State v. Gorup

appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the
defendant’s demeanor and attitude and all the facts and circum-
stances surrounding the defendant’s life.56
Having reviewed the trial record and the presentence inves-
tigation report, we find no evidence that the court imposed
excessive sentences. The court explained that imprisonment
was necessary for the protection of the public because the risk
was substantial that during any period of probation, Casillas
would engage in additional criminal conduct. This was not an
unreasonable conclusion given the extent of Casillas’ intoxi-
cation and the fact that this was his third offense. The court
further stated that lesser sentences would depreciate the seri-
ousness of Casillas’ crimes and promote disrespect for the law.
We find no error.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
trial court.
A ffirmed.
56 Id.
StAte of NebrASkA, Appellee , v.
terreNce k. G orup, AppellANt.
782 N.W.2d 16
Filed May 14, 2010. 	No. S-09-086.
1. Search and Seizure: Police Officers and Sheriffs: Evidence. When an illegal
search precedes a consent to search, law enforcement officers must have obtained
the consent through means sufficiently distinguishable from the illegal search to
be considered an independent act of free will. If the consent to search was not
sufficiently attenuated, it is invalid as an exploitation of the prior illegal act and
a court must exclude both the consent and the evidence found as a result of that
consent as fruit of the poisonous tree.
2. Constitutional Law: Search and Seizure: Police Officers and Sheriffs. When a
consensual search is preceded by a Fourth Amendment violation, the prosecution
must prove two things: (1) the consent was voluntary; and (2) the police obtained
the statement through means sufficiently distinguishable to be purged of the pri-
mary taint of that illegality.
STATe v. gOrUp 	841
Cite as 279 Neb. 841
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

3. Constitutional Law: Search and Seizure. even if a consent to search is volun-
tary, a court must consider the evidence’s admissibility in the light of the Fourth
Amendment’s distinct policies and interests.
4. 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. It reviews the trial court’s findings of historical facts for clear
error. But whether those facts trigger or violate Fourth Amendment protections is
a question of law that it reviews independently of the trial court’s determination.
5. Constitutional Law: Search and Seizure: Appeal and Error. In determining
whether the exclusionary rule applies, an appellate court is concerned not only
with the Fourth Amendment’s privacy interests, but also with deterrence and judi-
cial integrity.
6. Constitutional Law: Evidence: Appeal and Error. When the State seeks to
submit evidence as sufficiently attenuated from a previous Fourth Amendment
violation, an appellate court will review the trial court’s findings of historical
facts for clear error but review de novo the court’s ultimate attenuation determina-
tion based on those facts.
7. Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless
searches and seizures are per se unreasonable under the Fourth Amendment, sub-
ject only to a few specifically established and well-delineated exceptions, which
must be strictly confined by their justifications.
8. Warrantless Searches. The warrantless search exceptions recognized by the
Nebraska Supreme Court include: (1) searches undertaken with consent or
with probable cause, (2) searches under exigent circumstances, (3) inventory
searches, (4) searches of evidence in plain view, and (5) searches incident to a
valid arrest.
9. Constitutional Law: Police Officers and Sheriffs: Confessions. Attenuation
analysis assumes that a statement is voluntary under the Fifth Amendment and
asks whether the connection between the illegal police conduct and the statement
nevertheless requires suppression to deter Fourth Amendment violations.
10. Constitutional Law: Search and Seizure. There are three relevant factors for
determining whether a consent to search is sufficiently attenuated from a previ-
ous Fourth Amendment violation: (1) the temporal proximity between the illegal
action and the consent to search, (2) the presence of intervening circumstances,
and (3) the purpose and flagrancy of the official misconduct.
11. ____: ____. each attenuation factor should be determined separately and then
weighed together.
12. Search and Seizure: Police Officers and Sheriffs. Consent to search given in
very close temporal proximity to the official illegality is often a mere submission
or resignation to police authority and not necessarily an act of free will.
13. Search and Seizure. Dissipation of the taint resulting from an illegal entry ordi-
narily involves showing that there was some significant intervening time, space,
or event.
14. Search and Seizure: Evidence. If only a short period of time has passed, a court
is more likely to consider the consent to search as a poisonous fruit of the ille-
gal act.
842 	279 NeBrASkA repOrTS

15. Search and Seizure: Police Officers and Sheriffs: Evidence: Motor Vehicles.
even when suspects do not observe law enforcement officers search for or dis-
cover contraband, their subsequent consent to search can be tainted when they
observed the officers illegally enter their residence or vehicle and would have
reasonably concluded that refusing consent was pointless because the officers had
already discovered the contraband.
16. Constitutional Law: Search and Seizure: Police Officers and Sheriffs. Absent
any other intervening circumstance, an officer’s advisement, given shortly after
a Fourth Amendment violation, that a suspect may refuse consent to a search
does not weigh against exclusion, particularly when the other factors strongly
favor exclusion.
17. Search and Seizure: Police Officers and Sheriffs. The purpose and flagrancy
of the official misconduct is the most important attenuation factor because it is
directly tied to the exclusionary rule’s purpose—deterring police misconduct.
18. ____: ____. purposeful and flagrant conduct can be found when (1) the impropri-
ety of the official’s misconduct was obvious or the official knew, at the time, that
his conduct was likely unconstitutional but engaged in it nevertheless; and (2) the
misconduct was investigatory in design and purpose and executed in the hope that
something might turn up.
19. Constitutional Law: Police Officers and Sheriffs. even if law enforcement
officers do not subjectively know that their conduct is illegal, they are also
chargeable with knowing when their conduct is an obvious violation of the Fourth
Amendment under an objective standard of reasonableness.
20. Search and Seizure: Warrantless Searches. In evaluating the reasonableness
of a search or seizure without a warrant, it is imperative that the facts be judged
against an objective standard.
21. Constitutional Law: Warrantless Searches: Police Officers and Sheriffs.
grounding the exceptions to the warrant requirement in objective reasonableness
retains the value of the exclusionary rule as an incentive for members of the law
enforcement profession as a whole to conduct themselves in accord with the
Fourth Amendment.
22. Constitutional Law: Police Officers and Sheriffs: Appeal and Error. Avoiding
varied results and setting clear precedent for law enforcement officers to follow
are the reasons for de novo review in Fourth Amendment cases.
23. Constitutional Law: Warrantless Searches: Police Officers and Sheriffs.
Investigatory shortcuts cannot justify Fourth Amendment violations.
24. Constitutional Law: Evidence: Appeal and Error. An appellate court will not
uphold the admission of evidence that encourages Fourth Amendment violations.
Appeal from the District Court for Sarpy County: dAvid k.
A rterburN, Judge. reversed and remanded for a new trial.
Ann C. Addison-Wageman for appellant.
Jon Bruning, Attorney general, and george r. Love for
appellee.
STATe v. gOrUp 	843
Cite as 279 Neb. 841

