Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Thalken

Supreme Court of Nebraska

May 11, 2018

State of Nebraska, appellant,
v.
Matthew F. Thalken, appellee.

         1. Criminal Law: Courts: Appeal and Error. 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.

         2. Courts: Appeal and Error. Both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record.

         3. Judgments: Appeal and Error. 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.

         4. Appeal and Error. An appellate court independently reviews questions of law in appeals from the county court.

         5. Criminal Law: Courts: Appeal and Error. When deciding appeals from criminal convictions in county court, an appellate court applies the same standards of review that it applies to decide appeals from criminal convictions in district court.

         6. 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.

         7. Statutes. The interpretation of a statute presents a question of law.

         8. Courts: Appeal and Error. Neb. Rev. Stat. § 29-2315.01 (Reissue 2016) authorizes error proceedings taken from the district court sitting as an intermediate court of appeal.

         [299 Neb. 858] 9. Constitutional Law: Search and Seizure: Evidence. Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure.

         10. Probable Cause: Police Officers and Sheriffs: Investigative Stops: Motor Vehicles. An officer's stop of a vehicle is objectively reasonable when the officer has probable cause to believe that a traffic violation, no matter how minor, has occurred.

         11. Probable Cause: Appeal and Error. An appellate court determines whether probable cause existed under an objective standard of reasonableness, given the known facts and circumstances.

         12. Probable Cause: Police Officers and Sheriffs. Probable cause is not defeated by an officer's incorrect belief regarding the law applicable to the facts.

         13. Probable Cause: Police Officers and Sheriffs: Appeal and Error. In analyzing probable cause, an appellate court focuses on the facts known to the officer, not the conclusions the officer drew from those facts.

         14. Arrests: Probable Cause: Police Officers and Sheriffs. Police officers are not required to be legal scholars. This means, among other things, that the arresting officer's knowledge of facts sufficient to support probable cause is more important to the evaluation of the propriety of an arrest than the officer's understanding of the legal basis for the arrest.

         15. Constitutional Law: Statutes: Jurisdiction: Appeal and Error. In Nebraska, jurisdiction is vested in an appellate court through the Nebraska Constitution and the statutes enacted by the Legislature.

         16. Statutes: Appeal and Error. The right of appeal in Nebraska is purely statutory.

         17. Constitutional Law: Jurisdiction: Appeal and Error. Except in those cases where original jurisdiction is specifically conferred by Neb. Const, art. V, § 2, the Nebraska Supreme Court exercises appellate jurisdiction.

         18. Criminal Law: Appeal and Error. The right to appeal in criminal cases can be exercised only by a party to whom it is given, and generally only a person aggrieved or injured by a judgment may take an appeal from it.

         19. Constitutional Law: Double Jeopardy: Appeal and Error. An acquittal cannot be reviewed, on error or otherwise, without putting the defendant twice in jeopardy, thereby violating the Constitution.

         20. Double Jeopardy: Juries: Evidence: Pleas. In Nebraska, jeopardy attaches (1) in a case tried to a jury, when the jury is impaneled and sworn; (2) when a judge, hearing a case without a jury, begins to hear [299 Neb. 859] evidence as to the guilt of the defendant; or (3) at the time the trial court accepts the defendant's guilty plea.

         21. Trial: Double Jeopardy. Double Jeopardy bars retrial where all three elements are present: (1) Jeopardy has attached in a prior criminal proceeding, (2) the defendant is being retried for the same offense prosecuted in that prior proceeding, and (3) the prior proceeding has terminated jeopardy.

         22. Statutes: Words and Phrases. Such words and phrases as may have acquired a peculiar and appropriate meaning in the law shall be construed and understood in Nebraska statutes according to such peculiar and appropriate meaning.

         23. Statutes: Legislature: Presumptions: Intent: Appeal and Error. An appellate court will, if possible, give effect to every word, clause, and sentence of a statute, since the Legislature is presumed to have intended every provision of a statute to have a meaning.

         24. Statutes: Appeal and Error. The rules of statutory interpretation require an appellate court to reconcile different provisions of the statutes so they are consistent, harmonious, and sensible in the context in which they appear.

         25. Courts: Judgments: Appeal and Error. Under the language of Neb. Rev. Stat. § 29-2316 (Reissue 2016), when an exception proceeding is before the Nebraska Supreme Court or Court of Appeals from the district court where the trial took place in district court, § 29-2316 restricts the scope of any ruling directed at the defendant and district court. But under the language of § 29-2316, where the district court is sitting as an appellate court, the defendant was not placed in jeopardy in that court and the limitations of § 29-2316 do not apply to dispositions or orders directed at the district court.

