State v. Saitta , 306 Neb. 499 ( 2020 )


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    www.nebraska.gov/apps-courts-epub/
    08/07/2020 08:07 AM CDT
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. SAITTA
    Cite as 
    306 Neb. 499
    State of Nebraska, appellee, v.
    Richard J. Saitta, appellant.
    ___ N.W.2d ___
    Filed July 17, 2020.    No. S-19-697.
    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 histori-
    cal 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 indepen-
    dently of the trial court’s determination.
    2. Constitutional Law: Search and Seizure: Appeal and Error. An
    appellate court applies a two-part analysis when reviewing whether a
    consent to search was voluntary. As to the historical facts or circum-
    stances leading up to a consent to search, the appellate court reviews
    the trial court’s findings for clear error. However, whether those facts
    or circumstances constituted a voluntary consent to search, satisfying
    the Fourth Amendment, is a question of law, which the appellate court
    reviews independently of the trial court. And where the facts are largely
    undisputed, the ultimate question is an issue of law.
    3. Constitutional Law: Criminal Law: Police Officers and Sheriffs:
    Search and Seizure: Investigative Stops: Arrests: Probable Cause:
    Words and Phrases. There are three tiers of police-citizen encounters
    under Nebraska law. The first tier of police-citizen encounters involves
    no restraint of the liberty of the citizen involved, but, rather, the volun-
    tary cooperation of the citizen is elicited through noncoercive question-
    ing. This type of contact does not rise to the level of a seizure and there-
    fore is outside the realm of Fourth Amendment protection. The second
    category, the investigatory stop, as defined by the U.S. Supreme Court
    in Terry v. Ohio, 
    392 U.S. 1
    , 
    88 S. Ct. 1868
    , 
    20 L. Ed. 2d 889
    (1968),
    is limited to brief, nonintrusive detention during a frisk for weapons or
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    preliminary questioning. This type of encounter is considered a seizure
    sufficient to invoke Fourth Amendment safeguards, but because of its
    less intrusive character requires only that the stopping officer have spe-
    cific and articulable facts sufficient to give rise to reasonable suspicion
    that a person has committed or is committing a crime. The third type of
    police-citizen encounters, arrests, is characterized by highly intrusive
    or lengthy search or detention. The Fourth Amendment requires that
    an arrest be justified by probable cause to believe that a person has
    committed or is committing a crime. Only the second and third tiers of
    police-citizen encounters are seizures sufficient to invoke the protections
    of the Fourth Amendment to the U.S. Constitution.
    4.   Constitutional Law: Search and Seizure. A seizure in the Fourth
    Amendment context occurs only if, in view of all the circumstances sur-
    rounding the incident, a reasonable person would have believed that he
    or she was not free to leave. In addition to situations where an officer
    directly tells a suspect that he or she is not free to go, circumstances
    indicative of a seizure may include the threatening presence of several
    officers, the display of a weapon by an officer, some physical touching
    of the citizen’s person, or the use of language or tone of voice indicating
    the compliance with the officer’s request might be compelled.
    5.   Police Officers and Sheriffs: Investigative Stops: Time. An investi-
    gative stop must be temporary and last no longer than is necessary to
    effectuate the purpose of the stop. Similarly, the investigative methods
    employed should be the least intrusive means reasonably available to
    verify or dispel the officer’s suspicion in a short period of time.
    6.   Police Officers and Sheriffs: Investigative Stops: Probable Cause.
    Whether a police officer has a reasonable suspicion based on sufficient
    articulable facts depends on the totality of the circumstances and must
    be determined on a case-by-case basis.
    7.   Police Officers and Sheriffs: Probable Cause. In determining whether
    a police officer acted reasonably, it is not the officer’s inchoate or unpar-
    ticularized suspicion or hunch that will be given due weight, but the
    specific reasonable inferences which the officer is entitled to draw from
    the facts in light of the officer’s experience.
    8.   Constitutional Law: Warrantless Searches: Search and Seizure.
    Warrantless searches and seizures are per se unreasonable under the
    Fourth Amendment, subject to a few established and well-delineated
    exceptions.
