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State v. Gilliam

Supreme Court of Nebraska

February 12, 2016

STATE OF NEBRASKA, APPELLEE,
v.
JEFFREY GILLIAM, APPELLANT

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[Copyrighted Material Omitted]

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Appeal from the District Court for Lancaster County: STEPHANIE F. STACY, Judge.

Mark E. Rappl for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, AND CASSEL, JJ. STACY, J., not participating.

OPINION

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[292 Neb. 772] Cassel, J.

I. INTRODUCTION

In this direct appeal, Jeffrey Gilliam challenges the district court's denial of his pretrial motion to suppress evidence and the court's use of a conviction from a Missouri court to enhance his sentence for driving under the influence of alcohol (DUI). We reject Gilliam's first argument, because his initial encounter with police fell outside the realm of the Fourth Amendment. And his argument regarding enhancement fails, because a suspended imposition of sentence in the prior Missouri case qualifies as a " prior conviction" under the pertinent statute. We affirm his conviction and sentence.

II. BACKGROUND

Gilliam was arrested for DUI after an encounter with a police officer. An information filed in the district court for [292 Neb. 773] Lancaster County charged Gilliam with DUI and alleged that Gilliam had two prior convictions.

1. Motionto Suppress

Gilliam filed a pretrial motion to suppress all evidence gathered as a result of his encounter with the police officer. He argued that he was seized and that his seizure was unsupported by reasonable suspicion.

(a) Hearing

Officer Brock Wagner of the Lincoln Police Department testified at the suppression hearing. Wagner testified that on May 26, 2013, at approximately 5:39 a.m., he received a report from police dispatch that a white Dodge Ram, license plate No. SYD 417, was parked partially on the curb and partially on the street in the area of Ninth and A Streets. Wagner drove to the area in his marked patrol unit to investigate, but he did not see the reported Dodge Ram when he arrived. He turned onto a different street, where he saw the reported Dodge Ram parked legally on the side of the street. It was running, and its lights were on.

Wagner pulled behind the Dodge Ram and activated his patrol unit's overhead lights. He exited his patrol unit, knocked on the window, and directed Gilliam, who was in the driver's seat, to roll down the window, and Gilliam complied. Wagner observed that Gilliam had a strong odor of alcohol on his breath; watery, bloodshot eyes; and slurred speech. Wagner asked to see Gilliam's driver's license, and Gilliam produced it. Wagner then conducted a DUI investigation and arrested Gilliam for DUI. Wagner testified that he was dressed in his uniform, wearing his badge, and carrying a gun when his encounter with Gilliam occurred.

(b) Order

At the end of the suppression hearing, the district court took the matter under advisement. It later issued a written order overruling Gilliam's motion to suppress. It concluded [292 Neb. 774] that Gilliam's encounter with Wagner did not begin as a seizure; rather, it began as a consensual or " first-tier" encounter that did not implicate Fourth Amendment protections. The district court further concluded that Wagner had reasonable suspicion to expand his

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initial contact with Gilliam into a DUI ...


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