-9] However, the U.S. Supreme Court has cautioned that 

a lawful traffic stop can become unlawful if it is prolonged 

beyond the time reasonably required to complete the mission of 

the stop, such as issuing a citation. See Rodriguez v. U.S., 575 

U.S. 348, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015). When 

the mission of an investigative stop is addressing a suspected 

traffic violation, the stop may last no longer than is necessary 

to effectuate that purpose. See id. Authority for the seizure thus 

ends when tasks tied to the traffic infraction are, or reasonably 
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should have been, completed. Id. However, an officer’s inquiries into matters unrelated to the justification for the traffic stop 

do not cause the stop to become unlawful, so long as those 

inquiries do not measurably extend the duration of the stop. 

See Arizona v. Johnson, 555 U.S. 323, 129 S. Ct. 781, 172 L. 

Ed. 2d 694 (2009). See, also, Rodriguez v. U.S., supra (officer 

may conduct certain unrelated checks during otherwise lawful 

traffic stop, but may not do so in way that prolongs stop absent 

reasonable suspicion).

As we set forth previously, the body camera footage shows 

that Officer Hosick, while standing within the threshold of the 

driver’s-side door of Thompson’s vehicle, asked Thompson if 

there was anything “illegal” or that “a drug dog would indicate on” in her vehicle as he was in the process of gathering 

Thompson’s copy of the signed citation together with her other 

documents. The footage then shows he asked Thompson as he 

was handing those documents back to her if she would “have 

any problems if [he] look[ed] in [her] car.” With her documents 

in hand, Thompson responded, “No, go ahead. Help yourself.” 

Officer Hosick then asked Thompson “to hold on to the pup 

for [him].” Thompson made a comment about her dog doing a 

good job of not barking, and while Officer Hosick continued to 

stand inside the threshold of her door, she asked, “You want us 

to get out or anything?” Officer Hosick then replied affirmatively and stepped away from Thompson’s vehicle. Thompson 

thereafter exited her vehicle.

We initially note there is no dispute Officer Hosick’s questions concerning the presence of illegal drugs and request 

for consent to search were unrelated to the purpose of the 

traffic stop. The State does not argue on appeal that Officer 

Hosick had reasonable suspicion or probable cause that any 

contraband was present in Thompson’s vehicle or on her person. Our review of the record likewise does not indicate such 

reasonable suspicion or probable cause existed to otherwise 

justify Officer Hosick’s extension of the traffic stop and subsequent inquiries.
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On appeal, we review the trial court’s findings of fact for 

clear error, but we reach an independent legal conclusion as 

to whether those facts trigger or violate Fourth Amendment 

protections. See State v. Saitta, 306 Neb. 499, 945 N.W.2d 

888 (2020). We find no clear error in the district court’s 

factual findings concerning the course of events during the 

traffic stop. However, we conclude that these facts amounted 

to a violation of the protections provided by the Fourth 

Amendment. The purpose of the traffic stop had been effectuated prior to Officer Hosick’s inquiries into the presence of 

anything “illegal” or that “a drug dog would indicate on.” 

By that point, Officer Hosick had completed all necessary 

paperwork for Thompson to continue on her way and fully 

explained Thompson’s options in handling the citation. He 

further had just finished advising Thompson that he would 

give her “stuff back so [she] can get out of here.” However, 

despite handing Thompson her documents and thereby completing the traffic stop’s purpose, Officer Hosick continued 

to stand inside the threshold of the open driver’s-side door of 

Thompson’s vehicle and asked additional questions regarding 

contraband and if he could “look in [her] car.” Officer Hosick 

lacked authority to subject Thompson to further questioning 

after the completion of the paperwork necessary to effectuate 

the purpose of the traffic stop. See Rodriguez v. U.S., 575 U.S. 

348, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015) (authority 

for seizure ends when tasks tied to traffic infraction are, or 

reasonably should have been, completed). As a result, in the 

absence of any de-escalation to a voluntary encounter, Officer 

Hosick’s inquiries impermissibly extended the duration of the 

traffic stop.

(ii) De-escalation of Traffic Stop 

to Voluntary Encounter

Having concluded that justification for the traffic stop 

ended before Officer Hosick’s additional inquiries, we must 

now determine whether or not the traffic stop had de-escalated 
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to a voluntary encounter at the time of Officer Hosick’s 

questions.