H eAvicAN, 	c.J., 	WriGHt, 	coNNolly, 	G errArd, 	StepHAN,
mccormAck, and miller-lermAN, JJ.
coNNolly, J.
SUMMArY
This is Terrence k. gorup’s second appeal from his convic-
tion and sentence for possession of a controlled substance,
methamphetamine. In State v. Gorup (Gorup I),1 gorup argued
that the court erred in failing to suppress evidence because
his consent was an exploitation of a prior illegal search. We
vacated his conviction and sentence and remanded the cause
for the court to consider two issues: (1) whether the search-
incident-to-arrest exception to the warrant requirement applied;
and (2) whether gorup’s consent was tainted by a prior ille-
gal search.
Following remand, the court heard additional evidence. It
concluded that the initial search of gorup’s apartment was
illegal but that gorup’s consent was not an exploitation of a
prior illegality.
We reverse, and remand for a new trial. We conclude that
gorup’s consent was not sufficiently attenuated from the pur-
ported search incident to arrest to dissipate the taint of the ille-
gal search. Because his consent to search was the fruit of the
poisonous tree, the court erred in failing to exclude evidence
seized under his consent.
BACkgrOUND
In Gorup I, we stated the underlying facts as follows:
In July 2006, the Bellevue police Department con-
ducted an investigation of gorup, who was suspected of
dealing narcotics from his apartment. When it was dis-
covered that gorup had a warrant outstanding for failure
to appear on a previous drug violation, two detectives
formulated a plan to go to gorup’s apartment and conduct
a “knock-and-talk investigation” with gorup concerning
suspected drug trafficking. Their objective was to obtain
gorup’s consent to search his apartment.
1 State v. Gorup, 275 Neb. 280, 745 N.W.2d 912 (2008).
844 	279 NeBrASkA repOrTS

On July 31, 2006, the detectives arrived at gorup’s
apartment 	in 	an 	unmarked 	police 	vehicle. 	As 	they
approached the apartment, a male was seen leaving. When
asked if gorup was home, the man replied in the affirm-
ative. The man returned to the apartment, opened the
door, and informed gorup that someone was there to see
him. gorup appeared and began to exit the apartment. As
he approached the threshold of the doorway, a detective
informed gorup that he was under arrest. At that point,
gorup, who was standing directly outside his apartment
door, was placed in handcuffs. He was not transported
from the scene immediately because a marked police car
was not available.
While standing at the door, a detective noticed a person
sitting on a couch inside the apartment. He also observed
some blade-edged weapons. gorup informed the detec-
tives that a couple of people were in the apartment. After
waiting for a uniformed officer to arrive, the detectives
performed what they described as a “protective sweep”
of the apartment. The individuals in the apartment were
escorted to the living room. A detective then performed
what he described as a “search incident to arrest.” In
doing so, he searched a “small black zippered-type case”
located on a table just inside the doorway, 4 or 5 feet
away from gorup. The case was not zipped shut, and
inside, the detective saw “a couple [of] bags” that he
recognized from his “training and experience as [being]
methamphetamine.” He left the bags inside the case on
the table.
During this time, gorup remained in the hallway with
his hands cuffed behind his back. It is unknown whether
gorup could observe the detectives’ activity. One detec-
tive testified that a wall probably would have obstructed
gorup’s view of the detectives’ activity inside the apart-
ment. Though not specified in the record, the parties
stated at oral argument that this activity continued for
about 30 minutes.
After this search, one of the detectives directed the
uniformed officer to escort gorup to the marked police
car. The same detective followed gorup to the car, and
STATe v. gOrUp 	845
Cite as 279 Neb. 841

while gorup was seated in the police car, the detective
requested gorup’s consent to search the apartment. gorup
was informed several times that he did not have to pro-
vide his consent. The detective testified that gorup gave
his consent to a search of the apartment.
This subsequent search revealed several items of con-
traband in addition to the bags of methamphetamine in
the black zippered case. After the search, the detective
returned to the police car and read gorup his Miranda
rights. The detective told gorup about the black zippered
case. gorup admitted that he knew of the case but denied
that it was his. The detective stated gorup told him that
gorup had been selling methamphetamine to raise money
so he could move from his apartment.
Before trial, gorup moved to suppress all items of
physical evidence seized from his apartment. The district
court overruled the motion. The court found that the ini-
tial warrantless search of gorup’s apartment was not law-
ful as a protective sweep and might have been unlawful
as a search incident to arrest. It found that the subsequent
consent to the search of the apartment was voluntary and
therefore served as an adequate basis for the seizure of
the “hygiene case” and the contents thereof. It found that
although gorup knew that the detectives had entered his
apartment, he did not know whether incriminating evi-
dence had been found when he gave his consent to search
the apartment.
After a stipulated bench trial, the district court con-
victed gorup of possession of a controlled substance,
methamphetamine, and sentenced him to a term of 1 to
3 years’ imprisonment, granting him credit for 249 days
spent in jail awaiting disposition of this charge.2
In Gorup I, gorup assigned that the court erred in failing
to suppress evidence found during the detectives’ search of his
apartment because the detectives had already illegally searched
his apartment before he consented. He argued that the prior
illegality tainted his consent for the detectives to search again.
2 Id. at 282-84, 745 N.W.2d at 914-15.
846 	279 NeBrASkA repOrTS

We concluded that the court failed to determine whether the
search was valid as a search incident to arrest and whether
the detectives obtained gorup’s consent by exploiting an ille-
gal search.
We explained that when a person gives law enforcement
officers consent to search following their illegal entry, a court
should admit the evidence only if the consent meets two condi-
tions: (1) the consent was voluntary; and (2) it was not obtained
through an exploitation of the illegal entry. We recognized that
the court found gorup’s consent was voluntary because the
detectives had advised gorup that he could refuse consent and
had not confronted him with the evidence they had uncovered.
But we concluded that the court failed to consider the appropri-
ate factors for determining whether gorup’s consent to search
was an exploitation of an illegal entry.
We vacated gorup’s conviction and sentence and remanded
the cause for the court to consider two issues: (1) whether the
search-incident-to-arrest exception to the warrant requirement
applied; and (2) if not, whether gorup’s consent was tainted
by the illegal search and must be excluded as the “fruit of the
poisonous tree.” We also set out specific factors for the court to
consider in determining whether gorup’s consent was purged
of the taint of an illegal search.
A dditioNAl evideNce oN remANd
Two detectives, Zeb Simones and John Stuck, who investi-
gated drug crimes for the Bellevue police Department, arrested
gorup. Simones was the only witness to testify at the original
suppression hearing. At the second suppression hearing after
remand, the court received Stuck’s deposition.
Both detectives testified that they immediately handcuffed
gorup after he identified himself. Stuck testified that they first
asked gorup to step outside and that Simones entered the apart-
ment while Stuck was handcuffing gorup. Stuck stated that he
believed at this time there was a valid felony arrest warrant for
gorup. The record fails to show an arrest warrant. Stuck also
knew that another police officer had gone to gorup’s apartment
about 2 weeks earlier and asked gorup for consent to search
his apartment. Stuck knew that gorup had refused to give that
officer consent to search.
STATe v. gOrUp 	847
Cite as 279 Neb. 841

