State v. Smith

State of NebraSka , appellee , v.
William e. Smith , appellaNt.
782 N.W.2d 913
Filed May 28, 2010. 	No. S-09-375.
1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court applies a two-part
standard of review. Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error. But whether those facts trigger or violate Fourth
Amendment protections is a question of law that an appellate court reviews inde-
pendently of the trial court’s determination.
2. Constitutional Law: Search and Seizure. To determine whether an individual
has an interest protected by the Fourth Amendment to the U.S. Constitution and
Neb. Const. art. I, § 7, one must determine whether the individual has a legitimate
or justifiable expectation of privacy in the invaded place. Ordinarily, two inquir-
ies are required. First, the individual must have exhibited an actual (subjective)
expectation of privacy, and second, the expectation must be one that society is
prepared to recognize as reasonable.
3. ____: ____. An expectation of privacy is reasonable if it has a source outside of
the Fourth Amendment, either by reference to concepts of real or personal prop-
erty law or to understandings that are recognized and permitted by society.
4. ____: ____. The Fourth Amendment to the U.S. Constitution and article I, § 7, of
the Nebraska Constitution protect individuals against unreasonable searches and
seizures by the government.
5. ____: ____. The constitutional protection against an unreasonable search and
seizure proscribes only governmental action and is inapplicable to a search or
seizure, even an unreasonable one, effected by a private individual not acting as
an agent of the government or with the participation or knowledge of any govern-
mental official.
6. ____: ____. A search is subject to the constitutional safeguard against an unrea-
sonable search if the search is a joint endeavor involving a private person and a
state or government official.
7. Search and Seizure. In determining what is a joint endeavor between a private
person and a government official, it is not essential that the government official
be involved in the endeavor at the very outset.
8. ____. The question whether a search is a private search or a government search
is one that must be answered taking into consideration the totality of the
circumstances.
9. Police Officers and Sheriffs: Public Health and Welfare. A police officer on
“off-duty” status is obligated to preserve the public peace and to protect the lives
and property of the public in general, as police officers are considered to be under
a duty to respond as police officers 24 hours a day.
10. Police Officers and Sheriffs. A police officer may provide security to a com-
mercial establishment while off duty and make arrests or take other authoritative
action in connection therewith.
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www.nebraska.gov/apps-courts-epub/
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11. 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. The warrantless search exceptions
include searches undertaken with consent, searches justified by probable cause,
searches under exigent circumstances, inventory searches, searches of evidence in
plain view, and searches incident to a valid arrest.
12. Warrantless Searches: Search and Seizure: Proof. In the case of a search and
seizure conducted without a warrant, the State has the burden of showing the
applicability of one or more of the exceptions to the warrant requirement.
13. Probable Cause: Words and Phrases. probable cause escapes precise definition
or quantification into percentages because it deals with probabilities and depends
on the totality of the circumstances.
14. ____: ____. probable cause is a flexible, commonsense standard. It merely
requires that the facts available to the officer would warrant a person of reason-
able caution in the belief that certain items may be contraband or stolen property
or useful as evidence of a crime; it does not demand any showing that such a
belief be correct or more likely true than false.
15. Probable Cause: Appeal and Error. Appellate courts determine probable
cause by an objective standard of reasonableness, given the known facts and
circumstances.
16. Police Officers and Sheriffs: Search and Seizure: Warrantless Searches.
Under the “plain feel” doctrine, a law enforcement officer may make a warrant-
less seizure of contraband detected during a lawful pat-down search.
17. Probable Cause. probable cause to search requires that the known facts and cir-
cumstances are sufficient to warrant a person of reasonable prudence in the belief
that contraband or evidence of a crime will be found.
18. Search and Seizure. The legality of a seizure under the “plain feel” doc-
trine depends upon the incriminating character of an object being immediately
apparent.
19. Search and Seizure: Probable Cause. A search or seizure of a person must be
supported by probable cause particularized to that person.
20. ____: ____. The fact that a person belongs to a class which contains some mem-
bers who violate the law does not create probable cause to search that person.
21. Search and Seizure. Once given, consent to search may be withdrawn. Withdrawal
of consent need not be effectuated through particular “magic words,” but an intent
to withdraw consent must be made by unequivocal act or statement.
22. Police Officers and Sheriffs: Search and Seizure. If equivocal, a defendant’s
attempt to withdraw consent is ineffective and police may reasonably continue
their search pursuant to the initial grant of authority.
23. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. The
standard for measuring the scope of a suspect’s consent under the Fourth
Amendment is that of “objective” reasonableness—what would the typical
reasonable person have understood by the exchange between the officer and
the suspect?
24. Police Officers and Sheriffs: Search and Seizure. Conduct withdrawing con-
sent must be an act clearly inconsistent with the apparent consent to search, an
STATe v. SMITh 	919
Cite as 279 Neb. 918

