State v. Milos, 294 Neb. 375

On March 17, 2014, plainclothes officers in an undercover vehicle observed a Caravan in a location known for drug activity and followed it to a fast-food parking lot.
An officer with badge displayed asked driver Josip Milos if he would show identification and step out; Milos complied and consented to a search of his pockets.
As the officer attempted to search Milos’ right front pocket, Milos put his hand into that pocket; the officer removed Milos’ hand and asked what he was doing.
Milos produced a cell phone charger in a closed fist, then used his left hand to sweep over his right fist and threw a small plastic baggie onto the ground; the officer observed the baggie containing an apparent crystalline substance.
Milos was charged with possession of a controlled substance, moved to suppress the evidence, lost at the district court, was convicted after a bench trial, and appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Milos was "seized" (tier-one vs tier-two encounter)	Milos: officer’s request to step out and follow-up conduct amounted to a seizure requiring constitutional protection	State: interaction was consensual, noncoercive questioning — a tier-one encounter (no seizure)	Court: tier-one encounter; no seizure under the Fourth Amendment
Whether Milos voluntarily consented and whether he withdrew consent	Milos: any initial consent was withdrawn when he placed his hand in the pocket; thus further search was illegal	State: Milos gave clear consent and did not communicate a withdrawal; officer reasonably perceived consent	Court: initial consent was voluntary; Milos’ hand in pocket did constitute withdrawal of consent
Whether evidence was nevertheless admissible (plain view exception)	Milos: drugs were product of illegal search and should be suppressed	State: after withdrawal officer did not continue search; Milos threw the baggie into plain view	Court: plain-view exception applies — officer lawfully present, incriminating nature immediately apparent, lawful access; evidence admissible
Sufficiency of evidence for possession conviction	Milos: conviction rests on evidence that should have been suppressed	State: admitted evidence (baggie) supports possession	Court: suppression rejected; evidence sufficient to convict

State v. Woldt, 293 Neb. 265 (analysis of review standard for motions to suppress)
State v. Tyler, 291 Neb. 920 (voluntariness of consent analyzed under totality of circumstances)
State v. Gilliam, 292 Neb. 770 (tiered police-citizen encounter framework and seizure analysis)
State v. Smith, 279 Neb. 918 (consent withdrawal and limits on officer authority during consensual searches)
State v. Borst, 281 Neb. 217 (plain-view seizure doctrine)
State v. Reinpold, 284 Neb. 950 (elements of plain-view seizure)