Stuck testified that when he handcuffed gorup, he was out-
side the apartment door in the hallway. Stuck stated that he was
accompanied by a uniformed officer, who was standing directly
in front of gorup and had a patrol car parked just outside the
apartment building. He testified that about 5 minutes after
Simones found the methamphetamine in the black bag, Stuck
and the officer placed gorup in the patrol car. Stuck stated
that as they were taking gorup outside the apartment build-
ing, Simones showed Stuck the contents of the black bag but
that gorup was far enough away that he could not have seen
the bag.
On cross-examination, however, Stuck stated that it was
probably closer to 1 to 2 minutes from the time he handcuffed
gorup until he and the officer placed gorup into the patrol car.
He stated that the protective sweep search took 1 to 2 minutes
and that the search incident to arrest took 1 minute. Stuck did
not state that the detectives had to wait for a uniformed officer
to arrive in a patrol car before they could transport gorup.
Stuck also explained where gorup was standing while
Simones 	conducted 	the 	“search 	incident 	to 	arrest” 	inside
gorup’s apartment. He testified that during this search, gorup
stood handcuffed just outside the door, with the door to gorup’s
immediate left. He stated that Simones found the black zip-
pered bag on a table a little over an arm’s length from the door.
And he said that gorup was a little in front of the doorjamb
and would have needed to lean backward to see inside the
apartment. He said that gorup did not do this.
diStrict court’S order
[1] We pause to explain why our remand in Gorup I required
the court to consider whether it must exclude the evidence the
detectives obtained during their second search under gorup’s
consent. When an illegal search precedes a consent to search,
law enforcement officers must have obtained the consent
through means sufficiently distinguishable from the illegal
search to be considered an independent act of free will.3 If the
3 See Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. ed. 2d 416
(1975).
848 	279 NeBrASkA repOrTS

consent to search was not sufficiently attenuated, it is invalid as
an exploitation of the prior illegal act and a court must exclude
both the consent and the evidence found as a result of that con-
sent as fruit of the poisonous tree.4
On remand, the district court adopted its findings from the
first suppression order. The court concluded that the search
of the black bag was not a valid search incident to arrest and
that no exigent circumstances justified the search of the bag. It
then analyzed the three attenuation factors that we set forth in
Gorup I and concluded that the evidence was admissible.
Considering the temporal proximity factor, the court found
that the protective sweep and the search incident to arrest, com-
bined, took about 2 minutes. It further found that the time from
the illegal entry to gorup’s consent was, at most, 10 minutes,
and that this factor favored exclusion.
regarding intervening circumstances, the court found that
Simones had told gorup on several occasions that gorup
could refuse consent. It concluded that this factor weighed
against exclusion.
The court examined the purpose and flagrancy of the detec-
tives’ misconduct and concluded that this factor was neutral.
The court concluded that it “cannot find that the search inci-
dent to arrest was an obvious violation of [gorup’s] consti-
tutional rights.” It further stated that it “cannot find that [the
detectives] recognized that such an intrusion was, on its face,
unconstitutional.” Yet, it also found that the detectives’ purpose
was “investigatory in design and that the search was executed
in the hope that contraband would be found.”
But the court concluded that it could consider other factors
because of the unique facts of the case. It found that although
gorup likely knew an officer had entered his apartment, gorup
had not observed Simones’ discovery of the bag or its contents.
And the detectives had not confronted him with the evidence.
The court concluded that the evidence established that gorup
“was not aware that the contraband was discovered”:
At best, [gorup] knew that an officer or officers were
inside 	his 	apartment 	for 	a 	period 	of 	approximately
4 See, e.g., U.S. v. Valentine, 539 F.3d 88 (2d Cir. 2008).
STATe v. gOrUp 	849
Cite as 279 Neb. 841

two minutes. Following that brief search, consent was
requested after [gorup] was thoroughly informed of
his right to refuse consent. This unique factor must be
considered in conjunction with the foregoing factors as
to whether the consent was the fruit of the prior illegal
search. Although a close case, based on the totality of
the circumstances, including the factors prescribed by
the Nebraska Supreme Court in its opinion, this Court
finds that gorup’s consent was not an exploitation of
the prior search and, therefore, not “fruit of the poison-
ous tree.”
(emphasis supplied.) Accordingly, the court overruled gorup’s
motion to suppress. gorup waived his right to a jury trial. After
a stipulated bench trial, the court found gorup guilty of the
charged offense and sentenced him to 1 to 3 years’ imprison-
ment, with credit for time served.
ASSIgNMeNTS OF errOr
gorup assigns that the court erred in overruling his motion
to suppress and in admitting evidence at trial that the police
obtained through an unreasonable search and seizure.
STANDArD OF reVIeW
As noted, in Gorup I,5 we set forth a two-part inquiry for
determining whether evidence is admissible based on a sus-
pect’s consent to search following an illegal entry. We stated:
Where a search following an illegal entry is justified
based on alleged consent, a court must determine whether
that consent was voluntary, and in addition, the court must
determine whether the illegal entry tainted that consent.[6]
These two questions are not the same, and “‘consequently
the evidence obtained by the purported consent should
be held admissible only if it is determined that the con-
sent was both voluntary and not an exploitation of the
prior illegality.’”[7] Therefore, in analyzing this consent to
5 See Gorup I, supra note 1.
6 U.S. v. Robeles-Ortega, 348 F.3d 679 (7th Cir. 2003).
7 State v. Lane, 726 N.W.2d 371 (Iowa 2007).
850 	279 NeBrASkA repOrTS

search, there are two issues presented: (1) the voluntari-
ness of the consent under the totality of the circumstances
and (2) exploitation under the fruit of the poisonous
tree doctrine.8
[2] Federal courts also apply a two-part inquiry. It is true
that courts have sometimes considered whether a consent to
search was voluntary in their attenuation analysis.9 But con-
sistent with the U.S. Supreme Court’s analysis in Wong Sun v.
United States10 and Brown v. Illinois,11 federal courts generally
hold that when a consensual search is preceded by a Fourth
Amendment violation, the prosecution must prove two things:
(1) the consent was voluntary; and (2) the police obtained
the statement through means sufficiently distinguishable to be
purged of the primary taint of that illegality.12
[3] In Brown, the U.S. Supreme Court stated that even if
a statement was voluntary under the Fifth Amendment, the
Fourth Amendment issue remains. So even if a consent to
search is voluntary, a court must consider the evidence’s admis-
sibility in the light of the Fourth Amendment’s distinct policies
and interests.13
[4] We have recently held that in reviewing a trial court’s
ruling on a motion to suppress based on a claimed violation of
the Fourth Amendment, we will apply a two-part standard of
review. We review the trial court’s findings of historical facts
for clear error. But whether those facts trigger or violate Fourth
8 Gorup I, supra note 1, 275 Neb. at 285, 745 N.W.2d at 916.
9 See, e.g., U.S. v. Valencia, 913 F.2d 378 (7th Cir. 1990).
10 Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. ed. 2d 441
(1963), quoting Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84
L. ed. 307 (1939).
11 See Brown, supra note 3. See, also, 4 Wayne r. LaFave, Search and
Seizure, a Treatise on the Fourth Amendment § 8.2(d) (4th ed. 2004).
12 U.S. v. Hernandez, 279 F.3d 302 (5th Cir. 2002); Robeles-Ortega, supra
note 6; U.S. v. Barnum, 564 F.3d 964 (8th Cir. 2009); U.S. v. Melendez-
Garcia, 28 F.3d 1046 (10th Cir. 1994); U.S. v. Santa, 236 F.3d 662 (11th
Cir. 2000). See, also, 4 LaFave, supra note 11.
13 See Brown, supra note 3.
STATe v. gOrUp 	851
Cite as 279 Neb. 841