    9.   Warrantless Searches. The warrantless search exceptions Nebraska has
    recognized include: (1) searches undertaken with consent, (2) searches
    under exigent circumstances, (3) inventory searches, (4) searches of
    evidence in plain view, and (5) searches incident to a valid arrest.
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    STATE v. SAITTA
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    10. Warrantless Searches: Motor Vehicles. Nebraska has recognized that
    among the established exceptions to the warrant requirement is the auto-
    mobile exception.
    11. Warrantless Searches: Probable Cause. Probable cause, standing
    alone, is not an exception that justifies the search of a person without
    a warrant.
    12. Warrantless Searches. One well-recognized exception to the warrant
    requirement is a search undertaken with consent.
    13. Constitutional Law: Search and Seizure: Duress. Generally, to be
    effective under the Fourth Amendment, consent to a search must be a
    free and unconstrained choice, and not the product of a will overborne.
    14. Warrantless Searches: Duress. Consent must be given voluntarily and
    not as a result of duress or coercion, whether express, implied, physical,
    or psychological.
    15. Constitutional Law: Search and Seizure. The determination of whether
    the facts and circumstances constitute a voluntary consent to a search,
    satisfying the Fourth Amendment, is a question of law.
    16. Search and Seizure. Whether consent to a search was voluntary is to be
    determined from the totality of the circumstances surrounding the giving
    of consent.
    17. ____. Consent to search may be implied by action rather than words.
    Appeal from the District Court for Douglas County: J
    Russell Derr, Judge. Affirmed.
    Thomas C. Riley, Douglas County Public Defender, and
    Mary M. Dvorak for appellant.
    Douglas J. Peterson, Attorney General, and Jordan Osborne
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    Richard J. Saitta appeals his conviction and sentence in
    the district court for Douglas County for possession of a con-
    trolled substance. The court overruled Saitta’s motion to sup-
    press evidence, and thereafter in a bench trial, it found Saitta
    guilty and sentenced him to probation for 1 year. Saitta claims
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    on appeal that the court erred when it overruled his motion to
    suppress. We affirm Saitta’s conviction and sentence.
    STATEMENT OF FACTS
    Saitta was arrested on July 3, 2018, after police officers
    found a clear plastic bag containing a substance later identified
    as methamphetamine inside a glove worn by Saitta. Before
    trial, Saitta filed a motion to suppress all evidence obtained as
    a result of his encounter with the police on July 3. He asserted
    that he was seized in violation of the Fourth Amendment
    because the police did not have reasonable suspicion to detain
    and question him and that the search of his personal effects
    was in violation of the Fourth Amendment because the circum-
    stances did not justify a search without a warrant.
    At a hearing on the motion to suppress, the State presented
    the testimony of Cory Buckley, one of the police officers who
    arrested Saitta. Buckley’s testimony is set forth in more detail
    below. During Buckley’s testimony, the State offered and the
    court received into evidence a video recording from Buckley’s
    body camera depicting Buckley’s encounter with Saitta. During
    Saitta’s cross-examination of Buckley, Saitta offered and the
    court received into evidence three still photographs depict-
    ing the scene of the encounter. The State offered no further
    testimony or evidence, and Saitta offered no other evidence in
    his defense.
    Buckley testified that he was an officer with the Omaha
    Police Department. At approximately 5:43 a.m. on July 3,
    2018, he and his partner were driving on patrol, and as they
    drove past an alleyway, they observed a person who appeared
    to be looking into the window of a building that was in the
    process of being demolished. Buckley testified that he had
    been aware of the building’s being demolished and that he had
    made observing the building part of his regular route on patrol
    because there had been problems with trespassers and people
    sleeping in the building. He was also aware that there had
    been “scrappers in that area,” which as he further described
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    STATE v. SAITTA
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    meant that “[w]herever there’s buildings under construction,
    there’s people trying to take metals out of the building being
    demolished . . . for money.”
