State v. Hoehn

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. HOEHN
Cite as 316 Neb. 634
State of Nebraska, appellee, v.
Michael C. Hoehn, appellant.
___ N.W.3d ___
Filed May 17, 2024. 	No. S-22-885.
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. The Fourth Amendment pro-
tects against unreasonable searches and seizures.
3. Constitutional Law: Search and Seizure: Evidence. Under the exclu-
sionary rule, evidence obtained in violation of the Fourth Amendment
generally cannot be used in a criminal proceeding against the victim of
the illegal search and seizure.
4. Constitutional Law: Investigative Stop: Arrests: Probable Cause. An
investigatory stop supported by reasonable suspicion and an arrest justi-
fied by probable cause do not violate the Fourth Amendment.
5. Constitutional Law: Police Officers and Sheriffs: Jurisdiction. A law
enforcement officer’s statutory power and authority to enforce laws out-
side of the officer’s primary jurisdiction does not implicate the Fourth
Amendment or article I, § 7, of the Nebraska Constitution.
6. Constitutional Law: Police Officers and Sheriffs: Jurisdiction:
Investigative Stops: Arrests: Evidence. A law enforcement officer’s
jurisdictional power and authority to make a stop or arrest is irrelevant
to the admissibility, under the Fourth Amendment and article I, § 7,
of the Nebraska Constitution, of the evidence obtained from the stop
or arrest.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:33 AM CDT

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Nebraska Supreme Court Advance Sheets
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STATE v. HOEHN
Cite as 316 Neb. 634
7. Appeal and Error. If an appellee wants the appellate court to review an
allegedly erroneous determination made by the district court sitting as an
appellate court, it should cross-appeal to preserve the issue.
8. ____. A party cannot complain of an error the party invited the court
to commit.
Petition for further review from the Court of Appeals,
Bishop, Arterburn, and Welch, Judges; on appeal thereto
from the District Court for Scotts Bluff County, Andrea D.
Miller, Judge; on appeal thereto from the County Court for
Scotts Bluff County, Kris D. Mickey, Judge. Judgment of
Court of Appeals affirmed.
Bell Island, of Island Law Office, P.C., L.L.O., for appellant.
Michael T. Hilgers, Attorney General, Austin N. Relph, and
Braden Dvorak, Senior Certified Law Student, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. INTRODUCTION
Following the county court’s denial of a motion to sup-
press evidence from his stop and arrest, the defendant was
convicted of driving under the influence (DUI). The district
court affirmed the conviction on the ground that the arresting
officer had jurisdictional authority to make the stop and arrest
pursuant to Neb. Rev. Stat. § 29-215(3)(c) (Reissue 2016). The
Nebraska Court of Appeals disagreed with the district court’s
interpretation of § 29-215(3)(c) and found that the officer
lacked jurisdictional authority to make the stop and arrest. 1
The Court of Appeals held that under the good faith exception
to the Fourth Amendment’s exclusionary rule, the defendant’s
conviction, based on the evidence from his stop and arrest,
1 See State v. Hoehn, 32 Neb. App. 446, 999 N.W.2d 599 (2023).

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STATE v. HOEHN
Cite as 316 Neb. 634
did not violate the Fourth Amendment to the U.S. Constitution
and article I, § 7, of the Nebraska Constitution. 2
We granted further review. For reasons different than those
stated by either the Court of Appeals or the district court,
we affirm the defendant’s conviction based on the evidence
derived from the stop and arrest. We hold that it is the lack
of reasonable suspicion or probable cause that renders a war-
rantless search and seizure unreasonable for purposes of the
Fourth Amendment’s exclusionary rule, not the law enforce-
ment officer’s jurisdictional authority under state law.
II. BACKGROUND
1. Facts Leading to Arrest
In May 2021, Officer Matt Rockwell of the Minatare Police
Department left the city limits of Minatare, Nebraska, after a
citizen reported that a white pickup “was all over the roadway.”
After leaving his primary jurisdiction, Rockwell observed a
white pickup make a “wide turn” onto a highway heading east.
Rockwell observed the pickup straddling the centerline and
trash coming from the driver’s-side window.
Rockwell activated his vehicle’s lights and began follow-
ing the pickup. Rockwell “thought there was going to be an
accident” after he watched the pickup turn into oncoming
traffic and down into the grass median. The driver “acceler-
ated really hard . . . throwing grass and dirt up . . . away from
the pickup.”
After driving back up onto the highway and “accelerat[ing]
rapidly,” the pickup pulled over to the right side of the high-
way and stopped. Rockwell identified the driver as Michael
C. Hoehn. Rockwell observed Hoehn had “[s]lurred speech,
bloodshot, watery eyes” and detected “a strong odor of an
alcoholic beverage coming out of the vehicle.”
Rockwell administered a preliminary breath test and other
field sobriety tests, which Hoehn failed, and then Rockwell
2 See id.