unambiguous statement challenging the officer’s authority to conduct the search,
or some combination of both.
25. Search and Seizure. A consensual search is circumscribed by the extent of the
permission given, as determined by the totality of the circumstances.
26. Police Officers and Sheriffs: Search and Seizure. An officer conducting a con-
sensual search has no authority to command the person being searched to stop
interfering with the search.
Appeal from the District Court for Douglas County: patricia
a. lamberty, Judge. Reversed and remanded for a new trial.
kevin J. Oursland for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
Wright, coNNolly, gerrard, StephaN, mccormack, and
miller-lermaN, JJ.
gerrard, J.
I. NATURe OF CASe
William e. Smith appeals his conviction for possession of
a controlled substance with intent to deliver. Smith argues
that the district court erred in denying his motion to suppress
evidence of illegal drugs that was discovered in his pocket
during a pat-down search outside a nightclub. There are two
issues presented in this appeal: whether the evidence obtained
was the product of a search within the meaning of the Fourth
Amendment and, if so, whether the search was reasonable
under the Fourth Amendment.
II. BACkGROUND
We have examined the record and find no clear error in the
historical factual findings of the district court,1 nor does either
party take issue with the court’s factual findings. The pertinent
historical facts are as follows.
Force protection Services, a private security company owned
and operated by Joseph South, provided security outside the
Manhattan Club (the Club), a dance club in Omaha, Nebraska.
1 See State v. Hedgcock, 277 Neb. 805, 765 N.W.2d 469 (2009).
920 	279 NeBRASkA RepORTS

pursuant to a contract with the Club, Force protection Services
was to conduct a pat-down search of every patron for narcotics
or weapons before they entered the Club. At the entrance of the
Club is a sign stating that patrons are subject to a pat down and
search. It is not uncommon for people in line, who observe the
pat down, to get out of line and go back to their car. In addition
to Force protection Services, supplemental police officers are
present, pursuant to an agreement with the Club.
On the night of the arrest, the Club was featuring the per-
formance of a local diskjockey, and South and Calvin harper,
a uniformed and armed off-duty police officer, were providing
security outside the Club. Smith and his cousin walked up to
the Club’s entrance. After Smith’s cousin was patted down and
permitted entry, he turned to Smith and said, “[S]orry, I forgot
they pat down.” South started to pat down Smith and felt a
bulge in Smith’s left front pocket.
South started to place his hand toward Smith’s pocket and
asked Smith twice what was in his front pocket, but Smith
did not answer. Smith grabbed South’s wrist to prevent South
from reaching into his pocket. South instructed Smith to
keep his hands in the air. South reached for Smith’s pocket
again, and again, Smith pushed South’s hand away. harper
intervened at that point and told Smith to keep his hands in
the air. harper placed his arm under Smith’s wrist, and South
reached into Smith’s pocket. South pulled out three cellophane
bags containing pills that appeared to be “MDMA,” also
known as ecstasy, a Schedule I controlled substance.2 South
handed the bags to harper, who completed the search and
arrested Smith.
The State filed an information charging Smith with posses-
sion of a controlled substance with intent to deliver.3 Smith
filed a motion to suppress alleging that he was unlawfully
searched and arrested in violation of the U.S. and Nebraska
Constitutions. After a hearing, the district court denied Smith’s
motion to suppress, and thereafter, a bench trial based on the
2 See Neb. Rev. Stat. § 28-405(c)(27) (Reissue 2008).
3 See Neb. Rev. Stat. § 28-416 (Reissue 2008).
STATe v. SMITh 	921
Cite as 279 Neb. 918

