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State of Nebraska, appellee, v. 

Arius L. Thomas, appellant.

___ N.W.2d ___

Filed February 5, 2021. No. S-19-1163.

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 trial and from the hearings on the motion to suppress.

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

to the U.S. Constitution and article 1, § 7, of the Nebraska Constitution 

guarantee against unreasonable searches and seizures.

4. Criminal Law: Search and Seizure: Appeal and Error. In determining whether a seizure was reasonable, an appellate court balances the 

degree of the intrusion against the degree of objective certainty that the 

person stopped is or has been engaged in criminal activity.

5. Police Officers and Sheriffs: Search and Seizure. There are three 

distinct tiers of police-citizen encounters, each triggering a different 

analysis of the balance that should be struck between the government’s 

interests and the invasion of privacy interests which a search or seizure entails.

6. Constitutional Law: Police Officers and Sheriffs: Search and Seizure.

The first tier of police-citizen encounters involves no restraint of the 

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

Nebraska Supreme Court Online Library

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

04/29/2021 08:09 AM CDT
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of the citizen is elicited through noncoercive questioning. This type of 

contact is outside the realm of Fourth Amendment protection.

7. Police Officers and Sheriffs: Investigative Stops: Weapons. The second tier of police-citizen encounters, the investigative stop, is limited 

to brief, nonintrusive detention during a frisk for weapons or preliminary questioning.

8. Constitutional Law: Criminal Law: Police Officers and Sheriffs: 

Search and Seizure. A second-tier encounter is considered a “seizure” 

sufficient to invoke Fourth Amendment safeguards; but because of its 

less intrusive character, it 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.

9. Police Officers and Sheriffs: Search and Seizure: Arrests. The third 

tier of police-citizen encounters, arrests, is characterized by highly intrusive or lengthy search or detention.

10. Constitutional Law: Criminal Law: Arrests: Probable Cause. The 

Fourth Amendment requires that an arrest be justified by probable cause 

to believe that a person has committed or is committing a crime.

11. Search and Seizure: Investigative Stops: Arrests. The line between a 

second-tier encounter, or investigatory stop, and a third-tier encounter, 

or de facto arrest, is sometimes difficult to draw, and it depends on all 

the surrounding circumstances.

12. Police Officers and Sheriffs: Search and Seizure: Time. Several 

circumstances are deemed relevant to the analysis of whether a seizure 

is a second-tier or third-tier encounter, including (1) the law enforcement purposes served by the detention, (2) the diligence with which law 

enforcement pursues the investigation, (3) the scope and intrusiveness of 

the detention, and (4) the duration of the detention.

13. Criminal Law: Police Officers and Sheriffs: Search and Seizure: 

Investigative Stops: Arrests: Motor Vehicles. The fact that a detention may be considered investigative is not decisive on whether it is a 

second-tier encounter. The police may not carry out a full search of a 

person, or his or her vehicle, who is no more than suspected of criminal 

activity, nor may the police attempt to verify their suspicions by means 

that approach the circumstances of an arrest.

14. Police Officers and Sheriffs: Investigative Stops: Time. An investigative detention must be temporary and last no longer than is necessary 

to effectuate the purpose of the stop, and the methods employed should 

be the least intrusive means reasonably available to verify or dispel the 

officer’s suspicion in a short period of time.

15. Investigative Stops: Arrests: Time. If unreasonable force is used or if 

it lasts for an unreasonably long period of time, then an investigatory 

detention may turn into a de facto arrest.
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16. Criminal Law: Police Officers and Sheriffs: Investigative Stops.

Whether a detention was reasonable under the circumstances depends 

on a multitude of factors, including (1) the number of officers and 

police vehicles involved; (2) the nature of the crime and whether there 

is a reason to believe the suspect might be armed; (3) the strength of 

the officers’ articulable, objective suspicions; (4) the erratic behavior of 

or suspicious movements by the persons under observation; and (5) the 

need for immediate action by the officers and lack of opportunity for 

them to have made the stop in less threatening circumstances.

