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Appeal from the District Court for Buffalo County, WILLIAM T. WRIGHT, Judge, on appeal thereto from the County Court for Buffalo County, GERALD R. JORGENSEN, JR., Judge.
David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson, P.C., for appellant.
Jon Bruning, Attorney General, and Melissa R. Vincent for appellee.
MOORE, Chief Judge, and INBODY and PIRTLE, Judges.
[22 Neb.App. 928] Inbody, Judge.
Joshua D. Rohde appeals the Buffalo County District Court's affirmance of his conviction for driving under the influence of alcohol, first offense. He contends that the district court erred in affirming the county court's denial of his motion to suppress, because the initial stop of his vehicle violated his constitutional rights, and that there was no reason to believe an emergency situation existed or exigent circumstances justified stopping his vehicle pursuant to the community caretaking exception to the Fourth Amendment.
II. STATEMENT OF FACTS
At approximately 1:45 a.m. on March 16, 2013, Kearney police officer Brad Butler observed a dark-colored Ford Explorer with a female passenger with her head and part of her torso " sticking out of the moonroof of the vehicle." The female passenger was waving her arms, but Butler could not tell what she was waving at or what she was intending to wave at. Butler did not know if she was trying to wave him down, but there was no other traffic in the area. Butler turned his police cruiser around, activated its emergency lights, and conducted a stop of the vehicle for the reason that he felt that the conduct of the female passenger was both unsafe and illegal. Prior to the stop of the vehicle, there was no indication that it was exceeding the speed limit, and the vehicle had its headlights on. Butler made contact with both Rohde, who was driving the vehicle, and the female passenger of the vehicle, neither of whom indicated that they were in need of assistance. Upon further investigation, Butler arrested Rohde for driving under the influence of alcohol. Rohde was charged in Buffalo County Court with driving under the influence, first offense.
On April 5, 2013, Rohde filed a motion to suppress all of the evidence obtained for the reason that the initial stop was not based upon probable cause. He further moved to suppress any statements made by him while in custody and before Miranda warnings were given, in violation of his [22 Neb.App. 929] Fifth Amendment right against self-incrimination. Finally, he moved to suppress the results of the chemical test of his blood for the reason that there was no probable cause to request such test, in violation of his constitutional rights and Neb. Rev. Stat. § 60-6,107 (Reissue 2010).
A suppression hearing was held on July 10, 2013. Butler testified to the facts as previously set forth. Rohde testified in his defense that he was driving a Ford Explorer at around 1:45 a.m. on March 16, 2013, at which point in time a female passenger stood up and extended part of her body through the " sunroof" for about 2 seconds. Rohde testified that the female passenger was standing on the floor of the vehicle and that he could feel her slightly lean against his arm. Rohde testified that at the time, he was driving about 35 to 40 miles per hour.
The county court denied Rohde's motion to suppress, finding that the stop was justified based upon the " general nature of checking welfare" and that " the officer would be remiss in not stopping and finding out what's going on." The county court also reasoned that it is " reasonable to assume that somebody could have been trying to signal [the officer] and then got pulled back into the car by their abductor."
A stipulated trial was held on August 13, 2013, with Rohde preserving the issues raised in his motion to suppress. The parties stipulated that Rohde's blood was tested on March 22 for alcohol content, which test showed an alcohol content of .15 grams of alcohol per 100 milliliters of his blood, and also that the blood sample was
sent to a forensic laboratory in Omaha, Nebraska, on May 20 to be tested for alcohol content and that said test showed an alcohol content of .15 grams of alcohol per 100 milliliters of his blood.
The county court found Rohde guilty of the charged offense and, thereafter, sentenced Rohde to 9 months' probation, a driver's license suspension of 60 days, a $500 fine, and other conditions. Rohde timely appealed his conviction and sentence to the Buffalo County District Court. The district court affirmed Rohde's conviction and sentence, finding that the community caretaking exception applied to justify the stop of [22 Neb.App. 930] Rohde's vehicle in that the circumstances of a female passenger " protrud[ing] the upper half of her body through a moon-roof or sunroof [of a vehicle] and wav[ing] momentarily" as an officer passed were at least sufficient to suggest an effort by an occupant of the vehicle to wave down a police officer, which effort was thwarted when she was almost immediately pulled back into the vehicle. These circumstances are sufficient to create a concern for the welfare of the female passenger. Further, the district court noted that " the simple fact that an occupant of the vehicle is protruding, even momentarily, half of her body through the roof of a vehicle traveling at 35 to 40 miles per hour creates a significant enough safety concern that an inquiry as to the welfare [of the occupant] is appropriate." Rohde has timely appealed to this court.
III. ASSIGNMENTS OF ERROR
On appeal, Rohde's assignments of error, consolidated and restated, are that the district court erred in affirming the county court's denial of his motion to suppress because the initial stop of his vehicle violated his constitutional rights and because there was no reason to believe that an emergency situation existed or that exigent circumstances justified stopping his vehicle pursuant to the community caretaking exception.
IV. STANDARD 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. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014); 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. State v. Piper, supra ; State v. McCave, supra. 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. State v. Piper, supra ; State v. McCave, supra.
[22 Neb.App. 931] 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. State v. Avey, 288 Neb. 233, 846 N.W.2d 662 (2014); State v. McCave, supra. 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. Piper, supra ; 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. State v. Piper, supra ; State v. Matit, supra. Likewise, we review de novo the determination that the community caretaking exception applied.
See State v. Bakewell, 273 Neb. 372, 730 ...