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STATE v. HOEHN
Cite as 316 Neb. 634
arrested Hoehn for DUI. These events occurred in Scotts Bluff
County, and the State does not dispute that “the above events,
including the pursuit and stop of the vehicle, occurred on road-
ways outside” of Minatare. 3
Hoehn was charged in Scotts Bluff County Court with first-
offense DUI with a blood alcohol content of .15 or more, a
Class W misdemeanor.
2. Motion to Suppress
Hoehn filed a motion to suppress “all fruits of the illegal
search and seizure, and his subsequent arrest.” He alleged in
the motion that the evidence “was unlawfully seized with-
out a warrant and without probable cause in violation of the
Fourth and Fourteenth Amendment of the U.S. Constitution
and also Art. I §7 of the Nebraska Constitution, and all appli-
cable statutes.”
(a) Arguments at Suppression Hearing
At the suppression hearing, Rockwell testified to the facts
set forth above. During direct examination, defense counsel
told the county court: “[W]e’re going to ask just to limit this
to the stop and arrest. I don’t think anything after that is nec-
essary for the motion to suppress. We’ll withdraw anything
beyond that point.” Following Rockwell’s testimony, the fol-
lowing exchange occurred:
[The Court:] I would entertain your argument at this
time, counsel.
[Defense counsel:] Your Honor, I think that as we dis-
cussed, whether or not they have authority and whether or
not they made a proper exception to the warrant require-
ment, I think in this instance there’s no demonstration of
that proper authority.
State vs. Oerlich — and, unfortunately, I don’t know
how — I think it’s O-e-r-l-i-c-h, but I am not positive
— I think demonstrates here that there is insufficient
3 Brief for appellee in support of petition for further review at 4.

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STATE v. HOEHN
Cite as 316 Neb. 634
showing in which they were authorized to make this stop,
Your Honor.
. . . .
[The State:] Yeah . . . I just went ahead and put every-
thing on because the motion to suppress talked about
not having a warrant, which, of course, you don’t need a
warrant to make a traffic stop.
The guy is driving drunk. He’s all over the road,
and he’s throwing beer cans out the window. That’s a
no-brainer. As far as the warrant issue, he consented
to a search and voluntarily agreed to give a sample of
his blood.
That’s an exception to the warrant requirement.
(b) State v. Ohlrich
While not further discussed by the parties at the hearing, in
State v. Ohlrich, 4 the Court of Appeals reversed the defend-
ant’s conviction and remanded the cause with directions for
the trial court to grant the defendant’s motion to suppress
evidence derived from his arrest because there was insuffi-
cient evidence of an interlocal agreement under § 29-215(2)(d)
granting the officer “authority” to execute the warrantless
arrest that occurred outside of his primary jurisdiction. The
defendant had alleged the evidence obtained after his arrest
was “‘fruit of the tree of his illegal arrest.’” 5 The Court of
Appeals agreed.
(c) County Court’s Decision
Following the parties’ arguments at the hearing on Hoehn’s
motion to suppress, the county court pronounced it believed
the State had “proper authority” to stop and arrest Hoehn and
that there was “probable cause” to do so:
[A]s to the stop and arrest as argued by counsel, I do
find the state had proper authority to make a traffic
4 State v. Ohlrich, 20 Neb. App. 67, 74, 817 N.W.2d 797, 804 (2012).
5 Id. at 71, 817 N.W.2d at 801.

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Nebraska Supreme Court Advance Sheets
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STATE v. HOEHN
Cite as 316 Neb. 634
stop upon observing the driving through the median, the
taking the wide turn, the driving across the center line
next to the median. The odor of alcoholic beverage, his
speech being slurred, his eyes bloodshot and watery, his
inability to complete the field sobriety tests . . . as well
as the preliminary breath test that was administered,
I find there was sufficient probable cause to — for
the arrest.
On that basis I find that there is no merit to the motion
to suppress and it should be and hereby is overruled.
The county court set forth in its written order: “A careful
examination of the evidence concerning the stop and arrest of
[Hoehn] shows the motion to suppress is without merit. There
was sufficient evidence justifying the traffic stop, and the arrest
is supported by ample evidence of probable cause.”
3. Stipulated Trial and Sentencing
Pursuant to a plea agreement, the State amended the charge
to first-offense DUI with a blood alcohol content of .08 or
more, also a Class W misdemeanor, and said it would not
oppose a sentence of probation. Further, the parties agreed to a
bench trial upon the transcript of the suppression hearing and
stipulated that a blood test produced a result of “.245.”
In the stipulation, defense counsel objected to the evidence
“based on his Motion to Suppress.” During the stipulated
bench trial, Hoehn renewed his motion to suppress, stating:
“And just before we start[,] I’d just make my objection on the
Fourth and Fourteenth Amendment, similar provisions of the
Nebraska Constitution, as addressed in the motion to suppress
hearing on August 16th, Your Honor.” The court overruled
the objection.
The court found Hoehn guilty of the charged offense and
sentenced him to 12 months’ probation, 40 hours of community
service, a $500 fine, and a 60-day license revocation, along
with an order authorizing an ignition interlock permit.

