State v. Hoehn

1

316 Neb. 634

State of Nebraska, appellee, v. Michael C. Hoehn, appellant.

No. S-22-885.

Supreme Court of Nebraska

May 17, 2024

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 historical 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 independently of the trial court's determination.

2. Constitutional Law: Search and Seizure. The Fourth Amendment protects against unreasonable searches and seizures.

3. Constitutional Law: Search and Seizure Evidence. 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.

4. Constitutional Law: Investigative Stop: Arrests Probable Cause. An investigatory stop supported by reasonable suspicion and an arrest justified 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 outside 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.

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 suppress 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, 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 warrantless search and seizure unreasonable for purposes of the Fourth Amendment's exclusionary rule, not the law enforcement 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 following 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 "accelerated 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 highway 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 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 roadways 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 without 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 applicable 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 necessary for the motion to suppress. We'll withdraw anything beyond that point." Following Rockwell's testimony, the following exchange occurred:

[The Court:] I would entertain your argument at this time, counsel.

[Defense counsel:] Your Honor, I think that as we discussed, whether or not they have authority and whether or not they made a proper exception to the warrant requirement, 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 showing in which they were authorized to make this stop, Your Honor.

. . . . [The State:] Yeah . . . I just went ahead and put everything 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 defendant'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 insufficient 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 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."

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