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State v. Piper

Supreme Court of Nebraska

October 31, 2014

STATE OF NEBRASKA, APPELLEE,
v.
KERSTIN M. PIPER, ALSO KNOWN AS KERSTIN M. CLARKSON, APPELLANT

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[Copyrighted Material Omitted]

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Appeal from the District Court for Scotts Bluff County, RANDALL L. LIPPSTREU, Judge, on appeal thereto from the County Court for Scotts Bluff County, JAMES M. WORDEN, Judge.

Bell Island, of Island & Huff, P.C., L.L.O., for appellant.

Jon Bruning, Attorney General, and Nathan A. Liss for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

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[289 Neb. 366] Wright, J.

I. NATURE OF CASE

Kerstin M. Piper, also known as Kerstin M. Clarkson, appeals from the district court's order which affirmed her conviction and sentence in the county court for driving while under the influence (DUI), second offense. She challenges the county court's determinations that the Nebraska rules of evidence did not apply at the hearing on her motion to suppress and that the Nebraska State Patrol checkpoint at which Piper was stopped was constitutional. Finding no error in these determinations, we affirm the order of the district court which affirmed Piper's conviction and sentence.

II. SCOPE 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. State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011). Both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record. Id. When reviewing a judgment for errors appearing

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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. Id. But we independently review questions of law in appeals from the county court. Id. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below. See State v. Taylor, 286 Neb. 966, 840 N.W.2d 526 (2013).

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. State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014). Regarding historical facts, we review the trial court's findings for clear error, but whether those facts trigger or violate Fourth Amendment protections is a question of law that we review independently of the trial court's determination. Id.

[289 Neb. 367] III. FACTS

On July 14, 2012, at approximately 12:30 a.m., the vehicle driven by Piper was stopped at a vehicle checkpoint in Scotts Bluff County, Nebraska. Nebraska State Patrol Trooper Edward J. Petersen approached the vehicle and asked to see Piper's driver's license, vehicle registration, and proof of insurance. He observed that Piper's eyes were bloodshot and watery and that an odor of alcohol was emanating from the vehicle. There were two other people in the vehicle besides Piper.

At Petersen's instruction, Piper drove her vehicle to a nearby parking lot and joined Petersen in his cruiser. Inside the cruiser, Petersen noted an odor of alcohol emanating from Piper's person and decided to administer several standardized, as well as nonstandardized, field sobriety tests, including a preliminary breath test. Because the preliminary breath test registered a breath alcohol content of .174 of 1 gram of alcohol per 210 liters of breath, Petersen arrested Piper for DUI.

At the Scotts Bluff County corrections facility, Petersen administered a chemical breath test, which produced a result of .134 of 1 gram of alcohol per 210 liters of breath. Piper was subsequently charged by complaint in county court with DUI, second offense. (She had previously been convicted of DUI in 2005.)

Piper moved to suppress " all fruits of the illegal search and seizure, and her subsequent arrest." At the suppression hearing, over Piper's objection, the county court determined that the rules of evidence did not apply.

The State adduced evidence regarding the administration of the July 14, 2012, checkpoint. Petersen testified that the operation of the checkpoint was governed by State Patrol policy; that the checkpoint was operated according to a plan approved by Sgt. Dana Korell, who worked in a " supervisory capacity" at the State Patrol; and that to Petersen's knowledge, every car that came through the checkpoint was stopped. He also testified to the purpose for the checkpoint: " [W]e were specifically doing a DUI -- you know, it was an alcohol-related enforcement project." He further explained, " I was paid through an alcohol enforcement grant. And that's what we were targeting was [289 Neb. 368] alcohol-related violations, but I was just told that this was just a vehicle check." Piper offered no evidence at the suppression hearing.

The county court suppressed all evidence of the horizontal gaze nystagmus test, the nonstandardized field sobriety tests, and the preliminary breath test. It concluded that (1) the July 14, 2012, checkpoint " conform[ed] to the standard established

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. . . for a proper police 'check point'" ; (2) the odor of alcohol and Piper's watery eyes justified Petersen's continued investigation; and (3) there was probable cause to arrest Piper.

At the start of trial, Piper renewed her objection to any evidence obtained from the July 14, 2012, checkpoint. The county court stated that it was " reaffirming" its ruling on the motion to suppress, but recognized Piper's continuing objection on the issue. Piper also objected to the State's adducing any evidence regarding the checkpoint, because it " has already been litigated" and would thus be irrelevant. The court ruled as follows:

So as far as any objections to testimony or information regarding the checkpoint, I will -- I'm going to have to reserve my rulings for the -- for the trial. If [the prosecutor] gets extremely detailed and I think we're wasting time, then, of course, an objection will probably be appropriate, and I'll probably sustain it, but I can't -- I can't prejudge that.

Piper did not make any additional objections that the State's evidence regarding the checkpoint was repetitive.

The State presented evidence that the plan for the July 14, 2012, checkpoint was prepared by Lt. Jamey Balthazor and approved by Korell and that the checkpoint was governed by State Patrol " policy [No.] 07-29-01." The approved plan and policy No. 07-29-01 were received as exhibits. Balthazor testified that " [e]very car that came through [the checkpoint] was either stopped or had been through previously, at which time we identified the driver and the vehicle, and we did not recheck them after they had already been checked once." Another State Patrol officer who helped administer the checkpoint gave similar testimony.

[289 Neb. 369] The jury found Piper guilty of DUI, second offense. She was sentenced to 18 months' probation and ordered to pay a $500 fine. Additionally, her driver's license was revoked for 1 year.

Piper appealed to the district court. She claimed that the county court erred in failing to apply the rules of evidence at the suppression hearing and in failing to sustain the motion to suppress, because the checkpoint was invalid.

The district court affirmed Piper's conviction and sentence. Relying on State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011), it concluded that the rules of evidence did not apply to suppression hearings. It also found that the checkpoint was lawful, because it was implemented " pursuant to a written action plan adopted by the Nebraska State Patrol for this particular vehicle check stop" and because the " date, time, location, and method of selecting motorists to stop were not selected by the troopers in the field." The court held that the stop of Piper's vehicle was " not made at Petersen's 'unfettered discretion.'"

Piper timely appealed. Pursuant to our statutory authority to regulate the dockets of the appellate courts of this state, we moved the case to our docket. See Neb. ...


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