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

Weapons. Where the facts available to a law enforcement officer would 

warrant a person of reasonable caution in the belief that an occupant of 

a vehicle is armed and dangerous and that the use of forceful techniques, 

including blocking the vehicle and displaying firearms when ordering 

the occupants out of the vehicle, are reasonably necessary to protect the 

officer’s personal safety, the use of such techniques does not necessarily 

transform a second-tier encounter into a third-tier encounter.

18. Probable Cause: Words and Phrases. Reasonable suspicion entails 

some minimal level of objective justification for detention, something 

more than an inchoate and unparticularized hunch, but less than the level 

of suspicion required for probable cause.

19. Police Officers and Sheriffs: Investigative Stops: Probable Cause.

Whether a police officer has a reasonable suspicion based on sufficient 

articulable facts depends on the totality of the circumstances and must 

be determined on a case-by-case basis.

20. ____: ____: ____. Information known to all of the police officers acting in concert can be examined when determining whether the officer 

initiating the stop had reasonable suspicion to justify a stop pursuant to 

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

21. Criminal Law: Police Officers and Sheriffs: Investigative Stops: 

Motor Vehicles: Probable Cause: Time. The passage of time since 

the crime was committed is only a factor to consider when determining 

whether officers’ stopping a vehicle pursuant to information in a police 

bulletin had reasonable suspicion, based on specific and articulable 

facts, to justify a second-tier encounter.

22. Police Officers and Sheriffs: Investigative Stops: Probable Cause: 

Time. While the passage of time is a relevant factor to consider in 

an analysis of whether officers had reasonable suspicion to support a 

second-tier encounter, as particularity of the description increases, the 

effects of delay decrease.

Appeal from the District Court for Douglas County: J. 

Michael Coffey, Judge. Affirmed.
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Thomas C. Riley, Douglas County Public Defender, and 

Travis L. Wampler for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne 

for appellee.

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

Papik, and Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

The defendant challenges the district court’s denial of his 

motion to suppress evidence found in his vehicle during a 

felony traffic stop that was based upon law enforcement’s 

belief that the vehicle matched the description in a police bulletin of a vehicle used in a shooting committed 3 days earlier. 

The defendant argues that a police bulletin regarding a crime 

completed 3 days prior and without a description of the suspect 

was insufficient to justify the intrusion of the felony traffic 

stop. We affirm.

BACKGROUND

Following a jury trial, Arius L. Thomas was convicted of 

possession of a firearm by a prohibited person, a Class ID 

felony; possession of a controlled substance, a Class IV felony; 

and possession of marijuana, more than 1 ounce, a Class III 

misdemeanor. Thomas was sentenced to 5 to 10 years’ imprisonment on count 1, 2 years’ imprisonment on count 2, and 

3 months’ imprisonment on count 3. These sentences were 

ordered to run consecutively, and Thomas was given credit for 

397 days served against count 1.

The convictions arise out of a stop of the vehicle Thomas 

was driving on October 22, 2018, based upon information contained in a police bulletin from a shots-fired incident 3 days earlier near 25th and Maple Streets in Omaha, Nebraska. During 

the investigation of the shots-fired incident, law enforcement 

obtained a video of the suspect vehicle from a surveillance 

camera located near the scene. The vehicle image captured 
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on the surveillance video was “dark gray in color with damage to the rear driver’s side [and] possibly identified as a 2010 

Mazda 3.” This information, together with a still shot of the 

vehicle from the surveillance video and a reference image of a 

2010 Mazda 3, was included in a police bulletin.

On October 22, 2018, a police sergeant observed a vehicle 

parked in the area of 24th and Maple Streets that matched the 

description of the vehicle involved in the shots-fired incident 

on October 19. It was the same make, model, and color, and it 

had the same distinct damage to the rear driver’s side as shown 

in the photograph contained in the police bulletin. The police 

sergeant notified the officers in the north Omaha gang unit of 

the location of the suspect vehicle and requested assistance in 

its surveillance. Five police officers, including Chad Frodyma 

and Cortes Clark, reported to assist in the surveillance. A check 

of the vehicle’s license plates revealed that the vehicle was 

registered to Thomas.