    Upon observing a person in the alley, the officers stopped
    and backed up their patrol car to get a closer look; Buckley tes-
    tified that he “believe[d] the person saw us because when we
    reversed the person was gone.” They turned into the alley to try
    to make contact or to see if the person had entered the build-
    ing; as they drove into the alleyway, they noticed the person,
    who would later be identified as Saitta, “hiding in the bushes”
    that were “up against the building.” Buckley testified that the
    officers’ purpose in making contact with Saitta was “[j]ust to
    see why he was looking in the building” and to “[b]asically,
    identify him, make sure he’s not breaking in, not stealing any-
    thing, that he actually belongs in that area.”
    When the officers got out of their patrol car, Saitta came
    “out of the bushes to make contact with” them. As Saitta
    came out of the bushes, Buckley saw “him shove something
    into his left glove with his right hand.” Buckley observed
    upon initial contact that Saitta was “super nervous” and “did
    not like [the officers’] being there.” Buckley also observed,
    based on his “training and experience,” that the glove Saitta
    was wearing on his left hand was of “the kind of gloves that
    are used by like electricians, so they don’t cut their hands up
    when they’re dealing with wires.” Buckley’s partner asked
    Saitta what he was doing and whether he was breaking into
    the building; Saitta replied that he was doing nothing and
    that he did not have any tools on him, and he put his hands
    in the air. Buckley’s partner then asked Saitta, “‘Well, what’s
    this pile of metal doing right here?’” as he gestured toward
    a small pile of scrap metal that was “[u]p against the build-
    ing, right by the bush . . . where [Saitta] came out of from
    behind.” Saitta replied that the metal was not his, and then
    “he began to back away from” the officers. When Saitta began
    to back away, Buckley “put [his] hand on [Saitta’s] back to
    get him to stop.”
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    STATE v. SAITTA
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    306 Neb. 499
    Buckley replied in the affirmative to the State’s question
    whether he “inquire[d] to [Saitta] what was in his glove.”
    He then testified that he “asked [Saitta] to remove the glove
    and [Saitta] complied.” Buckley then “asked [Saitta] to hand
    [him] the glove,” and when Saitta handed the glove to him,
    Buckley saw that “inside the glove was a clear plastic bag”
    that contained a substance that “later field-tested positive for
    methamphetamine.” Upon finding the bag and its contents,
    the officers “immediately placed [Saitta] into handcuffs” and
    arrested him.
    On cross-examination, Saitta referred to Buckley’s testi-
    mony that he “asked” Saitta to remove his glove. Saitta asked
    Buckley whether “[i]n fact, [he] directed [Saitta] to remove his
    gloves,” and whether he “told [Saitta] to give it to [him] so that
    [he] could inspect it.” Buckley agreed with both characteriza-
    tions. Buckley also agreed with Saitta’s characterization that
    he and his partner got only a “fairly quick glance” at Saitta
    when he was looking into a window of the building as they
    first drove past the alleyway and before they reversed course
    and turned into the alley. Buckley acknowledged that he had
    not previously encountered anyone trying to steal scrap metal
    from that particular building. Buckley further acknowledged
    that when he approached Saitta, he did not observe any metal
    in Saitta’s hands and did not observe a vehicle, shopping cart,
    or other mode of transport available to carry metal. Buckley
    acknowledged that he and his partner had not found evidence
    that Saitta was trying to take metal from the building and that
    at the date of the suppression hearing, he did not “actually
    know whether . . . Saitta was or was not attempting to get
    metal from this particular building.”
    Following the suppression hearing, the district court filed an
    order overruling Saitta’s motion to suppress. The district court
    evaluated the evidence and, at the beginning of its analysis,
    stated with regard to the glove that “this is not a ‘seizure’ as
    characterized by” Saitta. Instead, the court found that “Officer
    Buckley simply asked [Saitta] for his glove and [Saitta] gave
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    STATE v. SAITTA
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    it to him. There was no seizure at all.” Despite this finding, the
    court discussed arguendo that there had been a seizure of the
    glove and continued its analysis accordingly.
    After discussing the different levels of police-citizen encoun-
    ters, the court determined that the encounter between Saitta and
    the officers began as a “tier-one encounter” in which Saitta’s
    liberty was not constrained but then became an “investigatory
    stop,” or a “tier-two encounter,” which enjoys a level of Fourth
    Amendment protection. The court found that the investigatory
    stop was proper “because, under the totality of the circum-
    stances, the officers had reasonable suspicion that [Saitta] had,
    was about to, or was in the process of committing a crime.”