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Nebraska Supreme Court Advance Sheets
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STATE v. HOEHN
Cite as 316 Neb. 634
4. Appeal to District Court
Hoehn timely appealed to the district court, assigning that
the county court erred in its decision to overrule his motion
to suppress and that there was insufficient evidence to sustain
his conviction. While Hoehn’s brief is not in our record, the
district court’s written order states that Hoehn argued on appeal
that Rockwell did not have jurisdictional authority to perform
the traffic stop. Also, the district court characterized Hoehn’s
motion to suppress as “challeng[ing] the officer[’]s authority to
stop [Hoehn] outside of his primary jurisdiction.” The district
court thus addressed § 29-215.
(a) § 29-215
Section 29-215 generally describes that an officer has “the
power and authority to enforce the laws of this state . . . any-
where within his or her primary jurisdiction” and identifies
circumstances when a law enforcement officer who is “beyond
his or her primary jurisdiction” has “the power and authority
to enforce the laws of this state.” Section 29-215 provides:
(1) A law enforcement officer has the power and
authority to enforce the laws of this state and of the
political subdivision which employs the law enforcement
officer or otherwise perform the functions of that office
anywhere within his or her primary jurisdiction.
(2) Any law enforcement officer who is within this
state, but beyond his or her primary jurisdiction, has the
power and authority to enforce the laws of this state or
any legal ordinance of any city or incorporated village
or otherwise perform the functions of his or her office,
including the authority to arrest and detain suspects, as
if enforcing the laws or performing the functions within
his or her primary jurisdiction in the following cases:
(a) Any such law enforcement officer, if in a fresh
attempt to apprehend a person suspected of committing
a felony, may follow such person into any other jurisdic-
tion in this state and there arrest and detain such person

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STATE v. HOEHN
Cite as 316 Neb. 634
and return such person to the law enforcement officer’s
primary jurisdiction;
(b) Any such law enforcement officer, if in a fresh
attempt to apprehend a person suspected of committing
a misdemeanor or a traffic infraction, may follow such
person anywhere in an area within twenty-five miles of
the boundaries of the law enforcement officer’s primary
jurisdiction and there arrest and detain such person and
return such person to the law enforcement officer’s pri-
mary jurisdiction;
. . . .
(d) Any municipality or county may, under the pro-
visions of the Interlocal Cooperation Act or the Joint
Public Agency Act, enter into a contract with any other
municipality or county for law enforcement services or
joint law enforcement services. Under such an agreement,
law enforcement personnel may have such enforcement
authority within the jurisdiction of each of the participat-
ing political subdivisions if provided for in the agree-
ment. Unless otherwise provided in the agreement, each
participating political subdivision shall provide liability
insurance coverage for its own law enforcement personnel
as provided in section 13-1802.
(3) When probable cause exists to believe that a person
is operating or in the actual physical control of any motor
vehicle, motorboat, personal watercraft, or aircraft while
under the influence of alcoholic liquor or of any drug
or otherwise in violation of section 28-1465, 28-1466,
28-1472, 37-1254.01, 37-1254.02, 60-4,163, 60-4,164,
60-6,196, 60-6,197, 60-6,211.01, or 60-6,211.02, the law
enforcement officer has the power and authority to do
any of the following or any combination thereof:
(a) Transport such person to a facility outside of the
law enforcement officer’s primary jurisdiction for appro-
priate chemical testing of the person;

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Nebraska Supreme Court Advance Sheets
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STATE v. HOEHN
Cite as 316 Neb. 634
(b) Administer outside of the law enforcement officer’s
primary jurisdiction any post-arrest test advisement to the
person; or
(c) With respect to such person, perform other proce-
dures or functions outside of the law enforcement officer’s
primary jurisdiction which are directly and solely related
to enforcing the laws that concern a person operating or
being in the actual physical control of any motor vehicle,
motorboat, personal watercraft, or aircraft while under
the influence of alcoholic liquor or of any other drug
or otherwise in violation of section 28-1465, 28-1466,
28-1472, 37-1254.01, 37-1254.02, 60-4,163, 60-4,164,
60-6,196, 60-6,197, 60-6,211.01, or 60-6,211.02.
(b) District Court’s Decision
The district court concluded that, pursuant to § 29-215(3)(c),
when probable cause exists, officers have authority to perform
stops and arrests outside of their primary jurisdiction that are
solely related to enforcing laws that concern a person operat-
ing or in actual physical control of any motor vehicle. The
district court concluded that because Rockwell had probable
cause to believe Hoehn was operating a motor vehicle under
the influence and the stop was solely related to his operation
of a motor vehicle, Rockwell had jurisdictional authority to
stop and arrest Hoehn, and that the motion to suppress was
properly overruled. The court rejected Hoehn’s argument that
there was insufficient evidence to sustain the conviction.
5. Court of Appeals
(a) Issues Raised on Appeal
Hoehn appealed the district court’s determination to the
Court of Appeals. He assigned as error that the district court
erred in affirming the county court’s denial of his motion
to suppress. He did not assign as error the county court’s
determination that the evidence was insufficient to support
his conviction. Hoehn argued that observation of his erratic
driving was insufficient to establish probable cause and that

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STATE v. HOEHN
Cite as 316 Neb. 634
Rockwell could not leave his jurisdiction without probable
cause pursuant to § 29-215(3). He argued that even if there
was probable cause for his arrest, § 29-215(3) authorizes only
postarrest actions and does not authorize an officer to make a
stop outside of the officer’s jurisdiction. Hoehn did not argue
that § 29-215 independently granted him a statutory right
to suppress evidence in a criminal trial when it is violated.
Rather, he indicated his right to suppress the evidence derived
from the stop was based solely on the Fourth Amendment and
article I, § 7, of the Nebraska Constitution.
The State argued on appeal that the district court’s interpre-
tation of § 29-215(3) was correct and encouraged the Court of
Appeals to affirm for the same reasons stated by the district
court. The State asserted that pursuant to § 29-215(3), if prob-
able cause exists to believe an individual is operating a motor
vehicle while under the influence, law enforcement has the
authority to stop the individual outside of the officer’s primary
jurisdiction. The State also asserted there was probable cause
for Rockwell to believe Hoehn was driving while under the
influence. The State did not suggest the district court erred by
considering Rockwell’s power and authority under § 29-215,
because that issue was inadequately raised to, and not deter-
mined by, the county court. To the contrary, the State told
the Court of Appeals at oral arguments that Hoehn had suf-
ficiently raised § 29-215 to the county court.
(b) Court of Appeals’ Decision
The Court of Appeals found that Rockwell had probable
cause to stop Hoehn’s vehicle. Nevertheless, it agreed with
Hoehn’s reading of § 29-215(3)(c) and disagreed with the dis-
trict court’s interpretation of the statute. The Court of Appeals
held that, even with probable cause, the stop was outside of
Rockwell’s jurisdictional authority as described by § 29-215.
(i) Construction of § 29-215
Applying the ejusdem generis canon of construction, the
Court of Appeals interpreted § 29-215(3)(c) as a grant of