After approximately 3 hours of observation by the officers, 

an individual entered the vehicle. This person was later identified as Thomas. The officers continued surveillance of the 

vehicle as it left the area. As the vehicle approached the intersection of 72d Street and Ames Avenue, Frodyma observed the 

vehicle make what he thought to be an improper lane change, 

moving from the right-turn lane to the left-turn lane over the 

solid white line separating the two lanes. However, a traffic 

stop was not immediately made due to officer safety concerns 

based upon the suspicion that this vehicle had been involved in 

a shots-fired incident and the occupant could be armed.

The officers continued following the vehicle until it pulled 

into an apartment complex parking lot. At that point, the officers conducted what they described as a felony traffic stop. 

They activiated the emergency lights on their vehicles and 

exited them with their weapons drawn. The officers then commanded Thomas to put his hands out of the window and open 

the door from the outside so he could exit the vehicle. Thomas 

put his hands out of the window, but he refused to get out of 

the vehicle.
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Within seconds, officers approached the driver’s side of the 

vehicle, weapons still drawn, and attempted to pull Thomas 

out of the vehicle through the window. Thomas continued to 

resist while officers were trying to grab his hands to remove 

him from the vehicle. Frodyma could see Thomas pull his right 

hand back into the vehicle and reach between his legs and 

under the driver’s seat. Frodyma believed Thomas was possibly 

reaching for a weapon, so he deployed his Taser on Thomas. 

Thereafter, Thomas was removed from the vehicle, where he 

was placed on the ground and handcuffed.

After Thomas was removed from the vehicle, officers 

observed through the windshield and the driver’s side window 

the butt of a handgun under the driver’s seat. Thomas was 

searched, and $522 cash in small denominations was found on 

his person. Based on the observation of the handgun, officers 

conducted a search of the rest of the vehicle and located a 

backpack in the back seat with 41 grams of marijuana, multiple 

alprazolam pills, plastic baggies, and a digital scale.

Prior to trial, Thomas filed a motion to suppress the evidence found on his person and in the vehicle, asserting that 

“the arresting officers lacked probable cause and/or reasonable 

suspicion to conduct a ‘felony traffic stop’ and illegally detain 

[Thomas]; and further, the arresting officers conducted a warrantless search of [Thomas’] property and persona” and “all 

evidence obtained as a result of this illegal traffic stop, detention, and search” should be suppressed.

At the suppression hearing, Frodyma testified to the facts 

as previously set forth regarding the incident on October 22, 

2018. Clark testified similarly, but stated he did not personally 

see Thomas commit a traffic violation; his observations of 

Thomas’ vehicle were obstructed at times by other vehicles.

After the hearing, the court overruled Thomas’ motion to 

suppress. The court found that any inconsistencies in the officers’ testimonies regarding whether a traffic violation occurred 

could be used at trial to challenge their credibility on the 

matter. The court did not explicitly make findings of fact that 
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a traffic violation actually occurred, but generally noted that 

“a traffic violation, no matter how minor, creates probable 

cause to stop the driver of a vehicle.” Further, the court found 

that, in considering the totality of the circumstances, based on 

the information obtained from the surveillance video related 

to the shots-fired incident, “the officers had probable cause to 

conduct an investigative stop of [Thomas’] vehicle.”

At trial, Thomas renewed the motion to suppress. The State 

offered substantially similar evidence regarding the events of 

October 22, 2018, from the perspective of multiple officers. 

The district court acknowledged that the motion to suppress 

was heard on May 29, 2019, and that the order overruling the 

motion was entered on August 2. It again overruled the motion, 

but made no additional findings of fact.

ASSIGNMENT OF ERROR

Thomas assigns that the trial court erred in denying Thomas’ 

motion to suppress.

