State v. Hedgcock

Wintroub testified that he sincerely regretted not inquiring
into the legality of structuring cash transactions, but his consis-
tent and cumulative violations of our disciplinary rules reflects
a general failure to fully comprehend the nature of his conduct.
Considering the need to protect the public, the need to deter
others, the reputation of the bar as a whole, Wintroub’s fitness
to practice law, and the aggravating and mitigating circum-
stances, we conclude that Wintroub should be disbarred from
the practice of law.
VI. CONCLUSION
There is clear and convincing evidence in case No. S-05-1518
that Wintroub violated DR 1-102(A)(1), (3), and (4) of the
Code of Professional Responsibility. Likewise, in case No.
S-07-942, there is clear and convincing evidence that he vio-
lated DR 2-110(A)(3) and §§ 3-501.3, 3-501.16, and 3-508.4
of the Nebraska Rules of Professional Conduct. It is therefore
the judgment of this court that Wintroub is disbarred from the
practice of law in the State of Nebraska, effective immediately.
Wintroub is directed to comply with Neb. Ct. R. § 3-316, and
upon failure to do so, he shall be subject to punishment for
contempt of this court. Wintroub is further directed to pay costs
and expenses in accordance with Neb. Rev. Stat. §§ 7-114 and
7-115 (Reissue 2007) and Neb. Ct. R. §§ 3-310(P) and 3-323
within 60 days after an order imposing costs and expenses, if
any, is entered by this court.
Judgment of disbarment.
miller-lerman, J., participating on briefs in No. S-07-942.
H eavican, C.J., not participating.
STATe v. heDgCOCk 	805
Cite as 277 Neb. 805
state of nebraska , appellee , v.
parry H edgcock , appellant.
765 N.W.2d 469
Filed May 22, 2009. 	No. S-07-617.
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
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

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 inde-
pendently of the trial court’s determination.
2. Constitutional Law: Search and Seizure. For the protections of the Fourth
Amendment to apply, a seizure must have occurred.
3. Police Officers and Sheriffs: Search and Seizure. A police officer may make a
seizure by a show of authority and without the use of physical force.
4. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. There
is no seizure without actual submission; otherwise, there is at most an attempted
seizure, so far as the Fourth Amendment is concerned. Thus, a seizure requires
either a police officer’s application of physical force to a suspect or a suspect’s
submission to an officer’s show of authority.
5. Constitutional Law: Police Officers and Sheriffs: Search and Seizure: Appeal
and Error. To determine whether an encounter between an officer and a
citizen reaches the level of a seizure under the Fourth Amendment, an appel-
late 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.
6. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. A tier-
one police-citizen encounter involves the voluntary cooperation of the citizen
elicited through noncoercive questioning, and does not involve any restraint of
the liberty of the citizen involved. In other words, one who voluntarily accom-
panies the police for questioning has not been seized. Because tier-one encoun-
ters do not rise to the level of a seizure, they are outside the realm of Fourth
Amendment protection.
7. Police Officers and Sheriffs: Search and Seizure. A seizure does not occur
simply because a law enforcement officer approaches an individual and asks a
few questions or requests permission to search an area, provided the officer does
not indicate that compliance with his or her request is required.
8. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. A
police officer’s merely questioning an individual in a public place, such as ask-
ing 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. In other words, a seizure does not occur simply by reason of
the fact that a police officer approaches an individual, asks him or her for identi-
fication, and poses a few questions to that individual.
9. ____: ____: ____. Tier-two and tier-three police-citizen encounters are seizures
sufficient to invoke the protections of the Fourth Amendment.
10. Police Officers and Sheriffs: Search and Seizure. A tier-two police-citizen
encounter constitutes an investigatory stop as defined by Terry v. Ohio, 392 U.S.
1, 88 S. Ct. 1868, 20 L. ed. 2d 889 (1968). Such an encounter involves a brief,
nonintrusive detention during a frisk for weapons or preliminary questioning.
Because of its less intrusive nature, a tier-two encounter requires only that an
officer have specific and articulable facts sufficient to give rise to a reasonable
suspicion that criminal activity is afoot.
806 	277 NeBRASkA RePORTS

