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State v. Rolenc

Court of Appeals of Nebraska

August 23, 2016

STATE OF NEBRASKA, APPELLEE,
v.
JOSEPH N. ROLENC, APPELLANT. v.

         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. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

         3. Constitutional Law: Search and Seizure: Police Officers and Sheriffs. The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution protect citizens against unreasonable seizures by police officers.

         4. Constitutional Law: Search and Seizure. It is well settled under the Fourth Amendment that warrantless searches and seizures are per se unreasonable, subject to a few specifically established and well-delineated exceptions.

         5. ___: ___. Although the Fourth Amendment protects the right to be free from unreasonable searches and seizures, it says nothing about how this right is to be enforced.

         6. Constitutional Law: Search and Seizure: Police Officers and Sheriffs. The exclusionary rule is a judicially created remedy designed to safeguard against future Fourth Amendment violations by deterring police misconduct.

         [24 Neb.App. 283] 7. Constitutional Law: Search and Seizure: Evidence. The fact that a Fourth Amendment violation occurred does not necessarily mean that the exclusionary rule applies.

         8. Sentences. When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the violence involved in the commission of the crime.

         9. ___. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

         Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge.

          Joseph Nigro, Lancaster County Public Defender, and Kristi Egger-Brown for appellant.

          Douglas J. Peterson, Attorney General, and George R. Love for appellee.

          Moore, Chief Judge, and INBODY and BISHOP, Judges.

          INBODY, JUDGE.

         I. INTRODUCTION

         Joseph N. Rolenc appeals his conviction for possession of methamphetamine, a Class IV felony, and the sentence imposed thereon. He contends that the district court erred in overruling his motion to suppress and in later failing to dismiss the matter at trial. He also contends that the sentence imposed upon him was excessive.

         II. STATEMENT OF FACTS

         At approximately 3 a.m. on March 6, 2014, Lincoln patrol officer Daniel Dufek was driving his patrol car when he passed Rolenc's vehicle. At that time of day there was not a lot of traffic on the road, so Dufek decided to maneuver his [24 Neb.App. 284] patrol car into position so he could check the rear license plate of Rolenc's vehicle. Dufek ran the license plate number through the Lincoln Police Department's computer system and found that Rolenc was the registered owner of the vehicle. Dufek then checked Rolenc's driver's license status in the Nebraska Criminal Justice Information System (NCJIS) and found that Rolenc's driver's license was revoked. NCJIS is a compilation of information from various places including the Department of Motor Vehicles (DMV) and various courts throughout the state.

         After Rolenc pulled his vehicle into a gas station where two other officers also happened to be sitting in their patrol cars, Dufek pulled into the gas station parking lot, advised the other officers of the situation, and the three officers contacted Rolenc. Dufek advised Rolenc that he was contacting him because Rolenc's license was revoked. Dufek requested Rolenc's license, registration, and insurance, but Rolenc could not provide any of those items. Rolenc advised Dufek that he believed that his license was valid and said there was a DMV error. Dufek then confirmed over the radio with a dispatcher on the police "information channel, " where an individual dispatcher has access to DMV, National Crime Information Center, and NCJIS files, that Rolenc's license was revoked. Dufek explained that the information he had was showing a revoked status. Rolenc became agitated and was eventually taken into custody. Because Rolenc's vehicle was going to be towed, an inventory search was conducted of the vehicle. During the search, officers located a glass pipe with "crystal residue" in it which tested positive for methamphetamine.

         In July 2014, Rolenc was charged with possession of methamphetamine, a Class IV felony. See Neb. Rev. Stat. § 28-416(3) (Cum. Supp. 2014). He filed motions to suppress regarding his arrest, the search of his vehicle, and any statements made by him to law enforcement. The hearing on the motions to suppress was held on February 19, 2015. Among [24 Neb.App. 285] the witnesses testifying were Dufek; Lisa Wolfe, an administrative assistant with the DMV; and William Harry, Rolenc's defense counsel in another case.

         Dufek testified as to the events as previously set forth. He also admitted that he did not observe Rolenc commit any traffic violations and that the only reason he stopped Rolenc was because of the information Dufek had received about the license revocation.

         Wolfe testified that she is responsible for entering the court-ordered revocations of driving privileges. The forfeiture of a bond triggers a conviction for the purposes of a "point revocation." According to Wolfe, the court sends an electronic transmission to the DMV containing the conviction information, citation date, judgment date, what the citation was for, amount of the fine, code information, general court information, and bond forfeiture information. If the identifying information included in the court's electronic transmission matches the DMV's identifying information, the conviction will automatically be placed on the individual's driving record. The computer calculates whether the driver was assessed 12 or more points in a 2-year time period, and if so, the revocation process is commenced. If the identifying information provided by the court does not match the DMV's records, an abstract of conviction prints out and DMV employees manually post the conviction to the individual's driving record.

         According to Wolfe, if an individual's bond is reinstated at some point after a bond forfeiture, the court sends the updated information to the DMV to remove the conviction from the driver's record, and then the driver gets the points back on his or her license; or if the bond is withdrawn, like in Rolenc's case, the court tells the DMV to withdraw the bond forfeiture, and then the DMV removes the conviction from the driver's record. In order to remove the conviction from a driver's record, the court employee has "specific directions given from their help desk that they have to send screen prints" and [24 Neb.App. 286] indicate what the next step is, then the document ...


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