State v. Avey, 288 Neb. 233

On Aug. 10, 2012, Steven Avey pulled from a parallel parking space and collided with Benjamin Howard; Avey exchanged contact and insurance information and then left the scene.
Officer Joseph Fisher interviewed Howard, obtained Avey’s phone number, called Avey, and asked him to return to the scene to complete the investigation; Fisher suspected a traffic infraction (negligent driving) and thought damage might exceed $1,000.
Avey returned, Fisher observed signs of alcohol, administered field sobriety tests, and cited Avey for DUI and for failure to yield; the State alleged two prior DUI convictions making this a third-offense charge.
Avey moved to suppress evidence, arguing he was seized in violation of the Fourth Amendment when Fisher’s phone call compelled him to return; Fisher testified he requested, not ordered, Avey’s return, though he conceded he might have said Avey would be cited if he did not return.
The county court found Avey voluntarily returned and overruled the motion to suppress; a bench trial resulted in convictions and sentence, which the district court (acting as an intermediate appellate court) affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Avey was "seized" under the Fourth Amendment when he returned after Fisher’s phone call	Avey: Fisher’s call, including a warning he’d be charged for leaving, compelled him to return — a seizure occurred and evidence must be suppressed	State: Fisher merely requested Avey return; Avey voluntarily chose to come back and was not seized	Held: No seizure — Avey voluntarily returned; motion to suppress properly denied
Appropriate analytic standard on suppression review	Avey: (implicit) trial court’s legal conclusion should be overturned	State: Appellate courts review factual findings for clear error and legal conclusions de novo	Held: Court applied two-part standard: factual findings reviewed for clear error; legal Fourth Amendment question reviewed independently
Whether a telephone call can constitute a seizure	Avey: Phone call that threatens citation can be coercive and effectuate a seizure	State: Telephone requests, absent coercion or persistent pressure, do not generally restrain liberty	Held: A single, nonpersistent phone call that the record shows prompted a voluntary return is not a seizure
Whether evidence obtained after return must be suppressed	Avey: Evidence following an unlawful seizure must be suppressed	State: No seizure → no constitutional violation → no suppression required	Held: Because no seizure occurred, suppression was not required

State v. McCave, 282 Neb. 500 (review standard for county court criminal appeals)
State v. Au, 285 Neb. 797 (two-part review for suppression; facts vs. legal question)
State v. Hedgcock, 277 Neb. 805 (definition of seizure: reasonable person would not feel free to leave)
State v. Van Ackeren, 242 Neb. 479 (three-tier police-citizen encounter framework)
State v. Burdette, 259 Neb. 679 (voluntary accompaniment to police is not a seizure)
United States v. Armstrong, 722 F.2d 681 (discussion of encounter tiers adopted in Van Ackeren)
Rodgers v. Lincoln Towing Serv., Inc., 771 F.2d 194 (telephone contact alone generally not a seizure)