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STATE v. HOEHN
Cite as 316 Neb. 634
power of the same limiting type as those powers set forth in
§ 29-215(3)(a) and (b), which allow an officer to transport a
person to a facility for chemical testing and to administer a
postarrest test advisement outside the officer’s primary juris-
diction. In other words, the majority interpreted § 29-215(3)(c)
“as granting other procedural-type powers relating to enforcing
laws outside the officer’s primary jurisdiction incident to an
arrest or detention.” 6
(ii) Fourth Amendment and
State v. Cuny
The Court of Appeals next addressed whether the Fourth
Amendment applies to a violation of § 29-215 and, if so,
whether the exclusionary rule required the suppression of
evidence obtained from the stop and arrest of Hoehn. Relying
on State v. Cuny, 7 the court determined that a violation of the
jurisdictional requirements in § 29-215 triggers the Fourth
Amendment, thereby implicating the exclusionary rule.
Cuny involved the stop of a vehicle in Nebraska by out-of-
state officers, who had observed the vehicle in their jurisdic-
tion and followed it beyond the border. The driver was con-
victed of misdemeanor DUI, following the denial of a motion
to suppress based on the officers’ alleged lack of power and
authority to make the stop and arrest. We explained that the
power of a police officer under common law was limited to
the boundaries of the governmental unit by which the officer
was appointed, unless acting in “fresh and continued pursuit”
of a suspected felon who had committed an offense in the
officer’s presence and within the officer’s territorial jurisdic-
tion. 8 Because the defendant was charged and convicted of a
misdemeanor, this common-law “fresh pursuit” exception did
not apply and any authority of the officers must derive from
statutory law. We held that § 29-215 applies only to Nebraska
6 State v. Hoehn, supra note 1, 32 Neb. App. at 461, 999 N.W.2d at 611.
7 State v. Cuny, 257 Neb. 168, 595 N.W.2d 899 (1999).
8 See id. at 172, 595 N.W.2d at 902.

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STATE v. HOEHN
Cite as 316 Neb. 634
law enforcement officers and does not authorize an out-of-state
police officer to stop and arrest a suspect for a misdemeanor
DUI inside Nebraska. We did not otherwise address the mean-
ing of the various subsections of the statute. We concluded
that the evidence obtained from the stop and arrest of the
defendant, which “was the fruit of an illegal search or seizure,
in violation of the Fourth Amendment to the U.S. Constitution
and article I, § 7, of the Nebraska Constitution, [was] inadmis-
sible in a state prosecution, and must be excluded.” 9
The Court of Appeals acknowledged that this court’s deci-
sion in Cuny lacked any analysis regarding the interplay
between a statutory jurisdictional violation under § 29-215
and the Fourth Amendment. It further recognized the existence
of case law from other jurisdictions holding that statutory
violations do not implicate an individual’s Fourth Amendment
rights. Nevertheless, the majority elected to follow this court’s
holding in Cuny, because of its factual similarities and to
avoid reaching an outcome inconsistent with our precedent.
Thus, the Court of Appeals held that Hoehn’s rights under
the Fourth Amendment to the U.S. Constitution and article I,
§ 7, of the Nebraska Constitution were violated, invoking the
exclusionary rule.
(iii) Good Faith Exception to
Exclusionary Rule
Lastly, the Court of Appeals determined that the good
faith exception to the exclusionary rule applied. 10 Because
the exclusionary rule was created to deter police misconduct
rather than to punish errors, 11 it does not apply to objectively
reasonable law enforcement activity. 12 Because § 29-215(3)(c)
had not previously been construed by an appellate court at the
9 See id. at 173, 595 N.W.2d at 903.
10 See, e.g., State v. Simons, 315 Neb. 415, 996 N.W.2d 607 (2023); State v.
Hatfield, 304 Neb. 66, 933 N.W.2d 78 (2019).
11 See State v. Kruse, 303 Neb. 799, 931 N.W.2d 148 (2019).
12 See State v. Hoerle, 297 Neb. 840, 901 N.W.2d 327 (2017).