11. Police Officers and Sheriffs: Search and Seizure: Arrests. A tier-three police-
citizen encounter constitutes an arrest. An arrest involves a highly intrusive or
lengthy search or detention.
12. Constitutional Law: Search and Seizure: Arrests: Probable Cause. The Fourth
Amendment mandates that an arrest be justified by probable cause to believe that
a person has committed or is committing a crime.
13. Constitutional Law: Search and Seizure. A seizure in the Fourth Amendment
context occurs only if, in view of all the circumstances surrounding the incident,
a reasonable person would have believed that he or she was not free to leave.
14. Police Officers and Sheriffs: Search and Seizure. In addition to situations
where an officer directly tells a suspect that he or she is not free to go, circum-
stances 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 that compli-
ance with the officer’s request might be compelled.
15. ____: ____. Police deception which is not coercive in nature will not invalidate
an individual’s consent to search if the record otherwise shows the consent
was voluntary.
16. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. The
use by law enforcement of a ruse checkpoint, without an unreasonable seizure for
Fourth Amendment purposes, is not unconstitutional simply because it is a ruse.
Appeal from the District Court for Cass County: randall l.
reHmeier, Judge. Affirmed.
Brent M. Bloom for appellant.
Jon Bruning, Attorney general, and george R. Love for
appellee.
H eavican, 	c.J., 	WrigHt, 	connolly, 	gerrard, 	stepHan,
mccormack , and miller-lerman, JJ.
mccormack , J.
NATURe OF CASe
Parry hedgcock pulled his vehicle into the Platte River rest
area immediately after seeing checkpoint signs. These signs
were “ruse checkpoint” signs indicating that a drug checkpoint
was set up farther down the road when, in reality, there was
no checkpoint. At the rest area, hedgcock was approached
by an officer who was wearing plain street clothes and was
not displaying his weapon. The officer informed hedgcock
that he was not in any trouble or under arrest. he then asked
hedgcock to answer a few questions, and hedgcock agreed.
STATe v. heDgCOCk 	807
Cite as 277 Neb. 805

After a few minutes of talking with the officer, hedgcock
consented to a search of his vehicle, resulting in the officer’s
finding marijuana.
As a result of this encounter, hedgcock was charged with
possession of marijuana weighing more than 1 pound and
with intent to distribute. The district court denied his motion
to suppress certain statements and physical evidence obtained
by officers, and hedgcock was found guilty. he appeals his
convictions, alleging that the use of the ruse checkpoint was
unconstitutional.
BACkgROUND
On February 22, 2006, the Nebraska State Patrol strategi-
cally placed signs along Interstate 80, eastbound, indicat-
ing that there was a drug checkpoint farther down the road.
The checkpoint signs were posted along the shoulder and the
median of Interstate 80 near the Platte River rest area in Cass
County. The checkpoint signs read “‘Nebraska State Patrol
Check Point Ahead’” and “‘Drug Dog in Use.’” The signs
alternated prior to the exit for the rest area, and a couple of
signs were placed after the rest area. however, there was no
drug enforcement checkpoint on Interstate 80. The checkpoint
signs were placed near the Platte River rest area exit to induce
motorists engaged in drug-related activity to take the exit in
order to avoid the drug checkpoint.
Five officers, including Officers Alan eberle, Richard Lutter,
and Jason Scott, waited in the rest area either on foot or in
unmarked vehicles, with their weapons concealed, wearing
plain street clothes. The officers at the rest area observed
individuals’ behaviors for any indicators or circumstances that
would alert them to possible drug activity. In his deposition,
Scott testified that some of the indicators the officers looked
for included the motorists’ reactions to the signs, such as brak-
ing rapidly to enter the rest area, how fast the vehicle pulled
into the rest area, where the vehicle parked in the rest area,
and the passengers’ behaviors once the vehicle is parked. If the
officers observed any suspicious indicators or circumstances,
then they would make contact.
808 	277 NeBRASkA RePORTS

