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STATE v. SHIFFERMILLER

Cite as 26 Neb. App. 250

State of Nebraska, appellee, v.

Steven F. Shiffermiller, appel

___ N.W.2d ___

Filed August 28, 2018. No. A-17-675.

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

3. 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.

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 search and seizure.

5. Police Officers and Sheriffs: Investigative Stops: Search and 

Seizure: Arrests: Probable Cause. The first tier of police-citizen 

encounters involves no restraint of the liberty of the citizen involved, 

but, rather, the voluntary cooperation of the citizen is elicited through 

noncoercive questioning. This type of contact does not rise to the level 

of a seizure and therefore is outside the realm of Fourth Amendment 

protection. The second category, the investigative stop, is limited to 

brief, nonintrusive detention during a frisk for weapons or preliminary 

Nebraska Supreme Court Online Library

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

08/28/2018 09:09 AM CDT
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questioning. This type of encounter is considered a “seizure” sufficient to invoke Fourth Amendment safeguards, but because of its less 

intrusive character requires only that the stopping officer have specific 

and articulable facts sufficient to give rise to reasonable suspicion that 

a person has committed or is committing a crime. The third type of 

police-citizen encounters, arrests, is characterized by highly intrusive 

or lengthy search or detention. The Fourth Amendment requires that an 

arrest be justified by probable cause to believe that a person has committed or is committing a crime.

6. Police Officers and Sheriffs: Investigative Stops: Search and 

Seizure: Arrests. If unreasonable force is used or if a stop lasts for an 

unreasonably long period of time, then a detention may turn into a de 

facto arrest.

7. Police Officers and Sheriffs: Investigative Stops. The use of handcuffs 

has been approved when it was reasonably necessary to protect officer 

safety during an investigatory stop.

8. ____: ____. The use of handcuffs may not be justified when the facts do 

not justify a belief that the suspect may be dangerous.

9. Police Officers and Sheriffs: Investigative Stops: Search and Seizure: 

Arrests. In determining whether a detention is reasonable under the 

circumstances, for the purposes of analyzing whether an investigatory 

detention was converted to a de facto arrest, depends on a multitude of 

factors, including the number of officers and police cars involved; the 

nature of the crime and whether there is reason to believe the suspect 

might be armed; the strength of the officers’ articulable, objective suspicions; the erratic behavior of or suspicious movements by the persons 

under observation; and the need for immediate action by the officers 

and lack of opportunity for them to have made the stop in less threatening circumstances.

10. Police Officers and Sheriffs: Investigative Stops. An investigative 

stop must be temporary and last no longer than is necessary to effectuate 

the purpose of the stop.

11. Constitutional Law: Police Officers and Sheriffs: Investigative 

Stops. The community caretaking exception to the Fourth Amendment 

recognizes that local police officers, unlike federal officers, frequently 

investigate vehicle accidents in which there is no claim of criminal 

liability and engage in what, for want of a better term, may be described 

as community caretaking functions, totally divorced from the detection, 

investigation, or acquisition of evidence relating to the violation of a 

criminal statute.

12. Constitutional Law: Police Officers and Sheriffs: Investigative 

Stops: Probable Cause. In determining whether the community caretaking exception to the Fourth Amendment applies, a court should 
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assess the totality of the circumstances surrounding the stop, including 

all of the objective observations and considerations, as well as the suspicion drawn by a trained and experienced police officer by inference 

and deduction.

13. Constitutional Law: Investigative Stops. The community caretaking 

exception to the Fourth Amendment should be narrowly and carefully 

applied in order to prevent its abuse.

14. Police Officers and Sheriffs: Investigative Stops: Search and Seizure.

An officer is entitled, for the protection of himself or herself and the 

others in the area, to conduct a carefully limited search of the outer 

clothing of the persons stopped to discover weapons which might be 

used to assault the officer.

15. Police Officers and Sheriffs: Search and Seizure: Warrantless 

Searches: Probable Cause. Under the “plain feel” doctrine, the findings of a lawful pat-down can establish probable cause to extend the 

scope of a search, but the legality of the search depends upon the 

incriminating character of an object being immediately apparent.