STANDARD OF REVIEW

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

an appellate court applies a two-part standard of review. 1

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

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

during trial on renewed objection, an appellate court considers 

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

motion to suppress. 3

1 See State v. Cox, 307 Neb. 762, 950 N.W.2d 631 (2020).

2 See id.

3 State v. Hartzell, 304 Neb. 82, 933 N.W.2d 441 (2019).
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ANALYSIS

[3] Thomas assigns that the trial court erred in overruling 

his motion to suppress evidence that was allegedly obtained 

as the fruit of an illegal seizure in violation of the Fourth 

Amendment. Both the Fourth Amendment to the U.S. 

Constitution and article 1, § 7, of the Nebraska Constitution 

guarantee against unreasonable searches and seizures. 4

Thomas is challenging on appeal only the lawfulness of 

the stop. He does not specifically challenge the justification 

for the stop’s escalation after he resisted officers’ commands, 

whether a weapon was in plain view after he was removed 

from the vehicle, or whether the officers were justified in 

searching the vehicle after seeing the weapon.

[4] In determining whether a seizure was reasonable, we 

balance the degree of the intrusion against the degree of objective certainty that the person stopped is or has been engaged 

in criminal activity. 5 We hold that the officers who stopped 

Thomas employed a reasonable threat of force in light of a 

reasonable belief that the driver of the suspect vehicle could be 

armed or dangerous. Accordingly, and in light of all the other 

surrounding circumstances, the initial seizure was a tier-two 

encounter. Only reasonable suspicion was required to justify 

the seizure, and we conclude that the officers had a particularized and objective basis for suspecting Thomas of breaking 

the law. 6 Therefore, the district court did not err in denying 

Thomas’ motion to suppress.

Initial Detention

[5] There are three distinct tiers of police-citizen encounters, each triggering a different analysis of the balance that 

4 State v. Briggs, ante p. 84, ___ N.W.2d ___ (2021).

5 See State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993).

6 See Heien v. North Carolina, 574 U.S. 54, 135 S. Ct. 530, 190 L. Ed. 2d 

475 (2014).
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should be struck between the government’s interests and the 

invasion of privacy interests which a search or seizure entails. 7

[6] 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 non

coercive questioning. 8 This type of contact is outside the realm 

of Fourth Amendment protection. 9

[7,8] The second tier, the investigative stop, is limited to 

brief, nonintrusive detention during a frisk for weapons or 

preliminary questioning. 10 It is an intermediate response. 11 A 

second-tier encounter is considered a “seizure” sufficient to 

invoke Fourth Amendment safeguards; but because of its less 

intrusive character, it 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. 12

[9,10] The third tier of police-citizen encounters, arrests, is 

characterized by highly intrusive or lengthy search or detention. 13 The Fourth Amendment requires that an arrest be justified by probable cause to believe that a person has committed 

or is committing a crime. 14

[11,12] The line between a second-tier encounter, or investigatory stop, and a third-tier encounter, or de facto arrest, is 

sometimes difficult to draw, and it depends on all the surrounding circumstances. In distinguishing a second-tier encounter 

from a third-tier encounter, “‘we must not adhere to “rigid 

7 See State v. Van Ackeren, supra note 5 (quoting United States v. Armstrong, 

722 F.2d 681 (11th Cir. 1984)).

8 Van Ackeren, supra note 5.

9 See id.

10 Id.

11 See Van Ackeren, supra note 5.

12 Id. (quoting Armstrong, supra note 7).

13 Id.

14 Id.
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time limitations” or “bright line rules,” . . . but must use 

“common sense and ordinary human experience.”’” 15 Several 

circumstances are deemed relevant to the analysis of whether 

a seizure is a second-tier or third-tier encounter, including (1) 

the law enforcement purposes served by the detention, (2) the 

diligence with which law enforcement pursues the investigation, (3) the scope and intrusiveness of the detention, and (4) 

the duration of the detention. 16

[13,14] The fact that a detention may be considered investigative is not decisive on whether it is a second-tier encounter. 

