State of Nebraska v. Kirk A. Botts

Botts was charged with possession of a deadly weapon by

a prohibited person under Neb. Rev. Stat. § 28-1206 (Reissue

2016). Botts’ motion to suppress was denied. Following a jury

trial, Botts was convicted and eventually sentenced to 1 year’s

imprisonment and 1 year of postrelease supervision.

Botts appealed to the Court of Appeals, assigning that the

district court erred in denying his motion to suppress. The

Court of Appeals agreed, concluding there was not probable

cause to arrest Botts and that the inventory search of his vehicle

must be suppressed.

Facts Leading to Arrest and Search.

The Court of Appeals set forth the following facts in

its opinion:

Officer Jason Drager of the Lincoln Police Department

testified that on March 10, 2016, around 2:30 a.m.,

he was driving back to the police station in his police

cruiser. While driving, he saw a vehicle on a side street

that was not moving and was partially blocking the roadway.

The vehicle was situated at an angle, with the front

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

street. Drager thought maybe there had been an accident.

He turned down the street and saw an individual standing

by the driver’s side of the vehicle. Drager turned on

his cruiser’s overhead lights, parked his cruiser behind

the vehicle, and contacted the individual, later identified

as Botts. He asked Botts “what was wrong,” and

Botts initially told Drager “to mind [his] own business.”

When Drager asked Botts again about what had happened,

Botts told him “he was out of gas and was trying

to push the vehicle to the side of the road.” Drager testified

that he did not recall Botts’ saying that he drove the

vehicle there. Botts asked Drager if he could help him,

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

Police Department policy.

- 809 -

Nebraska Supreme Court Advanc e Sheets

299 Nebraska Reports

STATE v. BOTTS

Cite as 299 Neb. 806

Drager testified that he decided he should remain at the

location because Botts’ vehicle was blocking the roadway

and could cause an accident. Drager then stood back by

his cruiser and watched Botts push the vehicle back and

forth. Drager stated that Botts became “verbally abusive”

toward him after he said he could not help him, so Drager

decided to ask other officers to come to the location “for

safety purposes.” Three other officers responded.

One of the officers who responded, Officer Phillip

Tran, advised Drager that he had stopped Botts a couple

hours earlier that night for traffic violations. Drager testified

that Tran told him he had detected an odor of alcohol

on Botts at the time of the earlier stop. Based on the

information from Tran, Drager decided to approach Botts

and ask him if he had been drinking. Drager testified

that when he asked Botts if he had been drinking, Botts

became angry, started yelling, and started backing up

away from him.

Drager testified that Botts’ demeanor led him to believe

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

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

alcohol or drugs were affecting Botts’ ability to answer

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

been drinking.

Drager testified that Botts backed up to the other side

of the street and stopped with his back against a light

pole. When he was backing up, he was not coming at

the officers and was not making threats. The four officers

surrounded Botts by the light pole. Botts started

yelling “something along the line of shoot me, shoot

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

the officers at the scene, pulled out his Taser for safety

purposes and to try to get Botts to comply with their

request to put his hands behind his back. He eventually

did so and was handcuffed and placed in the back of

Drager’s cruiser.

- 810 -

Nebraska Supreme Court Advanc e Sheets

299 Nebraska Reports

STATE v. BOTTS

Cite as 299 Neb. 806

Drager testified that the officers were telling Botts to

put his hands behind his back for their safety and Botts’

safety. Drager stated that he was concerned for his safety

because Botts was being verbally abusive.

Drager testified that after Botts was arrested, the officers

decided to tow Botts’ vehicle because it was blocking

the road. He stated that it is Lincoln Police Department

policy to search vehicles that are going to be towed.

Tran began to search the vehicle and saw the handle

of a machete sticking out from underneath the driver’s

seat. Drager testified that after discovering the machete,

Botts was under arrest for being in possession of a concealed

weapon.

Tran also testified at the motion to suppress. He testified

that he had contact with Botts around midnight on

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

with him. Tran testified that he stopped Botts for not

having his headlights on and for driving erratically. Tran

testified that during that contact, he noticed a “slight odor

of alcohol,” and that Botts “and another person in the

vehicle had just purchased some alcohol.” Botts was the

driver of the vehicle, and there was more than one passenger.

Tran testified that he did not initiate a driving under

the influence investigation because he did not see enough

signs to believe that Botts was intoxicated.

