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State v. Arizola

Supreme Court of Nebraska

January 6, 2017

State of Nebraska, Appellee,
v.
Felix Arizola, Appellant.

         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 protection 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. Pleadings. Issues regarding the grant or denial of a plea in bar are questions of law. 4. Judgments: Appeal and Error. On a question of law, an appellate court reaches a conclusion independent of the court below.

         5. Judgments: Pleadings: Appeal and Error. Regarding questions of law presented by a motion to quash, an appellate court is obligated to reach a conclusion independent of the determinations reached by the trial court.

         6. Constitutional Law: Statutes: Judgments: Appeal and Error. The constitutionality and construction of a statute are questions of law, regarding which an appellate court is obligated to reach conclusions independent of those reached by the court below.

         7. Constitutional Law: Statutes: Pleadings. When a statute is utilized by the court in sentencing a defendant, the defendant is not required [295 Neb. 478] to challenge the constitutionality of this statute in his or her motion to quash.

         8. Constitutional Law: Criminal Law: Statutes. The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.

         9. Judgments: Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

         10. Constitutional Law: Statutes. The test for determining whether a statute is vague is whether it forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and may differ as to its application.

         11. __:__. A statute will not be deemed vague if it uses ordinary terms which find adequate interpretation in common usage and understanding.

         12. Due Process. The Due Process Clause applies when government action deprives a person of liberty or property; accordingly, when there is a claimed denial of due process, a court must consider the nature of the individual's claimed interest.

         13. Criminal Law: Due Process: Notice. In the context of criminal proceedings, due process generally requires the defendant be given notice and an adequate opportunity to defend himself or herself.

         14. Sentences: Due Process. Due process requires that a sentencing judge have relevant information as the basis for a sentence imposed on a convicted defendant.

         15. Sentences: Evidence. In a sentencing hearing, a court generally has broad discretion concerning the source of information and the type of information to be considered.

         16. Sentences: Evidence: Presentence Reports. A sentencing judge may consider relevant information contained in a presentence report on the defendant to determine an appropriate sentence within the statutorily authorized penalty, punishment, or disposition applicable to the crime for which the defendant has been convicted.

         17. Prior Convictions: Records. A certified or duly authenticated copy of the former judgment, from any court in which such judgment was had, for any of such crimes formerly committed by the party so charged, shall be competent and prima facie evidence of such former judgment.

         Appeal from the District Court for Lancaster County: Susan I. Strong, Judge. Affirmed.

         [295 Neb. 479] Joe Nigro, Lancaster County Public Defender, and Nathan Sohriakoff for appellant.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Kelch, and Funke, JJ., and Inbody, Judge.

          Heavican, C.J.

         I. INTRODUCTION

         Felix Arizola was found guilty of refusal of a chemical test, with two prior convictions, a Class IIIA felony under Neb. Rev. Stat. §§ 60-6, 197 (Cum. Supp. 2016) and 60-6, 197.03(6) (Cum. Supp. 2014). Arizola filed various pretrial and posttrial motions, including a motion to suppress, a motion to quash, a motion for plea in abatement, a second motion to quash, and a motion for plea in bar. All were denied.

         The primary issues on appeal are Arizola's contention that the traffic stop was conducted without reasonable suspicion and hence should be suppressed and that Neb. Rev. Stat. § 60-6, 197.09 (Cum. Supp. 2016) and related statutes are unconstitutional because they are void for vagueness. Arizola also argues that he was denied due process when he was denied probation under § 60-6, 197.09, because the lower court failed to give him a meaningful opportunity to challenge whether he committed another driving under the influence (DUI) offense for which he was participating in criminal proceedings when the present violation was committed. This appeal is a companion case to State v. Wagner.[1] We affirm.

         II. BACKGROUND

         1. Initial Stop

         On June 18, 2014, at approximately 11:46 p.m., Officer Joseph Villamonte of the Lincoln Police Department observed [295 Neb. 480] a vehicle driving westbound in the 3600 block of Adams Street. Villamonte ran the license plate number through the police department's information system to check for suspension or warrants. The license plate was registered to Arizola, who had been cited while driving the vehicle in 2013. The police report did not indicate the reason for this citation, but the record otherwise shows that Arizola was cited in 2013 for improper registration and for violating the speed limit. The system also indicated that Arizola's operator's license had been revoked. Villamonte testified that he pulled his cruiser alongside the passenger side of the vehicle at a stoplight and positively identified Arizola as the driver from his "book-in" and "DMV" photographs contained in the system.

