State v. Magallanes

STATE v. MAGALLANES 	871
Cite as 284 Neb. 871
we affirm the decision of the Court of Appeals which affirmed
the judgment of the district court.
A ffirmed.
CAssel, J., not participating.
stAte of NebrAskA, Appellee, v.
A lberto C. mAgAllANes, AppellANt.
824 N.W.2d 696
Filed December 21, 2012. 	No. S-11-1033.
1. Statutes: Judgments: Appeal and Error. The meaning of a statute is a question
of law, on which an appellate court has an obligation to reach an independent
conclusion irrespective of the decision made by the court below.
2. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable
Cause: Judgments: Appeal and Error. A trial court’s ruling on a motion to
suppress evidence, apart from determinations of reasonable suspicion to conduct
investigatory stops and probable cause to perform warrantless searches, is to be
upheld on appeal unless its findings of fact are clearly erroneous.
3. Investigative Stops: Motor Vehicles: Probable Cause. A traffic violation, no
matter how minor, creates probable cause to stop the driver of a vehicle.
4. Statutes. Statutory language is to be given its plain and ordinary meaning.
5. Statutes: Appeal and Error. An appellate court will not resort to interpreta-
tion to ascertain the meaning of statutory words which are plain, direct, and
unambiguous.
6. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable
Cause. An officer’s stop of a vehicle is objectively reasonable when the officer
has probable cause to believe that a traffic violation has occurred.
7. Search and Seizure. In order for a consent to search to be effective, it must be a
free and unconstrained choice and not the product of a will overborne.
8. Appeal and Error. Consideration of plain error occurs at the discretion of an
appellate court.
9. ____. Plain error may be found on appeal when an error unasserted or uncom-
plained of at trial, but plainly evident from the record, prejudicially affects a
litigant’s substantial right and, if uncorrected, would result in damage to the
integrity, reputation, and fairness of the judicial process.
10. Verdicts: Appeal and Error. Only where evidence lacks sufficient probative
value as a matter of law may an appellate court set aside a guilty verdict as
unsupported by evidence beyond a reasonable doubt.
Appeal from the District Court for Douglas County: gAry
b. rANdAll, Judge. Affirmed in part, and in part reversed and
remanded with direction.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

872 	284 NEBRASKA REPORTS
Thomas C. Riley, Douglas County Public Defender, and
Jami L. Jacobs for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
H eAviCAN, C.J., WrigHt, C oNNolly, stepHAN, mCC ormACk,
miller-lermAN, and CAssel, JJ.
WrigHt, J.
NATURE OF CASE
The appellant, Alberto C. Magallanes, was stopped on
Interstate 80 for driving on the shoulder of the highway in vio-
lation of Neb. Rev. Stat. § 60-6,142 (Reissue 2010). After con-
sent to search was given, drugs were found in the gasoline tank
of the car Magallanes was driving. Magallanes was charged
with and convicted of two counts of possession with intent to
deliver a controlled substance and two counts of failure to affix
a drug tax stamp. Following a bench trial, he was convicted on
all counts. He was sentenced to 20 to 40 years’ imprisonment
for each possession conviction and 1 to 2 years’ imprisonment
for each conviction for failure to affix a tax stamp, with all
terms running concurrently. Magallanes appealed, challenging
whether probable cause existed to stop his vehicle and argu-
ing that consent to search the vehicle was not properly given
because of the illegal stop.
SCOPE OF REVIEW
[1] The meaning of a statute is a question of law, on which
an appellate court has an obligation to reach an independent
conclusion irrespective of the decision made by the court
below. State v. Garcia, 281 Neb. 1, 792 N.W.2d 882 (2011).
[2] A trial court’s ruling on a motion to suppress evidence,
apart from determinations of reasonable suspicion to conduct
investigatory stops and probable cause to perform warrantless
searches, is to be upheld on appeal unless its findings of fact
are clearly erroneous. State v. Huff, 282 Neb. 78, 802 N.W.2d
77 (2011).