The police may not carry out a full search of a person, or his or 

her vehicle, who is no more than suspected of criminal activity, nor may the police attempt to verify their suspicions by 

means that approach the circumstances of an arrest. 17 What is 

permitted for police to verify their suspicions will vary based 

on the particular facts and circumstances; but, certainly, “‘an 

investigative detention must be temporary and last no longer 

than is necessary to effectuate the purpose of the stop’” and 

the “‘methods employed should be the least intrusive means 

reasonably available to verify or dispel the officer’s suspicion 

in a short period of time.’” 18

The police sergeant and two officers, Frodyma and Clark, 

testified that they employed felony traffic stop measures in 

stopping Thomas. These involve staying in a position of safety 

away from the suspect vehicle with weapons drawn and verbally ordering the occupants to exit the suspect vehicle with 

their hands up and to walk backward toward the officers. The 

police do this as a precautionary measure when there is reason 

to believe that a person in a vehicle is armed or dangerous.

The U.S. Supreme Court has not yet specifically addressed 

such felony traffic stop procedures. But, in the seminal 

15 Van Ackeren, supra note 5. Accord United States v. Sharpe, 470 U.S. 675, 

105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985).

16 See Van Ackeren, supra note 5.

17 See id.

18 Id. at 487, 495 N.W.2d at 637.
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second-tier case of Terry v. Ohio,

 19 there was some use of 

force. The officer grabbed the defendant, spun him around, 

and patted him down, believing he was involved in criminal 

activity and possibly armed. Despite this use of force, the U.S. 

Supreme Court held that the intensity and scope of the seizure was not that of an arrest, but was what we now describe 

as a second-tier encounter. The Court held that regardless of 

whether an officer has reasonable cause to arrest an individual 

for a crime, where a reasonable officer would be warranted in 

the belief that the safety of the officer or others is in danger, a 

protective search and seizure for weapons is reasonable so long 

as it is confined in scope to an intrusion reasonably designed 

to achieve its purpose, or “strictly circumscribed by the exigencies which justify its initiation.” 20

While not discussing the type of felony traffic stop procedures here presented, we have similarly found seizures to 

be second-tier encounters despite intrusions going somewhat 

beyond a typical investigatory stop, when the facts justified a reasonable belief that an officer or public safety was 

in danger. 21 In State v. Wells,

 22 we explained that the use of 

handcuffs does not transform a tier-two encounter into a tierthree encounter when using handcuffs is reasonably necessary 

to protect officer safety during an investigative stop, but that 

using handcuffs will transform the tier-two encounter into tierthree encounter when the facts do not justify a belief that the 

suspect may be dangerous.

[15,16] We said that, generally, if unreasonable force is used 

or if it lasts for an unreasonably long period of time, then 

an investigatory detention may turn into a de facto arrest. 23

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

20 Id., 392 U.S. at 26.

21 See, State v. Shiffermiller, 302 Neb. 245, 922 N.W.2d 763 (2019); State v. 

Wells, 290 Neb. 186, 859 N.W.2d 316 (2015). See, also, State v. Rogers, 

297 Neb. 265, 899 N.W.2d 626 (2017).

22 State v. Wells, supra note 21.

23 Id.
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Whether a detention was reasonable under the circumstances 

depends on a multitude of factors, including (1) the number 

of officers and police vehicles involved; (2) the nature of the 

crime and whether there is a reason to believe the suspect 

might be armed; (3) the strength of the officers’ articulable, 

objective suspicions; (4) the erratic behavior of or suspicious 

movements by the persons under observation; and (5) the need 

for immediate action by the officers and lack of opportunity 

for them to have made the stop in less threatening circumstances. 24 In Wells, noting the nature of the suspected crime of 

narcotics trafficking and that the defendant was digging in his 

pocket and concealing his right arm, we found that the officers’ 

decision to gain control of the defendant’s arm and handcuff 

him for a short time while conducting the investigation was a 

reasonable precaution and did not escalate the encounter to a 

tier three.

