State v. Gorup

280 	275 Nebraska reports
the transfer to Dale of one-half of the balance remaining under
the agreement was a nonprobate transfer within the meaning
of § 30-2715.
docTrIne of M erger
[2] the appellants next assert that the district court erred
in affirming the county court’s failure to allow the doctrine of
merger. the record reveals that the doctrine of merger was not
addressed by either the county court or the district court. an
appellate court will not consider an issue on appeal that was not
passed upon by the trial court.6 therefore, we do not address
this assignment of error.
fIlIng of claIM In proBaTe of lIBBIe ’ s esTaTe
Finally, the appellants assert that the county court erred in
failing to find that Dale should have filed a claim in the probate
of Libbie’s estate, and that the district court erred in affirming.
the transfer to Dale of one-half of the balance remaining under
the agreement in this case was a nonprobate transfer. as such,
it was not necessary for Dale to file a claim against Libbie’s
estate. We find this assignment of error to be without merit.
CoNCLUsIoN
For the reasons discussed above, we affirm the judgment of
the district court.
affIrMed .
6 Thorson v. Nebraska Dept. of Health & Human Servs., 274 Neb. 322, 740
N.W.2d 27 (2007).
sTaTe of neBraska , appellee , v .
T errence k. gorup , appellanT.
745 N.W.2d 912
Filed March 21, 2008. 	No. s-07-450.
1. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable
Cause. a trial court’s ruling on a motion to suppress, apart from determina-
tions of reasonable suspicion to conduct investigatory stops and probable cause
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

to perform warrantless searches, will be upheld unless its findings of fact are
clearly erroneous.
2. Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless
searches and seizures are per se unreasonable under the Fourth amendment, sub-
ject only to a few specifically established and well-delineated exceptions, which
must be strictly confined by their justifications.
3. Warrantless Searches. the warrantless search exceptions recognized by the
Nebraska supreme Court include: (1) searches undertaken with consent or
with probable cause, (2) searches under exigent circumstances, (3) inventory
searches, (4) searches of evidence in plain view, and (5) searches incident to a
valid arrest.
4. Warrantless Searches: Search and Seizure: Proof. In the case of a search and
seizure conducted without a warrant, the state has the burden of showing the
applicability of one or more of the exceptions to the warrant requirement.
5. Search and Seizure: Proof. Where a search following an illegal entry is justified
based on alleged consent, a court must determine whether that consent was vol-
untary, and in addition, the court must determine whether the illegal entry tainted
that consent.
6. Search and Seizure: Police Officers and Sheriffs: Evidence. evidence must be
excluded as fruit of the poisonous tree if it is discovered by the exploitation of
illegal police conduct.
appeal 	from 	the 	District 	Court 	for 	sarpy 	County:
davId k. arTerBurn, Judge. Judgment vacated, and cause
remanded with directions.
ann C. addison-Wageman for appellant.
Jon bruning, attorney General, and George r. Love for
appellee.
heavIcan, 	C.J., 	W rIghT, 	connolly, 	gerrard, 	sTephan,
M ccorMack, and MIller -lerMan, JJ.
W rIghT, J.
NatUre oF Case
before trial, terrence k. Gorup moved to suppress evidence
of methamphetamine found in his apartment. He alleged that
the search of his apartment violated his constitutional rights.
the district court overruled his motion. Following a bench trial,
Gorup was convicted of possession of a controlled substance,
methamphetamine, a Class Iv felony. He appeals his conviction
and sentence.
state v. GorUp 	281
Cite as 275 Neb. 280

282 	275 Nebraska reports
sCope oF revIeW
[1] a trial court’s ruling on a motion to suppress, apart from
determinations of reasonable suspicion to conduct investigatory
stops and probable cause to perform warrantless searches, will
be upheld unless its findings of fact are clearly erroneous. State
v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003).
FaCts
In July 2006, the bellevue police Department conducted an
investigation of Gorup, who was suspected of dealing narcotics
from his apartment. When it was discovered that Gorup had a
warrant outstanding for failure to appear on a previous drug
violation, two detectives formulated a plan to go to Gorup’s
apartment and conduct a “knock-and-talk investigation” with
Gorup concerning suspected drug trafficking. their objective
was to obtain Gorup’s consent to search his apartment.
on July 31, 2006, the detectives arrived at Gorup’s apart-
ment in an unmarked police vehicle. as they approached the
apartment, a male was seen leaving. When asked if Gorup was
home, the man replied in the affirmative. the man returned
to the apartment, opened the door, and informed Gorup that
someone was there to see him. Gorup appeared and began to
exit the apartment. as he approached the threshold of the door-
way, a detective informed Gorup that he was under arrest. at
that point, Gorup, who was standing directly outside his apart-
ment door, was placed in handcuffs. He was not transported
from the scene immediately because a marked police car was
not available.
While standing at the door, a detective noticed a person sitting
on a couch inside the apartment. He also observed some blade-
edged weapons. Gorup informed the detectives that a couple
of people were in the apartment. after waiting for a uniformed
officer to arrive, the detectives performed what they described
as a “protective sweep” of the apartment. the individuals in the
apartment were escorted to the living room. a detective then
performed what he described as a “search incident to arrest.”
In doing so, he searched a “small black zippered-type case”
located on a table just inside the doorway, 4 or 5 feet away
from Gorup. the case was not zipped shut, and inside, the