    The court noted Buckley’s testimony that he saw Saitta when
    he was looking into the building at around 5:43 a.m., that he
    knew the building was in the process of being demolished and
    individuals frequently stole scrap metal from such buildings,
    and that when he and his partner drove into the alley, Saitta
    tried to hide in the bushes. The court found these to be “spe-
    cific and articulable facts that criminal activity was afoot,”
    and it concluded that reasonable suspicion supported a lawful
    detention for an investigatory stop.
    The court then reviewed law to the effect that searches with-
    out a valid warrant are per se unreasonable, subject to certain
    exceptions. The court noted that in addition to the evidence
    which supported reasonable suspicion justifying the investiga-
    tory stop, Buckley testified that he saw Saitta put something
    in his left glove when the officers approached him. The court
    found that it was “reasonable for the officers to believe the
    furtive gestures of [Saitta were] an attempt to conceal items
    of a crime.” The court concluded that “probable cause existed
    in order to justify the search of [Saitta’s] glove” and that
    Saitta’s “Fourth Amendment rights were not violated because
    probable cause existed.” The court overruled Saitta’s motion
    to suppress.
    After Saitta waived his right to a jury trial, the court con-
    ducted a bench trial in which the State offered two exhibits—a
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    STATE v. SAITTA
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    stipulation of the parties regarding laboratory testing of the
    substance in the plastic bag found in Saitta’s glove and sepa-
    rately the transcript of the suppression hearing. Saitta objected
    to the admission of both exhibits based on the reasons set forth
    in his motion to suppress, and he renewed the motion to sup-
    press. The court overruled the renewed motion to suppress and
    received the evidence over Saitta’s objection. Saitta offered no
    evidence in his defense, and the court thereafter found Saitta
    guilty of possession of a controlled substance. After hearing
    argument by the parties on the issue of sentencing, the court
    sentenced Saitta to probation for a term of 1 year.
    Saitta appeals his conviction and sentence.
    ASSIGNMENTS OF ERROR
    Saitta claims generally that the district court erred when it
    overruled his motion to suppress. He specifically claims the
    court erred when it determined that (1) reasonable and articu-
    lable suspicion of criminal activity existed to support Saitta’s
    detention, (2) probable cause existed to search Saitta’s glove,
    and (3) probable cause to conduct a search provides a valid
    exception to the Fourth Amendment’s warrant requirement.
    STANDARDS 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,
    an appellate court applies a two-part standard of review. State
    v. Degarmo, 
    305 Neb. 680
    , 
    942 N.W.2d 217
    (2020). Regarding
    historical facts, an appellate court reviews the trial court’s find-
    ings for clear error, but whether those facts trigger or violate
    Fourth Amendment protections is a question of law that an
    appellate court reviews independently of the trial court’s deter-
    mination.
    Id. [2]
    Likewise, we apply the same two-part analysis when
    reviewing whether a consent to search was voluntary.
    Id. As to the
    historical facts or circumstances leading up to a consent to
    search, we review the trial court’s findings for clear error.
    Id. However, whether those
    facts or circumstances constituted a
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    voluntary consent to search, satisfying the Fourth Amendment,
    is a question of law, which we review independently of the trial
    court. State v. 
    Degarmo, supra
    . And where the facts are largely
    undisputed, the ultimate question is an issue of law.
    Id. ANALYSIS Saitta claims
    that the district court erred when it overruled
    his motion to suppress evidence obtained as a result of his
    encounter with police on July 3, 2018. He generally challenges
    two aspects of the encounter: the seizure of his person and the
    search of his glove. He argues that the seizure of his person
    was illegal because the police lacked reasonable suspicion for
    an investigatory stop, and he argues that the search of the glove
    was illegal both because the police lacked probable cause to
    conduct the search and because probable cause alone does not
    justify a search without a warrant. We conclude that the seizure
    of Saitta’s person was proper because the police had reasonable
    suspicion to conduct an investigatory stop, and we conclude
    that the search of the glove was proper because it was under-
    taken with consent.
    Seizure of Saitta’s Person Was Proper Because
    Police Had Reasonable Suspicion to
    Conduct an Investigatory Stop.