stipulated facts was held. Smith renewed the objections raised
in his motion to suppress. The district court found Smith
guilty of possession of a controlled substance with intent
to deliver and sentenced him to 3 to 5 years’ imprisonment.
Smith appeals.
III. ASSIGNMeNT OF eRROR
Smith assigns that the district court erred in finding the war-
rantless search was reasonable.
IV. 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.4 Regarding historical
facts, we review the trial court’s findings for clear error.5 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.6
V. ANALYSIS
The Fourth Amendment to the U.S. Constitution and article
I, § 7, of the Nebraska Constitution guarantee against unrea-
sonable search and seizure.7 We note that we have not con-
strued article I, § 7, of the Nebraska Constitution to provide
greater rights than those afforded a defendant by the Fourth
Amendment.8 Smith argues that in this case, the district court
erred in finding that the search was reasonable. Before we
address the reasonableness of the search, however, we must
address whether the search came under the purview of the
Fourth Amendment or article I, § 7. The State claims it
did not.
4 Hedgcock, supra note 1.
5 Id.
6 Id.
7 State v. Bakewell, 273 Neb. 372, 730 N.W.2d 335 (2007).
8 See, State v. Cody, 248 Neb. 683, 539 N.W.2d 18 (1995); State v. Vermuele,
234 Neb. 973, 453 N.W.2d 441 (1990).
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1. Smith WaS Searched WithiN meaNiNg
of fourth ameNdmeNt
The State’s primary argument is that Smith was searched
by South, a private actor, not the government. But as a thresh-
old matter, we first consider the State’s argument that the
Fourth Amendment is not implicated because Smith was not
“searched” or “seized.” We agree with the district court’s con-
clusion that Smith was searched.
[2] To determine whether an individual has an interest pro-
tected by the Fourth Amendment to the U.S. Constitution and
Neb. Const. art. I, § 7, we must determine whether the indi-
vidual has a legitimate or justifiable expectation of privacy in
the invaded place. Ordinarily, two inquiries are required. First,
the individual must have exhibited an actual (subjective) expec-
tation of privacy, and second, the expectation must be one that
society is prepared to recognize as reasonable.9
[3] For reasons that will be explained more fully below with
respect to consent, Smith clearly exhibited an actual expecta-
tion of privacy. The State seems to be arguing that because
Smith knew the Club patted down patrons, his expectation of
privacy was unreasonable. But whether an expectation of pri-
vacy is reasonable does not turn on notice.10 Rather, an expec-
tation of privacy is reasonable if it has a source outside of the
Fourth Amendment, either by reference to concepts of real or
personal property law or to understandings that are recognized
and permitted by society.11
We have little difficulty in concluding that Smith’s expec-
tation that the contents of his pockets were private was rea-
sonable and that the invasion of that privacy was a search.
Generally speaking, courts have implicitly assumed that an
individual has a reasonable expectation of privacy with respect
to those portions of his or her person that are hidden from
9 State v. Lara, 258 Neb. 996, 607 N.W.2d 487 (2000).
10 See Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. ed. 2d 220
(1979).
11 See, Minnesota v. Carter, 525 U.S. 83, 119 S. Ct. 469, 142 L. ed. 2d 373
(1998); Smith, supra note 10; Rakas v. Illinois, 439 U.S. 128, 99 S. Ct.
421, 58 L. ed. 2d 387 (1978).
STATe v. SMITh 	923
Cite as 279 Neb. 918

public view, including hidden recesses in both one’s clothing
and body.12 For example, rummaging through an individual’s
pockets and other inner recesses of one’s clothing constitutes
a Fourth Amendment search of the person.13 Likewise, patting
down an individual’s outer clothing so as to discover hidden
objects therein is also a Fourth Amendment search.14 In this
case, the evidence in question was retrieved from a location
hidden from public view, namely Smith’s pocket. Such a search
is unquestionably a Fourth Amendment search.
2. Search of Smith WaS goverNmeNt Search
[4-6] having concluded that a search took place, we turn
next to whether the search was a government search. The
Fourth Amendment to the U.S. Constitution and article I, § 7,
of the Nebraska Constitution protect individuals against unrea-
sonable searches and seizures by the government.15 The consti-
tutional protection against an unreasonable search and seizure
proscribes only governmental action and is inapplicable to a
search or seizure, even an unreasonable one, effected by a
private individual not acting as an agent of the government
or with the participation or knowledge of any governmental
official.16 But a search is subject to the constitutional safe-
guard against an unreasonable search if the search is a joint
endeavor involving a private person and a state or govern-
ment official.17
[7] In determining what is a joint endeavor between a pri-
vate person and a government official, it is not essential that
the government official be involved in the endeavor at the very
outset.18 In fact, it is “‘immaterial’” whether the government
12 phillip A. hubbart, Making Sense of Search and Seizure Law, a Fourth
Amendment handbook 137 (2005).
13 Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. ed. 2d 917
(1968).
14 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. ed. 2d 889 (1968).
15 See State v. Vermuele, 241 Neb. 923, 492 N.W.2d 24 (1992).
16 State v. Dixon, 237 Neb. 630, 467 N.W.2d 397 (1991).
17 See State v. Abdouch, 230 Neb. 929, 434 N.W.2d 317 (1989).
18 See id.
924 	279 NeBRASkA RepORTS