[10] There are three tiers of police encounters under 

Nebraska law. 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. State v. Hartzell, 304 Neb. 82, 933 N.W.2d 441 

(2019). Because tier-one encounters do not rise to the level 

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

protection. State v. Hartzell, supra. 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. Hartzell, supra.

[11-13] A seizure in the Fourth Amendment context occurs 

only if, in view of all the circumstances surrounding the 

incident, a reasonable person would have believed that he or 

she was not free to leave. State v. Schriner, 303 Neb. 476, 

929 N.W.2d 514 (2019). 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. A traffic stop may de-escalate from a seizure to a voluntary encounter when the circumstances become such that 

a reasonable person would feel free to leave or otherwise 

terminate the encounter with law enforcement. See State v. 

Hartzell, supra.

In support of her argument that no de-escalation occurred, 

Thompson cites to the Nebraska Supreme Court’s decision 

in State v. Hartzell, supra, and its examination therein of the 
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Utah Supreme Court’s decision in State v. Hansen, 63 P.3d 650 

(Utah 2002).

In State v. Hartzell, supra, the Nebraska Supreme Court 

addressed the question of whether a traffic stop had terminated 

and de-escalated to a voluntary encounter when, after returning 

the defendant’s documents and walking away from the defendant’s vehicle back toward her cruiser, the police officer reapproached the defendant’s vehicle and asked if the defendant 

would be willing to talk further. In examining the encounter, 

the Supreme Court looked to State v. Hansen, supra, as a point 

of factual comparison and observed:

Hartzell relies upon State v. Hansen[, supra,] for a 

similar factual scenario. The officer conducted a traffic stop of the defendant’s vehicle for an improper lane 

change and uninsured vehicle. When the officer returned 

to the defendant, a second officer arrived and activated 

his patrol vehicle’s lights. The officer gave the defendant 

a verbal warning for being uninsured but did not give a 

warning about the improper lane change. Once the officer 

returned the defendant’s documents, he asked whether 

there was any contraband in the vehicle. The defendant 

denied. The officer then asked for consent to search the 

vehicle, and the defendant consented.

In Hansen, the Utah Supreme Court reasoned that 

there was no evidence of de-escalation. It considered 

the factors concerning whether a seizure has occurred. It 

discussed that because there were no facts demonstrating 

a coercive show of authority in the initial stop, “a reasonable person would not be able to discern that a seizure 

had de-escalated to a consensual encounter due to the 

absence of such factors at the time of additional questioning.” It reasoned that when the second officer arrived 

with his vehicle’s lights flashing, a reasonable person 

may believe that the encounter was escalating rather than 

de-escalating. It discussed that when the officer returned 

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

change, tell him he did not have to answer, or tell him he 

was free to leave. Under the totality of the circumstances, 

the court concluded that the detention did not de-escalate 

and that therefore, the officer exceeded the scope of the 

stop without reasonable suspicion.

State v. Hartzell, 304 Neb. 82, 91-92, 933 N.W.2d 441, 449 

(2019). Contrasting the facts of State v. Hansen, supra, with 

the facts before it, the Nebraska Supreme Court determined 

the traffic stop had ended when the officer “returned Hartzell’s 

documents,” “told her to ‘“have a good night and to drive 

careful[ly],”’” and “walked away from the encounter.” State 

v. Hartzell, 304 Neb. at 92, 933 N.W.2d at 449. The court 

then concluded that when the officer returned and began to 

ask Hartzell further questions, the encounter became voluntary because

[f]irst, [the officer] did not show coercive authority. 

Upon reapproaching Hartzell, [the officer] did not use 

an authoritative tone, brandish her weapon, or touch 

Hartzell. Although these factors were not present in the 

initial encounter, the second encounter did not begin 

under the guise of the initial encounter. The termination 

of the prior encounter signaled the start of a new encounter. Additionally, until Hartzell gave consent to search, 

there was only one officer present. There was no evidence 

of coercive authority to escalate the voluntary encounter 

to a seizure.

Second, [the officer] did not require compliance with 

her request. [The officer] asked, “‘[H]ey, before you go, 

do you have a minute to talk to me?’” The question was 

casual, not authoritative. The question did not demand 

compliance; it simply asked for a willingness to consent.