Similarly, in State v. Shiffermiller,

 25 we held that the use of 

handcuffs and a 30-to-40 minute investigation of a reported 

assault did not amount to third-tier encounter because this initial detention was not unreasonable, highly intrusive, or excessive in length. In Shiffermiller, an officer responded to a report 

that two individuals were fighting. The officer who arrived on 

scene observed the defendant, with a torn shirt and blood on 

his face, arm, and knuckles, walking toward a parked car with 

its trunk open. When the officer approached the defendant and 

asked about the reported altercation, the defendant appeared to 

be angry, agitated, and under the influence of drugs or alcohol. 

Three more officers then arrived on scene. When the defend

ant stated he wanted to leave, the officers told him he was 

not free to leave until the situation was investigated. Due to 

the defendant’s being agitated, uncooperative, and appearing 

to be under the influence of drugs or alcohol, officers placed 

the defendant in handcuffs and seated him on the curb while 

24 Id. See, also, United States v. Jones, 759 F.2d 633, 639-40 (8th Cir. 1985).

25 Shiffermiller, supra note 21.
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they searched for the other party involved in the reported 

fight. We held that the officers did not exceed the scope of a 

second-tier encounter. While the officers may not have had any 

indication that the defendant was armed, the circumstances justified the use of some sort of control to ensure that the defend

ant did not attempt to leave during the investigation and to 

ensure that he was not a danger to himself or others throughout 

the investigation. 26

Other jurisdictions have more directly addressed procedures 

involving felony stops or felony traffic stops and have indicated that the use of reasonable force or threat of force does 

not transform a second-tier encounter into a third-tier encounter so long as the facts justify a reasonable belief that the suspect may be armed or dangerous. 27 These jurisdictions distinguish felony stops from third-tier encounters by acknowledging 

that felony stop procedures are used when the circumstances 

warrant such measures in order for officers to safely conduct a 

second-tier stop. 28

The 10th Circuit Court of Appeals has analyzed on multiple 

occasions when forceful techniques used by police officers 

transform a second-tier encounter into a third-tier encoun

ter, and its comparisons are helpful in this case. In U.S. v. 

Shareef,

 29 the court held that a display of firearms, removing occupants from three stopped vehicles, and frisking and 

handcuffing them did not transform the second-tier encounter 

into a third-tier enounter because of the officers’ reasonable 

belief that one of the motorists was armed and dangerous. 

Similarly, in U.S. v. Perdue,

 30 the court held that the fact that 

26 Id.

27 See, e.g., Maresca v. Bernalillo County, 804 F.3d 1301 (10th Cir. 2015); 

U.S. v. Gomez, 623 F.3d 265 (5th Cir. 2010); Smoak v. Hall, 460 F.3d 768 

(6th Cir. 2006).

28 See, Maresca, supra note 27; Smoak, supra note 27.

29 U.S. v. Shareef, 100 F.3d 1491 (10th Cir. 1996).

30 U.S. v. Perdue, 8 F.3d 1455 (10th Cir. 1993).
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two officers removed two occupants from a vehicle at gunpoint 

in a remote area and made them lie on the ground did not 

transform the second-tier encounter into a third-tier encounter, where officers reasonably believed occupants were armed 

and dangerous.

In contrast, in Maresca v. Bernalillo County,

 31 the 10th

Circuit Court of Appeals concluded that under the circumstances, the felony stop procedures were unreasonable and 

therefore transformed a second-tier encounter into a third-tier 

encounter. 32 Two officers driving separate cars had pulled the 

driver and his family over and, with the assistance of more 

officers called to the scene, conducted a felony traffic stop 

when the officer believed that the vehicle was stolen. But there 

was no information regarding the theft that indicated any weapons were involved. The stop was along a highway in broad 

daylight, and the family fully cooperated and complied with 

every directive. The court determined that the actions the officers took—ordering the family out of their truck at gunpoint, 

requiring them to lift their clothes for the officers to check their 

waistbands for weapons, forcing them to lie face down on the 

highway, and handcuffing four of them and locking them in 

separate patrol cars—effected an arrest because the deputies 

had no objectively reasonable basis to believe that such forceful measures were necessary for them to conduct the investigative detention. 33