Another officer waited in an unmarked car, in the middle of
Interstate 80, observing motorists’ reactions to the checkpoint
signs. The officer specifically watched for motorists who made
a “rapid departure” into the rest area, as such activity was
indicative of someone attempting to avoid the checkpoint. The
officer was to alert the other officers waiting at the rest area of
any motorists’ reactions that were suspicious.
At approximately 10:30 a.m., an officer informed eberle
that the driver of a white Chevrolet Blazer, with Utah plates,
rapidly applied the brakes and changed lanes to enter the rest
area after seeing the checkpoint signs. eberle testified that after
he received that information, he, along with Lutter and Scott,
observed the Blazer enter the rest area. even though there were
empty stalls in front of the building, the Blazer parked away
from the rest area building.
After the Blazer parked, the occupants, hedgcock and
Anthony Womack, sat inside the vehicle for approximately 2
minutes. eventually, Womack (the passenger) and hedgcock
(the driver) got out of the vehicle. Womack walked to the rest-
rooms, but hedgcock stayed close to the Blazer.
This behavior made the officers at the rest area suspicious.
eberle testified that in his experience, when individuals are
transporting narcotics, one person always stays close to the
vehicle to make sure that it is never left unattended. Scott
testified that he was suspicious because hedgcock parked
the Blazer away from the rest area building, hedgcock and
Womack stayed in the Blazer for awhile, and hedgcock stayed
with the vehicle while Womack went to the restroom. Lutter
testified that he, too, was suspicious because Womack and
hedgcock stayed in the vehicle for so long after parking and
then proceeded to stand near the vehicle for a time “as if they
were still trying to determine what they were going to do.”
Lutter testified that this behavior was inconsistent with regular
use of the rest area.
eberle followed Womack to the restroom and waited out-
side for him to come out. After Womack came out of the
restroom, eberle approached him, and they talked for awhile.
While eberle was talking with Womack over by the restrooms,
STATe v. heDgCOCk 	809
Cite as 277 Neb. 805

Lutter walked over to the Blazer to talk with hedgcock.
Lutter approached hedgcock and presented his badge, identi-
fying himself as a law enforcement officer. he then advised
hedgcock that he was not under arrest and that he was not in
any kind of trouble. According to Lutter, he asked hedgcock,
in a conversational, nondirective tone, to talk for a minute, and
hedgcock said, “Okay.”
Lutter asked hedgcock for identification, and hedgcock
gave him his Utah driver’s license. hedgcock informed Lutter
that he was coming from Utah to Chicago to visit a friend, but
hedgcock could not provide any other details about the trip.
Lutter then explained to hedgcock that he was watching for
people that may be transporting illegal items such as guns,
drugs, and explosive devices. he then asked hedgcock whether
he had any such items with him or in his vehicle, to which
hedgcock stated he did not. During their conversation, Lutter
observed that hedgcock continued to look away from him
as if he was searching for his companion and that hedgcock
appeared to be nervous.
eventually, Lutter asked hedgcock for consent to search the
Blazer, and hedgcock responded, “[g]o ahead,” and stepped
away from the Blazer. Lutter testified that as soon as he opened
the passenger-side door to search the Blazer, he smelled burned
marijuana. After examining the front compartment, Lutter asked
hedgcock and Womack whether there was marijuana in the
vehicle, to which hedgcock stated that “there might be some
in the ash tray.” The officers found a marijuana cigarette in the
ashtray and continued their search of the vehicle.
eberle testified that after the marijuana cigarette was found,
neither Womack nor hedgcock was free to leave, because
the officers intended to issue a citation. however, the record
reveals that neither officer indicated in any way that Womack
and hedgcock were not free to leave. Both officers testified
that before the marijuana cigarette was found, hedgcock and
Womack were free to leave at any time.
As the search continued, eberle asked hedgcock whether he
could search inside the luggage compartment on the top of the
Blazer. hedgcock indicated that a set of keys in the driver’s
door would open the luggage compartment; however, none of
810 	277 NeBRASkA RePORTS