STATE v. MAGALLANES 	873
Cite as 284 Neb. 871
FACTS
trAffiC stop
At 	approximately 	10:30 	p.m. 	on 	November 	30, 	2009,
Kristopher Peterson, a deputy with the Douglas County sher-
iff’s office K-9 interdiction unit, was patrolling Interstate 80.
He observed a vehicle with Arizona license plates traveling
eastbound. He decided to follow the vehicle and observed it
temporarily cross outside its lane of travel onto the shoulder
of the road for roughly 1 second or approximately 100 feet
at two separate locations. Only the width of the right-side
tires crossed over the fog line onto the shoulder. Peterson
continued to follow the vehicle for about another 11⁄2 miles
before he pulled it over for what he believed was a violation
of Nebraska law that prohibits driving on the shoulder of
a highway.
Peterson approached the driver’s side of the vehicle and
told Magallanes that he pulled Magallanes over because he
“‘drove on the shoulder a couple times.’” Peterson also asked
Magallanes if he was “‘ok to drive.’” Magallanes said he
was confused because of the Interstate 680/80 junction, and
Peterson responded that confusion at that particular location
“‘happens quite a bit.’”
Magallanes was then taken to Peterson’s cruiser and asked
additional questions about his travel plans. Peterson sepa-
rately asked Magallanes’ passenger about their travel plans.
During the traffic stop, Deputy Eric Olson arrived at the
scene. Peterson wrote Magallanes a warning ticket for driv-
ing on the shoulder and then asked if he could search the
vehicle. Magallanes consented to the search. Magallanes sat
in Peterson’s cruiser while the search occurred, and the pas-
senger was asked to wait in Olson’s cruiser. Peterson informed
Magallanes that if, at any time, he wanted to end the search, he
could do so by honking the cruiser’s horn. Peterson and Olson
then began to search the vehicle.
A search of the passenger compartment and the trunk
revealed no contraband. However, Peterson noticed an odor
of gasoline in the car and that Magallanes had air fresheners
scattered throughout the car. He testified that newer cars, like

874 	284 NEBRASKA REPORTS
the one Magallanes was driving, should not have a strong gas-
oline odor inside the car and that the smell was an indication
that someone had tampered with the fuel injector and send-
ing unit. The two deputies removed the car’s back seat and
noticed that the fuel injector cover had grease and scratches
on it, indicating that it had been tampered with. They used
tools to remove the cover, and when they looked into the
gasoline tank, they saw items that appeared to be contraband.
Ultimately, five packages of methamphetamine and six pack-
ages of cocaine were recovered. Magallanes and his passenger
were arrested.
proCedurAl H istory
On September 16, 2010, the State filed an information in
Douglas County District Court charging Magallanes with
one count of possession with intent to deliver more than 140
grams of methamphetamine, one count of possession with
intent to deliver more than 140 grams of cocaine, and two
counts of failure to affix a tax stamp. The first two counts
were Class IB felonies, and the other two counts were Class
IV felonies.
Magallanes filed three separate motions to suppress the
evidence in district court. The first was filed on October 19,
2010, and sought to suppress any and all evidence derived
from the search of the vehicle because the stop and seizure
were conducted in violation of the 4th, 5th, 6th, and 14th
Amendments to the U.S. Constitution and article I of the
Nebraska Constitution. The second motion, filed January 24,
2011, alleged that the scope of the search went beyond the con-
sent given by Magallanes, in violation of his state and federal
constitutional rights. The third motion, filed on April 7, alleged
that Magallanes did not voluntarily consent to the search and
that any evidence obtained should be suppressed. All three
motions were overruled by the district court.
On July 29, 2011, the matter came before the district court
for a bench trial. The court found Magallanes guilty on all four
counts. On November 23, he was sentenced to 20 to 40 years in
prison on counts I and II, and 1 to 2 years in prison on counts
III and IV, with all terms running concurrently.