16. Police Officers and Sheriffs: Search and Seizure: Warrantless 

Searches. If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy 

beyond that already authorized by the officer’s search for weapons; if 

the object is contraband, its warrantless seizure would be justified by the 

same practical considerations that inhere in the plain-view context.

17. Search and Seizure: Warrantless Searches. Searches without a valid 

warrant are per se unreasonable, subject only to a few specifically 

established and well-delineated exceptions that must be strictly confined by their justifications.

18. Search and Seizure: Warrantless Searches: Proof. In the case of a 

search and seizure conducted without a warrant, the State has the burden 

of showing the applicability of one or more of the exceptions to the warrant requirement.

19. Search and Seizure: Warrantless Searches. The warrantless search 

exceptions include searches undertaken with consent, searches justified 

by probable cause, searches under exigent circumstances, inventory 

searches, searches of evidence in plain view, and searches incident to a 

valid arrest.

20. Police Officers and Sheriffs: Search and Seizure: Arrests. After an 

arrest is made, the arresting officer may search the person to remove 

any weapons that the latter might seek to use in order to resist arrest 

or effect his or her escape and also to search for and seize any evidence on the arrestee’s person in order to prevent its concealment 

or destruction.
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Cite as 26 Neb. App. 250

Appeal from the District Court for Lancaster County: Rober

R. Otte, Judge. Affirme

Matthew K. Kosmicki for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Moore, Chief Judge, and Pirtle and Arterburn, Jud

Pirtle, Judge

I. INTRODUCTION

After a stipulated bench trial, Steven F. Shiffermiller was 

convicted of three counts of possession of a controlled substance and one count of possession of a deadly weapon by a 

prohibited person. He appeals the convictions and sentences 

imposed by the district court for Lancaster County, and he 

challenges the court’s ruling on his motion to suppress. For the 

reasons that follow, we affirm.

II. PROCEDURAL BACKGROUND

On September 15, 2016, Shiffermiller was charged by 

information with three counts of possession of a controlled 

substance, each count a Class IV felony, and one count of 

possession of a deadly weapon by a prohibited person, a 

Class III felony. The charges arise out of an incident that 

occurred on June 6, 2016. A preliminary hearing was held 

on August 31, and the matter was bound over to the district 

court. Shiffermiller filed a written arraignment and waiver 

of physical appearance on September 2. Shiffermiller entered 

a plea of not guilty. On November 11, Shiffermiller filed a 

motion to suppress the evidence obtained and statements made 

during his detention and subsequent arrest. A hearing on the 

motion to suppress was held on March 8, 2017, and the motion 

was overruled.

At the hearing on Shiffermiller’s motion to suppress, several witnesses testified regarding the events which occurred 

on June 6, 2016. At approximately 4:30 a.m., the Lincoln 
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Police Department received a report that two individuals were 

fighting near the intersection of South 31st Street and Sequoia 

Drive. Sgt. Benjamin Seeman was the first to arrive and made 

contact with Shiffermiller at approximately 4:32 a.m. When 

Seeman arrived in his marked cruiser, Shiffermiller was walking toward a parked car on the north side of Sequoia Drive. 

Shiffermiller appeared to have a torn shirt and blood on his 

face, arm, and knuckles. Shiffermiller matched the description 

of one of the men from the police call: a male wearing camouflage pants and a gray tank top.

Seeman approached Shiffermiller, asking whether he was 

injured and stating that there was a report of a fight at that 

location. Shiffermiller said that he had not been involved in 

the fight and that he had been running and “boxing trees” in 

a nearby park. Seeman observed that Shiffermiller was sweating profusely, his eyes were watery and bloodshot, his pupils 

were dilated, and he was swaying and staggering. Seeman 

asked Shiffermiller to sit down because he did not appear able 

to stand.

Within a few minutes, other officers arrived and the officers 

observed Shiffermiller to be agitated, angry, and uncooperative. 

They detected an odor of alcohol emanating from Shiffermiller 

and observed that he appeared to be under the influence of 

drugs or alcohol. Shiffermiller stated that he wanted to leave, 

but was told that he was not free to leave and that he would 

stay until the situation was investigated. Shiffermiller was 

placed in handcuffs and was seated on the curb while officers 

searched for the other party involved in the reported fight. 