[17] We hold that where the facts available to a law enforcement officer would warrant a person of reasonable caution in 

the belief that an occupant of a vehicle is armed and dangerous and that the use of forceful techniques, including blocking 

the vehicle and displaying firearms when ordering the occupants out of the vehicle, are reasonably necessary to protect 

the officer’s personal safety, the use of such techniques does 

31 Maresca, supra note 27.

32 See, also, U.S. v. Melendez-Garcia, 28 F.3d 1046 (10th Cir. 1994).

33 Maresca, supra note 27.
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not necessarily transform a second-tier encounter into a thirdtier encounter. Such techniques, designated here as a “felony 

traffic stop,” may under the circumstances be the least intrusive means reasonably available to verify or dispel the officer’s suspicion.

That said, the tier of the encounter is determined by all of 

the circumstances, including the law enforcement purposes 

served by the detention, the diligence with which law enforcement pursues the investigation, the scope and intrusiveness 

of the detention, and the duration of the detention. 34 And, in 

analyzing whether a threat or use of force transforms a tier-two 

encounter into a tier-three encounter, we consider the number 

of officers and police vehicles involved; the nature of the crime 

and whether there is a 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. 35

In this case, the officers looked for a vehicle matching a 

description in the police bulletin of the vehicle involved in 

the crime and observed one such vehicle near the scene of the 

crime. After Thomas drove off in the vehicle, officers followed 

it until it could be stopped safely. The crime under investigation was a shots-fired incident 3 days earlier, and the weapon 

used during the incident had not been recovered. To approach 

the vehicle safely to conduct their investigation of the crime, 

the officers blocked Thomas’ vehicle in, stayed in a position 

of safety near their vehicles with weapons drawn, and commanded Thomas to put his hands out the window of his vehicle, open the door from the outside, and exit the vehicle. We 

find that the purpose served by the detention was a temporary 

seizure for investigatory purposes and that law enforcement 

34 See Van Ackeren, supra note 5.

35 See Wells, supra note 21. See, also, Jones, supra note 24.
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pursued its investigation diligently. Further, the scope and 

intrusiveness of the investigatory detention was justified by the 

officers’ reasonable belief that the driver might be armed, and 

it did not exceed the scope circumscribed by that exigency. The 

seizure was a tier-two encounter.

Reasonable Suspicion

[18,19] Having determined that the felony traffic stop in this 

case was a tier-two police-citizen encounter, we now examine 

whether, under the totality of the circumstances, the officers 

had reasonable suspicion. Reasonable suspicion entails some 

minimal level of objective justification for detention, something more than an inchoate and unparticularized hunch, but 

less than the level of suspicion required for probable cause. 36

Whether a police officer has a reasonable suspicion based on 

sufficient articulable facts depends on the totality of the circumstances and must be determined on a case-by-case basis. 37

The totality of the circumstances analysis is based on an objective standard. 38

[20] At the time Thomas’ vehicle was put under surveillance, 

officers were aware of the information in the police bulletin 

that a vehicle matching the make, model, and distinctive damage to the rear driver’s side of Thomas’ vehicle was involved 

in the crime 3 days before. The fact that the officers had no 

personal knowledge regarding the specific circumstances of the 

shots-fired incident is irrelevant, because this court has adopted 

the collective knowledge doctrine. “‘[I]nformation known to 

all of the police officers acting in concert can be examined 

when determining whether the officer initiating the stop had 

reasonable suspicion to justify a Terry stop.’” 39

Thomas concedes that reasonable suspicion may be based 

on a vehicle description alone when in relation to a crime 

36 State v. Montoya, 305 Neb. 581, 941 N.W.2d 474 (2020).

37 Id.

38 See Terry, supra note 19.

39 State v. Wollam, 280 Neb. 43, 57, 783 N.W.2d 612, 624 (2010).
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Cite as 308 Neb. 312

that is afoot. Nevertheless, Thomas argues that the 3-day span 

of time since the incident made the vehicle description, especially when it lacked a description of the suspect, insufficient 

to establish reasonable suspicion for the seizure in this case. 