detective saw “a couple [of] bags” that he recognized from his
“training and experience as [being] methamphetamine.” He left
the bags inside the case on the table.
During this time, Gorup remained in the hallway with his
hands cuffed behind his back. It is unknown whether Gorup
could observe the detectives’ activity. one detective testified
that a wall probably would have obstructed Gorup’s view of the
detectives’ activity inside the apartment. though not specified
in the record, the parties stated at oral argument that this activ-
ity continued for about 30 minutes.
after this search, one of the detectives directed the uni-
formed officer to escort Gorup to the marked police car. the
same detective followed Gorup to the car, and while Gorup was
seated in the police car, the detective requested Gorup’s consent
to search the apartment. Gorup was informed several times that
he did not have to provide his consent. the detective testified
that Gorup gave his consent to a search of the apartment.
this subsequent search revealed several items of contraband
in addition to the bags of methamphetamine in the black zip-
pered case. after the search, the detective returned to the police
car and read Gorup his Miranda rights. the detective told
Gorup about the black zippered case. Gorup admitted that he
knew of the case but denied that it was his. the detective stated
Gorup told him that Gorup had been selling methamphetamine
to raise money so he could move from his apartment.
before trial, Gorup moved to suppress all items of physical
evidence seized from his apartment. the district court overruled
the motion. the court found that the initial warrantless search
of Gorup’s apartment was not lawful as a protective sweep
and might have been unlawful as a search incident to arrest. It
found that the subsequent consent to the search of the apart-
ment was voluntary and therefore served as an adequate basis
for the seizure of the “hygiene case” and the contents thereof.
It found that although Gorup knew that the detectives had
entered his apartment, he did not know whether incriminating
evidence had been found when he gave his consent to search
the apartment.
after a stipulated bench trial, the district court convicted Gorup
of possession of a controlled substance, methamphetamine, and
state v. GorUp 	283
Cite as 275 Neb. 280

284 	275 Nebraska reports
sentenced him to a term of 1 to 3 years’ imprisonment, grant-
ing him credit for 249 days spent in jail awaiting disposition of
this charge.
assIGNMeNt oF error
Gorup assigns that the district court erred in overruling his
motion to suppress and admitting at trial the evidence obtained
from the search of his apartment.
aNaLYsIs
Gorup asserts that the district court should have granted his
motion to suppress based on federal and state constitutional
grounds. In essence, he argues that his consent was involun-
tary and an exploitation of the prior illegal search. He claims
he reasonably believed that there was nothing to be gained by
denying consent to search his apartment because he had already
witnessed the detectives search the apartment prior to asking
for his consent.
[2-4] Warrantless searches and seizures are per se unreason-
able under the Fourth amendment, subject only to a few specif-
ically established and well-delineated exceptions, which must
be strictly confined by their justifications. State v. Voichahoske,
271 Neb. 64, 709 N.W.2d 659 (2006). the warrantless search
exceptions recognized by this court include: (1) searches under-
taken with consent or with probable cause, (2) searches under
exigent circumstances, (3) inventory searches, (4) searches of
evidence in plain view, and (5) searches incident to a valid
arrest. Id.; State v. Roberts, 261 Neb. 403, 623 N.W.2d 298
(2001). In the case of a search and seizure conducted without a
warrant, the state has the burden of showing the applicability of
one or more of the exceptions to the warrant requirement. Id.
the district court found that the protective sweep of Gorup’s
apartment was unlawful and that the search incident to a valid
arrest might have been unlawful. It concluded, however, that the
warrantless search of the black zippered case was lawful under
the inevitable discovery doctrine because Gorup’s consent was
voluntary. the district court reached the issue of the validity of
Gorup’s consent, but it did not definitively determine whether
the search incident to a valid arrest exception applied. If the
district court had concluded that the first search was valid, it