Third, the continued flashing of the patrol vehicle’s 

lights does not dictate a different outcome. Hartzell 

emphasizes that the lights were not extinguished at the 

point when [the officer] began to return to her patrol 
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vehicle. But Hartzell was aware that the patrol vehicle’s lights were activated for the initial encounter, and 

“[Hartzell] knew [the officer] had not been back to her 

unit to turn [the patrol vehicle’s lights] off.” [The officer’s] requests contradicted the notion that the flashing 

lights continued to command Hartzell’s presence. And 

as we reasoned in State v. Gilliam, [292 Neb. 770, 874 

N.W.2d 48 (2016),] patrol vehicle lights alone would not 

cause a reasonable person to believe that he or she was 

not free to leave.

State v. Hartzell, 304 Neb. at 93, 933 N.W.2d at 449-50.

The circumstances before us do not indicate that the traffic stop had de-escalated into a voluntary encounter by the 

time Officer Hosick inquired into the presence of contraband 

and asked Thompson if she would “have any problems if [he] 

look[ed] in [her] car.” We note, in contrast to the facts set forth 

in State v. Hartzell, supra, there was no clear temporal divide 

between Officer Hosick’s completion of the purpose of the 

stop and his further questions. Additionally, Officer Hosick’s 

inquiries into the presence of contraband came as he remained 

standing inside the threshold of the open driver’s-side door of 

Thompson’s vehicle. His presence in that location would serve 

to physically impede Thompson from terminating the encounter and continuing on her way after the effective completion 

of the traffic stop’s purpose. While Officer Hosick did not 

expressly require Thompson to remain and answer his questions, we do not observe any change in Officer Hosick’s tone 

or conduct throughout the encounter that would indicate to 

Thompson that her answering Officer Hosick’s questions and 

compliance with his request would not be required as part of 

the traffic stop.

Based on the totality of the circumstances, we conclude that 

the traffic stop did not de-escalate to a voluntary encounter, as 

a reasonable person in this situation would not believe that he 

or she was free to leave. We therefore find that Officer Hosick’s 

further inquiries exceeded the permissible scope of the traffic 
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stop without reasonable suspicion or de-escalation of the stop 

to a voluntary encounter. Our inquiry does not end here, however, as we must next consider whether this Fourth Amendment 

violation necessarily requires exclusion of the subsequently 

obtained evidence in light of Thompson’s consent.

(c) Admissibility of Evidence Acquired 

Following Thompson’s Consent

[14-16] 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. State v. Bray, 297 Neb. 916, 902 N.W.2d 

98 (2017). For the consent to be attenuated from the Fourth 

Amendment violation, there must be a sufficient break in the 

causal connection between the illegal conduct and the consent 

to search. See State v. Bond, 23 Neb. App. 916, 877 N.W.2d 

254 (2016). 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. State v. 

Bray, supra.

(i) Voluntariness of Thompson’s Consent 

to Officer Hosick’s Requests

While Thompson does not claim that she involuntarily consented to Officer Hosick’s requests to search her vehicle and 

person, we nonetheless proceed as part of our attenuation 

analysis to assess whether such consent was voluntary in light 

of the totality of the circumstances.

[17-22] The determination of whether the facts and circumstances constitute a voluntary consent to a search, satisfying 

the Fourth Amendment, is a question of law. State v. Degarmo, 

305 Neb. 680, 942 N.W.2d 217 (2020). 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, 
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physical, or psychological. State v. Bray, supra. In determining 

whether consent was coerced, account must be taken of subtly 

coercive police questions, as well as the possibly vulnerable 

subjective state of the person who consents. State v. Howell, 

26 Neb. App. 842, 924 N.W.2d 349 (2019). Mere submission 

to authority is insufficient to establish consent to a search. Id.

Although the fact that an individual is in police custody is an 

important consideration in determining the voluntariness of the 

consent to search, such factor, standing alone, does not invalidate the consent to search as long as the consent was otherwise 

voluntarily given. State v. Pope, 239 Neb. 1009, 480 N.W.2d 

169 (1992). See, also, State v. Degarmo, supra. The determination of whether consent to search was freely and voluntarily 

given is based on the totality of the circumstances. State v. 

Bray, supra.