    We first address whether the seizure of Saitta’s person was
    proper. The evidence Saitta sought to suppress was found as
    a result of the search of the glove, and that search occurred
    as a result of the seizure of Saitta’s person. Therefore, if the
    seizure was illegal, then evidence obtained from the search of
    the glove should have been suppressed. However, we conclude
    that the detention of Saitta was an investigatory stop that was
    justified by reasonable suspicion.
    The State acknowledges that Saitta was detained at the
    point that Buckley, as he testified, “put [his] hand on [Saitta’s]
    back to get him to stop.” The State contends, and we agree,
    that prior to that time, the encounter involved no restraint
    on Saitta’s liberty. The State further contends that Buckley’s
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    act of detaining Saitta by putting his hand on Saitta’s back
    was justified as an investigatory stop supported by reason-
    able suspicion.
    [3] There are three tiers of police-citizen encounters under
    Nebraska law. The first tier of police-citizen encounters
    involves no restraint of the liberty of the citizen involved,
    but, rather, the voluntary cooperation of the citizen is elicited
    through noncoercive questioning. State v. Krannawitter, 
    305 Neb. 66
    , 
    939 N.W.2d 335
    (2020). This type of contact does
    not rise to the level of a seizure and therefore is outside the
    realm of Fourth Amendment protection. State v. 
    Krannawitter, supra
    . The second category, the investigatory stop, as defined
    by the U.S. Supreme Court in Terry v. Ohio, 
    392 U.S. 1
    , 
    88 S. Ct. 1868
    , 
    20 L. Ed. 2d 889
    (1968), is limited to brief,
    nonintrusive detention during a frisk for weapons or prelimi-
    nary questioning. State v. 
    Krannawitter, supra
    . This type of
    encounter is considered a seizure sufficient to invoke Fourth
    Amendment safeguards, but because of its less intrusive char-
    acter requires only that the stopping officer have specific
    and articulable facts sufficient to give rise to reasonable
    suspicion that a person has committed or is committing a
    crime. State v. 
    Krannawitter, supra
    . The third type of police-
    citizen encounters, arrests, is characterized by highly intrusive
    or lengthy search or detention.
    Id. The Fourth Amendment
    requires that an arrest be justified by probable cause to believe
    that a person has committed or is committing a crime. State v.
    
    Krannawitter, supra
    . Only the second and third tiers of police-
    citizen encounters are seizures sufficient to invoke the protec-
    tions of the Fourth Amendment to the U.S. Constitution. State
    v. 
    Krannawitter, supra
    .
    [4] A seizure in the Fourth Amendment context occurs only
    if, in view of all the circumstances surrounding the incident,
    a reasonable person would have believed that he or she was
    not free to leave. State v. 
    Krannawitter, supra
    . In addition to
    situations where an officer directly tells a suspect that he or
    she is not free to go, circumstances indicative of a seizure
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    may include the threatening presence of several officers, the
    display of a weapon by an officer, some physical touching of
    the citizen’s person, or the use of language or tone of voice
    indicating the compliance with the officer’s request might be
    compelled.
    Id. [5]
    In this case, a seizure occurred when Buckley physi-
    cally touched Saitta with the purpose of stopping him from
    walking away. An investigative stop must be temporary and
    last no longer than is necessary to effectuate the purpose of
    the stop. State v. Shiffermiller, 
    302 Neb. 245
    , 
    922 N.W.2d 763
    (2019). Similarly, the investigative methods employed should
    be the least intrusive means reasonably available to verify or
    dispel the officer’s suspicion in a short period of time.
    Id. In this case,
    the investigatory stop of Saitta was brief and did
    not extend beyond what was necessary to investigate the sus-
    picion that prompted Buckley to stop Saitta. Although Saitta
    was arrested soon after Buckley stopped him from walking
    away, the arrest was based on the discovery of the bag con-
    taining methamphetamine, and Saitta does not assert the arrest
    per se was improper. Instead, he contends the investigatory
    stop that led to the arrest was improper. We must therefore
    consider whether Buckley had “specific and articulable facts
    sufficient to give rise to reasonable suspicion that [Saitta had]
    committed or [was] committing a crime” and whether he was
    therefore justified in detaining Saitta for an investigatory stop.