the keys fit the lock. eberle asked hedgcock again about how
to open the luggage compartment, and hedgcock told him that
he left the key at home. hedgcock consented to a search of
his person, and after searching, eberle found a single key in
hedgcock’s pocket that fit the luggage compartment lock. After
finding the key, eberle asked hedgcock what was in the lug-
gage compartment that he did not want the officers to find, and
hedgcock stated: “‘I’m transporting marijuana.’”
Based on this confession, eberle arrested hedgcock. The
officers opened the luggage compartment and found three
black garbage bags full of marijuana, approximately 50 pounds.
eberle then read hedgcock his Miranda rights, and hedgcock
agreed to talk.
eberle asked hedgcock some questions about where the
marijuana was going, but hedgcock would not give him any
details. hedgcock told eberle that he was responsible for the
marijuana and then requested an attorney. At that point, eberle
stopped questioning him. however, on the way to the police
station, hedgcock made a comment regarding his thoughts on
legalizing marijuana.
The district court overruled hedgcock’s motion to suppress
as to the physical evidence and the statements he made before
asking for an attorney, but granted the motion as to the state-
ments hedgcock made on the way to the police station. The
court concluded that the encounter between hedgcock and the
officers was a tier-one encounter, because hedgcock voluntarily
agreed to talk to the officers and because the evidence did not
show circumstances indicative of a seizure. Thus, the encounter
did not rise to the level of a seizure and was therefore outside
the realm of Fourth Amendment protection. The court also
noted that hedgcock was not stopped at a checkpoint, because
he stopped at the rest area on his own volition. The court stated:
“The fact that [hedgcock’s] consent to talk to the officer(s) and
his consent to the search worked to his detriment does not give
rise to an illegal search or seizure.” hedgcock was convicted
and sentenced. he now appeals.
ASSIgNMeNTS OF eRROR
hedgcock claims, restated, that the district court erred in
overruling his motion to suppress, because (1) the Platte River
STATe v. heDgCOCk 	811
Cite as 277 Neb. 805

rest area was in fact an unconstitutional drug checkpoint and
(2) the encounter between himself and the officers constituted
an unconstitutional seizure.
STANDARD OF ReVIeW
[1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
we apply a two-part standard of review.1 Regarding historical
facts, we review the trial court’s findings for clear error.2 But
whether those facts trigger or violate Fourth Amendment pro-
tections is a question of law that we review independently of
the trial court’s determination.3
Likewise, we apply the same two-part analysis when review-
ing whether a consent to search was voluntary. As to the his-
torical facts or circumstances leading up to a consent to search,
we review the trial court’s findings for clear error. however,
whether those facts or circumstances constituted a voluntary
consent to search, satisfying the Fourth Amendment, is a ques-
tion of law, which we review independently of the trial court.4
And where the facts are largely undisputed, the ultimate ques-
tion is an issue of law.5
ANALYSIS
hedgcock argues that his encounter with Lutter, eberle, and
Scott, which occurred as a result of hedgcock’s entering the
Platte River rest area after seeing the ruse checkpoint signs,
was a seizure for purposes of the Fourth Amendment. We
1 See, State v. Royer, 276 Neb. 173, 753 N.W.2d 333 (2008); State v.
Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996). See, also, State v. Rogers,
277 Neb. 37, 760 N.W.2d 35 (2009).
2 See id.
3 See id.
4 See, Wyche v. State, 987 So. 2d 23 (Fla. 2008); State v. Texter, 923 A.2d
568 (R.I. 2007); State v. Giebel, 297 Wis. 2d 446, 724 N.W.2d 402 (2006);
Robinson v. Com., 47 Va. App. 533, 625 S.e.2d 651 (2006); Graham v.
State, 146 Md. App. 327, 807 A.2d 75 (2002); Vargas v. State, 18 S.W.3d
247 (Tex. App. 2000).
5 See State v. Lancelotti, 8 Neb. App. 516, 595 N.W.2d 558 (1999), citing
U.S. v. Nicholson, 144 F.3d 632 (10th Cir. 1998).
812 	277 NeBRASkA RePORTS