At the time Officer Hosick asked to “look in” Thompson’s 

vehicle after handing back her documents, the driver’s-side 

door of Thompson’s vehicle remained open, and Officer Hosick 

continued standing inside the threshold of the open door as he 

spoke with Thompson. His tone was not authoritative or threatening, and we observe no signs that Thompson was threatened, 

coerced, or otherwise under duress when she consented to 

Officer Hosick’s request to “look in” her vehicle. After Officer 

Hosick asked Thompson to “hold on to the pup” for him, 

Thompson asked Officer Hosick, “You want us to get out or 

anything?” When he responded in the affirmative, she began to 

exit the vehicle as Officer Hosick moved away from the open 

driver’s-side door. After stepping outside, Thompson unlocked 

all doors to her vehicle. We are mindful that Officer Hosick’s 

position within the threshold of the open driver’s-side door 

of Thompson’s vehicle would physically impede Thompson 

from terminating the encounter until he moved away from the 

door. While this physical impediment shares similarities to the 

impediments imposed by police custody, we find that, in light 

of the circumstances, Thompson’s consent to Officer Hosick’s 

request to search her vehicle was voluntarily given and not the 

result of coercion or duress.
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After Thompson had stepped out of and unlocked her vehicle, Officer Hosick asked whether Thompson had “anything 

in [her] pockets or anything like that.” Thompson responded 

negatively, and Officer Hosick then requested that Thompson 

“turn out [her] pockets for [him].” Thompson did not verbally 

respond; she instead immediately reached into her pockets and 

withdrew a baggie containing residue that later tested positive 

for methamphetamine. We note that the Nebraska Supreme 

Court has held that consent to search may be implied by 

action rather than words. See State v. Saitta, 306 Neb. 499, 

945 N.W.2d 888 (2020). Therefore, we similarly conclude that 

Thompson’s act of pulling the baggie from her pocket was an 

act of voluntary consent to Officer Hosick’s request and not the 

result of coercion or duress.

Having determined that Thompson’s consent in both instances 

was voluntary, we must also consider whether the consent was 

sufficiently attenuated from the Fourth Amendment violation to 

be purged of that primary taint in order to make the evidence 

obtained admissible. See State v. Bray, 297 Neb. 916, 902 

N.W.2d 98 (2017).

(ii) Attenuation of Thompson’s Consent From 

Illegal Extension of Traffic Stop

[23] In determining whether the causal chain leading to consent is sufficiently attenuated from a Fourth Amendment violation to allow for the admission of evidence, we 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. State v. Bray, 

supra. All relevant facts should be considered to determine 

whether, under all the circumstances presented, the consent 

was obtained by exploitation of the prior illegality. Id.

[24,25] Consent to search given in very close temporal 

proximity to the official illegality is often a mere submission 

or resignation to police authority. In re Interest of Ashley W., 

284 Neb. 424, 821 N.W.2d 706 (2012). See, also, State v. 
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Gorup, 279 Neb. 841, 782 N.W.2d 16 (2010). If only a short 

period of time has passed, a court is more likely to consider 

the consent or statement as a “poisonous fruit” of the illegal 

act. See State v. Gorup, supra. Thompson’s consent to the 

search of her vehicle came immediately after Officer Hosick 

illegally extended the traffic stop after the completion of the 

stop’s purpose. Her act of turning out her pockets per Officer 

Hosick’s request followed shortly thereafter. In consideration 

of the timeline of the traffic stop, this factor weighs against 

attenuation.

[26-28] Intervening circumstances are intervening events of 

significance that render inapplicable the deterrence and judical 

integrity purposes which justify excluding tainted evidence. 

In re Interest of Ashley W., supra. In the context of consent 

to search, an officer’s act of informing a suspect of his or her 

right to refuse consent may be sufficient to break the causal 

chain between the Fourth Amendment violation and the suspect’s consent. See State v. Gorup, supra. However, absent 

any other intervening circumstance, an officer’s advisement, 

given shortly after a Fourth Amendment violation, that a suspect may refuse consent to a search does not weigh against 

exclusion, particularly when the other factors strongly favor 

exclusion. State v. Gorup, supra. Our review of the record 

does not show Officer Hosick ever advised Thompson prior 

to or after his additional inquiries that she could refuse consent to a search of her vehicle or of her person. We further 

do not observe any other intervening circumstances occurring between the illegal extension of the traffic stop and 

Thompson’s consent to Officer Hosick’s requests. This factor 

also weighs against attenuation.