    See State v. Krannawitter, 
    305 Neb. 66
    , 71, 
    939 N.W.2d 335
    ,
    341 (2020).
    [6,7] As we have said above, an investigatory stop of a
    person requires that the stopping officer have specific and
    articulable facts sufficient to give rise to reasonable suspicion
    that a person has committed or is committing a crime. See
    id. Whether a police
    officer has a reasonable suspicion based on
    sufficient articulable facts depends on the totality of the cir-
    cumstances and must be determined on a case-by-case basis.
    State v. Wells, 
    290 Neb. 186
    , 
    859 N.W.2d 316
    (2015). In deter-
    mining whether a police officer acted reasonably, it is not the
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    officer’s inchoate or unparticularized suspicion or hunch that
    will be given due weight, but the specific reasonable infer-
    ences which the officer is entitled to draw from the facts in
    light of the officer’s experience.
    Id. In this case,
    Buckley and his partner saw a person looking
    into the window of a building that was in the process of being
    demolished. Buckley was familiar with the building because it
    was on the route of his regular patrol. He knew of complaints
    about people trespassing and sleeping in the building, and he
    was also familiar in a general sense that people sometimes
    took scrap metal from buildings being demolished. Based on
    the time of day, 5:43 a.m., Buckley could reasonably infer that
    the person was not there for a proper purpose related to the
    building, and based on his general and specific knowledge,
    he could infer the person might be trespassing and possibly
    attempting to steal metal from the building. During their initial
    voluntary encounter with Saitta, Buckley and his partner made
    further observations relevant to suspicion of criminal activ-
    ity. Buckley’s partner saw a small pile of scrap metal, and he
    asked Saitta about it. Buckley saw Saitta “shove something
    into his left glove,” and Buckley knew the glove to be the type
    one might wear when handling wires. Based on this knowl-
    edge and knowing that it was a time of year—July—when one
    would not normally be wearing gloves, Buckley had additional
    reason to suspect Saitta might be trying to take metal from
    the building.
    We conclude that considering the totality of the circum-
    stances, including the aforementioned observations and rea-
    sonable inferences from his knowledge as an officer, at the
    time he detained Saitta, Buckley had a reasonable suspicion
    based on specific and articulable facts that Saitta had com-
    mitted or was committing a crime. The investigative stop of
    Saitta was supported by reasonable suspicion, and therefore,
    the court did not err when it denied the motion to suppress to
    the extent the motion relied on an allegedly illegal seizure of
    Saitta’s person.
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    Search of Saitta’s Glove Was Proper Because
    It Was Undertaken With Consent.
    We next consider whether the search of Saitta’s glove vio-
    lated the Fourth Amendment. Saitta argues that the district
    court erred when it determined that the officers had probable
    cause to search the glove and when it determined that prob-
    able cause in itself is an exception to the warrant requirement.
    The State concedes that probable cause alone did not justify
    the warrantless search and that the district court’s reasoning
    was erroneous. See State v. Perry, 
    292 Neb. 708
    , 
    874 N.W.2d 36
    (2010). Notwithstanding the district court’s rationale, the
    State argues that an exception to the warrant requirement was
    present because the search was incident to an arrest that was
    supported by probable cause. However, we need not consider
    whether there was a proper search incident to an arrest because
    we conclude that, given the district court’s factual finding, a
    warrantless search was proper in this case for the reason that it
    was within a different exception to the warrant requirement—
    that is, it was conducted with consent.
    [8-10] Warrantless searches and seizures are per se unreason-
    able under the Fourth Amendment, subject to a few established
    and well-delineated exceptions. State v. Schriner, 
    303 Neb. 476
    , 
    929 N.W.2d 514
    (2019). The warrantless search excep-
    tions Nebraska has recognized include: (1) searches undertaken
    with consent, (2) searches under exigent circumstances, (3)
    inventory searches, (4) searches of evidence in plain view, and
    (5) searches incident to a valid arrest. State v. Degarmo, 
    305 Neb. 680
    , 
    942 N.W.2d 217
    (2020). We have also recognized
    that among the established exceptions to the warrant require-
    ment is the automobile exception. State v. Lang, 
    305 Neb. 726
    ,
    
    942 N.W.2d 388
    (2020).