conclude hedgcock was not seized; thus the protections of the
Fourth Amendment are inapplicable.
[2-4] It is axiomatic that for the protections of the Fourth
Amendment to apply, a seizure must have occurred.6 A police
officer may make a seizure by a show of authority and with-
out the use of physical force.7 But there is no seizure without
actual submission; otherwise, there is at most an attempted
seizure, so far as the Fourth Amendment is concerned.8 Thus,
a seizure requires either a police officer’s application of physi-
cal force to a suspect or a suspect’s submission to an officer’s
show of authority.9
[5] To determine whether an encounter between an officer
and a citizen reaches the level of a seizure under the Fourth
Amendment, we employ the analysis set forth in State v. Van
Ackeren,10 which describes the three levels, or tiers, of police-
citizen encounters.11
[6] A tier-one encounter involves the voluntary coopera-
tion of the citizen elicited through noncoercive questioning,
and does not involve any restraint of the liberty of the citizen
involved.12 In other words, one who voluntarily accompanies
the police for questioning has not been seized. Because tier-one
encounters do not rise to the level of a seizure, they are outside
the realm of Fourth Amendment protection.13
[7,8] We have explained that a seizure does not occur simply
because a law enforcement officer approaches an individual and
asks a few questions or requests permission to search an area,
provided the officer does not indicate that compliance with his
6 See, State v. Anderson, 258 Neb. 627, 605 N.W.2d 124 (2000), disap-
proved on other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d
727 (2007). See, also, State v. Soukharith, 253 Neb. 310, 570 N.W.2d 344
(1997); State v. Twohig, 238 Neb. 92, 469 N.W.2d 344 (1991).
7 See State v. Cronin, 2 Neb. App. 368, 509 N.W.2d 673 (1993).
8 See id.
9 Id.
10 State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993).
11 See id.
12 Id.
13 Id.
STATe v. heDgCOCk 	813
Cite as 277 Neb. 805

or her request is required.14 Moreover, we have concluded that
a police 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.15 In other words, a seizure does not occur simply by
reason of the fact that a police officer approaches an individual,
asks him or her for identification, and poses a few questions to
that individual.16
[9,10] Conversely, tier-two and tier-three encounters are
seizures sufficient to invoke the protections of the Fourth
Amendment. According to Van Ackeren, a tier-two encoun-
ter constitutes an investigatory stop as defined by Terry
v. Ohio.17 Such an encounter involves a brief, nonintrusive
detention during a frisk for weapons or preliminary question-
ing. Because of its less intrusive nature, a tier-two encounter
requires only that an officer have specific and articulable facts
sufficient to give rise to a reasonable suspicion that criminal
activity is afoot.18
[11,12] Finally, a tier-three encounter constitutes an arrest.19
An arrest involves a highly intrusive or lengthy search or deten-
tion.20 The Fourth Amendment mandates that an arrest be justi-
fied by probable cause to believe that a person has committed
or is committing a crime.21
[13,14] A seizure in the Fourth Amendment context occurs
only if, in view of all the circumstances surrounding the inci-
dent, a reasonable person would have believed that he or she
14 State v. Anderson, supra note 6. See State v. Twohig, supra note 6.
15 State v. Twohig, supra note 6.
16 See United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. ed.
2d 497 (1980).
17 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. ed. 2d 889 (1968).
18 See, State v. Van Ackeren, supra note 10; Terry v. Ohio, supra note 17.
19 State v. Van Ackeren, supra note 10.
20 Id.
21 Id.
814 	277 NeBRASkA RePORTS

was not free to leave.22 In addition to situations where the offi-
cer directly tells the suspect that he or she is not free to go,
circumstances indicative of a seizure may include the threaten-
ing 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 that compliance
with the officer’s request might be compelled.23
hedgcock argues that the ruse checkpoint resulted in a de
facto checkpoint at the rest area, a tier-two encounter, and
that the stop was not justified by specific and articulable facts
sufficient to give rise to a reasonable suspicion that crimi-
nal activity was afoot. We disagree that this was a tier-two
encounter. The police did not use any force to stop the Blazer.
Instead, hedgcock stopped the Blazer on his own accord.24 Nor
did hedgcock pull into the rest area as a result of a show of
authority. There were no uniformed officers or marked police
cars directing vehicles into the rest area, and there were no
roadblocks. Vehicles were not stopped by officers, and the
officers in no way prohibited motorists from continuing their
travel. As such, we determine there was no drug checkpoint in
this case.25
hedgcock maintains that the facts in U.S. v. Yousif 26 compel
the same analysis and conclusion that an unlawful seizure took
place in this case. however, Yousif is readily distinguishable.
In Yousif, the eighth Circuit Court of Appeals was presented
with a case where, as in the present case, ruse checkpoint signs
were strategically placed to trick drug traffickers into leaving
the highway at an exit ramp to avoid the perceived checkpoint.
The signs indicated that a drug checkpoint was beyond the
22 State v. Anderson, supra note 6.
23 Id.; U.S. v. Galvan-Muro, 141 F.3d 904 (8th Cir. 1998), citing U.S. v.
White, 81 F.3d 775 (8th Cir. 1996), and United States v. Mendenhall, supra
note 16.
24 See U.S. v. Klinginsmith, 25 F.3d 1507 (10th Cir. 1994).
25 See, U.S. v. Wright, 512 F.3d 466 (8th Cir. 2008); U.S. v. Carpenter, 462
F.3d 981 (8th Cir. 2006).
26 U.S. v. Yousif, 308 F.3d 820 (8th Cir. 2002).
STATe v. heDgCOCk 	815
Cite as 277 Neb. 805