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Cite as 316 Neb. 634
time of the violation, the Court of Appeals held that “Rockwell
could have reasonably believed that he had jurisdictional
authority to stop and arrest Hoehn.” 13 And because Rockwell
had probable cause justifying the stop and arrest, the Court
of Appeals determined Rockwell’s actions were not carried
out in a deliberate, reckless, or grossly negligent disregard of
Hoehn’s Fourth Amendment rights. Accordingly, albeit on dif-
ferent grounds from those assigned by the district court, the
Court of Appeals affirmed the district court’s decision, affirm-
ing Hoehn’s conviction in the county court based on evidence
derived from the stop and arrest.
(iv) Concurring Opinion
In a concurring opinion, Judge Bishop agreed with the dis-
trict court’s interpretation of § 29-215(3)(c) and disagreed with
the majority opinion’s reading of the statute. Judge Bishop
observed that § 29-215(3) makes no reference to whether
the officer is within or beyond the officer’s primary jurisdic-
tion. Thus,
if there is probable cause to believe a person is operat-
ing a vehicle under the influence of alcohol or drugs,
whether within or beyond an officer’s primary juris-
diction, a law enforcement officer has the power and
authority to transport the person to a facility outside the
officer’s primary jurisdiction for chemical testing, see
§ 29-215(3)(a); to administer, outside the officer’s pri-
mary jurisdiction, any post-arrest test advisement to the
person, see § 29-215(3)(b); and then the catch-all provi-
sion, to “perform other procedures or functions outside of
the law enforcement officer’s primary jurisdiction which
are directly and solely related to enforcing the laws that
concern a person operating or being in the actual physical
control of any motor vehicle . . . while under the influ-
ence” of alcohol or drugs, § 29-215(3)(c). 14
13 State v. Hoehn, supra note 1, 32 Neb. App. at 465, 999 N.W.2d at 613.
14 Id. at 471, 999 N.W.2d at 616 (Bishop, J., concurring).

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STATE v. HOEHN
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Judge Bishop further stated that even if the majority properly
construed § 29-215(3), she disagreed with its determination
that a violation of the statute implicates the Fourth Amendment.
Relying on cases such as Virginia v. Moore 15 and Marksmeier
v. Davie, 16 Judge Bishop explained that state restrictions do not
alter Fourth Amendment protections.
We granted the State’s and Hoehn’s petitions for further
review.
III. ASSIGNMENTS OF ERROR
Hoehn assigns that the Court of Appeals erred in “determin-
ing the exclusionary rule did not apply” to Rockwell’s alleg-
edly unconstitutional stop outside of his primary jurisdiction.
The State assigns that the Court of Appeals erred in (1)
addressing the merits of Hoehn’s argument because he alleg-
edly did not raise it to the county court, (2) its interpretation
of § 29-215(3)(c), and (3) determining that a violation of
§ 29-215 implicates the Fourth Amendment.
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,
an appellate court applies a two-part standard of review. 17
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination. 18
V. ANALYSIS
At issue is whether the Court of Appeals was correct in
holding that the district court did not err in affirming the
15 Virginia v. Moore, 553 U.S. 164, 128 S. Ct. 1598, 170 L. Ed. 2d 559
(2008).
16 Marksmeier v. Davie, 622 F.3d 896 (8th Cir. 2010).
17 State v. Simons, supra note 10.
18 Id.

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county court’s ruling denying Hoehn’s motion to suppress
and overruling Hoehn’s renewal of the motion at trial based
“on the Fourth and Fourteenth Amendment, similar provisions
of the Nebraska Constitution.” Hoehn’s sole argument on
further review is that the Court of Appeals erred in determin-
ing it was reasonable for an officer in Rockwell’s position to
mistakenly believe he had the statutory power and authority
to make the stop and that therefore, it serves no deterrent
purpose to apply the exclusionary rule. He does not argue
that the Court of Appeals erred in determining Rockwell had
probable cause to make the stop.
[2-4] The Fourth Amendment protects against unreasonable
searches and seizures. 19 Under the exclusionary rule, evidence
obtained in violation of the Fourth Amendment generally
cannot be used in a criminal proceeding against the victim
of the illegal search and seizure. 20 However, an investigatory
stop supported by reasonable suspicion and an arrest justified
by probable cause do not violate the Fourth Amendment. 21
Article I, § 7, of the Nebraska Constitution is phrased identi-
cally to the Fourth Amendment. We have previously declined
to afford greater protections against governmental searches
and seizures under the Nebraska Constitution than its federal
counterpart. 22 Hoehn makes no argument that we should do
so here.
[5] In line with the U.S. Supreme Court’s holding in 2008
in Moore, 23 we hold that a law enforcement officer’s statutory
power and authority to enforce laws outside of the officer’s
primary jurisdiction does not implicate the Fourth Amendment
or article I, § 7, of the Nebraska Constitution. We thus find
merit to the State’s assignment that the Court of Appeals
19 See id.
20 See id.
21 See State v. Drake, 311 Neb. 219, 971 N.W.2d 759 (2022).
22 See State v. Havlat, 222 Neb. 554, 385 N.W.2d 436 (1986).
23 Virginia v. Moore, supra note 15.