Shiffermiller’s cell phone was lying in the middle of the 

intersection. A “ball cap” was found in the intersection, and 

Shiffermiller denied that it belonged to him. No other party 

was found, so the officers discontinued their investigation of 

the potential assault.

The officers determined that Shiffermiller should be transported somewhere for his safety and because they wanted to 

avoid any further disturbances or issues. Seeman testified that 
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he was concerned Shiffermiller was under the influence of 

narcotics and was injured. Shiffermiller rejected medical attention and indicated that he wanted to walk home. Because he 

appeared to be under the influence of drugs or alcohol, the officers did not want to leave him alone or allow him to operate 

his car. They were worried about what would happen to him if 

left alone and were concerned for the safety of the public if he 

chose to drive.

The officers determined that it was their responsibility to 

find Shiffermiller a safe place to go, and the options were to 

leave him in the care of a “hospital, Cornhusker Place Detox, 

and/or responsible adult.” They ruled out taking him to a hospital, given that Shiffermiller did not appear to have injuries 

that needed immediate medical attention. They opted to avoid 

“Detox,” because it was possible that he would be turned away 

if it appeared that Shiffermiller would need to be evaluated at a 

hospital for “fitness for confinement.” Shiffermiller refused to 

give the name or telephone number of his roommate. The officers found contact information for Shiffermiller’s father, who 

agreed that Shiffermiller could be brought to his home.

Two police officers patted Shiffermiller down to make sure 

he did not have any weapons prior to placing him in a police 

cruiser for transport. Seeman and Officer Tyler Dean testified 

that the pat-down was conducted for officer safety reasons, 

because Shiffermiller had potentially been in a fight, and that it 

was unclear whether weapons had been involved.

Dean felt an object in Shiffermiller’s left front pocket 

that he “immediately recognized” to be brass knuckles. He 

removed the object and confirmed that it was, in fact, brass 

knuckles. At that point, Shiffermiller was placed under arrest 

and the brass knuckles were seized. Once the brass knuckles 

were found, the officers conducted a complete search of 

Shiffermiller’s person. Officer Matthew Eliker found keys 

and a flashlight, which was approximately 3 inches long, in 

Shiffermiller’s right pocket. Eliker noticed that the flashlight 

rattled, and he “could just feel there weren’t batteries inside.” 
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He opened the flashlight and found several pills and a baggie 

of marijuana. Shiffermiller did not produce a prescription for 

the pills. The officers checked the pills, which had identifying 

markings, and confirmed that they were controlled substances. 

Shiffermiller was also placed under arrest for possession of a 

controlled substance.

A search of a police database showed that Shiffermiller had 

a previous felony conviction, which meant that the charge 

related to the brass knuckles became a felony, rather than 

a misdemeanor. The officers determined that Shiffermiller 

would be transported to jail, rather than to his father’s home. 

Approximately 45 minutes to 1 hour passed between the initial stop and Shiffermiller’s arrest. The first 30 to 40 minutes were spent investigating the reported assault, and the 

remainder of the time was spent figuring out where to take 

Shiffermiller. Shiffermiller was lodged for possession of a 

controlled substance and possession of a deadly weapon by a 

prohibited person.

The district court considered the evidence before it and 

overruled Shiffermiller’s motion to suppress.

On April 25, 2017, a stipulated bench trial was held, and 

Shiffermiller renewed his motion to suppress. Exhibits 1 and 2 

were offered and accepted as evidence. Exhibit 1 is a complete 

set of police reports and a laboratory report. Exhibit 2 is a certified copy of Shiffermiller’s prior felony conviction.

The district court found Shiffermiller guilty of each of the 

charged crimes. At a sentencing hearing on June 1, 2017, 

Shiffermiller was committed to jail for a period of 50 days for 

each count, with credit for 117 days served—so no additional 

time would be served. The district court placed Shiffermiller 

on terms of probation, which were ordered to run concurrently: 

1 year for count I, 2 years for count II, 3 years for count III, 

and 4 years for count IV. Shiffermiller timely appealed.

III. ASSIGNMENTS OF ERROR

Shiffermiller asserts the district court erred in failing to 

suppress the evidence because the government exceeded the 
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permissible scope and duration of a Terry stop. See Terry v. 

Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). 