Tran testified that he and another officer responded to

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

told Drager about his previous contact with Botts. Tran

testified that Drager and Lopez then made contact with

Botts at his vehicle, at which time Botts’ statements and

demeanor became erratic. Tran stated Botts backed away

from the two officers and was making statements such

as “shoot me, kill me, things like that.” He also heard

Botts make statements indicating the police were harassing

him and treating him differently because of his race.

Tran testified that Botts backed up and stopped with his

back against a light pole and that the four officers were

- 811 -

Nebraska Supreme Court Advanc e Sheets

299 Nebraska Reports

STATE v. BOTTS

Cite as 299 Neb. 806

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

hands behind his back, and Botts responded that he was

not doing anything wrong. Tran testified that during that

time, Lopez had his Taser out. Botts eventually put his

hands behind his back and was handcuffed.

Tran testified that as soon as Botts was handcuffed, he

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

side front window, which was rolled down. He then

saw the handle of a machete sticking out from under the

driver’s seat. He retrieved the machete out of the vehicle

after it was decided that the vehicle would be towed. He

testified that the officers were required to do an inventory

search every time a vehicle is towed.1

Issues on Appeal and Decision

of Court of Appeals.

On appeal, Botts contended that the district court erred in

denying his motion to suppress. As noted, the Court of Appeals

agreed, holding that Botts’ arrest was made without probable

cause and that the resulting inventory search was invalid. The

Court of Appeals remanded the cause with directions to the

district court to vacate Botts’ conviction:

The State contends that the officers had probable cause

to believe that Botts had committed the offense of driving

under the influence. The evidence showed that Tran had

stopped Botts around midnight for traffic offenses and

detected a “slight odor of alcohol” and noted that Botts

and another person in the vehicle had recently purchased

alcohol. Botts was driving, and there were passengers in

the vehicle. Tran did not initiate a driving under the influence

investigation, because he did not see signs of intoxication.

When Drager contacted Botts around 2:30 a.m.,

about 21⁄2 hours after Tran had stopped Botts, Botts was

pushing a vehicle that was inoperable. Botts told Drager

that his vehicle had run out of gas and that he was trying

1 State v. Botts, 25 Neb. App. 372, 374-77, 905 N.W.2d 704, 708-10 (2017).

- 812 -

Nebraska Supreme Court Advanc e Sheets

299 Nebraska Reports

STATE v. BOTTS

Cite as 299 Neb. 806

to get it to the side of the road. Botts asked Drager for

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

Lincoln Police Department policy. This apparently upset

Botts. Botts continued pushing his vehicle and trying to

maneuver it to the side of the road while Drager stood

back by his cruiser and watched.

It was not until Tran arrived at the scene and told

Drager about the earlier stop that Drager decided to

approach Botts face to face and ask him if he had been

drinking. At this point, all Drager knew was that Tran

had smelled an odor of alcohol on Botts and that there

was alcohol in the vehicle at the time Tran stopped him.

Neither Drager nor any of the officers testified that they

smelled an odor of alcohol on Botts. Drager also did not

recall Botts’ indicating that he had been drinking.

Drager testified that Bolts’ demeanor led him to believe

he was under the influence of alcohol or drugs. However,

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

Botts he could not help him push the vehicle. Drager

testified that it was at that point Botts became “verbally

abusive” toward him. Botts also indicated that he believed

the police were harassing him and that he was being

treated differently because of his race.

In addition, Drager did not know if Botts had driven

the vehicle to the location where Drager found it. He

never saw him in the vehicle, and Botts never indicated

that he had been driving the vehicle. The officers did not

have probable cause to believe that Botts had been driving

under the influence of alcohol.

We conclude that Botts was seized at the time the officers

surrounded him by the light pole and Lopez had his

Taser drawn and that the officers did not have probable

cause to arrest him at that time. Consequently, the trial

court erred in overruling Botts’ motion to suppress.2

2 Id. at 382-83, 905 N.W.2d at 713.

- 813 -

Nebraska Supreme Court Advanc e Sheets

299 Nebraska Reports

STATE v. BOTTS

Cite as 299 Neb. 806

ASSIGNMENTS OF ERROR

The State filed a petition for further review, arguing that the

Court of Appeals erred in holding that (1) Botts was seized at

the time he was handcuffed and not at the time he was surrounded

by the officers and (2) Botts’ arrest was made without

probable cause.