          Appeal from the District Court for Douglas County, J. Michael Coffey, Judge, on appeal thereto from the County Court for Douglas County, Lawrence E. Barrett, Judge. Exception sustained, and cause remanded with directions.

          Matthew Kuhse, Omaha City Attorney, and Kevin J. Slimp for appellant.

          W. Randall Paragas, of Paragas Law Offices, for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ.

         [299 Neb. 860] PER CURIAM.

         I. NATURE OF CASE

         The county court convicted Matthew F. Thalken of operating a motor vehicle while under the influence of alcohol, and Thalken appealed to the district court. In vacating Thalken's conviction and sentence, the district court focused on a police officer's mistake of law regarding a driving statute[1] and relied on one of our decisions.[2] We granted the State's application for leave to docket an exception proceeding.[3] Notwithstanding the officer's incorrect view of the law, when probable cause exists for a stop based on an objective view of the facts known to the officer, the stop does not offend the Constitution. We sustain the State's exception and conclude that because Thalken was not placed legally in jeopardy by the district court sitting as an appellate court, Neb. Rev. Stat. § 29-2316 (Reissue 2016) does not prevent us from reversing the district court's decision with directions to reinstate Thalken's conviction. Accordingly, we remand the cause to the district court with directions to reinstate and affirm Thalken's conviction and sentence.

         II. STATEMENT OF FACTS

         This case arises out of Thalken's conviction for operating a motor vehicle while under the influence. At approximately 1:15 a.m. on July 26, 2015, Omaha police officer Pat Soltys was in his cruiser proceeding north on 168th Street in Omaha, Nebraska, when he observed a vehicle approach the cruiser from the rear at a very high rate of speed with illuminated fog lights-a type of auxiliary light. There were two northbound lanes of travel, and eventually, the vehicle, driven by Thalken, proceeded to within 40 feet of Soltys' cruiser and then passed. Soltys observed that the headlights of Thalken's vehicle were "bright" and the fog lights were "exceptionally bright." At [299 Neb. 861] no time did Thalken dim any of his vehicle's lights. Soltys made a traffic stop, observed signs of alcohol impairment, and noticed an odor of alcohol coming from the vehicle.

         Soltys testified that the reason he stopped Thalken was not because he was speeding or following too close, but that he believed Thalken's fog lights were illegally illuminated. Soltys testified that he "believed, at the time, that having fog lights on, auxiliary lights on, in itself, was a violation." He further clarified that consistent with his report regarding the incident, he '"[s]topped the vehicle for having its auxiliary lights on during normal/stable weather.'"

         The State charged Thalken in the county court for Douglas County with operating a motor vehicle while under the influence. Thalken filed a motion to suppress challenging the traffic stop. The county court denied the motion and, after a bench trial on stipulated facts, found him guilty of the charged offense.

         Thalken appealed the county court's denial of his motion to suppress and his conviction to the district court. Therefore, in this case, the district court was sitting as an appellate court. After a hearing, the district court reversed. In its order, the district court determined that Soltys did not have probable cause to stop Thalken. As to the law, the district court concluded that the use of auxiliary lights was not a traffic violation, and as to the facts, the district court found that the traffic stop was based on Soltys' incorrect belief that having auxiliary lights on was in and of itself a traffic violation. The district court stated that because Thalken drove his vehicle within 200 feet of the rear of the cruiser with both extremely bright auxiliary lights and bright headlights illuminated, Thalken had violated § 60-6, 225(2) and another statute.[4] However, referring to our decision in State v. Au, [5]the district court nonetheless vacated Thalken's county court conviction and sentence.

         [299 Neb. 862] On August 31, 2016, the State filed an application for leave to docket an exception proceeding. The State claimed that the district court sitting as an appellate court erred when it reversed the county court's ruling denying Thalken's motion to suppress and, as a result, reversed the judgment of the county court and vacated and set aside the conviction. We granted the State's application for leave to docket an exception proceeding.

         III. ASSIGNMENTS OF ERROR

         The State claims that the district court erred when it (1) reversed the county court's ruling which denied Thalken's motion to suppress and (2) reversed the judgment of the county court and ordered that Thalken's conviction and sentence be vacated and set aside.