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erred in determining a violation of § 29-215 implicates the
Fourth Amendment. Nevertheless, we affirm the Court of
Appeals’ ultimate determination that the evidence obtained
from the stop and arrest was properly admitted at trial and
that Hoehn’s conviction should stand.
1. Virginia v. Moore
In Moore, the U.S. Supreme Court clarified that whether
a search is reasonable under the Fourth Amendment “has
never depend[ed] on the law of the particular State in which
the search occurs.” 24 The Court accordingly held that where
there was probable cause for the defendant’s arrest for driving
with a suspended license, the trial court properly denied the
defendant’s motion to suppress evidence found in the search
pursuant to that arrest, even though the arresting officer lacked
authority to make the arrest because driving with a suspended
license was not an arrestable offense under state law. 25
The Court explained that the reasonableness of a search
and seizure under the Fourth Amendment is analyzed “‘by
assessing, on the one hand, the degree to which it intrudes
upon an individual’s privacy and, on the other, the degree to
which it is needed for the promotion of legitimate govern-
mental interests.’” 26 “In a long line of cases,” said the Court,
it has been held that “when an officer has probable cause to
believe a person committed even a minor crime in his pres-
ence, the balancing of private and public interests is not in
doubt. The arrest is constitutionally reasonable.” 27 This test
24 Id., 553 U.S. at 172 (internal quotation marks omitted). See, Whren v.
United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996);
California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30
(1988); Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730
(1967).
25 See Virginia v. Moore, supra note 15.
26 Id., 553 U.S. at 171 (quoting Wyoming v. Houghton, 526 U.S. 295, 119 S.
Ct. 1297, 143 L. Ed. 2d 408 (1999)).
27 Virginia v. Moore, supra note 15, 553 U.S. at 171.

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of reasonableness “serves interests that have long been seen
as sufficient to justify the seizure,” ensuring that “a suspect
appears to answer charges and does not continue a crime,
and it safeguards evidence and enables officers to conduct an
in-custody investigation.” 28 It also serves the “‘essential inter-
est in readily administrable rules’” and the “need for a bright-
line constitutional standard.” 29
The Court explained that the Fourth Amendment was never
understood as “a redundant guarantee of whatever limits on
search and seizure legislatures might have enacted” 30 and,
“if anything,” reflected a skepticism of the “index of reason-
ableness” set forth under those laws. 31 Furthermore, said the
Court, nothing suggests the Fourth Amendment was intended
to incorporate subsequently enacted statutes. Even in states
with similar constitutional provisions prohibiting unreason-
able searches and seizures, “citizens who claimed officers
had violated state restrictions on arrest did not claim that the
violations also ran afoul of the state constitutions.” 32
Additional state protections of privacy beyond what the
Fourth Amendment requires are exclusively matters of state
law. 33 Indeed, to extend Fourth Amendment protections, which
often include the exclusionary rule, to violations of state
laws protecting “individual privacy and dignity more than
the Fourth Amendment requires,” 34 would take control away
from states to decide what remedy should attach to such state
law violations.
28 Id., 553 U.S. at 173.
29 Id., 553 U.S. at 175.
30 Id., 553 U.S. at 168.
31 Id., 553 U.S. at 169.
32 Id., 553 U.S. at 170.
33 See Virginia v. Moore, supra note 15.
34 Id., 453 U.S. at 174.

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The Court pointed to a prior case, Whren v. United States, 35
wherein it held that the police had acted reasonably, under
the Fourth Amendment, in stopping a car, even though they
lacked “authority” under state law to make the stop because
they were in plainclothes in an unmarked vehicle. 36 It reiter-
ated what it said in Whren—that the Fourth Amendment pro-
tections cannot vary from place to place and time to time in
accordance with state laws governing “local law enforcement
practices.” 37 “[W]hen States go above the Fourth Amendment
minimum, the Constitution’s protections concerning search
and seizure remain the same.” 38 To do otherwise would pro-
duce a vague and unpredictable constitutional regime “only as
easy to apply as the underlying state law, and state law can be
complicated indeed.” 39
2. Eighth Circuit
Applying Moore to an arrest by an off-duty Nebraska law
enforcement officer, the Eighth Circuit Court of Appeals,
in Marksmeier, 40 held that an arrest outside of the officer’s
power and authority pursuant to § 29-215, but with probable
cause, does not violate the Fourth Amendment. In an action
brought under “42 U.S.C. § 1983,” the plaintiff in Marksmeier
asserted that, pursuant to § 29-215(1), the arresting officer
lacked the power and authority to effectuate the arrest. 41 The
Eighth Circuit responded that it was unnecessary to decide
whether the arresting officer was acting within his jurisdic-
tional authority at the time of the arrest. It held that even if
35 Whren v. United States, supra note 24.
36 Id., 517 U.S. at 172.
37 Id.
38 Id., 517 U.S. at 173.
39 Id., 517 U.S. at 175.
40 Marksmeier v. Davie, supra note 16.
41 Id. at 897.