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.

Regarding historical facts, an appellate court reviews the trial

court’s findings for clear error, but whether those facts trigger

or violate Fourth Amendment protection is a question of

law that an appellate court reviews independently of the trial

court’s determination.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.4

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

during trial on renewed objection, an appellate court considers

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

motion to suppress.5

ANALYSIS

Classification of Police-Citizen Encounters.

[4-6] There are three tiers of police-citizen encounters. A

tier-one police-citizen encounter involves the voluntary cooperation

of the citizen elicited through noncoercive questioning

and does not involve any restraint of liberty of the citizen.6

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

4 Id.

5 State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017).

6 Id.

- 814 -

Nebraska Supreme Court Advanc e Sheets

299 Nebraska Reports

STATE v. BOTTS

Cite as 299 Neb. 806

Because tier-one encounters do not rise to the level of a seizure,

they are outside the realm of Fourth Amendment protection.

7 A tier-two police-citizen encounter involves a brief, nonintrusive

detention during a frisk for weapons or preliminary

questioning.8 A tier-three police-citizen encounter constitutes

an arrest, which involves a highly intrusive or lengthy search

or detention.9 Tier-two and tier-three police-citizen encounters

are seizures sufficient to invoke the protections of the Fourth

Amendment to the U.S. Constitution.10

[7] 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.11 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.12 But an

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

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

Fourth Amendment protections, so long as the questioning

is carried on without interrupting or restraining the person’s

movement.13

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

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

encounter. The question presented here is when the encounter

became a tier-three encounter, or an arrest.

7 Id.

8 Id.

9 Id.

10 Id.

11 Id.

12 Id.

13 Id.

- 815 -

Nebraska Supreme Court Advanc e Sheets

299 Nebraska Reports

STATE v. BOTTS

Cite as 299 Neb. 806

The State contends that the Court of Appeals erred in finding

that Botts was arrested for Fourth Amendment purposes

when he was standing by the light pole surrounded by four

officers, one with his Taser drawn. The State argues instead

that Botts was seized for purposes of the Fourth Amendment

when Officer Jason Drager approached Botts and asked if he

had been drinking—a tier-two investigatory stop for purposes

of a driving under the influence (DUI) investigation.

The State’s characterization is supported by the record.

Drager found Botts attempting to push his vehicle, which had

stalled on the side of the road. Botts explained that he had run

out of gas, but at the time, Drager had no independent confirmation

of that fact. Upon his arrival on the scene, Officer

Phillip Tran informed Drager that a few hours earlier, Tran

had stopped Botts in his vehicle for driving erratically, driving

without his headlights on, and failing to signal his turn. Tran

also testified he informed Drager that he had smelled the odor

of alcohol coming from Botts’ vehicle and that he saw alcohol

in the vehicle. In addition, Drager testified at the motion

to suppress hearing that Botts’ “behavior would have led me

to believe that he was under the influence of something, just

his demeanor and how upset he was. I would have guessed

he was under some kind of alcohol or drug.” Based upon his

own observations and the information he obtained from Tran,

Drager testified that he approached Botts with the intent to

begin a DUI investigation.

Although the Court of Appeals concluded that Botts was not

seized until later, we conclude that Botts’ seizure began at the

time Drager approached him to begin the DUI investigation.

But this does not end our inquiry.

The Court of Appeals concluded that not only was Botts

seized when he was surrounded by officers—and one of those

officers drew his Taser—but that Botts was arrested at that

time as well. The State disagrees, again contending that Botts

was not arrested until he was handcuffed. The State argues that

officers are permitted to take such steps as are “‘reasonably

- 816 -

Nebraska Supreme Court Advanc e Sheets

299 Nebraska Reports

STATE v. BOTTS

Cite as 299 Neb. 806

necessary to protect their personal safety and to maintain the

status quo,’” so that the limited purposes of an investigatory

stop may be achieved, and that doing so does not change

an investigatory stop into an arrest.14 In the State’s view, all

actions taken by the officers in advance of handcuffing Botts

fall under this rule.

But in any case, the record shows that about 10 seconds

elapsed between the time the officers surrounded Botts and the

time Botts was handcuffed. Thus, for purposes of the real issue

on appeal—whether there was probable cause to support Botts’

arrest—it does not much matter at which of these two points in

time the arrest occurred.

Probable Cause.