exit. Unlike this case, however, law enforcement officers actu-
ally established a checkpoint on the exit ramp and were under
instructions to stop every vehicle that exited the highway at
that exit.
In Yousif, when a vehicle would arrive at the checkpoint,
at least one uniformed officer would approach the driver and
ask for his or her driver’s license, registration, and, if required
by the state of registration, proof of insurance. Then, if the
officers perceived any indication of illegal activity, the officer
would question the driver further, and if there was any reason
to believe that the vehicle contained illegal drugs or other con-
traband, the officer would ask for consent to search.
Salwan Yousif took the exit and was stopped at the check-
point, and three officers approached the vehicle Yousif was
driving. Yousif consented to a search of the vehicle, and
the search revealed Yousif was transporting bundles of mari-
juana. The eighth Circuit concluded that the district court
erred in denying Yousif’s motion to suppress, because the stop
was not supported by reasonable suspicion.27 Specifically, the
court stated:
[B]ecause there is nothing inherently unlawful or suspi-
cious about a vehicle (even one with out-of-state license
plates) exiting the highway, it should not be the case
that the placement of signs by the police in front of the
exit ramp transforms that facially innocent behavior into
grounds for suspecting criminal activity.28
In a later case, the eighth Circuit clarified its holding
in Yousif, stating that exiting a highway immediately after
observing signs for a checkpoint is “‘indeed suspicious, even
though the suspicion engendered is insufficient for Fourth
Amendment purposes.’”29 In other words, the court concluded
that exiting a highway to avoid the use of a drug checkpoint
is one factor which can be considered in the totality of the
27 Id.
28 Id. at 829.
29 U.S. v. Carpenter, supra note 25, 462 F.3d at 986.
816 	277 NeBRASkA RePORTS

circumstances, but that if it is the only cause for suspicion, it
is insufficient.
It is clear that in this case, no checkpoint existed at the rest
area. Vehicles were not stopped by law enforcement officers,
and officers simply approached individuals, whose behaviors
displayed certain suspicious indicators, for brief, nonthreaten-
ing questioning. From our review of the record, the individuals
had in their possession all necessary items such as identifica-
tion, driver’s license, keys, et cetera, to continue traveling if so
desired. Thus, there was no checkpoint.
Next, hedgcock argues that he was seized during the encoun-
ter in which Lutter asked him questions and for consent to
search. The State maintains that no seizure took place, because
hedgcock voluntarily, without being coerced, agreed to answer
questions. We agree with the State.
Considering the totality of the circumstances, we find that
a reasonable person would have felt free to leave; thus, there
were no circumstances present in this case which are indicative
of a seizure. There were no more than three officers visible to
hedgcock at any point prior to his admissions. All of the offi-
cers at the rest area were dressed in plain clothing, and none
of the officers displayed their weapons. The officers did not
physically compel cooperation in any way.
Additionally, Lutter did not indicate that compliance with
his request to answer questions would be compelled. Lutter
did not summon hedgcock to his presence, but instead Lutter
approached hedgcock and identified himself. When Lutter first
spoke with hedgcock, Lutter’s tone of voice was “[s]trictly
conversational, there was no direction, it was just a conversa-
tion tone.” Almost immediately, Lutter informed hedgcock that
he was not under arrest or in any kind of trouble. Lutter simply
asked hedgcock “if he had a few minutes to speak with me.”
And hedgcock responded, “Okay.”
Moreover, it is clear that hedgcock had everything in his
possession that he would need to continue his trip. Lutter
requested, but did not demand, hedgcock’s identification, and
after checking hedgcock’s identification, Lutter immediately
returned his driver’s license back to him. hedgcock was free
STATe v. heDgCOCk 	817
Cite as 277 Neb. 805