Amendment protections is a question of law that we review
independently of the trial court’s determination.14
[5,6] More specifically, we have recently applied the same
two-part standard to review whether a consent to search was
voluntary.15 In that case, we were not discussing whether a
consent to search was voluntary under the Fifth Amendment,16
but whether the Fourth Amendment required the evidence’s
exclusion 	to 	protect 	its 	prohibition 	against 	unreasonable
searches and seizures. In determining whether the exclusion-
ary rule applies, we are concerned not only with the Fourth
Amendment’s privacy interests, but also with deterrence and
judicial integrity.17 In the light of our more recent holdings,
we conclude that the two-part standard of review should apply
to this Fourth Amendment issue also. Accordingly, when the
State seeks to submit evidence as sufficiently attenuated from a
previous Fourth Amendment violation, we will review the trial
court’s findings of historical facts for clear error but review de
novo the court’s ultimate attenuation determination based on
those facts.18
ANALYSIS
[7,8] Warrantless searches and seizures are per se unrea-
sonable under the Fourth Amendment, subject only to a few
specifically established and well-delineated exceptions, which
must be strictly confined by their justifications.19 The war-
rantless search exceptions recognized by this court include:
(1) searches undertaken with consent or with probable cause,
14 See, State v. Scheffert, ante p. 479, 778 N.W.2d 733 (2010); State v.
Hedgcock, 277 Neb. 805, 765 N.W.2d 469 (2009).
15 Hedgcock, supra note 14.
16 Compare State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).
17 See Robeles-Ortega, supra note 6.
18 See, e.g., U.S. v. Carter, 573 F.3d 418 (7th Cir. 2009); U.S. v. Herrera-
Gonzalez, 474 F.3d 1105 (8th Cir. 2007); U.S. v. Washington, 387 F.3d
1060 (9th Cir. 2004); People v. Wilberton, 348 Ill. App. 3d 82, 809 N.e.2d
745, 284 Ill. Dec. 179 (2004); Turner v. State, 12 So. 3d 1 (Miss. App.
2008).
19 State v. Wenke, 276 Neb. 901, 758 N.W.2d 405 (2008).
852 	279 NeBrASkA repOrTS

(2) searches under exigent circumstances, (3) inventory searches,
(4) searches of evidence in plain view, and (5) searches inci-
dent to a valid arrest.20
On remand, we directed the court to consider only two
exceptions: the search-incident-to-arrest exception and the con-
sent exception. We directed the court to determine whether the
consent was an exploitation of the previous illegal search under
the factors we set out. The court concluded that the search-
incident-to-arrest exception did not apply. The only issue pre-
sented by this appeal is whether gorup’s consent to search an
area was valid after the police had conducted an illegal search
of the same area.
[9] The court again found that gorup’s consent to search was
voluntary. But our mandate did not require the court to recon-
sider whether the consent was voluntary. Thus, we implicitly
accepted its determination in Gorup I that the consent was vol-
untary. “even if given voluntarily, however, consent does not
validate a search that is . . . not an independent act of free will
sufficiently attenuated to break the chain of events between
the Fourth Amendment violation and the consent.”21 That is,
“[a]ttenuation analysis assumes that the statement is ‘volun-
tary’ [under the Fifth Amendment] and asks whether the con-
nection between the illegal police conduct and the statement
nevertheless requires suppression to deter Fourth Amendment
violations.”22
[10] To show that the taint of a previous Fourth Amendment
violation was dissipated, the State must show a sufficient
attenuation, or break in the causal connection, between the
illegal conduct and the consent to search.23 As we indicated
in Gorup I, there are three relevant factors for determining
whether a consent to search is sufficiently attenuated from a
previous Fourth Amendment violation: (1) the temporal prox-
imity between the illegal action and the consent to search,
20 Gorup I, supra note 1.
21 See, e.g., U.S. v. Jaquez, 421 F.3d 338, 342 (5th Cir. 2005).
22 New York v. Harris, 495 U.S. 14, 23, 110 S. Ct. 1640, 109 L. ed. 2d 13
(1990).
23 See, e.g., Jaquez, supra note 21.
STATe v. gOrUp 	853
Cite as 279 Neb. 841

(2) the presence of intervening circumstances, and (3) the pur-
pose and flagrancy of the official misconduct.
temporAl proximity WeiGHed iN fAvor of SuppreSSioN
In the court’s suppression order, it found that no more than
10 minutes had elapsed from the time of the illegal entry until
gorup consented to a search of his apartment. It concluded that
this factor favored exclusion.
The State argues that even this short of a period does not
compel the conclusion that the attenuation was insufficient
if other circumstances show that the consent was sufficiently
an act of free will. relying on U.S. v. Herrera-Gonzalez,24 it
argues that two relevant circumstances mitigated the short time
between the illegal search and gorup’s consent to search: (1)
gorup did not know that the detectives had searched the black
bag and found drugs; and (2) Simones informed gorup of his
right to refuse consent to search.
[11] In Herrera-Gonzalez, a case involving an illegal traf-
fic stop, the eighth Circuit stated that it had “found consent
given a short time after the [traffic] stop sufficient to purge
the taint if other circumstances indicate the consent was suffi-
ciently an act of free will.”25 There, the other circumstance was
the officer’s inability to verify the defendant’s license plates
or driver’s license during the stop. This fact was a sufficient
intervening circumstance that justified the officer’s request to
search and thus separated the defendant’s consent from the
delayed traffic stop, even if illegal. In other words, in some
cases, the intervening circumstances factor may outweigh the
temporal proximity factor. Whether there were intervening
circumstances, however, is a separate issue from whether a
suspect gave consent shortly after an illegal act. Assuming
that there were valid intervening circumstances, permitting the
State to play the same card twice—by considering the same
facts as intervening circumstances and as mitigating circum-
stances under the temporal proximity factor—would always
tip the weighing of the attenuation factors in its favor. rather,
24 See Herrera-Gonzalez, supra note 18.
25 Id. at 1112 (emphasis supplied).
854 	279 NeBrASkA repOrTS

