Background
Officer Adem Talundzic was on patrol in Lancaster County when he observed a running vehicle with its lights on in the parking lot of a drinking establishment he knew to be closed. He parked his cruiser directly behind the vehicle — not in a parking spot — and approached on foot, shining his flashlight into the vehicle’s mirrors and then directly at the driver, later identified as Robert P. Walton. Talundzic did not knock on the window, speak to Walton, or otherwise direct him to act. Walton voluntarily rolled down his window, at which point Talundzic detected a strong odor of alcohol. A second officer arrived and stood near the rear of the vehicle after the window was already down. Talundzic administered a preliminary breath test, which Walton failed, and Walton was ultimately charged with DUI with one prior conviction.
Walton moved to suppress all evidence gathered from the encounter, arguing that Talundzic’s approach constituted a seizure without probable cause in violation of the Fourth Amendment and the Nebraska Constitution. The county court denied the motion, finding no evidence that Talundzic displayed a weapon, used a forceful tone, touched Walton, or told him he was not free to leave. The court concluded Walton had not been seized. Following conviction, Walton was sentenced to 90 days’ imprisonment (served as house arrest), a $1,000 fine, and a three-year license suspension with ignition interlock eligibility. The Lancaster County District Court affirmed the county court on appeal, and Walton appealed further to the Court of Appeals.
The Court’s Holding
The Nebraska Court of Appeals affirmed the denial of the motion to suppress, holding that the initial police-citizen encounter was a tier-one encounter under the framework established in State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993), and therefore did not implicate the Fourth Amendment. Applying the objective “reasonable person” standard, the court found that none of the circumstances — the officer parking behind Walton, shining a flashlight into the vehicle, or the subsequent arrival of a second officer — would have caused a reasonable person to believe he was not free to leave. The front of Walton’s vehicle remained unobstructed, and Talundzic never directed, touched, or verbally commanded Walton in any way.
The court expressly rejected Walton’s argument that the flashlight shining into his rear-view mirror effectively blocked him from leaving, noting that while it may have made reversing difficult, Walton could still exit the parking lot from the front. The court also held that Officer Talundzic’s subjective belief that Walton was not free to leave was irrelevant to the Fourth Amendment analysis, citing State v. Rivera, 297 Neb. 709, 901 N.W.2d 272 (2017). Because the initial encounter was a tier-one contact, and Walton did not challenge the finding of probable cause once the odor of alcohol was detected, the suppression ruling was upheld in full.
Key Takeaways
- An officer approaching a parked vehicle in a public place — without activating overhead lights, knocking on the window, issuing commands, displaying a weapon, or physically touching the driver — does not effectuate a seizure under the Fourth Amendment, even if the officer parks directly behind the vehicle and shines a flashlight inside.
- The Fourth Amendment’s “free to leave” test is objective: an officer’s subjective belief that the person was not free to go is irrelevant to whether a seizure legally occurred.
- A second officer arriving at the scene does not transform an encounter into a seizure when that officer appears only after the driver has already voluntarily interacted with the first officer.
- Once a driver voluntarily rolls down a window and an officer detects the odor of alcohol, there is probable cause to conduct a DUI investigation regardless of the circumstances leading to that moment, provided the initial contact was a lawful tier-one encounter.
Why It Matters
This decision reinforces the breadth of permissible tier-one police-citizen encounters in Nebraska, confirming that officers may approach parked vehicles in public places, use flashlights to observe occupants, and park in ways that impede easy egress — all without triggering Fourth Amendment scrutiny — so long as they do not affirmatively restrain the driver or signal through words, tone, or physical conduct that departure is forbidden. Defense practitioners should note the court’s strict application of the objective standard and its refusal to credit practical impediments to vehicle movement (such as a flashlight impairing a rear-view mirror) as constructive restraints.
For law enforcement, the case draws a useful line: Talundzic’s conduct fell just within tier-one territory because he let Walton act voluntarily throughout. Had Talundzic knocked on the window or verbally directed Walton to stop or roll down the window, the analysis might have shifted toward a tier-two investigatory stop requiring reasonable articulable suspicion. Attorneys litigating suppression issues in DUI cases involving parked-vehicle encounters will find this opinion a useful benchmark for what conduct remains constitutionally unrestricted.