to walk away at any time. There is nothing to indicate that this
encounter was intense or threatening.
To sum up, the record reveals that hedgcock voluntarily
cooperated and consented to a search of the Blazer and his per-
son. Lutter asked hedgcock, in a conversational tone, whether
he could search the vehicle, and hedgcock responded, “go
ahead.” At the time Lutter asked for consent to search the
Blazer, no other officers were around. Additionally, there is
no evidence of any kind of coercive conduct on the part of the
officers. Lutter did not make any demands of hedgcock, and
throughout this short encounter, hedgcock never manifested
any indication that he no longer wanted to cooperate with the
officers. hedgcock never asked whether he was free to leave,
and he never made any attempts to leave. hedgcock fully coop-
erated with the police officers.
Based on these facts, we see no reason to conclude that a
reasonable person in hedgcock’s position would not have felt
free to decline the request to answer questions or to search.
But hedgcock argues that an encounter that occurs as a
result of a ruse checkpoint is inherently unreasonable and
coercive. hedgcock argues that his initial cooperation was
involuntary because he was forced to cooperate. According to
hedgcock, if he refused to cooperate and then was allowed to
leave, he would have been stopped at the checkpoint. But if he
cooperated, he might be released without being stopped again
at the checkpoint.
[15,16] We have held that police deception which is not
coercive in nature will not invalidate an individual’s consent
to search if the record otherwise shows the consent was volun-
tary.30 Although the officers misrepresented the fact that a drug
checkpoint was beyond the rest area, there was nothing in the
record to reveal that the officers coerced hedgcock into answer-
ing questions or consenting to a search of the Blazer. And as
we discussed above, the officers did not force hedgcock into
stopping at the rest area and none of the officers indicated in
any way that cooperation would be compelled. We determine
that the use of a ruse checkpoint, without an unreasonable
30 State v. Peery, 223 Neb. 556, 391 N.W.2d 566 (1986).
818 	277 NeBRASkA RePORTS

seizure for Fourth Amendment purposes, is not unconstitu-
tional simply because it is a ruse. As such, we conclude that
hedgcock voluntarily consented.
CONCLUSION
We 	conclude 	that 	the 	encounter 	between 	Lutter 	and
hedgcock did not rise to the level of a Fourth Amendment
seizure. Because there was no seizure, there was no check-
point and the safeguards against unreasonable searches and
seizures were not implicated. Further, we determine that
hedgcock voluntarily cooperated and consented to the search
of his vehicle and person. Therefore, we conclude the district
court correctly denied hedgcock’s motion to suppress, and
thus, we affirm.
affirmed.
STATe v. hAUSMANN 	819
Cite as 277 Neb. 819
state of nebraska , appellee , v.
alecia m. H ausmann, appellant.
765 N.W.2d 219
Filed May 22, 2009. 	No. S-07-1229.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.
2. Courts. Vertical stare decisis compels lower courts to follow strictly the decisions
rendered by higher courts within the same judicial system.
3. Courts: Jurisdiction: Appeal and Error. A district court sitting as an appellate
court is divested of jurisdiction to a higher appellate court when an appeal is per-
fected, or to the county court when the county court acts upon the mandate issued
by the district court.
4. Courts: Jurisdiction: Final Orders: Appeal and Error. While an intermediate
appellate court still has jurisdiction over an appeal, it has the inherent power to
vacate or modify a final judgment or order.
5. Motions to Vacate: Final Orders: Time: Appeal and Error. In the absence of
an applicable rule to the contrary, a motion asking an appellate court to exercise
its inherent power to vacate or modify a final judgment or order does not toll the
time for taking an appeal.
6. Appeal and Error. Overruling precedent is justified when the purpose is to
eliminate inconsistency.
7. ____. Remaining true to an intrinsically sounder doctrine better serves the values
of stare decisis than following a more recently decided case inconsistent with the
decisions that came before it.