         IV. STANDARDS 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.[6] Both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record.[7] 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.[8] But we independently review questions of law in appeals from the county court.[9] 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.[10]

         [299 Neb. 863] 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.[11]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.[12]

         The interpretation of a statute presents a question of law.[13]

         V. ANALYSIS

         Before addressing the merits, we note that the State is the appellant. Absent specific statutory authorization, the State generally has no right to appeal an adverse ruling in a criminal case.[14] As we have already noted, the State appeals under § 29-2315.01, which provides an exception to the general rule by allowing a county attorney to request appellate review of an adverse ruling by a district court. We have interpreted the statute to authorize exception proceedings taken from the district court sitting as an intermediate court of appeal.[15] Although we have sometimes described a proceeding under § 29-2315.01 as an "error" proceeding, that statute contemplates the State's "exception" and in the interest of precision, we use that term.

         1. PROBABLE CAUSE FOR TRAFFIC STOP

         This appeal arises out of the question of whether there was legal justification for Soltys to stop Thalken. The Fourth Amendment to the U.S. Constitution and article I, § 7, of the [299 Neb. 864] Nebraska Constitution protect individuals against unreasonable searches and seizures by the government. Stopping an automobile and detaining its occupants constitute a '""seizure"' within the meaning of the Fourth Amendment, and if the seizure was illegal, the evidence obtained as a result is inadmissible.[16] Under the exclusionary rule, "evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure."[17]

         An officer's stop of a vehicle is objectively reasonable when the officer has probable cause to believe that a traffic violation, no matter how minor, has occurred.[18] We determine whether probable cause existed under an objective standard of reasonableness, given the known facts and circumstances.[19] The question is whether the facts available to the officer would cause a reasonably cautious person to believe that the suspect has committed an offense.[20] Probable cause is not defeated by an officer's incorrect belief regarding the law applicable to the facts.[21] We focus on the facts known to the officer, not the conclusions the officer drew from those facts.[22]

         In this matter, Thalken urges us to find that the traffic stop was objectively unreasonable because Soltys initiated it based solely on a mistaken interpretation of the auxiliary lights statute, § 60-6, 225, which Soltys believed [299 Neb. 865] Thalken had violated when he drove with fog lights turned on during normal weather conditions. The State contends that because Thalken drove within 40 feet of Soltys' cruiser while displaying exceptionally bright auxiliary lights, i.e.. fog lights, Thalken violated § 60-6, 225(2), which, when read with other statutes, prohibits the use of bright auxiliary or fog lights when approaching other vehicles. The State claims that because of this violation, the traffic stop was supported by probable cause. Given the State's position, we limit our analysis to whether there was probable cause to stop on the basis that Thalken violated § 60-6, 225(2). We agree with the State that probable cause supported the stop.

         We first identify the statutes relevant to our analysis. Section 60-6, 225(2) provides, in pertinent part:

Any motor vehicle may be equipped with not to exceed two auxiliary driving lights [which shall comply with the] limitations set forth in section 60-6, 221. . . . Auxiliary driving lights shall be turned off at the same time the motor vehicle's headlights are required to be dimmed when approaching another vehicle from either the front or the rear.

         As relevant to this case, the "limitations set forth in section 60-6, 221" to which reference is made in § 60-6, 225(2) include a provision making it illegal for auxiliary lights to "project a glaring or dazzling light to persons in front of such headlights."[23]

         Section 60-6, 221(2) provides:

Headlights shall be deemed to comply with the provisions prohibiting glaring and dazzling lights if none of the main bright portion of the headlight beam rises above a horizontal plane passing through the light centers parallel to the level road upon which the loaded vehicle stands and in no case higher than forty-two inches, seventy-five feet ahead of the vehicle.

         [299 Neb. 866] Finally, § 60-6, 224(2) provides that vehicle headlights are required to be dimmed whenever another vehicle follows "another vehicle within two hundred feet to the rear."

         As Thalken and the district court agree, Nebraska law does not make it illegal per se to drive with auxiliary driving lights including fog lights turned on, and Soltys was incorrect in his belief that it was improper to drive with fog lights turned on during normal visibility conditions.[24] But the State correctly notes that because Thalken was within 200 feet of Soltys' cruiser, § 60-6, 224(2) required Thalken's headlights to be dimmed, and that he failed to turn off his auxiliary lights, which violated § 60-6, 225(2). The uncontradicted facts show, as urged by the State, that Thalken violated § 60-6, 225(2).

         The district court concluded, "[T]he fact that [Thalken] drove his vehicle within two hundred feet of the rear of the cruiser with the auxiliary lights on was a violation of Neb. Rev. Stat. [§§] 60-6, 225(2) and 60-6, 224(2)." And it is well settled that a violation, no matter how minor, creates probable cause for an officer to stop the driver of a vehicle.[25] However, even though the district court found a violation of driving statutes, the district court did not conclude that probable cause existed.