STATE v. MAGALLANES 	875
Cite as 284 Neb. 871
On December 1, 2011, Magallanes appealed to the Nebraska
Court of Appeals. We moved the case to our docket pursuant to
our authority to regulate the dockets of this court and the Court
of Appeals. See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
ASSIGNMENTS OF ERROR
Magallanes 	assigns 	as 	error, 	restated, 	that 	the 	district
court erred (1) when it denied Magallanes’ motion to sup-
press, because Peterson did not have probable cause to stop
Magallanes’ vehicle, resulting in an illegal seizure, and (2)
when it overruled Magallanes’ motion to suppress, because the
evidence obtained by the deputies during the illegal stop and
seizure should have been suppressed as fruit of the poison-
ous tree.
ANALYSIS
vAlidity of stop
[3] A traffic violation, no matter how minor, creates prob-
able cause to stop the driver of a vehicle. State v. Nolan,
283 Neb. 50, 807 N.W.2d 520 (2012), cert. denied ___ U.S.
___, 133 S. Ct. 158, 184 L. Ed. 2d 78. Peterson believed that
Magallanes had committed a violation of § 60-6,142 when
he twice crossed the fog line onto the shoulder of the road.
Section 60-6,142 reads:
No person shall drive on the shoulders of highways,
except that:
(1) Vehicles may be driven on the shoulders of high-
ways (a) by federal mail carriers while delivering the
United States mail or (b) to safely remove a vehicle from
a roadway;
(2) Implements of husbandry may be driven on the
shoulders of highways; and
(3) Bicycles and electric personal assistive mobility
devices may be operated on paved shoulders of high-
ways included in the state highway system other than
Nebraska segments of the National System of Interstate
and Defense Highways.
Magallanes 	argues 	that 	momentarily 	crossing 	the 	fog
line does not constitute a violation of § 60-6,142 because

876 	284 NEBRASKA REPORTS
“driv[ing]” means using the shoulder as a thoroughfare or for
primary travel—not the momentary, inadvertent event that took
place in the case at bar. The State argues that any crossing onto
the shoulder is a violation of the statute.
[4,5] Statutory language is to be given its plain and ordi-
nary meaning. State v. Halverstadt, 282 Neb. 736, 809 N.W.2d
480 (2011). An appellate court will not resort to interpreta-
tion to ascertain the meaning of statutory words which are
plain, direct, and unambiguous. Id. Neither party argues that
§ 60-6,142 is ambiguous. Therefore, it should be analyzed for
its plain meaning.
Although we find § 60-6,142 unambiguous, a court in
Nebraska that has addressed this issue came to a different
conclusion in defining the word “driving.” It determined that
a momentary crossing of the fog line, without more, is not a
violation of the Nebraska statute. See U.S. v. Magallanes, 730
F. Supp. 2d 969 (D. Neb. 2010), citing State v. Latham, Buffalo
County District Court, No. CR 98-57. However, we conclude
that any crossing of the fog line, even momentarily and inad-
vertently crossing onto the shoulder, is enough to violate the
statute. There should not be a subjective determination of what
constitutes driving on the shoulder of a highway.
Most recently, a single judge of the Court of Appeals
determined in a memorandum opinion that any crossing of
the fog line constituted “driving” on the shoulder in viola-
tion of the statute. See State v. Medina, No. A-11-377, 2011
WL 2577268 (Neb. App. June 28, 2011) (selected for posting
to court Web site). The judge concluded that “[t]o reach the
conclusion that [the defendant] was not driving, one must
add words to the statute that simply are not there.” Id. at
*3. The judge found that § 60-6,142 was unambiguous and
determined that giving the statutory language its plain and
ordinary meaning, any crossing onto the shoulder was suf-
ficient to violate the statute. See, also, State v. Davis, No.
A-07-104, 2007 WL 2257886 (Neb. App. Aug. 7, 2007) (not
designated for permanent publication) (single judge of Court
of Appeals noted there was no authority in Nebraska to con-
clude that momentary, inadvertent crossing of fog line did
not constitute driving, so officer had reasonable suspicion to

STATE v. MAGALLANES 	877
Cite as 284 Neb. 871
conduct traffic stop). We agree with the above reasoning and
therefore hold that momentarily crossing the fog line onto the
shoulder of the highway constitutes driving on the shoulder in
violation of § 60-6,142. Therefore, the violation constituted
probable cause for Peterson to stop the vehicle Magallanes
was driving.
We also point out that the U.S. District Court for the
District of Nebraska has concluded that momentarily and
inadvertently crossing the fog line is sufficient for probable
cause to initiate a traffic stop. Most recently, the district court
concluded that although there were no definitive interpreta-
tions of § 60-6,142 in Nebraska case law, momentarily swerv-
ing across the fog line was a violation of the statute. U.S.
v. Coleman, No. 4:10CR3108, 2011 WL 2182180 (D. Neb.
May 20, 2011) (unpublished opinion), affirmed 700 F.3d 329
(8th Cir. 2012). In coming to its conclusion, the court looked
to unpublished Nebraska opinions as well as published opin-
ions from the U.S. Court of Appeals for the Eighth Circuit
that have interpreted § 60-6,142 and similar laws. See, U.S.
v. Herrera Martinez, 354 F.3d 932 (8th Cir. 2004), vacated
on other grounds 549 U.S. 1164, 127 S. Ct. 1125, 166 L.
Ed. 2d 889 (2007) (crossing fog line one time was sufficient
probable cause to stop vehicle under South Dakota law);
U.S. v. Mallari, 334 F.3d 765 (8th Cir. 2003) (crossing onto
shoulder three times and having deficient rear license plate
light were sufficient probable cause for traffic stop); U.S. v.
Pollington, 98 F.3d 341 (8th Cir. 1996) (motor home tires’
crossing shoulder line four times was probable cause for
traffic stop).
The reasoning used in the above cases is sound. By applying
the plain and ordinary meaning of the words in the statute, any
crossing of the fog line onto the shoulder constitutes driving on
the shoulder and is a violation of § 60-6,142.
[6] At a prior hearing, Peterson indicated that Magallanes
crossed the fog line twice while Peterson followed his vehicle.
Peterson pulled the vehicle over for a violation of § 60-6,142.
An officer’s stop of a vehicle is objectively reasonable when
the officer has probable cause to believe that a traffic violation
has occurred. State v. Prescott, 280 Neb. 96, 784 N.W.2d 873

