State v. Thalken

299 Neb. 857

911 N.W.2d 562

STATE of Nebraska, appellant,

v.Matthew F. THALKEN, appellee.

No. S-16-830.

Supreme Court of Nebraska.

Filed May 11, 2018.

Matthew Kuhse, Omaha City Attorney, and Kevin J. Slimp for appellant.

W. Randall Paragas, of Paragas Law Offices, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ.

Per Curiam.

I. NATURE OF CASE

The county court convicted Matthew F. Thalken of operating a motor vehicle while under the influence of alcohol, and Thalken appealed to the district court. In vacating Thalken's conviction and sentence, the district court focused on a police officer's mistake of law regarding a driving statute¹ and relied on one of our decisions.² We granted the State's application for leave to docket an exception proceeding.³ Notwithstanding the officer's incorrect view of the law, when probable cause exists for a stop based on an objective view of the facts known to the officer, the stop does not offend the Constitution. We sustain the State's exception and conclude that because Thalken was not placed legally in jeopardy by the district court sitting as an appellate court, Neb. Rev. Stat. § 29-2316 (Reissue 2016) does not prevent us from reversing the district court's decision with directions to reinstate Thalken's conviction. Accordingly, we remand the cause to the district court with directions to reinstate and affirm Thalken's conviction and sentence.

II. STATEMENT OF FACTS

This case arises out of Thalken's conviction for operating a motor vehicle while under the influence. At approximately 1:15 a.m. on July 26, 2015, Omaha police officer Pat Soltys was in his cruiser proceeding north on 168th Street in Omaha, Nebraska, when he observed a vehicle approach the cruiser from the rear at a very high rate of speed with illuminated fog lights—a type of auxiliary light. There were two northbound lanes of travel, and eventually, the vehicle, driven by Thalken, proceeded to within 40 feet of Soltys' cruiser and then passed. Soltys observed that the headlights of Thalken's vehicle were "bright" and the fog lights were "exceptionally bright." At no time did Thalken dim any of his vehicle's lights. Soltys made a traffic stop, observed signs of alcohol impairment, and noticed an odor of alcohol coming from the vehicle.

Soltys testified that the reason he stopped Thalken was not because he was speeding or following too close, but that he believed Thalken's fog lights were illegally illuminated. Soltys testified that he "believed, at the time, that having fog lights on, auxiliary lights on, in itself, was a violation." He further clarified that consistent with his report regarding the incident, he " '[s]topped the vehicle for having its auxiliary lights on during normal/stable weather.' "

The State charged Thalken in the county court for Douglas County with operating a motor vehicle while under the influence. Thalken filed a motion to suppress challenging the traffic stop. The county court denied the motion and, after a bench trial on stipulated facts, found him guilty of the charged offense.

Thalken appealed the county court's denial of his motion to suppress and his conviction to the district court. Therefore, in this case, the district court was sitting as an appellate court. After a hearing, the district court reversed. In its order, the district court determined that Soltys did not have probable cause to stop Thalken. As to the law, the district court concluded that the use of auxiliary lights was not a traffic violation, and as to the facts, the district court found that the traffic stop was based on Soltys' incorrect belief that having auxiliary lights on was in and of itself a traffic violation. The district court stated that because Thalken drove his vehicle within 200 feet of the rear of the cruiser with both extremely bright auxiliary lights and bright headlights illuminated, Thalken had violated § 60-6,225(2) and another statute.⁴ However, referring to our decision in State v . Au ,⁵ the district court nonetheless vacated Thalken's county court conviction and sentence.

On August 31, 2016, the State filed an application for leave to docket an exception proceeding. The State claimed that the district court sitting as an appellate court erred when it reversed the county court's ruling denying Thalken's motion to suppress and, as a result, reversed the judgment of the county court and vacated and set aside the conviction. We granted the State's application for leave to docket an exception proceeding.

III. ASSIGNMENTS OF ERROR

The State claims that the district court erred when it (1) reversed the county court's ruling which denied Thalken's motion to suppress and (2) reversed the judgment of the county court and ordered that Thalken's conviction and sentence be vacated and set aside.

IV. STANDARDS OF REVIEW

In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeals, and its review is limited to an examination of the record for error or abuse of discretion.⁶ Both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record.⁷ When reviewing a judgment for errors appearing on the record, an appellate court's inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.⁸ But we independently review questions of law in appeals from the county court.⁹ When deciding appeals from criminal convictions in county court, we apply the same standards of review that we apply to decide appeals from criminal convictions in district court.¹⁰

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.¹¹ 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.¹²

The interpretation of a statute presents a question of law.¹³

V. ANALYSIS

Before addressing the merits, we note that the State is the appellant. Absent specific statutory authorization, the State generally has no right to appeal an adverse ruling in a criminal case.¹⁴ As we have already noted, the State appeals under § 29-2315.01, which provides an exception to the general rule by allowing a county attorney to request appellate review of an adverse ruling by a district court. We have interpreted the statute to authorize exception proceedings taken from the district court sitting as an intermediate court of appeal.¹⁵ Although we have sometimes described a proceeding under § 29-2315.01 as an "error" proceeding, that statute contemplates the State's "exception" and in the interest of precision, we use that term.

1. PROBABLE CAUSE FOR TRAFFIC STOP

This appeal arises out of the question of whether there was legal justification for Soltys to stop Thalken. The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution protect individuals against unreasonable searches and seizures by the government. Stopping an automobile and detaining its occupants constitute a " ' "seizure" ' " within the meaning of the Fourth Amendment, and if the seizure was illegal, the evidence obtained as a result is inadmissible.¹⁶ Under the exclusionary rule, "evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure."¹⁷

An officer's stop of a vehicle is objectively reasonable when the officer has probable cause to believe that a traffic violation, no matter how minor, has occurred.¹⁸ We determine whether probable cause existed under an objective standard of reasonableness, given the known facts and circumstances.¹⁹ The question is whether the facts available to the officer would cause a reasonably cautious person to believe that the suspect has committed an offense.²⁰ Probable cause is not defeated by an officer's incorrect belief regarding the law applicable to the facts.²¹ We focus on the facts known to the officer, not the conclusions the officer drew from those facts.²²

In this matter, Thalken urges us to find that the traffic stop was objectively unreasonable because Soltys initiated it based solely on a mistaken interpretation of the auxiliary lights statute, § 60-6,225, which Soltys believed Thalken had violated when he drove with fog lights turned on during normal weather conditions. The State contends that because Thalken drove within 40 feet of Soltys' cruiser while displaying exceptionally bright auxiliary lights, i.e., fog lights, Thalken violated § 60-6,225(2), which, when read with other statutes, prohibits the use of bright auxiliary or fog lights when approaching other vehicles. The State claims that because of this violation, the traffic stop was supported by probable cause. Given the State's position, we limit our analysis to whether there was probable cause to stop on the basis that Thalken violated § 60-6,225(2). We agree with the State that probable cause supported the stop.

We first identify the statutes relevant to our analysis. Section 60-6,225(2) provides, in pertinent part:

Any motor vehicle may be equipped with not to exceed two auxiliary driving lights [which shall comply with the] limitations set forth in section 60-6,221.... Auxiliary driving lights shall be turned off at the same time the motor vehicle's headlights are required to be dimmed when approaching another vehicle from either the front or the rear.

As relevant to this case, the "limitations set forth in section 60-6,221" to which reference is made in § 60-6,225(2) include a provision making it illegal for auxiliary lights to "project a glaring or dazzling light to persons in front of such headlights."²³

Section 60-6,221(2) provides:

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