         Instead, in reversing the ruling and judgment of the county court, the district court relied on Soltys' mistake regarding the vehicle's fog lights, which served as his basis for the stop, and determined that "the incorrect assumption of [Soltys] did not provide him with probable cause to stop [Thalken]." The district court reasoned that "[t]o find that [an] officer's mistaken belief that a violation had occurred [gives] police officers the ability to 'create' instances which would then be used as probable cause to justify a traffic stop." The district court referred to Au[26] as the basis for its ruling. As we explain below, the district court misperceives Au.

         [299 Neb. 867] In Au, we considered a traffic stop based on Neb. Rev. Stat. § 60-6, 139(1) (Reissue 2010), which requires a motor vehicle operator to remain within a traffic lane "as nearly as practicable." We observed that the statute gave leeway in the determination of whether the facts met the descriptive phrase "as nearly as practicable" and whether the driver violated the statute. We noted that the surrounding circumstances must be considered in determining the existence of a violation and hence a determination regarding probable cause.

         In Au, we said that in contrast to the statute at issue therein, some other driving statutes strictly declare particular actions to be traffic violations. One such strict statute was implicated in State v. Magallanes, [27] wherein we held that the driver of a vehicle crossing a fog line and driving on the shoulder of the highway, albeit briefly, violated the statute prohibiting driving on a shoulder. The present case is similar to Magallanes, in that particular objective facts and not surrounding circumstances determine whether an act was a violation of a driving statute. The State observed that the uncon-tradicted facts are that Thalken was within 200 feet of Soltys' cruiser and that he did not turn off his fog lights, in violation of § 60-6, 225(2). Here, unlike in Au, no subjective or other facts were required to establish a driving violation and hence probable cause.

         Evidently, the district court in the instant case referred to Au for that case's discussion regarding the mistaken understanding of a statute shared by the district court and the sheriff's officer. Because as just explained, the statute in Au and the statute at issue are not comparable and the statute now at issue is not subject to consideration of additional circumstances or scholarly legal analysis, the district court's reliance on Au was misplaced.

         Similar to the district court's reasoning, Thalken maintains, relying on Au, that Soltys' mistaken view of the law makes the stop improper. But in Au, we determined that the stop was not [299 Neb. 868] justified due to lack of proof of the surrounding circumstances as required by the statute, not because the sheriff's officer or the district court misperceived the law.

         As we have often stated, probable cause to stop a vehicle is analyzed under an objective reasonableness standard, and thus, the officer's subjective intent or motivation is not relevant.[28]That is, if an officer is aware of facts amounting to probable cause to stop a violator, the stop is objectively reasonable and any ulterior motivation is irrelevant.[29]

         From our preceding discussion, it is clear that Soltys possessed facts from which it was reasonable to believe Thalken committed a traffic violation, and the county court properly denied Thalken's motion to suppress. The district court erred when it limited its analysis to Soltys' mistake regarding the operation of auxiliary lights statute and ignored the uncontroverted facts. In the arrest context, we have stated: "'Police officers are not required to be legal scholars. This means, among other things, that the arresting officer's knowledge of facts sufficient to support probable cause is more important to the evaluation of the propriety of an arrest than the officer's understanding of the legal basis for the arrest.'"[30]The same reasoning applies here. As the State urges, given the uncontroverted facts, "Thalken was required to turn off his auxiliary lights when he approached Soltys['] vehicle from the rear."[31] When Thalken failed to do so, Soltys had knowledge of facts that Thalken had committed an offense under § 60-6, 225(2); hence, probable cause existed. The county court did not err when it overruled Thalken's motion to suppress, but the district court sitting as an appellate court erred when it disagreed with this ruling and reversed Thalken's conviction.

         [299 Neb. 869] Accordingly, we find merit in the State's exception to the district court's ruling.

         2. EFFECT OF RULING ON CONVICTION

         The parties characterize this appeal as an '"error proceeding.'"[32] They do so, presumably, because of several of our previous decisions.[33]

         This, in turn, has led to a focus on language in § 29-2316, stating in pertinent part:

The judgment of the court in any action taken pursuant to section 29-2315.01 shall not be reversed nor in any manner affected when the defendant in the trial court has been placed legally in jeopardy, but in such cases the decision of the appellate court shall determine the law to govern in any similar case which may be pending at the time the decision is rendered or which may thereafter arise in the state.

(Emphasis supplied.) The "not be reversed nor in any manner affected" language of § 29-2316 led us to conclude that where a defendant has appealed a county court conviction and sentence in a criminal case to the district court and the district court, as an intermediate appellate court, has erroneously reversed the county court's judgment, a higher appellate court could not, consistent with § 29-2316, reinstate the county court's judgment. We take this opportunity to correct ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.