We disagree.

In U.S. v. Marxen,

 40 the Sixth Circuit Court of Appeals 

rejected a similar argument that since 11 days had passed 

since the robbery, “any reasonable suspicion that the officers 

possessed . . . had evaporated.” In Marxen, two individuals, 

described by witnesses, committed an armed robbery of a convenience store. Witnesses also described the vehicle the robbers were driving, along with the license plate number of the 

vehicle. Based on the license plate number, police determined 

the defendant owned the vehicle described, but the defendant 

did not match the description of either robber. The defendant 

was placed under surveillance and did nothing suspicious nor 

did he meet with any individuals fitting the description of the 

robbers during this surveillance. Eventually—11 days after the 

robbery and 6 days after the defendant was placed under surveillance—police stopped the defendant by blocking his vehicle with several police cars. Even though the defendant had not 

committed any traffic violations, the defendant was removed 

from the driver’s seat of the vehicle and placed in handcuffs 

while the officers conducted their investigation.

The trial court in Marxen had granted the defendant’s 

motion to suppress evidence found during the course of the 

stop, on the grounds that the police lacked reasonable suspicion. But the Sixth Circuit Court of Appeals reversed. The 

court determined that the passage of time did not negate the 

justification for the stop, but is only a factor to consider when 

determining whether the officers had reasonable suspicion, 

based on specific and articulable facts, that the defendant’s 

vehicle had been involved in criminal activity. The court 

reasoned that because the police officers were reasonably 

certain of the make, model, and general color of the vehicle 

40 U.S. v. Marxen, 410 F.3d 326, 330 (6th Cir. 2005).
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used in the robbery; the description matched the defendant’s 

vehicle; and the license plate number of the getaway vehicle 

matched the license number of the defendant’s vehicle, under 

the totality of the circumstances, the officers had reasonable 

suspicion to believe that the defendant’s vehicle was involved 

in the robbery.

In reversing the suppression of the evidence by the trial 

court in Marxen, the Sixth Circuit Court of Appeals concluded 

that police are allowed to conduct investigatory stops for “completed felonies” if there is reasonable suspicion to believe that 

the vehicle was involved in criminal activity. 41 This investigatory stop is allowed “even if officers do not have reasonable 

suspicion to believe that the owner and/or driver of the vehicle 

was directly involved in the criminal activity.” 42

[21,22] We agree that the passage of time since the crime 

was committed is only a factor to consider when determining 

whether officers’ stopping a vehicle pursuant to information in 

a police bulletin had reasonable suspicion, based on specific 

and articulable facts, to justify a second-tier encounter. While 

the 3-day passage of time in this case is a relevant factor to 

consider in determining whether the officers had reasonable 

suspicion to stop Thomas, “[a]s particularity of the description 

increases, the effects of delay decrease.” 43

A generic description of a dark gray 2010 Mazda 3 may not 

have been sufficient to conduct a felony traffic stop of every 

vehicle in Omaha matching that description, but we need not 

determine that here based on these facts. Here, the still shot 

of the suspect vehicle from the surveillance video showed 

distinctive damage to the rear driver’s side. This provided a 

more exact detail for the officers to look for in locating a particular vehicle regardless of the time that had passed since the 

shots-fired incident. The fact that the vehicle so specifically 

41 Id. at 332.

42 Id.

43 See United States v. Jackson, 700 Fed. Appx. 411, 416 (6th Cir. 2017).
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matched the photograph and description in the police bulletin, 

along with the fact that it was initially located within a block 

of where the shots-fired incident occurred, provided reasonable suspicion to conduct an investigatory stop of the vehicle. 

Under these circumstances, a particular description of the 

suspect who committed the prior shooting was not required to 

justify the tier-two stop.

Since the officers had reasonable suspicion to conduct an 

investigatory stop of Thomas’ vehicle based on the police bulletin alone, we need not determine whether the encounter was 

justified by the observation of a traffic violation.

CONCLUSION

For the foregoing reasons, the judgment of the district court 

is affirmed.

Affirmed.