878 	284 NEBRASKA REPORTS
(2010). Because Peterson observed the traffic violation, he had
probable cause to stop the vehicle.
Magallanes crossed the fog line onto the shoulder while
driving on Interstate 80, and he does not fall within one of
the exceptions stated in § 60-6,142. The stop was objectively
reasonable, and Magallanes’ first assignment of error is with-
out merit.
evideNCe obtAiNed WAs Not
fruit of poisoNous tree
After Peterson concluded the traffic stop, he asked to
search Magallanes’ car. Magallanes consented to the search,
and drugs were eventually found. Magallanes’ argument rests
on the premise that the drugs were found after an unlaw-
ful stop.
[7] In order for a consent to search to be effective, it must be
a free and unconstrained choice and not the product of a will
overborne. State v. Dallmann, 260 Neb. 937, 621 N.W.2d 86
(2000). Because Peterson’s stop was lawful under § 60-6,142,
Magallanes’ consent to search his vehicle was sufficient to
allow the deputies to search the vehicle and the evidence
found in the search of the vehicle was properly admitted into
evidence. There was no unlawful conduct that would require
suppression of the evidence. This assignment of error is also
without merit.
No evideNCe of tAx stAmp oN drugs
Magallanes was charged with and convicted of two counts of
failure to affix a tax stamp. However, our review of the record
reveals no evidence regarding the absence of a tax stamp. This
issue was not raised by either party on appeal, and therefore,
we analyze the issue for plain error.
[8-10] Consideration of plain error occurs at the discretion
of an appellate court. State v. Howell, ante p. 559, 822 N.W.2d
391 (2012). Plain error may be found on appeal when an error
unasserted or uncomplained of at trial, but plainly evident from
the record, prejudicially affects a litigant’s substantial right
and, if uncorrected, would result in damage to the integrity,
reputation, and fairness of the judicial process. Id. Only where

STATE v. MAGALLANES 	879
Cite as 284 Neb. 871
evidence lacks sufficient probative value as a matter of law
may an appellate court set aside a guilty verdict as unsupported
by evidence beyond a reasonable doubt. Id.
We found plain error related to a conviction for failure to
affix a tax stamp in Howell. There was no evidence in the
record to show the absence of a tax stamp, even though the
State argued that pictures not received into evidence at trial
clearly showed there was no tax stamp. Because no evidence
was offered on the matter at trial, the State was not able to
meet its burden and the conviction was overturned.
This case is similar to Howell because nothing in the record
proves that no tax stamps were affixed to the drugs recovered
from Magallanes’ car. The State carries the burden to prove
all elements of the crimes charged. Here, the State presented
no evidence relating to the existence or absence of tax stamps.
Because there was no evidence in the record on the issue,
Magallanes’ convictions for failure to affix a tax stamp can-
not stand.
CONCLUSION
Peterson 	properly 	stopped 	Magallanes 	for 	violating
§ 60-6,142. At the conclusion of the lawful stop, Peterson
asked if he could search Magallanes’ car and Magallanes gave
consent. There was no violation of Magallanes’ rights, and the
evidence was properly admitted at trial. Therefore, we affirm
the judgments of conviction and sentences for possession with
intent to deliver a controlled substance.
Because the record contained no evidence regarding the
absence of drug tax stamps, we reverse the judgments of con-
viction and sentences on those counts and remand the cause
with direction to dismiss the charges for failure to affix a
tax stamp.
A ffirmed iN pArt, ANd iN pArt reversed
ANd remANded WitH direCtioN.
C oNNolly, J., concurring.
I concur in the judgment, but write separately to express
my disagreement with the majority’s rationale. Neb. Rev. Stat.
§ 60-6,142 (Reissue 2010) generally prohibits “driv[ing] on”
the shoulders of highways. The majority concludes that this