[8,9] The State next contends that the Court of Appeals

erred in concluding there was not probable cause to support

an arrest. Probable cause to support a warrantless arrest exists

only if law enforcement has knowledge at the time of the arrest,

based on information that is reasonably trustworthy under the

circumstances, that would cause a reasonably cautious person

to believe that a suspect has committed or is committing a

crime.15 Probable cause is a flexible, commonsense standard

that depends on the totality of the circumstances.16 An appellate

court determines whether probable cause existed under an

objective standard of reasonableness, given the known facts

and circumstances.17

But, in the words of the U.S. Supreme Court, appellate courts

should avoid an “‘excessively technical dissection’ of the factors

supporting probable cause.”18 The test to be employed is

14 Memorandum brief in support of petition for further review for appellee at

9, quoting United States v. Jones, 759 F.2d 633 (8th Cir. 1985).

15 State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).

16 Id.

17 Id.

18 District of Columbia v. Wesby, ___ U.S. ___, 138 S. Ct. 577, 588, 199 L.

Ed. 2d 453 (2018).

- 817 -

Nebraska Supreme Court Advanc e Sheets

299 Nebraska Reports

STATE v. BOTTS

Cite as 299 Neb. 806

whether the totality of the circumstances would suggest that

probable cause existed.19 It is improper to view

each fact “in isolation, rather than as a factor in the

totality of the circumstances.” . . . The “totality of the

circumstances” requires courts to consider “the whole

picture.” . . . Our precedents recognize that the whole is

often greater than the sum of its parts—especially when

the parts are viewed in isolation. . . .

. . . .

. . . A factor viewed in isolation is often more “readily

susceptible to an innocent explanation” than one viewed

as part of a totality.20

[10] Thus, “probable cause does not require officers to rule

out a suspect’s innocent explanation for suspicious facts.”21 In

assessing probable cause, an officer’s “‘relevant inquiry is not

whether particular conduct is “innocent” or “guilty,” but the

degree of suspicion that attaches to particular types of noncriminal

acts.’”22

The Court of Appeals concluded there was not probable

cause to support Botts’ arrest for DUI. But in reaching its

conclusion, the Court of Appeals emphasized that there were

innocent explanations for Botts’ erratic behavior. Specifically,

the Court of Appeals discounted the testimony regarding Botts’

demeanor, suggesting that such behavior could be explained

by Botts’ being upset that Drager was not helping him push

his vehicle, and noted that the officers testified they did not

know whether Botts had driven the car to the location where

it was found. In addition, the Court of Appeals noted that no

officers testified they smelled the odor of alcohol on Botts

during the latter stop, nor could Drager recall if Botts indicated

that he had been drinking.

19 Id.

20 Id., 138 S. Ct. at 588-89 (citations omitted).

21 Id., 138 S. Ct. at 588.

22 Id.

- 818 -

Nebraska Supreme Court Advanc e Sheets

299 Nebraska Reports

STATE v. BOTTS

Cite as 299 Neb. 806

We conclude that the Court of Appeals erred in discounting

the officers’ assessment of probable cause based upon

innocent explanations for Botts’ suspicious behavior. Law

enforcement is not required to rule out such explanations

when assessing whether probable cause exists.

Botts and his vehicle were found stalled by the side of the

road. Botts was acting erratically, and Drager in particular

noted that Botts’ behavior was suggestive of being under the

influence of drugs or alcohol. Tran had notified Drager of the

earlier stop of Botts and his vehicle for various traffic violations,

that alcohol was present in Botts’ vehicle, and that Tran

had smelled alcohol during that earlier stop. When considered

alongside the escalation of Botts’ erratic behavior when

Drager asked if he had been drinking, we conclude the officers

had probable cause to arrest Botts for DUI. And because there

was probable cause to support Botts’ arrest, the inventory

search of Botts’ vehicle prior to its towing was authorized and

the machete found in that search admissible.

We observe that the State also argues there was probable

cause to arrest Botts for failure to comply with a lawful order.

We need not reach that argument, because we conclude probable

cause existed for a DUI arrest.

We conclude that the Court of Appeals erred in vacating

Botts’ conviction. Accordingly, we reverse the decision of the

Court of Appeals and remand this appeal to that court to consider

Botts’ other assignments of error.

The Court of Appeals erred in vacating Botts’ conviction.

We reverse, and remand with directions.