official originated the idea or joined in it while the search was
in progress.19 It is sufficient that the official “‘was in it before
the object of the search was completely accomplished.’”20 The
government may become party to a search through nothing
more than tacit approval.21 In this case, the State argues that the
search was not a joint endeavor between South and the govern-
ment. essentially, the State asserts that harper’s actions were a
matter of preserving the peace, not a participation in the search
of Smith. The facts lead us to conclude otherwise.
[8-10] The question whether a search is a private search
or a government search is one that must be answered taking
into consideration the totality of the circumstances.22 On the
record before us, it is clear that the search of Smith was a joint
endeavor involving a private person and a state or governmen-
tal official. First, we conclude that harper, although off duty at
the time, was acting as a governmental official in his capacity
as a police officer. A police officer on “off-duty” status is obli-
gated to preserve the public peace and to protect the lives and
property of the public in general.23 police officers are consid-
ered to be under a duty to respond as police officers 24 hours a
day.24 It has been widely held, based both on common law and
statute, that a police officer is not relieved of his or her obliga-
tion to preserve the peace while off duty.25 In Nebraska, it has
19 Id. at 939, 434 N.W.2d at 324, quoting Lustig v. United States, 338 U.S.
74, 69 S. Ct. 1372, 93 L. ed. 1819 (1949).
20 Id.
21 1 Wayne R. LaFave, Search and Seizure, a Treatise on the Fourth
Amendment § 1.8(b) (4th ed. 2004). See, also, Abdouch, supra note 17.
22 Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 109 S. Ct.
1402, 103 L. ed. 2d 639 (1989). See State v. Mata, 266 Neb. 668, 668
N.W.2d 448 (2003), abrogated on other grounds, State v. Rogers, 277 Neb.
37, 760 N.W.2d 35 (2009).
23 Hauser v. Nebraska Police Stds. Adv. Council, 269 Neb. 541, 694 N.W.2d
171 (2005). See, State v. Wilen, 4 Neb. App. 132, 539 N.W.2d 650 (1995);
16A eugene McQuillin, The Law of Municipal Corporations § 45.15 (3d
ed. 2002).
24 Wilen, supra note 23.
25 Id.
STATe v. SMITh 	925
Cite as 279 Neb. 918

long been the case that a police officer may provide security
to a commercial establishment while off duty and make arrests
or take other authoritative action in connection therewith.26
At the time of the search, harper was in full police uniform
and was carrying a firearm. Although harper was off duty and
employed by the Club, he was acting in his official capacity as
a police officer, not as a private citizen.
And the search was a joint endeavor between harper and
South. After South started the pat-down search of Smith and
attempted to reach into Smith’s pocket, harper directed his
attention to the pat down and reminded Smith to keep his hands
in the air. harper also testified that he reached out his arm and
placed his wrist under Smith’s arm in order to keep Smith’s
arm raised. harper placed his wrist under Smith’s arm before
South inserted his hand into Smith’s pocket. harper was clearly
involved in the search before the object of the search was
completely accomplished. It is without question that harper’s
involvement—by directing Smith to hold his hands up and by
placing his arm underneath Smith’s wrist to prevent him from
interfering with South—was more than tacit approval.
Taking all of these circumstances into account, we conclude
that Smith established that the search meets the test for a gov-
ernment search. The totality of the facts shows that harper and
South were engaged in a joint endeavor.
3. Search of Smith WaS Not reaSoNable
[11,12] The remaining question is whether the search was
reasonable. The Fourth Amendment to the U.S. Constitution
and Neb. Const. art. I, § 7, prohibit only unreasonable searches
and seizures.27 These constitutional provisions do not protect
citizens from all governmental intrusion, but only from unrea-
sonable intrusions.28 Warrantless searches and seizures are per
se unreasonable under the Fourth Amendment, subject only to
26 See, e.g., State v. Groves, 219 Neb. 382, 363 N.W.2d 507 (1985); State v.
Munn, 203 Neb. 810, 280 N.W.2d 649 (1979); State v. Williams, 203 Neb.
649, 279 N.W.2d 847 (1979).
27 State v. Roberts, 261 Neb. 403, 623 N.W.2d 298 (2001).
28 Id.
926 	279 NeBRASkA RepORTS