He also asserts the court erred in failing to suppress the evidence because the warrantless search of his person violated 

the Fourth Amendment. Specifically, he asserts that there was 

no reasonable suspicion that Shiffermiller was armed and dangerous and that there was no basis to justify the search of the 

interior of the flashlight.

IV. 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. Bray, 297 Neb. 916, 902 N.W.2d 98 (2017). 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. Id. When a motion to suppress is denied pretrial 

and again during trial on renewed objection, an appellate court 

considers all the evidence, both from the trial and from the 

hearings on the motion to suppress. State v. Rivera, 297 Neb. 

709, 901 N.W.2d 272 (2017).

[3] 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. State v. Woldt, 

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

V. ANALYSIS

1. Motion to Suppr

The issues presented by this case are whether the stop of 

Shiffermiller exceeded the permissible scope and duration of 

a Terry stop, and whether Shiffermiller’s Fourth Amendment 

rights were violated, necessitating suppression of the evidence 

gathered during the stop.
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[4] Shiffermiller sought to exclude evidence gathered by 

the Lincoln police officers on June 6, 2016, on the ground that 

it was obtained in violation of the Fourth Amendment. The 

Fourth Amendment to the U.S. Constitution and article I, § 7, 

of the Nebraska Constitution guarantee against unreasonable 

search and seizure. State v. Perry, 292 Neb. 708, 874 N.W.2d 

36 (2016).

2. Initial Dete

[5] To determine whether an encounter between an officer and a citizen reaches the level of a seizure under the 

Fourth Amendment to the U.S. Constitution, an appellate court 

employs the analysis set forth in State v. Van Ackeren, 242 

Neb. 479, 495 N.W.2d 630 (1993), which describes the three 

levels, or tiers, of police-citizen encounters. The first tier of 

police-citizen encounters involves no restraint of the liberty 

of the citizen involved, but, rather, the voluntary cooperation 

of the citizen is elicited through noncoercive questioning. Id.

This type of contact does not rise to the level of a seizure and 

therefore is outside the realm of Fourth Amendment protection. The second category, the investigatory stop, is limited to 

brief, nonintrusive detention during a frisk for weapons or preliminary questioning. State v. Van Ackeren, supra. This type of 

encounter is considered a “seizure” sufficient to invoke Fourth 

Amendment safeguards, but because of its less intrusive character requires only that the stopping officer have specific and 

articulable facts sufficient to give rise to reasonable suspicion 

that a person has committed or is committing a crime. The 

third type of police-citizen encounters, arrests, is characterized 

by highly intrusive or lengthy search or detention. The Fourth 

Amendment requires that an arrest be justified by probable 

cause to believe that a person has committed or is committing 

a crime. State v. Van Ackeren, supra. The second and third 

tiers of police-citizen encounters are seizures sufficient to 

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

Constitution. See State v. Wells, 290 Neb. 186, 859 N.W.2d 

316 (2015).
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Shiffermiller asserts the trial court erred in overruling his 

motion to suppress, because the government exceeded the permissible scope and duration of a Terry stop. He argues that the 

stop in this case falls within the third category.

[6-8] If unreasonable force is used or if a stop lasts for an 

unreasonably long period of time, then a detention may turn 

into a de facto arrest. State v. Wells, supra. In State v. Wells, the 

Nebraska Supreme Court examined existing case law, which 

led to the conclusion that there is often a gray area between 

investigatory detentions and arrests. The court considered the 

circumstances under which the use of handcuffs transforms 

an investigatory detention into a custodial arrest. The use of 

handcuffs has been approved when it was reasonably necessary to protect officer safety during an investigatory stop. State 

v. Wells, supra. But the use of handcuffs may not be justified 

when the facts do not justify a belief that the suspect may 

be dangerous. Id.

[9] In State v. Wells, supra, the Nebraska Supreme Court 

stated that whether a detention is reasonable under the circumstances depends on a multitude of factors, including those factors set forth in United States v. Jones, 759 F.2d 633 (8th Cir. 

1985), an Eighth Circuit case examining the reasonable use of 

force during a Terry stop. These factors include:

the number of officers and police cars involved, the 

nature of the crime and whether there is reason to believe 

the suspect might be armed, the strength of the officers’ 

articulable, objective suspicions, the erratic behavior of or 

suspicious movements by the persons under observation, 

and the need for immediate action by the officers and 

lack of opportunity for them to have made the stop in less 

threatening circumstances.