each attenuation factor should be determined separately and
then weighed together.
[12-14] “[C]onsent [to search] given in very close temporal
proximity to the official illegality is often a mere submission
or resignation to police authority and not necessarily an act of
free will.”26 “Dissipation of the taint resulting from an illegal
entry, ‘ordinarily involves showing that there was some signifi-
cant intervening time, space, or event.’”27 So, “‘[i]f only a short
period of time has passed, a court is more likely to consider the
consent [to search] as a “poisonous fruit” of the illegal act.’”28
We conclude that the court correctly determined that this factor
weighed in favor of exclusion.
iNterveNiNG circumStANceS
The court concluded that the intervening circumstances
factor weighed against exclusion. It apparently considered
gorup’s lack of actual knowledge that Simones had found the
contraband to be a unique, additional factor. Also, it relied on
Simones’ later advisements that gorup could refuse consent for
a search as a sufficient intervening circumstance.
The State argues that these facts are intervening circum-
stances that distinguish this case from our decision in State v.
Abdouch.29 We disagree. By relying on these consent advise-
ments and gorup’s lack of actual knowledge as a “unique
factor,” the court has incorrectly placed its thumb on the
scale against exclusion. It is hardly unique that officers who
have illegally entered a suspect’s residence in his presence
would not need to show him the contraband they found for
the suspect to conclude that refusing to consent to search
was pointless.
In Abdouch, sheriff’s officers and relatives of a deceased
man with whom the defendant had resided before his death
unlawfully searched the defendant’s residence while she was
gone. The search uncovered evidence of marijuana cultivation.
26 State v. Cates, 202 Conn. 615, 622, 522 A.2d 788, 792 (1987).
27 U.S. v. Buchanan, 904 F.2d 349, 356 (6th Cir. 1990) (citation omitted).
28 U.S. v. Lopez-Garcia, 565 F.3d 1306, 1315 (11th Cir. 2009).
29 State v. Abdouch, 230 Neb. 929, 434 N.W.2d 317 (1989).
STATe v. gOrUp 	855
Cite as 279 Neb. 841

When the defendant returned, officers lawfully arrested her on
a driving under the influence warrant and took her to jail. She
did not witness the illegal entry. But 5 hours later, while in
custody, narcotics officers confronted the defendant with the
contraband and other evidence found at her residence, and she
admitted her involvement in the marijuana production.
The district court suppressed all evidence found by the
officers without a warrant, which action the State did not con-
test. But the court admitted the evidence found by the family
members and admitted the defendant’s custodial statements.
We reversed. In concluding that Miranda warnings were insuf-
ficient to break the causal chain between the illegal search and
the confession statement, we quoted extensively from professor
LaFave’s treatise:
“In the typical case in which the defendant was pres-
ent when incriminating evidence was found in an illegal
search or in which the defendant was confronted by the
police with evidence they had illegally seized, it is appar-
ent that there has been an ‘exploitation of that illegal-
ity’ when the police subsequently question the defendant
about that evidence or the crime to which it relates. This
is because ‘the realization that the “cat is out of the
bag” plays a significant role in encouraging the suspect
to speak.’
“Because this is the case, the more fine-tuned assess-
ment which 	the 	Supreme 	Court 	mandated in 	Brown
v. Illinois for determination of when a confession is
the fruit of an illegal arrest, is ordinarily unnecessary
when the ‘poisonous tree’ is instead an illegal search. .
. . ‘Confronting a suspect with illegally seized evidence
tends to induce a confession by demonstrating the futil-
ity of remaining silent. On the other hand, the custodial
environment resulting from a false arrest is merely one
factor to be considered in determining whether a confes-
sion is inadmissible.’ . . .
“. . . [I]t is crystal clear that giving the defendant the
Miranda warnings will not break the causal chain between
an illegal search and a subsequent confession. The Court
in Brown found the warnings alone insufficient when the
856 	279 NeBrASkA repOrTS

primary illegality was an illegal arrest, and the warnings
have even less impact when the prior Fourth Amendment
violation was a fruitful illegal search.”30
LaFave concludes that the same reasoning applies to consent
searches after an illegal search. regarding the coercive effect
of knowing that an illegal search has already taken place,
LaFave has stated:
Unquestionably, if evidence is uncovered in an illegal
search and the defendant is “face to face with the incrimi-
nating evidence and able to see that the police had firm
control over her home,” a consent to police seizure of that
evidence is not voluntary. The same is true if the police in
the course of an illegal search find certain incriminating
evidence and then obtain the permission of the person in
charge of the place searched to search the balance of that
place. The purported consent given in such circumstances
is nothing more than “submission or resignation to police
authority,” for the individual most likely “erroneously
believed that it was useless to resist.”31
[15] Under these facts, it is irrelevant that Simones did not
confront gorup with the contraband that he had seized or that
gorup did not see the actual search or seizure. He knew that
the detectives had illegally entered his apartment and would
have reasonably inferred that they had searched it. And other
courts have similarly concluded that subsequent consents to
search were tainted when the suspects observed law enforce-
ment officers illegally enter their residence or vehicle without
their consent or a warrant and would have reasonably con-
cluded that refusing consent was pointless because the officers
had already discovered the contraband.32
30 Id. at 945-46, 434 N.W.2d at 327-28, quoting 4 Wayne r. LaFave, Search
and Seizure, a Treatise on the Fourth Amendment § 11.4(c) (2d ed. 1987)
(citation omitted).
31 4 LaFave, supra note 11, § 8.2(d) at 85.
32 See, e.g., U.S. v. Vega, 221 F.3d 789 (5th Cir. 2000); U.S. v. Haynes, 301
F.3d 669 (6th Cir. 2002); U.S. v. Furrow, 229 F.3d 805 (9th Cir. 2000),
overruled on other grounds, U.S. v. Johnson, 256 F.3d 895 (9th Cir.
2001).
STATe v. gOrUp 	857
Cite as 279 Neb. 841

The suspects in these cited cases had not seen the officers
discover or seize incriminating evidence, and the dissent does
not contend otherwise. Instead, the dissent disagrees with our
analysis because in many attenuation cases cited by LaFave,
the suspects had seen law enforcement officers seize the evi-
dence or the officers had told the suspects that they had found
the evidence.33 But that is not the fact pattern here.
Fourth Amendment cases are fact specific. The dissent’s
generalization misses the point. relying on cases in which
the suspects observed officers seize contraband or learned of
the discovery from the officers does not show that the taint of
the illegal action is purged unless those facts are present. The
federal cases we have cited are on target. They illustrate illegal
entry circumstances in which evidence was excluded without
any requirement that the suspect have actual knowledge of the
officers’ discovery or seizure of the evidence. And the dissent
relies on no case with similar facts in which a court held that
the taint of a prior illegality was purged because the defend-
ants did not see the officers seize incriminating evidence
or because they had not been confronted with discovery of
the evidence.
In U.S. v. Furrow,34 one of the cases cited above, officers
went to a cabin where they suspected a teenage party was
underway. Several teenagers, including the cabin owner’s son,
ran off into the woods upon the officers’ approach. After get-
ting the remaining attendees to come out onto the porch, the
officers attempted to obtain a search warrant from the county
prosecuting attorney based on their observation of underage
minors drinking alcohol and their discovery of marijuana in
the possession of one or two of the teenagers. The prosecuting
attorney informed the officers that they did not have sufficient
information for a warrant but suggested that they could conduct
a protective sweep of the residence. Two officers entered the
33 See, U.S. v. Thomas, 955 F.2d 207 (4th Cir. 1992); Norman v. State, 379
So. 2d 643 (Fla. 1980); People v. Clark Memorial Home, 114 Ill. App.
2d 249, 252 N.e.2d 546 (1969); State v. Hoven, 269 N.W.2d 849 (Minn.
1978); State v. Olson, 311 Mont. 270, 55 p.3d 935 (2002).
34 Furrow, supra note 32.
858 	279 NeBrASkA repOrTS