880 	284 NEBRASKA REPORTS
phrase is plain and unambiguous and that any time a driver
crosses the fog line onto the shoulder—even when that cross-
ing is “momentar[y] and inadvertent”—the driver has violated
§ 60-6,142. I cannot agree. The phrase is ambiguous, and the
majority’s interpretation is contrary to the ordinary meaning of
“driv[ing] on” the shoulder and considers the language out of
context. In my view, § 60-6,142 only prohibits using the shoul-
der as a thoroughfare or primary travel area, which Magallanes
did not do.
So I conclude that Peterson did not have probable cause
to stop Magallanes. But I do not address whether Peterson
otherwise had reasonable suspicion for the stop (as the district
court determined) because I conclude that sufficient attenua-
tion existed between the stop and the consent to search. The
exclusionary rule is therefore inapplicable, and so I agree
that the district court properly denied Magallanes’ motion
to suppress.
Although the language of § 60-6,142 is plain, it is not unam-
biguous because it is unclear exactly what conduct § 60-6,142
prohibits. I concede that “driv[ing] on” the shoulder could
be read to include Magallanes’ actions. Webster’s dictionary
defines the verb “to drive” as “to operate the mechanism and
controls and direct the course of.”1 An argument could be
made that by Magallanes’ driving the car and crossing the fog
line, he “operated” the car and “directed” its course onto the
shoulder. So a person could conclude that, technically speak-
ing, Magallanes had violated § 60-6,142 by “driv[ing] on”
the shoulder.
But we give plain language its ordinary meaning,2 rather
than any possible meaning.3 The ordinary meaning of a phrase
is, basically, the mental picture that the phrase creates in the
mind of the reader or listener.4 So what picture does “driv[ing]
1 Webster’s Third New International Dictionary Unabridged 692 (1993).
2 See, e.g., In re Interest of Erick M., ante p. 340, 820 N.W.2d 639 (2012).
3 See, Smith v. United States, 508 U.S. 223, 113 S. Ct. 2050, 124 L. Ed. 2d
138 (1993) (Scalia, J., dissenting; Stevens and Souter, JJ., join); McBoyle
v. United States, 283 U.S. 25, 51 S. Ct. 340, 75 L. Ed. 816 (1931).
4 See McBoyle, supra note 3.

STATE v. MAGALLANES 	881
Cite as 284 Neb. 871
on” the shoulder create? At the very least, I do not believe it
is what Magallanes did here—a momentary and inadvertent
crossing of the fog line. Indeed, a Nebraska motorist might
be surprised to find that the State could criminally prosecute
and fine him or her for a momentary and inadvertent crossing
of just a few inches of the fog line.5 Instead, and as District
Judge John P. Icenogle asserted in a previous case, I believe
“driv[ing] on” the shoulder only means using the shoulder as a
thoroughfare or primary travel area.6
So the question is this: Does § 60-6,142 prohibit any and
all technically possible meanings of “driv[ing] on” the shoul-
der or prohibit only the ordinary understanding of “driv[ing]
on” the shoulder? Either interpretation would be reasonable,
which makes the language of § 60-6,142 ambiguous.7 That
judges have come to different conclusions about the meaning
of § 60-6,142 empirically supports this conclusion.8 And where
the language of a statute is ambiguous, our job is to discern
its meaning. In interpreting a statute, courts “construe lan-
guage in its context and in light of the terms surrounding it.”9
Reading the language in context, I conclude that § 60-6,142
only prohibits using the shoulder as a thoroughfare or primary
travel area.
I agree with Judge Icenogle that the exceptions listed
in § 60-6,142 support a conclusion that a momentary and
5 See, Neb. Rev. Stat. §§ 60-682 and 60-689 (Reissue 2010); Miller v.
Peterson, 208 Neb. 658, 305 N.W.2d 364 (1981), disapproved on other
grounds, Jacobson v. Higgins, 243 Neb. 485, 500 N.W.2d 558 (1993).
6 See, U.S. v. Magallanes, 730 F. Supp. 2d 969 (D. Neb. 2010); United
States v. Graumann, No. 8:00-CR-61, 2000 U.S. Dist. LEXIS 23037
(D. Neb. July 20, 2000) (order) (citing State v. Latham, Buffalo County
District Court, No. CR 98-57).
7 See In re Interest of Erick M., supra note 2.
8 Compare, e.g., Graumann, supra note 6, with State v. Medina, No.
A-11-377, 2011 Neb. App. LEXIS 83 (Neb. App. June 28, 2011) (selected
for posting to court Web site).
9 Leocal v. Ashcroft, 543 U.S. 1, 9, 125 S. Ct. 377, 160 L. Ed. 2d 271
(2004). See, also, Steven Wisotsky, How to Interpret Statutes—Or Not:
Plain Meaning and Other Phantoms, 10 J. App. Prac. & Process 321
(2009).