United States v. Jones, 759 F.2d at 639-40.

In State v. Wells, supra, the Nebraska Supreme Court found 

that the record indicated that the officers detained Aron D. 

Wells in a reasonable manner under the circumstances, which 

stopped short of a full custodial arrest. The officer had a strong 
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suspicion that Wells was in possession of a controlled substance. When the officer approached the car, he witnessed that 

Wells appeared to be digging into his pocket and that Wells’ 

right arm was concealed underneath his jacket. The court 

found the nature of the suspected crime, trafficking narcotics, 

justified the officer’s action. The officer had experience as a 

drug task force member, and he knew that narcotics users and 

traffickers often carry weapons. The court found the officer’s 

decision to gain control of Wells’ arm and handcuff him while 

conducting the investigation was a “‘reasonable precaution . . . 

to protect [officer] safety and maintain the status quo.’” Id. at 

198, 859 N.W.2d at 328.

Shiffermiller states that there was a significant showing of 

police presence, through the number of officers and cruisers 

present. He also argues that he was alone, there was no one 

else found in the area, and the investigation into whether a 

crime was committed was completed quickly. He argues that 

each of these factors weigh in his favor and demonstrate the 

detention was a tier-three stop.

The evidence shows that the officers responded to a call 

about a physical altercation at 4:30 a.m. Shiffermiller matched 

the description of one of the men, and he was observed to 

have a ripped shirt and blood on his face, arms, and knuckles. 

Shiffermiller appeared to be under the influence of drugs or 

alcohol. Seeman testified that Shiffermiller would not tell the 

officers what had happened. Shiffermiller was agitated, angry, 

and expressed his desire to leave. The officers handcuffed 

Shiffermiller to “calm things down and prevent him from leaving.” He was seated on the curb while the officers investigated 

the reported altercation, to determine whether there had been 

an assault. Shiffermiller was not free to leave, but he had not 

been formally placed under arrest.

Shiffermiller argues that when considering the nature of the 

crime and whether there was reason to believe he was armed, 

this factor weighs in his favor. He also argues that the officers 

had no sense of urgency upon completion of the investigation 
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and that he was compliant, despite his desire to go home. The 

officers may not have had an indication that Shiffermiller was 

armed, but they did observe that he had blood on him and was 

agitated. Even if it had appeared that he was not armed, the 

facts supported the use of some form of control to maintain the 

status quo, to ensure that Shiffermiller did not attempt to leave 

during the investigation, and to ensure that Shiffermiller was 

not a danger to himself or to others.

The officers found items lying in the middle of the intersection, indicating that something had happened at that location; 

Shiffermiller claimed ownership of a cell phone, but not the 

“ball cap” which was nearby. This suggests that an incident 

had occurred at that location and that another person had been 

present, which was consistent with the initial police call. The 

officers searched the area to determine if someone else was 

present or was hurt.

[10] An investigative stop must be temporary and last no 

longer than is necessary to effectuate the purpose of the stop. 

State v. Lee, 265 Neb. 663, 658 N.W.2d 669 (2003). The initial 

portion of the detention lasted approximately 30 to 40 minutes, while they determined whether Shiffermiller had been 

involved in a crime. There is nothing in the record to indicate 

any lack of diligence or abuse of discretion on the part of the 

officers investigating the potential assault. This portion of 

the detention was not highly intrusive or lengthy and was not 

unreasonable in scope or duration. Therefore, we find that the 

initial detention was reasonable and did not amount to a de 

facto arrest.

3. Continued Dete

Shiffermiller argues that an investigative detention may turn 

into an arrest if it “‘lasts for an unreasonably long time.’” 

Brief for appellant at 14, quoting U.S. v. Maltais, 403 F.3d 550 

(8th Cir. 2005). He argues that detainment is allowed for the 

time the investigation is ongoing, that there was no reason for 

the officers to continue to detain him, and that his continued 
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detention was a violation of his Fourth Amendment right to be 

free from unreasonable search and seizure.

[11] In the absence of any evidence that a crime had been 

or was being committed, the court must determine whether 

any exceptions to the Fourth Amendment apply. See State v. 