house and found marijuana pipes but no other incriminating
evidence. At this point, the owner’s son returned and consented
to a further search. But it was unclear whether the son could
have seen the officers’ search from where he was previously
hiding or had learned from his friends when he returned that
the officers had been inside the cabin.
In remanding for the trial court to determine whether the son
“was cognizant of the prior illegal entry,”35 the Ninth Circuit
commented on the effect of a suspect’s knowledge of an ille-
gal entry:
In Howard[36] and Suarez,[37] for example, the party who
offered consent to a search had witnessed the illegal entry.
The consent, although perhaps voluntary, was a product of
the antecedent constitutional violation. In such a case, a
person might reasonably think that refusing to consent to
a search of his home when he knows that the police have,
in fact, already conducted a search of his home, would be
a bit like closing the barn door after the horse is out. . . .
If a person was completely unaware of the illegal entry,
his ability to consent would be unimpaired, and the taint
would be effectively purged. A party unaware that the
police might have already seen incriminating evidence
would be in the same posture for considering whether to
consent to a search as a person not previously subject to
an illegal entry. . . .
Thus, . . . if [the owner’s son] knew of the prior search,
his consent may be considered tainted, and evidence
found must be suppressed if [his] consent was a product
of the initial illegal search. If, however, [the son], who
was hiding during the time of the initial search, was
oblivious to the fact of any earlier search at the time he
gave his consent to the second search, then the consent
cannot be considered tainted.38
35 Id. at 815.
36 U.S. v. Howard, 828 F.2d 552 (9th Cir. 1987).
37 U.S. v. Suarez, 902 F.2d 1466 (9th Cir. 1990).
38 Furrow, supra note 32, 229 F.3d at 814 (emphasis supplied).
STATe v. gOrUp 	859
Cite as 279 Neb. 841

But gorup was not oblivious. He was aware of the illegal
entry. Although gorup was validly arrested, while he was
handcuffed outside the door, Simones conducted an illegal
search of his apartment. As gorup stood just outside his door,
Simones was searching just inside the door. It seems incon-
sistent and implausible for the State to argue that gorup had
knowledge of and control over drugs just inside the threshold
but no knowledge that Simones would easily discover the
drugs. even if he could not see Simones discover or seize the
contraband, he would have reasonably believed that Simones
had done so and that refusing to give his consent to search
was pointless. A separation of less than 10 minutes from that
illegality did not dissipate the exploitation inherent in Simones’
request to search.
We conclude that the district court incorrectly relied on the
fact that gorup did not see, and the police did not confront him
with, the evidence Simones discovered during his illegal search
before gorup gave his consent to search again. This was not an
intervening circumstance. Accepting this reasoning would per-
mit officers to validate illegal searches and seizures by simply
never confronting suspects with evidence they have illegally
discovered or seized before obtaining their consent to search
again. Our conclusion is not altered because Simones advised
gorup that he could refuse consent to search.
Both the Seventh Circuit and the Ninth Circuit have rejected
the argument that a signed consent form, which advises sus-
pects of their right to refuse consent, is a sufficient intervening
circumstance to purge the taint of an illegal action when it is
obtained shortly after the illegal action: “This would effectively
eviscerate the exclusionary rule’s goal of deterring police mis-
conduct because it would give officers who recently violated a
suspect’s constitutional rights a chance to grant themselves a
free pass by uttering a few magic words and encourage—rather
than 	discourage—investigatory 	shortcuts.”39 And 	the 	Ninth
Circuit further recognized that permitting such advisements to
purge the taint of the prior illegal search would be contrary to
39 Washington, supra note 18, 387 F.3d at 1074. Accord Robeles-Ortega,
supra note 6.
860 	279 NeBrASkA repOrTS

the U.S. Supreme Court’s rejection of an analogous argument
in Brown v. Illinois.40
[16] In Brown, the Court rejected the government’s argu-
ment that Miranda warnings, standing alone, were per se suf-
ficient to separate the defendant’s subsequent confession from
the taint of his illegal arrest.41 In State v. Abdouch, this court
similarly concluded that Miranda warnings were an insufficient
intervening circumstance to separate a subsequent confession
from the taint of an illegal search.42 It is true that knowledge of
the right to refuse consent is a factor in determining whether a
suspect voluntarily consented to a search.43 And we recognized
that some courts have also considered such advisements as
an intervening circumstance in attenuation determinations.44
But if, under Brown, Miranda warnings, standing alone, are
insufficient to break the causal chain between an illegal search
or seizure and a subsequent confession, we conclude that the
same reasoning should apply to consent advisements. Absent
any other intervening circumstance, an officer’s advisement,
given shortly after a Fourth Amendment violation, that a sus-
pect may refuse consent to a search does not weigh against
exclusion, particularly when the other factors strongly favor
exclusion.45 We conclude that the court erred in conclud-
ing that these facts presented a unique factor that weighed
against exclusion.
purpoSe ANd flAGrANcy of tHe officiAl miScoNduct
The court concluded that this factor was neutral, weighing
neither for nor against exclusion. It found that the detectives’
purpose was “investigatory in design and that the search was
executed in the hope that contraband would be found.” But
it concluded that it could not “find that search incident to
40 See Brown, supra note 3.
41 Id.
42 See Abdouch, supra note 29.
43 See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. ed. 2d
854 (1973).
44 See 4 LaFave, supra note 11 (citing cases).
45 See Robeles-Ortega, supra note 6.
STATe v. gOrUp 	861
Cite as 279 Neb. 841

arrest was an obvious violation of [gorup’s] constitutional
rights.” It further stated that it could not “find that [the detec-
tives] recognized that such an intrusion was, on its face,
unconstitutional.”
The State argues that the detectives, while mistaken in their
belief that their conduct was legal, did not engage in flagrant
misconduct. But the State fails to recognize that flagrant mis-
conduct includes investigatory conduct that results in an obvi-
ous Fourth Amendment violation.
[17] We agree with federal courts that have stated the purpose
and flagrancy of the official misconduct is the most important
attenuation factor because it is directly tied to the exclusionary
rule’s purpose—deterring police misconduct.46 In applying this
factor in Brown, the U.S. Supreme Court stated:
The illegality here . . . had a quality of purposeful-
ness. The impropriety of the arrest was obvious; aware-
ness of that fact was virtually conceded by the two
detectives when they repeatedly acknowledged, in their
testimony, that the purpose of their action was “for
investigation” or for “questioning.” . . . The arrest, both
in design and in execution, was investigatory. The detec-
tives embarked upon this expedition for evidence in the
hope that something might turn up. The manner in which
[the petitioner’s] arrest was effected gives the appear-
ance of having been calculated to cause surprise, fright,
and confusion.47
[18] The eighth Circuit has stated, consistent with the above
quote from Brown, that purposeful and flagrant conduct can be
found when “‘(1) the impropriety of the official’s misconduct
was obvious or the official knew, at the time, that his conduct
was likely unconstitutional but engaged in it nevertheless; and
(2) the misconduct was investigatory in design and purpose
and executed “in the hope that something might turn up.”’”48
46 U.S. v. Reed, 349 F.3d 457 (7th Cir. 2003); U.S. v. Simpson, 439 F.3d 490
(8th Cir. 2006).
47 Brown, supra note 3, 422 U.S. at 605.
48 See Herrera-Gonzalez, supra note 18, 474 F.3d at 1113 (emphasis
supplied).
862 	279 NeBrASkA repOrTS