    [11] The district court in this case determined that “probable
    cause existed in order to justify the search of [Saitta’s] glove.”
    However, as Saitta recognizes, we have said that “probable
    cause, standing alone, is not an exception that justifies the
    search of a person without a warrant.” State v. Perry, 
    292 Neb. -
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    at 
    713, 874 N.W.2d at 41
    . See, also, City of Beatrice v. Meints,
    
    289 Neb. 558
    , 567, 
    856 N.W.2d 410
    , 417 (2014) (“probable
    cause, standing alone, is not an exception to the search warrant
    requirement of the Fourth Amendment as applied to real prop-
    erty”). Compare State v. 
    Lang, 305 Neb. at 740
    , 942 N.W.2d at
    400 (automobile exception applies “when a vehicle is readily
    mobile and there is probable cause to believe that contraband
    or evidence of a crime will be found in the vehicle”).
    As noted above, the State acknowledges that “probable
    cause to search Saitta’s glove, as articulated in the district
    court’s written order, is insufficient to resolve whether a Fourth
    Amendment violation occurred.” Brief of appellee at 20. The
    State argues, however, that the “search incident to lawful
    arrest” exception applies.
    Id. The State explains
    that for the
    same reasons the officers had reasonable suspicion to con-
    duct an investigatory stop of Saitta, they also had probable
    cause to arrest Saitta “for a criminal offense, such as trespass-
    ing, burglary, or theft, or an attempt to commit any of those
    offenses.”
    Id. at 21.
    Although the officers eventually arrested
    Saitta for possession of methamphetamine and did not have
    probable cause related to that offense until the search of the
    glove, the State maintains that probable cause for one of the
    other asserted crimes justified the search as a search incident
    to arrest.
    The State’s argument regarding search incident to arrest is
    problematic because, inter alia, although the officers’ observa-
    tions were sufficient to provide reasonable suspicion to inves-
    tigate possible criminal activity such as trespass or theft, the
    search occurred early in the investigation and at a time when
    the officers did not yet have probable cause to arrest Saitta for
    those crimes. In this regard, we note that Buckley conceded at
    the suppression hearing that he and his partner had not found
    evidence that Saitta was trying to take metal from the building
    and that even at the date of the suppression hearing, he did not
    “actually know whether . . . Saitta was or was not attempting
    to get metal from this particular building.”
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    [12-16] We need not further consider the State’s argument
    related to search incident to arrest because we determine that
    a different exception to the warrant requirement applies in
    this case—the exception for a search undertaken with consent.
    One well-recognized exception to the warrant requirement
    is a search undertaken with consent. State v. Schriner, 
    303 Neb. 476
    , 
    929 N.W.2d 514
    (2019). Generally, to be effective
    under the Fourth Amendment, consent to a search must be a
    free and unconstrained choice, and not the product of a will
    overborne. State v. Degarmo, 
    305 Neb. 680
    , 
    942 N.W.2d 217
    (2020). Consent must be given voluntarily and not as a result
    of duress or coercion, whether express, implied, physical, or
    psychological.
    Id. The determination of
    whether the facts and
    circumstances constitute a voluntary consent to a search, sat-
    isfying the Fourth Amendment, is a question of law. State v.
    
    Degarmo, supra
    . Whether consent to a search was voluntary
    is to be determined from the totality of the circumstances sur-
    rounding the giving of consent.
    Id. In its order,
    the district court began its analysis by stating
    with regard to the glove that “this is not a ‘seizure’ as char-
    acterized by” Saitta. Instead, the court found that “Officer
    Buckley simply asked [Saitta] for his glove and [Saitta] gave it
    to him. There was no seizure at all.” This order includes find-
    ings of fact that Buckley “simply asked” Saitta for the glove
    and that Saitta “gave it to him.” Based on those facts, the court
    made a conclusion of law that there was no Fourth Amendment
    violation because there was no seizure.
    On appeal, we review the findings of fact for clear error,
    but we reach an independent legal conclusion as to whether
    those facts trigger or violate Fourth Amendment protections.