Rohde, 22 Neb. App. 926, 864 N.W.2d 704 (2015). One such 

exception is the community caretaker exception, first recognized by the U.S. Supreme Court in Cady v. Dombrowski, 

413 U.S. 433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973), 

which states:

Local police officers, unlike federal officers, frequently 

investigate vehicle accidents in which there is no claim of 

criminal liability and engage in what, for want of a better 

term, may be described as community caretaking functions, totally divorced from the detection, investigation, 

or acquisition of evidence relating to the violation of a 

criminal statute.

[12,13] The Nebraska Supreme Court adopted the community caretaking exception in State v. Bakewell, 273 Neb. 372, 

730 N.W.2d 335 (2007), and applied it to determine whether 

the seizure of a vehicle was reasonable. It held that to determine when the exception should apply, the court should assess 

the totality of the circumstances surrounding the stop, including all of the objective observations and considerations, as well 

as the suspicion drawn by a trained and experienced police 

officer by inference and deduction. Id. If, based upon the totality of the circumstances, the seizing officer had a reasonable 

basis to believe his assistance was necessary, the stop is not 

unconstitutional. The Nebraska Supreme Court has also held 

that this exception should be narrowly and carefully applied in 

order to prevent its abuse. Id.

Nebraska law has applied the community caretaking exception in a few reported appellate cases. It has been found to 

apply in three cases, including a case wherein a vehicle was 

being driven in an erratic manner, State v. Bakewell, supra; 

a case wherein a vehicle was stopped at an intersection for 
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a period of several minutes, State v. Smith, 4 Neb. App. 219, 

540 N.W.2d 374 (1995); and a case wherein a passenger was 

observed to have “‘the upper half of her body through [the] 

moonroof’” of a moving vehicle and was waving her arms, 

State v. Rohde, 22 Neb. App. at 942, 864 N.W.2d at 715. 

While all of these cases concerned an exigency or need to 

protect or assist an occupant of the vehicle in question, we 

find the same analysis to be applicable when those needing 

protection are located outside the vehicle. In fact, it was the 

general public that the Supreme Court sought to protect when 

first applying the community caretaker exception in Cady v. 

Dombrowski, supra.

In the present case, there was an indication, when officers 

initially made contact with Shiffermiller, that a crime had 

been committed. We found, above, that the investigation of 

this potential crime was reasonable in scope and duration. 

The officers determined there was no need to pursue a further 

criminal investigation. However, after the initial detention and 

investigation, the officers were still concerned regarding the 

safety of Shiffermiller, as well as the safety of the general 

public if Shiffermiller were not properly cared for. Thus, the 

detention continued while the officers determined the appropriate next step.

Seeman testified that when he arrived, Shiffermiller was 

walking toward a parked car, which was determined to belong 

to Shiffermiller. Shiffermiller communicated his desire to go 

home during the investigation, and although at one point he 

stated that he wanted to walk, there was a possibility that he 

would drive. Eliker testified that Shiffermiller seemed to be 

under the influence of drugs or alcohol and that he did not 

want Shiffermiller to drive. Seeman testified that when someone is exhibiting signs of being under the influence, it is the 

responsibility of the officers to find them a safe place to go. 

Seeman also testified that he did not want Shiffermiller to get 

“behind the wheel,” potentially hurting himself or others, or 

getting pulled over for “driving behavior and get a DUI.” Dean 
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testified that if there had been an altercation, he was not comfortable with letting Shiffermiller walk home, because something could happen to him after the officers left.

The evidence shows that the continued detention was based 

upon the officers’ observations that Shiffermiller appeared to 

be under the influence of drugs or alcohol and was potentially 

unable to care for himself, as well as the officers’ duty to protect the community from a hazard created by a person potentially operating a vehicle while under the influence.

The evidence shows that after the initial inquiry into the 

potential assault, Shiffermiller was held only long enough to 

determine where the best place would be to transport him: to 

his apartment, to a parent’s home, to a medical center, or to a 

detoxification center.