We agree with this standard. Other courts have also stated that
purposeful and flagrant conduct includes “fishing expeditions”
in the hope that “‘something might turn up.’”49
[19] In this case, the court’s reliance on whether the detec-
tives knew their conduct was illegal missed the mark because
it applied a subjective standard. Obviously, if the detectives
had admitted that they knew the search was illegal, their
misconduct would have been flagrant. But, here, the detec-
tives were never asked whether they subjectively believed the
search was legal. And even if law enforcement officers do not
subjectively know that their conduct is illegal, they are also
chargeable with knowing when their conduct is an obvious
violation of the Fourth Amendment under an objective standard
of reasonableness.50
[20,21] This court has specifically stated that in evaluating
the reasonableness of a search or seizure without a warrant,
“it is imperative that the facts be judged against an objective
standard. Would the facts available to the officer at the moment
of the search or the seizure warrant a man of reasonable cau-
tion in the belief that the action taken was appropriate?”51
grounding the exceptions to the warrant requirement in objec-
tive reasonableness “‘retains the value of the exclusionary
rule as an incentive for [members of] the law enforcement
profession as a whole to conduct themselves in accord with the
Fourth Amendment.’”52
[22] The issue here was whether an objectively reasonable
law enforcement officer would have known that a search of
gorup’s apartment under these circumstances was an obvi-
ous violation of the Fourth Amendment. But the court did not
apply an objective reasonableness standard. And, because of
the extensive case law on this issue, the district court was in
49 See Reed, supra note 46, 349 F.3d at 465. Accord, Washington, supra note
18; U.S. v. McSwain, 29 F.3d 558 (10th Cir. 1994).
50 See, United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. ed. 2d
677 (1984); United States v. Cortez, 449 U.S. 411, 101 S. Ct. 690, 66 L.
ed. 2d 621 (1981).
51 State v. Nichols, 189 Neb. 664, 665, 204 N.W.2d 376, 377-78 (1973).
52 Leon, supra note 50, 468 U.S. at 919 n.20.
STATe v. gOrUp 	863
Cite as 279 Neb. 841

no better position to determine this issue than is this court. We
owe no deference to its conclusion.53 “Objective reasonable-
ness” cannot turn on different trial judges’ individual deter-
minations about whether the facts are sufficient or insufficient
to justify a law enforcement officer’s conduct. Avoiding such
varied results and setting clear precedent for law enforce-
ment officers to follow are the reasons for de novo review
in Fourth Amendment cases.54 So it is our duty to main-
tain coherent Fourth Amendment principles and determine
whether the detectives’ actions were objectively reasonable
or unreasonable.
Our adherence to solid legal moorings requires that we
reverse the trial court’s ruling. For 40 years, U.S. Supreme
Court case law has prohibited this type of search. In 1969, the
U.S. Supreme Court held in Chimel v. California55 that a search
incident to arrest is limited to the arrestee’s person and the area
within his or her immediate control. The following year, the
Court specifically held that a warrantless search of a house was
invalid as a search incident to an arrest when the defendant was
arrested on the front steps of his house.56 We applied both of
these decisions in a 1982 case to conclude that a warrantless
search of a house was illegal.57 Many courts have long held that
an arrest must take place within a suspect’s residence to justify
the search of the residence as an incident to the arrest, even in
cases preceding Chimel.58
Under an objective reasonableness standard, it should have
been obvious to the detectives that after they had arrested
53 See Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657, 134 L. ed.
2d 911 (1996).
54 See id.
55 Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. ed. 2d 685
(1969).
56 See Vale v. Louisiana, 399 U.S. 30, 90 S. Ct. 1969, 26 L. ed. 2d 409
(1970).
57 See State v. Weible, 211 Neb. 174, 317 N.W.2d 920 (1982).
58 See, e.g., Kirkpatrick v. Butler, 870 F.2d 276 (5th Cir. 1989); Page v.
United States, 282 F.2d 807 (8th Cir. 1960); United States v. Goad, 426
F.2d 86 (10th Cir. 1970); Annot., 19 A.L.r.3d 727 (1968).
864 	279 NeBrASkA repOrTS

gorup outside the door to his apartment, they were required
to have a search warrant before attempting to conduct a search
within the apartment.
Moreover, the search suggested a quality of purposeful-
ness, which was shown by the detectives’ inconsistent testi-
mony. Simones testified that the narcotics unit officers regu-
larly arrested people with outstanding warrants without having
a uniformed officer or patrol car present. Yet, he also testified
that the detectives did not immediately transport gorup to the
police station house because they were waiting for a uniformed
officer in a patrol car to assist them.
In contrast, Stuck testified that while Simones was entering
the apartment, Stuck and the uniformed officer were handcuff-
ing gorup and that the officer had a patrol car parked just
outside the apartment building. The record does not support a
finding that the officers could not have transported gorup to
the station if that had been their intent. And despite Simones’
statement that they had intended to conduct a knock-and-talk
and gain gorup’s consent to search, both Simones and Stuck
admitted that they did not ask for gorup’s consent to search
before arresting him and conducting a “protective sweep” and
“search incident to arrest.”
Obviously, the detectives did not have probable cause suf-
ficient to support a search warrant at this point, and the State
does not contend otherwise. Most tellingly, Stuck knew that
only 2 weeks earlier, an officer had gone to gorup’s apartment
and asked for his consent to search the apartment and that
gorup had refused to permit a search. This record compels
the conclusion that (1) the detectives intended to conduct a
protective sweep or a search incident to arrest, rather than a
knock-and-talk investigation that had already failed; and (2)
despite the obviousness of the search’s illegality, the detec-
tives exploited their search to obtain gorup’s consent after
the fact.
[23,24] In sum, none of the attenuation factors show that
the causal chain between the detectives’ illegal conduct and
gorup’s consent to search was broken. Further, suppressing
the evidence here would serve the deterrence aim of the
exclusionary rule. Investigatory shortcuts cannot justify Fourth
STATe v. gOrUp 	865
Cite as 279 Neb. 841