[29-31] We turn now to examine the purpose and flagrancy 

of the misconduct. The purpose and flagrancy of the official 

misconduct is the most important attenuation factor, as it bears 

most heavily on the deterrence principle underlying the exclusionary rule. See State v. Bray, 297 Neb. 916, 902 N.W.2d 

98 (2017). Purposeful and flagrant misconduct exists when 
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(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.”’” 

Id. at 935, 902 N.W.2d at 113. 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. Id. See, 

also, State v. Gorup, supra (noting other courts have stated 

that purposeful and flagrant conduct includes fishing expeditions in hope that something might turn up). Officer Hosick’s 

request for Thompson’s consent to search her vehicle was 

certainly investigatory in design and purpose without any supporting justification for such an inquiry. The same is also true 

of his request for Thompson to turn out her pockets. Given 

there was no reasonable suspicion of unlawful activity afoot, 

or any concern for officer safety, Officer Hosick’s requests can 

only be considered a “fishing expedition,” which courts have 

deemed as purposeful and flagrant conduct. See State v. Gorup, 

supra. Based upon the record before us, this factor also weighs 

against attenuation.

In light of the totality of the circumstances, we find that 

Thompson’s consent to the search of her vehicle and her act 

of turning out her pockets in response to Officer Hosick’s 

request were not attenuated from the illegal extension of the 

traffic stop. The extreme temporal proximity between the 

illegal extension of the stop and Thompson’s consent to his 

requests, coupled with the lack of intervening circumstances 

and Officer Hosick’s purposeful and flagrant conduct, indicate to us that the causal chain between Officer Hosick’s 

conduct and Thompson’s consent to his requests was not 

broken. As a result, we find that the district court erred in 

overruling Thompson’s motion to suppress and admitting at 

trial the evidence seized from Thompson’s person during the 

traffic stop.
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2. Double Jeopardy and 

Sufficiency of Evidence

[32,33] Having found reversible error concerning 

Thompson’s motion to suppress and the admission of the evidence derived from the traffic stop, we must determine whether 

the evidence admitted by the district court was sufficient to 

sustain Thompson’s conviction. Upon finding reversible error 

in a criminal trial, an appellate court must determine whether 

the total evidence admitted by the district court, erroneously or 

not, was sufficient to sustain a guilty verdict. State v. Draper, 

289 Neb. 777, 857 N.W.2d 334 (2015). If it was not, then 

double jeopardy forbids a remand for a new trial. Id.

[34-36] As relevant to this case, pursuant to Neb. Rev. 

Stat. § 28-416(3) (Cum. Supp. 2018), it is unlawful to 

knowingly or intentionally possess a controlled substance. 

Methamphetamine is a controlled substance. See Neb. Rev. 

Stat. § 28-405(c)(3) [Schedule II] (Cum. Supp. 2018). In 

the context of a criminal statute, “intentionally” means willfully or purposely, and not accidentally or involuntarily. See 

State v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015). 

“Knowingly” means “willfully” as distinguished from “accidentally or involuntarily.” State v. Lotter, 255 Neb. 456, 586 

N.W.2d 591 (1998). In other words, to commit an act knowingly, a defendant must be aware of what he or she is doing. 

Id. A person possesses a controlled substance when he or she 

knows of the nature or character of the substance and of its 

presence and has dominion or control over it. State v. Rocha, 

295 Neb. 716, 890 N.W.2d 178 (2017).

As noted previously, our review of whether double jeopardy 

forbids the remand of this cause for a new trial requires that we 

consider the evidence admitted at trial regardless of whether it 

was error for the district court to do so. See State v. Draper, 

supra. There is no dispute Thompson had on her person the 

baggie with a residue inside that subsequently tested positive 

for methamphetamine. When she withdrew the baggie from 

her pocket, Thompson denied the baggie was hers and said, 
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“That is so not mine.” Upon further questioning from Officer 

Hosick, Thompson stated that she had put an antihistamine 

tablet in the baggie “to dissolve it.” She later explained that 

she picked the baggie up “out of the trash, . . . boxes, dumpster, whatever.” We conclude that Thompson’s initial denial 

and subsequent conflicting explanations, coupled with her possession of the baggie on her person, were sufficient to sustain 

Thompson’s conviction for possession of methamphetamine. 

Double jeopardy therefore does not preclude a new trial.

VI. CONCLUSION

For the reasons set forth above, we reverse Thompson’s 

conviction and remand the cause to the district court for a 

new trial.

Reversed and remanded for a new trial.