We recognize that the community caretaking exception is 

to be narrowly and carefully applied. Given the circumstances 

confronting the officers, we find that by detaining Shiffermiller 

and creating a plan to transport him to a safe location, the officers were carrying out an important noninvestigatory function 

in recognizing and resolving a potential threat to the safety of 

a private individual and the public at large. In considering the 

totality of the circumstances, we conclude that the officers’ 

decision to transport Shiffermiller to a safe location was reasonable under the circumstances. Thus, we find the officers’ 

continued detention of Shiffermiller in anticipation of transport 

was reasonable under the community caretaking exception to 

the Fourth Amendment.

4. Warrantless Sea

Shiffermiller asserts the trial court erred in overruling his 

motion to suppress because the warrantless search of his person violated the Fourth Amendment. Specifically, he asserts 

(a) that the pat-down search was inappropriate because the 

officers did not have reasonable suspicion that he was armed 

and dangerous and (b) that there was no legal basis for the 

officers to search the interior of his flashlight.
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(a) Pat-Down Search

As previously discussed, Shiffermiller’s continued detention was lawful under the circumstances, because the officers 

determined he should be transported for his safety and the 

safety of the public.

Shiffermiller asserts that the officers did not have reasonable suspicion he was armed and dangerous and that, therefore, 

the officers did not have justification to perform a pat-down 

search, which is considered a search and a seizure for Fourth 

Amendment purposes. See U.S. v. Davis, 202 F.3d 1060 (8th 

Cir. 2000), citing Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 

1868, 20 L. Ed. 2d 889 (1968) (protective search for weapons is constitutional, even in absence of traditional Fourth 

Amendment probable cause, “where a police officer observes 

unusual conduct which leads him reasonably to conclude in 

light of his experience that criminal activity may be afoot and 

that the persons with whom he is dealing may be armed and 

presently dangerous”).

[14] An officer is entitled, for the protection of himself 

or herself and the others in the area, to conduct a carefully 

limited search of the outer clothing of the persons stopped to 

discover weapons which might be used to assault the officer. 

See State v. Vasquez-Arenivar, 18 Neb. App. 265, 779 N.W.2d 

117 (2010). The officers patted Shiffermiller down to ensure 

he was not carrying any weapons which would endanger 

the officers while they transported him to his father’s home. 

The search was reasonable under the circumstances, given 

that Shiffermiller was agitated, uncooperative, and potentially hostile to the officers and that he appeared to be under 

the influence of drugs or alcohol. Shiffermiller matched the 

description of one of the men who had reportedly been 

involved in a fight, and he was observed to have a ripped 

shirt and blood on his face, arms, and knuckles. Dean testified that he “wanted to make sure before he was placed into 

my cruiser that there were no weapons on him in the back of 

my car.” During the pat-down search, Dean felt an object in 
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Shiffermiller’s left front pocket that he immediately recognized as brass knuckles.

[15,16] Under the “plain feel” doctrine, the findings of a 

lawful pat-down can establish probable cause to extend the 

scope of a search. State v. Smith, 279 Neb. 918, 782 N.W.2d 

913 (2010). The legality of the search depends upon the 

incriminating character of an object being immediately apparent. Id.

“If a police officer lawfully pats down a suspect’s outer 

clothing and feels an object whose contour or mass makes 

its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is 

contraband, its warrantless seizure would be justified by 

the same practical considerations that inhere in the plainview context.”

Id. at 928, 782 N.W.2d at 924.

Dean removed the object and confirmed that it was, in fact, 

brass knuckles. At that point, Shiffermiller was placed under 

arrest for possession of a deadly weapon by a prohibited person and the brass knuckles were seized. The court did not err 

in overruling Shiffermiller’s motion to suppress as it related to 

the discovery of the brass knuckles.

(b) Search of Flashlight

Following the discovery of the brass knuckles, the officers 

searched Shiffermiller’s right pocket and removed a small 

flashlight and keys. The officer noticed that the flashlight 

rattled and that it did not seem to contain batteries. The officer 

opened the flashlight and found that it held marijuana and pills, 

which were determined to be controlled substances.

Shiffermiller’s motion to suppress included the evidence 

obtained during the stop. The court found that whether the 

search is of a “little plastic bag or little pill bottle, or a little 

Altoids tin,” the result is the same: The search is not improper, 

because the search was incident to arrest and the drugs would 
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inevitably be discovered. On appeal, Shiffermiller asserts there 

was no basis in law to justify the search of the interior of 

the flashlight.