a few specifically established and well-delineated exceptions,
which must be strictly confined by their justifications.29 The
warrantless search exceptions recognized by this court include
searches undertaken with consent, searches justified by prob-
able cause, searches under exigent circumstances, inventory
searches, searches of evidence in plain view, and searches
incident to a valid arrest.30 In the case of a search and seizure
conducted without a warrant, the State has the burden of show-
ing the applicability of one or more of the exceptions to the
warrant requirement.31
(a) There Was No probable Cause to Search Smith
[13-15] In this case, the only warrantless search exceptions
that are potentially applicable are for searches undertaken with
consent or with probable cause. First, we consider whether
there was probable cause for the search. probable cause escapes
precise definition or quantification into percentages because it
deals with probabilities and depends on the totality of the cir-
cumstances.32 probable cause is a flexible, commonsense stan-
dard. It merely requires that the facts available to the officer
would warrant a person of reasonable caution in the belief that
certain items may be contraband or stolen property or useful as
evidence of a crime; it does not demand any showing that such
a belief be correct or more likely true than false.33 We deter-
mine probable cause by an objective standard of reasonable-
ness, given the known facts and circumstances.34
The facts and circumstances here are not sufficient to war-
rant a belief that evidence of a crime would be found in
Smith’s pocket. We note that the search at issue occurred when
South reached into Smith’s pocket—not South’s initial pat
down. Smith argues that even after the pat down, there was no
probable cause to extend the search into Smith’s pocket. We
29 State v. Wenke, 276 Neb. 901, 758 N.W.2d 405 (2008).
30 See State v. Gorup, 275 Neb. 280, 745 N.W.2d 912 (2008).
31 Id.
32 State v. Voichahoske, 271 Neb. 64, 709 N.W.2d 659 (2006).
33 See State v. Keup, 265 Neb. 96, 655 N.W.2d 25 (2003).
34 See Voichahoske, supra note 32.
STATe v. SMITh 	927
Cite as 279 Neb. 918

agree. Under the “plain feel” doctrine, the findings of a law-
ful pat down can establish probable cause to extend the scope
of a search.35 But the legality of the search depends upon the
incriminating character of an object being immediately appar-
ent,36 and in this case, it was not.
[16] In Minnesota v. Dickerson,37 the U.S. Supreme Court
held that an officer may make a warrantless seizure of con-
traband detected during a lawful pat-down search. The Court
reached this conclusion by drawing an analogy to the previ-
ously recognized “plain-view” doctrine, which permits police
officers to seize an object without a warrant if they are law-
fully in a position from which they can view the object, if its
incriminating character is immediately apparent, and if the
officers have a lawful right of access to the object.38 The Court
explained:
The same can be said of tactile discoveries of contraband.
If a police officer lawfully pats down a suspect’s outer
clothing and feels an object whose contour or mass makes
its identity immediately apparent, there has been no inva-
sion of the suspect’s privacy beyond that already autho-
rized by the officer’s search for weapons; if the object is
contraband, its warrantless seizure would be justified by
the same practical considerations that inhere in the plain-
view context.39
When we adopted the “plain feel” doctrine in State v.
Craven,40 we examined two cases from the District of Columbia
Circuit Court of Appeals that help illustrate the doctrine’s prin-
ciples. In U.S. v. Gibson,41 the court held that an officer who
35 See, Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. ed. 2d
334 (1993); State v. Craven, 253 Neb. 601, 571 N.W.2d 612 (1997).
36 State v. Runge, 8 Neb. App. 715, 601 N.W.2d 554 (1999) (single-judge
opinion).
37 Dickerson, supra note 35.
38 See id.
39 Id., 508 U.S. at 375-76.
40 See Craven, supra note 35.
41 U.S. v. Gibson, 19 F.3d 1449 (D.C. Cir. 1994).
928 	279 NeBRASkA RepORTS