882 	284 NEBRASKA REPORTS
inadvertent crossing of the fog line is not “driv[ing] on” the
shoulder. Section § 60-6,142 provides:
No person shall drive on the shoulders of highways,
except that:
(1) Vehicles may be driven on the shoulders of high-
ways (a) by federal mail carriers while delivering the
United States mail or (b) to safely remove a vehicle from
a roadway;
(2) Implements of husbandry may be driven on the
shoulders of highways; and
(3) Bicycles and electric personal assistive mobility
devices may be operated on paved shoulders of high-
ways included in the state highway system other than
Nebraska segments of the National System of Interstate
and Defense Highways.
We give effect to the entire language of a statute, and we
reconcile different provisions of the statute so that they are
consistent, harmonious, and sensible.10 Here, the Legislature
used the same phrasing multiple times within the statute—
variations of the verb “to drive” (or its equivalent) combined
with “on . . . shoulders of highways.”11 And in each exception,
it is clear that the language meant driving on the shoulder as
a thoroughfare or primary travel area. Both the legislative his-
tory and a commonsense reading of the exceptions support
this conclusion.
In passing the bill creating an exception for federal mail
carriers to drive on the shoulder, one senator explained the
purpose of the mail carrier exception: “In the rural areas, often
it is necessary for the mail carriers to drive on the road shoul-
der from one mailbox to the next. It is believed this is safer
than having him pull out into the roadway each time.”12 This
explanation illustrates that the Legislature intended for federal
mail carriers to use the shoulder as a thoroughfare or primary
10 See, e.g., AT&T Communications v. Nebraska Public Serv. Comm., 283
Neb. 204, 811 N.W.2d 666 (2012).
11 See § 60-6,142(1).
12 Transportation Committee Hearing, L.B. 969, 90th Leg., 2d Sess. 50 (Feb.
2, 1988).

STATE v. MAGALLANES 	883
Cite as 284 Neb. 871
travel area. The same is true of the Legislature’s second excep-
tion to allow “[i]mplements of husbandry” (farm equipment)
to be “driven on the shoulders of highways.”13 Experience tells
us that people driving farm equipment use the shoulder as a
thoroughfare or primary travel area because farm equipment
is generally slower and wider than ordinary vehicles. Finally,
allowing a person to “operate” a bicycle or an electric personal
assistive mobility device “on . . . shoulders of highways” nec-
essarily contemplates that the driver will use the shoulder as a
thoroughfare or primary travel area.14 Because the Legislature
used the same (or essentially the same) language in the excep-
tions as in the general rule, it makes sense to give the lan-
guage of the general rule the same meaning as that of the
exceptions—to use the shoulder as a thoroughfare or primary
travel area.
Furthermore, in construing a statute, we look to the statutory
objective to be accomplished, the evils and mischiefs sought
to be remedied, and the purpose to be served by the statute.15
One objective for prohibiting “driv[ing] on” the shoulder, and
of passing the Nebraska Rules of the Road in general, was to
promote safer travel on our roadways.16
The majority’s interpretation of the statute does not further
that purpose because it essentially makes the statute a strict
liability crime—no matter the circumstances, any crossing of
the fog line violates § 60-6,142. But this will not prevent a
driver from inadvertently crossing the fog line, as Magallanes
did here, because an inadvertent crossing is by definition
unintentional.17 Nor will penalizing a driver in such circum-
stances deter future violations because, again, an inadvertent
crossing is unintentional. Instead, it makes more sense to read
the statute as prohibiting a driver from using the shoulder as
a thoroughfare or primary travel area because penalizing such
13 See § 60-6,142(2).
14 See § 60-6,142(3).
15 See, e.g., In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).
16 Statement of Purpose, L.B. 136, 72d Leg. (Jan. 31, 1961); Neb. Rev. Stat.
§ 60-602 (Reissue 2010).
17 Webster’s, supra note 1 at 1140.