would not have needed to analyze the validity of Gorup’s con-
sent to the subsequent search. For the purposes of our analysis
of the validity of the consent, we will infer that the district court
found that the search incident to a valid arrest exception did not
apply. thus, the issue presented on appeal is whether Gorup’s
consent to the subsequent search was valid.
[5] Where a search following an illegal entry is justified
based on alleged consent, a court must determine whether
that consent was voluntary, and in addition, the court must
determine whether the illegal entry tainted that consent. U.S.
v. Robeles-Ortega, 348 F.3d 679 (7th Cir. 2003). these two
questions are not the same, and “‘consequently the evidence
obtained by the purported consent should be held admissible
only if it is determined that the consent was both voluntary and
not an exploitation of the prior illegality.’” State v. Lane, 726
N.W.2d 371, 378 (Iowa 2007) (quoting 4 Wayne r. LaFave,
search and seizure, a treatise on the Fourth amendment
§ 8.2(d) (4th ed. 2004)). therefore, in analyzing this consent
to search, there are two issues presented: (1) the voluntariness
of the consent under the totality of the circumstances and (2)
exploitation under the fruit of the poisonous tree doctrine. see
State v. Lane, supra (citing 4 LaFave, supra, § 8.2).
the district court found Gorup’s consent was voluntary
because the detective had advised Gorup that he could refuse
consent and Gorup had not been confronted with any evidence
from the prior search. However, the court erred in failing
to consider the appropriate factors to determine whether the
search was an exploitation of the prior illegality.
[6] evidence must be excluded as fruit of the poisonous tree
if it is discovered by the exploitation of illegal police conduct.
see Wong Sun v. United States, 371 U.s. 471, 83 s. Ct. 407, 9
L. ed. 2d 441 (1963). the phrase “fruit of the poisonous tree”
refers to indirect or secondary evidence obtained as a result of
a prior illegality. see Nardone v. United States, 308 U.s. 338,
60 s. Ct. 266, 84 L. ed. 307 (1939). Under the doctrine, the
“fruits” of the prior illegal police conduct are excluded if they
were an exploitation of that prior illegality. see, Wong Sun
v. United States, supra; State v. Lane, supra. the question is
“‘whether, granting establishment of the primary illegality, the
state v. GorUp 	285
Cite as 275 Neb. 280

286 	275 Nebraska reports
evidence to which instant objection is made has been come
at by exploitation of that illegality or instead by means suf-
ficiently distinguishable to be purged of the primary taint.’”
Wong Sun v. United States, 371 U.s. at 488.
the Court in Brown v. Illinois, 422 U.s. 590, 95 s. Ct. 2254,
45 L. ed. 2d 416 (1975), identified the factors to consider in
deciding whether the earlier illegal arrest contaminated the
defendant’s confession: (1) the temporal proximity between the
illegal arrest and the confession, (2) the presence of intervening
circumstances, and (3) the purpose and flagrancy of the official
misconduct. subsequently, courts have found that a confession
is analogous to consent in these circumstances and applied
these factors to determine if a consent was an exploitation of
a prior illegality. see, U.S. v. Robeles-Ortega, supra; State v.
Lane, supra.
In State v. Lane, supra, the court stated that consideration
must be given to a variety of factors, including but not limited
to those described in Brown v. Illinois, supra. the relevant
factors will vary depending upon the facts of a particular
case. We point out in summary that the purpose of the above
analysis is to determine whether under all the circumstances
presented, the consent was obtained by exploitation of the prior
illegal search.
the district court should have considered the above factors
in determining whether Gorup’s consent was obtained by the
exploitation of the detectives’ prior search. thus, we remand
the cause for consideration of such factors.
We pause here to acknowledge that we have not decided
whether the first search was a valid search incident to an arrest
and was therefore an exception to the warrant requirement.
the district court did not decide that question, and therefore,
we also remand the cause for a hearing on the issue whether
the search incident to valid arrest exception applied to the
first search.
CoNCLUsIoN
Whether the search incident to the arrest was a valid excep-
tion to the warrantless search is an issue which the district
court should have addressed when ruling on the motion to

suppress filed by Gorup. additionally, the district court should
have considered the appropriate factors described herein to
determine whether Gorup’s consent was an exploitation of the
prior search. We therefore vacate the judgment of conviction
and sentence, and we remand the cause for a new hearing on
Gorup’s motion to suppress consistent with this opinion.
J udgMenT vacaTed , and cause
reManded WITh dIrecTIons .
B randon poWell , appellee , v . esTaTe gardeners , I nc .,
and auTo oWners I nsurance , ITs Workers ’
coMpensaTIon Insurer , appellanTs .
745 N.W.2d 917
Filed March 21, 2008. 	No. s-07-855.
1. Workers’ Compensation: Statutes: Appeal and Error. the meaning of a statute
is a question of law, and an appellate court is obligated in workers’ compensation
cases to make its own determinations as to questions of law.
2. Workers’ Compensation. the Nebraska Workers’ Compensation act is designed
to compensate an injured worker for the loss of earning capacity caused by
the injury.
3. ____. the Nebraska Workers’ Compensation act is construed liberally to carry
out its spirit and beneficent purposes.
4. Workers’ Compensation: Time. Where the worker has insufficient work history
to be able to calculate his or her average weekly income based on as much of the
preceding 6 months as he or she worked for the same employer, then what would
ordinarily constitute that employee’s week’s work and, thus, that employee’s
average weekly income should, if possible, be estimated by considering other
employees working similar jobs for similar employers. Where available, such
similar employees’ work records should be considered for the 6-month period
prior to the accident.
appeal from the Workers’ Compensation Court. reversed and
remanded for further proceedings.
Jon s. reid and Molly M. Lukenbill, of Lamson, Dugan &
Murray, L.L.p., for appellants.
ryan C. Holsten and brynne e. Holsten, senior Certified
Law student, of atwood, Holsten & brown, p.C., L.L.o.,
for appellee.
poWeLL v. estate GarDeNers 	287
Cite as 275 Neb. 287