felt a hard, flat, angular object in a suspect’s pocket during a
pat down did not have probable cause for an extended search
which revealed cocaine in a second pair of trousers worn by
the suspect. The officer testified that the object he touched
“did not feel like anything a person might normally carry in
his pocket,”42 but did not relate anything from his experience
to correlate such an object to criminal activity. Noting the
government’s difficulty in “explaining how a hard, flat, angular
object in someone’s pocket would lead a law enforcement offi-
cer of reasonable caution to believe an offense had been or is
being committed,”43 the court stated that such an object did not
resemble contraband and that thus, its detection did not pro-
vide probable cause to extend the search. By contrast, in U.S.
v. Ashley,44 the same court held that probable cause for seizure
of drugs from a suspect’s underwear existed where an officer
experienced in the packaging and transportation of narcotics
testified that when he felt a hard object under the suspect’s
trousers while patting down his groin area, he immediately
associated the object with crack cocaine even though he was
not absolutely certain that the object was cocaine until con-
ducting a more invasive search.
The facts of this case resemble those of Gibson far more
closely than those of Ashley. In this case, when South was per-
forming the search, he “felt something suspicious” in Smith’s
pocket, and Smith twice failed to answer South’s question
about the contents of his pocket. harper testified that his
experience supported his suspicion that Smith might have
been engaging in criminal activity, because “nine times out of
ten” when South asks patrons what is in their pocket and “the
people start reaching for that pocket, it’s something he don’t
want ’em pulling out.”
[17] But Smith did not reach for his pocket—he reached
for South’s arm, to stop South from reaching into his pocket.
And probable cause to search requires that the known facts and
42 Id. at 1451.
43 Id.
44 U.S. v. Ashley, 37 F.3d 678 (D.C. Cir. 1994).
STATe v. SMITh 	929
Cite as 279 Neb. 918

circumstances are sufficient to warrant a person of reasonable
prudence in the belief that contraband or evidence of a crime
will be found.45 Based on our review of the record, neither
South nor harper had the knowledge necessary to objectively
warrant the belief that contraband or evidence of a crime would
be found in Smith’s pocket. As South admitted, he did not
know what was in Smith’s pocket—“it . . . could have been
medication, could have been drugs, could have been beads,
it could have been a number of things, could have even been
candy. We just don’t know.”
[18-20] As noted above, the legality of a seizure under the
“plain feel” doctrine depends upon the incriminating character
of an object being immediately apparent.46 here, the extension
of the search into Smith’s pocket was grounded on intuition,
not facts and circumstances known to law enforcement sup-
porting a reasonable belief that Smith was carrying contra-
band.47 Furthermore, a search or seizure of a person must be
supported by probable cause particularized to that person.48
South admitted that it was policy to search the pockets of
everyone who refused to answer the question of what was in
their pockets and to refuse to permit them to leave once a pat
down had begun. In this case, harper’s generalized suspicions
could not justify a warrantless search of Smith. “The fact that
a person belongs to a class . . . which contains some members
who violate the law does not create probable cause to search
that person.”49
The State also suggests that the search was reasonable
because of the Club’s practical interest in providing security to
its patrons, arguing that “‘[w]here the risk to public safety is
substantial and real, blanket suspicionless searches calibrated
to the risk may rank as “reasonable” — for example, searches
now routine at airports and at entrances to courts and other
45 Id.
46 See Runge, supra note 36.
47 See id.
48 State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007).
49 Gaioni v. Folmar, 460 F. Supp. 10, 13 n.9 (D.C. Ala. 1978).
930 	279 NeBRASkA RepORTS

official buildings.’”50 But that is not the issue here. The State’s
comparison of a search conducted at a dance club to one con-
ducted at an airport or courthouse is not particularly apt.51 The
Club may have been within its rights to condition entry into the
Club upon consent to a search. We need not decide that issue,
however, because that condition would only authorize the Club
to refuse entry to a person who is unwilling to be searched. It
would not justify searching an unwilling person without prob-
able cause.
(b) Smith Did Not Consent to Search of his pocket
But that implicates the State’s remaining argument that
Smith consented to the search. The district court found that
Smith had been notified of the Club’s policy of patting down
customers and made no attempt to leave before South patted
him down, and Smith concedes that he consented to the initial
pat down. But while Smith consented to the pat-down search,
he did not consent to South’s searching his pocket.
[21-23] Once given, consent to search may be withdrawn.52
Withdrawal of consent need not be effectuated through par-
ticular “magic words,” but an intent to withdraw consent must
be made by unequivocal act or statement.53 If equivocal, a
defendant’s attempt to withdraw consent is ineffective and
police may reasonably continue their search pursuant to the
initial grant of authority.54 The standard for measuring the
scope of a suspect’s consent under the Fourth Amendment is
that of “‘objective’” reasonableness—what would the typical
50 Brief for appellee at 20-21, quoting Chandler v. Miller, 520 U.S. 305, 117
S. Ct. 1295, 137 L. ed. 2d 513 (1997).
51 See, Wilkinson v. Forst, 832 F.2d 1330 (2d Cir. 1987); Gaioni, supra note
49; Wheaton v. Hagan, 435 F. Supp. 1134 (D.C.N.C. 1977); Jacobsen
v. Seattle, 98 Wash. 2d 668, 658 p.2d 653 (1983); State v. Carter, 267
N.W.2d 385 (Iowa 1978); State v. Iaccarino, 767 So. 2d 470 (Fla. App.
2000).
52 See, State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996); State v.
French, 203 Neb. 435, 279 N.W.2d 116 (1979).
53 U.S. v. Sanders, 424 F.3d 768 (8th Cir. 2005).
54 Id.
STATe v. SMITh 	931
Cite as 279 Neb. 918