884 	284 NEBRASKA REPORTS
conduct can influence a driver’s actions and thereby promote
safer travel on the roadways.
In sum, the prohibition in § 60-6,142 of “driv[ing] on” the
shoulder is ambiguous because it is unclear exactly what con-
duct is proscribed. I conclude, however, that § 60-6,142 only
prohibits driving on the shoulder as a thoroughfare or primary
travel area. That is the ordinary meaning of the language, and
it is the only meaning that is consistent with the rest of the
statute. Moreover, that interpretation reasonably promotes safer
travel on the roadways.
In this case, Magallanes twice crossed the fog line at two
separate locations, but each crossing was momentary and inad-
vertent. Magallanes did not use the shoulder as a thorough-
fare or primary travel area. In my view, he did not violate
§ 60-6,142, and Peterson did not have probable cause to
stop Magallanes.
But the district court also concluded that based on the total-
ity of the circumstances, Peterson reasonably suspected that
Magallanes was driving while impaired and that the stop was
justified on that basis. I do not address that issue, however,
because I conclude that sufficient attenuation existed between
the allegedly illegal stop and the consent to search.
The record shows that following the stop, Peterson handed
Magallanes a warning ticket for driving on the shoulder of
the highway and then asked Magallanes if he could search his
vehicle. Magallanes agreed to that search, which ultimately
led to the discovery of methamphetamine and cocaine in the
gasoline tank.
When 	a 	consensual 	search 	is 	preceded 	by 	a 	Fourth
Amendment violation, two things must be proved to avoid the
exclusionary rule: (1) that the consent was voluntary and (2)
that there was sufficient attenuation, or a break in the causal
connection, between the illegal conduct and the consent.18 Only
the second requirement is at issue here. The relevant facts for
sufficient attenuation will depend upon the facts of a particular
case but include (1) the proximity between the illegality and
the consent to search, (2) the presence of intervening factors,
18 See In re Interest of Ashley W., ante p. 424, 821 N.W.2d 706 (2012).

SPADY v. SPADY 	885
Cite as 284 Neb. 885
and (3) the flagrancy of the governmental misconduct involved
in the case.19
On this record, I am convinced that the exclusionary rule
does not apply because sufficient attenuation existed between
the consent to search and the illegal stop. Although Magallanes
gave the consent to search soon after the illegal stop, other
circumstances outweigh this temporal proximity. The officer
gave Magallanes a warning ticket, which would indicate that
the stop was essentially over. This weakens the causal chain
between the illegal stop and the consent to search. It also
lessens any concern that the consent was simply a resigna-
tion or submission to police authority20—Magallanes would
have understood that the stop was over before agreeing to
the search. Peterson also told Magallanes more than once
that he did not have to consent to the search, and Peterson
informed Magallanes that if, at any time, he wanted to end
the search, he could do so by honking the cruiser’s horn.
Finally, the governmental misconduct—the allegedly illegal
stop—was slight because it was unclear at the time exactly
what constituted “driv[ing] on” the shoulder and the officer
believed that Magallanes had committed a traffic infraction.
Considering these facts, I conclude that the court properly
denied Magallanes’ motion to suppress because sufficient
attenuation existed between the allegedly illegal stop and the
consent to search. I concur in the judgment.
mCC ormACk, J., joins in this concurrence.
19 See State v. Gorup, 279 Neb. 841, 782 N.W.2d 16 (2010).
20 See id.
CArolyN JeAN spAdy, Appellee, v.
roger pAul spAdy, AppellANt.
824 N.W.2d 366
Filed December 21, 2012. 	No. S-12-139.
1. Contempt: Appeal and Error. In a civil contempt proceeding where a party
seeks remedial relief for an alleged violation of a court order, an appellate court
employs a three-part standard of review in which (1) the trial court’s resolution