Amendment violations.59 We will not uphold the admission
of evidence that encourages Fourth Amendment violations.
To ignore this violation would be setting a low bar for future
police conduct.
CONCLUSION
We conclude that the court erred in failing to determine that
the detectives obtained gorup’s consent to search his apartment
by exploiting their previous illegal search of the same area.
Because the second search was not attenuated from the Fourth
Amendment violation, the court erred in failing to exclude evi-
dence obtained in the search under gorup’s consent as the fruit
of the poisonous tree. Accordingly, we reverse, and remand for
a new trial.
reverSed ANd remANded for A NeW triAl .
59 See, e.g., Brown, supra note 3; Washington, supra note 18.
StepHAN, J., dissenting.
I respectfully dissent. While I agree with the analytical
framework utilized by the majority, application of that frame-
work to the facts of this case leads me to a different result.
The attenuation analysis flows from the following statement
in the seminal case of Wong Sun v. United States1:
We need not hold that all evidence is “fruit of the poison-
ous tree” simply because it would not have come to light
but for the illegal actions of the police. rather, the more
apt question in such a case is “whether, granting estab-
lishment of the primary illegality, the evidence to which
instant objection is made has been come at by exploita-
tion of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.”
Here, the question is whether the detectives exploited their
brief but illegal search of gorup’s apartment in order to obtain
his consent to search. As we noted in our prior opinion,2 to
1 Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. ed.
2d 441 (1963).
2 State v. Gorup, 275 Neb. 280, 745 N.W.2d 912 (2008).
866 	279 NeBrASkA repOrTS

resolve this question, the three-part test identified in Brown
v. Illinois3 should be considered. But we also noted that all
relevant facts should be considered, as the purpose of the
analysis is “to determine whether under all the circumstances
presented, the consent was obtained by exploitation of the prior
illegal search.”4
I agree with the majority’s determination that we review
the district court’s findings of fact for clear error. Here, the
district court found that at the time he gave his consent, gorup
knew only that the detectives had been in his apartment for 2
minutes. The court found that gorup “never saw nor was ever
confronted” with the contraband discovered during that brief
entry and “was not aware” of any discovered contraband prior
to giving his consent to search.
The majority assumes on these facts that gorup consented
only because he realized that resistance was futile. In support
of this assumption, the majority cites professor LaFave’s trea-
tise for the proposition that “knowing that an illegal search has
already taken place” has a coercive effect on a party’s consent
to search.5 But cases cited by LaFave in support of this propo-
sition involve facts very different from those before us here. In
those cases, the person giving the consent was aware of both
the prior illegal search and the incriminating evidence that
search had yielded.
For example, in People v. Clark Memorial Home,6 a repre-
sentative of a service club knew that police officers had entered
the club and had seen illegal bingo equipment materials before
the representative consented to a search which produced ille-
gal slot machines. In U.S. v. Thomas,7 the occupant of a hotel
room knew that officers had entered the room and that they had
3 Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. ed. 2d 416 (1975).
4 State v. Gorup, supra note 2, 275 Neb. at 286, 745 N.W.2d at 917 (empha-
sis supplied).
5 See 4 Wayne r. LaFave, Search and Seizure, a Treatise on the Fourth
Amendment § 8.2(d) (4th ed. 2004).
6 People v. Clark Memorial Home, 114 Ill. App. 2d 249, 252 N.e.2d 546
(1969).
7 U.S. v. Thomas, 955 F.2d 207 (4th Cir. 1992).
STATe v. gOrUp 	867
Cite as 279 Neb. 841

found contraband before he consented to a search of the room
which yielded additional contraband. In Norman v. State,8 the
defendant knew that a sheriff had entered his property and had
seen marijuana stored in the defendant’s barn before the defend-
ant consented to a search of the premises. In State v. Hoven,9
the defendant knew officers had partially searched his vehicle
and found a bag of marijuana before he consented to a search
of the vehicle. In State v. Olson,10 the defendant knew that offi-
cers had already entered her home and found drugs and drug
paraphernalia before she consented to a search of her home.11
In each of these cases, one can logically conclude that because
the individual knew that a prior entry had occurred and that
the entry had disclosed incriminating evidence, the subsequent
consent was “nothing more than ‘submission or resignation to
police authority,’” because “the individual most likely ‘errone-
ously believed that it was useless to resist.’”12
But the facts in this case are different, and as the majority
notes, Fourth Amendment cases are fact specific. The district
court found that all gorup knew prior to giving his consent
was that detectives were inside his apartment for 2 minutes.
There is no evidence that he knew that a search was conducted
during these 2 minutes or, even more importantly, that any
evidence was discovered during these 2 minutes. The record
shows that the incriminating evidence that was ultimately dis-
covered was inside a bag and thus was not in the plain view
of any officer or otherwise readily discoverable. given these
facts, I cannot logically conclude that gorup consented to the
search of his apartment only because he believed it was useless
to resist.
8 Norman v. State, 379 So. 2d 643 (Fla. 1980).
9 State v. Hoven, 269 N.W.2d 849 (Minn. 1978).
10 State v. Olson, 311 Mont. 270, 55 p.3d 935 (2002).
11 See, also, U.S. v. Howard, 828 F.2d 552 (9th Cir. 1987) (occupant of house
observed armed officers search home for 30 minutes prior to consenting to
search); Burton v. State, 204 p.3d 772 (Okla. Crim. App. 2009) (occupant
of house knew officers had entered home and had observed evidence prior
to consenting to search).
12 4 LaFave, supra note 5, § 8.2(d) at 85.
868 	279 NeBrASkA repOrTS

And on these facts, the detective’s repeated advisements
that gorup was not required to consent to the search car-
ries additional significance in that it reinforced the fact that
gorup had real choice. gorup did not testify at the suppres-
sion hearing, and there is nothing in this record from which
I can conclude that at the time those warnings were given,
gorup knew or reasonably could have believed that consent
would be futile because the detectives had already found the
incriminating evidence which had been concealed in the bag
in his apartment. Therefore, I would affirm the judgment of
the district court.
H eAvicAN, C.J., joins in this dissent.
STONACek v. CITY OF LINCOLN 	869
Cite as 279 Neb. 869
troy ANd SHAri StoNAcek , AppelleeS,
v. city of liNcolN, A politicAl
SubdiviSioN, AppellANt.
brAdley e. SHeAff ANd JeNNifer k. SHeAff, AppelleeS,
v. city of liNcolN, A politicAl
SubdiviSioN, AppellANt.
G eorGe briStol ANd lori briStol , AppelleeS,
v. city of liNcolN, A politicAl
SubdiviSioN, AppellANt.
782 N.W.2d 900
Filed May 14, 2010. 	Nos. S-09-230 through S-09-232.
1. Statutes. The meaning of a statute is a question of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
3. Political Subdivisions Tort Claims Act: Appeal and Error. In actions brought
pursuant to the political Subdivisions Tort Claims Act, the factual findings of the
trial court will not be disturbed on appeal unless they are clearly wrong. When
determining the sufficiency of the evidence to sustain the trial court’s judgment,
it must be considered in the light most favorable to the successful party; every
controverted fact must be resolved in favor of such party, and it is entitled to the
benefit of every inference that can be deduced from the evidence.
4. Motions for New Trial: Appeal and Error. A motion for new trial is addressed
to the discretion of the trial court, whose decision will be upheld in the absence
of an abuse of that discretion.