[17-19] Searches without a valid warrant are per se unreasonable, subject only to a few specifically established and 

well-delineated exceptions that must be strictly confined by 

their justifications. State v. Salvador Rodriguez, 296 Neb. 

950, 898 N.W.2d 333 (2017). The search here was conducted 

without a warrant. Thus, to be valid, it must fall within 

one of the warrantless search exceptions recognized by the 

Nebraska appellate courts. See State v. Perry, 292 Neb. 708, 

874 N.W.2d 36 (2016). The State has the burden of showing the applicability of one or more of the exceptions to the 

warrant requirement. Id. The warrantless search exceptions 

recognized by the Nebraska Supreme Court include searches 

undertaken with consent, searches justified by probable cause, 

searches under exigent circumstances, inventory searches, 

searches of evidence in plain view, and searches incident 

to a valid arrest. State v. Smith, 279 Neb. 918, 782 N.W.2d 

913 (2010).

[20] After an arrest is made, the arresting officer may search 

the person to “‘remove any weapons that the latter might seek 

to use in order to resist arrest or effect his escape’” and also 

“‘to search for or seize any evidence on the arrestee’s person 

in order to prevent its concealment or destruction.’” State v. 

Wells, 290 Neb. 186, 201-02, 859 N.W.2d 316, 330 (2015).

Certainly the discovery of the flashlight can be considered 

the product of a search incident to arrest, but the question 

is whether the interior of the flashlight can be searched. In 

United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. 

Ed. 2d 427 (1973), the U.S. Supreme Court upheld the search 

of a crumpled cigarette package containing gelatin capsules 

filled with heroin. The officer testified that he felt an object in 

the left breast pocket of the respondent’s heavy coat, but the 

officer could not tell what the item was. The officer removed 

the object from the pocket and it turned out to be a “‘crumpled 
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up cigarette package.’” Id., 414 U.S. at 223. The officer did 

not know what was in the package, but he testified that he 

could feel objects inside the package and “‘knew they weren’t 

cigarettes.’” Id. The court held, “Having in the course of a 

lawful search come upon the crumpled package of cigarettes, 

he was entitled to inspect it; and when his inspection revealed 

the heroin capsules, he was entitled to seize them as ‘fruits, 

instrumentalities, or contraband’ probative of criminal conduct.” Id., 414 U.S. at 236.

United States v. Robinson, supra, was cited in a more 

recent U.S. Supreme Court Case, Riley v. California, ___ 

U.S. ___, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014). In 

Riley v. California, the U.S. Supreme Court considered the 

risks involved in a custodial search, i.e., harm to officers and 

destruction of evidence, as well as the fact that “unknown 

physical objects may always pose risks, no matter how slight, 

during the tense atmosphere of a custodial arrest.” Id., 134 S. 

Ct. at 2485. The U.S. Supreme Court stated, in dicta, that a 

further search of the cigarette package was a reasonable protective measure. The circumstances of this case are similar. The 

officer testified that he shook the flashlight and that it rattled, 

like something was inside. He noted that the weight of the 

flashlight was unusual; it felt as though there were no batteries 

inside. Applying the reasoning the U.S. Supreme Court used 

in United States v. Robinson, supra, and Riley v. California, 

supra, we find the search of the interior of the flashlight was 

reasonable under the circumstances. Thus, the district court 

did not err in overruling Shiffermiller’s motion to suppress the 

evidence found within the flashlight.

VI. CONCLUSION

We find that the government did not exceed the permissible 

scope and duration of a Terry stop and that Shiffermiller’s 

continued detention was appropriate under the circumstances 

because it was undertaken with the goal to protect the safety 

of Shiffermiller and the public. A search of Shiffermiller’s 
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person was justified because it was undertaken to ensure 

officer safety during Shiffermiller’s transport. The search 

which yielded the brass knuckles was not a violation of 

Shiffermiller’s Fourth Amendment rights. Therefore, we 

affirm the conviction and sentence for possession of a deadly 

weapon by a prohibited person.

Shiffermiller’s arrest for possession of a deadly weapon 

by a prohibited person led to a valid search which yielded 

the flashlight. The search of the interior of the flashlight 

was a valid search incident to arrest. Therefore, we affirm 

Shiffermiller’s convictions and sentences for possession of a 

controlled substance.

Affirmed