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the arrest violated Nebraska law, it did not violate the Fourth
Amendment, as it was supported by probable cause. 42
A similar result was reached by the Eighth Circuit in Rose
v. City of Mulberry, Arkansas. 43 The court held that the arrest
by an Arkansas officer who was acting outside of his juris-
diction in violation of state law did not violate the Fourth
Amendment, because the officer had probable cause to detain
and arrest the driver after witnessing the driver commit a traf-
fic violation.
3. Other State and Federal Decisions
Several other state and federal courts have likewise held
that a stop supported by reasonable suspicion, or an arrest
supported by probable cause, does not violate the Fourth
Amendment, even if the officer acted outside of the officer’s
statutory jurisdiction. 44
For example, the First Circuit Court of Appeals, in U.S. v.
Ryan, 45 held that the Fourth Amendment does not require the
exclusion of evidence gathered after an arrest made outside
of a federal law enforcement officer’s statutory jurisdiction.
The court explained that “an officer . . . arrest[ing] an obvi-
ously intoxicated driver just outside that officer’s territorial
jurisdiction, after a lawful traffic stop, is ‘not remotely’ akin
42 Marksmeier v. Davie, supra note 16.
43 Rose v. City of Mulberry, Arkansas, 533 F.3d 678 (8th Cir. 2008).
44 See, U.S. v. Ryan, 731 F.3d 66 (1st Cir. 2013); U.S. v. Jones, 701 F.3d
1300 (10th Cir. 2012); U.S. v. Goings, 573 F.3d 1141 (11th Cir. 2009).
See, also, U.S. v. Castleman, 795 F.3d 904 (8th Cir. 2015); State v. Barton,
669 S.W.3d 661 (Mo. 2023); Westra v. Iowa Dept. of Transportation,
929 N.W.2d 754 (Iowa 2019); State v. Gates, 145 So. 3d 288 (La. 2014);
State v. Morris, 92 A.3d 920 (R.I. 2014); State v. Jones, 121 Ohio St.
3d 103, 902 N.E.2d 464 (2009); State v. Smith, 154 N.H. 113, 908 A.2d
786 (2006); People v. Hamilton, 465 Mich. 526, 638 N.W.2d 92 (2002),
abrogated on other grounds, Bright v. Ailshie, 465 Mich. 770, 641 N.W.2d
587; People v. Wolf, 635 P.2d 213 (Colo. 1981) (en banc); 1 Charles E.
Torcia, Wharton’s Criminal Procedure § 59 (13th ed. 1989).
45 U.S. v. Ryan, supra note 44.

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to the invasions of privacy that might call for the exclusion of
evidence [under the Fourth Amendment].” 46
The Supreme Court of Ohio, in State v. Jones, 47 simi-
larly held that the fact that the officer conducting the stop
of the defendant was outside his jurisdiction and his reasons
for being there were “irrelevant to the Fourth Amendment
analysis.” 48 Instead, the “sole focus of the inquiry should [be]
on the stop itself.” 49
The Supreme Court of Michigan, in People v. Hamilton, 50
also held that the fact that an arrest was made outside of
the officer’s jurisdiction in violation of state law did not
require exclusion of the evidence obtained after the arrest.
“The Fourth Amendment exclusion rule,” explained the court,
“applies to constitutionally invalid arrests, not merely statuto-
rily illegal arrests.” 51
4. Nebraska Case Law
Cuny was decided by this court before the U.S. Supreme
Court’s decision in Moore and the Eighth Circuit’s decision in
Marksmeier. 52 And we did not discuss in Cuny why the “unlaw-
ful” nature of the stop and arrest, due to it being beyond the
officers’ jurisdictional authority, made the evidence obtained
therefrom a violation of the Fourth Amendment to the U.S.
Constitution and article I, § 7, of the Nebraska Constitution.
In Cuny, we cited to State v. Masat, 53 decided in 1992,
wherein we conducted a very similar analysis. After discuss-
ing that the officer lacked territorial jurisdiction under either
46 Id. at 70.
47 State v. Jones, supra note 44.
48 Id. at 107-08, 902 N.E.2d at 468.
49 Id. at 108, 902 N.E.2d at 468.
50 People v. Hamilton, supra note 44.
51 Id. at 532-33, 638 N.W.2d at 96.
52 See State v. Cuny, supra note 7. See, also, Virginia v. Moore, supra note
15; Marksmeier v. Davie, supra note 16.
53 State v. Masat, 239 Neb. 849, 479 N.W.2d 131 (1992).

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statutory or common law to stop the defendant’s vehicle out-
side the city limits, we held in Masat that the trial court erred
in failing to suppress the evidence derived from the arrest of a
driver for DUI. We said, “Evidence obtained as the fruit of an
illegal search or arrest, in violation of the fourth amendment
to the U.S. Constitution and the provisions of article I, § 7,
of the Nebraska Constitution, is inadmissible in a prosecution
in this state and must be excluded.” 54 We did not examine
why the lack of jurisdictional authority is cognizable under
the Fourth Amendment and the identical provision of the
Nebraska constitution.
In Masat, we relied on State v. Tingle, 55 decided the year
before. In Tingle, after determining that the officer’s arrest
of 	the 	defendant 	was 	beyond 	the 	officer’s 	“geographical
jurisdiction” 56 under state law, both statutory and common
law, we cited to the general proposition that evidence obtained
as the fruit of an illegal search or seizure, in violation of
the Fourth amendment to the U.S. Constitution and article I,
§ 7, of the Nebraska Constitution, is inadmissible in a state
prosecution and must be excluded. We then held, without
further discussion or citation to authority, that “the arrest was
constitutionally illegal and that the trial court was clearly
wrong in not suppressing all evidence obtained subsequent to
such arrest.” 57
In Tingle, we cited to State v. Knudsen 58 for the proposition
that “[a]lthough the illegality of the arrest in question gives
rise to collateral rights and remedies such as the exclusionary
rule,” 59 it is not a defense to the crime. In Knudsen, however,
we made no reference to the exclusionary rule. We affirmed
54 Id. at 852, 479 N.W.2d at 133.
55 State v. Tingle, 239 Neb. 558, 477 N.W.2d 544 (1991).
56 Id. at 563, 477 N.W.2d at 548.
57 Id. at 566, 477 N.W.2d at 550.
58 State v. Knudsen, 201 Neb. 584, 270 N.W.2d 926 (1978).
59 State v. Tingle, supra note 55, 239 Neb. at 566, 477 N.W.2d at 550.

