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State v. Petsch

Supreme Court of Nebraska

June 29, 2018

State of Nebraska, Appellee,
v.
Adam T. Petsch, 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. 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.

         4. 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.

         5. 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.

         6. Probable Cause: Words and Phrases. Probable cause is a flexible, commonsense standard that depends on the totality of the circumstances.

         7. 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.

         8. Probable Cause: Police Officers and Sheriffs. An arresting officer's state of mind is irrelevant to the existence of probable cause.

         9. 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.

          Appeal 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.

          Brad Roth, of McHenry, Haszard, Roth, Hupp, Burkholder & Blomenberg, P.C., L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Johnson, District Judge.

          HEAVICAN, C.J.

         INTRODUCTION

         Adam T. 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.

         [300 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[1] We recently reversed the Court of Appeals' opinion in Botts on petition for further review.[2] We affirm Petsch's convictions.

         BACKGROUND

         On 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.

         A 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.

         While 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.

         After 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.

         Aksamit 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 of ...


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