reasonable person have understood by the exchange between
the officer and the suspect?55 Accordingly, we must deter-
mine whether a reasonable person would have concluded that
Smith’s repeated attempts to thwart South’s attempts to search
his pocket amounted to a withdrawal of consent.
[24-26] 	Conduct 	withdrawing 	consent 	must 	be 	an 	act
clearly inconsistent with the apparent consent to search, an
unambiguous statement challenging the officer’s authority
to conduct the search, or some combination of both.56 And
because a consensual search by its very definition is circum-
scribed by the extent of the permission given, as determined
by the totality of the circumstances,57 an officer conducting
a consensual search has no authority to command the person
being searched to stop interfering with the search.58 So, while
a suspect’s mere reluctance to facilitate a consensual search
may not serve to withdraw consent,59 the suspect’s deliberate
interference with the search—actions designed to prevent law
enforcement from searching further—are clearly sufficient to
communicate a withdrawal of consent, because no reasonable
observer could conclude that the suspect wanted the search
to continue.60
For example, in Lowery v. State,61 the court held a defend-
ant withdrew his consent to search by “twice attempt[ing] to
reach into his pockets at the same time that the officer was
attempting to search the pockets.” Similarly, in Jiminez v.
State,62 a defendant who twice grabbed a deputy’s hand in
an attempt to stop him from searching a pack of cigarettes
was held to have withdrawn his earlier consent, and “it was
55 Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 114 L. ed. 2d 297
(1991).
56 Sanders, supra note 53.
57 See State v. Rathjen, 16 Neb. App. 799, 751 N.W.2d 668 (2008).
58 See Sanders, supra note 53.
59 See Burton v. U.S., 657 A.2d 741 (D.C. 1994).
60 See Sanders, supra note 53.
61 Lowery v. State, 894 So. 2d 1032, 1034 (Fla. App. 2005).
62 Jimenez v. State, 643 So. 2d 70, 72 (Fla. App. 1994).
932 	279 NeBRASkA RepORTS

improper for the officer to continue the search over the defend-
ant’s objections.”
here, the record is undisputed that Smith twice lowered
his hand at the same time South was attempting to search his
pocket. Smith grabbed South’s wrist to prevent South from
reaching into his pocket. And when South reached for Smith’s
pocket a second time, Smith pushed South’s hand away. Only
after harper intervened and prevented Smith from interfering
was South able to reach into Smith’s pocket. That search can-
not be characterized as consensual. Before any item was con-
fiscated by South or harper, Smith indicated that his consent to
the initial pat down was being withdrawn, by grabbing South’s
wrist and later pushing South’s hand away. Furthermore, South
and harper used their authority to restrict Smith’s freedom of
movement during the search. And as explained above, no prob-
able cause to suspect criminal activity had been detected before
Smith’s pocket was searched.
Smith’s actions made it apparent he did not intend to permit
South or harper to search his pockets. In fact, the only way
South could complete the search was for harper to physically
restrain Smith. Any objective observer watching this scenario
would conclude Smith was not consenting to the search of his
pocket. Stated another way, if a suspect had to be physically
restrained to prevent interference with a search of his person,
the search was not consensual. Smith’s actions were clearly
inconsistent with the apparent consent to search.
Nonetheless, the State argues that Smith could not withdraw
his consent once the pat down had begun. But as explained
above, that is not the law. The case cited by the State in sup-
port of its argument stands for the proposition that while
consent may be withdrawn or limited at any time before the
completion of the search, it “cannot be withdrawn, however,
after criminal activity has been detected.”63 But that is simply
another way of saying that law enforcement does not need
consent to search once probable cause has been established,
63 See People of Virgin Islands v. Nadal, No. F195/2006, 2007 WL 703494 at
*4 (V.I. Super. Feb. 5, 2007).
STATe v. SMITh 	933
Cite as 279 Neb. 918