         Villamonte then initiated a traffic stop of Arizola's vehicle. He informed Arizola of the reason for the stop and requested identification. Arizola provided a Nebraska identification card. After Villamonte received identification from Arizola, he ran further checks on Arizola through the system. Villamonte checked Arizola's operator's license status and discovered that Arizola had two prior DUI convictions from 2002 and 2008, multiple convictions for driving under suspension, and a failure to appear conviction.

         Villamonte asked Arizola to step out of the vehicle and proceeded to conduct a search of Arizola's pockets. Arizola smelled of alcohol, had watery and bloodshot eyes, and made statements that caused Villamonte to believe Arizola was impaired. Another officer who had arrived at the scene observed an open container of beer with a small amount of alcohol in it on the driver's side floorboard of Arizola's vehicle. A search was then conducted of the vehicle. The beer bottle was cool to the touch. A review of the record indicates that the beer bottle was the only item seized during the stop.

         Villamonte took Arizola into custody for driving under a revoked license and transported Arizola to the police station. Upon arrival at the police station, Arizola was advised that he [295 Neb. 481] would also be processed for a DUI. Villamonte requested that Arizola take a breath test, but Arizola refused.

         2. Criminal Charges and Pretrial Motions

         On August 22, 2014, Arizola was charged under Neb. Rev. Stat. § 60-6, 196 (Reissue 2010) and § 60-6, 197.03(6) with DUI with refusal of a chemical test, with two prior convictions, a Class IIIA felony. The two prior convictions included to enhance the sentence were a DUI on or about July 13, 2007, and another occurring on or about October 20, 2001.

         On December 3, 2014, Arizola filed a motion to suppress his statements, the stop, and any evidence seized from that stop. Arizola alleged that the officers lacked probable cause or a reasonable articulable suspicion to stop his vehicle and detain him, and thus violated his rights under the 4th, 5th, 6th, and 14th Amendments to the U.S. Constitution and under Neb. Const, art. I, §§ 7 and 12.

         On February 20, 2015, the State filed an amended information. The amended information charged Arizola with refusal with two prior convictions, a Class IIIA felony under §§ 60-6, 197 and 60-6, 197.03(6). Because the amended information charged a new crime-specifically § 60-6, 197-the court held a preliminary hearing. At that hearing, Villamonte testified and the State offered evidence of Arizola's two prior DUI convictions, as well as a copy of his driver's abstract. After the hearing, the court found there was probable cause to believe that Arizola committed the crime of refusal with two prior convictions.

         On March 25, 2015, Arizola filed a plea in abatement alleging that there was insufficient evidence adduced at the preliminary hearing to warrant a finding of probable cause of the felony charge of refusal of a chemical test with two prior convictions. On the same date, Arizola filed a motion to quash, alleging issues relating to the enhancement of his sentence and conviction for third-offense DUI.

         [295 Neb. 482] On June 12, 2015, the district court denied Arizola's plea in abatement, because there was probable cause to believe that a crime had been committed and that Arizola had committed the crime. In addition, the district court overruled Arizola's motion to quash, because the issue was premature. The court reasoned that a motion to quash for enhancement issues is not ripe until there is a conviction to which the enhancement should apply.

         On August 31, 2015, the district court held a hearing on Arizola's motion to suppress. At the hearing, Villamonte testified that when he works patrol, he actively runs license plate numbers through the information system "to identify registration violations, wanted vehicles or suspended drivers."

         Arizola called an investigator for the Lancaster County public defender's office who had investigated, under similar conditions, whether it was possible to positively identify the driver of Arizola's vehicle through the passenger window of a vehicle alongside it. The investigator testified that due to the window tinting on Arizola's vehicle and the lighting conditions on the street at night, he was unable to positively identify the driver in Arizola's vehicle.

         The district court overruled Arizola's motion to suppress, because the traffic stop was not an illegal seizure and the search incident to the traffic stop and arrest was lawful. The court reasoned that once Villamonte confirmed it was Arizola driving the vehicle and that Arizola's license was revoked, Villamonte had probable cause to arrest him. And once there was a valid arrest, the search of Arizola's person and vehicle incident to that arrest was valid because it was limited to the area within Arizola's '"immediate control.'" The court also held that Arizola's statements were voluntary and admissible because there was "no force, no threat of force or any type of coercion used by the officers to elicit responses to their questions during the stop."

         On November 25, 2015, following a bench trial on stipulated facts, Arizola was found guilty of refusal of a chemical ...


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