State v. Woldt

867 N.W.2d 637

State of Nebraska, Appellee

v.Adam T. Woldt, Appellant.

No. A–14–573.

Court of Appeals of Nebraska.

Filed July 21, 2015.

Thomas B. Donner, West Point, for appellant.

Jon Bruning, Attorney General, and Austin N. Relph for appellee.

Moore, Chief Judge, and Irwin and Riedmann, Judges.

Syllabus by the Court

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. Trial: Investigative Stops: Warrantless Searches: Appeal and Error.The ultimate determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search are reviewed de novo, and findings of fact are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge.

3. Constitutional Law: Search and Seizure.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.

4. Constitutional Law: Search and Seizure.A seizure in the Fourth Amendment context occurs only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave.

5. Constitutional Law: Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Search and Seizure.Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a seizure of persons within the meaning of the Fourth Amendment.

6. Constitutional Law: Investigative Stops: Warrantless Searches: Probable Cause: Police Officers and Sheriffs.Police can constitutionally stop and briefly detain a person for investigative purposes if

the police have a reasonable suspicion, supported by articulable facts, that criminal activity exists, even if probable cause is lacking under the Fourth Amendment.

7. Constitutional Law: Search and Seizure: Motor Vehicles.A motorist has a reasonable expectation of privacy which is not subject to arbitrary invasions solely at the unfettered discretion of police officers in the field.

8. Constitutional Law: Highways: Motor Vehicles: Investigative Stops: Search and Seizure.A vehicle stop at a highway checkpoint effectuates a seizure within the meaning of the Fourth Amendment.

9. Highways: Investigative Stops.A highway checkpoint must be both authorized by an approved plan and conducted in a manner that complies with the plan and the policy established by the authority at the policymaking level.

10. Appeal and Error.An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court.

11. Double Jeopardy: Evidence: New Trial: Appeal and Error.The Double Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence admitted by a trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict.

Moore, Chief Judge.

INTRODUCTION

Adam T. Woldt appeals from the order of the district court for Cuming County which affirmed his conviction in the county court for driving under the influence (DUI). The sole issue presented to us in this appeal is whether the stop of Woldt's vehicle for the purpose of gathering information about a third party's possible criminal activity violated

Woldt's constitutional right to be free from an unreasonable search and seizure. We conclude that the stop was unlawful and that Woldt's motion to suppress should have been sustained.

BACKGROUND

On September 26, 2013, the State filed a complaint in the county court, charging Woldt with first-offense DUI in violation of Neb. Rev. Stat. § 60–6,196 (Reissue 2010), a Class W misdemeanor.

Woldt filed a motion to suppress, which was heard by the county court on November 5, 2013. The State presented testimony from police officers involved in the investigations on the evening in question. Woldt testified and also presented testimony from the other individual who was investigated on the evening in question.

The evidence at the hearing showed generally that on September 13, 2013, Officer Randy Davie of the Wisner Police Department received a call from dispatch about a report that someone driving a white Chevrolet pickup was knocking over traffic cones on the highway that is the main street of Wisner, Nebraska. At the scene, Davie observed 38 cones knocked down along both sides of the highway.

While picking up the cones, Davie heard squealing tires north of his location. After picking up the cones, he drove north on a side street. Davie was driving without lights because he “was going to see who was squealing their tires.” He then observed a white Chevrolet pickup followed within a car length or less by a dark-colored pickup proceeding toward him south on the side street.

When the white pickup neared Davie's location, Davie turned on his patrol car's headlights and extended his arm straight out of the patrol car's window indicating that the white pickup should stop. Davie did not turn on his patrol car's overhead lights or sirens during the stop of the white pickup. The driver of the white pickup, whom Davie recognized as Jacob Biggerstaff, pulled over and stopped south of

Davie's patrol car by about four to five car lengths. Davie stopped the white pickup because he thought that it might have been involved in knocking over the traffic cones on the highway. Davie exited his patrol car, left its door open, and walked over to contact Biggerstaff. Upon contacting Biggerstaff, Davie smelled the odor of alcohol, and at that point, he began a DUI investigation of Biggerstaff. Davie did not ask Biggerstaff about the traffic cone incident but asked him to step out of the pickup. When Biggerstaff complied, Davie took him to the patrol car. Davie remained outside of the patrol car, and Biggerstaff seated himself in the passenger side of the patrol car without Davie's assistance.

While this was happening, the driver of the dark-colored pickup, whom Davie recognized as Woldt and whom Davie knew to be a city employee, had parked his pickup across from Davie's patrol car on the west side of the side street near an intersection. Davie testified that the front of his patrol car was about even with the intersection and that Woldt's pickup was parked with the rear 3 to 4 feet extending into the intersection. Woldt testified that he was in the process of making the turn south onto the side street when he saw Davie motion to stop Biggerstaff. Woldt pulled over and parked behind another parked car. According to Woldt, he was unable to proceed south down the street because his line of travel was blocked by Davie's open car door and he could not continue closer to the curb because of the parked car in front of him. Woldt remained in his pickup with the window rolled down. As Davie and Biggerstaff were approaching the patrol car, Woldt began to reverse his pickup.

Davie then held up his hand and gestured for Woldt to approach. Woldt testified that Davie said something to him at that point, but he could not remember exactly what was said. Davie also could not remember whether he said anything to Woldt. Davie testified that it was his intent to speak with Woldt about whether he had seen Biggerstaff do anything and to ask why he was following Biggerstaff. Davie did not observe anything about the operation of Woldt's pickup that

led him to believe Woldt had violated any rules of the road or any other state laws or city ordinances. Davie testified that he was concerned with the white pickup, and if Woldt had not stopped initially, he would not have stopped him because he “had no reason to stop him.” During redirect examination by the State, Davie agreed that he probably could have cited Woldt for following Biggerstaff too closely.

Upon approaching Woldt's pickup, Davie smelled the odor of alcohol and began a second DUI investigation. He asked Woldt whether he had been drinking, and at that point, Woldt “just put his head down.” Davie asked Woldt if he was drunk, and Woldt responded by shutting off his pickup and handing the keys to Davie. Davie contacted another officer for assistance. Woldt was then given a field sobriety test and preliminary breath test and was arrested for DUI.

On December 3, 2013, the county court entered an order overruling Woldt's motion to suppress. In analyzing the stop of Woldt, the court utilized the three-part balancing test outlined in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), which balances the gravity of the public concern served by the seizure and the degree the seizure advances the public interest against the severity of the interference with the seized person's individual liberty.

The county court found Davie's actions were reasonable. The court reasoned that even though the possible offenses Davie was investigating were most likely misdemeanors, the matter did involve operation of a motor vehicle on the four-lane public highway that passes through Wisner. The court concluded that the acts committed in Wisner during the night of September 13, 2013, posed a significant threat to the safety of citizens driving the public roads in and through Wisner. The court found it was also reasonable for Davie to conclude that the driver of the dark-colored pickup that was following Biggerstaff would have been an eyewitness to Biggerstaff's driving. The court stated, “This eyewitness evidence of ... Biggerstaff's driving would be essential to proving the element of whether ... Biggerstaff was ‘under the influence of

alcohol’ at...