which we have already concluded did not happen in this case.64
And it is axiomatic that Smith’s refusal to consent to the search
of his pockets did not provide probable cause to continue.
The Fourth Amendment’s protections would be meaningless if
refusal to consent to a search could itself justify a nonconsen-
sual search.
Finally, the State suggests that Smith impliedly consented
to the search because he was aware that Club patrons were
subject to a pat down and search. That may have been the case
when Smith got in line, but as noted above, Smith withdrew his
consent before his pocket was searched. The Club may have
been free to turn him away—but it was not free to turn out
his pockets.
As noted above, whether the established historical facts
trigger or violate Fourth Amendment protections is a ques-
tion of law that we review independently of the trial court’s
determination. Based on these undisputed facts, we conclude
that the Fourth Amendment was violated in this case. The
court erred in not suppressing evidence resulting from the
unlawful search. We also note that the unlawful search in
this case was contrary to established law and was sufficiently
culpable to be susceptible to meaningful deterrence by sup-
pression of the evidence.65 And in any event, the State has not
questioned whether the exclusionary rule should apply under
these circumstances.
VI. CONCLUSION
For these reasons, we conclude that the district court erred
in denying Smith’s motion to suppress and that as a result, the
court erred in convicting and sentencing Smith. Under the cir-
cumstances of this case, however, the concepts of double jeop-
ardy do not forbid the possibility of a retrial.66 We, therefore,
64 Compare, e.g., State v. Chronister, 3 Neb. App. 281, 526 N.W.2d 98
(1995) (alert by drug detection dog established probable cause for warrant-
less search before suspect withdrew consent).
65 See, Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. ed. 2d
496 (2009); State v. Nuss, ante p. 648, 781 N.W.2d 60 (2010).
66 See Rogers, supra note 22.
934 	279 NeBRASkA RepORTS

reverse the judgment of the district court and remand the cause
for a new trial.
reverSed aNd remaNded for a NeW trial .
heavicaN, C.J., not participating.
YANT v. CITY OF GRAND ISLAND 	935
Cite as 279 Neb. 935
roger yaNt et al ., appellaNtS, v. the city
of graNd iSlaNd et al ., appelleeS.
784 N.W.2d 101
Filed May 28, 2010. 	No. S-09-664.
1. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitu-
tional is a question of law; accordingly, the Nebraska Supreme Court is obligated
to reach a conclusion independent of the decision reached by the court below.
2. Constitutional Law: Statutes: Presumptions. A statute is presumed to be consti-
tutional, and all reasonable doubts are resolved in favor of its constitutionality.
3. Constitutional Law: Statutes: Proof. The burden of establishing the unconstitu-
tionality of a statute is on the one attacking its validity.
4. ____: ____: ____. The unconstitutionality of a statute must be clearly established
before it will be declared void.
5. Constitutional Law: Statutes: Special Legislation. The focus of the prohibi-
tion against special legislation is the prevention of legislation which arbitrarily
benefits or grants special favors to a specific class. A legislative act constitutes
special legislation if (1) it creates an arbitrary and unreasonable method of clas-
sification or (2) it creates a permanently closed class.
6. ____: ____: ____. The prohibition against special legislation forbids the
Legislature from selecting a class from a large number of persons standing in the
same relation to the privileges.
7. Constitutional Law: Special Legislation: Public Policy. To be valid, a legis-
lative classification must be based upon some reason of public policy, some
substantial difference of situation or circumstances, that would naturally sug-
gest the justice or expediency of diverse legislation with respect to objects to
be classified.
8. Special Legislation. The Legislature has the power to enact special legislation
where the subject or matters sought to be remedied could not be properly reme-
died by a general law and where the Legislature has a reasonable basis for the
enactment of the special law.
9. Constitutional Law: Special Legislation. Unless specifically prohibited by Neb.
Const. art. III, § 18, the Legislature is not prohibited from passing local or spe-
cial laws.
10. Constitutional Law: Statutes: Public Purpose. Incidental benefits do not render
a statute unconstitutional when enacted for a public purpose.
11. Constitutional Law: Statutes. A grant of administrative authority is not neces-
sarily an unconstitutional delegation of legislative power.