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a conviction for DUI after the defendant was stopped and
arrested by a police officer allegedly acting outside of the city
limits beyond which he had no authority to act. The defend-
ant contended that the arrest was illegal because the officer
had no authority to make an arrest beyond the city limits and,
therefore, the judgment should be reversed. We said it was
unnecessary to determine if the arrest was “illegal” because
“the validity of the arrest was of no consequence so far as the
prosecution for the offense was concerned.” 60 We continued,
“Although the illegality of an arrest may give rise to other col-
lateral rights and remedies, it ordinarily is not a defense to the
crime for which the arrest was made.” 61
The Legislature adopted 1994 Neb. Laws, L.B. 254, § 1,
now codified at § 29-215, in response to the effect of the
holding in Tingle. 62 There is no case before Tingle discussing
the admissibility of evidence derived from a stop or arrest
conducted by a law enforcement officer outside of that offi-
cer’s territorial jurisdiction. The Court of Appeals’ decision
in Ohlrich 63 is the only case in Nebraska decided after Moore
and Marksmeier on this issue, but Ohlrich discussed neither
case, nor Cuny, in reaching its conclusion that the trial court
did not err in suppressing the evidence obtained following the
defendant’s arrest that was effectuated by an officer’s acting
outside of his statutory jurisdiction. Likewise, the opinion pre-
sented little reasoning to support its holding.
Our case law holding that the Fourth Amendment and
the corresponding provision of the Nebraska Constitution
is implicated by the admission of evidence from an “ille-
gal” stop or arrest outside an officer’s territorial jurisdiction
appears based on a misunderstanding of the nature and scope
of the Fourth Amendment, which has since been clarified by
60 State v. Knudsen, supra note 58, 201 Neb. at 585, 270 N.W.2d at 926.
61 Id.
62 See State v. Connick, 5 Neb. App. 176, 557 N.W.2d 713 (1996).
63 State v. Ohlrich, supra note 4. See, also, State v. Langan, 6 Neb. App. 739,
577 N.W.2d 752 (1998).

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Moore. 64 We have never indicated an intent to provide greater
constitutional protections than those given under the Fourth
Amendment to stops and arrests effectuated outside of a law
enforcement officer’s territorial jurisdiction.
[6] We overrule Tingle 65 and its progeny to the extent those
cases hold that a violation of state law limitations to the
territorial jurisdiction of law enforcement officers implicates
the Fourth Amendment and article I, § 7, of the Nebraska
Constitution. A law enforcement officer’s jurisdictional power
and authority to make a stop or arrest is irrelevant to the
admissibility, under the Fourth Amendment and article I, § 7,
of the Nebraska Constitution, of the evidence obtained from
the stop or arrest.
5. Application
Thus, regardless of Rockwell’s jurisdictional power and
authority under § 29-215 to have conducted the stop and arrest
of Hoehn, since there is no dispute that the stop was supported
by reasonable suspicion and the arrest was supported by prob-
able cause, the exclusionary rule applicable to violations of
the Fourth Amendment and article I, § 7, of the Nebraska
Constitution does not apply to the fruits of the stop. These
constitutional provisions were the sole basis for Hoehn’s
objection to the evidence at trial. Accordingly, the county
court did not err in denying Hoehn’s motion to suppress
brought under the Fourth Amendment to the U.S. Constitution
and article I, § 7, of the Nebraska Constitution.
We find no merit to the State’s contention that the Court
of Appeals erred in determining whether Rockwell was act-
ing outside of his jurisdictional power and authority when
he stopped and arrested Hoehn, because Hoehn did not ade-
quately raise this issue to the county court. Assuming without
deciding that the jurisdictional authority of Rockwell was not
presented to or passed upon by the county court, it was clearly
64 See Virginia v. Moore, supra note 15.
65 State v. Tingle, supra note 55.

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decided by the district court. And the State did not cross-
appeal the district court’s decision, but instead invited the
Court of Appeals to address § 29-215. Furthermore, the State
conceded at oral arguments before the Court of Appeals that
Hoehn had adequately raised § 29-215 to the county court.
[7,8] If an appellee wants the appellate court to review an
allegedly erroneous determination made by the district court
sitting as an appellate court, it should cross-appeal to preserve
the issue. 66 Furthermore, a party cannot complain of an error
the party invited the court to commit. 67
The State cannot now complain that the Court of Appeals
addressed § 29-215 simply because it does not like its interpre-
tation of the statute. We express no opinion, however, as to the
correctness of the Court of Appeals’ interpretation of § 29-215,
because it is not necessary to our holding in this appeal.
VI. CONCLUSION
Because a lack of territorial authority under state law in mak-
ing a stop or arrest does not implicate the Fourth Amendment
or article I, § 7, of the Nebraska Constitution, we affirm the
decision of the Court of Appeals, which affirmed the district
court’s decision affirming Hoehn’s conviction and sentence
in the county court based on the admission of the evidence
obtained from the stop and arrest.
Affirmed.
66 See State v. Jennings, 308 Neb. 835, 957 N.W.2d 143 (2021).
67 See, Nebraska Republican Party v. Shively, 311 Neb. 160, 971 N.W.2d 128
(2022); Seid v. Seid, 310 Neb. 626, 967 N.W.2d 253 (2021).