    See State v. 
    Degarmo, supra
    . We determine the district court’s
    fact findings in this case were not clearly erroneous. Contrary
    to the district court’s analysis, to the effect that the import of
    those facts was that there was no seizure, we conclude that
    those factual findings support the legal conclusion that the
    circumstances constituted a voluntary consent to the search of
    the glove.
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    First, we review the fact findings for clear error. The court
    found that Buckley “simply asked” for the glove. This finding
    is relevant to our legal analysis of consent because it goes to
    whether the officers employed duress or coercion to effect the
    search of the glove. There was some conflict in the evidence
    on this fact because although in direct testimony Buckley tes-
    tified that he “asked” Saitta, on cross-examination, he agreed
    to Saitta’s characterizations that he “directed” or “told” Saitta
    to give him the glove. The court credited Buckley’s char-
    acterization on direct examination over his agreement with
    Saitta’s characterization on cross-examination. The court was
    also able to view the video from Buckley’s body camera. From
    our review of the video, we note that in the video, Buckley
    appears to say to Saitta, “Let me see your glove.” Although
    these words may be ambiguous as to whether it is a request
    or a command, the court was able to judge Buckley’s tone of
    voice and the circumstances and it found that Buckley “simply
    asked” for the glove. After the district court viewed the video
    and listened to the testimony, and following our review of the
    record, we conclude that the finding of the district court was
    not clearly erroneous.
    The court also found that Saitta “gave” Buckley the glove.
    This is also relevant to consent because it goes to whether
    Saitta made a free and unconstrained choice or whether his will
    was overborne and he merely acquiesced to duress or coercion.
    There does not appear to be conflict in Buckley’s testimony
    that Saitta gave him the glove. The video shows that Buckley
    did not forcefully take the glove but that instead, almost imme-
    diately after Buckley said, “Let me see your glove,” Saitta,
    without hesitation or protest, handed the glove to Buckley. The
    finding that Saitta “gave” the glove to Buckley was also not
    clearly erroneous.
    [17] From these fact findings and our review of the record,
    we reach a legal conclusion that the search of the glove was
    undertaken with consent. Buckley “simply asked” for the glove
    and Saitta “gave” it to him. These facts show and the record
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    supports that Buckley did not use coercion or duress when
    he asked to see the glove, and Saitta almost immediately
    handed the glove to Buckley without hesitation or protest,
    showing that his will was not overborne and that he did not
    merely acquiesce to duress or coercion. Although Saitta did
    not verbally indicate his consent, we have held that consent
    to search may be implied by action rather than words. See
    State v. Modlin, 
    291 Neb. 660
    , 
    867 N.W.2d 609
    (2015) (not-
    ing that defendant allowed phlebotomist to draw his blood
    without doing anything to manifest refusal). See, also, State
    v. Tucker, 
    262 Neb. 940
    , 
    636 N.W.2d 853
    (2001) (noting that
    after request to search his home, defendant responded by step-
    ping back and gesturing with his arms raised and his hands
    outward and upward); State v. Juhl, 
    234 Neb. 33
    , 42, 
    449 N.W.2d 202
    , 209 (1989), disapproved on other grounds, State
    v. Messersmith, 
    238 Neb. 924
    , 
    473 N.W.2d 83
    (1991) (noting
    that defendant’s right to be free from unreasonable search and
    seizure was not violated when, in response to question from
    police officer as to what he had in his jacket, the defendant
    raised his right arm and said, “‘[C]heck’”). Saitta handed the
    glove to Buckley upon request, and consent may be implied
    from such action. We conclude that Buckley’s search of the
    glove was undertaken with consent and that therefore, the court
    did not err when, to the extent Saitta asserted an illegal search,
    it overruled his motion.
    CONCLUSION
    Because the detention of Saitta was an investigatory stop
    justified by reasonable suspicion and because the search of
    the glove was undertaken with consent, we conclude that the
    district court did not err when it overruled Saitta’s motion to
    suppress the evidence obtained as a result of the seizure of his
    person and the search of his glove. We therefore affirm Saitta’s
    conviction and sentence.
    Affirmed.