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
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.
Motions to Suppress: Trial: Pretrial Procedure:
Appeal and Error. When a motion to suppress is
denied pretrial and again during trial on renewed objection,
an appellate court considers all the evidence, both from
trial and from the hearings on the motion to suppress.
Constitutional Law: Police Officers and Sheriffs:
Search and Seizure: Arrests. A tier-one
police-citizen encounter involves the voluntary cooperation
of the citizen elicited through noncoercive questioning and
does not involve any restraint of liberty of the citizen.
Because tier-one encounters do not rise to the level of a
seizure, they are outside the realm of Fourth Amendment
protection. A tier-two police-citizen encounter involves a
brief, nonintrusive detention during a frisk for weapons or
preliminary questioning. A tier-three police-citizen
encounter constitutes an arrest, which involves a highly
intrusive or lengthy search or detention. Tier-two and
tier-three police-citizen encounters are [300 Neb. 402]
seizures sufficient to invoke the protections of the Fourth
Amendment to the U.S. Constitution.
Warrantless Searches: Probable Cause: Police Officers
and Sheriffs. Probable cause to support a
warrantless arrest exists only if law enforcement has
knowledge at the time of the arrest, based on information
that is reasonably trustworthy under the circumstances, which
would cause a reasonably cautious person to believe that a
suspect has committed or is committing a crime.
Probable Cause: Words and Phrases. Probable
cause is a flexible, commonsense standard that depends on the
totality of the circumstances.
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.
Probable Cause: Police Officers and
Sheriffs. An arresting officer's state of mind
is irrelevant to the existence of probable cause.
Probable Cause: Appeal and Error. Appellate
courts should avoid an excessively technical dissection of
the factors supporting probable cause. The test to be
employed is whether the totality of the circumstances would
suggest that probable cause existed.
from the District Court for Lancaster County, Robert R. Otte,
Judge, on appeal thereto from the County Court for Lancaster
County, Timothy C. Phillips and Thomas E. Zimmerman, Judges.
Judgment of District Court affirmed.
Roth, of McHenry, Haszard, Roth, Hupp, Burkholder &
Blomenberg, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Johnson, District Judge.
Petsch was charged with aggravated driving under the
influence and displaying unlawful or fictitious license
plates. His motion to suppress was denied, and he was
convicted following a stipulated bench trial. He appeals.
Neb. 403] We moved this case to our docket because it
presented similar facts to, and Petsch relied upon the
Nebraska Court of Appeals' opinion in, State v.
Botts We recently reversed the Court of
Appeals' opinion in Botts on petition for
further review. We affirm Petsch's convictions.
November 20, 2015, at approximately 11:25 a.m., Troy Aksamit,
an officer with the Lincoln, Nebraska, police department,
observed a white sport utility vehicle (SUV) with an expired
license plate. Aksamit was traveling in his patrol vehicle in
the opposite direction, and so he conducted a U-turn and
proceeded to follow the SUV. The SUV had turned left by that
time, so Aksamit also turned left. Aksamit testified he felt
that the driver was "attempting to speed up and flee
from me." At that time, Aksamit activated his patrol
vehicle's overhead lights and sirens. Despite this, the
SUV did not pull over and continued to make left turns before
eventually coming to a stop.
review of the video of the stop supports Aksamit's
testimony that the SUV was attempting to flee from him. The
video shows that it took Aksamit approximately 20 seconds to
catch up to the SUV. At that time, Aksamit activated his
patrol vehicle's lights and sirens. From that point, the
SUV drove on for over 45 seconds, making left turns on mostly
deserted side streets and also stopping at a stop sign, but
then crossing that street, with Aksamit's patrol vehicle
following behind with lights flashing.
stopped behind the SUV, Aksamit noted that it had tinted
windows and some equipment stored in the back, but testified
that he could see some movement inside the SUV. After about
30 seconds, Aksamit made contact with Petsch, the driver of
the SUV. The video shows that Aksamit approached the SUV with
his service revolver drawn from its holster, but [300 Neb.
404] held the revolver pointed down to the ground. As soon as
Petsch exited the SUV and indicated compliance through his
actions, Aksamit holstered his revolver. The revolver
remained unholstered for under 30 seconds and was never
brandished in a threatening manner. Askamit testified that he
drew the weapon for officer safety reasons because he was
unaware of whether there was another occupant in the SUV; it
transpired that Petsch was the only occupant of the SUV.
exiting the SUV, Petsch was handcuffed without incident;
Aksamit testified that he also handcuffed Petsch for officer
safety reasons. After other officers arrived at the scene,
Aksamit placed Petsch in the back of his patrol vehicle.
Petsch declined to undergo field sobriety tests and refused
consent for a search of his SUV.
testified that he noticed Petsch seemed "impaired"
and had a "slowed response" and that he "had
to ask him four times, basically, the same question."
Aksamit was concerned that Petsch might be having a medical
episode. Aksamit also testified that he noted Petsch had a
"little bit of a problem walking." Aksamit left
Petsch alone in the patrol vehicle for a few minutes; upon
returning, Aksamit "immediately detected a strong odor